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March 11, 1998

JERRY GILMORE, Respondent.

The opinion of the court was delivered by: MORAN

 John Galvan, a prisoner at Pontiac Correctional Center, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For reasons discussed below, the petition is denied.


 On September 21, 1986, at approximately 4 a.m., a fire swept through a house on 24th Place in Chicago. Two young men, trapped in an attic bedroom, died. Investigators suspected arson.

 Nine months later, in June 1987, the police spoke to Rene Rodriguez, who told them that he and two of his friends, Jose Ramirez and Francisco Partida, were watching the fire on September 21, 1986, when he saw Galvan, Galvan's brother and another person named "Michael" also watching the fire.

 The police then spoke to Jose Ramirez, who told them that seconds before the fire started he saw the defendant with a person named "Michael" and two other men walking together about a half block away from the house on 24th Place. Two of them turned around and looked at Ramirez. He recognized the defendant and Michael, who put the hood of his sweatshirt over his head when Ramirez looked at him. Within seconds of seeing the four men walk away, Ramirez heard an explosion and screams, and saw the house on fire. The police showed Ramirez photographs, and he identified a picture of Michael Almendarez as the "Michael" he saw walking away from the house on the morning of the fire.

 Michael Almendarez was brought to the station to be interviewed. The police advised him of his constitutional rights and told him that Ramirez said he saw him in the alley shortly before the fire started. Within three to five minutes after questioning began, Almendarez stated that Galvan and Francisco Nanez told him in October 1986 that they started the fire. He said that Nanez threw a beer bottle full of gasoline at the house and when it did not ignite, Galvan lit it with a cigarette. Almendarez said he was not at the scene on the morning of the fire.

 The police then arrested Galvan without a warrant, took him to the station, and advised him of his constitutional rights. Within an hour, Galvan admitted that he, Francisco Nanez, and Arthur Almendarez, Michael's brother, started the fire because they believed that rival gang members lived in the house. He said the gang members had shot at him weeks earlier and he wanted to scare them. He told the police that Almendarez and Nanez bought the gasoline, put it in an empty beer bottle, and put a cloth in the top of the bottle. Nanez lit the cloth and threw the bottle at the house, but it did not ignite. Galvan then threw a cigarette at the side of the house and started the fire.

 Before trial, Galvan filed motions to quash his arrest and suppress evidence. At a hearing on the issue of probable cause, the court ruled that the information Michael Almendarez gave the police was reliable and corroborated, and that there was probable cause to arrest the defendant.

 At trial, two alibi witnesses testified that Galvan was asleep at his grandmother's house on the morning of the fire. Galvan also testified that he was at his grandmother's house and that he signed his confession under duress.

 On September 14, 1995, Galvan filed a petition for post-conviction hearing, for vacation of sentence and for a new trial. On March 29, 1996, Galvan was granted leave to file an amended petition for post-conviction relief, in which he argued that (1) he was denied the effective assistance of trial counsel, and (2) the state knowingly used perjured testimony. The trial court dismissed the petition without an evidentiary hearing, finding that the petition was not timely filed under 725 ILCS 5/122. On March 12, 1997, the appellate court affirmed the dismissal. He did not file a petition for leave to appeal.

 Instead, on April 24, 1997, he filed the instant petition for writ of habeas corpus, arguing that (1) he was denied effective assistance of counsel (Claim I); (2) he was denied due process of law when the prosecution knowingly used perjured testimony (Claim II); (3) his Fourth Amendment rights were violated when the police arrested him without probable cause (Claim III); (4) his Fifth, Sixth and Fourteenth Amendment rights were violated when the state trial court excluded certain evidence of motive (Claim IV); (5) his Fifth and Sixth Amendment rights were denied when the state trial court excluded evidence relevant to the issue of probable cause (Claim V); and (6) his right of confrontation was denied when the prosecution presented statements made by non-testifying witnesses (Claim VI).


 I. Statute of Limitations and Procedural Default

 Before we reach the merits of the claims advanced we must determine whether the petitioner has cleared various procedural hurdles. First, we must determine the applicability of the one-year limitations period set forth in 28 U.S.C. § 2244(d). The Antiterrorism and Effective Death Penalty Act of 1996 (Act), amended 28 U.S.C. § 2244 to place a one-year limitation on the filing of a petition for a writ of habeas corpus under § 2254. *fn2" In Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997) (en banc), the Seventh Circuit found that prisoners who sought to challenge state court judgments made final prior to April 24, 1996 (the effective date of the Act), had a "reasonable time" after that date to file § 2254 petitions. Lindh, 96 F.3d at 866. The reasonable time set by the court followed the amendment to § 2244 and gave such prisoners until April 23, 1997, to file their petitions. Id.

