United States District Court, N.D. Illinois
February 26, 2004.
United States of America ex rel. LAWRENCE JACKSON, (#N-10765), Petitioner
EUGENE McADORY,[fn1] Warden, Menard Correctional Center, Respondent
The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
*fn1 The petitioner is currently incarcerated at Menard Correctional
Center. Because Eugene McAdory is the warden at Menard, he is the proper
respondent in this habeas action. See Rule 2(a) of the Rules Governing
Habeas Corpus Cases under 28 U.S.C. § 2254. Therefore, this court
substitutes McAdory as the respondent. See Fed.R.Civ.P. 28(d)(1).
MEMORANDUM OPINION AND ORDER
On June 23, 1988, following a jury trial in the Circuit Court of Cook
County, habeas petitioner Lawrence Jackson was convicted of four counts
of murder, one count of attempted murder, five counts of home invasion
and armed robbery, and various related charges, in connection with the
murders of three adults and one child in a Chicago housing project.
Jackson was sentenced to death. He filed a placeholder petition for a
writ of habeas corpus with this court on December 20, 2002. On January
11, 2003, former Illinois Governor George Ryan commuted Jackson's
sentence to natural life imprisonment. Following the commutation, Jackson
filed his amended petition with this court on April 11, 2003. The court
denies Jackson's habeas petition in its entirety.
A. PROCEDURAL HISTORY
On June 23, 1988, a Cook County jury convicted Jackson of four counts
of murder and multiple related charges.*fn2 The jury concluded that
Jackson was eligible for death, and found no mitigating factors
sufficient to preclude imposition of the death penalty. Jackson appealed
the verdict and sentence directly to the Illinois Supreme Court. See
People v. Jackson, 145 Ill.2d 43 (Ill. 1991) ("Jackson I") Following the
Illinois Supreme Court's affirmance of the trial court decision, Jackson
petitioned the U.S. Supreme Court for a writ of certiorari. The Supreme
Court granted the writ, and remanded for resentencing in light of Morgan
v. Illinois, 504 U.S. 719 (1992).
In accordance with the remand, Jackson received a second sentencing
hearing with a new jury and was once again sentenced to death. On direct
appeal from this new death sentence, the Illinois Supreme Court affirmed
the decision of the Cook County Circuit Court. See People v. Jackson,
182 Ill.2d 30 (Ill. 1998) ("Jackson II "). Jackson then filed a petition
for post-conviction relief with the circuit court, which was denied. The
Illinois Supreme Court affirmed the denial of Jackson's request for
post-conviction relief, and denied his request for rehearing. See People
v. Jackson, 205 Ill.2d 247 (Ill. 2001), rehearing denied April 1, 2002
Jackson filed his placeholder petition for a writ of habeas corpus on
December 20, 2002, followed by his amended petition and memorandum in law
in support thereof on April 11, 2003. Because this is Jackson's first
habeas petition and he filed it within one year after the conclusion of
his post-conviction proceedings in the Illinois state courts, this court
has jurisdiction to
consider it. See 28 U.S.C. § 2244(b), (d)(1), & (d)(2); Gray v. Briley,
305 F.3d 777, 778-79 (7th Cir. 2002).
Jackson does not challenge the facts as set forth by the Illinois
Supreme Court in its opinions affirming the judgments of the trial court
and the resentencing court. This court, therefore, presumes that these
facts are correct for purposes of collateral review. See
28 U.S.C. § 2254(e)(1); Ward v. Sternes, 334 F.3d 696, 703 (7th Cir. 2003)
(habeas petitioner can rebut presumption with clear and convincing
evidence). Thus, the court adopts the facts as set forth by the Illinois
Supreme Court in Jackson's direct and post-conviction appeals. See
Jackson I, 145 Ill.2d at 56-66; Jackson II, 182 Ill.2d at 37-42; Jackson
III, 205 Ill.2d at 254-56.
B. TRIAL EVIDENCE
Jackson was charged with the murders of Mark Brown, Vernita Winder,
Shirley Martin and Dana Winder, as well as the attempted murder of Urica
Winder and several related counts of armed robbery and home invasion. On
the evening of September 24, 1986, six-year-old Urica Winder allowed
Jackson and Bobbie Driskel to enter the West Side Chicago apartment that
she shared with her mother Vernita; her two sisters, Dana and Shanita;
her mother's boyfriend, Mark Brown; and her mother's friend, Shirley
Martin. Urica had previously met the two men at a party for a family
Jackson and Driskel fatally stabbed Mark, Shirley, Vernita and Dana.
Urica was stabbed several times and ultimately survived the attack only
by playing dead. Urica's infant sister Shanita was unharmed. The two men
searched the apartment for money and finally left with a television set
and VCR. The next day, Urica's cousin Tamico. discovered that Urica was
injured and that the four others were dead. Tamico. sought help, and
shortly thereafter Urica was taken to the hospital for medical
assistance. When Urica later spoke with the police, she was able to
identify Jackson and Driskel from a group of photographs that officers
On September 25, 1986, after learning that the authorities were looking
for him, Jackson turned himself in to the Chicago police department.
After advising him of his Miranda rights, Detective Steve Peterson and
several other detectives questioned Jackson about his involvement in a
quadruple homicide, Jackson stated he knew nothing about it, claiming
that he had been at home all night the previous evening. Following his
interview with the detectives, Jackson was questioned by Cook County
Assistant State's Attorney Michael O'Donnell, who also advised Jackson of
his Miranda rights, and asked if he needed medical attention for some
cuts O'Donnell noticed on his arm. When O'Donnell asked Jackson what he
had been doing the prior evening, Jackson again said he had been at home
smoking cocaine, and that the injury on his arm occurred when his cocaine
pipe exploded. O'Donnell questioned the credibility of this story, and
suggested that Jackson "think about" what he was saying. At that point,
Jackson acknowledged his involvement in the events, and proceeded to
share the following information with O'Donnell. The contents of the
conversation were memorialized in written and oral form.
