United States District Court, N.D. Illinois, Eastern Division
June 17, 2004.
UNITED STATES OF AMERICA ex rel. DENNIS THOMPSON JR., Petitioner
KENNETH R. BRILEY Respondent.
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM, OPINION AND ORDER
This case is before the Court on the petition of Dennis
Thompson, Jr. for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. For the following reasons, we deny the petition for habeas
Petitioner Dennis Thompson, Jr. does not challenge the
statement of facts set forth in the order of the Illinois
Appellate Court affirming his convictions for first-degree
murder. People v. Thompson, 713 N.E.2d 832 (1st Dist. 1997).
For purposes of federal habeas review, "a determination of a
factual issue made by a State court shall be presumed to be
correct." 28 U.S.C. § 2254(e). Accordingly, we adopt the facts as
In the Circuit Court of Cook County, Petitioner was convicted
of two counts of first-degree murder for the deaths of Dennis
Thompson, Sr., Petitioner's father, and Don Renee Rouse, a female
acquaintance of Thompson, Sr. Petitioner's bench trial took place
in May 1995. The evidence presented at trial established that on
March 26, 1994, Petitioner went to his father's home in Dolton, Illinois with a loaded gun and fatally shot his
father in the head from behind and at close range as the deceased
was bent over and looking in the refrigerator. He then shot
Rouse, who survived long enough to call Dolton police and inform
them that Petitioner had shot her and Thompson, Sr. The trial
evidence established that Petitioner was upset because his father
had beaten his stepmother on the previous night.
Once police learned that Rouse had identified Petitioner as the
shooter, Officer William Dodaro determined Petitioner's identity
and address. When he arrived at Petitioner's home, Officer Dodaro
observed a man and a woman standing on the sidewalk. The man
matched the suspect's description, and Officer Dodaro asked if he
was Dennis Paul Thompson, Jr. Petitioner answered in the
affirmative, and upon being asked if he had been at his father's
home earlier in the evening, Petitioner responded "yes." He was
then arrested and given Miranda warnings, after which he
confessed to the shootings and told authorities where he disposed
of the gun. The police recovered the gun from the location
Petitioner specified. Petitioner also told his aunt, Patricia
Posey, that he had killed his father. Although Petitioner was
eligible for the death penalty under 730 ILCS 5/5-8-1 (West
1998), the trial judge sentenced him to a term of natural life
A detailed explanation of the procedural history is appropriate
in light of Respondent's assertion that Petitioner is
procedurally defaulted from raising several claims in his habeas
petition. On September 17, 1996, Petitioner appealed his
convictions to the Illinois Appellate Court, asserting that: (1)
he had been denied his Fifth Amendment right to testify at trial;
(2) he had been denied his Sixth Amendment right to effective
assistance of counsel because counsel (a) failed to move to quash and suppress his arrest statements
and (b) failed to object to inadmissible hearsay evidence; and
(3) the trial court erred in failing to reduce his conviction
from first- to second-degree murder due to the existence of
mitigating factors. On July 21, 1997, the Appellate Court
affirmed his conviction and sentence. People v. Thompson,
713 N.E.2d 832 (1st Dist. 1997).
On August 22, 1997, Petitioner filed for leave to appeal to the
Illinois Supreme Court, asserting that the Appellate Court erred
in holding that: (1) Petitioner's Miranda rights were not
violated when police questioned him before placing him under
arrest; and (2) Petitioner's Sixth Amendment right to effective
assistance of counsel was not violated when counsel failed to
move to quash and suppress his arrest statements. The Illinois
Supreme Court denied the petition on December 3, 1997. People v.
Thompson, 689 N.E.2d 1145 (1997).
On May 21, 1998, Petitioner filed for post-conviction relief in
the Circuit Court of Cook County under 725 ILCS 5/122-1 (West
1998), asserting that: (1) his Miranda rights were violated when
he was interrogated prior to being placed under arrest; (2) his
Fifth Amendment right to testify was violated when his attorney
told him he could not testify; and (3) his Sixth Amendment right
to effective assistance of counsel was violated because his
counsel (a) failed to move to quash his arrest and failed to move
to suppress his incriminating statements, (b) failed to allow
Petitioner to testify despite his desire to testify, (c) failed
to object to inadmissible hearsay, (d) failed to obtain a
psychological evaluation, (e) failed to call witnesses at trial
and at the sentencing hearing who he knew existed and were
willing to testify, and (f) forced Petitioner to waive his right
to a jury trial. The Circuit Court of Cook County granted the
State's motion to dismiss the post-conviction petition on May 21,
1999 without an evidentiary hearing. Petitioner appealed the dismissal of his post-conviction
petition to the Illinois Appellate Court, which determined that
the Circuit Court had acted properly in dismissing his
post-conviction petition because he had failed to make a
substantial showing that he was denied a constitutional right at
trial. People v. Thompson, 797 N.E.2d 245 (1st Dist. 2001).
