The opinion of the court was delivered by: Gettleman, District Judge.
Desmond Weston filed this pro se petition for a writ of
habeas corpus on August 4, 1999. On August 24, 1999, the court
issued a Rule To Show Cause why the petition should not be
dismissed as untimely. Weston's response states that he pursued
all state court remedies in a timely fashion and that newly
discovered evidence excuses his late filing. Weston further
states that his habeas petition includes issues raised on direct
appeal in his state post-conviction as well as several new
Weston does not clearly identify the "new evidence" in his
response, nor does Weston explain how this new evidence gives
rise to any or all of the legal claims in his petition for a writ
of habeas corpus. In addition, Weston offers no legal or factual
argument in support of his assertion that his state court
remedies were timely.
Following a jury trial, Weston was convicted of first degree
murder and attempted first degree murder and sentenced to
consecutive aggregate terms of 75 years.
On March 31, 1995, the judgment was affirmed on direct appeal in
a published opinion (People v. Weston, 271 Ill. App.3d 604, 208
Ill.Dec. 146, 648 N.E.2d 1068 (1995)) and a separate accompanying
Rule 23 order. The Illinois Supreme Court denied Weston leave to
appeal on June 1, 1995. On February 20, 1998, Weston filed a pro
se post-conviction petition in state court. In that petition,
Weston raised nine constitutional claims. The trial court
dismissed the post-conviction proceeding on March 3, 1998,
without an evidentiary hearing. Weston appealed and the dismissal
was affirmed in a brief order dated December 31, 1998. A petition
for leave to appeal to the Illinois Supreme Court was denied on
March 31, 1999.
On August 4, 1999, Weston filed his petition for a writ of
habeas corpus in this court. Weston raises eleven claims: 1)
Fourth Amendment right to be free from unreasonable search and
seizure violated when he was arrested without probable cause or a
warrant upon information provided by an unreliable informant; 2)
Fourteenth Amendment Due Process rights and Sixth Amendment right
to fair trial violated when trial court abused its discretion in
joining his indictment with that of another individual; 3) Sixth
Amendment right to fair trial and confront witnesses violated
when trial court permitted hearsay testimony; 4) Sixth Amendment
right to fair trial and Fourteenth Amendment Due Process violated
when state's attorney made inflammatory statements during opening
and closing arguments; 5) trial court abused its discretion when
the trial court imposed consecutive sentences without considering
mitigating circumstances; 6) state's attorney violated his rights
in making statements regarding gang evidence during opening
arguments and then failing to introduce any evidence in support
of those statements; 7) Fourth Amendment rights violated when
trial court abused its discretion in denying Weston's motion to
suppress evidence resulting from his arrest; 8) ineffective
assistance of trial counsel; 9) Fourteenth Amendment Due Process
rights violated when convicted for a murder when he was innocent;
10) ineffective assistance of appellate counsel and denial of due
process in the collateral attack on his conviction; 11) the trial
court and appellate court abused their discretion in dismissing
his post-conviction petition. Weston states that he raised all
these claims in the post-conviction proceeding. Because both
claim ten and eleven relate to Weston's post-conviction petition,
it is unclear exactly when and how those claims were raised.
Accordingly, the court will consider those claims separately from
the claims arising from the trial and the direct appeal.
Before the court may entertain Weston's claims, the court must
first determine whether they are brought in a timely manner.
Weston filed his petition for writ of habeas corpus on August 4,
1999. Thus, the petition is governed by 28 U.S.C. § 2244 as
amended by the Antiterrorism and Effective Death Penalty Act
(hereinafter "AEDPA"). See Gendron v. United States,
154 F.3d 672, 675 (7th Cir. 1998). In 1996, Congress enacted AEDPA which
established a one-year period of limitation for filing a petition
under 28 U.S.C. § 2254. Section 28 U.S.C. § 2244(d)(d) states in
28 U.S.C. § 2244(d).
For those state prisoners whose judgments of conviction became
final prior to the effective date of AEDPA, the one-year period
of limitations began to run on April 24, 1996, AEDPA's enactment
date. Gendron, 154 F.3d at 675. Thus, the statute of
limitations for all convictions that became final prior to April
24, 1996, began to run on April 24, 1996. The statute of
limitations would be tolled, however, during the pendency of a
properly filed post-conviction petition.
A state post-conviction proceeding that is barred by the
statute of limitations is not "properly filed" within the meaning
of the tolling provisions for federal habeas corpus proceedings.
U.S. ex. rel. Everett v. Neal, 65 F. Supp.2d 850 (N.D.Ill.
1999). See also Dictado v. Ducharme, 189 F.3d 889, 890, 891
(9th Cir. 1999) (to trigger tolling provision for "properly
filed" application for collateral review, means to submit
application in compliance with the procedural laws of the state);
Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999)
("Properly filed application" for collateral review is one that
conforms with state's applicable procedural filing requirements);
Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998) ("Properly
filed application" is one submitted according to state's
procedural requirements, such as rules governing time and place
of filing); and cf. Tinker v. Hanks, 172 F.3d 990, 991 (7th
Cir. 1999) (application for leave to file state post-conviction
proceeding was not "properly filed" application for state
post-conviction relief and did not toll one-year filing period).