Jackson explained that he and Driskel had been smoking cocaine at
Jackson's apartment on September 24, 1986, When they ran out of drugs and
money, they decided to kill Driskel's cousin, Mark Brown, and take his
money, television, and VCR. They asked Jackson's uncle, O.C. Roland, to
drive them to Brown's apartment. Jackson and Driskel developed their plan
of action during the car ride, speaking softly so that Roland would not
hear them. When they reached the apartment, Urica let them in to speak
with Brown. They proceeded to stab Brown,
then Vernita Winder and her daughters Dana and Urica, and finally
Shirley Martin. The men left the apartment with a television and VCR.
They took the items to the home of Philip Simms, Brown's employer and
Driskel's former employer. Simms purchased the items.
At trial, Jackson presented a voluntary intoxication defense, due to
his use of cocaine, PCP and heroin throughout the day and evening of the
murders. The statements he gave to O'Donnell were admitted into
evidence. He also called several witnesses to testify on his behalf.
Roland offered testimony about the course of the evening's events. Dr.
Marvin Ziporyn, a psychiatrist, testified regarding the effects of the
various drugs on Jackson and Jackson's likely mental state at the time of
the murders. Dr. James O'Donnell, a doctor of pharmacology, testified
about the physiological effects of cocaine, heroin and PCP. Dr. Robert
Reifman, the State's expert psychiatric witness, gave testimony about the
possibility of voluntary intoxication as a legal defense.
II. LEGAL STANDARDS
A. HABEAS STANDARD
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), this
court may grant Jackson's request for habeas relief with respect to any
claim decided on the merits by the state court only if the court's
decision "was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of
the United States." See 28 U.S.C. § 2254(d)(1); Williams v. Taylor,
529 U.S. 362, 404-05 (2000). A state court's decision is "contrary to"
clearly established Supreme Court precedent "if the state court arrives
at a conclusion opposite to that reached by [the Supreme] Court on a
question of law" or "if the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives at a result opposite
to [it]." Id. at 405.
A state court's decision is an "unreasonable application" of clearly
established Supreme Court precedent "if the state court identifies the
correct governing legal rule from this Court's cases but unreasonably
applies it to the facts of a particular prisoner's case" or "if the state
court either unreasonably extends a legal principle from our precedent to
a new context where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply." Id. at 407. A
state court's application of Supreme Court precedent must be more than
incorrect or erroneous, it must be "objectively" unreasonable. See id. at
410 ("An unreasonable application of federal law is different from an
incorrect application . . .) (emphasis in original); see also Yarborough
v. Gentry, 124 S.Ct. 1, 4 (2003) (same). For a state court decision to
be considered unreasonable under this standard, it must lie "well outside
the boundaries of permissible differences of opinion." Hardaway v.
Young, 302 F.3d 757, 762 (7th Cir. 2002); see also Henderson v. Briley,
354 F.3d 907, 909 (7th Cir. 2004) ("question before a federal court on
collateral review . . . is only whether the state court's decision was so
far out-of-bounds as to be `unreasonable.'").
B. PROCEDURAL DEFAULT
Before this court can reach the merits of Jackson's habeas claims,
Jackson must comply with two procedural requirements: exhaustion of
remedies and procedural default. See O'Sullivan v. Boerckel, 526 U.S. 838,
848 (1999). State remedies are exhausted if they are fully and fairly
presented to the state's highest court for a ruling on the merits or when
no means of
pursuing review remain available. See id. at 844-48 (citing
28 U.S.C. § 2254(c)); see also Wilson v. Briley, 243 F.3d 325, 327 (7th
Procedural default occurs when a habeas petitioner fails to present a
constitutional claim to the highest state court to which it may be
appealed in the manner required by state law. See Boerckel, 526 U.S. at
845; see also Engle v. Isaac, 456 U.S. 107, 129 (1982) (state appellate
courts must have chance to mend their own fences and avoid federal
intrusion). A habeas claim may also be procedurally defaulted if the
state court rests its judgment on an adequate and independent finding of
procedural default under state law. See Stewart v. Smith, 536 U.S. 856,
860 (2002). Under Illinois law, waiver of a claim by failing to raise it
at the appropriate point during trial or the appellate process is an
independent and adequate state ground. See Whitehead v. Cowan,
263 F.3d 708, 726-27 (7th Cir. 2001).
Last, a federal court may not grant habeas relief on a procedurally
defaulted claim unless the petitioner can demonstrate cause for the
default and actual prejudice or that failure to consider the claim will
result in a fundamental miscarriage of justice. See Coleman v. Thompson,
501 U.S. 722, 750 (1991); Anderson v. Cowan, 221 F.3d 893, 899-90 (7th
III. MOOT SENTENCING CLAIMS
On January 11, 2003, former Illinois Governor George Ryan commuted
Jackson's death sentence to natural life in prison without the
possibility of parole. There are no challenges pending in any court
related to this commutation. Since the commutation, the Illinois Supreme
Court has issued modified decisions on the denial of rehearing in other
death penalty cases. In these cases, the Illinois Supreme Court concluded
that former Governor Ryan's commutation of the defendant's death sentence
rendered moot all capital sentencing claims. See e.g., People v. Lucas,
203 Ill.2d 410 (2003) (commutation removes judicially imposed sentence
replacing it with executively imposed sentence); People v. Miller,
203 Ill.2d 433 (2003) (same). The court also recently rejected challenges
to certain commutations, finding that a governor's clemency power is
"essentially unreviewable." See Madigan v. Snyder, 2004 WL 116116, * 11
(Ill. 2004).*fn3 Also, in a denial of an application for a certificate
of appealability pursuant to 28 U.S.C. § 2253(c), the United States Court
of Appeals for the Seventh Circuit concluded that due to the commutation
of a petitioner's death sentence, the petitioner's habeas claims based on
that sentence were now moot. See Wilson v. Mote, No. 03-1943, slip op. at
1 (7th Cir. June 18, 2003). Thus, any challenge that Jackson brings
against his death sentence is moot.
