United States District Court, N.D. Illinois, Eastern Division
July 23, 2004.
UNITED STATES OF AMERICA ex rel. MONICA COSBY, Petitioner,
ALYSSA B. WILLIAMS, Respondent.
The opinion of the court was delivered by: BLANCHE MANNING, District Judge
MEMORANDUM AND ORDER
Petitioner Monica Cosby's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is before the court. For the
following reasons, Cosby's petition is denied.
The court will presume that the state court's factual
determinations are correct for the purposes of habeas review as
Cosby does not challenge them and 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 facts,
and will briefly summarize the key facts which are relevant to
Cosby's § 2254 petition. See People v. Cosby, No. 1-98-3770
(1st Dist. Jun. 6, 2000) (direct appeal) (unpublished order);
People v. Cosby, No. 96 CR 1896 (Cir.Ct. Apr. 8, 2001) (trial
court's disposition of collateral attack) (unpublished order);
People v. Cosby, No. 1-01-2083 (1st Dist. May 27, 2003)
(collateral appeal) (unpublished order).
A. Bobbie King's Death
The victim, Bobbie King, lived in a one-bedroom apartment in
Rodgers Park with her young son. In late 1995, Kevin King
(Bobbie's adult son), Cosby (Kevin's girlfriend), and Cosby's three children moved into Bobbie's apartment. The new
arrivals caused Bobbie to give up her bedroom and sleep on the
floor by her son's crib. Bobbie must not have liked the new
living arrangement as she told her daughter that she wanted
Kevin, Cosby, and Cosby's children to move out.
Shortly thereafter, on December 26, 1995, Cosby and Kevin went
over to a friend's apartment and Cosby consumed beer, rum, and
marijuana. Later that evening after Kevin and Cosby returned to
Bobbie's apartment, Bobbie told them that they would have to move
out in a few days. Bobbie, Kevin, and Cosby argued. Cosby took
her children into the kitchen while Kevin and his mother
continued to argue. Kevin then entered the kitchen, told Cosby
that everything would be all right because he had killed his
mother, and led Cosby to the bathroom where she saw Bobbie's
body, with a bloodied face and head, lying motionless in the
Cosby obtained a plastic bag and placed it over Bobbie's head.
Kevin secured the bag by tying an electrical cord around Bobbie's
neck. Cosby and Kevin then moved the body into the bathtub,
covered it with clothing, and retired to the living room to
engage in sexual relations and take a nap. Several hours later,
they tied Bobbie's hands and feet together, wrapped her body in a
shower curtain, placed her upside-down in a shopping cart, and
hid the cart in a neighbor's closet.
Bobbie's daughter called the police when her mother was
missing. The police thus visited Bobbie's apartment twice during
the afternoon of December 27th. The first time, Cosby denied that
she knew Bobbie. The second time, she told them that she had last
seen Bobbie at approximately 5:00 a.m., just before she and Kevin
had gone into the bedroom to engage in sexual relations.
According to Cosby, when they emerged, Bobbie was gone. Police
arrived for a third time later that day pursuant to a call from one of
Cosby's friends who told the police that Cosby had shown her the
body. Cosby and Kevin were subsequently arrested and charged with
murder and concealment of a homicidal death.
B. Questioning by Police
Shortly after midnight on December 28th, while in police
custody, Cosby invoked her right to remain silent. Around that
time, she met with Alan Mills, a family friend and attorney.
Mills also reiterated that Cosby wished to remain silent. At
approximately 3:00 a.m., the police again informed Cosby of her
rights under Miranda v. Arizona, 385 U.S. 436 (1966), and
confronted her with a statement made by Kevin, her co-defendant.
In response, Cosby stated, among other things, that "[s]he
brought a plastic bag to the bathroom and put the plastic bag
over Bobbie King's head."
Later, at approximately 9:00 a.m., the police once again
informed Cosby of her Miranda rights and she agreed to give a
memorialized statement to an Assistant State's Attorney. In this
statement, which was later introduced at trial, Cosby
acknowledged that she understood her rights under Miranda, had
been given water, had refused any other food or drink, and had
been treated well by the police and the Assistant State's
Attorney. She then stated, among other things, that after Kevin
showed her Bobbie's body, she went to the kitchen to get a clear
plastic bag to put over Bobbie's head and then placed the bag
over Bobbie's head.
