United States District Court, N.D. Illinois, Eastern Division
September 17, 2004.
UNITED STATES OF AMERICA ex rel. JEROME MURRAY, Petitioner,
GREGORY LAMBERT, Respondent.
The opinion of the court was delivered by: BLANCHE MANNING, District Judge
MEMORANDUM AND ORDER
Petitioner Jerome Murray's pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is before the court. For the
following reasons, Murray's petition is denied.
The court will presume that the state court's factual
determinations are correct for the purposes of habeas review as
Murray 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 Murray's § 2254 petition.
In June of 1990, while Lisa Stokes and two of her friends were
seated on a park bench, a bearded, African-American man attempted
to engage them in conversation. When the women attempted to
leave, the man seized Stokes using a knife, dragged her deeper
into the park, and raped her. Stokes escaped and called the
police. Physical evidence, known as a "Vitullo kit," was taken
from Stokes when she was at the hospital. This kit established
that the attacker had type B blood. Murray, like 36% of the
population, had type B blood. Stokes and the two friends who were with her on the day of the
attack testified at trial and identified Murray as the offender.
In addition, the State presented two witnesses (a serologist and
a nurse) who testified about the Vitullo kit. Their description
of the kit's contents were largely but not entirely similar.
Trial counsel did not attempt to challenge the chain of custody
for the kit from the time it was assembled in the hospital to the
time it arrived at the laboratory for analysis. The defense
conceded that Stokes was raped but contended that Murray was not
the attacker and, among other things, presented witnesses who
testified that Murray's facial hair at the time of the attack did
not resemble the descriptions given by the three women.
The jury convicted Murray of aggravated criminal sexual
assault. He was subsequently sentenced to fifty-five years
imprisonment. His conviction and sentence were affirmed on direct
appeal and he did not file a petition for leave to appeal ("PLA")
with the Illinois Supreme Court for his direct appeal.
Murray did, however, file a pro se post conviction petition. In
this petition, he asserted that trial counsel was ineffective for
failing to challenge the procedures used to identify him. After
counsel was appointed, Murray filed a supplemental pro se
petition alleging that the chain of custody of the evidence used
against him was compromised and/or fabricated. Murray also filed
a complaint with the Attorney Registration and Disciplinary
Commission ("ARDC") against his appointed counsel after counsel
declined to adopt the pro se supplemental petition. In addition,
counsel filed a petition contending that: (1) trial and appellate
counsel in the direct proceedings were ineffective because they
failed to contest admission of the Vitullo kit based on problems
with the chain of custody; and (2) Murray's sentence violated the
rule set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000). The trial court dismissed all of the petitions. Murray then
filed a successive post-conviction petition which included the
claims in his original pro se post-conviction petition. After the
trial court rejected the successive petition, Murray appealed.
The Illinois Appellate Court consolidated the appeals and
affirmed across the board, finding, among other things, that: (1)
Murray had waived his argument that the Vitullo kit was
fabricated and/or doctored; and (2) the trial court properly
dismissed the chain of custody argument raised by Murray's lawyer
because the evidence against Murray was overwhelming. Murray
filed an unsuccessful PLA challenging these two holdings.
In his § 2254 petition, Murray asserts that: (1) the trial
court erred when it rejected his pro se supplemental
post-conviction petition because his conviction was based on
false evidence; (2) his due process rights were violated when the
State presented false evidence at trial; (3) the rejection of his
post-conviction ineffective assistance claim led to a denial of
due process; (4) the trial court erred when it ruled on his
post-conviction petition without first determining whether the
fact that he had filed an ARDC complaint against his appointed
counsel meant that counsel had a conflict of interest; (5) the
appellate court erred when it held that he had waived his right
to obtain an evidentiary hearing during the post-conviction
proceedings by not raising the evidentiary hearing argument on
direct appeal; and (6) his trial counsel and appellate counsel on
his direct appeal were ineffective.
A. Threshold Matters
The court will begin by summarizing the rules governing
exhaustion and procedural default and by recapping the standard
of review that guides this court in resolving Murray's § 2254
petition. 1. Exhaustion and Procedural Default
Before this court may reach the merits of Murray's federal
habeas claims, it must consider whether he has exhausted his
state remedies and avoided procedural default under Illinois law.
See Mahaffey v. Schomig, 294 F.3d 907, 914-15 (7th Cir. 2002).
a. Exhaustion of State Court Remedies
To exhaust state court remedies, a petitioner must give the
state courts an opportunity to act on each of his claims before
he presents them to a federal court. 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, Murray has exhausted his state court remedies
because no state court relief is available to him at this stage
in the proceedings.
b. Procedural Default
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
2. 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).
