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U.S. v. BRILEY

United States District Court, N.D. Illinois, Eastern Division


October 18, 2004.

UNITED STATES OF AMERICA, ex rel ALEJANDRO RUEDA, Petitioner,
v.
KENNETH BRILEY, Warden, Lawrence Correctional Center, Respondent.

The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Alejandro Rueda's ("Petitioner") petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. For the reasons stated below, we deny Petitioner's petition for writ of habeas corpus.

BACKGROUND

  Following a bench trial, Petitioner was convicted of first degree murder of Rico Martinez and sentenced to 50 years imprisonment in the Circuit Court of Cook County, Illinois ("trial court"). The Assistant Public Defender of Cook County ("public defender"), who represented Petitioner on appeal, filed a motion for leave to withdraw as appellate counsel pursuant to Anders v. California, 386 U.S. 738 (1967). In support of his motion to withdraw, the public defender filed a brief which stated "that the record contains no issue which would support an appeal." Resp't Ex. A at 6. Petitioner responded to the public defender's motion by presenting arguments in support of his appeal. The Appellate Court of Illinois reviewed Petitioner's response to the public defender's motion, found there were "no issues of arguable merit", and allowed the public defender to withdraw as counsel. Resp't Ex. C at 4. In addition, the Appellate Court of Illinois affirmed the judgment of the trial court. Id. Petitioner then filed a petition for leave to appeal to the Supreme Court of Illinois, which was subsequently denied on February 2, 2000.

  Subsequently, Petitioner filed a petition for post-conviction relief in the trial court. The trial court denied Petitioner's petition for post-conviction relief without an evidentiary hearing and Petitioner appealed. The Appellate Court of Illinois affirmed the judgment of the trial court. Petitioner then filed a petition for rehearing in the Appellate Court of Illinois, which was denied and Petitioner filed a petition for leave to appeal to the Supreme Court of Illinois. On April 2, 2003, the Supreme Court of Illinois denied Petitioner's petition for leave to appeal. On November 21, 2003, Petitioner filed a petition for writ of habeas corpus with this court.

  LEGAL STANDARD

  A district court may entertain a habeas corpus petition from a "person in custody pursuant to the judgment of a State court only on the grounds that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Pursuant to 28 U.S.C. § 2254(d):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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).

  I. Ineffective assistance of trial counsel

  In his petition for writ of habeas corpus, Petitioner claims that his trial counsel was ineffective for not asserting the defense of voluntary intoxication at trial. Pet. at 5. However, Petitioner did not present this claim in his petition for leave to appeal to the Supreme Court of Illinois on direct appeal or in his petition for post-conviction relief. Resp.'t's Ex. D, L.

  A. Procedural Default

  Before a petitioner can present a claim in a petition for writ of habeas corpus, a petitioner must first have presented that claim in "one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Under Illinois' two-tiered appellate review process, a petitioner has a right to have his claims on appeal initially heard by the Appellate Court of Illinois. Id. at 843 (noting that death penalty claims are heard directly by the Supreme Court of Illinois). After a petitioner's claims have been decided in the Appellate Court of Illinois, a petitioner may file a petition for leave to appeal to the Supreme Court of Illinois. Id. Failure by a petitioner to present a claim in a petition for leave to appeal to the Supreme Court of Illinois will result in a procedural default of that claim if it is later raised in a petitioner's petition for writ of habeas corpus. Rittenhouse v. Battles, 263 F.3d 689, 697 (7th Cir. 2001); see also White v. Godinez, 192 F.2d 607, 608 (7th Cir. 1999) (explaining that the procedural default rule announced in Boerckel that addressed a petitioner's failure to pursue a claim on direct appeal, "applies with equal force" in cases where a petitioner fails to pursue a claim in a post-conviction petition on collateral review.) However, a federal court can review procedurally defaulted claims if a petitioner "shows cause for failure to raise them at the appropriate time and actual prejudice which resulted from such failure" or, "[a]bsent such a showing, a defaulted claim is reviewable only if refusal to consider it would result in a `fundamental miscarriage of justice. . . .'" Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir. 1999).

