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U.S. EX REL. HAWTHORNE v. COWAN

September 23, 2002

UNITED STATES OF AMERICA EX REL. KENNETH HAWTHORNE, PETITIONER,
V.
ROGER D. COWAN RESPONDENT.



The opinion of the court was delivered by: Alesia, District Judge.

      MEMORANDUM OPINION AND ORDER

Before the court is petitioner Kenneth Hawthorne's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the court denies Hawthorne's petition.

I. BACKGROUND

On May 10, 1995, a jury in the Circuit Court of Lake County, Illinois convicted petitioner Kenneth Hawthorne ("Hawthorne") of aggravated criminal sexual assault. As a result, he was sentenced to fifty-five years imprisonment. Hawthorne has filed this petition for habeas corpus, claiming that his constitutional rights were violated during his trial and on direct appeal of his conviction.

Hawthorne appealed his conviction to the Illinois Appellate Court for the Second District. Hawthorne's appellate brief raised two arguments: (1) the trial court erred in admitting Hawthorne's prior convictions for impeachment purposes and (2) his trial counsel was ineffective. In an unpublished order dated October 23, 1997, the appellate court affirmed Hawthorne's conviction. Particularly, the appellate court held that: (1) the trial conducted the proper analysis of Illinois evidence law in admitting Hawthorne's prior convictions and (2) Hawthorne's trial counsel was not ineffective, based on the Supreme Court's ruling in Strickland v. Washington, 466 U.S. 668 (1984). On October 6, 1998 the Illinois Supreme Court denied Hawthorne's petition for leave to appeal.

On February 17, 1998, pursuant to the Illinois Post-Conviction Hearing Act, 725 ILL. COMP. STAT. 5/122-1 et seq. (1995), Hawthorne filed his petition for post-conviction relief in the Circuit Court of Lake County. Claims relevant to the instant habeas petition that he raised in his state post-conviction petition include: (1) the state presented improper evidence and made improper comments during opening and closing statements; (2) the trial judge made erroneous rulings; (3) his trial counsel was ineffective for failing to object to the state's evidence and impeach the state's witnesses; and (4) his appellate counsel was ineffective for not raising additional issues on direct appeal. In an order dated March 11, 1998, the circuit court dismissed Hawthorne's petition as "frivolous and patently without merit." (Resp't Ex. H at 5.)

Hawthorne appealed the circuit court's dismissal of his petition for post-conviction relief to the Illinois Appellate Court. The appellate court noted that Hawthorne should have raised his issues on direct appeal and, therefore, those issues ordinarily would be waived under Illinois law. (Resp't Ex. K at 4.) The court recognized, however, that the doctrine of waiver did not apply when the waiver arose from ineffective assistance of appellate counsel. Therefore, the appellate court addressed the merits of Hawthorne's claims in the context of his claim that he was denied effective assistance of appellate counsel. (Id. at 5.) Ultimately, the court determined that Hawthorne's allegations of constitutional deprivations were without merit and affirmed the circuit court's decision. The Illinois Supreme Court then denied Hawthorne's petition for leave to appeal.*fn1

On November 20, 2000, Hawthorne filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, he argues that: (I) he was denied effective assistance of trial counsel when his attorney failed to impeach prosecution witnesses and object to other prejudicial statements by the prosecution and its witnesses, in violation of the Sixth and Fourteenth Amendments; (2) he was denied a fair trial when the prosecution presented testimony that was irrelevant, inflammatory, and prejudicial, in violation of his Fourteenth Amendment right to due process; (3) the trial judge violated his Fourteenth Amendment due process rights by admitting improper evidence, sentencing Hawthorne to a longer term of imprisonment than the state offered as a plea bargain, and abusing his discretion in jury selection; (4) his guilt was not proven beyond a reasonable doubt, in violation of his Fourteenth Amendment right to due process; and (5) he did not receive effective assistance of appellate counsel, in violation of the Sixth and Fourteenth Amendments.

II. DISCUSSION

A. Standard for Reviewing a Petition for Habeas Corpus

A petitioner seeking a writ of habeas corpus must establish that the state court proceeding:

(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.

28 U.S.C. § 2254 (d). See also Ellsworth v. Levenhagen, 248 F.3d 634, 638 (7th Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362 (2000)). A state court decision is "contrary to" Supreme Court precedent if the state court applies a rule that contradicts the law as set forth by the Supreme Court or if the state court addresses facts that are materially indistinguishable from a Supreme Court decision and reaches a result different from the Supreme Court. Whitehead v. Cowan, 263 F.3d 708, 716 (7th Cir. 2001) (citing Williams, 529 U.S. at 405). A state court decision is an "unreasonable application" of Supreme Court precedent when the state court identifies the proper governing precedent of the Supreme Court but unreasonably applies it to the facts or when the state court unreasonably extends Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that precedent to a context where it should apply. Whitehead, 263 F.3d at 716-17 (citing Williams, 529 U.S. at 407). With this standard in mind, the court will review Hawthorne's habeas petition.