 Normally, we would apply the grace period set forth in Lindh in order to determine whether Galvan filed this habeas petition on or before April 23, 1997 (in this case he was a day late). However, since § 2244(d) does not affect this court's subject matter jurisdiction over habeas petitions, see Calderon v. United States District Court, 128 F.3d 1283, 1288 (9th Cir. 1997), cert. denied, 118 S. Ct. 1389, 140 L. Ed. 2d 648, 1998 WL 23861 (1998); Parker v. Bowersox, 975 F. Supp. 1251, 1252 (W.D.Mo. 1997), the state can waive the § 2244(d) timeliness issue by failing to raise it. See, e.g., Anderson v. Flexel, Inc., 47 F.3d 243, 247 (7th Cir. 1995) (finding that defendant waived statute of limitations defense by his failure to timely raise the issue). Therefore, since the state did not raise the § 2244(d) limitations argument in this case, we find that it has been waived.

 Next, we turn to the issue of procedural default, which the state contends bars our review of several of Galvan's habeas claims. "Before a federal court may review the merits of a claim raised by a state prisoner in a habeas petition, the petitioner must fulfill the procedural requirements set by state law for seeking judicial review in the state courts." Lemons v. O'Sullivan, 54 F.3d 357, 360 (7th Cir. 1995), cert. denied, 516 U.S. 993, 116 S. Ct. 528, 133 L. Ed. 2d 434 (1995). Forfeiture of a claim under § 2254 "is a question of a state's internal law: failure to present a claim at the time, and in the way, required by the state is an independent state ground of decision, barring review in federal court." Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1991). Procedural default may occur in one of two ways. First, the petitioner may fail to raise fairly and properly an issue on direct appeal or post-conviction review. Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995). Alternatively, procedural default occurs when the state court clearly relies on a state procedural bar as an independent basis for its denial of relief. Caldwell v. Mississippi, 472 U.S. 320, 327, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985). A petitioner may raise a procedurally defaulted claim in a habeas proceeding only by showing good cause for the default and actual prejudice stemming from the default. United States v. Frady, 456 U.S. 152, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982).

 The state argues that Galvan has procedurally defaulted his claims of ineffective assistance of counsel (Claim I), perjury/due process violation (Claim II), wrongful exclusion of evidence (Claim V), and confrontation clause violation (Claim VI). Because the state offers different procedural default arguments with respect to these claims, we will address each in turn.

 With respect to Claims I and II, the state first contends that Galvan has waived these claims by his failure to timely raise them in his post-conviction petition. Galvan filed his original post-conviction petition on September 14, 1995, and his amended petition on March 25, 1996. In his amended petition, Galvan claimed for the first time that (1) he was denied effective assistance of counsel, and (2) he was denied due process when the state knowingly used perjured testimony. Specifically, Galvan argued (as he does again in his habeas petition) that he was denied ineffective assistance of counsel when his trial attorney failed to call a critical witness, Frank Partida, who would have directly contradicted the testimony of prosecution witness Jose Ramirez. At trial, Ramirez identified Galvan in the vicinity of the house that was set on fire immediately before the fire started. Partida was with Ramirez at the time, but stated that he could not specifically identify anyone due to the poor lighting and extreme distance. Galvan also argued that the state's knowing use of Ramirez's testimony (which Galvan claimed were false in light of Partida's statements) constituted subornation of perjury in violation of his due process rights.

 The state now argues that Galvan's failure to timely file his post-conviction petition was a procedural default that constituted an independent and adequate state ground sufficient to preclude our consideration of the merits of these claims. See Cawley v. DeTella, 71 F.3d 691, 695 (7th Cir. 1995). However, for a state ground to be considered an "independent and adequate" one upon which a procedural default can be based, the state court must "clearly and expressly" rely on such a state ground. Coleman v. Thompson, 501 U.S. 722, 735, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). A federal court reviewing a habeas petition shall presume that no such independent and adequate state ground exists for the state court decision "when the adequacy and independence of any possible state law ground is not clear from the face of the opinion." Id. We find that in this case, although the state determined that Galvan's untimely post-conviction petition was not excused, it nevertheless proceeded to consider the merits of Galvan's petition, ultimately resting its denial of the petition on the lack of merit of Galvan's claims. The state appellate court recognized this, at least insofar as the trial court rejected Galvan's due process claim on the merits. Thus, since the state court did not clearly and expressly base its decision on Galvan's procedural default, but instead considered and resolved the merits of the claims presented, an independent and adequate state ground does not support the decision. See Chapman v. DeTella, 1998 U.S. Dist. LEXIS 463, No. 97- C-2893, 1998 WL 25762, *6 (N.D.Ill. Jan. 9, 1998).

