The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
In 1995, Mr. Wright was convicted of first degree murder in
Illinois Circuit Court, for which he received a sentence of 60
years in prison, and attempted armed robbery, for which he got a
further eight years. He appealed to the Illinois Appellate Court,
and in 1996 his attempted robbery sentence was vacated, but his
murder sentence was affirmed. In 1996, he filed an unsuccessful
pro se petition for state post-conviction relief. In 1999, Mr.
Wright filed this petition for federal habeas corpus under
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective
Death Penalty Act ("AEDPA") of 1996. I deny his claim for habeas
Mr. Wright raised three issues in his direct appeal to the
state courts. He argued that: (1) the trial court erred in
denying his motion to quash arrest and suppress statements where
he was arrested without probable cause because the police
informant was unreliable; (2) the state failed to prove attempted
robbery beyond a reasonable doubt; and (3) the trial court abused
its discretion in imposing the maximum sentence. In the present
petition, he also raises three grounds. (1') is the same as (1)
above, but he also argues that (2') the court failed to dismiss
the indictment when the government's bill of particulars was
erroneous, and (3') the indictment did not charge an offense
properly and the judge misinstructed the jury.
A state prisoner like Mr. Wright may obtain federal habeas
review of his claims only if he has exhausted his state remedies
and avoided procedurally defaulting his claim.
28 U.S.C. § 2254(b) & (c); Schaff v. Snyder, 190 F.3d 513, 524 (7th Cir.
1999). Because Mr. Wright did not raise his claims as to the bill
of particulars and the indictment and misinstruction on direct
appeal, these claims have been procedurally defaulted.
Mr. Wright has also procedurally defaulted his claim about
arrest without probable cause. He did indeed appeal this claim to
the Illinois Appellate Court, but he did not raise the argument
in his petition for leave to appeal to the Illinois Supreme
Court, arguing there only that the rule underlying his attempted
robbery conviction — the one that had been vacated by the
appellate court — should be rejected. The United States Supreme
Court has held that the statutory requirement that a habeas
petitioner must exhaust his state remedies, giving the state
courts an opportunity to act on his claims before he presents
those claims to a federal court in a habeas petition, 28 U.S.C. S
2254(b)(1), is to be interpreted to require exhaustion of
discretionary as well as mandatory direct appeals. O'Sullivan v.
Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1
(1999). Since Mr. Wright's time for an appeal to the Illinois
Supreme Court is up, his failure to present the probable cause
argument to that court has resulted in a procedural default of
If Mr. Wright procedurally defaulted or otherwise forfeited his
claim, he may obtain federal habeas relief only upon a showing of
cause and prejudice for the default or upon a showing that a
failure to grant him relief would work a fundamental miscarriage
of justice. Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir.
1999). "Cause" means that the omission was not his fault.
"Prejudice" means that it would have mattered, that the outcome
would have been changed had the error not been made.
A fundamental miscarriage of justice occurs when "a
has probably resulted in the conviction of one who is actually
innocent." Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct.
2639, 91 L.Ed.2d 397 (1986). That is not so here. Questions about
the reliability of Tanzell Eaton, the witness on whose
information Mr. Wright's arrest was based, and his accomplice in
the murder, do not suggest that Mr. Wright is actually innocent.
Basically, Mr. Wright denies that he was the shooter. He says Mr.
Eaton did it.
Giving Mr. Wright his best case for actual innocence, he might
say that the jury might have only convicted him of felony murder
as an accomplice in the attempted robbery of which he was
convicted but which conviction was vacated by the appeals court.
As Mr. Wright himself acknowledges, the judge instructed the jury
on the accountability statute. Mr. Wright might argue that his
murder conviction could not be sustained under an accountability
theory after the vacation of the attempted robbery conviction.
The Illinois Supreme Court has said that ("[a]ccountability for
felony murder . . . exists only if defendant may be deemed
legally responsible for the felony that accompanies the
murder."). People v. Shaw, 186 Ill.2d 301, 239 Ill.Dec. 311,
713 N.E.2d 1161 (1999), but see People v. Rhoden,
299 Ill. App.3d 951, 234 Ill.Dec. 43, 702 N.E.2d 209, 213 (1998)
(upholding felony murder conviction despite acquittal for
underlying offense of attempted robbery) (perhaps restricted to
special circumstances, see id. at 215, and maybe no longer good
law after Shaw).
Nonetheless, this argument presumes that Mr. Wright could not
be held liable as the principal rather than the accessory. He
gives no reason beyond his bare say-so to think that he was not
in fact the shooter. A petitioner's bald and unsupported
assertion of innocence is not enough to give rise to the
supposition that he is actually innocent. He instead must point
to "actual proof of the allegations going beyond mere unsupported
assertions." Prewitt v. United States, 83 F.3d 812, 819 (7th
Mr. Wright must therefore rely on cause and prejudice. The only
grounds for cause that he suggests for failing to raise an issue,
thus leading to procedural default, is a claim of ineffective
assistance of counsel. He says in his petition that his counsel
on appeal didn't present all the grounds in his petition to the
highest court in Illinois "as asked." In a pro se petition, which
is to be construed quite liberally, especially when someone faces
60 years in prison, that is enough to raise an ineffective
For ineffective assistance of counsel, defendant's counsel's
performance must have fallen below "an objective standard of
reasonableness" based upon "prevailing professional norms."
Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). Counsel's performance is presumed to fall
within the wide range of reasonable professional judgment. Id.
at 689, 104 S.Ct. 2052. To overcome this presumption, Mr. Wright
must demonstrate that his trial counsel's performance was
deficient and that his counsel's deficiencies prejudiced his
defense. Id. at 701, 104 S.Ct. 2052.
However, Mr. Wright's representation was not constitutionally
deficient. His lawyer might have reasonable grounds for not
appealing Mr. Wright's murder conviction to the Illinois Supreme
Court, at least on the grounds he suggests here. The Illinois
Appellate Court found that there was probable cause for the
arrest based on two pieces of evidence. The first is the
statement that Mr. Eaton told police that his "co-companions,"
Mr. Wright and a Mr. Hampton, set out to rob the victim and that
during the course of the robbery, Mr. Wright had done the
shooting. Mr. Wright argued that this could not be interpreted to
mean that Mr. Eaton was present at and witnessed the shooting,
and so was the statement of an unreliable informant. The Illinois
Appeals Court, however, correctly held that the statement will
bear the reading the police gave it. There is probable cause for
arrest "as long as a reasonably credible witness . . . informs
the police that someone has committed, or is committing, a crime
. . .," Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999),
and Mr. Eaton's statement was that of a reasonably credible
Even if one has reservations about using the otherwise
unsupported testimony of an accomplice to make a probable cause
determination, the statement was not wholly unsupported in the
totality of the circumstances. A suspect's "actual flight from an
officer may certainly provide information to ripen an officer's
preexisting suspicions into probable cause." Tom v. Voida,
963 F.2d 952, 960 (7th Cir. 1992). Mr. Wright fled the police when
they appeared at his door and identified themselves. There was
probable cause for arrest. Therefore, Mr. Wright cannot ...