United States District Court, N.D. Illinois
March 2, 2004.
UNITED STATES ex rel. WILLIAM CARINI, #N51235, Petitioner,
STEPHEN MOTE, Warden, Respondent
The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
After a bench trial in 1993, William Carini was convicted in state
court of three counts of aggravated sexual assault. He was sentenced to
20 years for one offense, to be served consecutively to concurrent six
year terms for the other two offenses. After multiple state appellate and
collateral proceedings, Carini petitions for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
The Illinois Appellate Court affirmed Carini's conviction and sentence
on direct appeal. People v. Carini, 254 Ill. App.3d 1,
626 N.E.2d 297, (Ill.App. Ct. 1993). Carini did not seek leave to appeal to
the Illinois Supreme Court. In 1994, he sought post-conviction relief,
basing his claim in large part on ineffective assistance of trial
counsel. Carini filed second and third amended petitions in 1995. The
trial court denied his petition on April 17, 1998. The Illinois
Appellate Court affirmed. Unpublished Rule 23 Order, No. 2-98-0593 (Ill.
App. Ct., 2nd Dist., Jan. 26, 2000). The Illinois Supreme Court denied
his petition for leave to appeal. Order, No. 89114, June 22, 2000.
Carini commenced a second collateral attack on his conviction on July
11, 2000. This combined
petition for post-conviction relief argued his conviction was based
on perjured testimony. After an evidentiary hearing, the trial court
dismissed the petition on December 1, 2000.*fn1 The Illinois Appellate
Court affirmed. Rule 23 Order, No. 2-01-0203 (Ill.App. Ct, 2nd Dist.
April 24, 2002). The Illinois Supreme Court denied leave to appeal.
Order, No. 93927, Oct. 2, 2002. Carini filed his third petition for
post-conviction relief on July 11, 2000. The trial court dismissed the
petition. Order, Dec. 13, 2001, Gen. No. 91 CF 2233. The Illinois
Appellate Court affirmed. Rule 23 Order, No. 2-02-0146 (Ill.App. Ct.,
2nd Dist., July 31, 2003). The petition for leave to appeal was denied on
December 3, 2003. Order, No. 96916, Dec. 3, 2003.
Carini petitions for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. The petition alleges seventeen grounds for relief: (1)
the prosecution failed to prove guilt beyond reasonable doubt; (2) the
prosecution failed to disclose a suspect list compiled by the police; (3)
trial counsel was ineffective because he failed to challenge the
prosecution's non-disclosure; (4) denial of due process because the
prosecution knowingly withheld information that the chief witness/victim
had pending criminal charges at the time she testified; (5) trial counsel
was ineffective because he failed to file a pretrial motion to require
the prosecution to test evidentiary items for DNA evidence that may have
demonstrated Carini's innocence; (6) trial counsel was ineffective for
failing to introduce expert testimony regarding the effects alcohol has
on a witness' perception and memory; (7) trial counsel was ineffective
for failing to file a pretrial motion or trial objection to suppress
allegedly suggestive photo and in-person lineups; (8) appellate counsel
was ineffective for failing to raise trial counsel's failure to object to
prosecution witness' use of statistical evidence; (9) appellate counsel
was ineffective because he failed to raise trial counsel's failure
to file a motion to require the state to test evidence for DNA, he failed
to raise trial counsel's failure to introduce expert testimony about the
effects alcohol has on witness' perceptions, and appellate counsel failed
to raise the suggestiveness of the photo and in-person lineups;*fn2 (10)
denial of due process because two prosecution witnesses perjured
themselves; (11) denial of due process because the prosecution
intimidated the victim to retract her recantation of her trial testimony;
(12) denial of effective assistance of counsel because his attorney
failed to include in post-conviction pleadings information obtained in a
June 2000 interview with the victim that established potential
Brady violations; (13) denial of due process because the state
continued to commit discovery violations in post-trial proceedings,
including the failure to disclose the victim's pending criminal charges;
(14) denial of due process because the judge presiding over the second
post-conviction petition was biased; (15) the prosecution has
continuously concealed information that Carini requested under the
Freedom of Information Act ("FOIA"); (16) all claims raised in his
petition for leave to appeal to the Illinois Supreme Court; (17) all
claims previously raised in state proceedings; (18) any delinquencies or
procedural defaults should be excused because his counsel was ineffective
and his imprisonment made it difficult to appeal. The state contends that
most grounds are subject to procedural default and that the others should
be denied on the merits.
