Reply Br. at 3.
Although Jackson is wrong about exhaustion, he is right that we are barred from reviewing these claims. Claims two through four are indeed exhausted and ripe for federal habeas review because time bars prevent the state courts from considering them any further. See Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992); see also 725 ILCS 5/122-1. Procedural default nonetheless prevents us from addressing these claims because they were not presented to the state courts on direct appeal or during postconviction proceedings. See Picard v. Connor, 404 U.S. 270, 276, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971).
We would thus be obliged to reject these claims regardless of their merit "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Nothing in Jackson's filings or the record supplies cause for his failure to raise these claims at the state court level. Nor do we believe that the fundamental miscarriage of justice exception applies here. Accordingly, we limit our review to the sufficiency of the evidence.
Our first task is to determine whether procedural default extinguishes this claim as well.
C. Fair Presentation of the Sufficiency of the Evidence Claim
Jackson's sole remaining claim is that the state's failure to prove his guilt beyond a reasonable doubt violated his federal constitutional rights. The constitutional right to this burden of proof is found in In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), which held that the Due Process Clause of the Fourteenth Amendment requires every element of a crime to be proven beyond a reasonable doubt. In addition, Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979), established that for purposes of habeas review, the relevant question is whether, when the evidence is viewed in a light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." The first issue confronting us is whether Jackson properly raised this federal claim in the state courts. "A habeas petitioner must provide the state courts with a fair opportunity to apply constitutional principles and correct any constitutional error committed by the trial court." Bocian v. Godinez, 101 F.3d 465, 469 (7th Cir. 1996) (quoting United States ex rel. Sullivan v. Fairman, 731 F.2d 450, 453 (7th Cir. 1984)) (internal quotations omitted). The petitioner accomplishes this task if he presents his claims in a way that "fairly alert[s] the state court to any applicable [federal] constitutional grounds for the claim." Id. (quoting Green v. Peters, 36 F.3d 602, 605 (7th Cir. 1994)) (internal quotations omitted). In other words, "both the operative facts and the controlling legal principles of a constitutional claim must be submitted to the state court." Id.
Simply asserting that the state has failed to prove guilt beyond a reasonable doubt does not automatically raise a federal Jackson v. Virginia claim. United States ex rel. v. Director of IDOC, 963 F. Supp. 1473, 1482 n.1 (N.D. Ill. 1997); see Anderson v. Harless, 459 U.S. 4, 6, 74 L. Ed. 2d 3, 103 S. Ct. 276 (1982) (per curiam) (raising a state law claim that is similar to a federal claim is not fair presentation of the federal claim); Verdin v. O'Leary, 972 F.2d 1467, 1474 (7th Cir. 1992) (same); United States ex rel. Riggins v. McGinnis, 859 F. Supp. 309, 315 (N.D. Ill. 1994) (same), aff'd, 50 F.3d 492 (7th Cir. 1995). Indeed, Illinois state courts recognize an independent state law basis for reversing a conviction based on a lack of evidentiary support, see People v. Pintos, 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346, 139 Ill. Dec. 832 (1989), and, as a result, many state courts perform a sufficiency of the evidence analysis without regard to federal constitutional principles. See id.; People v. Hister, 60 Ill. 2d 567, 572, 328 N.E.2d 531, 534 (1975); People v. Lindsey, 73 Ill. App. 3d 436, 447, 392 N.E.2d 278, 286-87, 29 Ill. Dec. 721 (1st Dist. 1979). To ensure that he properly raised his Jackson claim in the state courts, Jackson must have:
(1) relied on pertinent federal cases employing constitutional analysis; (2) relied on state cases applying constitutional analysis to a similar factual situation; (3) asserted the claim in terms so particular as to call to mind a specific constitutional right; or (4) alleged a pattern of facts that is well within the mainstream of constitutional litigation.
Verdin, 972 F.2d at 1473-74. Satisfying any of these four factors does not guarantee a finding of fair presentment, however; we must consider the specific facts in this case. Id. at 1474.
