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April 8, 2003


The opinion of the court was delivered by: James F. Holderman, United States District Judge.


On January 30, 2003, petitioner Louis James Kirk, a.k.a. Cinque Lewis ("Lewis"), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, Lewis' petition for habeas relief is denied.


Petitioner Lewis is currently a prisoner of the State of California under the name of James Kirk, but is subject to future incarceration in Illinois for a term of life imprisonment. On March 13, 1991, following a jury trial, Lewis, under the name of Cinque Lewis, was convicted in the Circuit Court of Cook County of murder and armed robbery. Thereafter, Lewis was sentenced to death on the murder conviction and to a term of thirty years imprisonment for the armed robbery conviction. Lewis appealed to the Illinois Supreme Court, arguing, among numerous allegations which this court need not list, that Lewis was deprived a fair trial when evidence was admitted that the victim was five months pregnant at the time of her death. The Illinois Supreme Court affirmed the convictions for murder and armed robbery, and the thirty year sentence as to the armed robbery conviction, but reversed the death sentence and remanded the matter to the trial court for a new sentencing hearing. See People v. Lewis, 165 Ill.2d 305, 651 N.E.2d 72 (1995).

Upon remand, Lewis was sentenced to a term of natural life imprisonment. Lewis appealed his sentence to the Illinois Appellate Court, First District, and on September 28, 2001, the Illinois Appellate Court affirmed Lewis' sentence of natural life imprisonment. See People v. Lewis, 325 Ill. App.3d 435, 758 N.E.2d 438 (1st Dist. 2001). Next, Lewis sought leave to appeal to the Illinois Supreme Court, and on February 6, 2002, the Illinois Supreme Court denied Lewis' leave to appeal. Lewis' instant petition for writ of habeas corpus was filed on January 20, 2003, and raises the following claims: (1) whether the introduction of evidence that the victim was five months pregnant at the time of her death deprived Lewis of a fair trial under the due process clause, and (2) whether Lewis was deprived of his Sixth Amendment right to an impartial jury because the jurors were not questioned regarding the fact that the victim's pregnancy would be brought into evidence at trial.


A petitioner is required to exhaust the remedies available in the state court unless there is an absence of an available state corrective process or circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254 (b)(1)(A). Once a petitioner exhausts his state court remedies, he may seek federal habeas review of his claims if they allege he is being held in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254 (a). Before reviewing the substance of a petitioner's claim, the court must first address whether any of the claims have been procedurally defaulted. Procedural default can occur in three ways: (1) when the petitioner presents an issue within a petition never before presented to the state court for review, see Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995), (2) when the petitioner failed to properly and fairly raise the federal element of an issue to the state court for review, see Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992), (3) when the state court previously disposed of an issue on an independent and adequate state law ground, such as a state procedural bar, see Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546 (1991); Braun v. Powell, 227 F.3d 908, 912 (7th Cir. 2000). The state court must have "clearly and expressly" relied on procedural default as the basis of its ruling. Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038 (1989).

Federal courts may only review a defaulted claim if the petition shows cause for failure to raise the claim at the appropriate time and actual prejudice resulting from such failure. See Reed, 489 U.S. at 262, 109 S.Ct. 1038. Absent such a showing, a defaulted claim is reviewable only if refusal to consider it would result in a "fundamental miscarriage of justice," that is, where the "constitutional violation has probably resulted in the conviction of one who is actually innocent. . . ." Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639 (1986) (internal quotations and citations omitted). This standard requires a petitioner to show that it is more likely than not that no reasonable juror would have convicted him. Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851 (1995).

If a federal claim has been properly presented to the state courts, a federal court may grant habeas relief only if the state court's decision on the merits of an issue was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d); Brown v. Sternes, 304 F.3d 677, 690 (7th Cir. 2002). A state-court decision is "contrary to" clearly established precedents if it "applies a rule that contradicts the governing law set forth in our cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, 529 U.S. 362, 405-406, 120 S.Ct. 1495 (2000). The Supreme Court clarified that even if "the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable." Penry v. Johnson, 532 U.S. 782, 793, 121 SQ. 1910 (2001). A state court is not required to cite Supreme Court cases or even be aware of the cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, ___ U.S. ___, 123 S.Ct. 362, 365 (2002). "The court may grant relief under the `unreasonable application' clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case." Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843 (2002).


I. Due Process

During the medical examiner's autopsy of the victim in this case, the examiner discovered that the victim was five months pregnant. Prior to petitioner Lewis' trial, the trial court denied Lewis' counsel's motion in limine to preclude evidence of the victim's pregnancy. At the guilt phase of Lewis' trial, over Lewis' counsel's objection and renewed motion in limine, the trial court allowed the prosecutor to elicit testimony from the medical examiner for Cook County that the deceased was pregnant, the fetus was female and measured 25 centimeters long, and was gestation at five months. See People v. Lewis, 165 N.E.2d 305, 328-29, 651 N.E.2d 72 (1995). Lewis cites to Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791 (1992) and argues that the topic of the termination of life of an unborn son or daughter was not an issue in the determination of his guilt or innocence and was unfairly presented to the jury to arouse intense sympathy for a victim and hostility to an accused. Lewis argues that the introduction of this evidence over his trial counsel's objection prevented the jury from fairly listening and deciding the evidence, and therefore deprived Lewis of a right to a fair trial under the Due Process Clause.

Respondent argues first that Lewis did not fairly present this point as a constitutional issue to the Illinois Supreme Court because Lewis' brief devoted to this issue did not mention the Constitution. A district court may not grant habeas corpus relief unless the petitioner has exhausted his state court remedies. See 28 U.S.C. § 2254 (b)(1)(A). To do so, one must present "fully and fairly his federal claims to the state courts. . . ." Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001). Fair presentment "requires the petitioner to give the state courts a meaningful opportunity to pass upon the substance of the claims later presented in federal court. . . . The petitioner must have placed both the operative facts and the controlling legal principles before the state courts." Id. at 737-38.

Based upon this court's review of Lewis' brief to the Illinois supreme Court, this court finds that Lewis sufficiently presented the facts and legal argument relevant to this issue to the state court. Lewis' discussions of the operative facts supporting his legal argument in the present habeas are the same as those presented to the state courts. As to Lewis' presentation of his legal argument, in his opening brief to the Illinois Supreme Court, Lewis cited the Fourteenth Amendment and cited United States Supreme Court case Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597 (1991) to support his argument that the admission of the evidence that the victim was pregnant prejudiced the guilt and sentencing phases of his trial. (See Respondent's Answer to Habeas Petition, Ex. A. at 48, 50-51). Lewis also raised this issue again in his petition for rehearing to the Illinois Supreme Court, arguing that the injection of the evidence of the deceased's pregnancy denied Lewis his constitutional rights to a fair trial and a trial by an impartial jury. (See Respondent's ...

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