Factual findings of a state trial or appellate court are presumed
correct in a federal habeas proceeding unless the petitioner
rebuts the presumption with clear and convincing evidence.
28 U.S.C. § 2254(e)(1). The record does not reveal any evidence
contrary to the findings of the state courts. Indeed, Carini's petition
does not include a statement of facts. Accordingly, the court adopts the
Illinois Appellate Court's summation of the case. Carini, 254
Ill. App.3d at 3-9, 626 N.E.2d at 298-302.
On June 3, 1991, Joann Schulz, a female resident of Valparaiso, Indiana
was attacked while sleeping in her car alongside I-94 south in Illinois.
She was on her way home after spending June 2nd partying, drinking and
boating with her brother in Tichigan, Wisconsin. She left her brother's
house in Tichigan at about 1:30 a.m. on June 3rd. After driving for about
an hour, Schulz decided to stop and rest her eyes. She pulled off the
highway and onto the shoulder somewhere near Grand Avenue in Lake County,
Illinois. Carini has continually asserted Schulz felt tired because she
was drunk. Schulz did not recall when she pulled over, but estimated that
it was about 3:00 or 3:30 a.m. She left the doors unlocked and the
windows rolled down because it was hot. She reclined her seat and fell
Schulz was startled awake by a knife pressed against her throat. A
white man was kneeling over her from the passenger seat. She testified at
trial that the man had a "square jaw, nappy hair, and a very prominent
scar on his upper lip." Carini, 254 Ill. App.3d at 5, 626 N.E.2d
at 300. He ordered her to fully recline her seat. He then proceeded to
have vaginal intercourse with her for about five minutes. The man then
grabbed Schulz's hair and forced her face down into the back seat. There,
he had anal intercourse with her for five to ten minutes, despite her
pleas to stop. The man finally stopped, but he grabbed her hair and
forced her to perform oral sex on him while he sat down in the front
passenger seat. Schulz bit down on the attacker's penis. The man cried
out in pain and tumbled from the car. Schulz sped away, driving into
Indiana without stopping. Once home, Schulz
showered and noticed blood between her legs. She exited the shower
immediately and called the hospital. The hospital instructed her to
refrain from showering and to bring her clothing with her to the
emergency room. At the hospital, a doctor examined her and took samples.
Schulz also spoke with police officers.
Later on that day, Schulz met with Illinois State Police Officer James
Gentilcore at her home in Valparaiso. Gentilcore was the lead
investigator and testified at trial. At this initial meeting, Gentilcore
obtained a description of Schulz's attacker as a "white male in his late
twenties to early thirties who weighed approximately 175 to 180 pounds,
was 5 feet 7 inches tall, had dark fuzzy cut hair, was clean shaven, and
had a one-quarter-inch scar above his right lip," Id. at 3, 626
N.E.2d at 298. Gentilcore submitted this description to an analyst. Using
this information, the analyst gave Gentilcore a computer generated list
of potential suspects. The list contained over 100 names of individuals
who lived in the general area of the attack and matched the description
provided by Schulz.
At trial, Gentilcore testified that he selected Carini from the list
because he was the only person who resided near the site of the attack.
The other names on the list lived in counties further west or south of
the attack site. Gentilcore obtained a photograph of Carini from the
Wheeling, Illinois police department and returned to Valparaiso on July
17, 1991 about two weeks after the attack.