She also told the Assistant State's Attorney that she helped
Kevin move Bobbie into the bathtub and cover the body with
clothing, subsequently removed Bobbie from the bathtub, cut
strips off a blanket to tie her up, helped Kevin tie her hands
and feet together, and placed her upside-down in a cart to "get
rid of the body." She concluded by stating that she and Kevin
took the cart to another apartment to hide it until they could take it
out of the building safely without getting caught by the police.
C. Direct Proceedings
At Cosby's trial before Judge Bertina Lampkin, medical
testimony indicated that Bobbie had died as a result of
strangulation and that blunt force trauma to the head was a major
contributing factor. It also indicated that Bobbie had suffered
three separate blows to the head and that she was alive when the
bag was placed over her head and when her hands and feet were
tied together. Cosby's 9:00 a.m. statement was also admitted
Cosby testified and attempted to put a positive slant on her
relationship with Bobbie. She also stated that she was afraid of
Kevin and that she thought Bobbie was dead when she helped move
her body into the bathtub. In addition, she testified that Kevin
placed the bag over Bobbie's head and that she had previously
told the police that she did put the bag onto Bobbie because she
Cosby was found guilty of first degree murder and concealment
of a homicidal death. During the sentencing hearing, the State
emphasized the brutality of the crime and Cosby's callous
behavior. Cosby expressed remorse and the defense presented
evidence showing that Cosby was involved with several community
groups and had a history of abusive relationships with men, a
difficult upbringing, and no prior criminal record. Judge Lampkin
found that Cosby had helped Kevin brutally murder Bobbie and knew
that Bobbie was alive when the bag was placed over her head. She
also stated that she believed that Cosby's trial testimony was
untruthful and that her statement during the sentencing hearing
was insincere. Finally, she discounted the positive statements in
the letters Cosby presented and found that Kevin did not force her to act as she did. She thus sentenced Cosby to forty
years for murder plus three years for concealment, to be served
On direct appeal, Cosby presented a battered women's defense
and contended that the sentencing judge had abused her discretion
by imposing an excessive sentence. The appellate court rejected
this argument but found that the trial court had erred by
imposing a consecutive rather than a concurrent sentence. Upon
remand, Cosby was resentenced accordingly.
D. Collateral Proceedings
Cosby then filed a state post-conviction petition contending
that: (1) the police violated her constitutional rights when they
took her statement at 3:00 a.m.; (2) trial counsel was
ineffective for failing to move to suppress the 3:00 a.m.
statement, failing to interview the medical examiner, failing to
develop a defense based on battered women's syndrome, and failing
to request a competency hearing prior to trial; and (3) appellate
counsel was ineffective for failing to raise trial counsel's
deficiencies on appeal.
With respect to the 3:00 a.m. statement, the trial court noted
that trial counsel had considered filing a motion to suppress
because a motion had been prepared by counsel. Counsel told
another lawyer as well as Cosby, however, that he had decided not
to try to suppress the statement because he thought it would be
helpful to the defense. The trial court also found that there was
no reasonable probability that the result of the proceedings
would have been different if counsel had tried to suppress the
statement because the police had acted properly and Cosby had
decided to make a statement. It thus dismissed the petition as
frivolous and patently without merit. On appeal, Cosby raised the suppression issue and contended
that the police conduct underlying her statement constituted
independent grounds for relief. The appellate court began by
stressing that the 3:00 a.m. statement had not been admitted at
trial. It then held that even if the 3:00 a.m. and the 9:00 a.m.
statements were somehow connected, the 3:00 a.m. statement was
not subject to suppression under Miranda. It thus concluded
that under Strickland v. Washington, 466 U.S. 668 (1984), trial
counsel was not ineffective for failing to raise a losing
argument and that appellate counsel was not ineffective for
failing to challenge trial counsel's decision regarding the
motion to suppress. It also found that Cosby's remaining argument
was procedurally defaulted. Cosby filed an unsuccessful petition
for leave to appeal ("PLA") with the Illinois Supreme Court.
