United States District Court, N.D. Illinois
March 31, 2004.
UNITED STATES OF AMERICA ex rel., FREDRICK KIZER, Petitioner;
JONATHAN R. WALLS, Respondent
The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge
MEMORANDUM OPINION AND ORDER
In October 1995, petitioner Frederick Kizer was convicted in the
Circuit Court of Lake County of first degree murder, three counts of
attempted first degree murder, and two counts of aggravated battery with
a firearm, and was later sentenced to consecutive prison terms of 50
years for murder and 25, 15, and 10 years for attempted murder. After
pursuing an unsuccessful direct appeal, petitioner filed a petition for
relief pursuant to the Illinois Post Conviction Hearing Act, 725
ILCS 5/122-1 et seq., which was dismissed as being frivolous
and patently without merit. See People v. Kizer,
318 Ill. App.3d 238, 240 (Ill.App. 1st Dist. 2000).
In his appeal of the dismissal of his state post conviction
petition, petitioner challenged for the first time the consecutive nature
of his ten and fifteen year sentences. The Illinois
Appellate Court held that petitioner's ten year sentence should
have run concurrently with his other sentences, but affirmed the
consecutive nature of the fifteen year sentence. See
id., 318 Ill. App.3d at 241-42. Petitioner sought leave to appeal
to the Illinois Supreme Court, which was denied. Petitioner's subsequent
petition for a writ of certiorari was also denied.
In May 2002, petitioner filed the instant petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below,
the petition is denied.
Petitioner's first trial in the Circuit Court of Cook County for
charges of first degree murder, three counts of attempted first degree
murder, and two counts of aggravated battery resulted in a mistrial when
the jury was unable to reach a verdict. Petitioner then filed a motion
for substitution of judge, alleging that Judge Toomin, who presided over
the first trial, exhibited behavior that demonstrated he could not be
fair and impartial in a second trial. More specifically, petitioner
maintained that prior to releasing the jurors from the first trial, the
judge summoned them to his chambers and expressed his incredulity to
those jurors who had voted not guilty during deliberations and indicated
that he believed there was more than enough evidence to prove petitioner
guilty beyond a reasonable doubt. Petitioner further claimed that, after
declaring the mistrial, the judge suggested to the state that they call a
handwriting expert in the next trial to help resolve the issue of whether
petitioner had signed his confession. The state has denied that Judge
Toomin made the latter statement.
Petitioner's motion for substitution was denied by Judge Karnezis (who
was assigned to preside over the motion), who concluded that, even if all
of the allegations were true, petitioner had not established that Judge
Toomin was so prejudiced that he could not be fair and impartial. After a
second jury trial before Judge Toomin, petitioner was found guilty on all
charges and sentenced to consecutive terms of 50 years for murder, and
25, 15, and 10 years for the three attempted murders.
On direct appeal, petitioner argued that the trial court erred in
denying his motion for substitution of judge after the mistrial. The
Illinois Appellate Court affirmed the judgment, noting that, (1)
defendant had not provided a transcript of proceedings to help the court
determine what, if anything, Judge Toomin had said regarding the
handwriting expert, and (2) the judge's comments to the jury were made
after he had heard all of the evidence against the defendant. See
People of the State of Illinois v. Frederick Kizer, No. 1-95-3562
(Ill.App. 1st Dist. July 22, 1997). Petitioner sought leave to appeal to
the Illinois Supreme Court, which was denied on June 3, 1998.
Petitioner then filed a pro se petition for relief pursuant
to the Illinois Post Conviction Hearing Act, 725 ILCS 5/122-1
et seq., in which he alleged: (1) ineffective assistance of
trial counsel; (2) prosecutorial misconduct in improper closing
arguments, such as vouching for government witnesses' credibility,
referring to notorious criminals, and referencing petitioner's failure to
testify; (3) judicial bias against him as evidenced by, among other
things, Judge Toomin's questioning of the state's expert at trial; (4)
failure to establish petitioner's guilt beyond a reasonable doubt; and
(5) ineffective assistance of appellate counsel for failure to raise
these issues on direct appeal. On December 23, 1998, petitioner's post
conviction petition was dismissed as frivolous and patently
without merit. See People v. Kizer, 318 Ill. App.3d 238, 240
(Ill.App. 1st Dist. 2000).