Gentilcore met Schulz at the automobile dealership where she worked. On
a desk, Gentilcore displayed six black and white photographs of
individuals who may or may not have been her attacker. Each person in the
photograph lineup had characteristics similar to those of the attacker
described by Schulz. After reviewing at the photographs for about five
minutes, Schulz tentatively
identified Carini. She explained that the hair was exact and the
chin was perfect, but that she did not like the angle of the chin in the
photograph. Gentilcore asked if she would like to see a color photograph
of anyone in the lineup. Schulz requested to examine a color photograph
of Carini. Again, she tentatively identified Carini as her attacker, but
informed Gentilcore that she could not be absolutely certain because of
the angle at which the photograph was taken.
A few weeks later, on September 4, 1991, Gentilcore visited Carini at
his home. He noticed Carini had a very light mustache and a scar above
his left lip that was about one-quarter-inch long. Gentilcore testified
that after his visit with Carini, he called Schulz and asked her if she
was sure about the scar. She responded affirmatively and said that it was
on the right side of his face. Gentilcore asked if she meant her right,
or the perpetrator's right. According to Gentilcore, Schulz responded by
apologizing and saying that she should have told him earlier that she
meant her right side as she looked at him, the perpetrator's left side.
On this information, Gentilcore asked Schulz to come to the police
station to view an in-person line-up. Schulz came in on October 17, 1991.
Gentilcore told her that the individuals in the line-up may or may not
include the person who attacked her. The six participants entered the
viewing room single-file. Gentilcore testified that when Carini entered,
Schulz stepped back from the viewing window and appeared emotionally
upset. She trained her eyes on Carini. After ten to fifteen minutes,
Gentilcore attempted to comfort Schulz. He asked her if she could
identify an individual and told her it was okay if she could not. Schulz
identified Carini. At trial, Gentilcore made an in-court identification
of Carini as the man Schulz selected during the photographic and
in-person lineups. Schulz also identified Carini as her attacker at
trial, noting that Carini had a
mustache at trial that he did not have when he attacked her.
Carini's family members testified that he was sleeping at their home at
the time the alleged attack occurred.
Before reaching the merits of Carini's petition, the court must
determine whether his claims are procedurally barred. Spreitzer v.
Schomig, 219 F.3d 639, 644 (7th Cir. 2000). Under § 2254, a
petitioner must fairly present his federal claims to the state courts
before he is eligible for a writ of habeas corpus. O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry,
513 U.S. 364, 365 (1995). Beyond the fair presentment requirement, a federal
court is also precluded from reaching the merits of a. habeas
petition when the petitioner's claims were dismissed in state court
pursuant to a state procedural bar. Jenkins v. Nelson,
157 F.3d 485, 491-92 (7th Cir. 1998), citing Wainwright v. Sykes,
433 U.S. 72, 90-91 (1977). The doctrine of procedural default bars federal
habeas review if the underlying state court decision rests on a
state law ground that is both "independent of the federal question and
adequate to support the judgment." Coleman v. Thompson,
591 U.S. 722, 730 (1991). The state court decision is independent and adequate
only if the judgment clearly and expressly rests on an underlying state
procedural bar. Jenkins, 157 F.3d at 491, citing Harris v.
Reed, 489 U.S. 255, 263 (1989). The state contends that most of
Carini's seventeen grounds for relief are procedurally barred.
Carini's first claim for relief is a due process argument. He contends
he was not proven guilty beyond a reasonable doubt in his original 1991
bench trial. He argues that Schulz was under the influence of alcohol at
the time of the attack and therefore was incapable of positively
identifying her attacker. He asserts the reliability of his conviction is
further undermined by inconclusive
physical evidence found in Schulz's car. An investigation of the
car uncovered fingerprints and pubic hair, but neither could be matched
to Carini. The state does not argue the merits of Carini's claim, but
responds that the claim is procedurally barred because Carini failed to
present the argument before the Illinois Supreme Court on direct appeal.
Carini unsuccessfully appealed his conviction and sentence to the
Illinois Appellate Court. Carini, 254 Ill. App.3d 1, 626 N.E.2d 297.
However, he failed to petition for leave to appeal with the Illinois
Supreme Court. Because Carini failed to invoke "one complete round of the
State's established appellate review process," his claim is procedurally
defaulted. Hadley v. Holmes, 341 F.3d 661, 664 (7th Cir. 2003),
citing Boerckel, 526 U.S. at 845.