In Cosby's federal habeas petition, she contends that: (1)
trial counsel was ineffective because he failed to try to
suppress her statement and appellate counsel was ineffective for
failing to raise this issue; (2) the appellate court incorrectly
found that she had waived her argument that her statement was
involuntary and had been taken in violation of her Fifth
Amendment right to counsel; (3) the trial and appellate courts'
refusal to follow the dictates of the Illinois Post-Conviction
Hearing Act violated Cosby's due process rights; (4) she is
entitled to relief because she is actually innocent; and (5) she
is entitled to an evidentiary hearing on her claims.
A. Exhaustion and Procedural Default
Before this court may reach the merits of Cosby's federal
habeas claims, it must consider whether she has exhausted her
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 her claims before she
presents them to a federal court. See 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,
Cosby has exhausted her state court remedies because no state
court relief is available to her at this stage in the
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, this 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 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 (1995). The court will discuss
procedural default when it addresses the merits.
B. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 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." See id. at
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,
123 S.Ct. 1166, 1174 (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." See 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 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).
C. Cosby's Claims
1. Motion to Suppress
Cosby's main argument centers around trial counsel's decision
not to try to suppress her statement. According to Cosby, the
state's theory was that Bobbie died of strangulation and Cosby
was responsible because she confessed to placing a plastic bag
over Bobbie's head. Cosby contends that without her confession
regarding the plastic bag, the state's case against her would
have been weak and she would not have had to take the stand to
attempt to rebut her confession. Cosby appears to be focusing on
her 3 a.m. statement (which was not admitted at trial), as
opposed to her 9 a.m. statement. For the purposes of her habeas
petition, the court will assume that if the 3 a.m. statement was
improper, the 9 a.m. statement was as well.
To render effective assistance of counsel under the Sixth
Amendment to the United States Constitution, counsel's
performance must satisfy the well-known Strickland standard.
See Strickland v. Washington, 466 U.S. 668, 687-91 (1984).
Under the first prong of the Strickland standard, Cosby must
show that her counsel's representation fell below an objective
standard of reasonableness. Id. at 687-88. The second
Strickland prong requires Cosby to establish that there is a
reasonable probability that, but for counsel's errors, the result
of the proceeding would have been different. Id. at 694. If a
defendant fails to satisfy one of the Strickland prongs, the
court's inquiry under Strickland ends. See id. at 697; see
also Hough v. Anderson, 272 F.3d 878, 890 (7th Cir. 2002). Here,
regardless of how Cosby frames her ineffective assistance claims
vis-a-vis suppression of her statement, she is not entitled to
habeas relief. a. Ineffective Assistance Right to Counsel
Cosby argues that counsel was ineffective for failing to move
to suppress her statement because the police questioned her
knowing that she was represented by counsel and had asked for her
lawyer. The Illinois Appellate Court found that Cosby had
exercised her right to remain silent at some point before 12:45
a.m. on December 28, 1995, and that the police advised her of her
rights again at 3:00 a.m. when they confronted her with Kevin's
statement. Relying on Strickland and Michigan v. Mosely,
423 U.S. 96 (1975), the appellate court found that the police had
scrupulously honored Cosby's right to cut off questioning because
she had been given fresh Miranda warnings and a significant
amount of time had elapsed between interrogations.
In Michigan v. Mosely, the Supreme Court held that statements
made by a defendant who had earlier invoked her right to remain
silent are admissible if police scrupulously honor her right to
cut off questioning. 423 U.S. at 104. In deciding whether police
scrupulously honored a defendant's rights, courts should consider
whether: (1) the police immediately halted the initial
interrogation after the defendant invoked her right to remain
silent; (2) a significant amount of time elapsed between the
interrogations; (3) a fresh set of Miranda warnings were given
prior to the second interrogation; and (4) the second
interrogation addressed a crime that was not the subject of the
first interrogation. Id. at 104-05. Consistent with Mosley,
however, police may renew questioning on a subject even if a
defendant previously cut off questions on that topic. See United
States v. Schwensow, 151 F.3d 650 (7th Cir. 1998).
