by waiting until the habeas stage to argue a claim of ineffective assistance of appellate counsel for failure to raise a sufficiency of the evidence claim and an Eighth Amendment challenge, Thirston is barred from asserting appellate counsel's deficiencies as cause.
Our analysis of Thirston's cause argument also reveals that two of Thirston's ineffective assistance of appellate counsel arguments have been procedurally defaulted as well. Thirston's failure to raise appellate counsel's decision to forgo sufficiency of the evidence and Eighth Amendment challenges prior to habeas prevents us from addressing such claims here. DeTella, 118 F.3d at 541. Moreover, while Thirston alleges cause for and prejudice from his failure to present these claims in the appropriate state forum, he neglects to explain what the cause was, or what prejudice resulted. Specifically, Thirston states that he "alleges cause and prejudice to excuse any default," and nothing more. P.'s Reply at P 1. These purely conclusory assertions are insufficient to satisfy the cause and prejudice exception to the doctrine of procedural default. Cunningham v. Estelle, 536 F.2d 82, 83 (5th Cir. 1976). Accordingly, Thirston is not only barred from arguing ineffective assistance of appellate counsel for failing to raise these two arguments as cause under the procedural default test, he's failed to provide this Court with the substance to review these claims as well.
Even if Thirston articulated sufficient cause to excuse his procedural default, he cannot establish prejudice. Prejudice is "not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). Thirston's ability to satisfy the prejudice prong of the procedural default test depends upon whether appellate counsel would have succeeded had he raised the sufficiency of the evidence and the Eighth Amendment arguments. Because we find that both claims would have failed on their merits, Thirston cannot, even if he attempted to do so, show the requisite prejudice.
In his sufficiency of the evidence argument, Thirston contends that because he was under the influence of heroin and alcohol at the time of the assault, he did not have the requisite intent to commit first degree murder and at most he could be found guilty of second degree murder.
In evaluating Thirston's claim, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of [first degree murder] beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 320, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). As a reviewing court, we are prohibited from reweighing the evidence or reassessing the credibility of the witnesses. Kines v. Godinez, 7 F.3d 674, 678 (7th Cir. 1993) cert. denied, 510 U.S. 1200, 114 S. Ct. 1314, 127 L. Ed. 2d 664 (1994).
To establish first degree murder under Illinois law, the prosecution must prove beyond a reasonable doubt that the defendant: 1) intended to kill or cause great bodily harm, or knew that his acts would cause death; or 2) knew that his acts created a strong probability of death or great bodily harm; or 3) was attempting or committing a forcible felony other than second degree murder. 720 ILCS 5/9-1(a). "The intent required for murder may be implied by a showing that the accused voluntarily and willfully committed an act, the direct and natural tendency of which was to destroy another's life." United State ex rel. Johnson v. Page, 1995 U.S. Dist. LEXIS 10098, 1995 WL 430942, at *4 (N.D. Ill. July 18, 1995) The determination of whether a defendant, allegedly under the influence of drugs or alcohol, lacked the mental capacity to form the requisite intent to commit murder is a determination for the trier of fact. People v. Brady, 138 Ill. App. 3d 238, 243, 485 N.E.2d 1159, 1163, 92 Ill. Dec. 916 (1st Dist. 1985).
In the instant case, the victim's mother described in detail how Thirston brutally beat the infant despite other's pleas to stop. Her testimony was consistent with the coroner's report of how the injuries were inflicted. Thirston admitted both in his statement to police and in court that he struck the child with force to teach him a lesson. Furthermore, Thirston's argument that he was too intoxicated from indulgences earlier in the day to form the requisite intent to commit murder was contradicted by the testimony of paramedic at the scene and the arresting officer. Both had conversations with Thirston shortly after the incident occurred and testified that Thirston was coherent and sober. In light of such evidence, we cannot say that no reasonable trier of fact could have found that Thirston knowingly and "willfully committed an act, the direct and natural tendency of which was [murder]. Page, 1995 WL 430942 at *4.
Moreover, Thirston's Eighth Amendment challenge to his sentence as excessive and disproportionate to the crime charged is highly dubious in light of the Supreme Court's decision in Harmelin v. Michigan, 501 U.S. 957, 994, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991)(finding that proportionality review of sentences is reserved for death penalty jurisprudence). Thirston claims that an application of the Supreme Court's formula announced in Solem v. Helm, 463 U.S. 277, 292, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983), reveals that his sentence is unconstitutional, particularly in light of lesser sentences received by others similarly situated. However, the Harmelin Court rejected Solem, finding that it was "scarcely the expression of clear and well accepted constitutional law" and was "simply wrong." Harmelin, 501 U.S. at 965.