Although Jackson's amended habeas petition was filed after the
commutation of his death sentence, he nevertheless includes a death
penalty claim in the amended habeas petition. Contrary to Jackson's
assertion that this claim is still valid, this court concludes that the
claim is moot. Therefore, Jackson's claim of due process and equal
protection violations due to the State's improper use of peremptory
challenges to exclude prospective jurors on the basis of being "weak" on
the death penalty (Claim #1) is now moot.*fn4
IV. JACKSON'S NON-CAPITAL HABEAS CLAIMS
A. PROSECUTOR1AL MISCONDUCT (Claim # 2)
Next, Jackson claims that the State engaged in a pattern of misconduct
at trial that violated his due process and equal protection rights under
the Fifth, Sixth, Eighth and Fourteenth Amendments, thereby denying him
his rights to present a defense and enjoy a fair trial. He also suggests
that his right to confront witnesses was violated, but has not described
that aspect of this claim. Jackson presented the prosecutorial misconduct
claim to the Illinois Supreme Court; therefore, this court may review the
merits. See Jackson I, 145 Ill.2d at 54-55. In his habeas petition,
Jackson cites four instances of alleged misconduct by the State: (1)
Driskel's statement that the use of drugs had a sobering effect on him;
(2) Dr. Ziporyn's alleged statement that the voluntary intoxication
defense was a weak one; (3) Jackson's statement to Roland reflecting
memory of the details of the crimes; and (4) Dr. Reifman's opinion about
the voluntary intoxication defense.*fn5
Defendants are entitled to fair trials, not perfect ones. See Lutwak
v. U.S., 344 U.S. 604, 619 (1953). Jackson's prosecutorial misconduct
claim mainly involves allegations of discovery violations by the State.
*fn6 This court notes that "there is no general constitutional right to
discovery in a criminal case," see Gray v. Netherland, 518 U.S. 152,
167-68 (1996); thus, discovery violations, standing alone, do not
generally amount to cognizable federal habeas claims.
However, prosecutorial misconduct may be a basis for federal habeas
relief if the petitioner can demonstrate that he did not receive a fair
trial. See Darden v. Wainwright, 477 U.S. 168, 181 (1986).
In evaluating such claims, "the relevant question is whether the
prosecutors' comments so infected the trial with unfairness as to make the
resulting conviction a denial of due process." Darden, 477 U.S. at 181
(citation and quotations omitted). A reviewing court may consider several
factors to determine whether a petitioner received a fair trial. Swofford
v. Dobucki, 137 F.3d 442 (7th Cir. 1998), lists factors for a reviewing
court to consider to ascertain whether a petitioner received a fair
trial. These factors, intended to be relevant guidelines and not the only
matters to review, include (1) whether the prosecutor misstated or
manipulated the evidence; (2) whether the comments implicated other
specific rights of the accused . . .; (3) whether the comments were invited
by or responsive to defense counsel's summation; (4) whether the trial
court's instructions ameliorated the harm; (5) whether the evidence
weighed heavily against the defendant; and (6) whether the defendant had
an opportunity to rebut the prosecutor's comments. Swofford, 137 F.3d at
444-45 (citing Darden, 477 U.S. at 181-82). In Swofford, the allegedly
improper comments did not render the trial unfair, in light of the
evidence presented against defendant. Id. at 455; see also Rodriguez v.
Scillia, 193 F.3d 913, 920 (7th Cir. 1999) (petitioner was not unfairly
prejudiced, due to totality of evidence presented).
Even if a prosecutor's misconduct results in trial error, the error is
often harmless. See United States v. Hasting, 461 U.S. 499, 508-09
(1983). In Hasting, the Supreme Court set forth the standard for
reviewing allegations of trial error, stating
[T]he Court has consistently made clear that it is the
duty of a reviewing court to consider the trial record
as a whole and to ignore errors that are harmless,
including most constitutional violations, (internal
citations omitted). The goal . . . is to conserve
judicial resources by enabling appellate courts to
cleanse the judicial process of prejudicial error
without becoming mired in harmless error.
461 U.S. at 509. According to current precedent, unless a trial error has
a "substantial or injurious effect or influence" on the verdict, that
error does not warrant a federal court's grant of habeas relief.*fn7
Brecht v. Abramson, 507 U.S. 619, 623 (internal citation omitted). With
these standards in mind, the court now turns to the specific allegations
of prosecutorial misconduct raised by Jackson.
1. State's Failure to Tender Statement Given by Driskel to Dr.
Jackson contends that the State improperly withheld a statement given
by Driskel to Dr. James O'Donnell, Jackson's expert pharmacology
witness, regarding the effect that the events of the night of the murders
had on Driskel. See Jackson, at 92-93. His contention is that the State
improperly withheld this statement to damage Jackson's voluntary
intoxication defense. At trial, one of the prosecutors asked Dr.
O'Donnell whether an exciting event could have a sobering effect on
someone under the influence of cocaine. Jackson's counsel objected to
this line of questioning; however, over objection, O'Donnell was permitted
to answer, and responded that Driskel had told him that the incidents on
the night of the murders had that type of effect on him. See id. at 93.
