appeal but were not relitigated in his post-conviction petition.
A court in the Northern District of Illinois has recently concluded
that such a course constitutes a waiver of the claims raised on direct
appeal. Leflore v. Clark, No. 99 C 3002, 2002 WL 31761396 (December 10,
2002) (holding that the claims could not be considered unless petitioner
showed cause and prejudice). This Court disagrees.
The Seventh Circuit has long held that the filing of a post-conviction
petition in Illinois is futile, because of res judicata and waiver, when a
petitioner raises the same issues already rejected by the Illinois courts
on direct review. Britz v. Thieret, 940 F.2d 226, 229 (7th Cir. 1991).
"The exhaustion requirement for federal habeas review requires petitioner
fairly to present the merits of their claims to the state courts; it does
not require them to partake of futile gestures." Britz, 940 F.2d at 229.
The only time a petitioner must file a post-conviction petition is when
"`there is direct precedent indicating that under the particular
circumstances of a prisoner's case the waiver [and res judicata]
doctrine[s] will be relaxed.'" Perry v. Fairman, 702 F.2d 119, 121 (7th
Cir. 1983) (quoting Williams v. Brantley, 502 F.2d 1383, 1386 (7th Cir.
1974). The Supreme Court's holding in O'Sullivan v. Boerckel, 526 U.S. 838,
844 (1999) does not change § 2254 jurisprudence in this respect.
Boerckel answered a question not at issue here — whether "a
prisoner must seek review in a state court of last resort when that court
has discretionary control over its docket." Boerckel, 526 U.S. at 843.
The Supreme Court indicated that prisoners are only required to give
state courts "one complete round of the State's established appellate
review process." Boerckel, 526 U.S. at 845 (reiterating that prisoners do
not have to "ask the state for collateral relief, based on the same
evidence and issues already decided by direct review" in order to satisfy
28 U.S.C. § 2254(c) (quoting Brown v. Allen, 344 U.S. 443, 447
This Court sees no reason to distinguish between a petitioner who
avoids the Illinois post-conviction proceedings altogether and a
petitioner who utilizes the proceedings but omits those claims already
raised on direct appeal. Petitioner has not procedurally defaulted the
first three claims of his federal habeas petition simply because he did not
revive them in his Illinois post-conviction petition.
A. Denial of the Right of Confrontation
Petitioner claims he was convicted in violation of the Sixth and
Fourteenth Amendments because he was denied the right to confront
the confidential informant. The Court must first determine whether
Petitioner's claim is procedurally barred. This claim was raised in both
the Illinois Appellate Court and in the Petition for Leave to Appeal to
the Illinois Supreme Court and may be evaluated on its merits.
The trial court denied Petitioner's pretrial motion to disclose the
identity of the informant. According to McCray v. State of Illinois,
386 U.S. 300 (1967), there is no constitutional right to the pretrial
disclosure of an informant. Therefore, the trial court's decision was not
"contrary to" or "an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States."
28 U.S.C. § 2254(d).
At trial, the Petitioner filed a motion to produce the informant. The
trial court denied the motion noting that while the search warrant's
description of "Jose" did not fit Petitioner, the State had already
stipulated that Petitioner was not "Jose" and had not sold cocaine to the
informant. The court found that although the informant was more than a
"mere tipster,"the informant's identity was not crucial to the defense
because Petitioner was charged with possession of cocaine and not with
the sale that took place between "Jose" and the informant. The trial
court reviewed the confidential informant's file and determined that the
informant's life would be in jeopardy if his identity were disclosed and
stated that it had balanced Petitioner's right to a fair trial against
the State's right to information from its confidential source. On
appeal, the Illinois Appellate Court affirmed the trial court's decision
noting that the trial court had correctly identified and balanced the
factors articulated in Roviaro v. United States, 353 U.S. 53, 62 (1957).
Petitioner does not claim that the state court's denial of his motion
to produce the informant at trial was "contrary to" Supreme Court
precedent — he just seeks another bite at the apple. In Roviaro, the
Supreme Court tackled the confidential informant question and decided
that courts need to balance "the public interest in protecting the flow of
information against the individual's right to prepare his defense."
Roviaro, 353 U.S. at 62. Decisions must be made on a case-by-case
basis, "taking into consideration the crime charged, the possible
defense, the possible significance of the informer's testimony and other
relevant factors." Id. "Where the disclosure of an informer's identity,
or of the contents of his communication, is relevant and helpful to the
defense of an accused, or is essential to a fair determination of a
cause, the privilege must give way." Id. at 60-61.