In the case at bar, Thirston was convicted of brutally murdering an infant in his charge. Under the extended sentencing statute applicable at the time, the court could have sentenced Thirston from 40 years to 80 years imprisonment. See Ill. Rev. Stat. 1983, ch. 38, par. 1005-3-2(a)(1) and (b)(2). There is no evidence that the trial court relied upon any improper factors in imposing sentence. See United States v. Simpson, 8 F.3d 546, 549 (7th Cir. 1993). Furthermore, a review of both habeas and state caselaw reveals that lengthy sentences for brutal murders are appropriate. See, e.g., People v. Cabrera, 116 Ill. 2d 474, 508 N.E.2d 708, 108 Ill. Dec. 397 (1987) (affirming a 60 year murder sentence); United States v. Welborn, 1993 U.S. Dist. LEXIS 13542, 1993 WL 385136 (N.D. Ill. Sept. 27, 1993). Accordingly, we find that Thirston's sentence, well within the limits set by law, is not grounds for habeas relief. Walls v. Detella, 1997 U.S. Dist. LEXIS 12802, 1997 WL 534287, at *3 n.2 (N.D.Ill. Aug. 19, 1997) ("when a sentence is within the limits set by law, its severity is not grounds for habeas relief.").
Having determined that Thirston's preceding claims are lacking in merit, we find that Thirston cannot establish that he was prejudiced by appellate counsel's failure to raise them on direct appeal. See Walls, 1997 WL 534287, at *5. Because we find that Thirston is not entitled to review of these claims, we turn to Thirston's remaining ineffective assistance of counsel arguments.
II. DECISION ON THE MERITS
A. Standard of Review
The standard governing our review of Thirston's remaining claims is strict. Under the recently amended habeas corpus statute, federal courts must deny a petition for habeas relief 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). 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 is whether the state court's application of clearly established Supreme Court law was reasonable. Id. 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." Id. at 1442. Put another way, "the statutory 'unreasonableness' standard allows the state court's conclusion to stand if it is one of several equally plausible outcomes." Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997).
B. Review for Reasonableness
We need only address the merits of Thirston's ineffective assistance of counsel claims. The seminal case for assessing claims of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To state a valid claim under Strickland, Thirston must show both: 1) that his counsel's performance was objectively unreasonable; and 2) but for his attorney's deficient representation, the outcome would have been different. Id. at 687-88. There exists a strong presumption that a criminal defendant's counsel rendered assistance that fell within an objective standard of reasonableness. Kubat v. Thieret, 867 F.2d 351, 359 (7th Cir. 1989).
Thirston asserts that his trial counsel was ineffective because she failed to call David Butler, Lisa Brumfield, Ella Reynolds, and Willie Peoples to testify in his defense. According to Thirston, Butler and Brumfield would have "corroborated the Petitioner's testimony that he did not severely beat the child . . . but did, as testified to, discipline the child." Hab Pet. at p.5A. However, Thirston's own statements belie his assertion that Bulter and Brumfield could have offered such testimony. According to Thirston, neither Butler nor Brumfield were present during the incident.
Thirston then argues that trial counsel should have called Ella Reynolds and Willie Peoples to the stand, claiming that these potential witnesses would have cast a shadow of doubt in the jury's mind as to the identity of the killer. Thirston correctly notes that, at his sentencing hearing, both Reynolds and Peoples testified that Vernidette Jones had physically disciplined her children in the past. However, Reynolds and Peoples further testified that Thirston physically assaulted their children. Given the potentially damaging testimony, we find that passing on these potential witnesses was a matter of sound trial strategy. See Serfling v. United States, 958 F. Supp. 389, 392 (N.D. Ill. 1997) ("quibbles with trial strategy can not, as a matter of law, form the basis of such a claim.").
In addition to these deficiencies, Thirston's presentation of these four potential witnesses' testimony is pure speculation, as he has failed to attach affidavits outlining the substance of their testimony as required by the Seventh Circuit. Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996). Such an oversight is fatal to Thirston's claim because the Seventh Circuit has been unyielding in requiring a "specific, affirmative showing as to what the missing evidence or testimony would have been." United States ex. rel Partee v. Lane, 926 F.2d 694, 701 (7th Cir. 1991). Absent a showing of the potential witnesses' specific testimony, and that such testimony would have affected the outcome of the trial, we reject Thirston's claim that he was denied ineffective assistance of trial counsel.
Such a result does not bode well for Thirston's contention that appellate counsel was ineffective for failing to present the preceding argument on direct appeal. We note that defense counsel is not required to raise every conceivable argument on appeal Jones v. Barnes, 463 U.S. 745, 751, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983). Appellate counsel is afforded broad discretion in eliminating weaker arguments to emphasize the importance of more meritorious claims. Id. Moreover, having determined that Thirston's ineffective assistance of trial counsel argument was utterly lacking in merit, we find it would be impossible for Thirston to establish that appellate counsel's omission was prejudicial. See Walls v. Detella, 1997 U.S. Dist. LEXIS 12802, 1997 WL 534287, at *5 (N.D. Ill. Aug. 19, 1997) (stating that the court need not evaluate the "objective reasonableness" prong under Strickland where it is apparent that the petitioner cannot establish prejudice.) Because the appellate court's determination of Thirston's ineffective assistance of counsel claims was not the product of an unreasonable application of Supreme Court caselaw, we must deny his petition for habeas corpus.
After careful consideration, this Court finds that neither Thirston's conviction nor his sentence violated the Constitution in any manner cognizable under the newly amended habeas corpus statute. Furthermore, Thirston was provided with objectively reasonable representation throughout the state court proceedings. Accordingly, Thirston's petition for habeas relief is denied and this action is dismissed.
Judge Ruben Castillo
DATE: November 18, 1997