United States District Court, N.D. Illinois
March 15, 2004.
UNITED STATES OF AMERICA ex rel. DAVID WRIGHT, Petitioner,
KENNETH BRILEY, Respondent
The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge
MEMORANDUM AND ORDER
Petitioner David Wright filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. For the
following reasons, Wright's petition is DENIED.
On March 25, 1994, Robert Smith and Tyrone Rockett decided to go out to
purchase soft drinks and cookies. A short time later, they were shot in
the head, execution-style. Following a jury trial in the Circuit Court of
Cook County, on November 1, 1996, Wright was convicted of two counts of
first degree murder in the Circuit Court of Cook County. He received a
sentence of natural life in prison. Wright, through counsel, appealed his
conviction and sentence to the Illinois Appellate Court ("direct
appeal"). On February 5, 1998, the Illinois Appellate Court affirmed
Wright's convictions and sentence. Wright, through counsel, then filed a
petition for leave to appeal in the Illinois Supreme Court ("PLA"). The
Illinois Supreme Court denied Wright's petition for leave to appeal on
June 3, 1998.
On May 12, 1998, Wright filed a petition for post-conviction relief
("post-conviction petition"). On June 23, 1999, Wright's petition for
post-conviction relief was dismissed as frivolous and without merit. When
Wright appealed this dismissal to the Illinois Appellate Court, his
filed a motion to withdraw as counsel ("collateral appeal"). On
March 15, 2000, the Illinois Appellate Court granted Wright's attorney's
motion for leave to withdraw and affirmed the judgment of the trial
court. Wright then filed a pro se petition for leave to appeal
in the Illinois Supreme Court ("PLA"). The Illinois Supreme Court denied
Wright's PLAII on July 5, 2000. Wright filed the instant pro se
petition for writ of habeas corpus on September 18, 2000.
In his § 2254 petition, he contends that: (1) his Fourth, Fifth,
Sixth, Eighth and Fourteenth Amendment rights were violated in connection
with "the proceedings relative to his arrest[,] trial and conviction,
[and] sentencing;" (2) there was insufficient evidence to convict him;
(3) his trial counsel and his appellate counsel on direct appeal were
ineffective; (4) his post-conviction counsel was ineffective because he
did not contend that counsel in Wright's direct proceedings was
ineffective; and (5) the trial court erred when it denied Wright's motion
to suppress his six post-arrest statements. The Court will discuss the
key details of Wright's state court proceedings when it addresses the
merits of his habeas petition.
II. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2254, a habeas petitioner is not
entitled to a writ of habeas corpus unless the challenged state
court decision is either "contrary to" or "an unreasonable application of
clearly established federal law as determined by the United States
Supreme Court. See 28 U.S.C. § 2254(d)(1); Williams v.
Taylor, 529 U.S. 362, 404-05 (2000). In Williams, the
Supreme Court explained that a state court's decision is "contrary to"
clearly established Supreme Court law "if the state court arrives at a
conclusion opposite to that reached by the 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 ours." Id. at 405.
A state court's decision is an "unreasonable application" of federal
law under § 2254(d)(1), if the state court identified the correct
legal rule but unreasonably applied it to the facts of the case.
Id. at 407. See also Matheney v. Anderson,
253 F.3d 1025, 1041 (7th Cir. 2001), The state court's application of Supreme
Court precedent must be "objectively" unreasonable. See Lockyer v.
Andrade, 538 U.S. 63, 75 (2003) (unreasonable application must be
more than incorrect or erroneous), In order to be considered unreasonable
under this standard, a state court's decision must lie "well outside the
boundaries of permissible differences of opinion." Hardaway v.
Young, 302 F.3d 757, 762 (7th Cir. 2002); see also Searcy v.
Jaimet, 332 F.3d 1081, 1089 (7th Cir. 2003) (decision need not be
well reasoned or fully reasoned and is reasonable if it is one of several
equally plausible outcomes); Schultz v. Page, 313 F.3d 1010,
1015 (7th Cir. 2002) (reasonable state court decision must be minimally
consistent with facts and circumstances of the case).
