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WILSON v. SCHOMIG
October 28, 2002
GLENN WILSON, PETITIONER,
JAMES SCHOMIG, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Michael M. Mihm, United States District Judge
Now before the Court is Petitioner, Glenn Wilson's ("Wilson"), Amended
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For
the reasons set forth below, his Amended Petition is DENIED.
At approximately 10:00 p.m. on October 27, 1988, Wilson and his younger
half-brother, Alvin Alexander ("Alexander"), went to the S&S Liquor Store
in Bloomington, Illinois, to commit a robbery. They had apparently been
free basing cocaine prior to the robbery and set out to rob the liquor
store to get money to buy more cocaine. According to the testimony of
Tracy Gault ("Gault"), an S&S employee and the only surviving witness
that night, two customers and another store employee, Robert Webb
("Webb"), were ordered to lie down on the floor and she was ordered to
open the cash register. After Alexander took the money from the register,
Gault was ordered to open the safe and hand the money in it to
Alexander. Alexander then hit her in the face with his gun, knocking her
glasses off and causing her to bleed; Gault then crouched against the
wall. She heard three gunshots, and then the store became quiet. After
about 30 seconds, Gault crawled out from near the safe and noticed that
the female customer had blood coming from her mouth. She then called
When the police arrived, the male customer was already dead, but the
female customer and Webb were still breathing. Webb and the female
customer subsequently died, with the cause of death for each of the three
victims being a gunshot wound to the head.
On June 1, 1989, Wilson was arrested on an unrelated charge. However,
during the first eight days that he was in custody, he made several
statements to the police regarding the S&S murders. He was ultimately
charged with six counts of murder and one count of armed robbery in the
Circuit Court for McLean County, Illinois.
Wilson filed an appeal with the Illinois Supreme Court, raising 11
claims of error: (1) the statements that he made to police should have
been suppressed at trial since Miranda warnings were not given and the
police interrogation was coercive; (2) defense counsel was ineffective for
failing to claim that the statements Petitioner made to a county mental
health therapist were involuntary and the result of coercion; (3)
statements that Petitioner made to a county mental health therapist were
erroneously admitted into evidence in violation of the Mental Health and
Developmental Disabilities Act; (4) the State's Attorney incorrectly
issued subpoenas without the direction of the Grand Jury or the
supervision of the court; (5) he was denied a fair trial by the use of
evidence of his prior armed robbery conviction in spite of a motion in
limine; (6) he was not proven eligible for the death penalty beyond a
reasonable doubt; (7) the sentence of death was excessive; (8) the use of
aggravation evidence of his gang membership violated his constitutional
rights; (9) the trial court denied Petitioner a fair sentencing hearing
by refusing to limit the State to one closing argument; (10) the Illinois
death penalty statute is unconstitutional because it places a burden of
proof on the defendant which precludes meaningful consideration of
mitigation; and (11) the Illinois death penalty statute is
unconstitutional because it does not sufficiently minimize the risk of
arbitrarily or capriciously imposed death sentences. On December 24,
1994, the Illinois Supreme Court affirmed Wilson's convictions and
sentences. His Petition for Rehearing was denied on April 3, 1995, and a
Petition for Writ of Certiorari to the United States Supreme Court was
Petitioner then pursued an appeal from this denial in which he
presented five claims: (1) the trial court abused its discretion in
denying the defense's request for funds; (2) the trial court erred in
dismissing the petition; (3) Petitioner was denied the effective
assistance of appellate counsel when counsel failed to argue that the
State was precluded from seeking the death penalty; (4) the trial court
arbitrarily and capriciously imposed a premature deadline for filing the
amended petition; and (5) the Illinois Supreme Court should adopt a
uniform test governing when an expert should be appointed during both
trial and post-conviction proceedings. On May 18, 2000, the Illinois
Supreme Court affirmed the circuit court's denial of funds to hire an
expert and dismissal of Wilson's post-conviction petition. His request
for rehearing was denied on July 3, 2000, and a Petition for Writ of
Certiorari to the United States Supreme Court was also denied.