Carini's second claim for relief was raised on direct appeal. He
contends the state failed to comply with its discovery obligations
because it did not disclose the 100 person suspect list Gentilcore used
at the beginning of his investigation. The state does not dispute the
merits of Carini's argument, but contends the issue is procedurally
defaulted. On direct appeal, the Illinois Appellate Court declined to
address Carini's claim because both a trial objection and a written
post-trial motion are necessary to preserve a trial court error for
appeal. Carini, 254 Ill. App.3d at 13, 626 N.E.2d at 305. By
failing to object or move for a continuance at trial, Carini waived his
right to appeal. Id; People v. Coleman, 158 Ill.2d 319,
333-338, 633 N.E.2d 654, 662-64 (1994), citing People v. Enoch,
122 Ill.2d 176, 522 N.E.2d 1124 (1988). Waiver is an independent and
adequate state procedural ground for dismissal. Rodriguez v.
McAdory, 318 F.3d 733, 735 (7th Cir. 2003) (failure to raise
objection in post-trial motion resulted in procedural default precluding
habeas review). Accordingly, Carini's second claim must be
Claims 3 and 8
Carini asserts his trial counsel was ineffective because he failed to
challenge the prosecution's non-disclosure of material information (Claim
3). He asserts appellate counsel was ineffective for not raising this
argument on appeal (Claim 8). Carini first raised both claims in his
original post-conviction petition. See Resp.'s Ex. C at ¶ 4.
There, he argued that trial counsel failed to demand that the prosecution
turn over the statistical report Gentilcore initially used to narrow the
suspect list down to Carini. Id Carini argued that his appellate
counsel was ineffective for not raising trial counsel's failure to demand
the state comply with its discovery obligations. Id The gist of
these claims changed on Carini's subsequent appeal to the Illinois
Appellate Court. In appealing the trial court's denial of
post-conviction relief, Carini premised his ineffective assistance of
counsel claim against trial counsel on failure to object to the
admissibility of Gentilcore's statistical report. Resp. Ex. H at pp.
17-18. This shift in strategy also transformed Carini's claim against his
appellate attorney, because it relied on a different factual predicate.
Although Carini presented his current claims to the state trial court, by
changing the basis for his claims in his appellate brief, he failed to
fairly present the issues to the Illinois Appellate Court. Howard v.
O `Sullivan, 185 F.3d 721, 725 (7th Cir. 1999). Accordingly, claims
3 and 8 are procedurally defaulted.
Claims 4 and 9
Carini's fourth ground for relief is that he was denied due process
because the prosecution knowingly withheld impeachment evidence against
Schulz. Claim nine includes identical allegations aimed at Carini's
appellate counsel. Carini was represented by the same attorney at trial
and on direct appeal. The Illinois Appellate Court treated the claims
together. This court will do the same.
Specifically, Carini claims that despite a request by trial counsel,
the prosecution failed to provide Carini with evidence that Schulz was
subject to pending criminal charges at the time she testified. Carini
raised this argument in his third petition for post-conviction relief,
and it is a valid constitutional claim. A Brady violation occurs
only if the evidence is material to guilt or punishment; undisclosed
impeachment evidence is material if there is a reasonable probability the
outcome of the trial proceeding would have been different. United
States v. Bagley, 473 U.S. 667, 682 (1985). Nevertheless, Carini's
claim is beyond the scope of habeas review because he failed to
pursue it in his subsequent appeal to the Illinois Appellate Court.
See Resp. Ex. S. Allegations against appellate counsel were
completely dropped from his appeal brief. His cursory citation to
Brady v. Maryland and his one sentence argument do not
constitute full and fair presentment of his claim against trial counsel.
Verdin v. O'Leary, 972 F.2d 1467, 1473-74 (7th Cir. 1992).
Casual reference to a Supreme Court case without explanation of the
claim's underlying facts is insufficient to preserve a claim for
habeas review. Id. Inadequate presentation of the
claim prevented the Illinois Appellate Court from even considering the
claim. See Rule 23 Order, No. 2-02-0146 (Ill.App. Ct., 2nd
Dist. July 31, 2003). Carini's failure to exhaust the state appellate
process by fully and fairly presenting his claims is fatal.