Petitioner sought leave to appeal the dismissal of his
post-conviction petition to the Illinois Supreme Court making the
same claims he had in his original post-conviction petition, but
with the additional claim that the trial court erred in not
granting his motion for a reduction of first- to second-degree
murder based upon mitigating factors. The Illinois Supreme Court
denied his petition on February 6, 2002. People v. Thompson,
766 N.E.2d 244 (2002).
Petitioner filed this instant petition for a writ of habeas
corpus on April 9, 2002, alleging that: (1) he was denied his
Sixth Amendment right to effective assistance of counsel as a
result of (a) counsel's failure to move to quash his arrest
statements, (b) counsel's failure to allow him to testify, and
(c) other errors; (2) the trial court erred in not granting his
motion for reduction of his first-degree murder conviction based
on mitigating factors; (3) he was denied his Fifth Amendment
right to testify when counsel told him he could not testify; (4)
the trial court abused its discretion when it failed to grant him
a reduction of his first-degree murder conviction; and (5) he was
denied ineffective assistance of counsel due to counsel's failure
to call key witnesses, including his stepmother.
On July 19, 2002, this Court granted Petitioner leave to file
an amendment to his habeas petition, in which he asserts
essentially the same allegations of ineffective assistance of
counsel, including: (1) counsel's failure to interview or call as
a witness his mother, Darlene Henderson; (2) counsel's failure to
obtain psychological testing to evaluate Petitioner's mental
state; (3) counsel's statement that he could not afford a psychological
evaluation, even though counsel knew the State would pay for the
test; and (4) counsel's failure to allow Petitioner to testify on
his own behalf to establish that he acted under extreme mental or
Federal courts may issue a writ of habeas corpus if a
petitioner demonstrates that he is "in [state] custody in
violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2254(a); Moffat v. Gilmore, 113 F.3d 698,
702 (7th Cir. 1997); see also Del Vecchio v. Illinois Dept. of
Corrections, 31 F.3d 1363, 1370 (7th Cir. 1994) (en banc)
("[F]ederal courts can grant habeas relief only when there is a
violation of federal statutory or constitutional law."). The
federal courts may not grant habeas relief under Section 2254
unless the state court's judgment "(1) 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; or (2) resulted in a decision that
was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d).
Before a federal court may review the merits of a habeas
petition, a petitioner must: (1) exhaust all remedies available
in state court; and (2) fairly present any federal claims in
state court first, or risk procedural default. See Chambers v.
McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001) ("Failure to
exhaust available state court remedies constitutes a procedural
default."); see also Bocian v. Godinez, 101 F.3d 465, 468 (7th
Cir. 1996). "The habeas petitioner must present his federal
constitutional claims initially to the state courts in order to
give the state `the opportunity to pass upon and correct alleged
violations of its prisoners' federal rights." McGowan v. Miller, 109 F.3d 1168, 1172 (7th Cir. 1997) (quoting
Duncan v. Henry, 513 U.S. 364, 365 (1995)).
A petitioner may exhaust his state court remedies "by either
(a) providing the highest court in the state a fair opportunity
to consider the constitutional issue, or (b) having no further
available means for pursuing a review of one's conviction in
state court." Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th
Cir. 1985). In this case, exhaustion is not an issue. Respondent
concedes that Petitioner has exhausted his state court remedies
for purposes of federal habeas review because he has no further
avenues in state court through which to challenge his
convictions. We now turn to the issue of procedural default.
I. Procedural Default
The procedural default hurdle forbids federal courts from
addressing claims that were not fairly presented to the state
court. Jones v. Washington, 15 F.3d 671, 675 (7th Cir. 1994).
Procedural default occurs when the petitioner fails to present a
claim to the state court at the time, and in the way, required by
the state. Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996).