Here, the Illinois Appellate Court identified the correct
controlling Supreme Court precedent. Applying that precedent, it
found that the evidence showed that Cosby was aware of and
understood her rights under Miranda during both interviews and
nevertheless chose to make a statement when she realized that Kevin was speaking with the
police. With the wisdom of 20/20 hindsight she may wish that she
had declined to speak with the police. This does not change the
fact that the appellate court's finding that her statement was
voluntary is not an unreasonable application of clearly
established federal law as determined by the Supreme Court or an
unreasonable determination of the facts in light of the evidence.
b. Ineffective Assistance Voluntariness & Right to Silence
Cosby next takes issue with the appellate court's finding that
she waived the arguments that: (1) her statement was involuntary
because she was sleep and food deprived, under the influence of
drugs and alcohol, and suffering from depression; and (2) her
statement had been taken in violation of her Fifth Amendment
right to counsel. The Illinois Appellate Court found that these
claims were waived because they were not sufficiently raised in
the petition, which was prepared by counsel.
As noted above, a defendant must properly present his
constitutional claims to the state courts to avoid procedural
default. See generally O'Sullivan v. 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 Dressler v. McCaughtry, 238 F.3d 908, 912-13 (7th Cir.
2001). This is exactly what happened here: Cosby failed to
properly present her voluntariness and right to silence arguments
in the manner required by state law and the state court found
that this delict prevented it from reaching the merits of that
claim. Accordingly, these claims are procedurally defaulted based
on an independent and adequate state ground. The court acknowledges that Cosby believes that she adequately
presented her claims to the state courts and that those courts
erroneously found that she failed to do so. The record does not
support this argument. It is well-established that a habeas
petitioner must present specific federal constitutional claims to
the state court before she 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 must "raise the red flag of
constitutional breach" in state court or her claims will be
barred in federal court).
Here, Cosby's state court post-conviction petition referred
only generally to counsel's failure to suppress her statement.
See Petition at ¶ 54. It also noted, in the context of another
argument, that she was questioned "after [police] knew she was
represented by counsel." This is not enough to "raise the red
flag of constitutional breach." Similarly, raising a
voluntariness argument for the first time on appeal is not enough
to preserve that claim. See Castille v. Peoples, 489 U.S. 346,
349 (1989) (to avoid procedural default, claims must appear in a
petitioner's filings with the state trial court and intermediate
appellate court as well as in her PLA). Thus, Cosby's
voluntariness and right to silence claims are procedurally
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. See Coleman v. Thompson, 501 U.S. at 750. Cosby raises
actual innocence as a separate argument and for the reasons
discussed below, the fundamental miscarriage of justice exception
based on actual innocence is inapplicable. Although Cosby does not contend that cause and prejudice excuse
her default, the court will nevertheless consider whether these
exceptions can help her. 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, Cosby failed to properly
follow state procedural rules. Nothing in the record before the
court indicates that an objective factor prevented her from doing
so. Thus, cause does not excuse her 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 prejudice exists.
c. Ineffective Assistance Trial Strategy
For the reasons discussed above, there are no grounds to seek
suppression of Cosby's statement. The failure to raise a losing
argument, whether at trial or on appeal, is reasonable and thus
does not constitute ineffective assistance of counsel. Rodriguez
v. United States, 286 F.3d 972, 985 (7th Cir. 2002); Stone v.
Farley, 86 F.3d 712, 718 (7th Cir. 1996). Consequently, the
performance of Cosby's counsel in not seeking to suppress her
statement meets the objective standard of reasonableness required
In the interests of completeness, the court will nevertheless
briefly address Cosby's claims that: (1) trial counsel's failure
to try to suppress her statement constitutes ineffective
assistance because competent counsel would have sought to
suppress the statement before trial; and (2) trial counsel should
have reassessed his strategy after the medical examiner testified
that Bobbie was alive when Cosby put the plastic bag over
Bobbie's head. According to Cosby, counsel was unprepared and
formulated a faulty strategy because he failed to interview the medical examiner and thus did not know that Bobbie was still
alive when the bag was placed over her head and subsequently when
her wrists and ankles were tied. Cosby contends that this delict
made his trial strategy that Cosby performed acts after Bobbie
had already died a guaranteed loser.
