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U.S. EX REL. PERKINS v. MOTE

March 24, 2003

UNITED STATES OF AMERICA EX REL. BRYON PERKINS (#B62956), PETITIONER,
v.
STEVEN D. MOTE,[FN1] WARDEN, PONTIAC CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: John W. Darrah, United States District Court Judge

Petitioner Bryon Perkins, a prisoner in state custody, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, his request for relief under § 2254 is denied.

I. FACTS AND PROCEDURAL HISTORY

Under 28 U.S.C. § 2254(e)(1), unless a petitioner provides clear and convincing evidence to the contrary, a determination of a factual issue by the state court is presumed correct for the purposes of habeas review. Davis v. Litscher, 290 F.3d 943, 946 (7th Cir. 2002). Perkins has not presented clear and convincing evidence rebutting the presumption of factual correctness; therefore, this court will adopt the Illinois Appellate Court's recitation of the facts in People v. Perkins, No. 95-0648 (1st Dist. May 12, 1997) (unpublished order).

Following a jury trial in the Circuit Court of Cook County, Perkins was convicted of one count of first degree murder, two counts of attempt first degree murder, and three counts of armed robbery. The court sentenced Perkins to natural life for the first degree murder conviction and to five consecutive terms of 30 years imprisonment for the remaining convictions.

On direct appeal, Perkins raised five issues, including: (1) the trial court erred in denying defense counsel's request for a fitness hearing or in the alternative, counsel was constitutionally ineffective for failing to explain to the Hal court that Perkins' psychological reports were old; (2) he was denied his constitutional right to confront witnesses because he spent the first day of trial in lockup listening to the trial via microphone; (3) the trial court denied him the right to a fair trial by failing to grant defense counsel's request for a continuance; (4) he was prejudiced by the State's improper opening statement and rebuttal closing argument; and (5) the trial court failed to adequately address his allegations of ineffective assistance of counsel that he asserted at his sentencing hearing. On May 12, 1997, the Illinois Appellate Court affirmed the judgment of the trial court.

Perkins filed a petition for leave to appeal to the Illinois Supreme Court bringing three claims: (I) the trial judge did not have discretion to allow Perkins to absent himself from court during the first day of his trial; (2) the appellate court erred in approving the trial judge's denial of counsel's request for a continuance; and (3) the appellate court erred in approving the trial court's denial of Perkins' allegations of ineffective assistance of counsel that he made at sentencing. The Illinois Supreme Court denied Perkins' petition for leave to appeal on October 1, 1997.

On January 5, 1998, Perkins filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1. On February 4, 1998, the Circuit Court of Cook County dismissed the petition without a hearing. Perkins did not appeal the denial of his Illinois post-conviction petition to the Illinois Appellate Court or file a petition for leave to appeal the Illinois Supreme Court.

Perkins filed his habeas petition with this court on November 30, 1998, bringing the following claims: (1) ineffective assistance of trial and appellate counsel; (2) due process violations due to an impartial judge; (3) Sixth Amendment violations based on the denial to confront witnesses; (4) prosecutorial misconduct; (5) the trial court failed to adequately address his allegations of ineffective assistance of counsel that he made at sentencing; (6) the trial court's denial of a continuance violated his Sixth Amendment right to present a defense; and (7) the trial court abused its discretion when it denied him a fitness hearing.

II. PROCEDURAL DEFAULT

A. STANDARD

Before reviewing the Illinois Appellate Court's merits decision, this court must determine whether Perkins presented his federal habeas claims to the state courts because claims not presented to the state's highest court are procedurally defaulted. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999);*fn2 Mahaffey v. Schomig, 294 F.3d 907, 914-15 (7th Cir. 2002). In other words, a habeas petitioner's failure to pursue a discretionary appeal to the state's highest court, in this case a petition for leave to appeal the Illinois Supreme Court, constitutes a procedural default barring federal habeas corpus review. See Boerckel, 526 U.S. at 845.

A federal court may not grant habeas relief on a procedurally defaulted claim unless the petitioner can establish cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Mahaffey, 294 F.3d at 915. The existence of "cause" to overcome procedural default requires a showing of an external objective impediment that prevented the petitioner from making his claim. See Murray v. Carrier, 477 U.S. 478, 488, 492 (1986). Examples of "external objective impediments" include the unavailability of a factual or legal basis for the claim at the time of the habeas filing or interference by state officials. See id. at 488.

B DIRECT APPEAL CLAIMS DEFAULTED

Although Perkins made five arguments on direct appeal, he only made three arguments m his petition for leave to appeal the Illinois Supreme Court. Accordingly, only the claims made to the Illinois Supreme Court survive procedural default. See Boerckel, 526 U.S. at 845 (failure to pursue discretionary appeal to the Illinois Supreme Court constitutes procedural default). The defaulted claims include allegations of an impartial judge, prosecutorial misconduct, and the trial court's denial of a fitness hearing or in the alternative that counsel was ineffective by not explaining to the trial court that Perkins' psychological reports were old. Perkins gives no explanation for the default, that is, cause and prejudice or that a fundamental miscarriage of ...


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