The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
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.
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
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
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:
(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
28 U.S.C. § 2254(d); Hammer v. Karlen, 342 F.3d 807
, 810 (7th Cir. 2003).
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
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 ...