In Illinois, a habeas petitioner is required to raise all
arguments before the Illinois Supreme Court, even though that
court has discretionary control over its docket. O'Sullivan v.
Boerckel, 526 U.S. 838, 843 (1999). In order to preserve claims
for federal habeas review, a petitioner must provide the state
courts "one full opportunity to resolve any constitutional issues
by invoking one complete round of the State's established
appellate review process." Id. at 845. In Illinois, one
complete round is finished once a petitioner has presented the
habeas claims, whether on direct appeal or on post-conviction
appeal, at each stage of the appellate process, up through and including the Illinois Supreme Court. See id. at
847-48; White v. Godinez, 192 F.3d 607, 608 (7th Cir. 1999).
In this case, Petitioner has procedurally defaulted on three
claims his first, second and fourth claims. As part of
Petitioner's first claim, he argues that his trial counsel was
ineffective for failing to object to Rouse's dying declaration
that Petitioner shot her as inadmissible hearsay evidence. This
issue was not presented to the Illinois Supreme Court after the
Illinois Appellate Court denied the claim on direct appeal.
People v. Thompson, No. 1-95-2040, at 7. In addition,
Petitioner withdrew this claim from consideration in the
post-conviction context. People v. Thompson, No. 1-99-2686, at
4. Because Petitioner failed to raise this claim consistently
through one complete round of the state's appellate review
process, the claim is procedurally defaulted.
In his second claim, Petitioner argues the trial court erred in
not granting his motion to reduce his first-degree convictions to
second degree based on the existence of mitigating evidence. This
claim also is procedurally defaulted because, while he raised it
on direct appeal to the Illinois Appellate Court, he failed to
raise the issue on appeal to the Illinois Supreme Court.
Finally, in Petitioner's fourth claim, he argues the trial
court abused its discretion in not granting the first- to
second-degree reduction. While he raised this claim in his
petition for post-conviction relief in the Circuit Court of Cook
County and on appeal to the Illinois Appellate Court, this claim
is defaulted because he failed to raise it on appeal to the
Illinois Supreme Court. The Illinois courts were not afforded
"one complete round" to resolve these issues. Therefore, these
claims are procedurally defaulted. A federal court may nonetheless address the merits of a
procedurally defaulted claim if the petitioner can establish
cause and prejudice that would excuse it or, alternatively,
establish that he fits within the miscarriage of justice
exception to the cause and prejudice rule. Coleman v. Thompson,
501 U.S. 722, 750-51 (1991); Wainwright v. Sykes, 433 U.S. 72
(1977). Beginning with the cause and prejudice standard, the
Supreme Court has interpreted "cause" under this test to be
something external to the petitioner which is both beyond his
control and which cannot be fairly attributed to him. Murray v.
Carrier, 477 U.S. 478, 488 (1986). In order to establish
prejudice, the petitioner "must show not merely that the errors
at . . . trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions." Id. at
Petitioner has failed to establish cause and prejudice in these
claims. He has failed to show any cause for his failure to raise
these issues on appeal to the Illinois Supreme Court, such as
interference by officials or the unavailability of the factual or
legal basis of the claim. Moreover, Petitioner has failed to
establish prejudice because he has not shown that the alleged
errors infected the entire trial with constitutional error.
Although Petitioner has failed to establish cause and prejudice
to excuse his procedural default, he can still overcome this
forfeiture by showing that he fits within the "miscarriage of
justice" exception. This exception is limited to those
extraordinary cases in which a petitioner is actually innocent of
the crime for which he is imprisoned. Bell v. Plerson,
267 F.3d 544, 551 (7th Cir. 2001). Therefore, it requires a colorable
claim of actual innocence, as opposed to legal innocence, coupled
with an allegation of a constitutional claim. See Sawyer v.
Whitley, 505 U.S. 333, 339-40 (1992). The miscarriage of justice
exception applies only if the petitioner can demonstrate that it is more likely than not that no reasonable
jury would have convicted him in the absence of the alleged
defect in the state court proceedings. Schlup v. Delo,
513 U.S. 298, 327 (1995).
In this case, Petitioner fails to satisfy the miscarriage of
justice requirement. The evidence presented at trial established
that Petitioner fatally shot his father and Rouse from close
range. Petitioner confessed to the murders and told authorities
where he had disposed of the gun. Police recovered the gun from
the location he specified. Petitioner also confessed the murders
to his aunt. The strong evidence supporting Petitioner's guilt
establishes that there has been no miscarriage of justice.