First and foremost, the fact that a statement can be used
against a defendant does not require its suppression. Given that
the court has rejected Cosby's arguments about the propriety of
her statement, all counsel could do was try to make the best of
the situation. He definitely did this by arguing that a mistake
of fact occurred (e.g., that Cosby thought Bobbie was already
dead at the time she placed the bag over Bobbie's head, bound her
body, and placed her upside-down in the cart and thus could not
have intended to murder her).
In any event, attorneys have "wide latitude . . . in making
tactical decisions" so to obtain habeas relief, "the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy."
Strickland v. Washington, 466 U.S. at 689. Here, with respect
to the pretrial decision not to file a motion to suppress, the
record shows that counsel believed that Cosby's best chance was
to argue mistake of fact. This strategy provided a viable defense
to the homicide charge because Cosby's statement that Kevin told
her he had killed his mother and that she viewed Bobbie's
motionless and bloody body on the floor supports a
mistake-of-fact defense. See People v. Crane, 145 Ill.2d 520,
526-28 (1991) (mistake of fact defense available to defendant who
believed the victim was already dead at the time he burned the
This strategy also provides a reason (albeit one that the trier
of fact did not ultimately accept) as to why Cosby might not be
responsible for Bobbie's death despite the fact that ample evidence placed her at the scene of the crime and showed that she
concealed a homicide. The respondent also correctly notes that
the decision not to seek to suppress the statement benefitted
Cosby because it meant that she was not required to testify at a
pretrial hearing. This gave her the flexibility to decide whether
to testify at the time of trial and did not allow the state to
develop impeachment material ahead of time.
Accordingly, to the extent that Cosby believes that her
attorney was ineffective for failing to move to suppress her
statement before trial, the court finds that the state court's
holding that counsel's tactical decision not to try to suppress
the statement before trial was a matter of professional judgment
and thus immune to attack under Strickland was neither an
unreasonable application of Strickland nor an unreasonable
interpretation of the facts.
Cosby also contends that counsel rendered ineffective
assistance because he failed to interview the medical examiner
before trial and thus did not know that Bobbie was still alive
when the bag was placed over her head. The Illinois Appellate
Court rejected this argument, stating that Cosby had failed to
identify a specific witness that would have provided specific
testimony that counsel should have elicited or show that
counsel's actions probably affected the outcome of the trial.
"[S]trategic choices based on something less than a complete
investigation are reasonable to the extent that reasonable
professional judgment would support limits on that
investigation." U.S. ex rel. Hampton v. Leibach, 347 F.3d 219,
236 (7th Cir. 2003). Here, the court agrees with the Illinois
Appellate Court that counsel's investigation does not rise to the
level of ineffective assistance because Cosby has failed to show
that there is a reasonable probability that, but for counsel's
alleged errors, the result of the proceeding would have been
different. In state court, Cosby contended that counsel should have
cross-examined the medical examiner regarding her conclusion that
plastic was pressed against Bobbie's face. Petition for
Post-Conviction Relief at 5. According to Cosby, he should have
asked if her opinion would be affected by the fact that the body
had been stored in an inverted position with the fact pressed
against a soft surface because this question was asked in Kevin's
trial and the examiner said that this fact would affect her
This court finds that even if counsel had asked this question,
the result would have been the same. The trial judge specifically
found that Cosby helped Kevin murder Bobbie and knew that Bobbie
was alive when the bag was placed over her head. The trial judge
also specifically found that Cosby's testimony was not credible.
These factual findings are entitled to a presumption of
correctness so the court cannot pick and choose among the
evidence and select only the evidence that is favorable to Cosby.
