The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
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 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
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 ...