 The state next argues that Galvan has defaulted Claims I and II since he did not appeal the appellate court's denial of his post-conviction petition and therefore failed to properly present these claims to the highest state court. The Seventh Circuit has held that a petitioner who fails to appeal his post-conviction claims to the highest state court normally defaults those claims for the purposes of habeas review. Cawley, 71 F.3d at 694-95. We follow Cawley in finding that Galvan has forfeited all claims raised in his post-conviction petition and not appealed to the Illinois Supreme Court. However, we note that it is with some hesitation that we make this decision, as the Seventh Circuit's holdings with respect to the issue of procedural default have generated confusion on this point.

 Specifically, the Seventh Circuit's case law has created a dichotomy between procedural default on direct and post-conviction review that is difficult to reconcile with the underlying justifications for the procedural default rule. In Hogan, for example, the court overruled Nutall v. Greer, 764 F.2d 462, 463-64 (7th Cir. 1985) (holding that petitioner forfeits the right to habeas relief if he does not seek review in the state's highest court of all the claims presented in his habeas petition), and found that a petitioner's failure to present his claim to the state supreme court on direct review is not necessarily a bar to seeking federal habeas review. 74 F.3d at 147. The court emphasized that the standard was whether "state courts either have held that a procedural misstep is a forfeiture, or would so hold if a collateral attack were filed in state court," and held that the petitioner's failure to appeal an issue to the Indiana Supreme Court did not constitute procedural default. Id. In Gomez v. Acevedo, 106 F.3d 192, 196 (7th Cir. 1997), vacated on other grounds, 118 S. Ct. 37 (1997), the Seventh Circuit extended Hogan to Illinois. In Gomez, the court held that a habeas petitioner who had failed to include a claim in his petition to the Illinois Supreme Court had not defaulted that claim for the purposes of habeas review. Id.; see also, Harris v. Godinez, 1997 U.S. Dist. LEXIS 15218, No. 93- C-6709, 1997 WL 610054, *5-6 (N.D.Ill. Sept. 26, 1997). The court justified its holding by noting that, although Illinois courts would find petitioner's claim barred on state post-conviction review, the basis of this bar would be res judicata, and not procedural default. Id.

 Recently, the Seventh Circuit has added another layer to the procedural default analysis. In Boerckel v. O'Sullivan, 135 F.3d 1194, 1998 U.S. App. LEXIS 1768 (7th Cir. 1998), the court was presented with yet another argument that petitioner had procedurally defaulted habeas claims by failing to include them in his petition for leave to appeal to the Illinois Supreme Court on direct review. The petitioner argued that he could not be found to have procedurally defaulted his claims since the last state court which rendered a judgment did not "clearly and expressly state" that it was resting its judgment on a procedural bar. 1998 U.S. App. LEXIS 1768, 10 (quoting Coleman, 501 U.S. 722 at 735-36. The respondent argued that this "clear statement rule" was inapplicable where a petitioner failed to "exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." 135 F.3d 1194, 1998 U.S. App. LEXIS 1768, *15. The court stated that the critical issue was "whether the petitioner's refusal to include all his claims in his petition for leave to appeal to the Illinois Supreme Court constitutes a failure to exhaust his state court remedies, which thereby bars him from raising them in his habeas petition under the doctrine of procedural default." 135 F.3d 1194, 1998 U.S. App. LEXIS 1768, *10. The court found that such a refusal did not constitute a failure to exhaust since a petitioner exhausts all of his remedies by taking advantage of "whatever appeals the state system affords as of right." 135 F.3d 1194, 1998 U.S. App. LEXIS 1768, *19. Since the Illinois Supreme Court has discretion over the granting of petitions for leave to appeal thereto, the court stated that the filing of such a petition is not an appeal of right. 135 F.3d 1194, 1998 U.S. App. LEXIS 1768, *16. Accordingly, the court found that by taking his appeal of right to the state appellate court, the petitioner had fairly presented his claims and there was no procedural default. 135 F.3d 1194, 1998 U.S. App. LEXIS 1768, *16.

 Against this backdrop, the Seventh Circuit's procedural default case law, as it pertains to post-conviction appeals, seems incongruent. In Cawley, the court was faced with the same situation we have here. Petitioner had been denied post-conviction relief by the trial court, took an appeal to the state appellate court, and then declined to file a petition for leave to appeal to the state supreme court. 71 F.3d at 693. The court found that "failure to appeal the dismissal of a post-conviction petition in Illinois state court will ordinarily be treated as an independent and adequate state ground (as if a state court had actually found the claims procedurally barred), preempting further habeas review in federal court." Id. at 694-95. The Cawley court based this statement on People v. Core, 48 Ill. 2d 544, 272 N.E.2d 12, 13-14 (Ill. 1971), an Illinois state case which it cited for the proposition that "a defendant's failure to appeal the dismissal of a post-conviction petition, coupled with the doctrines of res judicata and waiver, ordinarily bars further consideration of all claims which could have ...

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