Court of Cook County dismissed his petition for post-conviction
relief as frivolous and without merit. Particularly, Willhite claims that
the court should have held an evidentiary hearing before dismissing his
claim. Respondent argues that these claims should be dismissed because
there is no federal constitutional right to state collateral review.
As a rule, a prisoner has no federal, constitutional right to an
evidentiary hearing on a post-conviction petition that he files in state
court. Zamora v. Pierson, 158 F. Supp.2d 830, 835 (N.D. Ill. 2001). The
Constitution does not require states to provide a post-conviction
proceeding to individuals who are convicted of crimes. Id. (citing
Pennsylvania v. Finley, 481 U.S. 551, 556 (1987); United States v.
MacCollom, 426 U.S. 317, 323 (1976)). An alleged deprivation of rights in
a state post-conviction proceeding cannot provide the basis for federal
habeas relief under 28 U.S.C. § 2254, which is available only for
violations of federal law that occur during a criminal conviction in
state court. United States ex rel. Thomas v. Haws, No. 97 C 7992, 2002 WL
199778, at *3 (N.D. Ill. Feb. 7, 2002) (citing Moran v. Sondalle,
218 F.3d 647, 650-51 (7th Cir. 2000)). Federal habeas corpus cannot
provide relief from error in a state collateral proceeding where the error
has nothing to do with the reason for the defendant's confinement.
Jackson v. Duckworth, 112 F.3d 878, 879 (7th Cir. 1997).
However, federal habeas corpus can provide relief from errors in state
collateral review when the process violates some separate constitutional
right. Id. Willhite argues that the circuit court's failure to hold an
evidentiary hearing on his post-conviction petition prevented him from
asserting his claims that: (1) he was actually innocent, based on
newly-acquired evidence; (2) his trial counsel was ineffective, for
failing to investigate that evidence before trial; and (3) the
prosecution presented perjury in its case against him. In dismissing the
petition, the circuit court held that Willhite's offered evidence was not
newly-acquired, as a matter of law. Additionally, the court held that
Willhite had waived his perjury arguments by not asserting them on direct
appeal and that he had not provided the necessary affidavits —
required by Illinois law — to support his ineffective assistance of
counsel claim. (Resp't Ex. F at 1-9.)
As a preliminary matter, the court finds that the circuit court needed
no evidentiary hearing to reach its decisions as to Willhite's perjury
and ineffective assistance of counsel claims. The circuit court disposed
of those claims based upon Illinois procedural grounds and did not
consider the merits of those claims. A federal habeas petitioner has no
federal constitutional right to have claims heard that the state court
disposed of on state procedural grounds. See Farmer v. Litscher,
303 F.3d 840, 846 (7th Cir. 2002) (stating rule that a federal habeas
court will not review issues that the state court resolved based upon an
independent and adequate state law ground).
Additionally, the circuit court's refusal to hold an evidentiary
hearing on Willhite's new evidence did not constitute a deprivation of a
federal constitutional right. As a rule, "`claims of actual innocence
based on newly discovered evidence have never been held to state a ground
for federal habeas relief absent an independent constitutional violation
occurring in an underlying state criminal proceeding.'" United States ex
rel. Miller v. Bensko, No. 02 C 4125, 2002 WL 31061178, at *6 (N.D. Ill.
Sept. 17, 2002) (quoting
Herrera v. Collins, 506 U.S. 390, 400 (1993)).
See also United States ex rel. Burgos v. O'Sullivan, No. 96 C 7846, 2000
WL 1035993, at *12 (N.D. Ill. July 24, 2000) (noting that a claim of
actual innocence does not constitute a substantive claim for habeas
relief). Federal courts reviewing a collateral attack on a conviction may
consider a petitioner's new evidence of a constitutional violation, but
may not consider new evidence that merely supports the petitioner's,
claim of innocence. United States v. Evans, 224 F.3d 670, 674 (7th Cir.