Here, the trial court balanced these factors. It concluded the
informant's testimony regarding the sale in Petitioner's home was not
significant to the defense because Petitioner was being tried under a
theory of constructive possession. In Illinois, constructive possession
exists when there is an intent and capability to maintain control and
dominion over a controlled substance. People v. Frieberg, 147 Ill.2d 326,
361, 589 N.E.2d 508, 524, 168 Ill. Dec. 108, 124 (Ill. 1992). More than
one person can constructively possess the same substance. People v.
Schmalz, 194 Ill.2d 75, 82, 740 N.E.2d 775, 779, 251 Ill. Dec. 489, 493
(Ill. 2000) (holding that if "two or more persons share immediate and
exclusive control or share the intention and power to exercise control,
then each has possession"). Petitioner presented neither evidence nor
argument that the informant would testify, based on the single drug
transaction with "Jose," that Petitioner did not exert control and
dominion over the cocaine located in the crawlspace of his basement.*fn4
The trial court also concluded the informant's life was in jeopardy.
The purpose of the "informer's privilege" is to encourage and protect
those "citizens who communicate their knowledge of the commission of
crimes to law-enforcement officials." Roviaro, 353 U.S. at 59. The trial
court's decision was based on factors articulated in Roviaro and was not
"contrary to" federal law. In addition, the court's application of the
factors was not unreasonable. 28 U.S.C. § 2254(d).
B. Invalid Search Warrant
Petitioner alleges the search warrant was defective because the
complaint, upon which it was based, was vague and uncorroborated.
Petitioner's second claim is similar to his third claim (denial of a
Franks hearing). However, the second claim was never raised independently
in either Petitioner's direct appeal or post-conviction petition. As a
result, this claim has been procedurally defaulted. Petitioner did not
acknowledge the default and made no argument regarding cause or
prejudice. In addition, Petitioner did not argue actual innocence. Schlup
v. Delo, 513 U.S. 298, 329 (1995); Rodriguez, 193 F.3d at 917. Based on
the evidence presented at trial, there is no reason to believe that
Petitioner is an innocent man who has been wrongly convicted.
The officers testified to finding cocaine in the crawlspace of
Petitioner's home and Petitioner admitted to possessing the cocaine with
the intent to sell it. There has been no fundamental miscarriage of
C. Denial of Franks Hearing
Petitioner claims he was denied a hearing pursuant to Franks v.
Delaware, 438 U.S. 154 (1978) in violation of the Fourth and Fourteenth
Amendments. This claim was raised in both the Illinois Appellate Court
and in the Petition for Leave to Appeal to the Illinois Supreme Court.
The Fourth Amendment requires a trial court to hold a Franks hearing if
a defendant can make a preliminary showing that (1) a search warrant
affidavit contained false information; (2) the false information was
included in the affidavit intentionally or with reckless disregard for
the truth; and (3) that the misrepresentations were necessary to the
determination of probable cause to issue the warrant. Franks, 438 U.S. at
155-56. If, when "the affidavit's false material is set to one side, the
affidavit's remaining content is insufficient to establish probable
cause, the search warrant must be voided and the fruits of the search
Franks, 438 U.S. at 156.
Normally, "where the State has provided an opportunity for full
and fair litigation of a Fourth Amendment claim, the Constitution does
not require that a state prisoner be granted habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or seizure
was introduced at his trial." Stone v. Powell, 428 U.S. 465, 482 (1976).
A habeas petitioner has received an opportunity for full and fair
litigation of his fourth amendment claim when:
(1) the petitioner has clearly informed the state
court of the factual basis for that claim and has
argued that those facts constitute a violation of the
petitioner's fourth amendment rights and (2) the state
court has carefully and thoroughly analyzed the facts
and applied the proper constitutional case law to the
Pierson v. O'Leary, 959 F.2d 1385, 1391 (7th Cir. 1992).
The record reveals that Petitioner clearly presented the factual basis
for his Fourth Amendment claim and fully litigated it before the Illinois
courts. At trial, Petitioner filed two Franks motions, accompanied by
affidavits, arguing that he was never called "Jose" and did not sell
narcotics in his home on February 1, 1995. In Petitioner's second
Franks motion, he attached another affidavit adding that his home,
excluding the garage, was rented from Jose Chaidez. Petitioner's wife's
second affidavit stated that she left the house
three times on February 1,
1995.*fn5 The trial court examined the affidavits from Petitioner and his
wife and the search warrant complaint and concluded Petitioner failed to
make the substantial preliminary showing necessary to obtain a Franks
hearing. After reviewing the applicable body of law, the Illinois appellate
court upheld the trial court's decision.
