The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Eltonze Pace ("Pace") is in the custody of
Respondent Warden of the Dixon Correctional Center, Dixon,
Illinois, and is serving a fifty-year sentence for first-degree
murder. Before the Court is Pace's petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Respondent argues that each
claim is procedurally defaulted. For the reasons stated below,
the Court denies the petition.
Lee Cole, Jr. ("Lee") testified that on July 19, 1995 at about
5:00 p.m., he was with his cousin, James Cole ("James"), and
Demond Spraggs ("Spraggs") in a group of fifteen to twenty people
socializing outside a friend's house. He heard Pace say to James,
"Aren't you going to say excuse me for stepping on my shoe?" When
Pace gestured with his hands indicating that he wanted to fight,
Spraggs came between James and Pace. Pace then walked away but
approached James a few minutes later and said, "Let's talk about
this like men." James said, "Okay. Cool," and accompanied Pace to the back of the house. Pace then raised his shirt and drew a gun
from his waistband, and James turned away as if to run toward the
group. Pace said, "Why you disrespect me?" and shot James. After
James fell to the ground, Pace shot him a second time.
Spraggs testified that when James stumbled over Pace's shoe,
Pace wanted to fight. Spraggs intervened and Pace walked away.
Then Pace came back, said something to James, and they walked
about fifteen or twenty feet away. Spraggs heard a gunshot,
looked up and saw James fall to the ground. Pace then stood over
him and shot once more.
In September 1998, a judge in Cook County found Pace guilty of
first-degree murder, and he was sentenced to a term of fifty
years in the Illinois Department of Corrections. Pace appealed to
the Appellate Court of Illinois, First District, and raised only
one issue: whether the sentence he received was excessive due to
his lack of a previous criminal record and his rehabilitative
potential. On June 4, 1998, the Appellate Court rejected Pace's
claim and denied his appeal. Pace then filed a petition for leave
to appeal the Appellate Court's decision to the Illinois Supreme
Court which was subsequently denied.
On February 25, 1999, Pace filed a pro se petition for
post-conviction relief in which he raised a claim of ineffective
assistance of counsel for failing to cross-examine the State's
two witnesses at trial. The State filed a motion to dismiss
Pace's petition which was granted by the Circuit Court of Peoria
County on December 27, 2001. Pace, who was represented by
counsel, appealed the Circuit Court's decision to the Appellate Court of Illinois, First District. On January 29, 2003, the
Appellate Court affirmed the dismissal of the post-conviction
petition. Pace then filed a petition for leave to appeal to the
Illinois Supreme Court which was denied on June 4, 2003.
On August 7, 2003, Pace filed the instant habeas corpus
petition. His petition raises two claims: (1) ineffective
assistance of trial counsel; and (2) ineffective assistance of
appellate counsel for failing to raise the issue of ineffective
assistance of trial counsel.
The review of Pace's petition for writ of habeas corpus is
governed by 28 U.S.C. § 2254 ("section 2254") as amended by the
Antiterrorism and Effective Death Penalty Act of 1996. Federal
courts may grant a writ of habeas corpus when a person is held in
custody under a state court judgment in violation of the
Constitution. Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir.
1996). Before determining whether a petitioner's habeas petition
has merit, however, a court must decide whether the petitioner
has waived his claim for federal habeas corpus relief because of
a procedural default. See Riner v. Owens, 764 F.2d 1253, 1255
(7th Cir. 1985). Therefore, the Court must determine whether
Pace's claims are procedurally defaulted before the Court can
address the merits of his claims.
A petitioner has procedurally defaulted on a claim that forms
the basis for a habeas corpus petition when (1) the petitioner
has failed to exhaust all remedies available to him in state court, or (2) the state court has disposed of the
claim on independent and adequate state law grounds. See
Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995); Coleman
v. Thompson, 501 U.S. 722, 729 (1991). Procedural default may be
overlooked if the petitioner can show good cause for the default
and actual prejudice resulting therefrom, or ...