United States District Court, N.D. Illinois, Eastern Division
November 17, 2004.
UNITED STATES ex rel. MARCUS HUNTER, Plaintiff,
SHELTON FREY, Defendant.
The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on a petition for habeas
corpus by Marcus Hunter,*fn1 filed pursuant to
28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.
According to evidence adduced at trial, Hunter was one of five
men involved in an armed robbery in a South Side Chicago
nightclub in December 1984. Three main witnesses testified
regarding Hunter's involvement. The first, Wade Curry, recalled
seeing Hunter point a gun at the head of a woman who worked at
the club. Keeping Curry and the woman at gunpoint, Hunter took them into the
basement of the club. He then left them there with two of his
compatriots, William Glover and Marvin Bryant, while he went back
upstairs in search of Eddie Morris, the club's owner. After
Hunter departed, Glover took money and jewelry from Curry and
another man who was in the basement. Curry's version of the
events in the basement was corroborated by three other witnesses,
one of whom was shot during the exchange.
Rosalind Morris, the woman whom Curry saw, is the wife of Eddie
Morris. She testified that Hunter took cash and jewelry from the
couple's bedroom while holding them at gunpoint. Eddie's
testimony about the events of that night was substantially the
same as Rosalind's. Police later recovered a gun that witnesses
identified as the one Hunter held.
A jury convicted Hunter of armed robbery, home invasion, and
aggravated battery on September 10, 1985. Because of several
prior convictions for armed robbery, he was sentenced to natural
life imprisonment and a concurrent term of 10 years. He appealed
his sentence (though not his conviction) on constitutional
grounds, but the Illinois Court of Appeals rejected his challenge
and affirmed his sentence. People v. Glover, 527 N.E.2d 968,
971-73 (Ill.App.Ct. 1988). Thereafter, he petitioned the
Illinois Supreme Court for leave to appeal the question of
whether his sentence violated the Illinois and United States
Constitutions. In his petition, Hunter argued that he was not subject to the enhanced sentences mandated
by the Illinois recidivist statute, 720 ILCS 5/33B-1, because he
had pled guilty to his prior felony offenses rather than having
his case tried to a jury. Hunter also claimed that the robbery at
the club should not be considered a violent act because he had
not shot anyone. The petition was denied. People v. Glover,
535 N.E.2d 405 (Ill. 1988).
Hunter then filed three postconviction petitions. The first,
filed March 21, 1989, alleged that postconviction relief was
appropriate for three reasons. First, Hunter claimed that Eddie
Morris told Hunter's initially appointed counsel that Hunter was
not involved in the robbery. Next, Hunter asserted that his
second appointed attorney did not meet with him prior to trial,
and thereafter rendered ineffective assistance at trial because
he did not cross-examine Morris on the statement allegedly made
to Hunter's former attorney and did not argue the effect of an
inconsistent identification by one of the testifying witnesses.
Lastly, Hunter claimed that his appellate counsel was ineffective
because he argued only the constitutionality of Hunter's
sentence, rather than addressing multiple issues that Hunter
wished to bring before the court of appeals.
On August 22, 1991, Hunter filed an amendment to his 1989
filing, bringing additional grounds for relief. Specifically, he
claimed that his attorney did not contact or interview any of the
witnesses Hunter identified in his favor, did not call any
witnesses at trial on Hunter's behalf, and did not confer with
Hunter prior to trial. He again asserted that his appellate counsel did not address issues
that he wanted brought before the appellate court. Neither
petition was ruled upon.
Almost five years later, Hunter filed another postconviction
petition, which was ultimately treated as an amendment of the
1991 petition. In this petition, Hunter averred that his trial
counsel was ineffective for failing to interview certain
witnesses and to inform him that those witnesses would not
testify at trial, for ineffectively cross-examining a witness,
for failing to object to an allegedly prejudicial comment by
another defense attorney, for concealing evidence, and for
failing to request a jury instruction. In addition, Hunter
claimed that his conviction was invalid because he believed the
state had used perjured testimony and withheld evidence, that the
evidence presented was not sufficient to prove guilt beyond a
reasonable doubt, and that the court had abused its discretion in
rendering certain evidentiary rulings and giving particular jury
instructions. Lastly, Hunter averred that postconviction relief
was warranted because the clerk of the circuit court did not keep
records that would allow Hunter to investigate whether the courts
were applying criminal law uniformly.