Jackson's habeas petition argues that the state's evidence was insufficient for three reasons: 1) the state's sole eyewitness was unreliable; 2) Walker's dying declaration was unreliable; and 3) the admission of evidence pertaining to gang affiliation and the fight over drug sales as a motive for the murder was improper. We may dispose of the last component summarily -- Jackson never brought the issue of admitting gang-related evidence to the state appellate court's attention on direct appeal. The argument was raised in Jackson's pro se addendum to the PLA filed in the state supreme court, but this tactic did not preserve the issue because "submitting a claim to the state's highest court on discretionary review does not constitute fair presentment." Verdin, 972 F.2d at 1479 n.13; see Castille v. Peoples, 489 U.S. 346, 350, 103 L. Ed. 2d 380, 109 S. Ct. 1056 (1989); Riggins, 859 F. Supp. at 316. Moreover, we cannot mold a claim that challenges a state court evidentiary ruling on admissibility into one that attacks the state's sufficiency of the evidence. These are distinct claims; an erroneous evidentiary ruling is normally not cognizable on habeas, see White v. Peters, 990 F.2d 338, 341 (7th Cir. 1993), unless it can be said to have "violated the defendant's right to due process by denying him a fundamentally fair trial." Milone v. Camp, 22 F.3d 693, 702 (7th Cir. 1994). But Jackson never asserted violation of his fair trial rights in the state courts. In short, we cannot assess this component of Jackson's claim because it raises a constitutional issue that the state courts never had a chance to consider on the merits.
See Pierson v. O'Leary, 959 F.2d 1385, 1393-94 (7th Cir. 1992) (state court not fairly presented with Fifth Amendment claim because "thrust" of petitioner's argument to state appellate court was a Fourth Amendment violation).
Moving backwards to the second component, it might appear at first glance that Jackson's challenge to Walker's near-death statement fails for the same reasons. The state appellate court simply performed an admissibility analysis without ever addressing the statement's constitutional implications. Finding the state evidentiary requirements for both a dying declaration and a spontaneous declaration met, the court held that "deceased's response was properly admissible." Slip op. at 9. But that does not end the inquiry. Fair presentment is accomplished if the federal constitutional claim is either mentioned in the state court's opinion or submitted in the brief to the state court. United States ex rel. Reyes v. Gramley, 1994 WL 649981, at *3 (N.D. Ill. Nov. 16, 1994). Cf. Riggins, 859 F. Supp. at 315 (claim not fairly presented where absent from both brief on direct appeal and appellate court's opinion). And Jackson's appellate brief fairly alerted the court that he was arguing Walker's statement violated his constitutional right to proof beyond a reasonable doubt. Just below the paragraph in which Jackson contends that Walker's declaration was unreliable in light of the physical evidence and the presence of many possible perpetrators, and that his statement along with Fleming's equally unreliable eyewitness testimony was "the only evidence on which the court could base a finding that Demetrius had fired the fatal shot," Jackson cites In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), and the Fourteenth Amendment for the principle that the state must prove guilt beyond a reasonable doubt. Although Jackson does not cite Jackson v. Virginia, he sets out the Jackson standard that "reviewing courts are charged with determining whether or not any rational trier of fact could have found that the evidence, viewed in a light most favorable to the State, established the defendant's guilt beyond a reasonable doubt." As such, Jackson satisfied two elements in the Verdin fair presentment test: he relied on federal cases employing constitutional analysis and used "terms so particular as to call to mind a specific constitutional right." 972 F.2d at 1473. In light of this, the fact that the appellate court did not tie Walker's statement to Jackson's sufficiency of the evidence claim does not exile it to the land of procedural default.