III. Procedural Default
The Court does not reach the merits of Wright's federal habeas
claims because Wright's claims are procedurally defaulted. In order to
raise a constitutional challenge to a state court conviction and sentence
in a federal habeas proceeding, the petitioner must have fully
and adequately presented the challenge to the state courts, such that the
state courts have an opportunity to act on each of the petitioner's
claims before he presents them to a federal court. O'Sullivan v.
Boerckel, 526 U.S. 838, 842, 844 (1999); Mahaffey v.
Schomig, 294 F.3d 907, 914-15 (7th Cir. 2002); Chambers v.
McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001). State remedies are
exhausted when the claims are presented to the state's highest court for
a ruling on the merits or
when no means of pursuing review remain available.
Boerckel, 526 U.S. at 844-45, 847; 28 U.S.C. § 2254(c).
Here, Wright has exhausted his state court remedies because no state
court relief is available to him at this stage in the proceedings.
However, a petitioner's claims are also procedurally defaulted where a
state court relied upon an adequate and independent state procedural
ground as the basis for its decision, barring the petitioner from raising
that claim in a federal habeas corpus review. Stewart v.
Smith, 536 U.S. 856 (2002); Harris v. Reed, 489 U.S. 255
(1989); Perry v. McCaughtry, 308 F.3d 682, 690 (7th Cir. 2002);
Aliwoli v. Gilmore, 127 F.3d 632, 633 (7th Cir. 1997). In
addition, if an Illinois appellate court finds that a claim is waived,
that holding constitutes an independent and adequate state ground.
Rodriquez v. McAdory, 318 F.3d 733, 735 (7th Cir. 2003).
Wright's claims are procedurally defaulted for these reasons.
A petitioner can cure his procedural default in a federal habeas
corpus proceeding by showing good cause for the default and actual
prejudice resulting from the errors he alleges, or by demonstrating that
failure to consider the claim will result in a fundamental miscarriage of
justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000);
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Dellinger v.
Bowen, 301 F.3d 758, 764 (7th Cir. 2002). Cause exists where "some
objective factor external to the defense impeded [the petitioner's]
efforts to comply with the State's procedural rule." Strickler v.
Greene, 527 U.S. 263, 282 (1999). The fundamental miscarriage of
justice exception is also inapplicable because "this relief is limited to
situations where the constitutional violation has probably resulted in a
conviction of one who is actually innocent." Schlup v. Delo,
513 U.S. 298, 327 (1995). Wright, however, makes no argument of just cause,
actual prejudice, or miscarriage of justice regarding any of his claims.
B. General Constitutional Violations
In his petition, Wright generally alleges generally that his Fourth,
Fifth, Sixth, Eighth,*fn1 and Fourteenth Amendment rights were violated
in connection with "the proceedings relative to his arrest[,] trial and
conviction, [and] sentencing." In his reply memorandum, he claims that
his constitutional rights have been "violated continuously" because his
incarceration violates the constitution, laws, and treaties of the United
States. Wright, however, does not explain the basis for his
constitutional claims or point to any supporting facts. A habeas
petitioner must present specific federal constitutional claims to the
state court before he can raise those specific federal constitutional
claims in a federal habeas proceeding. Verdin v.
O'Leary, 972 F.2d 1467, 1474-75 (7th Cir. 1992) (a petitioner need
not cite "book and verse of the federal constitution" to present a
constitutional claim but he must "raise the red flag of constitutional
breach" in state court or his claims will be barred in federal court).
This Court, however, cannot determine the contours of his argument, even
when it construes his pro se pleadings liberally. Because the
Court cannot determine what claims Wright seeks to raise in this Court,
it cannot match them up with claims presented to the state courts to
determine if the claims were properly preserved. Thus, Wright's first
C. Sufficiency of the Evidence
Wright next asserts that the evidence was not sufficient to convict
him. Wright raised this argument in his state post-conviction petition.
