United States District Court, Central District of Illinois, Springfield Division
May 15, 2001
MILDRED L. LAUGHARN, PETITIONER,
AUGUSTA SCOTT, JR., WARDEN, LOGAN CORRECTIONAL CENTER, RESPONDENT.
The opinion of the court was delivered by: Richard Mills, United States District Judge
A tragic set of circumstances.
But the jury disbelieved Petitioner's version of the facts.
Petition for a writ of habeas corpus is denied.
In April 1995, defendant Mildred Laugharn shot and killed her husband,
Robert Laugharn, in their home. She was indicted by a grand jury for the
offenses of first degree murder and involuntary manslaughter. 720 ILCS
5/9-1, 9-3 (West 1994). A jury trial was held in November 1996.
Mildred testified she shot her husband in self-defense. She claimed
he had a drinking problem and had been drinking beer the night of the
shooting. Mildred also had a couple of mixed alcohol drinks that night.
They were watching television and had a dispute over the thermostat.
Robert became upset when Mildred tried to turn the thermostat down.
He slapped her in the face and told her to "get out." Mildred went into
the kitchen. On her way to the kitchen, she saw Robert sitting in his
reclining chair with a gun. She was terrified and felt there was no place
she could go. She believed she could "talk Bob out of this", so she
approached him and carefully tried to take his gun.
Mildred testified they struggled for the gun before she finally got
hold of it. Robert was angry and got out of the chair. She thought he
would take the gun and shoot her, so she fired the gun. After firing three
times, she threw the gun down and walked out of the room, not knowing
if Robert was injured. She came back and realized Robert was hurt. She
called her neighbors, placed the gun on the coffee table, and went
outside to wait for the neighbors.
Mildred's neighbors, Frank and Helen Burnett, both testified that
Mildred called that night and said "she thought she'd shot Bob." They
went to Mildred's house and she explained what happened. She told
them essentially the same story she told at trial, except she told Helen
that Robert had fired two shots at her first. The Burnetts testified
Mildred's hair and clothing were not disturbed and the living room
showed no signs of struggle. While on the stand, Frank was presented a
photograph of the crime scene that indicated the recliner Robert was
sitting in had been moved slightly. Frank did not notice the chair had
been moved before.
Officer Randy Duvendack spoke with Mildred the night of the shooting.
He noticed nothing unusual about her appearance. Mildred told Officer
Duvendack that her husband slapped her after a fight over the
thermostat. She left the room, then returned, and he had a gun and
threatened to kill her. She ran toward the door and he fired two shots at
her. She then charged him, knocked him over after a brief struggle, and
got the gun. He walked back toward the recliner, she shot him once, and
he fell into the chair.
At trial, Mildred explained that she lied at first because she
panicked. She was afraid no one would believe the truth. She testified
she was now telling the truth.
Several officers investigated the shooting. Robert was found sitting
in the recliner with a gun wound to the abdomen. A cigarette lay at his
feet and an undisturbed cigarette ash was located below Robert's hand
beside the chair. Woodchips from the ceiling were found on his shoulder
and the floor around him, but none were found underneath his body. A
bullet hole was found in a ceiling beam above and slightly forward of
where Robert was sitting, and another hole was found in a humidifier
behind Robert. The bullet hole on the beam had an entry defect on the
north side and an exit defect on the bottom.
A firearm examination expert testified the path of the bullet through
Robert's body was consistent with him being shot from at least a few feet
away while in a reclining position, although it was also consistent with
a person firing a gun from an area lower than Robert's abdomen. Robert's
blood-alcohol level was .247, 2 ½ times the legal limit for
The jury found defendant guilty of first degree murder. She was
sentenced to 28 years' imprisonment with 3 years' mandatory supervised
II. PETITIONER'S CLAIMS
Petitioner raises four grounds as a basis for the instant petition.
First, Petitioner argues that the prosecutor's discovery violation
violated her due process rights and her right to a fair trial. Prior to
the start of her trial, the trial court entered an order requiring the
prosecutor to disclose to Petitioner any document which the prosecution
intended on presenting or using at trial. However, the prosecutor did not
disclose or make available her husband's last will and testament and
petition for probate (which established a financial motive for the
shooting) to her until the prosecutor used the documents to cross-examine
her. Petitioner contends that this untimely disclosure and violation of
the trial court's discovery order denied her Fifth and Fourteenth
Amendment rights to due process and to a fair trial.