  In his petition for leave to appeal to the Supreme Court of Illinois, on both direct appeal and in his petition for post-conviction relief, Petitioner failed to present the claim that his trial counsel was ineffective for not asserting the defense of voluntary intoxication at trial. Resp.'t's. Ex. D, L. Because Petitioner failed to present this claim of ineffective assistance of trial counsel in a petition for leave to appeal to the Supreme Court of Illinois, this claim is now procedurally defaulted in Petitioner's petition for writ of habeas corpus. Rittenhouse, 263 F.3d at 697.

  Petitioner appears to argue that the cause of his failure to present this ineffective assistance of trial counsel claim in a petition for leave to appeal to the Supreme Court of Illinois was because his appellate counsel was ineffective. Pet. at 5. The Seventh Circuit has articulated that a "claim of ineffective assistance must be raised in state court before it can suffice on federal habeas relief as `cause' to excuse the default of another claim (even if that other claim is also ineffective assistance of counsel)." See Dellinger v. Bowen, 301 F.3d 758, 766-67 (7th Cir. 2002) (citing Edwards v. Carpenter, 529 U.S. 446, 452-54 (2000)). "If the second claim of ineffective assistance of counsel is itself defaulted, the petitioner will be fully defaulted." Id. As we will discuss below, Petitioner has procedurally defaulted his claim for ineffective assistance of appellate counsel. Consequently, Petitioner's claim of ineffective assistance of appellate counsel cannot suffice as "cause" to excuse the default of his ineffective assistance of trial counsel claim. Dellinger, 301 F.3d at 766-77. Accordingly, we find that Petitioner has not shown cause for his failure to raise this claim of ineffective assistance of trial counsel at the appropriate time. Furthermore, there is no indication that refusal by this court to review this claim would result in a fundamental miscarriage of justice, given the evidence against Petitioner. Scillia, 193 F.3d at 917. Therefore, we find that Petitioner's claim of ineffective assistance of trial counsel in his petition for writ of habeas corpus is procedurally defaulted. Since neither exception to procedural default is applicable, procedural default bars habeas review on this claim.

  II. Ineffective assistance of appellate counsel

  In his petition for writ of habeas corpus, Petitioner claims that his "[a]ppellate counsel's failure to raise trial counsel's deficiency for not presenting a theory based on intoxication and lack of a culpable criminal mental state prejudiced [him] on direct appeal." Pet. at 5. However, Petitioner did not present this claim in a petition for leave to appeal to the Supreme Court of Illinois on direct appeal or in a petition for post-conviction relief. Resp.'t's Ex. D, L.

  A. Procedural Default

  In his petition for leave to appeal to the Supreme Court of Illinois, on both direct appeal and in his petition for post-conviction relief, Petitioner failed to present this claim that his appellate counsel was ineffective for "not presenting a theory based on intoxication and lack of a culpable criminal mental state." Resp.'t's. Ex.'s D, L. Because Petitioner failed to present this claim of ineffective assistance of appellate counsel in a petition for leave to appeal to the Supreme Court of Illinois, this claim is now procedurally defaulted in Petitioner's petition for writ of habeas corpus. Rittenhouse, 263 F.3d at 697. Additionally, we find that Petitioner has not shown cause for his failure to raise this claim of ineffective assistance of appellate counsel claim at the appropriate time. Furthermore, there is no indication that refusal by this court to review this claim would result in a fundamental miscarriage of justice, given the evidence against Petitioner. Scillia, 193 F.3d at 917. Therefore, we find that Petitioner's claim of ineffective assistance of appellate counsel in his petition for writ of habeas corpus is procedurally defaulted. Since neither exception to procedural default is applicable, procedural default bars habeas review on this claim.

  CONCLUSION

  Based on the foregoing analysis, we deny Petitioner's petition for writ of habeas corpus.

20041018

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