It appears that the judge struck this answer from the record; however, it
completely clear whether the jury would have understood the court's
ruling because, according to the transcript, it appears that the judge
struck the objection, not the testimony.
In his brief submitted to the Jackson I court, Jackson alleged that
this statement by O'Donnell violated the rule set forth in Bruton v.
United States, 391 U.S. 123 (1968), which protects a defendant's right to
confront witnesses. Jackson has not mentioned Bruton in his habeas corpus
petition; however, Bruton stands for the proposition that a co-defendant's
confession may not be admitted against a defendant unless subject to
testing through cross-examination. See Bruton, 391 U.S. at 125-26.
Jackson has cited no Supreme Court precedent, nor has this court
located any relevant precedent, which has extended Bruton to the type of
testimony at issue in Jackson's case. Driskel's statement, reported by
Dr. O'Donnell, was not a confession and did not implicate Jackson
directly or, arguably, even indirectly. Driskel spoke of his state of
mind, not of Jackson's. See Jackson I, 145 Ill.2d at 93. In reviewing the
Illinois Supreme Court's decision on this issue, this court must respect
that judgment unless it is objectively unreasonable, falling "well
outside the boundaries of permissible differences of opinion. "
Hardaway, 302 F.3d at 762.
This court cannot say that the Jackson I court's conclusion that the
jury would not assume that Driskel's statement of his state of mind
should also be attributed to Jackson is objectively unreasonable. Even if
this evidence should not have been presented, any error was harmless, as
it did not likely have a substantial effect on the verdict. See Brecht,
507 U.S. at 623; see also Schneble v. Florida, 405 U.S. 427, 430 (1972)
(Bruton questions subject to harmless error
analysis). Thus, this request for habeas relief is denied. See
Henderson, 354 F.3d at 909 (state court decision must be "far
out-of-bounds" to be considered unreasonable).
2. State's Failure to Tender Statement Given by Dr. Ziporyn to
Next, Jackson asserts that the State denied him a fair trial, by not
providing him with evidence of a statement made by Dr. Ziporyn, Jackson's
expert psychiatric witness. In this statement, Dr. Ziporyn allegedly told
one of the prosecutors that he "didn't think much" of Jackson's voluntary
intoxication defense.*fn8 During the trial, one of the prosecutors asked
Dr. Ziporyn whether he had in fact made that remark to the State. See
Jackson 1, 145 II1.2d at 70. Jackson immediately objected to this
questioning, and the question was never answered. The State withdrew the
question, and the court immediately admonished the jury to disregard
it.*fn9 Jackson's contention is that the State's posing of this question
to Ziporyn destroyed his voluntary intoxication defense, and deprived him
of his right to a fair trial under the due process clause, as set forth
in Darden, 477 U.S. 168.
On direct appeal, the Illinois Supreme Court concluded that, although
surprise may have been used improperly by the State, any error in the
State asking Dr. Ziporyn this question was harmless. See Jackson I, 145
Ill.2d at 95. The jury heard substantial evidence of Jackson's mental
state before and during the murders in the form of Jackson's own detailed
the police and to an assistant state's attorney. See id. at 94. Jackson
contends that this was an unreasonable decision, since the State
neglected its duty to provide information to Jackson, and this resulted
in unfair surprise at trial.
For Jackson to receive habeas relief, he must show that the state
court's decision was an unreasonable application of clearly established
Supreme Court precedent. See 28 U.S.C. § 2254 (d)(1); Williams, 529 U.S.
at 404-05. The Illinois Supreme Court's decision was not unreasonable. A
reviewing court may analyze a number of factors to decide whether
petitioner received a fair trial, including any corrective instruction by
the trial court and the weight of the evidence against the petitioner.
See Darden, 477 U.S. at 181-83; Swofford, 137 F.3d at 444-45. In this
case, the question posed to Ziporyn was never answered, the question was
withdrawn, and the judge immediately gave a thorough corrective
instruction, admonishing the jury to disregard the prosecutor's
question. See Jackson I, 145 Ill.2d at 69-71. The State had already
presented evidence relevant to Jackson's state of mind. See id. at 61-64.
Under Darden and its progeny, these are all factors that a court may
review to determine whether a petitioner received a fair trial. See
Swofford, 137 F.3d at 444-45.
The jury was presented with evidence of Jackson's own oral and written
statements reflecting his mental state prior to and during the homicides.
He described the night's events in great detail. Given that the jury
already had this information before it, Jackson was unlikely further
prejudiced by the question posed to Dr. Ziporyn. The Illinois Supreme
Court reasonably reviewed the record as a whole, and determined that, in
light of the strong evidence of Jackson's mental state, any possible
error in the State asking this question of Ziporyn was harmless. See
Jackson I, 145 Ill.2d at 94-95. This is neither contrary to nor an
unreasonable application of
relevant Supreme Court precedent. See e.g. Brecht, 507 U.S. at 623 (error
is harmless unless it has "substantial and injurious effect or influence"
on the verdict). Therefore, this court denies Jackson's request for
habeas relief with respect to this allegation of prosecutorial
misconduct. See Hammer v. Karlen, 342 F.3d 807, 810 (7th Cir. 2003)
(state court decision must be at least "minimally consistent" with case's
particular circumstances) (internal citations omitted).
3. State's Failure to Tender Statement Given by Roland to
Third, Jackson argues that the State improperly withheld a statement he
had made to Roland, in which he admitted stabbing people in the
apartment. He claims that this also violates his right to a fair trial.
