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U.S. EX REL. BOATMAN v. STERNES

May 28, 2003

UNITED STATES OF AMERICA, EX REL DERRICK BOATMAN, PETITIONER,
v.
JERRY L. STERNES, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Derrick Boatman, who is incarcerated at the Dixon Correctional Center in Dixon, Illinois following a state court conviction, has filed a petition for habeas relief pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Court denies the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On November 17, 1995, a judge found Petitioner Boatman guilty of first degree murder following a bench trial. The court sentenced Petitioner to a 45 year term of imprisonment. Petitioner appealed his conviction, arguing that the State had failed to prove him guilty beyond a reasonable doubt. The Appellate Court affirmed Boatman's conviction. On February 24, 1997, Boatman sought leave to appeal to the Illinois Supreme Court. On June 4, 1997, the Supreme Court denied Boatman's leave to appeal.

On May 5, 1997, Petitioner filed a pro se petition for post conviction relief. The state court subsequently appointed counsel to assist Petitioner. Counsel filed a supplemental petition for post conviction relief. The court denied Petitioner's request for post-conviction relief after holding an evidentiary hearing on the supplemental petition.

Petitioner appealed the trial court's ruling, arguing that he had been denied the effective assistance of post-conviction counsel because his counsel had not filed a certificate pursuant to Illinois Supreme Court Rule 651(c). The appellate court affirmed the denial of post conviction relief.

On March 9, 2001, Petitioner filed a petition for leave to appeal to the Illinois Supreme Court arguing that: (1) he was denied effective assistance of trial counsel when counsel browbeat him into waiving his right to a jury trial one hour before trial; (2) the State did not prove him guilty beyond a reasonable doubt; and (3) he was denied the effective assistance of post-conviction counsel where his counsel railed to file the requisite certificate under Supreme Court Rule 651(c) and the record does not support the finding that counsel complied with that rule. On June 6, 2001, the Illinois Supreme Court denied his petition for leave to appeal.

On May 10, 2002, Petitioner Boatman filed his federal petition for writ of habeas corpus. In the petition, Boatman argues that he is entitled to habeas relief on the following bases: (1) he was not proven guilty beyond a reasonable doubt; (2) he was denied his Sixth Amendment right to the effective assistance of trial counsel when his trial counsel (a) promised him an acquittal if he took an [sic] bench trial, (b) failed to properly cross examine the state's witness, and (c) failed to file certain pre-trial motions; (3) he was denied the effective assistance of appellate counsel; and (4) he was denied his Due Process rights when his post-conviction counsel failed to comply with Illinois Supreme Court Rule 651(c).

ANALYSIS

I. Procedural Default

Under 28 U.S.C. § 2254, a district court can grant habeas relief only if the adjudication of the claim by the state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254 (d)(1). Before reviewing a habeas petition on the merits, the court must first determine that the petitioner exhausted all available state remedies, and that the petitioner did not procedurally default the claims in state court. See Moleterno v. Nelson, 114 F.3d 629, 633-34 (7th Cir. 1997). Procedural default occurs when a petitioner failed to raise his claim with a state court or if the state court declined to address the merits of his claim due to his non-compliance with a state law requirement. See Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A petitioner's failure to present a constitutional claim to the highest state court to which it may be appealed, in the manner requited by state law, results in a procedural default that may prevent a federal court from deciding it. O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999); Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Thus, to avoid procedural default, a petitioner must fully and fairly present his constitutional claims in state court. Wilkinson v. Cowan, 231 F.3d 347, 350 (7th Cir. 2000), cert. denied, 533 U.S. 928 (2001).

Respondent argues that Petitioner has procedurally defaulted on his claims of ineffective assistance of trial and appellate counsel because Petitioner failed to raise them when he appealed from the denial of post-conviction relief. The Court agrees.

On March 9, 2001, Petitioner filed a petition for leave to appeal to the Illinois Supreme Court. In that appeal, Boatman failed to argue ineffective assistance of his appellate counsel. Accordingly, he has procedurally defaulted that argument and the Court will not review the merits of it.*fn1 See O'Sullivan, 526 U.S. at 848, 119 S.Ct. at 1734 (failure to present claims to Illinois Supreme Court "has resulted in a procedural default of those claims"); see also Mahaffey v. Schomig, 294 F.3d 907, 914-15 (7th Cir. 2002). Similarly, Petitioner failed to present the issue of ineffective assistance of trial counsel for failing to properly cross examine the State's witnesses and failing to file certain pre-trial motions in his petition for leave to appeal. Accordingly, Petitioner has also procedurally defaulted this issue. Id.

Further, Boatman has procedurally defaulted his claim of ineffective assistance of counsel for "browbeating [him] into waiving his right to a jury trial." Although Boatman raised this issue in his petition for review with the Illinois Supreme Court, he failed to first raise it in his post conviction brief before the appellate court. Petitioner's initial petition raised the issue, but he did not brief the issue or analyze the federal nature of his claims, and the appellate court did not consider it. Because Boatman did not fairly present the substance of this claim to appellate court, his argument is waived. Wilson v. Briley, 243 F.3d 325, 328-29 (7th Cir. ...


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