United States District Court, N.D. Illinois
March 15, 2004.
UNITED STATES OF AMERICA ex rel. HENRY LOVETT, Petitioner,
EUGENE McADORY,[fn1] Respondent
The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge
*fn1 Lovett's petition named James Chrans, the former warden of the now
defunct Joliet Correctional Center, as the respondent. Lovett is
currently incarcerated at the Menard Correctional Center. See
Rule 2(a) of the Rules Governing Habeas Corpus 28 U.S.C. § 2254
Cases. Accordingly, Eugene McAdory, the warden of that facility, is
hereby substituted as the respondent. See Fed.R.Civ.P. 25
MEMORANDUM AND ORDER
Petitioner Henry Lovett's pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is before the
Court. For the following reasons, Lovett's petition is DENIED.
The Court will presume that the state court's factual determinations
are correct for the purposes of habeas review as Lovett has not
provided clear and convincing evidence to the contrary. See
28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th
Cir. 2002). The Court thus adopts the state court's recitation of the
On April 26, 1992, Kristen Ponquinette's bound body was found floating
in the Cal Saq River. The Illinois State Police investigated and learned
that Ponquinette had been bound and beaten before she was taken to an
abandoned railroad bridge over the Cal Saq River which was known as
the "Black Bridge." Several people, including Lovett, were at the
bridge when Ponquinette was still alive.
After Ponquinette's body was recovered, Officer James Turner questioned
Lovett and others about their involvement in her death. Initially, Lovett
denied any involvement. About 20 or 30 minutes later, he admitted that he
was at the "Black Bridge" on the day of Ponquinette's death but stated
that she was alive when he left. Lovett subsequently gave a handwritten
confession to Assistant State's Attorney Michael Baumel. The statement
said that Lovett was a member of the Blackstone gang. On April 26, 1992,
he went with a fellow gang member to the "Black Bridge" to help with some
"gang business." When they arrived, they saw several other gang members
beating Ponquinette with bricks and a cane. Lovett and the others argued
about the best way to kill her. Lovett said he expressed a desire to let
Ponquinette go, but a fellow gang member told him she would go to the
police and that "the same might happen" to him. Lovett helped drag a
sewer cover to the edge of the bridge, Two other gang members tied the
cover to Ponquinette and pushed her off the bridge into the river.
B. Procedural History
Following a jury trial in the Circuit Court of Cook County, Lovett was
convicted of first degree murder and aggravated kidnapping. He was
subsequently sentenced to an extended prison term of 100 years for
murder, to be served consecutively with a five-year term for aggravated
kidnapping. Lovett appealed to the Illinois Appellate Court, which
affirmed his conviction and sentence ("direct appeal").
Lovett then filed a petition for leave to appeal ("PLA") with the
Illinois Supreme Court. In his PLA, he raised three issues, all of which
he also raised at the trial and appellate levels: (1) the
trial court erred when it granted the State's motion in
limine to prohibit Lovett from questioning Officer Turner about the
fact that Lovett initially denied being involved in the murder; (2)
during closing arguments, the prosecutor improperly referred to Lovett's
failure to testify at trial; and (3) the trial court erred when it
refused to give a jury instruction on the defense of compulsion. The
Illinois Supreme Court denied the PLA.
Lovett subsequently filed a petition for state post-conviction relief.
The Circuit Court denied the petition as untimely, frivolous, and
patently meritless. Lovett appealed to the Illinois Appellate Court,
which denied relief ("collateral appeal"). Lovett did not file a PLA. He
then filed a timely § 2254 petition raising the three arguments
presented to the Illinois Supreme Court on direct appeal plus the claim
that his trial counsel was ineffective.
II. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996, a
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 held 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.
With respect to the "unreasonable application" prong under §
2254(d)(1), a habeas petitioner must demonstrate that although
the state court identified the correct legal rule, it unreasonably
applied the controlling law to the facts of the case. See id. at
407. A state court's application of Supreme Court precedent is
unreasonable if the court's decision was "objectively" unreasonable.