Finally, it is clear that the first component of Jackson's sufficiency of the evidence claim -- the unreliability of Fleming's testimony -- was both presented and addressed as a federal constitutional claim in the state courts. First, it was fairly presented in the appellate brief for the same reason that we found the attack on Walker's declaration adequately framed as a constitutional claim. The Winship citation and language identical to the Jackson standard immediately follow Jackson's factual argument that Fleming's testimony was so substantially impeached that it should have been discarded as unreliable. Second, the cases on which the appellate court relied to resolve whether the discrepancies in Fleming's testimony warranted reversing his conviction are all state cases that employ federal constitutional analysis. See Verdin, 972 F.2d at 1475 ("Of course, if those state cases rest on federal constitutional grounds, they must be accepted on that basis by the habeas court."). People v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267, 87 Ill. Dec. 910 (1985), which the appellate court cited for the standard of review applicable to this claim, explicitly relies on Jackson v. Virginia. Collins quotes the Jackson "any rational trier of fact" standard, notes that all the evidence is to be viewed most favorably to the prosecution, and then applies these principles to the facts before it. Id. at 261-62, 478 N.E.2d at 277. In the same section of the opinion, the appellate court cited People v. Tye, 141 Ill. 2d 1, 565 N.E.2d 931, 152 Ill. Dec. 249 (1990), which applies the Jackson standard as quoted in Collins. Given that the appellate court cites cases using federal standards, we cannot help but find that, "as a pragmatic matter, it is probable that the state tribunal was alerted to the federal quality of the claim." Verdin, 972 F.2d at 1476.
The above analysis leaves Jackson's sufficiency of the evidence claim mostly intact. While we cannot consider the effect that admitting gang and drug-war related evidence had on Jackson's conviction, we are empowered to decide whether Fleming's testimony and Walker's declaration left the state with evidence that was constitutionally sufficient to convict. We now move on to the merits of that claim.
II. Decision on the Merits
A. Standard of Review
For this remaining claim, the standard of review is strict. Under the habeas corpus statute as recently amended, federal courts must deny a petition for habeas corpus with respect to any claim adjudicated on the merits in a state court unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The new law applies here because Jackson's petition was filed after the law was enacted. See Lindh v. Murphy, 136 L. Ed. 2d 643, 117 S. Ct. 726, 1997 WL 338568, at *4 (June 23, 1997). Under the amended statute, federal courts must accord "greater deference to the determinations made by state courts than they were required to under the previous law." Spreitzer v. Peters, 114 F.3d 1435, 1441 (7th Cir. 1997) (internal quotations and citations omitted). The standard of review for mixed constitutional questions of law and fact such as those presented by Jackson claims is whether the state court's application of clearly established Supreme Court law was reasonable. Id.; Gomez v. Acevedo, 106 F.3d 192, 199 (1997), petition for cert. filed (U.S. May 5, 1997) (No. 96-8978); Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir. 1997), rev'd on other grounds, 136 L. Ed. 2d 643, 117 S. Ct. 726, 1997 WL 338568 (June 23, 1997). A state court has reasonably applied clearly established Supreme Court caselaw if its application is "at least minimally consistent with the facts and circumstances of the case." Spreitzer, 114 F.3d at 1442 (internal quotations and citation omitted). Put another way, "'the statutory "unreasonableness" standard allows the state court's conclusion to stand if it is one of several equally plausible outcomes.'" Id. (citing Hall v. Washington, 106 F.3d 742, 748-49 (1997)).
As discussed above, Jackson v. Virginia is the seminal Supreme Court case defining habeas review of constitutional sufficiency of the evidence claims. The Jackson decision instructs federal habeas courts that a conviction must stand unless "it is found that upon the record evidence adduced at the trial that no rational trier of fact could have found proof of guilt beyond a reasonable doubt." 443 U.S. at 324. The evidence must be viewed in a light most favorable to the prosecution. Id. at 319. Under this test, the fact finder is accorded substantial deference:
This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.
Id. Along these lines, a federal court faced with a record full of conflicts must "presume -- even if it does not affirmatively appear in the record -- that the trier of fact resolved any such conflicts in favor of the prosecution." Id. at 326. Jackson indicated that less deference might be given to state appellate decisions applying its dictates, hinting that federal habeas review should be de novo. Id. at 324; see Wright v. West, 505 U.S. 277, 290, 120 L. Ed. 2d 225, 112 S. Ct. 2482 (1992). But under the new statute, there is no question that federal courts are not to review state appellate decisions de novo; rather, these decisions are examined only for reasonable application of Supreme Court caselaw. Consequently, we must ask whether the appellate court here reasonably applied the Jackson standard in holding that the evidence was sufficient to convict Jackson of murder.