On appeal of the denial of his state post conviction petition,
petitioner, represented by the State Appellate Defender, argued for the
first time that his 15 year and 10 year consecutive
sentences were imposed in violation of 730 ILCS 5/5-8-4(a).*fn1
Petitioner's counsel did not
address any of the grounds raised in the pro se petition,
other than summarizing the contents of that petition in the
"Introduction" portion of the brief. Petitioner then moved
pro se to file a supplemental brief to preserve the grounds
raised in his pro se petition. Petitioner's pro se
motion was opposed by the state on the ground that petitioner "does not
have a Sixth Amendment right to have both representation of counsel and
to also conduct portions of the proceedings on his own." On May 15, 2000,
the appellate court denied petitioner's motion to file a pro se
On July 10, 2000, however, petitioner (through counsel) was granted
leave to file a supplemental brief in which he alleged that all of his
consecutive sentences were unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). In an unpublished order, the
appellate court reversed the consecutive nature of petitioner's ten
year sentence, but affirmed the consecutive nature of the fifteen
year sentence under state law and further refused to apply
Apprendi retroactively. See People v. Kizer, No.
1-99-0733 (Ill.App. 1st Dist. November 6, 2000). After petitioner sought
rehearing, the appellate court issued a published opinion setting forth a
more comprehensive discussion of its Apprendi analysis
(although it denied the petition for a rehearing).
Petitioner (through counsel) then sought leave to appeal to the
Illinois Supreme Court, raising two issues: (1) the retroactivity of
Apprendi, and (2) whether state law rendered his 15
year consecutive sentence void (rather than merely voidable, as the
appellate court had held). Proceeding pro se. petitioner then
sought leave to file a supplemental petition for leave to appeal in which
he addressed many of the issues raised in his initial state post
conviction petition, such as ineffective assistance of counsel. In an
order dated March 27, 2001, the Illinois Supreme
Court denied petitioner's motion to file a supplemental brief, and
on June 29, 2001, denied petitioner leave to appeal. Petitioner
subsequently filed a petition for writ of certiorari in the United States
Supreme Court, which was denied on November 13, 2001.
On May 10, 2002, petitioner filed the instant petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner asserts six
grounds for relief in the instant petition: (1) violation of his Fifth
and Fourteenth Amendment rights due to Judge Toomin's alleged
impartiality; (2) violation of his Fourteenth Amendment right to due
process and his Sixth Amendment right to a jury trial arising from his
consecutive sentences; (3) violation of his Fifth and Fourteenth
Amendment rights due to Judge Toomin's alleged questioning of the
government's expert witness at the second trial; (4) violation of his
Sixth Amendment right to effective assistance of counsel arising from
trial counsel's failure to call certain witnesses; (5) violation of his
Fourteenth Amendment right to due process arising from allegedly improper
comments by the prosecution during closing arguments; (6) violation of
his Sixth Amendment right to effective assistance of counsel arising from
his appellate counsel's failure to raise the foregoing issues on direct
appeal; and (7) violation of his Fourteenth Amendment right to due
process arising from the government's failure to meet its burden of proof
In response to the instant petition, respondent contends that grounds
three through seven are procedurally defaulted, and that grounds one and
two fail on the merits. For the reasons stated below, the court agrees
and denies the instant petition for writ of habeas corpus.
1. Exhaustion and Procedural Default
Before the court may entertain the merits of a habeas petition, it must
first inquire whether petitioner has, (1) exhausted all available state
remedies, and (2) raised all of his claims during the course of his state
proceedings. Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir.
1998). If a petitioner fails to meet either of these requirements, the
court may not reach the merits of his habeas claims. Id.
Respondent concedes that petitioner has exhausted his available state
remedies, but maintains that grounds three through seven of the instant
petition are procedurally defaulted. The court agrees. As the Supreme
Court noted in O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999), "state prisoners must give the state courts one full opportunity
to resolve any constitutional issues by invoking one complete round of
the State's established appellate review process" to preserve a claim for
habeas review. See also Hadley v. Holmes, 341 F.3d 661, 664
(7th Cir. 2003) (failure to take claim through "complete round" of
appellate process resulted in procedural default).