See Lockyer v. Andrade, 538 U.S. 63, 75 (2003)
(unreasonable application 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
A. Exhaustion and Procedural Default
Before this Court may reach the merits of Lovett's federal
habeas claims, it must consider whether he has exhausted his
state remedies and avoided procedural default under Illinois law. See
Mahaffey v. Schomig, 294 F.3d 907, 914-15 (7th Cir. 2002). To
exhaust state court remedies, a petitioner must give the state courts an
opportunity to act on each of his claims before he presents them to a
federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
State remedies are exhausted when they 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, Lovett has exhausted his state court remedies
because he filed a PLA after his direct appeal, and the time has long
passed for him to do so in his collateral appeal.
Procedural default occurs when a petitioner fails to comply with state
procedural rules. Mahaffey, 294 F.3d at 915. This occurs when
the petitioner fails to pursue all appeals required by state law,
Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991), or fails to
fully and fairly present his federal claims to the state court,
Boerckel, 526 U.S. at 844. It also occurs when the state court
did not address a federal claim because the petitioner failed to satisfy
an independent and adequate
state procedural requirement. Stewart v. Smith, 536 U.S. 856
(2002). 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).
Nevertheless, the Court may still reach the merits of a procedurally
defaulted claim if the petitioner establishes either cause for his
failure to follow a rule of state procedure and actual prejudice, or if
he establishes that the default will result in a fundamental miscarriage
of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). To
establish a fundamental miscarriage of justice, the petitioner must
present new and convincing evidence of his innocence by showing that it
is more likely than not that no reasonable juror would convict him in
light of the new evidence. Schlup v. Delo, 513 U.S. 298, 324
1. Ineffective Assistance of Trial Counsel
In Lovett's § 2254 petition, he contends that his trial counsel was
ineffective. A defendant must present his constitutional claims to the
state trial, appellate, and highest courts to avoid procedural default.
Boerckel, 526 U.S. at 845. Thus, claims that are not included in
a petitioner's PLA are procedurally barred. Id. After carefully
examining Lovett's PLA, the Court finds that Lovett did not properly
present his ineffective assistance claims to the Illinois courts, up to
and including the Illinois Supreme Court. Therefore, this Court cannot
consider these claims on the merits. See id. at 848 (petitioner
must give state court full and fair opportunity to resolve federal
constitutional claims before federal habeas court can review
A federal court may not grant relief on a procedurally defaulted claim
unless the petitioner can establish cause for the default and actual
prejudice as a result of the alleged violation of federal law or
demonstrate that the court's failure to consider the claim will result in
a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
Although Lovett does not contend that cause and
prejudice or the fundamental miscarriage of justice exceptions
excuse his default (indeed, none of the parties even mention procedural
default), the Court will nevertheless consider whether they can give
Lovett any succor.
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). Here,
Lovett simply did not raise his ineffective assistance of counsel
arguments. Nothing in the record before the Court indicates that an
objective factor prevented him from doing so. Thus, cause does not excuse
his default. Moreover, an allegation of ineffective assistance of counsel
is not, by itself, enough to establish prejudice. See Pitsonbarger v.
Gramley, 141 F.3d 728, 737 (7th Cir. 1998). Thus, neither cause nor
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." Dellinger, 301 F.3d at 767, citing Schlup v.
Delo, 513 U.S. 298, 327 (1995). To show "actual innocence," a
petitioner must present clear and convincing evidence that, but for the
alleged error, no reasonable juror would have convicted him. Id.
Lovett's petition, as well as the state court pleadings submitted to the
Court, do not contain any substantiated allegations of actual innocence.
Thus, this exception does not apply.
2. Prosecutorial Misconduct
During closing arguments, the prosecutor stated that: (1) no evidence
showed that Lovett was not one of the people who pushed the victim off
the bridge; (2) no evidence showed that Lovett did not know that the
victim was alive when she was pushed off the bridge; and (3) no evidence
showed that Lovett left the crime scene before the murder. Lovett
contended that these comments violated his right to a fair trial because
he is the only person who could have contradicted the evidence
supporting the State's case. He also contends that the comments
impermissibly highlighted the fact that he elected not to testify.
The Illinois Appellate Court found that Lovett had waived this issue by
failing to object at trial and failing to include it in a post-trial
motion. Alternatively, it found that the comments were proper because a
prosecutor may "compare the testimony of its own witnesses with the lack
of contradictory evidence from the defense." In his § 2254 petition,
Lovett again challenges the propriety of the prosecutor's remarks. In
response, the respondent contends that Lovett waived this issue because
the state court found that he had failed to properly preserve it.
