The opinion of the court was delivered by: Joan B. Gottschall, District Judge
MEMORANDUM OPINION AND ORDER
In 1986, Clarence Hayes was convicted of first-degree murder and six related counts of armed robbery following a jury trial in the circuit court of Cook County. He is currently serving a sentence of natural life in prison. His pro se petition for a writ of habeas corpus raises thirteen grounds: (1) exclusion of lineup identification testimony based on insufficiency of the arrest warrant; (2) improper admission of evidence concerning remarks by the assailant to bystanders; (3) improper references to the family of the deceased; improper prosecutorial comment and/or admission of evidence concerning (4) the police search for Hayes, (5) Hayes's failure to "turn himself in," and (6) the resulting need for an arrest warrant; improper admission of (7) testimony that six witnesses did not identify persons other than Hayes, (8) details concerning the witness identifications, and (9) evidence suggesting prior criminal conduct; (10) cumulative effect of improper evidence and comment; (11) erroneously requiring the defense to turn over its investigator's notes; (12) improper use by the State of the grand jury as a discovery device without reciprocal discovery for the defense; and (13) ineffective assistance of trial and appellate counsel. Hayes requests an evidentiary hearing in the alternative. The State opposes the petition on a variety of procedural and substantive grounds. For the reasons set forth below, Hayes's petition for habeas corpus is denied.*fn1
At Hayes's trial, the State introduced the testimony of four of the armed robbery victims and of two bystanders. Roger Nelson, the murder victim's son, testified that he and his fiancee, Sandra Wissink, attended church services on March 17, 1985, with his mother, Marion Nelson, and his father, Ronald Nelson. After the church service, the Nelson family lingered for 10 or 15 minutes to talk to the pastor and his wife. At approximately 1:45 or 1:50 p.m., the Nelsons and Sandra left the church and walked across the street to the fenced lot where they had parked their cars. As they walked toward their cars, a man holding a gun approached them and ordered them into Ronald Nelson's car. The gunman, whom Roger identified as the defendant, wore a long dark coat, a baseball cap with a Playboy insignia and a light-colored shirt.
The gunman demanded their money. After the men handed the assailant their wallets and the women gave him their purses, the assailant threatened to kill someone if he discovered they were holding out on him. After approximately five minutes, Donna Van Zanten, the pastor's wife, and her son, Kent, walked out of the church toward the parking lot. The assailant ordered them into the car and they handed the assailant their purse and wallet, respectively. After another five minutes or so, the assailant grabbed Ronald Nelson's lapel and saw that he had a checkbook in his inside pocket. Ronald said that he did not give him the checkbook because he did not think he would be able to use it. The assailant called Ronald a "god damn lying bastard" and fatally shot him in the abdomen. The assailant then stood up, clutched the purses to his chest, and jogged away. Sandra Wissink, Donna Van Zanten and Kent Van Zanten also testified at trial, reciting the same basic story.
Larry Stewart and Harold Smith, two bystanders, testified that they were working on a car near the parking lot when they heard arguing and a loud "bang like" noise. They testified that they saw a man with a gun, clutching some purses, running toward them. As the man ran by, he told the witnesses, "You brothers, you be cool because you know them was honkies over there." They then heard Roger, whom Harold knew from the church, shout to them that the man on the run had just "shot my Dad."
Several of the witnesses testified regarding their involvement in the subsequent investigation of the incident. Roger Nelson testified that he spent between six and seven hours after the shooting at the police station with Sandra Wissink and the Van Zantens, looking at pictures, but did not identify any of the photos as the assailant. Kent Van Zanten testified that he looked through at least five books of photographs the day of the shooting in an effort to find the assailant. He testified that a few days after the shooting, he and his mother spoke with a police artist, who prepared a composite sketch. Kent testified, however, that the sketch did not look like the assailant. Donna Van Zanten testified that she and her son looked with the police for the assailant on the day of the crime and that Detective McWeeny of the Chicago police department showed her photo arrays on three separate occasions, but that she was unable to identify anyone in the photos.