See 28 U.S.C. § 2254(e)(1). This means that the court must
accept that Bobbie had ordered Cosby and her children to leave
the apartment, thus providing Cosby with a motive to assist in
Bobbie's murder, and that Cosby obtained a plastic bag and put it
over Bobbie's head and later tied up her body knowing she was
In sum, it is not enough to merely set forth a supposition that
further investigation would have uncovered evidence that would
have exonerated Cosby. Instead, Cosby must point to specific
evidence that counsel should have uncovered and present that
specific evidence to the state courts before raising it in a
federal habeas corpus petition. Because she failed to do so, her
failure to investigate argument fails. And because all of her
ineffective assistance of trial counsel arguments are unavailing,
appellate counsel cannot have rendered ineffective assistance by
failing to contend that trial counsel was ineffective. 2. Due Process
Cosby also contends that the trial and appellate courts'
refusal to follow the dictates of the Illinois Post-Conviction
Hearing Act violated her due process rights. A petitioner cannot
obtain relief under § 2254 to redress alleged violations of state
law. Moreover, Cosby does not contend that the state court's
interpretation of Illinois Post-Conviction Hearing Act is at odds
with any United States Supreme Court authority. Her request for
federal habeas relief based on the alleged failure to comply with
the Illinois Post-Conviction Hearing Act 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").
3. Actual Innocence
Finally, Cosby asserts that she is entitled to relief because
she is actually innocent. Her position appears to be that she in
fact believed that Bobbie was dead when she placed the bag over
her head and thus was entitled to receive the benefit of a
mistake of fact defense. As Cosby acknowledges, the trial court
found that Cosby placed the bag over Bobbie's head to complete
the process of murdering her and tied her up before placing her
in the cart to prevent her from escaping. She contends, however,
that she could have just as easily placed the bag over Bobbie's
head to contain the blood and tied up the body for easy of
This argument appears to actually be a sufficiency of the
evidence argument. As such, it must fail. According to the
Supreme Court, a conviction must stand if "after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jackson v. Virginia, 443
U.S. 307, 319 (1979). When the evidence is viewed in the light most
favorable to the government, it easily supports the rejection of
Cosby's mistake-of-fact defense as it is just as reasonable, if
not more so, for Cosby to have placed a bag over Bobbie's head to
suffocate her and for her to have bound her up to restrain her.
Cosby has thus failed to show that the state court's decision was
"contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of
the United States" or "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).
To the extent that Cosby is attempting to excuse her procedural
default with respect to her voluntariness and right to silence
arguments, her claim of actual innocence is similarly unavailing.
As noted above, the fundamental miscarriage of justice exception
to procedural default is only available if the petitioner
presents new and convincing evidence of her innocence by showing
that it is more likely than not that no reasonable juror would
convict her in light of the new evidence. Schlup v. Delo, 513
U.S. at 324. Cosby's actual innocence argument is based on her
interpretation of facts adduced at trial which were rejected by
the finder of fact. It thus does not excuse her procedural
4. Evidentiary Hearing
Cosby's habeas petition ends with a bald request for an
evidentiary hearing under § 2254(e)(2) to develop the factual
record concerning her ineffective assistance of counsel claims.
In general, this court's ability to hold an evidentiary hearing
so a petitioner may supplement an underdeveloped state court
record is "severely circumscribed." Boyko v. Parke,
259 F.3d 781, 789-90 (7th Cir. 2001); see also Williams v. Taylor,
529 U.S. 420, 437 (2000) (federal habeas courts are not alternative forum for trying facts and issues that
petitioner did not pursue in state court).
Thus, if a factual basis of a claim was not developed in the
state court, a federal court "shall not hold an evidentiary
hearing" unless the petitioner shows that: (1) her claim relies
on "a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable" or "a factual predicate that could not have been
previously discovered through the exercise of due diligence; and
(2) "the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense."
28 U.S.C. § 2254(e)(2).
Because Cosby does not assert that a new rule of constitutional
law is implicated, she must demonstrate that the failure to
develop a factual record in the state court was not her fault.
See Williams v. Taylor, 529 U.S. at 432. She must also point to
facts sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder
would find her guilty of the underlying offense. See
28 U.S.C. § 2254(e)(2)(B). Because Cosby has failed to point to facts that
satisfy this strict standard, she is not entitled to a federal
For the above reasons, Cosby's § 2254 petition [1-1] is denied.
© 1992-2004 VersusLaw Inc.