In October 1998, before the state court had ruled on his second
postconviction petition, Hunter filed his first federal petition
for a writ of habeas corpus. After a year of proceedings in this
court and the Seventh Circuit, Hunter failed to respond to a motion to dismiss the petition on the ground that he had not
exhausted his state court remedies. As a result, the motion was
granted without prejudice.
Meanwhile, in the state case, the prosecution moved to dismiss
the postconviction petition.*fn2 After conducting an
evidentiary hearing on Hunter's claims, the court granted the
motion. Hunter appealed, but before his appeal could be decided,
he filed a third petition for postconviction relief. The last
petition was denied in July 2001, and the subsequent appeal was
consolidated with that of the second petition. In a 34-page
opinion, the appellate court affirmed the denial of
postconviction relief, and the Illinois Supreme Court denied
Hunter's petition for leave to appeal that decision in March
2004. People v. Hunter, 809 N.E.2d 1289 (Ill. 2004).
Shortly thereafter, Hunter*fn3 successfully reinstated his
federal petition and moved for appointment of counsel. Respondent
Shelton Frey ("Warden Frey"),*fn4 warden of the Tamms
Correctional Center where Hunter is incarcerated, has answered
the petition, and the time is finally ripe for us to consider whether Hunter is
entitled to relief under 28 U.S.C. § 2254.
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a prisoner in state custody may petition a district
court for a writ of habeas corpus "only on the ground that he is
in custody in violation of the Constitution or laws or treaties
of the United States." 28 U.S.C. § 2254(a). The AEDPA further
dictates that a prisoner in state custody cannot be granted
habeas relief "unless the state court 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.'" Schaff v. Snyder, 190 F.3d 513, 521 (7th Cir.
1999) (quoting 28 U.S.C. §§ 2254(d)(1), (2)). For a state court
decision to be "contrary to" clearly established federal law, it
must be "substantially different" from relevant Supreme Court
precedent. Williams v. Taylor, 529 U.S. 362, 405,
120 S.Ct. 1495, 1519 (2000). This situation arises if the state court
either applies a rule that contradicts the governing law as set
forth by the Supreme Court or confronts a set of facts that are
materially indistinguishable from a decision of the Supreme Court
and still arrives at a different result. Id. at 405-06. A state
court decision involves an "unreasonable application" of clearly established Supreme Court law when it uses the correct
legal rule but applies it in an objectively unreasonable manner.
Id. at 409-10. An objectively unreasonable decision is one that
lies "well outside the boundaries of permissible differences of
opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002).
Under 28 U.S.C. § 2254(d)'s "highly deferential standard for
evaluating state court rulings," in deciding habeas petitions, we
must give state court decisions "the benefit of the doubt."
Woodford v. Viscotti, 537 U.S. 19, 24, 123 S. Ct. 357, 360
(2002) (citation omitted). In doing so, "issues of fact found by
a state court are presumed to be correct unless the petitioner
rebuts this presumption with clear and convincing evidence."
Lechner v. Frank, 341 F.3d 635, 638 (7th Cir. 2003) (citing
28 U.S.C. § 2254(e)(1)). With these considerations in mind, we turn
to Hunter's petition.
1. Procedurally Defaulted Claims
Generally, a state prisoner must exhaust available state
remedies before seeking habeas review of a conviction. The
Supreme Court has held that this requirement is satisfied when a
prisoner invokes one complete round of the established appellate
review process by directly appealing claimed errors at trial to
highest possible level of the state appellate process. See
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728,
1732-33 (1999). The same rule applies in the context of
postconviction proceedings. See White v. Godinez, 192 F.3d 607, 608 (7th
Cir. 1999). Issues that are not carried through an entire round
of appellate review are procedurally defaulted and cannot be
reviewed in a federal habeas proceeding. See Boerckel,
526 U.S. at 848, 119 S. Ct. at 1734.
Each of Hunter's petitions for leave to appeal filed with the
Illinois Supreme Court contained one issue each: the
constitutionality of the Illinois recidivist statute in his
petition for leave to appeal during direct review, and the
effectiveness of his postconviction counsel in his petition for
leave to appeal during collateral review. Though his § 2254
petition resurrects many of the issues he abandoned in his
petitions to the state's highest court, his failure to present
any but these two in his petitions to the Supreme Court results
in procedural default, precluding our consideration of the merits
of the additional points in this setting.