White v. Godinez, 192 F.3d 607, 608 (7th Cir. 1999).
Claims 5 and 9
Claims 5 and 9 are essentially the same. Claim five alleges that trial
counsel was ineffective because he failed to file a motion to require the
state to test evidentiary items for DNA evidence. Claim nine alleges that
appellate counsel was ineffective for failing to challenge trial
counsel's failure to file the pretrial motion. Carini's counsel at trial
and on direct appeal were the same person. The Illinois Appellate Court
denied Carini's claim on the merits, finding that Carini was not
prejudiced by counsel's failure to request DNA evidence because he
was able to secure post-conviction DNA testing pursuant to a motion filed
under 725 ILCS 5/116-3(a). Unpublished Rule 23 Order, No. 2-98-0593, Jan.
26, 2000 at 8-10. Under Strickland v. Washington, an attorney's
performance is constitutionally defective if it falls below an objective
standard of reasonableness, and there is a reasonable probability "but
for counsel's unprofessional errors, the result of the proceeding would
have been different." 466 U.S. 671, 688, 104 S.Ct. 2052 (1984). Carini
must demonstrate the Illinois Supreme Court applied Strickland
in an objectively unreasonable manner. 28 U.S.C. § 2254(d); see
also Holman v. Gilmore, 126 F.3d 876, 881 (7th Cir. 1997) (state
court application of Strickland accorded deference under §
2254(d)(1)). This he has failed to do. Carini does not argue his
counsel's failure to request DNA testing at trial led to his conviction,
nor has he argued that his chance to obtain DNA testing was foreclosed by
his counsel's failure. See § 2254(c). Absent a showing of
prejudice, claims that his trial and appellate counsel were ineffective
for failing to pursue a DNA inquiry into the evidence must fail.
Claims 6 and 9
Carini claims his trial counsel was ineffective because he failed to
present expert testimony concerning the effect alcohol and prescription
drugs could have had on Schulz's ability to identify her attacker. He
asserts appellate counsel was ineffective for failing to raise this
claim. Carini was represented by the same attorney during trial and on
direct appeal. The Illinois Appellate Court dismissed both claims because
Carini failed to comply with the procedural requirements of the
Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-2.*fn3
Unpublished Rule 23 Order, No. 2-98-0593, Jan. 26, 2000 at 11-12. This is
an independent and adequate state ground that bars federal
habeas review. Moore v. Bryant, 295 F.3d 771, 774 (7th
Claims 7 and 9
Carini alleges he was denied effective assistance of counsel when his
trial counsel failed to move to suppress the allegedly suggestive photo
and in-person lineups. He also asserts his appellate counsel was
ineffective because he failed to attack this error on direct appeal. Both
claims saw first light in this habeas petition. The closest
Carini came to pleading these assistance of counsel claims was in his
first post-conviction petition, wherein he alleged that he was denied due
process by the suggestive line-up. Resp. Ex. C. at ¶ 5. But this is
not the same argument. Carini's failure to submit these ineffective
assistance of counsel claims to a full round of state appellate review
means they are procedurally defaulted. Boerckel, 526 U.S. at
Carini argues his conviction is based on the perjured testimony of
Schulz and Gentilcore. This claim was initially raised in his second
petition for post-conviction relief. Both claims were denied, and Carini
failed to include his challenge to Gentilcore's testimony in his
subsequent appeal. Accordingly, that claim is procedurally defaulted.
Turning to Schulz's testimony, the Illinois Appellate Court dismissed
this claim on the merits. Carini had supported his claim that Schulz
perjured herself with an affidavit by Schulz; she
attested she was no longer certain Carini was her attacker and that
her identification of Carini at trial was influenced by Gentilcore.
