The opinion of the court was delivered by: MATHEW KENNELLY, District Judge
*fn1 Charles Hinsley is substituted as the respondent in this
case pursuant to 28 U.S.C. § 2254, Rule 2(a).
MEMORANDUM OPINION AND ORDER
In 1995, an Illinois jury convicted Don Harris of one count of
aggravated criminal sexual assault and two counts of aggravated
kidnapping, and he was sentenced to a seventy-five year prison
term. The charges against Harris arose allegations he had
abducted a fourteen year old girl and her four year old male
cousin on a Chicago street and then sexually assaulted the girl
at gunpoint. Harris' defense at trial was a claim of consent; in
his habeas corpus petition, he contends he paid the girl to have
sexual intercourse and that she falsely accused him of sexual
assault when he took his money back.
Harris has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Harris alleges that his
constitutional rights were violated by: (1) improper comments by
the prosecution during opening and closing arguments that he says
concerned his decision not to testify; (2) allowing evidence of
his victim's virginity; (3) admission of evidence of a prior
similar crime by Harris; (4) admission of an out-of-court
statement by the victim's cousin that corroborated the victim's testimony; (5) admission of evidence
allegedly seized in violation of the Fourth Amendment; (6) the
cumulative impact of the errors at trial; (7) denial of effective
assistance of counsel on his post-conviction petition; (8) denial
of effective assistance of trial counsel; (10) denial of
effective assistance of appellate counsel on post-conviction
review; and (11) imposition of a sentence that violated of
Apprendi v. New Jersey, 530 U.S. 466 (2000). For the following
reasons, the Court denies Harris' petition.
Factual findings by the state court are presumed correct in a
federal habeas corpus proceeding unless they are rebutted by
clear and convincing evidence. Mahaffey v. Schomig,
294 F.3d 907
, 915 (7th Cir. 2002); 28 U.S.C. § 2254(e)(1). Harris has
raised only one relatively minor dispute with the Illinois
Appellate Court's factual findings, so we adopt the following
account from the decision of that court in People v. Harris,
297 Ill. App. 3d 1073
(1998), including the court's discussion of
a motion to suppress evidence that Harris filed, and omitting the
one item that Harris disputes:
On the morning of June 17, 1995, N.G., a 14-year-old
girl, awoke around 8:30 a.m. Her aunt asked her if
she would go to the store to buy some milk. She and
her four-year-old male cousin, R.W., walked to the
corner store. On the way home, N.G. saw a man, whom
she identified as defendant. He wore a City of
Chicago orange construction worker vest. He put a gun
against her side and said, "Do you see this[?]" She
said "yes." Defendant made N.G. wear some sunglasses
that had black tape in the inside of the lens so she
could not see. He led them to his car. N.G. was
saying "no" and R.W. was crying and saying "no. We
want to go home." Defendant put R.W. in the back seat
and N.G. in the front seat. When he entered the car,
he set the gun by his leg.
As he drove, defendant said N.G. fit the description
of a girl who stabbed his sister. N.G. told him that
she was not that person. He asked her where she lived
and she gave him a false address. He asked her for
her name and she told him it was Kiki. He asked her
age and she told him 12 years old. He continued to
ask her various questions, including whether she was
a virgin. She replied "yes" and he said he would know
if she was lying. N.G. stated that she was crying and the tape on the
sunglasses started to loosen so that she could see.
Defendant stopped the car and said, "I think you can
see." He took the sunglasses off, pulled duct tape
from his pocket and put it directly on her eyes. He
put the sunglasses back on and started to drive
again. She was able to see some of the streets
because the tape on her eyes became wet and started
to loosen. Defendant finally drove to an alley and
stopped the car near a garage.
Defendant then pushed the door of the garage open and
took them inside. N.G. could see a vehicle on the
first floor of the garage. It was a dark black or
gray car with red lines. Defendant took them up some
stairs. R.W. was crying and saying "no" and stating
that he wanted to go home. When they reached the top
of the stairs, there was an old red couch and he
ordered them to sit. N.G. stated that there were old
sales papers, a rolled up carpet, an old gutter, and
a lot of dirt and rocks on the floor.