B. Murray's Claims
The court will group the claims in a logical sequence rather
than considering them individually in the order set forth in
1. Procedural Default
a. The Vitullo Kit
Four of Murray's claims center around the Vitullo kit. First,
he contends that the trial court erred when it rejected his pro
se supplemental post-conviction petition because his conviction
was based on false evidence. Second, he asserts that the State
violated his due process rights by presenting false evidence at
trial. Third, he challenges the appellate court's finding that he
waived his right to obtain an evidentiary hearing about the
Vitullo kit during his post-conviction proceedings because he
should have raised this issue on direct appeal. Fourth, he
contends that his trial counsel was ineffective because he did
not challenge the admission of the Vitullo kit based on an
allegedly compromised chain of custody.
The Illinois Appellate Court held that Murray had waived the
first and second false evidence claims by not raising them in his
direct appeal, explaining:
The integrity of the evidence used against defendant
at trial is an issue that would have been known at
the time of the direct appeal. The documentary
evidence upon which the defendant relies includes
conflicting testimony about what samples were
contained in the evidence kit and a crime lab form
that shows receipt of additional evidence. Defendant
also refers to the State's need to obtain additional
blood samples from him during trial. Defendant claims
that the need for "replacement" samples underscores
the compromised chain of custody. Setting aside the
fact that defendant agreed to provide additional
blood samples, implicating waiver, all of defendant's claims are
based on facts contained in the trial record
available on direct appeal.
People v. Murray, Nos. 1-00-4230 & 1-01-1736 at 6 (1st. Dist.
Oct. 14, 2003) (unpublished order).
The Illinois Appellate Court also held that the evidentiary
hearing argument was essentially a recast version of the false
evidence claims because it was an attempt to relitigate the
evidence kit issue with information that was known at the time of
Murray's direct appeal. Id. at 5-6. In addition, the Illinois
Appellate Court found that Murray waived his ineffective
assistance of trial counsel claim because he could have argued on
direct appeal that counsel was ineffective because counsel failed
to challenge the admission of the kit. Id. at 6.
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). Moreover, under Illinois law, if a defendant fails to
raise an issue on direct appeal when that issue could have been
raised on direct appeal, res judicata bars him from relitigating
this issue in postconviction proceedings. Mahaffey v. Schomig,
294 F.3d 907, 916 (7th Cir. 2002).
Here, the Illinois Appellate Court found that Murray could have
raised his Vitullo kit arguments and addressed counsel's
performance with respect to the kit on direct appeal. People v.
Murray, Nos. 1-00-4230 & 1-01-1736 at 6. This is correct because
Murray's arguments are all based on material within the four
corners of the trial record. Indeed, as the Illinois Appellate Court recognized, Murray declined to pursue DNA testing to
establish his innocence and thus could only frame arguments based
on the evidence presented at trial. Id. at 4-6.
Because Murray did not point to any evidence outside the trial
record in his post-conviction petition, the state court found
that he had waived his Vitullo kit arguments by failing to raise
them on direct appeal as required by state law. The state court's
reliance on Murray's waiver means that the Vitullo kit arguments
are procedurally defaulted based on an independent and adequate
b. Conflict of Interest
Murray also argues that the trial court should have determined
whether his counsel was conflicted before it ruled on the portion
of his post-conviction petition that counsel prepared. A
petitioner must present his claims to the Illinois courts, up to
and including the Illinois Supreme Court, to avoid procedural
default. See Boerckel, 526 U.S. at 844. Because Murray's
conflict of interest argument does not appear in his PLA, it is
c. Exceptions to Procedural Default
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. Although
Murray does not contend that cause and prejudice or the
fundamental miscarriage of justice exceptions excuse his default,
the court will nevertheless consider whether these exceptions can
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, Murray failed to properly follow state
procedural rules. Nothing in the record before the court
indicates that an objective factor prevented him from doing so.
Thus, cause does not excuse his default. Moreover, an allegation
of ineffective assistance of counsel is not, by itself, enough to
establish prejudice. See Pitsonbarger v. Gramley,
141 F.3d at 737. Thus, neither cause nor prejudice exists.
The fundamental miscarriage of justice exception is also
inapplicable because "this relief is limited to situations where
the constitutional violation has probably resulted in a
conviction of one who is actually innocent." Dellinger v.
Bowen, 301 F.3d at 767, citing Schlup v. Delo, 513 U.S. 298,
327 (1995). To show "actual innocence," a petitioner must present
clear and convincing evidence that, but for the alleged error, no
reasonable juror would have convicted him. Id. Murray's
petition, as well as the state court pleadings submitted to the
court, do not contain any substantiated allegations of actual
innocence. Thus, this exception does not apply.