The State used this statement in cross-examining Roland, ostensibly to
weaken Jackson's voluntary intoxication defense. This conversation
between Roland and Jackson served as further evidence of Jackson's mental
state on the night of the murders.
During cross-examination, one of the prosecutors questioned Roland
about the events during the evening of September 24. Roland testified
that he observed Jackson walking down the stairs from the apartment where
the murders took place, and he seemed to have no difficulty walking with
a large television. See Jackson 1, 145 Ill.2d at 66. Roland further
testified that Jackson did not demonstrate any difficulty speaking and
that he never indicated to Roland that he could not remember where he had
been or what he done that evening. See id. Finally, Roland testified
that, in a telephone call after the murders, Jackson told him that he had
stabbed the victims. See id. Jackson objected, claiming not to have had
knowledge of the State's intention to present the details of this phone
call. The prosecutor claimed he had just learned of this statement while
speaking with Roland earlier that day before cross-examination. The
Illinois Supreme Court found that, if there was any error committed, it
was harmless. See id. at 95.
Jackson's contention is that, had he known of this statement, he
would have prepared much differently, and possibly chosen not to call
Roland as a witness. He maintains that it is impossible to calculate the
effect that this statement had on the jury, and that it was unreasonable
for the Illinois Supreme Court to treat this claim, along with related
prosecutorial misconduct claims, in summary fashion and relegate them to
the harmless error `wastebasket,' The Jackson I court found that
this statement "could hardly have been revelation[s] to the jury."
Id. at 95. Jackson had already given very detailed statements to
the authorities the day after the crimes, and this, coupled with the
non-objectionable testimony from Roland and evidence from another expert,
made Roland's arguably improperly-admitted statement "a trivial piece of
evidence" in comparison. Id.
In order to prevail on this habeas claim, Jackson would need to show
that the Illinois Supreme Court's decision on this matter was either
contrary to or an unreasonable application of relevant Supreme Court
precedent. See 28 U.S.C. § 2254(d)(1) & (d)(2). The court's treatment of
this exchange as harmless error was not unreasonable. See Hasting, 461
U.S. at 508. In light of Jackson's oral and written statements given to
the authorities the day of his arrest, as well as other evidence
introduced at trial, it is unlikely that the statement given by Roland
had a substantial or injurious effect on the jury's verdict. See Brecht,
507 U.S. at 637-38. The Supreme Court has also found that the admission
of a witness' testimony may be harmless if the testimony is cumulative of
other testimony already presented and is corroborated by other evidence
on material points. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)
(internal citation omitted). Roland's testimony was cumulative of the
admission of Jackson's own
statements, and was largely corroborated by those statements; thus,
its presence at trial, even if improper, constituted harmless error.
Once again, under the AEDPA, this court may only grant habeas relief if
the state court's decision was objectively unreasonable. See Williams,
529 U.S. at 410. Considering the state of the evidence against Jackson,
the Jackson I court reasonably decided that the prosecution's use of
Roland's statement was harmless error. See Jackson I, 145 Ill.2d at
94-95. Because the Illinois Supreme Court's application of relevant
Supreme Court precedent was not objectively unreasonable, Jackson's
request for habeas relief is denied. See Mitchell v. Esparza, 124 S.Ct.
7, 12 (2003) ("habeas relief is appropriate only if [the state court]
applied harmless-error review in an `objectively unreasonable' manner"),
citing Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003); see also Jackson v.
Frank, 348 F.3d 658, 662 (7th Cir. 2003) ("unreasonable means something
like lying well outside the boundaries of permissible differences of
opinion"), citing Hardaway, 302 F.3d at 762.
4. Dr. Reifman's and Prosecutor's Misleading of Jury by Incorrectly
Stating Voluntary Intoxication Defense
Finally, Jackson contends that Dr. Reifman, the State's expert
psychiatric witness, and then the prosecutor, misled the jury by
incorrectly explaining the voluntary intoxication defense. Dr. Reifman
explained that he was just giving his opinion. This is similar to opinion
testimony expressed by Dr. Ziporyn, Jackson's own expert. Both Jackson
and the State were entitled to call expert psychiatric witnesses, and the
jury was free to determine the credibility of these witnesses.
When presented with this claim, the Illinois Supreme Court concluded
that, prior to deliberation, the jury was provided with the correct
instructions on the operation of the voluntary intoxication defense;
therefore, no error occurred. See Jackson I, 145 Ill.2d at 91. In his
brief submitted to the Jackson I court, Jackson agreed that the jury was
instructed correctly. Even if the jury may have been somewhat confused by
Reifman's testimony, this does not mean that Jackson was denied a fair
trial. Jury confusion, by itself, may justify the granting of habeas
relief, but only if that confusion "resulted in a verdict that no
rational trier of fact could have reached on the basis of the evidence
presented." DiGiacomo v. Franzen, 680 F.2d 515, 519 (7th Cir. 1982),
citing Jackson v. Virginia, 443 U.S. 307, 319 (1979). This court cannot
say that jury confusion in Jackson's case, if any, resulted in a verdict
that no rational trier of fact could have reached.
In this case, the Illinois Supreme Court reasonably determined that, if
any error was committed with respect to Reifman and the prosecutor's
testimony, it was harmless. See Jackson I, 145 II1.2d at 91. As stated
previously, the jury already had evidence of Jackson's own statements as
well as testimony from Roland demonstrating Jackson's mental state on the
night of the crimes. Jackson has not shown that the court's decision
violated Darden or other relevant fair trial precedent. Given the other
evidence available to the jury, this court finds, as required by AEDPA,
that the Illinois Supreme Court's decision was at least "minimally
consistent" with the facts of the case, and at least "one of several
equally plausible outcomes." See Searcy v. Jaimet, 332 F.3d 1081, 1089
(7th Cir. 2003). Therefore, this court denies the requested habeas relief
based on the alleged error enumerated in this allegation of prosecutorial
misconduct. Jackson's request for habeas relief as to all allegations in
Claim # 2 is denied.
B. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL (Claim # 3)
Jackson's third claim is that trial counsel was ineffective for not
thoroughly conducting discovery and preparing witnesses.*fn10 He
contends that, had trial counsel prepared more fully, the result of the
trial would have been different. Jackson raised this claim in a petition
for post-conviction review submitted to the Cook County Circuit Court;
however, he did not include this claim in his appeal to the Illinois
Supreme Court following the dismissal of that petition. He had appealed
most of the claims he raised in the petition for post-conviction relief,
but for reasons beyond this court's knowledge, he included neither this
claim nor Claim # 4 (ineffective assistance of appellate counsel,
described below) in that appeal.
As stated in Part II.B, supra, before a federal habeas court may reach
the merits of a petitioner's claims, it must determine whether the
petitioner exhausted all available state remedies. See Boerckel 526 U.S.
at 843; see also Rodriguez, 193 F.3d at 916, In this case, Jackson did not
exhaust his state remedies, since he did not invoke one complete round of
Illinois' established appellate process with respect to this claim. See
Boerckel, 526 U.S. at 845; Mahaffey v. Schomig, 294 F.3d 907, 914 (7th
Cir. 2002) (petitioner must give the state's highest court an opportunity
to address each claim) (internal citations omitted).
Jackson never presented the ineffective assistance of counsel claim set
forth in his habeas petition to the Illinois Supreme Court. He raised
ineffectiveness claims based on other issues,
such as alleged errors in the mitigation and aggravation stage of his
trial, but not based on the issues presented in his habeas petition.
Thus, he has not given "the state courts a meaningful opportunity to pass
upon the substance of the claims later presented in federal court,"
Rodriguez, 193 F.3d at 916, citing Picard v. Connor, 404 U.S. 270, 275
(1971). As a result, this claim is procedurally defaulted, and this court
should review the merits only if Jackson can demonstrate either cause and
prejudice or a fundamental miscarriage of justice. See Coleman, 501 U.S.
at 750; Anderson, 221 F.3d at 899-90.
In his petition, Jackson's only attempt to explain the reason for the
failure to present this claim in state court is the ineffectiveness of
appellate counsel, stating that where appellate counsel's performance is
objectively unreasonable and deficient, the failure to raise issues on
appeal will constitute "cause and prejudice." See Freeman v. Lane,
962 F.2d 1252, 1259 (7th Cir. 1992). Jackson claims that appellate
counsel was ineffective for failing to raise trial counsel's
In Edwards v. Carpenter, 529 U.S. 446, 451 (2000), the Supreme Court
held that, where a petitioner raises an ineffectiveness of counsel claim
as cause for excusing a procedural default, the claim asserted as cause
may itself be procedurally defaulted, In the instant case, Jackson never
presented his ineffective assistance of appellate counsel claim to the
Illinois Supreme Court. According to Edwards, this court may only
consider the ineffectiveness of appellate counsel claim if Jackson can
establish cause and prejudice for the default. See id. at 453,
Jackson has not attempted to demonstrate cause and prejudice for the
procedurally defaulted ineffective assistance of appellate counsel claim,
which he now wishes to have this court consider both as a distinct claim
and as a basis to review his procedurally defaulted
ineffective assistance of trial counsel claim. Normally, this court would
not consider the merits of either Claim # 4 or # 5 because of the
procedural defaults; nevertheless, since the State did not raise procedural
default as a bar to a merits determination, this court will review both
claims on their merits.
Claims of ineffective assistance of trial counsel are governed by
Strickland v. Washington, 466 U.S. 668 (1984). To establish an
ineffective assistance of counsel claim, Jackson must prove two
components: first, that counsel's performance was deficient, consisting
of "errors so serious that counsel was not functioning as the `counsel'
guaranteed the defendant by the Sixth Amendment"; second, that these
errors prejudiced the defense, by being "so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable."
Strickland, 466 U.S. at 687. If Jackson is unable to demonstrate both
Strickland prongs, his ineffective assistance claim will not succeed.
Id. Because the Illinois Supreme Court did not have an opportunity to
review this claim, this court will "dispose of the matter as law and
justice require." 28 U.S.C. § 2243; see also Braun v. Powell, 221 F.3d 908,
917 (7th Cir. 2000).
Jackson's main argument is that, had trial counsel conducted discovery
competently and thoroughly interviewed all of the trial witnesses, he
would have been aware of the existence of a few damaging statements that
were presented at trial. If counsel had been aware of these statements,
he could have prepared the case differently and possibly avoided the
situation of surprise at trial. This court notes that Jackson's counsel
attempted to suppress Jackson's statements to the police and the state's
attorney on Fifth Amendment grounds. His attorneys also diligently
presented a voluntary intoxication defense, even though the Illinois
Supreme Court indicated that the trial court should not have allowed this
affirmative defense to be presented.
See Jackson I, 145 Ill.2d at 86. Finally, his attorneys promptly objected
to each instance of allegedly improper behavior by the State. See id. at
66-76. Thus, this court cannot say that Jackson's counsel was necessarily
deficient. Even assuming that Jackson has met the first Strickland
prong, he has not shown how this allegedly deficient performance
prejudiced him. See Strickland, 466 U.S. at 687.