Wilson filed the present Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254, in which he presents essentially four claims for
relief: (1) trial counsel provided ineffective assistance at Petitioner's
capital sentencing hearing by failing to investigate and present
significant mitigating evidence, including evidence relating to Wilson's
organic brain dysfunction; (2) the trial judge erred in failing to
suppress all of Petitioner's statements to law enforcement officers on
Miranda grounds; (3) trial counsel provided ineffective assistance in not
challenging the admissibility of Wilson's statements to law enforcement
officers on the grounds that they were involuntary and the result of
coercion and in failing to seek the suppression of statements Wilson made
to a county mental health therapist on Miranda grounds; and (4) Illinois'
death penalty system has pervasive constitutional flaws. The matter is
now fully briefed, and this Order follows.
Before reaching the merits of a petition for writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254, a district court must consider
"whether the petitioner exhausted all available state remedies and
whether the petitioner raised all his federal claims during the course of
the state proceedings." Farrell v. Lane, 939 F.2d 409, 410 (7th Cir.
1991), quoting Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988).
If the answer to either of these questions is "no," then the failure to
exhaust state remedies or procedural default bars the petition. Id. In
other words, if a petitioner fails to give the state courts a full and
fair opportunity to review his claims, then his petition must fail.
Bocian v. Godinez, 101 F.3d 465, 468-69 (7th Cir. 1996).
Exhaustion of a federal claim occurs when it has been presented to the
highest state court for a ruling on the merits or when it could not be
brought in state court because a remedy no longer exists when the federal
petition is filed. Id. In the present case, Respondent does not argue that
Petitioner has failed to exhaust his state remedies.
Procedural default occurs when a claim could have been but was not
presented to the state court and cannot, at the time the federal petition
is filed, be presented to the state court. Resnover v. Pearson,
965 F.2d 1453, 1458 (7th Cir. 1992). This occurs in one of two ways.
First, a procedural default may occur when a petitioner fails to pursue
each appeal required by state law, Jenkins v. Gramley, 8 F.3d 505, 507-08
(7th Cir. 1993), or when he did not assert the claim raised in the
federal habeas petition in the state court system. Resnover, 965 F.2d at
1458-59. The second way in which a petitioner may procedurally default a
claim is when a state court disposes of the case on an independent and
adequate state law ground, regardless of whether that ground is
substantive or procedural. Coleman v. Thompson, 501 U.S. 722,
111 S.Ct. 2546, 2553-55 (1991).
Federal review is barred for claims that are procedurally defaulted
unless the petitioner can demonstrate cause and prejudice. Engle v.
Isaac, 456 U.S. 107, 102 S.Ct. 1558, 1572-73 (1982); Farrell, 939 F.2d at
411. Review in federal court is also possible if otherwise a fundamental
miscarriage of justice would occur in that a constitutional error
probably resulted in the conviction of someone who is actually innocent.
Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 864-67 (1995).
With respect to claims that are not barred either for failure to
exhaust or procedural default, federal courts must employ a strict
analysis. A petition must be denied with respect to any claim previously
adjudicated on the merits in a state court unless the decision of the
(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 Lindh v. Murphy, 96 F.3d 856, 868-71
(7th Cir. 1996), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059
Subsection (d)(1) instructs that Supreme Court precedent governs legal
questions. Id. at 869. In resolving mixed questions of law and fact,
relief is unavailable unless "the state's decision reflects an
unreasonable application of the law," meaning federal courts are to have
a hands-off attitude unless the state court judgment is premised on an
unreasonable error. Id. at 870 (internal quotation marks omitted). A
responsible, thoughtful decision that is made after a full opportunity to
litigate suffices, "even if it is wrong." Id. at 871, 876-77. Subsection
(d)(2) pertains to a decision constituting an unreasonable determination
of the facts, and, according to 28 U.S.C. § 2254(e)(1), factual
issues are presumed to be correctly resolved. A petitioner must rebut
this presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
I. Wilson's First Claim is Without Merit
In his first claim, Wilson alleges that his trial counsel provided
ineffective assistance during his sentencing hearing. The seminal case on
ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668
(1984). In Strickland, the Court stated that in order for a prisoner to
demonstrate that counsel's performance fell below the constitutional
standard, the petitioner would have to show that "counsel's
representation fell below an objective standard of reasonableness."