Defendant took her hat and the sunglasses off. He
told her to stand up and to lift her shirt so he
could unbutton her shorts. He could not get them
unbuttoned so he told her to do it. His face was a
few inches from her face. She unbuttoned her shorts
and he told her to lie down. R.W. was still screaming
on the couch. Defendant said that she did not look
like she was 12 years old and asked why she was
lying. He pulled her shorts and underwear down. N.G.
was crying. He then pulled her shirt off over her
head and turned her on her stomach. He told her just
go along with it and he would not hurt her. Defendant
took his penis and put it in her vagina. As she was
crying and screaming, he told her to be quiet and
threatened to slit her throat. Next defendant turned
her on her back and put his penis in her vagina
again. He told her to hold her legs up and be quiet.
Then defendant ordered her to put her arms around him
and hug him. She did so, and she could feel the gun
in his back. Then defendant took his penis out of her
vagina. He "got mad and jumped up. He turned to
[R.W.] and said, thanks for ruining my fun."
Defendant told her to dress and then walked them
downstairs where he pulled the tape off her eyes and
threw it on the floor. He took a blue rag and tied it
around her eyes. He drove them to 54th Street and
Wood, which was about four blocks from the store
where she had purchased the milk. He told her that he
was glad she had cooperated with him and that she
"was the first one he didn't kill." He walked them to
the middle of the street. He told them to walk home
and said that if they turned around he would shoot
them. He threatened to kill them if they said
anything. Then he untied the blindfold. After she
made sure he was gone, N.G. ran with R.W. to her
When they arrived at the house, N.G. told her aunt
what happened and her aunt called the police. When a
police officer arrived, N.G. led him to the garage
where the assault occurred. She identified
defendant's vehicle, a gray Riviera. Later she
identified a gun as the one defendant had used during
the assault. N.G. went to the hospital where she was
examined by medical personnel and she went to the
police station that afternoon and identified
defendant from a lineup. Defendant was charged with various counts related to
these events, including criminal sexual assault,
aggravated sexual assault, armed violence and
aggravated kidnapping. Defendant moved to quash his
arrest and suppress evidence.
At the suppression hearing, Officer Vernon Mitchell
testified that he and other officers were called to
defendant's residence on July 17, 1995, sometime
after 9 a.m. They were to assist other officers in
the possible apprehension of a criminal sexual
assault suspect. Upon arriving at the scene, he was
informed as to the details of the assault as given by
N.G. Officer Mitchell spoke with a person on the
street and learned that a man had gotten out of the
gray car in front of the residence with a brown paper
bag and had gone into the house a few minutes before
the other officers had arrived.
The officers rang the doorbell and knocked but did
not receive an answer. A girl, later identified as
defendant's daughter Lokeya Caldwell, came to the
window on the second floor. She appeared to be
between 11 and 13 years old. She was visibly upset,
shaken and crying. The officers told her to come to
the door and eventually she did so, but she only
opened the inner door. She said she was alone and
that her father had locked her in and gone to work.
She closed the door and left the doorway. The
officers began calling to the girl. They were
concerned for her safety and called the fire
department. The officer stated, "We had no idea who
was in the house with her, if something was wrong
with her or not, so we called the fire department."
He also stated they were aware that the victim had
identified the car. "Maybe he might have been holding
her hostage or something like that. We really weren't
sure at all."
When the fire department arrived about five minutes
later, they put a ladder up to the window on the
second floor and the officers entered the house.
Officer Mitchell found the girl and asked her if she
was okay and what was happening. She was still
shaking and crying. She told him in a whisper "he's
in the house." The other officers proceeded
downstairs. The girl told Officer Mitchell that it
was her father who was in the house and he had come
in excited, running around with a bag that he was
trying to hide, and saying that the police were
coming to get him for something he did not do.