B. Review for Reasonableness
To convict an individual of first degree murder in Illinois, the prosecution must prove beyond a reasonable doubt that 1) the person intended to kill or cause great bodily harm, or knew that his acts would cause death; or 2) the person knew that his acts created a strong probability of death or great bodily harm; or 3) the person was attempting or committing a "forcible felony other than second degree murder." 720 ILCS 5/9-1(a). Jackson does not contend that the state failed to establish 1), 2), or 3) -- he agrees that Walker was murdered -- but rather directs his challenge to the state's evidence of identity. Jackson insists that he is not their man because all the evidence connecting him to the crime was unreliable. Fleming's eyewitness testimony, he urges, was rife with inconsistencies, biased because Jackson belonged to a rival gang, and contradicted by several other witnesses. As for Walker's identification, Jackson contends that it was inconsistent with the physical evidence, which established that Walker was shot in the back and therefore could not have seen his shooter; failed to account for the possibility that any number of armed men on the scene, including Fleming, could have shot Walker; and unbelievable because uttered when Walker was fatally wounded and undoubtedly disoriented. Jackson claims that without Fleming and Walker's unreliable identifications, the state's case falls apart because the police recovered no other evidence, such as the murder weapon or fatal bullet, linking Jackson to the crime.
Although Jackson raises many excellent points that would be relevant to a fact finder evaluating the evidence for the first time, the scope of our review is far more narrow. We ask only whether the appellate court reasonably applied the Jackson standard. And we find that it did.
First, by citing state cases that incorporate the Jackson standard and emphasizing the need to defer to the fact-finder on issues of credibility and conflicting evidence, the appellate court relied on the factors that Jackson considered relevant in sufficiency of the evidence cases. Second, the appellate court proceeded to apply these factors to evidence in the record. The court pointed out that Fleming had known Jackson for years, and was thus capable of identifying him as the man who pulled out a rifle and shot Walker from the balcony across the way. It found the inconsistencies in his testimony minor, and unrelated to the crucial details of the shooting. The court emphasized that physical evidence corroborated other portions of Fleming's testimony, such as his account of the retaliatory fire by the Del Vikings. Finally, the court ruled that Walker's identification was properly admissible under Illinois evidence law, and, as such, was reliable enough to establish Jackson as the shooter.
We find that the appellate court's determination that Fleming and Walker's identifications were sufficiently reliable to convict Jackson is firmly grounded in Jackson v. Virginia's command to view the evidence in a light most favorable to the prosecution and to defer to the fact finder's "role as weigher of the evidence." 443 U.S. at 319. True, Fleming's testimony was far from ironclad. As a rival gang member, he was admittedly biased; his story was diametrically opposed to other accounts, such as Lamont Jackson's, which portrays Jackson as wholly uninvolved in the exchange of gunfire; and his testimony leaves unanswered questions, such as why he did not warn Walker that Jackson was about to shoot a rifle in their direction. Walker's identification, too, is subject to question, since he was shot in the back and no evidence indicates that he ever turned to face his killer. But if believed, both sources of evidence establish independently that Jackson was the murderer. "It is the fact-finder, not the appellate court that determines the credibility of witnesses' testimony." Harmon v. McVicar, 95 F.3d 620, 623 (1996). The appellate court here recognized this directive and obeyed it. Its decision is "at least minimally consistent with the facts and circumstances of the case." Spreitzer, 114 F.3d at 1442, and is, therefore, reasonable.
We forthrightly acknowledge that the evidence supporting Jackson's conviction is far from overwhelming. It rests solely on the statements of two witnesses -- witnesses who were affiliated with rival gangs and flatly contradicted by others -- and is unsubstantiated by any physical evidence. But § 2254 binds us. Jackson's real dispute is with the trial court's credibility determinations, not the appellate court's application of federal law. We simply cannot provide the kind of searching review he seeks. See Ford v. Ahitow, 104 F.3d 926, 939 (7th Cir. 1997) (a federal habeas court "cannot choose the evidence it prefers to emphasize or make its own credibility determinations.").
Because the appellate court's determination of Jackson's sole substantive claim was not the product of an unreasonable application of Supreme Court caselaw, we must deny his petition for habeas corpus.
After careful consideration, the Court determines that Jackson's conviction did not violate the Constitution in any manner that is cognizable on a petition for habeas corpus. The petition is denied and this action is dismissed.
United States District Court Judge
July 31, 1997