In this case, Weston's conviction became final in 1995, when
his petition for leave to appeal was denied by the Supreme Court
of Illinois. The judgment became final before the enactment of
AEDPA. Therefore, Weston's one year period in which to file his
habeas petition began to run on April 24, 1996. Weston, however,
did not file his petition until August 4, 1999. This is well over
one year after April 24, 1996. The petition would appear to be
Nevertheless, if Weston's post-conviction petition was properly
filed, this court will toll the time period while that
post-conviction petition was pending. Unfortunately for Weston,
the appellate court found that Weston did not file his petition
for post-conviction relief in a timely manner. As the
post-conviction petition was not timely, it does not qualify as a
"properly filed application." Therefore, this court will not toll
the limitations period. Weston's time to file his petition for
writ of habeas corpus expired on April 23, 1997, one year after
April 24, 1996. Weston's petition is accordingly barred by the
one year statute of limitations.
Even if Weston's petition for a writ of habeas corpus were not
untimely, he is procedurally defaulted from proceeding. If a
state court does not reach a federal issue because of a state
procedural bar, that issue cannot be raised in a writ of habeas
corpus to a federal court without a showing of cause and
prejudice. O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct.
1728, 144 L.Ed.2d 1 (1999). Under Illinois law, a post-conviction
petition must be filed within a certain time as determined by the
Illinois Post-Conviction Statute. The mere fact that a federal
habeas petitioner failed to abide by a state procedural rule is
not sufficient to preclude habeas relief. See Harris v. Reed,
489 U.S. 255, 261, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). A
state procedural default does bar consideration of a federal
claim on habeas review if "the last state court rendering a
judgment in the case `clearly and expressly' states that its
judgment rests on a state procedural bar." Id. at 263, 109
S.Ct. 1038, (citations omitted). The appellate court order
affirming the dismissal of Weston's state post-conviction
petition is the last judgment entered in Weston's case. In that
opinion, the appellate court stated, "we have carefully reviewed
the record in
this case, the aforesaid brief*fn1 and defendant's response in
compliance with the mandate of Pennsylvania v. Finley and find
no issues of arguable merit. We further note that defendant's
petition was untimely filed and his claims are therefore time
barred. 725 ILCS 5/122-1(c) (West 1996)."
Even if the state court reached the merits of the federal claim
in an alternate holding, procedural default "curtails
reconsideration of the federal issue on federal habeas as long as
the state court explicitly invoke[d] a state procedural bar rule
as a separate basis for decision." Harris v. Reed, at 264 n.
10, 109 S.Ct. 1038, see Burris v. Farley, 51 F.3d 655, 660 (7th
Cir. 1995); Prihoda v. McCaughtry, 910 F.2d 1379, 1383-84 (7th
Cir. 1990) ("Harris tells us that in alternative-grounds cases
the federal court must respect the [state] procedural basis, so
long as the state court says that each ground is sufficient.").
The state appellate court clearly stated that Weston's claims
could not proceed because they were without merit and because
they had been filed in an untimely fashion. Even if the appellate
court's brief statement that there was no merit to Weston's claim
is considered to be a determination of the merits, it does not
eradicate the court's reliance on state procedural rules. The
state appellate court clearly stated adequate and independent
state grounds for its decision to affirm the dismissal of the
Federal courts may review defaulted claims only if the petition
shows cause for failure to raise them at the appropriate time and
actual prejudice which resulted from such failure. See
Wainwright v. Sykes, 433 U.S. 72, 91, 97 S.Ct. 2497, 53 L.Ed.2d
594 (1977). Absent such a showing, a defaulted claim is
reviewable only if refusal to consider it would result in a
"fundamental miscarriage of justice," that is, where "a
constitutional violation has probably resulted in the conviction
of one who is actually innocent. . . ." Murray v. Carrier,
477 U.S. 478, 495-96, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (internal
quotations and citations omitted); see also Coleman, 501 U.S.
at 750, 111 S.Ct. 2546. This standard requires a petitioner to
show that it is more likely than not that no reasonable juror
would have convicted him. Schlup v. Delo, 513 U.S. 298, 329,
115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Weston makes no showing of
cause for his failure to file a timely post-conviction
proceeding. Therefore, the court need only determine whether
refusal to reach the merits might work a fundamental injustice.
See Howard v. O'Sullivan, 185 F.3d 721, 726 (7th Cir. 1999).
As an alternative to showing cause and prejudice, Bell insists
that because he did not commit the crime of which he was
convicted, the appellate court erred in concluding that its
refusal to reach the merits of his petition would not result in a
fundamental miscarriage of justice. To avoid procedural default
by a claim of actual innocence, however, a petitioner must not
only "support his allegations of constitutional error with new
reliable evidence that was not presented at trial," but also
"show that it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence." Schlup
v. Delo, 513 U.S. at 328, 115 S.Ct. 851. The only new evidence
proffered by Weston is an affidavit from Dwayne Macklin, the
individual that informed the police about Weston's involvement in
the underlying murder and attempted murder. In his affidavit,
Macklin states that he identified Weston because the police were
yelling at him and struck him and that "all incriminating
statements I made . . . were completely false." Macklin does not
identify the perpetrator or explain the basis for the incident in
his affidavit. Because Macklin did not testify at Weston's trial,
of the statement made to police does not bring into question
evidence relied upon by the jury in convicting Weston.