McWeeny testified for the State that he brought Larry Stewart, one of the bystanders, to Area I Violent Crimes to look at photo books on March 29, 1985. Apparently, all previous photo arrays had been collected from Area 2 Violent Crimes. Stewart looked through a number of books and picked out Hayes's photo. McWeeny then obtained a more recent photo of the defendant and assembled a photo array for the other witnesses. According to McWeeny, Harold Smith and Donna and Kent Van Zanten identified the defendant's photograph from this array.
McWeeny testified that he went to Hayes's home and asked an elderly man if he could speak to Hayes. The officer left his business card and asked the man to have Hayes call him when he got home. Over defense objection, the officer testified that after making approximately six attempts to locate the defendant at his parents' home, the police obtained an arrest warrant and formed a stakeout at a currency exchange. The stakeout continued for four days until Hayes was apprehended on April 14, 1985.
The first lineup occurred in the early afternoon of the same day and was viewed by Donna and Kent Van Zanten, Harold Smith, and Larry Stewart. McWeeny testified that each witness identified Hayes as the assailant. A second lineup was conducted later that evening, after Roger Nelson and Sandra Wissink drove to Chicago from Michigan to view the lineup. McWeeny testified that Roger and Sandra each identified Hayes from the lineup as the assailant. All six witnesses positively identified Hayes in court and testified at trial regarding their identification of Hayes in the photo array and the lineup.
McWeeny was questioned by defense counsel on cross-examination regarding apparent discrepancies between the composite sketch drawn up by the police artist and the defendant's appearance. McWeeny testified that the sketch of the offender included a description of the offender's face as "pockmarked." McWeeny acknowledged that the defendant's arrest report did not state that the defendant had "pockmarks." On redirect, Detective McWeeny explained that Larry Stewart told him that the assailant had little holes in his face around his beard. Detective McWeeny, who had a pockmarked face, asked Stewart if the indentations were "like mine," and Stewart said "kind of." It was on this basis that McWeeny characterized the assailant as "pockmarked" in the composite description. McWeeny testified that the term "pockmark" was brought to Stewart's attention only after Stewart told McWeeny that the assailant's face had indentations.
Edward Matthews, an investigator for the public defender's office, testified on Hayes's behalf. He testified that on April 10, 1986, he and Hayes's trial counsel spoke to Harold Smith at Smith's home. According to Matthews, Harold would not allow the conversation to be recorded, but stated that he could not identify anyone when he viewed the lineup. Matthews testified that Smith told them that his attention was drawn to the defendant at the lineup because he was the tallest, was wearing a white shirt, and because there were handcuff's hanging on the wall directly behind him. According to Matthews, Smith stated that he did not identify the defendant in a photo array or the lineup until after he spoke with Larry Stewart and another nontestifying witness.
The parties then stipulated that Terry Merriweather, who bore some resemblance to Hayes, was arrested after he was found near a currency exchange. In addition, a man named Everette Bakion was arrested and subsequently released. Bakion was wearing a long coat and had a Playboy bunny cap in his pocket at the time of his arrest. After the defense rested and the parties delivered closing arguments, the jury found Hayes guilty of murder and armed robbery. The court denied Hayes's motion for a new trial, imposed 30-year concurrent sentences on the six robbery convictions, and sentenced him to death on the murder conviction.
On direct appeal to the Illinois Supreme Court, Hayes raised 25 issues, including all but the last ground raised in the present habeas petition. The court affirmed all seven convictions and the sentences for armed robbery, but vacated the death sentence and remanded for a new sentencing hearing, at which Hayes was sentenced to natural life in prison. Hayes filed a pro se petition for state post-conviction relief, alleging ineffective assistance of trial and appellate counsel. Hayes also filed a motion for appointment of counsel other than the Cook County public defender. The trial court nevertheless appointed that office to represent Hayes and, following argument, denied the petition. On appeal, represented by a private attorney, Hayes argued that the public defender rendered ineffective assistance in the post-conviction proceedings. The Illinois Appellate Court rejected this argument and affirmed the denial of post-conviction relief
Under 28 U.S.C. § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), the court may not grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court proceedings unless the state court decision: (1) 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. Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000).
As a threshold matter, Section 2254 requires a habeas petitioner to exhaust the remedies available in state court prior to pursuing federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). The statute requires the state prisoner to "give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This rule "reduces friction between the state and federal court systems by avoiding the `unseemliness' of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." Id. at 845 (internal brackets omitted). The State concedes that Hayes has exhausted his claims.