Although petitioner in the instant case raised grounds three through
seven in his initial state post conviction petition, he failed to
raise any of those issues in either his appeal of the dismissal of his
state post conviction petition to the Illinois Appellate Court or
his petition for leave to appeal to the Illinois Supreme Court. Neither
the appellate court's unpublished order, People v. Kizer, No.
1-99-0733 (Ill.App. 1st Dist. November 6, 2000), nor its published
opinion, People v. Kizer, 318 Ill. App.3d 238 (Ill.App. 1st
Dist. December 26, 2000), references the merits of grounds three through
seven of the instant petition, presumably because petitioner did not
argue those issues in his briefs to the appellate court. Rather,
petitioner's briefs, and the
respondent's responses thereto, focused exclusively on the
consecutive nature of petitioner's ten and fifteen year
sentences and the Apprendi issue.*fn2
Petitioner directs the court's attention to his pro se
motions seeking leave to file supplemental briefs in both the Illinois
Appellate Court and the Illinois Supreme Court discussing the substance
of grounds three through seven of the instant petition, but this argument
is of no avail. Petitioner's motions to file supplemental briefs were
summarily denied, presumably because petitioner was represented by
counsel who had already filed briefs on his behalf.*fn3 Because
petitioner failed to invoke a full round of the appellate process with
respect to grounds three through seven of the instant petition, the court
concludes that those grounds are procedurally defaulted.
Federal courts may review defaulted claims if the petition shows cause
for failure to raise them at the appropriate time and actual prejudice
that resulted from such failure, or if a
fundamental miscarriage of justice would result from the failure to
address the defaulted claims. Rodriguez v. Scillia, 193 F.3d 913,
917 (7th Cir. 1999). Petitioner has not argued that he falls within
either of these narrow exceptions, and thus the court declines to address
the merits of grounds three through seven of the instant habeas petition.
28 U.S.C. § 2254 empowers a district court to entertain an
application for a writ of habeas corpus "only on the ground that [the
petitioner] is in custody in violation of the Constitution or laws or
treaties of the United States." See also Wainwright v. Goode,
464 U.S. 78, 84, 104 S.Ct. 378, 382 (1983). In considering a habeas
corpus petition filed by a state prisoner challenging his conviction or
sentence on legal grounds, federal courts are guided by
28 U.S.C. § 2254(d)(1), which provides that the writ of habeas
corpus may be granted only if the adjudication of the prisoner's claims
in state court "resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States."*fn4
In Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495,
1523 (2000), the Supreme Court defined "clearly established Federal law"
as "holdings, as opposed to the dicta" of Supreme Court decisions at the
time of the state court decision, and further clarified the meaning of
"contrary to" and "unreasonable application" as used in § 2254(d)(1).
For a decision to be "contrary to" clearly established Federal law, it
must be "substantially different" from the relevant Supreme Court
precedent. Williams, 529 U.S. at 405, 120 S.Ct. at 1519
(2000); Boss v.
Pierce, 263 F.3d 734, 739 (7th Cir. 2001). This situation
may arise in two ways: (1) if the state court applies a rule that
contradicts the governing law set forth by the Supreme Court; or (2) if
the state court confronts a set of facts that are materially
indistinguishable from a decision of the Supreme Court and nonetheless
arrives at a different result. Williams, 529 U.S. at
405-406,120 S.Ct. at 1519-1520.
On the other hand, a decision involves an "unreasonable application of
clearly established law when the state court identifies the correct legal
rule but applies it unreasonably. Id. at 409-410, 120 S.Ct. at
1521. An unreasonable application of the law is distinguishable from an
incorrect application of law, however. To fall under this exception, the
state court's application of Supreme Court precedent "must be so
erroneous as to be unreasonable." Boss, 263 F.3d at 739. With
these standards in mind, the court turns to grounds one and two of the
a. Denial of Petitioner's Motion to Substitute Judges (Ground
In ground one, petitioner claims that he suffered a violation of his
Fifth and Fourteenth Amendment rights when Judge Toomin was permitted to
preside over petitioner's second jury trial. On direct appeal, the
Illinois Appellate Court affirmed petitioner's conviction, and concluded
that the judge's comments following the first jury trial, without more,
"[did] not indicate that the trial judge was prejudiced against
[petitioner]." The appellate court also noted that petitioner did not
allege "any other instance of prejudice occurring either during the first
jury trial before the judge's comments or during the ensuing jury trial
after the trial judge's comment."