"[F]ederal courts on habeas corpus review of state prisoner
claims, . . . will presume that there is no independent and adequate
state ground for a state court decision when the decision fairly appears
to rest primarily on federal law, or to be interwoven with the federal
law, and when the adequacy and independence of any possible state law
ground is not clear from the face of the opinion." Coleman, 501
U.S. at 734-735 (internal citations omitted). Although the Illinois
Appellate Court presented its waiver finding as an independent and
adequate state ground ("First, defendant waived this issue. . .; Second,
even if we were to address the merits . . ."), this Court later will also
address the claim on the merits in case the Appellate Court's discussion
of the merits is found to be interwoven with its state procedural grounds
B. Exculpatory Statements
The State filed a motion in limine seeking to prevent Lovett
from questioning Officer Turner about the fact that Lovett initially
denied that he was involved in the murder. The trial court granted the
motion. Lovett contends that his inability to fully question Officer
Turner made the jury think he had only made inculpating statements and
thus forced him to "suffer the prejudicial effect or waive his right not
On appeal, the Illinois Appellate Court rejected this argument,
Defendant's contention on this issue is without
merit. As the trial court noted, a statement made
by a defendant when he is in custody and which is
offered in his favor is not an admission and
therefore is subject to an objection on hearsay
grounds. People v. Hudson, 198 III. App.3d
915 (1990); People v. Pasch,
152 Ill.2d 133 (1992). Moreover, contrary to the
defendant's contentions, the completeness doctrine
does not require the admission of these previous
oral statements to Turner in order to fully
explain defendant's written confession to ASA
Baumel. People v. Hudson. Because Turner
did not testify as to his oral conversations with
the defendant, defendant was not entitled to the
admission of portions of that conversation.
Finally, defendant's exculpatory statements to
Turner after his arrest hardly presents a
situation where the circumstances were sufficient
to provide indicia of reliability. See
Chambers v. Mississippi, 410 U.S. 284 (1973).
People v. Lovett, No. 1-94-0789 (Ill.App. Ct. Jul. 5,
1996) (unpublished order).
Habeas relief based on an allegedly erroneous state court
evidentiary ruling is appropriate only if the ruling prevented the
defendant from receiving a fundamentally fair trial. United States ex
rel Lee v. Flannigan, 884 F.2d 945, 952 (7th Cir. 1989). A defendant
does not receive a fundamentally fair trial if the challenged rulings "so
infected the entire trial that the resulting conviction violates due
process." Cupp v. Naughten, 414 U.S. 141, 147 (1973). To
determine if a trial was fundamentally fair, the court must balance
Lovett's rights under the Sixth and Fourteenth Amendments to present
evidence in his own defense and the state's interest in regulating the
presentation of evidence in its courts. Johnson v. Chrans,
844 F.2d 482, 484 (7th Cir. 1988).
In his petition, Lovett contends that he should have been permitted to
introduce his initial statement denying any involvement in the murder.
His logic appears to be that if the jury had two competing statements to
choose from (his initial denial and his subsequent confession), it might
have chosen the exculpating statement, and the failure to present the
jury with the exculpatory statement created the impression that he had
consistently inculpated himself, Lovett, however, points to no United
States Supreme Court case which supports his contention that the trial
ruling deprived him of a fair trial. He also does not attack the
state courts' application of the law to the facts.
Therefore, the state court's exclusion of Lovett's initial statement
denying involvement in the events at the "Black Bridge" on April 26,
1992, does not warrant habeas relief. First, Lovett's right
under the Sixth and Fourteenth Amendments to present evidence in his own
defense is not insuperable. The extremely limited probative value of the
statement is clearly outweighed by Illinois' strong interest in
regulating the presentation of evidence in its courts. Second, "the Due
Process Clause does not permit the federal courts to engage in a finely
tuned review of the wisdom of state evidentiary rules." Marshall v.
Lonberger, 459 U.S. 422, 438, n.6 (1983).
