508-09 (1983) ("there can be no such thing as an error-free, perfect
trial, and that the Constitution does not guarantee such a trial.");
Chapman, 386 U.S. at 24 (on direct appeal, the reviewing court is to
determine if an error was harmless beyond a reasonable doubt). The
prosecutor made a misstatement of Illinois law, but the trial judge
sustained Jones' objection, and properly instructed the jury on the
substantive law. The state court's harmless error conclusion was neither
contrary to nor an unreasonable application of federal law.
Nor does Jones demonstrate that the prosecutor's statement had a
"substantial and injurious effect or influence in determining the jury's
verdict." See Brecht, 507 U.S. at 637-38. The court presumes that the
sustained objection and proper instructions on the substantive law cured
any ill effects of the prosecutor's misstatement. See Jones, 119 S.Ct. at
2103; cf. Hasting, 461 U.S. at 508-09. Jones offers nothing to the
contrary. This claim is denied on its merits.
15. Hearsay Issue:
Next, Jones argues that admission of hearsay evidence violated his
Sixth Amendment right to cross examine the witnesses against him. At
Jones' first trial. Detective Ptak testified that he interviewed Jones'
Co-Defendant, Wells, the day after the murder. Ptak said that after
discussing matters with Wells, Ptak went to Jones' home. Jones argues
that Ptak's testimony inferentially implicated Jones, even though Ptak
did not testify as to any statements by Wells. Respondent argues, and the
court agrees, that this claim is procedurally barred.
Jones raised this issue on direct appeal, where the Illinois Appellate
Court denied it on its merits. Thereafter, Jones never again raised the
claim in the state court proceedings. Jones failed to raise it in his
petition for leave to appeal to the Illinois Supreme Court, and similarly
failed to include the claim in any of his post-conviction pleadings. As
discussed above, failure to fairly present an issue to the state court is
a procedural default that bars federal habeas review, O'Sullivan, 526
U.S. at 842-43; Rodriguez, 193 F.3d at 916, unless Jones shows cause and
prejudice or a fundamental miscarriage of justice. See Edwards, 120 S.Ct.
at 1591; Spreitzer, 219 F.3d at 647-48; Rodriguez, 193 F.3d at 917. Jones
presents no evidence of cause and prejudice, and similarly presents
nothing to demonstrate a fundamental miscarriage of justice. Jones has
procedurally defaulted this issue.
16. No Appeal of Issues From the Second Trial:
Finally, Jones argues that his appellate counsel was ineffective for
failing to raise issues that arose during the second murder trial. All of
the issues raised on direct appeal came from the first trial. Jones
argues that his appellate counsel was ineffective for failing to raise
any issues out of the second trial. Jones has procedurally defaulted this
issue because he did not raise it during any of the state proceedings.
The only way the court can review the claim is if Jones can demonstrate
cause and prejudice or a fundamental miscarriage of justice. Edwards. 120
S.Ct. at 1591; O'Sullivan, 526 U.S. at 842-43; Spreitzer, 219 F.3d at
647-48; Rodriguez, 193 F.3d at 916. Jones does not even attempt to do
so. Accordingly, this claim is procedurally defaulted.
For the foregoing reasons, the court denies Jones' application for a
writ of habeas corpus under 28 U.S.C. § 2254.
IT IS SO ORDERED.