Strickland, 466 U.S. at 687-88. A prisoner must also prove that he has
been prejudiced by his counsel's representation by showing "a reasonable
probability that but for counsel's unprofessional errors, the result of
the proceeding would have been different." Id. at 694. The courts,
however, must "indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance." Id. at
690. "Judicial scrutiny of a counsel's performance must be highly
deferential" and "every effort [must] be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's
perspective at the time." Id. at 689.
Wilson argues that he suffers from myriad major mental-health
problems, including organic frontal-lobe brain dysfunction, which has many
behavioral correlates that are purportedly relevant to his homicidal
behavior in this case. He contends that his trial counsel failed to
investigate and present mitigating evidence relating to this dysfunction
at his capital sentencing hearing and also failed to present evidence
from a long-time friend, Michele Ritza ("Ritza").
However, Wilson makes no reference to a claim regarding the testimony
of Ritza in either his Memorandum or Traverse. Accordingly, this aspect
of his argument is waived, and only the purported failure to present
mitigating evidence relating to his organic frontal-lobe brain
dysfunction will be addressed.
Wilson raised the issue of ineffective assistance of counsel for
failure to investigate and introduce evidence of his mental health
condition as mitigation on appeal from the denial of his post-conviction
petition. In addressing this claim, the Illinois Supreme Court held:
Defendant alleges that he was denied the effective
assistance of counsel when his attorney failed to
investigate defendant's mental condition and to use
the evidence he would have discovered . . . as
mitigation during defendant's sentencing hearing. To
support these claims, defendant requested that the
trial court appropriate funds to allow him to hire an
expert. Defendant explained that his medical records
and examinations by other experts reveal that he needs
to be examined by a neuropsychiatrist.
In support of his motion, defendant attached medical records that
include a notation that defendant should be evaluated for temporal lobe
epilepsy "as a possible cause of rage attacks." Defendant also attached
affidavits from Harry Gunn, a clinical psychologist, and Jonathan Hess, a
Gunn's affidavit states that
"neuropsychological testing is highly recommended." Hess's affidavit
states that, since childhood, defendant has suffered from a seizure
disorder and that defendant has never been diagnosed or treated by a
behavioral neurologist or neuropsychiatrist who is "educated in the
psychiatric consequences of seizure disorders." Defendant's history
reveals that violent behavior often follows one of his seizures. Based
upon his examination of defendant, Hess believes that defendant suffers
from "epipsodic discontrol," or rage attacks. A person suffering from a
rage attack "would be unable to control his behavior or to conform his
behavior to the requirements of the law." Finally, Hess states that, to
properly diagnose defendant, "either a behavioral neurologist (who is also
an epileptologist) or a neuropsychiatrist" will have to conduct a 24-hour
Defendant therefore requested funding for an ambulatory EEG.
Defendant's attorney averred that he had contacted Dr. Lyle Rossiter,
Jr., who had agreed to perform an ambulatory EEG and to examine and
evaluate defendant. The cost for the test, test interpretation, and
evaluation of defendant totaled $3,786. The trial court denied
defendant's motion to retain Dr. Rossiter. On appeal, defendant contends
that the trial court abused its discretion in denying this motion.
Trial courts are permitted to exercise a great deal of discretion in
resolving post-conviction petitions. This is done to ensure that
defendant are permitted an opportunity to advance claims of
constitutional deprivation. Whether to allow a defendant's motion for the
appointment of an expert in a post-conviction proceeding is a matter that
lies within the trial court's discretion. The key ...