In going through the residence, the other officers
found a shotgun in the second-floor bedroom under the
bed, a "Tek-9" in a closet also in the bedroom and
two additional guns in a brown paper bag on the
second floor in an oven. One of the officers heard
some noise in the basement and went downstairs to
find defendant. . . .
Officer Mitchell asked the girl to call her mother.
When Linda Caldwell arrived about 5 to 10 minutes
later, the officers explained what happened and why
they were there. Ms. Caldwell signed a form, stating:
"I, Linda Caldwell, give permission to Chicago police
officers to search my residence at 5315 South
Laughlin on June 17, 1995, and take out of my
residence any illegal weapons." The officers explained to her that the form was to
search the house and the other properties. The
officer said she was "very cooperative," stating that
she wanted to see for herself. Ms. Caldwell led them
through the yard, moved the family's dogs to allow
the officers to pass, unlocked the gates, and let
them into the garage.
When they entered the garage, the officers found two
pieces of duct tape on the car in the garage with a
red stripe. They went upstairs and found two orange
safety vests, a red couch, carpeting, and crumpled up
newspapers. They also recovered some blue rags and a
pair of sunglasses.
Lokeya Caldwell testified that she was watching
television in an upstairs bedroom on June 17, 1995,
when her father came home and went to sleep. After
about 15 minutes, she went to the window and saw a
fire truck and police officers. One of the policemen
called up to her. She told them that her father was
home. When he asked her to come down and open the
door, she woke her father, who told her to go to her
room. The police came into the house through the
window. She was upset, but denied crying.
Linda Caldwell testified that she signed a piece of
paper that morning but stated that she was told that
she had to sign it to get her property back. She did
not read it before signing and the police did not
tell her it was a consent to search form. No police
officer asked her for consent to search her house.
She stated that she refused to open the garage and
the officers took her keys and opened the lock. When
asked if she was cooperative, she said, "I had no
. . .
The case proceeded to trial, where N.G. and others
testified. Louevetta W., N.G.'s aunt and R.W.'s
mother, testified that when R.W. returned that
morning he was crying, hysterical and scared. His
eyes were red and puffy as if he had been crying for
an extended period of time. She also stated that N.G.
appeared frightened and was shaking and crying. Her
hair was disarrayed over her head and her clothes
The court allowed L.E. to testify as evidence of
another sexual assault alleged to have been by
defendant. L.E. testified that on March 25, 1995, she
was 17 years old. At approximately 9 a.m. she was
waiting for a bus when defendant approached and asked
if she had change for a dollar. He grabbed her arm
and she felt a gun barrel to her back. He said,
"don't scream or I will shoot you." He told her to
get into his car, a two-door gray Riviera. He told
her to lay her head in his lap. He moved the gun to
the back of her head and proceeded to drive.
Defendant then started asking her personal questions,
such as, her name, her age, who she lived with, and
where was she going. He asked her if she had sucked
anyone's penis before and she said "no." He said,
"well, you are about to today" and she started
crying. He unzipped his overalls, raised his shirt,
and pushed her head down to his penis. His penis was in her mouth for 5 to 10 minutes. She told
him she could not breath and he told her "he didn't
give a fuck, bitch." He then zipped his pants back up
and told her to lay her head back down. He asked her
if she had ever had sex and she said "no." "He said
don't lie to me." Then he said, "so you are a virgin,
huh." She said "yes." He said, "you are about to find
He stopped the car and made her get out. He told her
to close her eyes and put her hands around him. She
did so, but she could see somewhat. They went into an
abandoned building and he kissed her. He told her to
take her clothes off and to lie down on an old
mattress. He put his penis in her vagina. He was not
able to put it in all the way and her "lower body
kind of hopped up." He told her to shut up and lie
back down. He said he would kill her if she moved
again. Then he put his penis in her vagina again.
After 10 to 15 minutes he got up and told her to
dress. Then he walked over to her and ordered her to
Defendant then took her out of the building and he
told her to get back in the car. He told her he would
kill her if the police ever found out. He took her to
another abandoned building, directed her to remain in
the building for at least 10 minutes and left.