2. Ineffective Assistance of Appellate Counsel
In the briefs filed with the Illinois courts, Murray argued
that his appellate counsel from his direct appeal was ineffective
because he did not contend that trial counsel was ineffective. In
support, Murray contended that his trial counsel should have
raised "major discrepancies in the collecting, labeling, and
forwarding of the biological evidence" and pointed to
discrepancies in the witnesses' testimony about the contents of
the Vitullo kit. People v. Murray, Nos. 1-00-4230 & 1-01-1736
at 7. Specifically, "a criminalist testified that hair samples
were labeled as exhibits 7F, G, H, I and J" but "a nurse who
collected the samples identified other physical evidence as
bearing the same labels." Id. In addition, a witness testified
that the evidence kit contained a single swab, but a lab report
referred to multiple swabs. Id. Finally, the State did not present a witness to testify about how the evidence was
transported from the hospital, where it was collected, to the
crime lab, where it was analyzed. Id.
The Illinois Appellate Court began its analysis of Murray's
ineffective assistance claim by recapping the well-known
Strickland standard. See Strickland v. Washington,
466 U.S. 668, 687-91 (1984). Under Strickland, Murray must show that his
counsel's representation fell below an objective standard of
reasonableness. Id. at 687-88. He also must 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 these 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).
The court then declined to address whether counsel's
performance was objectively reasonable because it concluded that
Murray could not establish prejudice. Specifically, it held that
the inconsistencies did not make the outcome of the trial
unreliable in light of the overwhelming identification testimony
because the victim and two eyewitnesses all identified Murray and
they had an "ample opportunity to observe him" prior to the
attack. People v. Murray, Nos. 1-00-4230 & 1-01-1736 at 8. The
court also noted that these three witnesses identified Murray out
of a lineup and testified consistently and credibly at trial.
Id. Finally, it stressed that the physical evidence did not
establish that Murray was the attacker. Instead, it established
that he was a member of the 36% of the population who could have
been responsible for the attack due to his blood type. Id. It
thus concluded that the failure to challenge the use of the
physical evidence on direct appeal via an ineffective assistance
argument was not prejudicial.
This conclusion is not contrary to clearly established federal
law as determined by the United States Supreme Court because the
state court followed the Strickland framework. See
28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. at 405. In addition,
the Vitullo kit was not a smoking gun which led inexorably to Murray's conviction. Instead,
it was one piece out of many which supported the jury's verdict.
The state court's finding that appellate counsel's decision not
to pursue an ineffective assistance of trial counsel argument was
not prejudicial is thus not an "unreasonable application" of
Strickland because it is consistent with facts and
circumstances of the case. See Schultz v. Page,
313 F.3d at 1015.
3. Due Process
Finally, Murray argues that the state court's rejection of his
post-conviction ineffective assistance claim violated his due
process rights. Ineffectiveness claims, however, arise under the
6th Amendment. Moreover, a constitutional claim, must rise or
fall on its merits. This means that a habeas petitioner cannot
get two bites at the apple by arguing that a constitutional
violation occurred and then, after the court rejects that
argument, start afresh by claiming that the rejection of that
same constitutional claim also violated his due process rights.
This court has found that the state court's rejection of
Murray's ineffective assistance claims is neither "contrary to"
or "an unreasonable application of" clearly established federal
law as determined by the United States Supreme Court. This means
that Murray is not entitled to habeas relief based on counsel's
performance regardless of whether he casts his request for relief
as an ineffectiveness claim or a due process claim.
4. The State's Arguments
The court feels compelled to comment on the memorandum
submitted by the Illinois Attorney General's Office on behalf of
the respondent. Counsel argued that the state court's finding
that Murray waived his arguments by failing to properly present
them on direct appeal is a non-cognizable claim because it rests
on a determination of state law. This is flatly incorrect. The
state court declined to reach the merits of Murray's arguments
because he did not present them as required by state law. This holding is based on a bedrock
principle of federal habeas law: the independent and adequate
state ground doctrine. A non-cognizable claim, on the other hand,
is based on a merits ruling by the state court which in turn is
founded on state law.
In addition, counsel argues that federal constitutional claims
are completely insulated from federal habeas review if the state
court adjudicates them on the merits. The Antiterrorism and
Effective Death Penalty Act may have eviscerated the Great Writ,
but it indisputably did not go this far. Counsel then follows up
this statement of law by quoting the "contrary to or an
unreasonable application of federal law as established by the
United States Supreme Court" standard in § 2254(d)(1) and
concluding, with absolutely no discussion, that Murray's claims
The court recognizes that the field of federal habeas corpus
litigation can be complex and challenging, but the arguments
raised by counsel here misstate basic rules. The court thus has
no choice but to remind counsel that it expects a higher level of
advocacy from attorneys appearing before it. See Madej v.
Briley, 370 F.3d 665, 667 (7th Cir. 2004) (expressing concern
about the "frivolous and unprofessional" arguments consistently
raised by lawyers representing the State of Illinois).
For the above reasons, Murray's § 2254 petition [1-1] is
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