Here Willhite argues only that his new evidence demonstrates that he is
not guilty. He does not argue that he has new evidence of any
constitutional violation that occurred during his trial. Furthermore,
Willhite's evidence sheds, no light upon his hearsay claim, which the
court has discussed supra Sect. II.C.1. Accordingly, the court finds that
Willhite has failed to assert a claim that the state court's dismissal of
his post-conviction petition violated a federal constitutional right.
Consequently, the court concludes that Willhite asserts no federal
constitutional claim regarding his state court post-conviction petition.
Therefore, the court finds that Willhite's claims regarding the state
court's dismissal of his petition for post-conviction relief are
non-cognizable. See Zamora, 158 F. Supp.2d at 836 (holding that errors in
state post-conviction proceedings do not raise constitutional questions
that are cognizable in federal habeas proceedings). Accordingly, the
court grants respondent's motion to dismiss as to these claims.
b. Willhite's Right to Counsel Claim
Willhite claims that his right to counsel was violated when he did not
receive effective assistance of counsel on appeal of his state court
post-conviction petition. Particularly, Willhite argues that his counsel
was defective when he: (1) failed to properly pursue the appeal; (2)
failed to confer with Willhite regarding the appeal; (3) failed to raise
issues that Willhite asked him to raise; and (4) withdrew after
deliberately misleading Willhite. Respondent argues that such claims are
not cognizable and should be dismissed.
In Pennsylvania v. Finley, the Supreme Court held that the Sixth
Amendment right to counsel does not attach to collateral post-conviction
proceedings. United States ex rel. Eagle v. Gramley, No. 95 C 7168, 1999
WL 286086, at *7 (N.D. Ill. Apr. 27, 1999) (citing Pennsylvania v.
Finley, 481 U.S. 551 (1987)). Furthermore, the Antiterrorism and
Effective Death Penalty Act states, "The effectiveness or incompetence of
counsel during Federal or State collateral post-conviction proceedings
shall not be a ground for relief in a proceeding under [the act]."
28 U.S.C. § 2254(i).
In this case, Fredrick Weil ("Weil") of the office of the Public
Defender of Cook County was appointed to represent Willhite on appeal of
his post-conviction petition. Although, apparently, Willhite was unable
to contact Weil by telephone, Weil wrote letters to Willhite in which
Weil explained the status of the appeal. Ultimately, however, Weil sought
leave to withdraw, after reviewing the record and finding no appealable
issues. He filed a motion pursuant to Pennsylvania v. Finley and a
supporting brief in which he summarized Willhite's claims and explained
why none of them constituted a valid claim for post-conviction relief. On
June 19, 2000, after allowing Willhite to file a pro-se brief, the
Appellate Court of Illinois granted Weil's motion and affirmed the circuit
court's decision dismissing Willhite's post-conviction petition.
All of Willhite's claims regarding Weil are non-cognizable. Willhite
had no right to counsel in a collateral proceeding and Weil's
withdrawal, as well as his other actions, did not, therefore, constitute
a violation of a constitutional right. See United States ex rel. Burrell
v. Page, No. 99 C 4980, 2001 U.S. Dist. LEXIS 3143, at *43-*44 (N.D.
Ill. Mar. 15, 2001) (not cited on Westlaw) (holding that effective
assistance of counsel claim based on withdrawal of state post-conviction
appellate counsel did not state a ground for habeas relief) (citing
Coleman v. Thompson, 501 U.S. 722, 752 (1991)). See also Howard v.
O'Sullivan, 185 F.3d 721, 725 (7th Cir. 1999) (holding that petitioner
had never had a constitutional right to post-conviction counsel and,
therefore, ineffectiveness by post-conviction counsel could not have
given rise to a constitutional injury).
Therefore, the court concludes that Willhite's claims regarding his
post-conviction counsel are non-cognizable. Consequently, the court grants
respondent's motion to dismiss these claims.
For the foregoing reasons, the court grants in part and denies in part
respondent's motion to dismiss.