to attempt to use Rule 329. In effect, Franklin is trying to excuse his lawyers' failure to try to supplement the appellate record by focusing on the original failure to put the documents into the record in the first place.
Franklin also overstates the state of uncertainty in Illinois law during his direct appeal. At that time Illinois courts in criminal cases had treated Rule 329 as "a very broad provision" that is "designed to facilitate the amendment of the record on appeal" ( People v. Petty, 160 Ill. App. 3d 207, 211, 513 N.E.2d 486, 489, 112 Ill. Dec. 72 (3d Dist. 1987), citing People v. Chitwood, 67 Ill. 2d 443, 367 N.E.2d 1331, 10 Ill. Dec. 565 (1977)). Further, because there was no danger of "authorizing a trial de novo" on appeal--after all, the disputed material had been before the trial judge and had been raised at trial--Nameoki did not foreclose the availability of Rule 329 to Franklin. Holmes' counsel, faced with the identical problem, had no difficulty in using Rule 329 to add Williams' Will County statement and preliminary hearing testimony as part of the appellate record in his case.
Finally, it is not clear that Franklin even needed to use Rule 329 to supplement the appellate record. When he asked that the Illinois Supreme Court read Williams' Will County statement to ensure that Franklin had received a properly redacted version at trial, that Court did so despite the absence of the statement from the appellate record ( Franklin I, 135 Ill. 2d at 93-94, 552 N.E.2d at 750). Thus Franklin's counsel did raise other issues on direct appeal that depended upon the same missing documents that he now claims prevented him from bringing his due process claim. That undercuts any notion that Franklin was paralyzed by uncertainty as to what Illinois law demanded that he do to resolve his evidentiary problem.
In sum, while Franklin may perhaps have faced a procedural dilemma (albeit of his own making) as to whether to bring his due process claim on direct appeal, Illinois law provided a solution to his problem. Accordingly Franklin II 's application of the waiver doctrine to Franklin's due process claim did rely upon firmly established state practice, and Franklin's due process claim is procedurally barred unless Franklin can escape via either of the Coleman -identified routes.
As stated earlier, Coleman 's first potential exception to a procedural bar requires Franklin to show that he had cause for the default and suffered prejudice from the constitutional violation. Franklin asserts that ineffective assistance of counsel provides "cause" for his failure to raise his due process claim on direct appeal and for his failure to try to supplement the trial record. Ineffective assistance of counsel, in addition to constituting a claim that may be included in a habeas petition, may itself provide cause that could excuse default for Coleman purposes ( Barnhill v. Flannigan, 42 F.3d 1074, 1078 (7th Cir. 1994), citing Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986)).
"Generally speaking, the performance of appellate counsel is assessed using the same standards applied to trial counsel under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)" ( Mason v. Hanks, 97 F.3d 887, 892 (7th Cir. 1996)). Therefore, to make a showing sufficient to establish cause Franklin must demonstrate that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance" ( Strickland, 466 U.S. at 690). Counsel's actions are reviewed with the strong presumption that "the challenged action 'might be considered sound trial strategy'" ( id. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 100 L. Ed. 83, 76 S. Ct. 158 (1955)). Even an unreasonable error on the part of counsel does not warrant setting aside a judgment "if the error has no effect on the judgment." (466 U.S. at 691).
Franklin's appellate counsel raised fully 22 issues on direct appeal to challenge aspects of both Franklin's trial and sentencing, an effort that of course scotches any notion of per se ineffectiveness. That said, no evidence in the record explains directly why that counsel did not also raise Franklin's claim that the prosecution misled the jury about Williams' role in the murder and his expectation of leniency. So a determination of whether Franklin's appellate counsel acted within the acceptable range of competent assistance requires a pragmatic assessment of the strength of the omitted claim. If counsel omitted raising "a significant and obvious issue" without a legitimate strategic purpose, then Franklin suffered from deficient representation ( Mason, 97 F.3d at 893). As Mason, id. continued, quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986):
Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.