Under Schlup, Weston must establish that it would be
impossible for any reasonable juror to find him guilty. The new
evidence that he offers, while supporting Weston's trial
testimony that he is innocent, does not establish actual
innocence. At Weston's trial, numerous witnesses testified to his
involvement. In light of such conflicting testimony and the
inconsistency in Macklin's assertion about Weston's involvement,
Weston's new evidence is not sufficient to establish actual
innocence. At most, the evidence Weston provides could be the
basis for a jury to find him not guilty; it does not make it
impossible for a jury to find him guilty. Weston does not qualify
under the "miscarriage of justice" exception to procedural
Thus, Weston's first nine claims are both untimely and
procedurally defaulted. Weston's tenth and eleventh claims must
now be addressed: ineffective assistance of appellate counsel on
direct appeal and denial of due process in the post-conviction
proceeding; and abuse of discretion by the trial court and
appellate court in dismissing his post-conviction petition.
Upon close review of Weston's tenth claim, Weston's "denial of
due process in the post-conviction proceeding" is really a claim
of ineffective assistance of appellate counsel in the
post-conviction proceeding. This tenth claim, therefore, is based
on the ineffectiveness of counsel during his direct appeal and
his post-conviction appeal.
With respect to Weston's direct appeal, it is unclear whether
he raised this issue previously in his post-conviction petition.
Assuming that he did raise it in his post-conviction proceeding,
this claim is both untimely and procedurally defaulted for the
reasons set forth above. If Weston did not raise this issue in
his post-conviction petition, the issue is also procedurally
defaulted. Section 28 U.S.C. § 2254(c) requires only that state
prisoners give state courts a fair opportunity to act on their
claims. Castille v. Peoples, at 351, 489 U.S. 346, 109 S.Ct.
1056, 103 L.Ed.2d 380; Picard v. Connor, 404 U.S. 270, 275-276,
92 S.Ct. 509, 30 L.Ed.2d 438 (1971). State courts, like federal
courts, are obliged to enforce federal law. Comity thus dictates
that when a prisoner alleges that his continued confinement for a
state court conviction violates federal law, the state courts
should have the first opportunity to review this claim and
provide any necessary relief. Rose v. Lundy, 455 U.S. 509,
515-516, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Darr v.
Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950).
Before a federal court will consider an issue raised in a
petition for writ of habeas corpus on its merits, petitioner must
exhaust all remedies available in state courts and fairly present
any federal claims in state court first, or risk procedural
default. Bocian v. Godinez, 101 F.3d 465 (7th Cir. 1996).
Failure to present this issue to the state courts in the
post-conviction proceeding results in a procedural default of the
claim. Either way, Weston's claim for ineffective appellate
counsel is procedurally defaulted.
Weston's claim of ineffective assistance of appellate counsel
in his post-conviction proceeding is likewise unavailing,
although for different reasons. Before a habeas petitioner can
use ineffective assistance of counsel as grounds to establish
cause, he must have a right to counsel. Weston had no
constitutional right to counsel when mounting his collateral
attack on his conviction. Pennsylvania v. Finley, 481 U.S. 551,
555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Ineffective
assistance on a discretionary appeal to the Illinois Supreme
Court or in a post-conviction proceeding, both of which are
proceedings in which there is no constitutional right to counsel,
cannot constitute cause. Lane v. Richards, 957 F.2d 363, 365
(7th Cir.), cert. denied, 506 U.S. 842, 113 S.Ct. 127, 121
L.Ed.2d 82 (1992); Morrison v. Duckworth,
898 F.2d 1298, 1300-01 (7th Cir. 1990); United States ex rel.
Johnson v. People of Illinois, 779 F. Supp. 81, 83-85 (N.D.Ill.
1991). As Weston had no right to counsel in his post-conviction
proceeding, his claim of ineffective assistance of counsel fails
to raise an issue upon which habeas relief may be granted.
With respect to Weston's final claim, that the state courts
abused their discretion in dismissing his post-conviction
petition, a federal court may entertain a petition for a writ of
habeas corpus only if an individual is in state custody "in
violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2254(a). Weston asserts that the state
courts' abuse of discretion arose under state law. Even if Weston
is correct that the state courts' actions constituted an abuse of
discretion, he does not raise a claim based upon federal law.
Because Weston's final claim relies on an interpretation of the
state court's application of state law, it may not be brought in
a federal habeas petition. Accordingly, Weston's eleventh claim
may not be brought in this forum because it does not assert a
violation of federal law, the United States Constitution or a
treaty of the United States.
For the foregoing reasons, Weston's petition for a writ of
habeas corpus is summarily dismissed pursuant to Rule 4 of the
rules governing habeas corpus cases under § 2254.