The main evidence tending to disprove Jackson's voluntary intoxication
defense consisted of his own statements to the police and to an assistant
state's attorney. He offered very detailed statements to the
authorities, which the jury could have reasonably viewed as indicative of
his state of mind on the night of the homicides. See Jackson I, 145
Ill.2d at 61-62. These statements likely caused the jury to find that
Jackson and Driskel formed a plan to kill Mark Brown and take his money
and possessions, and that the drugs they used did not impair their
intent. Given that the other harmful evidence that was presented at trial
was merely cumulative of statements from Jackson himself, this court is
hard-pressed to find that Jackson was prejudiced by the additional
evidence. Under Strickland., prejudice is found only when, there is a
reasonable probability that, in the absence of counsel's errors, "the
result of the proceeding would have been different." See Strickland, 466
U.S. at 694.
In this case, it is unlikely that, even if Jackson's attorneys
conducted discovery differently, the end result of the proceedings would
have differed. The jury would probably not have accepted Jackson's
voluntary intoxication defense, given the state of the evidence against
him. When reviewing the prosecutorial misconduct claims, the Jackson I
court noted that Jackson's memory "appear[ed] to have gotten
progressively worse as he attempted to build his intoxication defense."
See Jackson I, 145 Ill.2d at 88. Given the presence of Jackson's own
thorough account of the night's events, there is no reasonable
probability that the absence of harmful statements by Dr. Ziporyn, Dr.
O'Donnell or O.C. Roland would have affected the jury's verdict. Thus,
Jackson has not demonstrated prejudice as required to succeed with an
ineffective assistance of counsel claim, and the court denies habeas
relief as to this claim. See Strickland, 466 U.S. at 687 ("counsel's
errors [must have been] so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable").
C. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL (Claim # 4)
As stated in Part IV.C, Jackson contends that he was denied effective
assistance of appellate counsel by appellate counsel's failure to raise
trial counsel's ineffectiveness. This claim does not prevail as "cause"
to excuse the procedural default of Claim # 3, nor should it be reviewed
as a distinct claim on the merits, because Jackson did not give the
Illinois Supreme Court an opportunity to review the merits of this
argument. Principles of comity and federalism generally require that
constitutional claims be first fairly presented in state court. See
Edwards, 529 U.S. at 451; Murray v. Carrier, 477 U.S. 478, 489 (1986).
Similar to Claim # 3, Jackson did not present this claim to the Illinois
Supreme Court in his appeal from the denial of post-conviction relief. As
such, he did not exhaust his state remedies with respect to this claim
and it is now procedurally defaulted. See Boerckel, 526 U.S. at 848.
This claim was raised in Jackson's petition for post-conviction relief
submitted to the Cook County Circuit Court; however, he did not pursue
the issue in his appeal to the Illinois Supreme Court. His habeas
petition contains neither an explanation for the absence of this claim
from his appeal to the Illinois Supreme Court following the denial of
post-conviction relief, nor
any mention of the cause and prejudice or fundamental miscarriage
of justice exceptions as would normally be required for this court to
review the merits of Claim # 4. However, because the State did not raise
the procedural default issue with respect to this claim, this court will
review the merits. As with Claim # 3, since the Illinois Supreme Court
was not afforded with the opportunity to review the merits of Claim # 4,
this court will "dispose of the matter as law and justice require."
28 U.S.C. § 2243.
Strickland also sets forth the proper standard for reviewing claims of
ineffective assistance of appellate counsel. See Williams, 529 U.S. at
390-91. Under the first Strickland prong, appellate counsel's performance
is deficient if counsel fails to appeal any issue that is both obvious
and clearly stronger than the issues that were raised. See Winters v.
Miller, 274 F.3d 1161, 1167 (7th Cir. 2001). To establish prejudice under
the second Strickland prong, the petitioner must show that appellate
counsels' failure to raise an issue might have resulted in the reversal
of his conviction or an order for a new trial. See id. As with trial
counsel, this court must indulge a strong presumption that appellate
counsel was constitutionally effective. See Strickland, 466 U.S. at 688;
Mason v. Hanks, 97 F.3d 887, 892 (7th Cir. 1996).
On direct appeal, Jackson's counsel raised a number of issues,
including all of the instances of prosecutorial misconduct alleged in
Claim # 2. The Illinois Supreme Court denied Jackson's requests for
relief. See Jackson 1, 145 Ill.2d at 54-55. It does not appear that
appellate counsel raised a claim of trial counsel's ineffectiveness;
however, Jackson has made no showing that this issue was "clearly
stronger" than the other issues raised by appellate counsel. See
Winters, 274 F.3d at 1167. There is no reason to believe that the Jackson
I court would have found an ineffective assistance of trial counsel claim
to be stronger than the prosecutorial
misconduct claims raised by appellate counsel, which were based on the
same underlying events. Jackson has not demonstrated that his appellate
counsel's performance was deficient. See id. (appellate counsel is not
required to "raise every non-frivolous issue under the sun.") (internal
Accordingly, Jackson has not met the first prong of the test for
ineffective assistance of appellate counsel, and this court need not
consider whether he could demonstrate prejudice. Even if Jackson had
shown deficient performance, no showing of prejudice has been made. This
court found in Part IV. D, supra, that Jackson did not show ineffective
assistance of trial counsel. Thus, there is no reasonable probability
that, had appellate counsel raised a claim alleging trial counsel's
ineffectiveness, Jackson's conviction would have been reversed. See Lee
v. Davis, 328 F.3d 896, 901 (7th Cir. 2003). This court denies Jackson's
request for habeas relief under Claim #4.
D. CUMULATIVE EFFECT (Claim # 5)
Jackson's final habeas claim is that, even if each alleged error
standing alone did not amount to a denial of due process, they may
cumulatively amount to a denial of due process. The State contends that,
since none of Jackson's claims have merit, their "cumulative effect" does
not require any habeas relief. See Wainwright v. Lockhart, 80 F.3d 1226,
1233 (8th Cir. 1996).