Accordingly, part of claim one and claims two and four are barred
from federal habeas review.
II. Merits of the Claims Property Presented
Section 2254 governs the consideration of any claim adjudicated
by a state court on its merits. Under that statute, we may grant
habeas relief only if the state court's adjudication of the claim
"was contrary to, or involved an unreasonable application of,
clearly established Federal law as determined by the Supreme
Court of the United States." 28 U.S.C. § 2254(d)(1). Under
subsection (d)(2), habeas relief is possible if the state court
adjudication "resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented" in the state court.
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court
attempted to clarify the applicable standard of review within the
meaning of section 2254. The Court noted that the statute does
not explicitly prescribe a recognizable standard of review for
applying either of the statutory clauses. Id. at 385.
Recognizing the need for further clarification and direction to lower courts, the Court concluded that the "[the statute] plainly
sought to ensure a level of deference to the determinations of
state courts, as long as those decisions do not conflict with
federal law or apply federal law in an unreasonable way." Id.
at 376. Additionally, the Court determined that, in passing the
statute, "Congress wished to curb delays, to prevent retrials on
federal habeas petitions and to give effect to state convictions
to the extent possible under the law. When federal courts are
able to fulfill these goals within the bounds of the law, [the
statute] instructs them to do so." Id. Therefore, this Court is
directed to apply a deferential review of state court decisions
unless it determines that the state court violated federal law.
A. Ineffective Assistance of Counsel
Petitioner argues that he was denied his Sixth Amendment right
to effective assistance of counsel. The standard for reviewing a
claim of ineffective assistance of counsel was set forth by the
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).
Strickland applies a two-prong analysis for determining
ineffectiveness of counsel: (1) showing that counsel's
performance was deficient; and (2) showing that the deficient
performance prejudiced the defendant. Id. at 678. In order to
prevail on his claim of ineffectiveness under the first prong of
the Strickland test, Petitioner must show that his counsel's
performance fell below an objective standard of reasonableness.
Id. In reviewing the challenged conduct, "a court must indulge
a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Id. To satisfy
the second prong of the Strickland test, Petitioner must show
that there is a reasonable probability that, but for counsel's
unprofessional errors, the results of the proceeding would have
been different. Id. This Court "need not determine whether
counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies." Id. Rather, "[i]f it is easier to
dispose of an ineffective assistance of counsel claim based on
the ground of lack of sufficient prejudice, which . . . will
often be so, that course should be followed." Id.
In the first claim of his habeas petition, Petitioner asserts
that he was denied his Sixth Amendment right to effective
assistance of counsel as a result of his lawyer's failure to move
the trial court to quash and suppress his arrest statements. The
Illinois Appellate Court held that the decision to file a motion
to quash or suppress is one of trial strategy and is left to the
trial counsel's discretion. People v. Thompson, 1-95-2040, at
5. The court noted that Petitioner's motion likely would have
been denied by the trial court because Petitioner's incriminating
arrest statements were validly obtained (id. at 6), and the
police had probable cause to arrest Petitioner based on his
statement that he had been at his father's home earlier that
evening. Further, the background questions asked by Officer
Dodaro were found not to have violated his Miranda rights. Id.
(citing People v. Dalton, 91 Ill.2d 22, 26 (1982)). Citing the
standards enunciated in Strickland, the Illinois Appellate
Court held that the defendant could not overcome the strong
presumption that counsel's decision was within the "`range of
competence demanded of attorneys in criminal cases.'" People v.
Thompson, No. 1-95-2040, at 5-6 (quoting Strickland, 466 U.S.
Based on the foregoing analysis, this Court agrees with the
Illinois Appellate Court's application of federal law. Counsel's
decision not to file a motion to suppress Petitioner's arrest
statements was trial strategy subject to counsel's discretion.
Id. Even if counsel had succeeded in quashing Petitioner's
arrest statements, there still was overwhelming evidence of
Petitioner's guilt and the results of the proceeding likely would
not have been different. Petitioner's claim that he was denied his right to effective assistance of counsel
as a result of counsel's failure to move to quash and suppress
his arrest statements fails both prongs of the Strickland test.
