United States District Court, N.D. Illinois
February 19, 2004.
UNITED STATES OF AMERICA ex rel. LEONARD MEANS, Petitioner,
BLAIR T. LEIBACH, Respondent
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).
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
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 not.
Therefore this claim is procedurally defaulted and not properly before
this court. Means' claim regarding ineffective assistance of appellate
counsel was raised on his claim for post-conviction relief and thus that
claim has not been waived and is properly before this court.
B. Due Process Claims
Means' third and forth claims regarding denial of due process are
procedurally defaulted. These issues were never presented to the Illinois
Appellate Court on direct appeal, the Illinois Supreme Court, and they
were not included in the petition for post-conviction relief. The only
issues raised in the post-conviction petition were regarding
ineffectiveness of counsel. These claims could have been brought to the
state court, but since they were not, they are procedurally defaulted,
and not properly before this court.
II. Exceptions to Procedural Default
A claim will not be procedurally defaulted if the petitioner
establishes "cause and prejudice for h[is] failure to exhaust his
claims, or if a failure to review them on these procedural grounds would
result in a fundamental miscarriage of justice." Howard v. O'Sullivan
185 F.3d 721, 726 (7th Cir. 1999). In those "extraordinary instances when
a constitutional violation probably has caused the conviction of one
innocent of the crime," the procedural default will be excused.
Rodriguez, 63 F.3d at 555. The procedural defaults in the instant case do
not fall into this extraordinary category. Given the strength of the
evidence, there is no reason to believe that Means is innocent of the
crime for which he was convicted. He has failed to show that the
ineffectiveness of trial counsel fell below an objective standard of
reasonableness, and that counsel's deficient performance prejudiced him.
Also, Means provides no explanation for the procedural default of his
alleged due process claims. There is no showing that failure to review
these claims would result in a fundamental miscarriage of justice and
therefore the exception to the procedural default is not applicable in
III. Ineffective Assistance of Appellate Counsel Claim
The only issue properly before this court, is whether he received
ineffective assistance by his appellate counsel. Means claims he was
denied effective assistance of counsel on direct appeal when his
appellate counsel failed to raise the issue of ineffective assistance of
his trial counsel. In his habeas petition Means merely states in a
conclusory fashion that "he was denied effective assistance of counsel on
direct appeal, when his appellate counsel failed to raise the issue of
trial counsel [sic.] ineffectiveness. . . ." Means does not specifically
state in his petition what were the alleged deficiencies in his trial
counsel's representation that his appellate counsel should have raised.
Means failed to provide sufficient detail in his petition to support his
claim of ineffective assistance of counsel on appeal. United States v.
Martinez, 169 F.3d 1049, 1053 (7th Cir. 1999)(stating that a court is not
required to address a petitioner's ineffective assistance of
counsel arguments "which are undeveloped."). Therefore, we deny the
petition for writ of habeas corpus.
We note that even if Means had alleged in his habeas petition that his
trial counsel's representation was defective for the same reasons listed
in his post-conviction petition, his habeas petition would be denied. In
his post-conviction petition Means argued that his trial counsel was
ineffective because of his failure to: 1) move to dismiss the indictment
because of false testimony presented to the grand jury, 2) object to the
government's closing argument when the government attempted to shift the
burden of proof to Means, 3) argue accountability of the State's
witnesses, 4) ascertain whether the State's witnesses were expecting
leniency, 5) introduce records establishing that there was no telephone
call from the Bordens to the petitioner, 6) point out material
inconsistencies in Eric Ingram's testimony, 7) locate and call a defense
witness, 8) subpoena David Johnson, 9) introduce evidence to prove that
Means' fingerprints were not found on the murder weapon, 10) properly
examine Means on the witness stand, and ll) object to calling one of the
prosecutors as a witness.
In order to prevail on an ineffective assistance of counsel claim a
petitioner must demonstrate that his counsel's performance "fell below an
objective standard of reasonableness." Strickland v. Washington,
466 U.S. 668, 687-88 (1984). A reviewing court considering an ineffective
assistance of counsel claim should be "highly deferential" to the
attorney's judgment and should avoid the temptation to "second-guess" the
attorney. Id at 689. The reviewing court should try to "evaluate the
conduct from counsel's perspective at the time" in question and thus
avoid the "distorting effects of hindsight." Id. A reviewing court "must
indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional
assistance . . ." and thus should avoid questioning decisions that
involve issues such as trial strategy. Id. Counsel can make a "reasonable
decision that particular investigations are unnecessary . . . and need
not investigate every evidentiary possibility before choosing a defense."
Rutledge v. United States, 230 F.3d 1041, 1050 (7th Cir. 2000). An
appellate counsel is not required to pursue every conceivable issue on
appeal. Barrow v. McAdory, 2003 WL 21920258, at *27 (N.D. Ill.
2003)(citing Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000) for the
proposition that "appellate lawyers are clearly not incompetent when they
refuse to follow a `kitchen sink' approach to the issues on appeals").
In order to succeed on an ineffectiveness of assistance of counsel
claim, in addition to showing that the representation was defective, a
petitioner must also show that he was prejudiced because the "error had
[an] effect on the judgment." Strickland, 466 U.S. at 691-92. Each and
every adverse consequence resulting from counsel's decisions is not
deemed to be prejudicial "for constitutional purposes." United States v.
Springs, 988 F.2d 746, 749 (7th Cir. 1993).
Means has not shown that any of the eleven alleged deficiencies brought
his trial counsel's representation beyond the spectrum of objectively
reasonable representation. Some of the alleged failures clearly fell
within his trial counsel's discretion to choose a trial strategy and it
was within the professional discretion of his trial counsel to decided
not to present all the arguments and objections now sought by Means. His
trial counsel could have reasonably opted to "pick his battles" and limit
his arguments and his objections accordingly to focus Means' defense. To
the extent that another counsel may have chosen to make some of the
challenges suggested by Means, Means has not shown that his trial
counsel's decision to do otherwise was not within the spectrum of
objectively reasonable representation. Nor has Means shown that he was
prejudiced by any of the alleged deficiencies. Thus, since Means has not
shown that he recevied inadequate assistance by his trial counsel, he has
not shown that his appellate counsel erred by neglecting to argue
ineffective assistance of his trial counsel on appeal.
Therefore, based on the foregoing analysis we deny the petition for
writ of habeas corpus.
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