Individual trial errors which alone may be harmless may, in the
aggregate, violate a defendant's right to due process of law. See
Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000). To establish
that the cumulative effect of the trial court's errors violated his due
process rights, Jackson must demonstrate that at least two errors were
committed and that, "when considered
together along with the entire record, the multiple errors so infected
the jury's deliberation that they denied the petitioner a fundamentally
fair trial." See id. at 824 (internal citations omitted). Simply put, he
must show that, but for the trial court's multiple errors, the trial's
outcome would have been different. See id. at 825; see also U.S. v.
Alien, 269 F.3d 842, 847 (7th Cir. 2001).
Jackson has not clearly established that there was even one trial
error. Without more, there are no ill effects to accumulate. See
Alvarez, 225 F.3d at 825. In light of the proper evidence presented at
Jackson's trial, even assuming that there were trial errors, Jackson has
not demonstrated that "but for the errors, the outcome of the trial
probably would have been different." See id. at 824. Therefore, the court
denies Jackson's cumulative effects claim.
V. EVIDENTIARY HEARING
Jackson contends that an evidentiary hearing under 28 U.S.C. § 2254(e)(2)
is warranted to further develop his claims. Federal habeas courts,
however, are not an alternative forum for trying facts and issues that a
habeas petitioner did not pursue in state court. See Williams, 529 U.S.
at 437. Section 2254(e)(2) provides that, if a factual basis of a claim
was not developed in the state court, the federal habeas court cannot
hold an evidentiary hearing unless the petitioner can show:
(A) the claim relies on
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have
been previously discovered through the exercise
of due diligence; and
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
Jackson does not argue that there is a new rule of constitutional law
that was previously unavailable to him. Therefore, he must establish that
the failure to develop the factual record in state court, if any lack of
development exists, was not his fault. See Williams, 529 U.S. at
432. He has not explained how the factual record may be lacking in
development, and thus, it appears that he does not meet the first prong
of the stringent test set forth in 28 U.S.C. § 2254(e)(2).
Even if this court were to find that there is some sort of factual
predicate that has not been developed, Jackson must meet the second prong
of this statute. To do so, he would have to point to facts that are
sufficient to establish by clear and convincing evidence that, but for
the constitutional error, no reasonable factfinder would find him guilty
of the murders at issue. See Harris v. McAdory, 334 F.3d 665, 669-70 (7th
Cir. 2003). He has not met this standard Jackson, therefore, has failed
to make the requisite showing for an evidentiary hearing pursuant to
28 U.S.C. § 2254(e)(2). Therefore, the court denies his request.
For the foregoing reasons, Jackson's amended petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is denied. Any pending
motions are denied as moot. This case is terminated.
IT IS SO ORDERED:
*fn2 The Cook County Circuit Court, Joseph Urso, J., assigned case
number 86-CR-14456 to the proceedings.
*fn3 Madigan v. Snyder dealt with challenges to the commutations of
prisoners who either (1) had not signed the clemency petitions, or (2) had
already had their death sentences reversed at the time of the
commutations. See 2004 WL 316116, * 1. Jackson was not in either of these
*fn4 Jackson also raised ineffective assistance of trial and appellate
counsel claims related to Claim # 1. Since these claims also involve
challenges to his death penalty sentence, they are now moot,
*fn5 Jackson also briefly argues that appellate counsel was ineffective
for not raising the prosecutorial misconduct issues on appeal; however,
these issues were raised on direct appeal and considered by the Illinois
Supreme Court. See Jackson I, 145 Ill.2d at 54-55. Thus, this claim is
*fn6 The record does not contain Jackson's discovery requests and it
is not completely clear what information was actually requested of the
State; thus, this court is not certain whether the State complied with
Jackson's discovery requests or not.
*fn7 This standard does not apply to structural defects; however,
Jackson's claims of trial error in this case do not constitute structural
defects. See Arizona v. Fulminante, 499 U.S. 279, 309 (1991) (limited
class of fundamental errors that "defy analysis by harmless error
standards" and require automatic reversal.)
*fn8 The analysis of the alleged withholding of evidence in all
components of Claim # 2 would be quite different if the evidence in
dispute were exculpatory or impeachment evidence. The State has a clear
obligation to disclose evidence that is potentially favorable to a
defendant, such as exculpatory and impeachment evidence. See e.g. Brady
v. Maryland, 373 U.S. 83 (1963); Giglio v. U.S., 405 U.S. 150 (1972); U.S.
v. Agurs, 427 U.S. 97 (1976).
*fn9 This court notes that there is some dispute as to whether the
State truly failed to give this information to Jackson. Some of the
prosecutors claimed that they had in fact shared this statement with at
least one of Jackson's attorneys. For purposes of Jackson's argument, the
court will assume that the State did not share this statement with
*fn10 He also alleges that trial counsel was ineffective for not
objecting to the State's use of peremptory challenges to exclude
venirepersons who seemed weak on the death penalty. As stated in Part
IV.A, supra, this claim is moot, since Jackson is no longer subject to
the death penalty, and all but one of the improper exclusions he
describes involved the original jury, not the resentencing jury.
Furthermore, even if not moot, this claim is without merit. See
Pitsonbarger v. Gramley, 141 F.3d 728, 735 (7th Cir. 1998) (no Supreme
Court precedent preventing state from using peremptory challenges to
remove jurors who appeared to be opposed to death penalty); Dennis v.
Mitchell, 354 F.3d 511, 525-26 (6th Cir. 2003) (same).
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