Petitioner also argues in his first claim that counsel was
ineffective in other respects. He argues that, had counsel
presented testimony by a qualified mental health expert that he
was operating under extreme emotional distress, depriving him of
the ability to present "competent and mitigating evidence," the
outcome of the trial would have been different. This claim lacks
merit due to the overwhelming evidence presented against
Petitioner at trial. Any testimony offered by a mental health
expert as to Petitioner's emotional distress was unlikely to have
changed the outcome of the trial. Given that the trial judge was
lenient in granting him life imprisonment instead of death, it is
also unlikely that expert testimony would have affected his
Another argument made by Petitioner was that counsel deprived
him of an opportunity at sentencing to present mitigating
evidence by failing to call several witnesses to testify,
including his mother. In the fifth claim in his habeas petition,
Petitioner makes the same argument that he was denied his right
to effective assistance of counsel due to counsel's failure to
call his stepmother to testify at sentencing. These claims lack
merit because the judge, who had already heard testimony at trial
of Thompson Sr.'s long history of physical and verbal abuse
toward Petitioner and other family members, granted Petitioner
leniency by sentencing him to life imprisonment instead of death.
We agree with the finding of the Illinois Appellate Court:
"Defendant [has failed] to show how additional testimony would
have affected his trial or his sentencing hearing except for the
conclusory claim that it would have constituted mitigating
evidence." People v. Thompson, No. 1-99-2686, at 14. Petitioner also argues that counsel would not permit him to
testify at trial despite his desire to do so. Petitioner did not
notify the court, however, that he wished to testify even when
the defense rested without having called him as a witness.
Petitioner also fails to state how his testimony would have
changed the outcome of the case. Without establishing a basis for
how his testimony would have changed the result, Petitioner has
failed to establish how counsel's actions were prejudicial.
Finally, we granted Petitioner leave to file additional habeas
claims on July 19, 2002. These additional claims were the same
allegations of ineffective assistance of counsel as those
described above. We hold that there is no reasonable probability
that, but for counsel's alleged errors, the results of
Petitioner's trial would have been different. We hold that the
Illinois Appellate Court properly applied federal law in
determining that Petitioner's claims fail to establish sufficient
prejudice under the second prong of Strickland
B. Fifth Amendment Right to Testify
Petitioner's third claim in his habeas petition is that he was
denied his Fifth Amendment right to testify as a witness on his
own behalf when trial counsel told him he could not testify. A
criminal defendant has a constitutional right to testify on his
own behalf under the Fifth Amendment's Due Process Clause. Rock
v. Arkansas, 483 U.S. 44, 49-53 (1987); Morgan v. Krenke,
232 F.3d 562, 569 (7th Cir. 2000). For purposes of state criminal
proceedings, like this one, the right to testify arises out of
the Fourteenth Amendment's Due Process Clause. U.S. Const. Amend.
XIV ("[n]o State shall . . . deprive any person of life, liberty,
or property, without due process of law."). The right to take the
stand on one's own behalf is personal to the defendant, which means that it can only be waived by the
defendant himself, and not by his counsel. Jones v. Barnes,
463 U.S. 745, 751 (1983).
Federal courts have held, however, that a defendant's silence
at trial effectively waives his right to testify on his own
behalf. United States v. Edwards, 897 F.2d 445, 446 (9th Cir.
1990). When a defendant's attorney makes a tactical decision not
to have his client testify and the court was not alerted to the
defendant's desire to testify, "[t]o hold that a defendant may
abide by his lawyer's advice and not take the stand and then
invalidate the trial because he so acted is not fair to the
government." Id. (quoting United States v. Martinez,
883 F.2d 750, 761 (9th Cir. 1989)).
In this case, Petitioner failed to notify the trial court of
his desire to testify. As the Illinois Appellate Court held.
Petitioner's waiver of his right to testify is presumed because
of his failure to notify the court. People v. Thompson, No.
1-99-2686, at 16. Equally important, Petitioner fails to state in
his habeas petition how his testimony would have changed the
outcome of the case. Therefore, we deny Petitioner's request for
habeas relief on this ground.
For all of the foregoing reasons, we deny the § 2254 petition
for a writ of habeas corpus brought by Petitioner Dennis
It is so ordered.
© 1992-2004 VersusLaw Inc.