Respondent argues that the court should deny Hawthorne's petition for habeas corpus for two reasons: (1) all of Hawthorne's claims, except for his ineffective assistance of trial counsel claim, were procedurally defaulted and (2) Hawthorne failed to show that his trial counsel was constitutionally defective. First, the court will determine which, if any, of Hawthorne's claims have been procedurally defaulted. Second, the court will address the merits of any of Hawthorne's claims that were not defaulted.

B. Procedural Default

Respondent argues that the court need not address the merits of Hawthorne's claims — with the exception of his ineffective assistance of trial counsel claim raised on direct appeal — because those claims were procedurally defaulted in state proceedings. Therefore, the court must determine whether any of Hawthorne's claims have been procedurally defaulted before it may address the merits of those claims.

A federal district court may not grant a writ of habeas corpus unless the petitioner has exhausted his state court remedies. 28 U.S.C. § 2254 (b)(1)(A). Additionally, the petitioner must not have procedurally defaulted his claims during the state law proceedings. Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001). There are two different ways that a petitioner can procedurally default a claim. These are: (1) failing to raise a claim in the state court system and (2) presenting a claim to the state court system and having it rejected on an independent and adequate state ground. United States ex rel. Brunt v. Cowan, No. 00 C 5772, 2001 WL 521837, at *1 (N.D. Ill. May 16, 2001) (citing Coleman v. Thompson, 501 U.S. 722, 729-30 (1991)).

In this case, respondent does not dispute that Hawthorne has exhausted his state court remedies. However, respondent argues that Hawthorne has procedurally defaulted all but one of his claims. First, the court will determine whether Hawthorne raised his claims in the Illinois courts. Second, the court will decide whether any Illinois court disposed of one of Hawthorne's claims upon an independent and adequate state ground.

1. Failure to raise a claim

A habeas petitioner must fully and fairly present his federal claims to the state courts before seeking federal review. Chambers, 264 F.3d at 732. This means that a petitioner must invoke one complete round of a state's established appellate review process before seeking habeas relief on a claim. Cossel v. Miller, 229 F.3d 649, 653 (7th Cir. 2000) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)). Therefore, the court must determine what issues Hawthorne raised either on direct appeal or in his state petition for post-conviction relief and appealed to the Illinois Supreme Court. See United States ex rel Bell v. Pierson, 267 F.3d 544, 555 (7th Cir. 2001) (considering claims petitioner raised on direct appeal and state collateral review in determining which claims petitioner had properly presented to the state courts).

Hawthorne raised only two claims on direct appeal: (1) the trial court erred in admitting Hawthorne's prior convictions for impeachment purposes and (2) his trial counsel was ineffective for failing to object to prosecution comments and for failing to impeach prosecution witnesses.*fn2 He included both claims in his request for appeal to the Illinois Supreme Court. However, Hawthorne raised additional claims in his state petition for post-conviction relief, including some of the claims presented in the instant petition. The Illinois law doctrine of waiver ordinarily would have prevented courts reviewing Hawthorne's petition from considering claims that he had not raised on direct appeal. However, the Illinois Appellate Court noted that waiver did not apply when the petitioner asserted a claim of ineffective assistance of appellate counsel, and addressed the merits of Hawthorne's claims. (Resp't Ex. K at 5.)

Hawthorne then filed a petition for leave to appeal to the Illinois Supreme Court, and included his claims that (1) the prosecution presented improper evidence and made improper comments; (2) the trial judge made improper rulings at trial and at sentencing; (3) his trial counsel was ineffective; and (4) his appellate counsel was ineffective. However, Hawthorne raised no claim regarding jury selection in his petition for leave to appeal. Hawthorne did not assert — either on direct appeal or in his state post-conviction relief petition — that his Fourteenth Amendment due process rights were violated because his guilt was not proven beyond a reasonable doubt. Additionally, Hawthorne failed to present his claim regarding jury selection to the Illinois Supreme Court and, therefore, failed to invoke one complete round of review of that claim. Therefore, the court finds that Hawthorne has procedurally defaulted these two claims and need not address their merits.*fn3

2. Independent and Adequate State Ground

Respondent argues that all of Hawthorne's claims that he raised in his state postconviction petition were defaulted because the Illinois Appellate Court disposed of those claims using an independent and adequate state ground.

A federal court will not review a question of federal law decided by a state court if that decision rests on state law grounds that are independent of the federal question and adequate to support the judgment. United States ex rel Bell v. Pierson, 267 F.3d 544, 556 (7th Cir. 2001). A state law ground that provides the basis for a state court decision is independent when the court actually relied on the procedural bar as an independent basis for its disposition of the case. Id. (citing Harris v. Reed, 489 U.S. 255, 261 (1989)). A state law ground is adequate when ...


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