Eventually, she came out and walked home. He had left
her about one block from where he had picked her up.
On June 17, 1995, L.E. identified defendant in a
lineup as her attacker. She also identified the gun
that he had used. On cross-examination, she stated
that the man who attacked her had on a hood and wore
The defense theory in the case suggested that N.G.
consented to having sex. Defendant did not testify
but offered several witnesses. Desiree Weeks
testified that she saw defendant standing by his car
near the store that morning. She stated that she saw
a young lady with a little boy approach him and have
a conversation for about 30 to 40 minutes. She saw
the lady attempt to open the passenger door of
defendant's car, but defendant had to come around to
open it. She saw them sit in the car and converse for
another 15 minutes before driving away. On
cross-examination, she admitted that Ms. Caldwell
initially asked her to testify and that she had told
an investigator that she saw them talking for a few
minutes, rather than 30 to 40 minutes.
Irene Scroggins, a bus driver, testified that
defendant assisted her that morning at an Amoco
station when she locked her keys in her car. She
heard a woman yelling from the front seat of
defendant's car, stating that she was ready to go.
There was a small head in the back seat. On
cross-examination, Scroggins admitted that she had
said in her statement that the woman that she saw
appeared to be in her late twenties or thirties. She
also was not certain of the gender of the person in
the back seat. While Ms. Scroggins was uncertain as
to the exact time of these events she stated at one
point that she started her work break about 7:40 a.m.
that morning and she went to the gas station
thereafter. Other evidence indicated that defendant
had driven his wife to work that morning sometime
before 8 a.m. John Davis, defendant's neighbor, testified that he
saw a lady and a child in defendant's car parked next
to defendant's garage that morning. He did not see
defendant and the lady did not say anything to him as
he walked by. This was several hours before the
police arrived that morning. On cross-examination,
Davis admitted that he would not talk to the State's
investigators when they came to question him because
he had been drinking that day.
People v. Harris, No. 1-96-2641, slip op. at 1-10 (Ill.App.
June 30, 1998).
A federal habeas petitioner procedurally defaults a claim when
he fails to raise the claim in one or more state courts at the
time and way required by the state, see, e.g., Hogan v.
McBride, 74 F.3d 144, 146 (7th Cir. 1996), or when the state
court disposed of the claim not on its merits but rather based on
an independent and adequate state procedural ground, Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991), which occurs when "the
last state court rendering judgment in the case `clearly and
expressly' states that its judgment rests on the state procedural
bar." Harris v. Reed, 489 U.S. 255, 263 (1989).
The state procedural ground is "independent" when it alone can
dispose of the claim without addressing the claim's merits.
Courts sometimes dispose of issues on procedural grounds but then
go on to examine the merits. But "even if the state court's
review in applying a procedural rule is `entangled' with the
merits, that `entanglement' is not sufficient to compromise the
procedural default." Rodriguez v. McAdory, 318 F.3d 733, 735-36
(7th Cir. 2003) (citing Carey v. Saffold, 536 U.S. 214 (2002)).
Instead, "to open up the issue for review by the federal habeas
court, the state court's review must be `entirely dependent on
the merits (as opposed to just `entangled' with the merits).'"
Id. (quoting Brooks v. Walls, 301 F.3d 839, 843 (7th Cir.
2002)). The state procedural ground is "adequate" when the
procedural ground is a "firmly established and regularly followed state practice." Ford
v. Georgia, 498 U.S. 411, 423-24 (1991).
A procedural default may be excused for purposes of a habeas
corpus petition if the petitioner can "demonstrate cause for the
default and actual prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice."
Coleman, 501 U.S. at 750. "Cause" must be something outside of
the petitioner's control, "something that cannot fairly be
attributed to him," id. at 753, and actual prejudice exists
when there is a "reasonable probability that the issue not raised
would have altered the outcome of the [state court] appeal had it
been raised." Lee v. Davis, 328 F.3d 896, 901 (7th Cir. 2003).
