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U.S. EX REL. MEANS v. LEIBACH

February 19, 2004.

UNITED STATES OF AMERICA ex rel. LEONARD MEANS, Petitioner,
v.
BLAIR T. LEIBACH, Respondent



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Petitioner Leonard Means ("Means") pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below we deny the petition.

BACKGROUND

  Following a bench trial in state court Means was convicted of first degree murder and sentenced to 26 years imprisonment in state custody. Means appealed to the Illinois Appellate Court. The only issue he raised before the appellate court was whether his sentence was excessive because the trial court gave inadequate consideration to mitigating factors. On April 14, 1993, the Illinois Appellate Court, affirmed Means' conviction and sentence. On August 10, 1994 Means filed a pro se post-conviction petition, and subsequently an amended petition for Page 2 post-conviction relief alleging various instances of ineffective assistance of trial counsel. The trial court noted that the issues should have been raised on direct appeal, but addressed the allegations because Means contended that the issues were not presented on his direct appeal because of ineffective assistance of appellate counsel. Means' amended petition was dismissed on December 4, 1997. Means raised the same issue on appeal. On March 31, 2000 the Appellate Court found no merit in his claim of ineffective trial counsel, and therefore no merit in his claim of ineffective appellate counsel. Means filed a petition for leave to appeal, raising the same issues. On July 5, 2000, the Illinois Supreme Court denied his petition.

  Means filed the instant petition for habeas corpus relief under Section 2254 of Title 28 of the United States Code on October 31, 2000. He raises four issues for this Court's review: 1) whether he received ineffective assistance of counsel from his trial counsel, 2) whether he was denied effective assistance of counsel on direct appeal because his appellate counsel failed to raise the issue of his trial counsel's effectiveness, 3) whether Means was denied due process when evidence was introduced unlawfully, and 4) whether he was denied due process because the evidence introduced at trial was insufficient to support a conviction for first degree murder.

  LEGAL STANDARD

  Pursuant to 28 U.S.C. § 2254 a federal court may entertain a petition for writ of habeas corpus only on the ground that the petitioner "is in custody in violation of the Constitution of law or treaties of the United States." 28 U.S.C. § 2254(a). If a petitioner seeks to challenge a state court decision under 28 U.S.C. § 2254, a writ of habeas corpus is proper only if the challenged state court decision: Page 3

 
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established 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.
28 U.S.C. § 2254(d); Hammer v. Karlen, 342 F.3d 807, 810 (7th Cir. 2003).

  DISCUSSION

 I. procedural Default

  A habeas petitioner may not turn to the federal courts "without first giving the state courts a fair opportunity to address his claims and to correct any error of constitutional magnitude." Wilson v. Briley, 343 F.3d 325, 327 (7th Cir. 2001). Federal claims that are not fairly presented in state courts will be procedurally defaulted and will not be entitled to federal habeas relief. Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995). Procedural default occurs when "a claim could have been but was not presented to the state court and cannot, at the time that the federal court reviews the habeas petition, be presented to the state court." Remover v. Pearson, 965 F.2d 1453, 145 8 (7th Cir. 1992).

  A. Inadequate Assistance of Counsel Claims

  Means raises four issues before this court to obtain a writ of habeas corpus. The first two issues will be discussed first. After Means was convicted he raised only one issue on direct appeal: Whether his sentence was excessive because the trial court gave inadequate consideration to mitigating factors. On the subsequent post conviction petition Means did raise the issues of ineffectiveness of trial and appellate counsel, his first and second issues raised in this habeas Page 4 petition. In Illinois, a defendant who neglects to raise a claim of inadequate representation of trial counsel on direct appeal may not later assert that claim in a petition for post-conviction relief. U.S. ex. rel. Devine v. DeRobertis, 754 F.2d 764, 766 (7th Cir. 1985); People v. Killion, 395 N.E.2d 678, 680 (Ill.App. Ct. 1979). The ineffective assistance of trial counsel claim is deemed waived if not present on direct appeal. Id. In the instant case, Means' ineffectiveness of trial counsel claim could have been raised on direct appeal, but was ...


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