Even when an issue is procedurally defaulted, a prisoner can
still obtain review of the merits of that issue if one of two
exceptions are shown. First, the defaulted issue will not be
barred if the prisoner can demonstrate cause for the default and
prejudice resulting from the application of the doctrine. See
e.g., Coleman v. Thompson, 501 U.S. 722, 753,
111 S. Ct. 2546, 2566 (1991); United States v. Frady, 456 U.S. 152, 170,
102 S. Ct. 1584, 1596 (1982) Second, the bar will not attach
where the prisoner can show that it would result in a fundamental
miscarriage of justice, manifesting itself in the continued incarceration of a party who is actually
innocent of the crimes leading to the conviction. See Gomez v.
Jaimet, 350 F.3d 673, 679 (7th Cir. 2003). Hunter has not
established the existence of either of these exceptions to the
general rule, so the procedural default applicable to his earlier
abandoned claims remains.
2. Non-defaulted Claims
a. Constitutionality of 720 ILCS 5/33B-1
As described above, Hunter petitioned the Illinois Supreme
Court for leave to appeal the question of the constitutionality
of his life sentence after the appellate court affirmed it
pursuant to the mandates of 720 ILCS 5/33B-1. According to
Hunter's § 2254 petition, his sentence did not comport with law.
Although that contention sweeps more within its purview than
simply the constitutionality of the underlying statute, because
the only portion of the claim that Hunter has fairly presented to
the highest state court deals with whether the statute as applied
to him runs afoul of the Illinois or United States Constitution,
we confine our consideration to those particular areas.
For purposes of our review, Hunter's challenge distills to
whether the decision that his mandatory life sentence did not
violate the Eighth Amendment's prohibition against cruel and
unusual punishment was contrary to or involved an unreasonable
application of Supreme Court precedent. 28 U.S.C. § 2254(d)(1).
In reaching its conclusion that Hunter's sentence was allowable under the
amendment, the Illinois court relied on the case of Rummel v.
Estelle, wherein the Court considered a Texas recidivist statute
much like Illinois', and concluded that the application of the
statute's provisions to a person with a demonstrated record of
violent crime within a short period of time was not cruel and
unusual punishment. 445 U.S. 263, 285, 100 S. Ct. 1133, 1145
(1980). The court applied the reasoning of Rummel to the
specifics of Hunter's situation, namely conviction for five other
armed robberies in a relatively short period of time. Glover,
527 N.E.2d at 972; see also U.S. v. Washington, 109 F.3d 335,
337-38 (7th Cir. 1997). The decision of the state appellate court
was substantially the same as the applicable Supreme Court
precedent, not showing the disconnect necessary to support a
conclusion that the state court outcome was contrary to
established federal law. See Williams, 529 U.S. at 405,
120 S. Ct. at 1519. That decision was a reasonable application of
established Supreme Court precedent applicable at the time and
still in force. See id. at 409-10. Consequently, this argument
does not provide a basis to upset the decision of the state
b. Ineffective Assistance of Postconviction Counsel
The only other possible issue left for our consideration is the
sole issue he presented in his petition for leave to appeal the
denial of his postconviction petitions: the effectiveness of his
postconviction counsel. By statute, that is not a ground for relief under § 2254, and his inclusion of it in the petition
before us does not offer a basis on which to award the remedy he
seeks. 28 U.S.C. § 2254(i); Johnson v. McBride, 381 F.3d 587,
590 (7th Cir. 2004) (noting that "neither the sixth amendment nor
federal law guarantees effective assistance of counsel for
collateral proceedings."). Thus, neither of the non-defaulted
grounds presented in Hunter's petition warrants issuance of a
writ of habeas corpus.
Finally, we note that Hunter moved for appointment of counsel
in conjunction with his petition. However, the issues presented
in the petition were not such that Hunter could not adequately
present them to this court; counsel's assistance would be of
marginal value. Accordingly, the motion for appointment of
counsel is denied.
Based on the foregoing analysis, Hunter's motion for
appointment of counsel and his § 2254 petition are denied.