Petitioner has not cited, and the court has not identified, any Supreme
Court precedent that would render the appellate court's ruling on direct
appeal to be contrary to, or an unreasonable application of, federal Jaw.
Rather, it appears to the court that the appellate court's reasoning was
entirely consistent with binding precedent.
The Supreme Court has stated that fairness requires "an absence of
actual bias in the trial of cases." In re Murchison, 349 U.S. 133,
136 (1955). To that end, "no man can be a judge in his own case and
no man is permitted to try cases where he has an interest in the
outcome." Id. at 136.
The cases in which the Supreme Court has found actual bias involved
factual scenarios in which the judge possessed a personal stake in the
outcome of the trial, and thus are distinguishable from the instant case.
For example, in In re Murchison, the Supreme Court held that it
was a violation of due process for a judge who acted as a one man
grand jury to later try the same persons who were accused as a result of
his investigations. Id. at 137. In Bracy v. Gramley,
520 U.S. 899, 905 (1997), the court concluded that it would violate due
process if a judge was disposed to rule against defendants who did not
bribe him in order to conceal the fact that he regularly ruled in favor
of defendants who did bribe him. And, in Tumey v. Ohio,
273 U.S. 510, 532 (1927), the Supreme Court held that a judge violated due
process by sitting in a case in which it would be in his financial
interest to find against one of parties. See also Ward v. Village of
Monroeville, Ohio, 409 U.S. 57, 60-62 (1972); Aetna Life Ins.
Co. v. Lavoie, 475 U.S. 813, 822-25 (1986).
The instant case is easily distinguishable from Murchison.
Bracy, and Tumey. In its order, the appellate court
emphasized that Judge Toomin had heard all of the evidence against
petitioner before expressing his opinion regarding his guilt, and
there was no allegation that his comments were based on any extrajudicial
factors that would establish a personal interest, pecuniary or otherwise,
in the case. Nor was there any evidence of instances of prejudice
occurring at the petitioner's second trial.*fn5 The court thus concludes
that petitioner is not entitled to a writ of habeas corpus based on
ground one of the instant petition.
b. Consecutive Sentences (Ground Two)
As noted earlier, Illinois law provides for consecutive sentences for
offenses committed as part of a single course of conduct if one of the
offenses is a Class X or Class 1 felony, and the defendant inflicted
"severe bodily injury." See 730 ILCS 5/5-8-4)(a) (West 1998).
In the instant case, during sentencing Judge Toomin (not a jury)
concluded that petitioner inflicted severe bodily injury to Kevin
Richardson and thus imposed a consecutive sentence of 15 years for his
attempted murder. In ground two, petitioner maintains that, under
Apprendi v. New Jersey, 530 U.S. 466 (2000), the issue of
bodily injury should have been submitted to a jury and proved beyond a
reasonable doubt, and the failure to do so violated his Sixth and
Fourteenth Amendment rights.
In Apprendi, the Supreme Court held that "[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt."
Id. at 490. Apprendi was decided after petitioner's
conviction became final, however, and the Illinois Appellate Court,
citing to league v. Lane, 489 U.S. 288 (1989), and People
v. Flowers, 138 Ill.2d 218, 237 (1990), concluded that
Apprendi does not apply retroactively under Illinois'
Post Conviction Hearing Act. People y. Kizer, 318
Ill. App.3d at 251. The Seventh Circuit has also held that Apprendi
is not retroactively applicable in a collateral proceeding. See
Dellinger v. Bowen, 301 F.3d 758, 765 (7th Cir. 2002)
("Apprendi is not retroactive and thus `does not disturb
sentences that became final before June 26, 2000, the date of its
release.'") (quoting Curtis v. United States, 294 F.3d 841, 844
(7th Cir. 2002)). Accordingly, the appellate court's reasoning was not
contrary to, and did not involve an unreasonable application of, federal
law. Thus, petitioner is not entitled to a writ of habeas corpus based on
ground two of the instant petition.
For the reasons stated herein, the court concludes that grounds three
through seven of the instant habeas petition were procedurally defaulted,
and grounds one and two are without merit. Accordingly, the court denies
the instant petition for writ of habeas corpus.