As Petitioner had an opportunity for "full and fair litigation" of his
Fourth Amendment claim, he is not entitled to federal habeas review of
his claim. Stone, 428 U.S. at 482.
D. Ineffective Assistance of Trial Counsel
Petitioner asserts that his Sixth Amendment right to effective
assistance of counsel was violated. This claim was first raised in
Petitioner's post-conviction petition. The petition was summarily
dismissed by the trial court.
Generally, in post-conviction proceedings, all issues actually decided
on direct appeal are res judicata, and all issues which could have been
raised in the original proceeding, but were not, are waived. People v.
Mahaffey, 194 Ill.2d 154, 170, 742 N.E.2d 251, 261, 252 Ill. Dec. 1, 11
(Ill. 2000). However, where facts relating to the issue of incompetency
do not appear of record, the waiver rule is relaxed. People v. Orange,
168 Ill.2d 138, 149, 659 N.E.2d 935, 940, 213 Ill. Dec. 589, 594 (Ill.
Here, Petitioner asserts his counsel was ineffective because he (1)
failed to interview potentially favorable witnesses (2) conditioned
assistance on payment and (2) was being investigated by the Attorney
Registration and Disciplinary Commission (ARDC). This claim was properly
raised in the post-conviction petition.*fn6 People v. Coleman,
267 Ill. App.3d 895, 898-199, 642 N.E.2d 821, 824, 204 Ill.Dec.920, 923
(Ill.App.Ct. 1994) (holding claim that counsel was ineffective for
failing to call five witnesses was properly raised in a post-conviction
petition rather than on direct appeal); People v. Sanchez,
329 Ill. App.3d 59, 67, 768 N.E.2d 99, 106, 263 Ill. Dec. 339, 346
(Ill.App.Ct. 2002) (stating that a claim for ineffective assistance based
on an ARDC investigation is generally reserved for post-conviction
petition); Gornick v. Greer, 819 F.2d 160, 161 (7th Cir. 1987)
(recognizing that ineffective assistance claims involving failure to
present witnesses can be raised in a post-conviction petition).
Petitioner appealed the dismissal of his petition to the Illinois
Appellate Court and filed a Petition for Leave to Appeal, raising the same
issue, to the Illinois Supreme Court. Petitioner has not defaulted his
claim for ineffective assistance of counsel. See Cruz v. Warden of
Dwight Correctional Center, 907 F.2d 665, 669 (7th Cir. 1990).
Petitioner alleges his trial counsel was ineffective because he failed
to interview three witnesses who, Petitioner claimed, would have
testified the cocaine was discovered in the garage. The state court found
the argument unpersuasive for two reasons. First, Petitioner failed to
support his claim with affidavits from these witnesses. Second, if the
witnesses had so testified at trial, Petitioner's wife's testimony
dominion and control over the garage was
sufficient to support a constructive possession conviction even under
Petitioner sought to bolster his claim by alleging counsel conditioned
his assistance on the payment of fees and provided ineffective assistance
because he was working under the strain of an ARDC investigation.
Petitioner alleged these elements influenced counsel's decision to not
interview the favorable witnesses described above.
Having already determined Petitioner was not prejudiced by the absence
of the witnesses' testimony at trial, the state court found conjecture as
to why counsel failed to interview the witnesses superfluous.
In order to prevail on his ineffective assistance of counsel claim,
Petitioner must establish (1) attorney's performance fell below an
objective standard of reasonableness and (2) that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. See Strickland v. Washington,
466 U.S. 668, 687 (1984). A "reasonable probability is a probability
sufficient to undermine the confidence in the outcome." Williams v.
Davis, 301 F.3d 625, 631-632 (7th Cir. 2002) quoting Strickland, 466
U.S. at 694. However, "because counsel is presumed effective, a party
bears a heavy burden in making out a winning claim based on ineffective
assistance of counsel." United States v. Trevino, 60 F.3d 333, 338 (7th
Both the Supreme Court and the Seventh Circuit have recommended that if
it is easier to dispose of the ineffective assistance claim on the
prejudice prong of the Strickland test, prejudice should be addressed
first. Such a course of action would obviate the need to rule on the more
difficult and elusive question of performance. Strickland, 466 U.S. at
697; United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1014 (7th
Under 2254(d)(1), Petitioner must prove that Strickland was not applied
or that Strickland was applied in an objectively unreasonable manner.