The fundamental miscarriage of justice exception only applies
where the petitioner can show that he is actually innocent of the
crime of which he was convicted. Gomez v. Jaimet, 350 F.3d 673,
679 (7th Cir. 2003). He "must come forward with `new reliable
evidence whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence
that was not presented at trial.'" Id. (quoting Schlup v.
Delo, 513 U.S. 298, 324 (1995)). The petitioner must also show
that more likely than not, in light of this new evidence, "no
reasonable juror would have convicted him." Schlup,
513 U.S. at 327.
Claims 1, 2, and 4, namely, Harris' claims that the prosecution
violated his Fifth Amendment right not to testify by allegedly
commenting during closing argument on his failure to testify;
that admitting the victim's statements of virginity violated due
process; and that admitting the out-of-court statement by the
victim's cousin violated Harris' Sixth Amendment right to
confront witnesses, were held by the Appellate Court to have been
waived. See Harris, slip op. at 19-24. Harris argues that the
court did not rely on waiver as an independent ground because it also addressed the merits of the claims. It is true
that the court addressed the merits of these claims, but it did
so only as an alternative holding after finding that the first
two issues had been waived because they had not been included in
Harris' written post-trial motion as required by Illinois law,
and that the third had been waived because no contemporaneous
objection was made to the testimony. See id. Because these
rulings were alternative holdings made only after clear and
express statements that each of the issues had been waived,
waiver was an independent and adequate state-law basis for ruling
against Harris sufficient to establish a procedural default.
See, e.g., Gomez v. Jaimet, 350 F.3d 673 (7th Cir. 2003). Claim
6, the assertion that cumulative errors denied Harris a fair
trial, was defaulted because Harris did not include it in his
petition for leave to appeal to the Illinois Supreme Court. See
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (issue must be
raised at all levels of state court review to be preserved for
purposes of federal habeas corpus petition).
As indicated earlier, a procedural default can be overcome by a
showing of cause and prejudice. Harris claims that his trial
counsel's ineffective assistance and conflict of satisfies this
standard. Specifically, he argues that the conflict of interest
"resulted in counsel neglecting to file an adequate motion for
new trial as required by the statute." Response to Answer at 10.
Harris argues that his trial counsel's "failure to preserve the
issues is objectively deficient and even [amounts] to ineffective
assistance." Id. at 11. Ineffective assistance of counsel and
conflict of interest can establish cause for a procedural
default. Coleman, 501 U.S. at 754 (ineffective assistance);
Barnhill v. Flannigan, 42 F.3d 1074, 1077-78 (7th Cir. 1994)
("an attorney's actual conflict of interest can be sufficient
cause to excuse a procedural default"). But a habeas corpus
petitioner must scale another hurdle before he can rely on
ineffective assistance of counsel to excuse a procedural default: he must also have raised in the
state courts the particular claim of ineffective assistance upon
which he relies as the excuse. See Edwards v. Carpenter,
529 U.S. 446, 450-51 (2000); Everett v. Barnett, 162 F.3d 498, 502
(7th Cir. 1998).
Harris did argue ineffective assistance of trial counsel in his
post-conviction petition. But that argument addressed other
issues; Harris did not argue in his post-conviction petition that
counsel was ineffective for failing to file an adequate
post-trial motion or for failing to object to the hearsay
evidence at trial. For this reason, under Edwards these
contentions cannot be relied on to excuse the procedural default,
unless Harris can satisfy the "cause and prejudice" standard with
respect to these claims as well. See Edwards,
529 U.S. at 450-51. Harris has not done so. He has submitted letters from his
post-conviction appellate counsel, who advised that he would not
raise Harris' ineffective assistance claim on appeal. But this
could only have been a reference to the particular claims Harris
had raised in his post-conviction petition, which as noted above
are different from the claim he now makes to excuse the default
of issues 1, 2, 4 and 6. Thus ...