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December 23, 1999


The opinion of the court was delivered by: Bucklo, District Judge.


Charles Williams was convicted of first degree murder in Illinois state court in 1991 and sentenced to 50 years in prison. He petitioned for habeas relief under 28 U.S.C. § 2254 (federal habeas corpus for state prisoners). Mr. Williams argues that (1) he was actually innocent of first degree murder, and (2) he received ineffective assistance of counsel. I deny his petition for habeas relief.


Mr. Williams was convicted after a jury trial in 1991. Several witnesses testified that they observed Mr. Williams aim a pistol at the victim, Leonard Spencer, and fire several shots. Mr. Williams then ran down the street and entered a waiting car, which sped away from the scene. Mr. Spencer died as a result of a gunshot wound to his chest. See People v. Williams, 264 Ill. App.3d 1125, 225 Ill.Dec. 644, 683 N.E.2d 1307 (1994) (unpublished order). State court determinations of factual issues are "presumed to be correct on federal habeas review." Porter v. Gramley, 112 F.3d 1308, 1316 (7th Cir. 1997).

Mr. Williams appealed his conviction to the Illinois Appellate Court, arguing that (1) the trial court should have permitted a continuance so that he could investigate the criminal record of Jimmy Johnston, a state witness, and (2) he received ineffective assistance of counsel because his trial counsel failed to (a) address certain issues concerning the lineup and (b) interview or call potential witnesses. The Illinois Appellate court affirmed, stating that the record on appeal was "not sufficient for this court to ascertain the propriety of the defendant's contention[s]" or was "wholly devoid of facts supporting defendant's claims." Williams, No. 1-91-1599, at 2-3. Mr. Williams asked the Illinois Supreme Court for leave to appeal on the same grounds, but that court declined to review his case. Mr. Williams then unsuccessfully sought state post-conviction relief in the state courts. As the government concedes, Mr. Williams has more than exhausted his state court remedies.

Mr. Williams petitioned for federal habeas corpus relief. He raised several grounds for relief, but in his briefs, he only argues that: (1) his trial counsel failed to present arguments that he had a self-defense defense or was liable at most for second degree murder and (2) that he received ineffective assistance of counsel (a) in this regard and (b) because his trial counsel failed to file a motion for discovery, (c) failed to conduct a meaningful investigation into the criminal history of one of the state's witnesses, Jimmy Johnston, or (d) into the ballistics of the the bullets which hit the victim, and (e) did not interview three key witnesses, Gerald Turner, Sean Hill, and Marcus Williams, whom he says would have supported his version of the incident. These are the only claims I need consider. The other arguments were not defended, and therefore are waived. See Kappos v. Hanks, 54 F.3d 365, 367 (7th Cir. 1995).


Some of the remaining grounds are procedurally defaulted because they were not raised on direct appeal, specifically Mr. William's contentions that (1) his trial counsel did not file any discovery motion and (2) did not adequately investigate the ballistics of the murder bullet. Arguments omitted from the briefs on direct appeal have been procedurally defaulted, see Stone v. Farley, 86 F.3d 712, 716 (7th Cir. 1996) (issue that could have been presented to state court, but was not, may not be addressed in federal habeas proceedings). A petitioner may raise such arguments on collateral attack only if he can establish (1) cause for the default and actual prejudice as a result of the alleged violation of federal law, or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Franklin v. Gilmore, 188 F.3d 877, 883 (7th Cir., 1999).

Attorney error that rises to the level of ineffective assistance of counsel is cause to set aside a procedural default. Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Mr. Williams must demonstrate that: (1) his counsel's performance was so deficient as to fall below an objective standard of reasonableness under "prevailing professional norms" and (2) the deficient performance so prejudiced the defense as to deny the defendant a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish the deficiency of counsel's performance, Mr. Williams also must overcome the strong presumption that "the challenged action might be considered sound trial strategy." Id. at 689, 104 S.Ct. 2052. Finally, even if it was not professionally reasonable, a decision by counsel "does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691, 104 S.Ct. 2052.

Mr. Williams' claims do not show that the actions of his trial counsel that he challenges here were prejudicial errors. First, he does not establish that his trial attorney made no discovery motions, a claim that the lawyer denies. He maintains that the state's attorney's records support his claim, but the state's attorney filed a discovery response, which suggests the contrary. Moreover, Mr. Williams does not indicate, as he would have to, what discovery would have produced that would have changed the verdict.

The same argument, lack of a showing of prejudice, undermines Mr. Williams' second claim, that there was constitutionally defective inadequate assistance of counsel with regard to the failure to conduct a ballistics investigation. To excuse procedural default on these grounds under current law, Mr. Williams would essentially have to show that the results of the investigation he says his attorney should have done would create enough of a reasonable doubt that the jury would have come in with a verdict of not guilty of first degree murder, the crime of which he was convicted. But he does not do this. He merely raises the possibility that it might have done so, and that is not enough to show prejudice.

If Mr. Williams were actually innocent of the crime of which he was convicted, then it would constitute a fundamental miscarriage of justice for a federal court to fail to entertain his constitutional claims. Milone v. Camp, 22 F.3d 693, 700 (7th Cir. 1994) (citing Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)). Mr. Williams does indeed contend that had his counsel provided adequate assistance, he would have been acquitted by reason of self-defense or found guilty of only second degree murder rather than the crime of first degree murder of which he was convicted. The arguments he raises with respect to the discovery issue and the ballistics test do not indicate, however, that he is actually innocent, and neither do the arguments I consider on the merits below. Accordingly, Mr. Williams cannot base his excuse for procedural default on actual innocence. The discovery and ballistics arguments are procedurally defaulted, and I will not consider them further.


Mr. Williams still has the arguments that he received ineffective assistance of counsel because his trial counsel did not (1) offer a self-defense defense or an argument that he should only be convicted of second degree murder, (2) meaningfully investigate the criminal history of state witness Jimmy Johnston, or (3) interview three key ...

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