Third, the exclusion of the statement does not rise to the level of a
due process violation infecting Lovett's trial because, as the state
court noted, the fact that Lovett denied involvement when he was arrested
does not carry any "persuasive assurances of trustworthiness."
Chambers, 410 U.S. at 302. Finally, the exclusion of the
statement did not violate Lovett's right to present a defense because it
was not critical to his defense. Id. at 298-301. Lovett may have
hoped that it would have helped him, but its limited probative value,
when weighed with all of the other evidence adduced at trial, means it
did not prevent him from presenting a defense. Accordingly, the Court
finds that the exclusion of the statement did not prevent Lovett from
receiving a fundamentally fair trial.
C. Prosecutorial Misconduct
As explained above, this Court will also address Lovett's prosecutorial
misconduct claim on the merits in case the Appellate Court's discussion
of the merits is found to be interwoven with its state procedural grounds
for decision. "[T]he Fifth Amendment . . . in its bearing on the States
by reason of the Fourteenth Amendment forbids either comment by the
prosecution on the accused's silence or instructions by the court that
such silence is evidence of guilt." Griffin v. California,
380 U.S. 609, 615 (1965). The Supreme Court, however, has not addressed
a prosecutor's indirect references to a defendant's failure to testify.
Yancey v. Gilmore, 113 F.3d 104, 106 (7th Cir. 1997). This is
problematic for Lovett as "[a] petitioner must have a Supreme Court case
to support his claim, and that Supreme Court decision must have clearly
established the relevant principle as of the time of his direct appeal."
Id. at 106-07. The Illinois Appellate Court, by contrast, relied
on state court precedent holding that the State may "compare the
testimony of its own witnesses with the lack of contradictory evidence
from the defense."
The Seventh Circuit has expressly held that Illinois' rule is not
"contrary to" or "an unreasonable application of" Supreme Court precedent
even though it does not track Griffin because it addresses
indirect references about a defendant's failure to testify, and
Griffin prohibits only direct references. Yancey, 113
F.3d at 107; Freeman v. Lane, 962 F.2d 1252, 1260 (7th Cir.
1992) ("Comments by the prosecutor on the state of the evidence that may
indirectly refer to the defendant's silence . . . have not been the
subject of direct Supreme Court guidance"). Because Griffin does
not apply to indirect references to a defendant's decision not to take
the stand, the Illinois Appellate Court's ruling regarding the indirect
references cannot be contrary to or an unreasonable application of
clearly established federal law as determined by the United States
Supreme Court. See Yancey, 113 F.3d at 107.
D. Jury Instructions
Lastly, Lovett asked the trial court to give the jury an instruction on
the defense of compulsion based on his age and his confession.
Specifically, Lovett argued that because he was seventeen at the time of
the murder, the Illinois statute prohibiting the use of the compulsion
defense for the crime of murder, 720 ILCS § 5/7-11(a), was
inapplicable. Lovett also contended that the compulsion defense was
available to him because when he confessed, he stated that he expressed
a desire to let Ponquinette go and that he only went along with the
others when a fellow gang member told him that if they let her go, "the
same might happen" to him.
The Illinois Appellate Court rejected both of these claims on the
merits. Relying on Illinois law, it held that even when a defendant is a
minor, a defendant charged with murder is not entitled to raise the
defense of compulsion. With respect to the aggravated kidnapping charge,
the court, again citing Illinois law, held that the defense was not
available because Lovett had ample opportunities to withdraw from the
enterprise but failed to do so. Lastly, the court held that under
Illinois law, the compulsion defense would not have applied because the
alleged threat was vague, and Lovett was not directed to engage in the
specific actions he took to participate in the murder,
Lovett's compulsion defense rests entirely on state law. Moreover,
Lovett does not contend that the state court rulings are at odds with any
United States Supreme Court authority. His request for federal
habeas relief based on the lack of a compulsion instruction is,
therefore, doomed as this Court may only address the merits of claims
based on "alleged violations of the federal constitution, laws and
treaties." Biskup v. McCaughtry, 20 F.3d 245, 247 (7th Cir.
1994) ("§ 2254 cannot be invoked simply . . . to review alleged
violations of state law").
For the above reasons, Lovett's § 2254 petition [1-1] is DENIED.
IT IS SO ORDERED.
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