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UNITED STATES EX REL. BOYCE v. DOBUCKI

February 3, 1998

United States of America ex rel. Michael Boyce, Petitioner,
v.
Kenneth Dobucki, Respondent.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Michael Boyce's petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. For the following reasons, the court denies the petition.

 I. BACKGROUND

 On August 15, 1990, a jury in the Circuit Court of Cook County, Illinois ("Circuit Court"), convicted Petitioner, Michael Boyce ("Boyce"), of first-degree murder. Boyce was sentenced to thirty-years of imprisonment. Boyce appealed to the Illinois Appellate Court and raised several claims. On April 6, 1992, the Illinois Appellate Court affirmed the judgment of the Circuit Court. On October 7, 1992, the Illinois Supreme Court denied Boyce's petition for leave to appeal.

 Thereafter, Boyce filed a petition for post-conviction relief in the Circuit Court. On May 26, 1994, the Circuit Court dismissed Boyce's petition without an evidentiary hearing. On November 27, 1995, the Illinois Appellate Court affirmed the judgment of the Circuit Court, and on June 5, 1997, the Illinois Supreme Court denied Boyce's petition for leave to appeal.

 After exhausting available state court remedies, Boyce filed the instant petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, arguing that he was denied his Sixth Amendment right to effective assistance of counsel and his due process right to a fair trial.

 II. DISCUSSION

 A federal court may not address the merits of a habeas petition unless the state courts first have a full and fair opportunity to review the claims. See Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991). This threshold requirement is satisfied if a petitioner: (1) exhausts all available state remedies; and (2) in the course of the state proceedings, raises his federal claims so as not to be procedurally defaulted. See Momient-El v. Detella, 118 F.3d 535, 538-41 (7th Cir. 1997). If a petitioner fails to satisfy either of these requirements, the petition is barred. Id.

 A petitioner exhausts his state remedies by presenting his claims to the highest state court for a ruling on the merits, id. at 538, or "when the claims could not be brought in state court because no remedies remain available at the time the federal petition is filed." See Farrell, 939 F.2d at 410 (citations omitted). In the instant case, Respondent, Kenneth Dobucki ("Dobucki"), concedes that Boyce exhausted his state remedies. Thus, the court looks to the second obstacle barring substantive review.

 If Boyce is procedurally defaulted, the court cannot review Boyce's federal claims. See Momient-El, 118 F.3d at 539; McGowan v. Miller, 109 F.3d 1168, 1172 (7th Cir. 1997). Procedural default occurs if a petitioner failed to fairly present his federal claims to the appropriate state courts. Id. Additionally, even if a petitioner fairly presented his federal claims, he is procedurally defaulted if the state courts declined to address the merits of his federal claims based upon a state ground that is both "independent of the federal question and adequate to support the judgment." Willis v. Aiken, 8 F.3d 556, 561 (7th Cir. 1993) (citing Coleman v. Thompson, 501 U.S. 722, 729, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991)); see also Momient-El, 118 F.3d at 539.

 In order to properly preserve a claim for federal habeas review under § 2254, a petitioner must present his federal claims in a manner which allows the state courts a full and fair opportunity to correct constitutional errors. See Moleterno v. Nelson, 114 F.3d 629, 634 (7th Cir. 1997). A petitioner provides the state courts with such an opportunity when his claims

 
(1) rely on pertinent federal cases employing constitutional analysis; (2) rely on state cases applying constitutional analysis to a similar factual situation; (3) assert the claim in terms so particular as to call to mind a specific constitutional right; or (4) allege a pattern of facts that is well within the mainstream of constitutional litigation. If none of the four factors is present and the state has not otherwise signaled its satisfaction with the presentment of the federal claim, then this court will not consider the state courts to have had a fair opportunity to consider the claim.

 Id. The critical inquiry is "whether the state court was fairly alerted to the federal right in question." Id.

 On direct appeal, Boyce raised several issues, including:

 
2. Whether the trial counsel was ineffective for failing to request instructions which would have informed the jury that citizen accused was entitled to use deadly force to prevent the commission of a forcible felony--in this case, the forcible felony of aggravated battery--a battery committed on the public way . . . [and]
 
4. Whether citizen accused's due process right to a fair trial was irreparably damaged by the cumulative impact of the ...

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