Bell, 122 S.Ct. at 1852. The Illinois Appellate Court upheld the summary
dismissal of the claim because Petitioner failed to prove he was
prejudiced by his counsel's actions. Having determined that Strickland was
applied, this Court is left to evaluate whether that application was
This Court finds the application reasonable. Petitioner's attempt
to prove prejudice via hypothetical witnesses and a legally insignificant
theory falls short of the Strickland standard. Petitioner failed to prove
he was prejudiced by his counsel's allegedly ineffective assistance.
E. Ineffective Appellate Counsel
Petitioner also claimed his appellate counsel was ineffective for
failing to argue the trial court erred when it excluded evidence
supporting the defense's theory that the cocaine belonged to Petitioner's
landlord. This claim was raised for the first time when Petitioner
appealed the dismissal of his post-conviction petition. The Illinois
Appellate Court held the claim was waived because Petitioner failed to
raise it in the original post-conviction petition. See 725 ILL. COMP.
STAT. § 5/122-3 (stating that "any claim of substantial denial of
constitutional rights not raised in the original or an amended petition is
waived"). Because a state court declined to reach the merits of the
petitioner's claim, the waiver constitutes an independent and adequate
state-law ground and bars federal habeas relief unless Petitioner can
show cause and prejudice. See Coleman v. Thompson, 501 U.S. 722,
(1991). Petitioner makes no effort to show cause and prejudice
but requests the Court review the claim to prevent a fundamental
miscarriage of justice.
Again, the strength of the evidence introduced at trial is clear.
Petitioner claims the trial court prevented him from introducing evidence
that (1) the cocaine came from the garage — not the basement; and (2)
Petitioner's family and his landlord enjoyed joint access to the garage.
The trial court allowed Petitioner's wife and ten-year-old son to
testify that officers brought a box of cocaine into the house from
outside.*fn7 The trial court refused additional testimony on the issue
because even if the cocaine was found in the garage, Petitioner's
possession of a garage key and his use of the building was sufficient
evidence to conclude that Petitioner exerted dominion and control over
the garage. There is no reason to believe the appellate counsel's
decision to not appeal the court's ruling fell below the Strickland
standard of reasonable competence. Strickland, 466 U.S. at 689-90.
Because there is nothing to show that Petitioner was wrongly convicted,
or in fact denied meaningful representation on appeal, the Court risks no
fundamental miscarriage of justice by insisting that Petitioner should
have presented his claims in the original post-conviction petition.
Ergo, the Petition for Writ of Habeas Corpus is DENIED.
*fn2 Although this Petitioner requests relief under 28 U.S.C. § 2241,
this Court will address the petition under 28 U.S.C. § 2254. The
United States Supreme Court has held that "authority to grant habeas
relief to state prisoners is limited by § 2254." Felker v. Turpin,
518 U.S. 651, 662 (1996). Section 2254 and "all associated statutory
requirements apply no matter what statutory label the prisoner has given
the case." Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000), "Roughly
speaking . . . § 2254 [is] the exclusive vehicle for prisoners in
custody pursuant to a state court judgment who wish to challenge anything
affecting that custody, because . . . bringing an action under § 2241
will not permit the prisoner to evade the requirements of § 2254."
Walker, 216 F.3d at 633.
*fn3 The Clerk of the Court received the petition for habeas corpus and
a motion to proceed in forma pauperis on June 11, 1999. The motion to
proceed in forma pauperis was filed and subsequently denied. On July 22,
1999, the case was inadvertently dismissed. The Petitioner eventually
paid the $5.00 filing fee and the petition for writ of habeas corpus
should have been filed on the date the payment was received —
August 11, 1999. It was not and the error was not discovered until April
4, 2002. Although April 4, 2002 is imprinted on the face of the
petition, the Court is treating the petition as if it was filed on August
*fn4 The facts of this case are markedly different from Roviaro. Here,
the informant was neither a participant in nor a witness to the crime
charged. Cf. Roviaro, 353 U.S. at 64 (holding the trial court committed
prejudicial error by permitting the Government to withhold the identity
of an informant who participated in the crime charged and who could
offer highly relevant testimony).
*fn5 Petitioner's wife's earlier affidavit indicated she never left the
house on February 1, 1995.
*fn6 The trial court apparently drew this conclusion because instead of
stating Petitioner's claim was waived, the trial court summarily dismissed
the petition for failure to state the gist of a meritorious constitutional
claim — a showing necessary to survive dismissal. See People v.
Gaultney, 174 Ill.2d 410, 418 (Ill. 1996).
*fn7 Another witness testified that from where Petitioner's wife was
sitting at the time, she would have been unable to determine whether the
officers brought the box from the basement or the garage. The balance
of the evidence indicated the cocaine was seized from Petitioner's