Rule 23 Order, No. 2-01-0203 at p. 2 (Ill.App. Ct, 2nd Dist. April 24, 2002);
Pet. Ex. 2. The state responded by submitting a later affidavit by Schulz
in which she explained and refuted the contents of the affidavit she gave
to Carini; she reaffirmed her trial testimony. Id. at 2-4. In
considering both affidavits, the trial court found that Schulz had been
"unduly pressured and frightened into recanting her identification of
[Carini] as the perpetrator of the aggravated sexual assault."
Id. As the appellate court noted, the trial court was the finder
of fact and was in the best position to determine the credibility of the
affidavits. Id. On the basis of these factual findings, the
appellate court dismissed Carini's petition on the merits, affirming that
Schulz's trial testimony was not perjured.
Even if Schulz's testimony were perjured, Carini must demonstrate that
the prosecution knew or should have known about the perjury and that the
perjured testimony impacted the verdict. Harding v. Walls,
300 F.3d 824, 828 (7th Cir. 2002). In addition, Carini bears the burden of
demonstrating the state court's decision was an objectively unreasonable
application of the law or was premised on an unreasonable reading of the
facts. Woodford v. Visciotti, 537 U.S. 19, 25 (2002). The state
courts found that Schulz had not perjured herself. Carini has submitted
no evidence supporting his claim that Schulz perjured herself at trial
and recanted the post-conviction affidavit because she feared criminal
charges. And the state court findings are supported by Schulz's second
affidavit and the credibility determinations of the trial judge. Carini
fails to meet his burden of demonstrating that the state court's finding
that Schulz's testimony was not perjured was premised on an unreasonable
application of the law or facts. Accordingly, claim 10 is denied on the
Claim 11 alleges that Schulz recanted her June 2000 affidavit because
the prosecution intimidated her. The state correctly points out that this
claim was not properly raised in state court and is thus procedurally
defaulted. See Rule 23 Order, No. 2-01-0203 at p. 3-5 (Ill.App.
Ct, 2nd Dist. April 24, 2002); Resp. Ex. M (Carini's Brief on
Post-Conviction Appeal); Rodriguez, 63 F.3d at 555. Although
Carini argued that Schulz recanted her affidavit because she feared
prosecution, he did not argue that this was prosecutorial misconduct that
entitled him to relief. To the extent Carini made this argument in state
court, it was merely to buttress his contention that Schulz perjured
herself. This fails the fair presentation requirement. Howard,
185 F.3d at 725. Moreover, both the trial judge and the Illinois
Appellate Court found these accusations factually incredible.
Id. Carini has submitted absolutely no evidence suggesting these
factual findings were unreasonable. 28 U.S.C. § 2254(e)(1).
Accordingly, the claim is denied.
Carini claims he was denied effective assistance of counsel during
post-conviction proceedings because his attorney did not effectively
prosecute his claim that Schulz committed perjury. However, Carini has no
constitutional right to post-conviction counsel. Howard, 185
F.3d at 725, citing Pennsylvania v. Finley, 481
U.S.551, 555, 107 S.Ct. 1990, 1993(1987). The AEDPA provides that, "the
ineffectiveness or incompetence of counsel during Federal or State
collateral post-conviction proceedings shall not be a ground for relief
in a proceeding arising under section 2254." 28 U.S.C. § 2254(i).
Claim 12 presents no basis for habeas relief.
Carini alleges he was denied due process because the state withheld
discovery of Schulz's criminal record throughout post-conviction
proceedings. This claim is a rehashed version of claim 4, which alleges
the prosecution improperly withheld Brady material at trial.
This version of the claim was first asserted in his third petition for
post-conviction relief, Resp. Ex. Q at ¶¶ 17-19. The trial court
dismissed his petition as frivolous. Order, Dec. 13, 2001, Gen. No. 91 CF
2233. The basis for this claim changed in his appeal to the Illinois
Appellate Court. There, Carini made cursory reference to the
prosecution's alleged failure to comply with pretrial discovery. Carini
did not mention post-trial Brady violations. This shifting basis
is fatal, Howard, 185 F.3d at 725. Moreover, Carini's
perfunctory mention of Brady does not outline a constitutional
claim. Carini's failure to fully and fairly present his claim for state
appellate review means the claim is procedurally defaulted.