Second, Petitioner claims that certain statements made by the
prosecutor during his closing argument prejudiced her and constituted
reversible error. Specifically, Petitioner asserts that the prosecutor
improperly attempted to define reasonable doubt and improperly implied
that defense counsel was trying to misdirect and/or confuse the jury.
Accordingly, Petitioner argues that she is entitled to a new trial based
upon this prosecutorial misconduct.
Third, Petitioner contends that she was denied her Sixth Amendment
right to receive effective assistance of both trial and appellate
counsel. Petitioner argues that she failed to receive effective
assistance of trial counsel in that (1) her trial counsel failed to
object to the prosecutor's use of her husband's last will and testament
and petition for probate during his cross-examination of her; (2) her
trial counsel failed to discuss with her, suggest the use of, and tender
a lesser included offense jury instruction which would have allowed the
jury to find her guilty of second degree murder; and (3) her trial
counsel failed to call her expert witness*fn2 to testify and, at a
minimum, failed to make an offer of proof to the trial court regarding
her expert's testimony. In addition, Petitioner asserts that she received
ineffective assistance of appellate counsel because her appellate counsel
failed to raise these issues on appeal.
Fourth, Petitioner contends that the State's evidence was insufficient
to find her guilty of first degree murder beyond a reasonable doubt.
Initially, the Court notes that Petitioner has exhausted all of her
state court remedies. As United States District Judge David F. Hamilton
explained last year:
Although the requirement of exhausting available state
remedies and the doctrine of procedural default are
closely related and are often addressed together,
there is an important difference between them. To
determine whether a claim has been exhausted, the
question is whether any meaningful state remedies are
still available at the time of the federal petition.
Engle v. Isaac, 456 U.S. 107, 125-26 n. 28, 102 S.Ct.
1558, 71 L.Ed.2d 783 (1982); accord, Castille v.
Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103
L.Ed.2d 380 (1989) ("the requisite exhaustion may
nonetheless exist, of course, if it is clear that
respondent's claims are now procedurally barred under
Pennsylvania law"); Teague v. Lane, 489 U.S. 288,
297-298, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
Thus, even though a claim was never presented to the
state courts (at least as a constitutional claim),
state remedies for the claim can be exhausted for
purposes of § 2254(b) if it is clear that the
doors of the state courts are no longer open to
consider the claim. In such cases, even if a claim was
procedurally defaulted in the state courts, the
exhaustion requirement is satisfied because there are
no longer remedies available for the petitioner to
exhaust. See Gray v. Netherland, 518 U.S. 152, 161,
116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (because
exhaustion requirement refers only to remedies still
available at the time of the federal petition, it is
satisfied if it is clear the petitioner's claims are
now procedurally barred under state law); Coleman v.
Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991); Engle v. Isaac, 456 U.S. at 125-26
n. 28, 102 S. Ct. 1558.
Watkins v. Miller, 92 F. Supp.2d 824, 831 (S.D. Ind. 2000). Although
Petitioner did not file a petition for leave to appeal with the Illinois
Supreme Court seeking leave to appeal the Illinois Appellate Court for
the Fourth District's denial of her direct appeal, the time for doing so
has expired. See Illinois Supreme Court Rule 315(b) (providing that "a
party seeking leave to appeal must file the petition for leave in the
Supreme Court within 21 days after entry of the judgment of the Appellate
Court. . . ."). Thus, Petitioner has satisfied the exhaustion requirement
because there are no longer any state law remedies available for her to
exhaust. Watkins, 92 F. Supp. 2d at 831.
B. PROCEDURAL DEFAULT
However, Petitioner has procedurally defaulted all of her claims.
Specifically, Petitioner has procedurally defaulted her claims by failing
to raise them on direct appeal in a petition for leave to appeal to the
Illinois Supreme Court. In Illinois, in order to avoid procedural default
both direct appeals and petitions for post-conviction relief must be
appealed all the way to the Supreme Court of Illinois. Cawley v. DeTella,
71 F.3d 691, 694 (7th Cir. 1995); Jenkins v. Gramley, 8 F.3d 505, 508
(7th Cir. 1993). As noted supra, Petitioner did not file a petition for
leave to appeal to the Illinois Supreme Court challenging the Illinois
Appellate Court for the Fourth District's denial of her direct appeal.
