the tide for him. However, the State only is required
to reveal a plea agreement if the witness testifies falsely as to the
existence of such an agreement. Giglio v. United States, 405 U.S. at
154-55; People v. Pecoraro, 175 Ill.2d 294, 313 (Ill. 1997).
For example, in Giglio, a key witness testified that he had never been
told he would not be prosecuted and the government expressly stated in
closing that it did not promise that the witness would not be indicted.
405 U.S. at 151-52. The Supreme Court held that, because the jury had
been told that the witness was not subject to a plea agreement, due
process required the government to reveal the existence of the plea
agreement so the defense could impeach the witness.
In contrast, neither Matthews nor the State claimed that Matthews had
not entered into a plea agreement with the State. Moreover, Erickson
could have cross-examined Matthews as to this issue. If he had done so,
false testimony by Matthews — not the presence of the plea
agreement in and of itself — would have triggered the State's
obligation to produce the agreement. See Giglio v. United States, 405
U.S. at 154-55; see also People v. Pecoraro, 175 Ill.2d 294 at 313.
Thus, the State did not violate Brady, and Erickson suffered no
prejudice, as a result of the State's failure to provide Erickson with a
copy of Matthews' plea agreement.
In sum, the fact that Erickson did not know, at the time of
sentencing, about Matthews' full criminal history or that Matthews had
entered into a plea bargain with the State does not mean that his
sentence is unworthy of confidence. Hence, Erickson has failed to
establish that cause and prejudice excuse his failure to raise these
issues before the Illinois courts. Because Erickson does not claim that
the "actual innocence" exception applies, we conclude that his claims
relating to Matthews are procedurally defaulted. Hence, Erickson by
definition cannot establish good cause for any discovery relating to
B. Combs & Greenway
As noted above, at sentencing, Police Detective Greenway testified that
one of Erickson's former girlfriends, Joanne Combs told him that Erickson
slapped her around, impregnated her, and threatened to kill her if she
told anyone that he was the father. According to Erickson, if his trial
lawyer had sought discovery, he would have discovered that Combs denied
making the statements attributed to her by Greenway and hence would have
been able to impeach Greenway.
The claim that counsel was constitutionally ineffective due to his
failure to seek discovery is procedurally defaulted since it does not
appear in either of Erickson's state post-conviction petitions.
Specifically, in Erickson's first state post-conviction petition, he
contended that his trial counsel's failure to seek discovery relating to
the State's aggravating evidence was constitutionally ineffective. He did
not include any specific allegations of prejudice arising from the lack
of discovery. Instead, he simply stated that his lawyer was ineffective
because he failed to seek discovery and that there was a reasonable
probability that his sentence would have been different if counsel had
On appeal to the Illinois Supreme Court, the only mention of this
argument is Erickson's assertion that "counsel's failure to seek
discovery of the prosecution's evidence in aggravation" was prejudicial.
(Respondent Ex. G at 45). This claim is one of a long list of other
ineffective assistance claims. Moreover, unlike the failure
discovery claim, Erickson's counsel discussed each of the other
ineffective assistance claims individually. A few general words in an
eighty-three page brief are not enough to present an issue to the
Illinois Supreme Court. See Illinois Supreme Court Rule 341(e)(7) (a
petitioner waives an issue if his brief does not include the factual basis
of his allegations, a discussion of those allegations, and supporting
authorities). Similarly, they are not enough to frame an issue in federal
constitutional terms. See Verdin v. O'Leary, 972 F.2d at 1474-75.
Finally, it is well-established that the failure to present a claim to
— the Illinois Supreme Court results in waiver of that claim.
People v. Clark, 48 Ill.2d 554 (Ill. 1971); Jenkins v. Gramley, 8 F.3d 505,
507 (7th Cir. 1993).
Erickson does not claim that either his first state post-conviction
petition or appeal was somehow fundamentally deficient. See People v.
Flores, 153 Ill.2d at 273-74. Moreover, this ineffective assistance claim
was directed at Erickson's trial, as opposed to appellate, counsel. See
Pet. Rep. Br. Pg. 14-15. Therefore, he was not entitled to raise this
claim in a second state post-conviction petition. See Erickson III, 183
Ill.2d at 223. Erickson also does not assert that cause and prejudice
excuse his default. Accordingly, the court finds that this claim is
In an attempt to resuscitate this claim, Erickson argues that he
presented it to the Illinois Supreme Court in his appeal from the denial
of his second post-conviction petition and that the court improperly
failed to rule on it. As noted above, because he failed to include this
argument in his appeal from the denial of his first state post-conviction
petition, he was not entitled to try again in his second state
post-conviction petition. In any event, the court finds that the Illinois
Supreme Court was not required to address the merits of this claim.
Erickson does not direct the court to any particular portion of his
Although the court should not have to scour the record without guidance
from Erickson, it has nevertheless located the following statements which
relate to Erickson's claim that his lead trial counsel Glenn Seiden
failed to conduct discovery regarding the State's aggravating evidence.
First, in Erickson's second state post-conviction petition, he states:
67. At the aggravation phase, the State presented numerous
witnesses to testify with respect to various bad acts that
Erickson had allegedly committed.
68. Seiden, however, was wholly unaware of the nature
of the aggravating evidence the State intended to
present at the sentencing hearing.
69. Indeed, Seiden never even filed a motion
requesting discovery of such evidence.
70. Seiden did not move for discovery of the State's
evidence in aggravation because he did not believe
that a defendant was entitled to such discovery under
Illinois law, even though such motions are customary.
71. Seiden thus did not know in advance what the State
planned to present, and he therefore could not have
prepared for the State's evidence in preparation for
cross-examination of the State's witnesses.
(Erickson Ex. 45)