Carini alleges the judge presiding over his second post-conviction
petition for relief was biased. This claim was raised in his third
post-conviction petition, but was abandoned in his appeal to the Illinois
Appellate Court. Accordingly, the claim is procedurally defaulted.
Howard, 185 F.3d at 725.
Carini claims the state improperly denied his requests under the
Freedom of Information Act ("FOIA"). Essentially, he contends that the
state has refused to release information about other suspects on the
100-person list Gentilcore used during his investigation. The state
correctly points out that the alleged FOIA violations are immaterial to
Carini's confinement and are therefore beyond
the scope of habeas review. See Jackson v.
Duckworth, 112 F.3d 878, 880 (7th Cir. 1997); Aleman v.
Sternes, 320 F.3d 687, 690 (7th Cir. 2003) (violations which had no
effect on the outcome of the petitioner's trial do not justify a writ of
habeas corpus). Even if the FOIA violations established a
constitutional claim, the claim is procedurally defaulted because Carini
failed to assert the argument in his subsequent appeal to the Illinois
Claims 16 and 18
Claims 16 and 18 contain no factual or legal allegations. They merely
attempt to incorporate the grounds for relief alleged in his most recent
petition for leave to appeal to the Illinois Supreme Court, and "all
prior claims for relief of record in prior pleadings filed before the
Illinois courts." This style of pleading is inadequate. Rule 2(c) of the
Rules Governing Section 2254 Cases requires a habeas petitioner
to "specify all the grounds for relief which are available" and
"set forth in summary form the facts supporting each of the grounds thus
specified." See United States ex rel. Johnson v. Tally,
47 F. Supp.2d 943, 953-54 (N.D. Ill. 1999); United States ex rel.
Beyah v. Gramley, No 98 C 1865, 1998 WL 867411, at * 11 (N.D. Ill.
Dec. 3, 1998). Notice style pleading is insufficient in the context of
§ 2254 habeas petition. Because Carini did not sufficiently
state facts that would enable this court to determine from the face of
the petition alone whether claims 16 and 18 merit further habeas corpus
review, the claims must be dismissed. United States ex rel. Smith
v. Page, No. 96 C 8558, 1999 WL 977066, *3 (N.D. Ill. Oct. 22,
Cause and Prejudice (Claim 17)
Procedural default prevents the court from reaching the merits of
Carini's claims unless he is able to "`demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal law,
or demonstrate that failure to consider the claims will result in a
miscarriage of justice.'" Anderson v. Cowan, 227 F.3d 893,
899-900 (7th Cir. 2000), quoting Coleman, 501 U.S. at 750.
Carini alleges multiple causes for procedural default of his claims,
including ineffective assistance of counsel, his naivete, and his
imprisonment. Carini's second and third arguments are insufficient to
excuse his failure to properly pursue his claims through the state
appellate process; most prisoners are not attorneys, and by definition
every habeas petitioner is subject to the duress of
imprisonment. See Harris v. McAdory, 334 F.3d 665, 668 (7th
Cir. 2003) (petitioner's pro se status does not excuse
procedural default); Murray v. Carrier, 477 U.S. 478, 488,
106 S.Ct. 2639 (1986) (external factor such as official interference
by prison officers constitutes cause). Although Carini has argued that
his counsel was ineffective, throughout his appeals he has styled this
claim as an independent constitutional basis for relief, not as cause
for procedural default. See Lee v. Davis, 328 F.3d 896, 900-3
(7th Cir. 2003). Because he has failed to raise his counsel's
incompetence as a defense to procedural default in previous state
proceedings, he may not raise it for the first time in his federal
habeas petition. Id. Accordingly, Carini has failed
to demonstrate cause or prejudice for his procedural defaults.
Claims 1 through 11, 13, 14, and 15 are procedurally defaulted. Carini
has failed to show claims 10, 12, 16, and 18 rest on unreasonable
applications of federal law or present cognizable constitutional claims
for relief. Accordingly, those claims are denied on the merits. The
petition for a writ of habeas corpus is denied.