Accordingly, she has procedurally defaulted her claims.*fn4 See
O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (holding that the
failure to present federal habeas claims to the Illinois Supreme Court
first resulted in a procedural default of those claims); see also
Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999) (holding that
"[i]f a prisoner fails to present his claims in a petition for
discretionary review to a state court of last resort, those claims are
procedurally defaulted."); but see Cawley, 71 F.3d at 695 n. 6 (noting
that the petitioner's failure to file a direct appeal with the Illinois
Supreme Court did not affect the decision because "[t]here is no comity
issue or independent and adequate state ground if a state chooses to
ignore or forgive non-compliance with its own rules.").
"If a petitioner procedurally defaulted on his claim in the state
court, a federal court may not grant habeas relief unless the petitioner
`can demonstrate cause for the default and actual prejudice as a result
of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of
justice.'" Anderson v. Cowan, 227 F.3d 893, 899-900 (7th Cir. 1999),
quoting Coleman v. Thompson, 501 U.S. 722 (1991). In Murray v. Carrier,
477 U.S. 478 (1986), the Supreme Court held that "the existence of cause
for a procedural default must ordinarily turn on whether the prisoner can
show that some objective factor external to the defense impeded counsel's
efforts to comply with the State's procedural rule." Id. at 488.
Moreover, "[t]he Supreme Court has explained that to demonstrate
`prejudice' under the cause and prejudice standard, a defendant must
`shoulder the burden of showing, not merely that the errors at his trial
created a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.'" Ouska v. Masching, F.3d 2001 WL 361043, * 11
(7th Cir. April 12, 2001), quoting United States v. Frady, 456 U.S. 152,
In the instant case, Petitioner has not even attempted to establish
cause or prejudice for procedurally defaulting her claims. See Wilson v.
Briley, 243 F.3d 325, 329 (7th Cir. 2001) (noting that the petitioner was
not entitled to habeas relief because he had not attempted to establish
cause and prejudice). Courts are not required to construct legal
arguments for litigants, especially those represented by counsel. Small
v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Accordingly, the Court
finds that Petitioner is not entitled to a writ of habeas corpus because
she has procedurally defaulted all of the grounds asserted in her §
2254 in support of habeas relief and because she has not established
cause or prejudice for her procedural default.
C. FUNDAMENTAL MISCARRIAGE OF JUSTICE
Furthermore, the Court notes that letting Petitioner's conviction
and sentence stand would not result in a "fundamental miscarriage of
justice." Murry, 477 U.S. at 495. Granting habeas relief based upon a
finding of a "fundamental miscarriage of justice" is reserved for
extraordinary cases. Schlup v. Delo, 513 U.S. 298, 324 (1995).
Here, Petitioner has failed to show — or even allege —
actual innocence, as opposed to legal innocence. Spreitzer v. Schomig,
219 F.3d 639, 648 (7th Cir. 2000). Accordingly, the Court finds that
Petitioner is not entitled to habeas relief based upon a fundamental
miscarriage of justice.
Finally, the Court notes that, even if her claims were not barred by
procedural default, Petitioner would not be entitled to the relief which
she seeks. Title 28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim
— (1) resulted in a decision that was contrary
to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in
a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
Id. In her petition, Petitioner has failed to cite any state court
decision which was contrary to or involved an unreasonable application of
federal law as determined by the United States Supreme Court. In fact,
other than Strickland, Petitioner did not cite a single federal case in
support of her § 2254 petition.
In addition, Petitioner has failed to establish that any state court
decision was "unreasonable" as that term is used in § 2254(d). See
Williams v. Taylor, 529 U.S. 362, 409-16 (2000) (O'Connor, J.,
concurring) (discussing what qualifies as an "unreasonable application"
of law under § 2254(d)(1)). Therefore, even if the Court were to
address the merits of her petition, Petitioner would not be entitled to
the relief which she seeks.
Ergo, Petitioner's Petition under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus is DENIED.