III. Procedural Default: Grounds 13, 2, 5, 8 and 11
The State argues, however, that several of Hayes's claims are procedurally defaulted. To avoid a holding of procedural default for each of his claims, Hayes must have presented "each claim filly and fairly to the state courts." Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999) (citing Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992)). Fair presentment requires Hayes to "give the state courts a meaningful opportunity to pass upon the substance of the claims later presented in federal court." Id. For a constitutional claim to be fairly presented, "both the operative facts and the `controlling legal principles' must be submitted" for the state court's review. Id. (quoting Picard v. Connor, 404 U.S. 270, 277 (1971)).
Even if Hayes has raised all of his habeas claims in state court, this court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). This doctrine bars "federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Id. at 729-30.
Where a petitioner has procedurally defaulted, this court may review the underlying claims only if the habeas petition "shows cause for failure to raise them at the appropriate time and actual prejudice which resulted from such failure." Rodriguez, 193 F.3d at 917 (citing Wainwright v. Sykes, 433 U.S. 72, 91 (1977)). Absent this showing, "a defaulted claim is reviewable only if refusal to consider it would result in a `fundamental miscarriage of justice,' that is, where `a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Id. (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)). This would require Hayes "to show that it is more likely than not that no reasonable juror would have convicted him." Id. (citing Schlup v. Delo, 513 U.S. 298, 329 (1995)); see also Buelow v. Dickey, 847 F.2d 420, 427 (7th Cir. 1988) (holding that court "may set aside the cause-and-prejudice test and permit a habeas petition if, due to a fundamentally unjust trial, an innocent defendant was convicted").
First, the State contends that Hayes defaulted his ineffective assistance of counsel claims by failing to present them to the Illinois Appellate Court or the Illinois Supreme Court on appeal from the denial of his petition for post-conviction relief. Hayes first raised his ineffective assistance claims in his state post-conviction petition. However, on appeal from the denial of that petition, he did not raise those alleged deficiencies. Rather, he claimed only that he had been denied the effective assistance of counsel during the post-conviction proceedings.
Hayes's claims of ineffective assistance of trial and appellate counsel are directly foreclosed by applicable Seventh Circuit precedent. In Howard v. O'Sullivan, 185 F.3d 721, 725 (7th Cir. 1999), the court held that a habeas petitioner had procedurally defaulted a claim of ineffective assistance of trial counsel by failing to raise the issue on appeal from the denial of his Illinois post-conviction petition. As here, the petitioner had argued in his post-conviction petition that his trial counsel erred by, among other things, failing to investigate and interview potential alibi witnesses, but had argued on appeal of that petition only that his post-conviction, not trial, counsel was ineffective. Id. "[B]y changing the basis of his argument between the trial court and appellate court, [petitioner] did not fairly present the question of ineffective assistance of trial counsel to the Illinois Appellate Court," the court concluded. Id. In Spreitzer v. Schomig,
219 F.3d 639, 645, 647 (7th Cir. 2000), the court, after finding procedural default on the same ground as in Howard, expressly rejected the petitioner's argument that he was not required to raise on appeal his ineffectiveness claim because his post-conviction counsel's failure to append affidavits to the petition had rendered such an effort futile. Because Hayes failed to raise any argument regarding the denial of effective assistance of trial and appellate counsel before the Illinois appellate court, he has defaulted those claims.
Hayes can overcome his procedural default by showing either: (1) "cause for the default and actual prejudice as a result of the alleged violation of federal law," or (2) "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. It is tempting to attribute Hayes's default to the absence of affidavits in the record: his appellate counsel apparently saw the writing on the wall and chose not to waste the appellate court's time with claims he knew would be rejected. Cf. Smith v. Murray, 477 U.S. 527, 536 (1986) (explaining that the "process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy"). But this theory of "cause" is inconsistent with the Seventh Circuit's holding in Spreitzer. Hayes had a duty to raise these claims on appeal at penalty of default, no matter how futile such effort would have been. The only other "cause" suggested by Hayes's submissions is the ineffectiveness of his post-conviction appellate counsel. Because criminal defendants generally have no constitutional right to counsel in collateral proceedings, because ...