The trial court found that it was barred because Wright could have, but
did not, raise this argument on direct appeal. Wright appealed the denial
of post-conviction relief and asserted that his direct trial counsel was
ineffective because he did not raise this issue on direct appeal. The
Illinois Appellate Court affirmed the trial court's finding that
Wright's sufficiency of the evidence claim was barred by res
judicata. Wright raised this argument in his PLA. The Illinois
Supreme Court denied Wright's PLA,
As noted above, a defendant must properly present his constitutional
claims to the state courts to avoid procedural default,
Boerckel, 526 U.S. at 845. The failure to properly present a
claim to the state courts is an independent and adequate state procedural
ground which precludes habeas review if the state court found
that the procedural defect barred it from resolving the defendant's
claims on the merits. See Dressier v. McCaughtry, 238 F.3d 908,
912-13 (7th Cir. 2001). This is exactly what happened here: Wright failed
to properly present his sufficiency of the evidence claim as required by
state law and the state court found that this delict prevented it from
reaching the merits of that claim. Wright gives no explanation for the
default, no argument that cause and prejudice or a fundamental
miscarriage of justice would occur if the Court did not review these
issues. See Coleman, 501 U.S. at 750. Accordingly, Wright's
sufficiency of the evidence claim is procedurally defaulted based on an
independent and adequate state ground. Stewart, 536 U.S. at
D. Ineffective Assistance of Counsel
Wright contends that his trial counsel was ineffective because he
failed to notify the court of a witness, Sheila Atkins, who allegedly
would have been helpful to Wright's case. He also claims that his
appellate counsel was ineffective because appellate counsel failed to
argue that trial counsel was ineffective for failing to present Atkins.
The ineffective assistance of trial counsel argument appears for the
first time, with no explanation, context, or discussion of authority, in
Wright's PLA. In his state post-conviction petition, he also alleges that
trial counsel was ineffective, but does not say how or why this was so.
The trial court denied Wright's post-conviction petition, stating that it
was "not accompanied by any facts nor an affidavit to support the
allegation," in violation of the requirements of the Illinois
Hearing Act, 725 ILCS § 5/122-2 (requiring a petitioner to submit
affidavits, records, or other evidence supporting his allegations or
explain why he failed to do so). The court thus concluded that the
petition was "insufficient and therefore frivolous and without merit."
The Illinois Appellate Court affirmed. As with Wright's sufficiency of
the evidence argument, because the state court relied on an independent
and adequate state ground as a basis for denying relief, Wright's
ineffective assistance of trial counsel argument is procedurally
defaulted. Stewart, 536 U.S. at 860-61.
Wright next contends that his post-conviction counsel was ineffective
because he did not contend that Wright's trial and direct appeal lawyers
were ineffective. "There is no right to effective counsel in
post-conviction hearings." Pitsonbarger v. Gramley, 141 F.3d 728,
737 (7th Cir. 1998) (finding that alleged ineffective assistance of
post-conviction counsel did not establish cause to excuse procedural
default because there is no Sixth Amendment right to effective
post-conviction counsel). In any event, a petitioner must present his
claims to the Illinois courts, up to and including the Illinois Supreme
Court, to avoid procedural default. See Boerckel, 526 U.S. at
844. This means that his claims must appear not only in his PLA but also
in his filings with the state trial court and intermediate appellate
court. See Castille v. Peoples, 489 U.S. 346, 349 (1989). Wright
did not present this ineffective assistance of counsel argument to the
Illinois Appellate Court or the Illinois Supreme Court on post-conviction
review. Therefore, this claim is both non-cognizable and procedurally
defaulted. See Castille, 489 U.S. at 349 (failure to present
claim to state intermediate court means that it is procedurally barred);
Boerckel, 526 U.S. at 844 (failure to present claim to state's
highest court means that it is procedurally barred).
E. Motion to Suppress
Lastly, Wright's memorandum in support of his petition (which was filed
without leave of Court after the respondent had filed its answer) asserts
that the trial court erred when it denied Wright's motion to suppress his
post-arrest statements. This argument does not appear in any of Wright's
PLAs and thus is procedurally defaulted. See Boerckel, 526 U.S.
at 844. Because Wright has not established, or even argued, cause and
prejudice or miscarriage of justice regarding any of his procedurally
defaulted claims, the Court cannot review the merits of Wright's claims.
For the above reasons, Wright's § 2254 petition [1-1] is DENIED.
IT IS SO ORDERED.