United States District Court, N.D. Illinois, Eastern Division
November 19, 2004.
Dionna Beachem (a.k.a. Dionna Beachmon), Petitioner,
Alyssa Williams, Warden, Dwight Correctional Center Respondent.
The opinion of the court was delivered by: MARK FILIP, District Judge
MEMORANDUM OPINION DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Now before the Court is Petitioner Dionna Beachem's Petition
for a Writ of Habeas Corpus against Respondent Alyssa Williams,
Warden of the Dwight Correctional Center, challenging the
constitutionality of the state court judgment under which
Petitioner is being held. The Court has received Respondent's
answer and obtained the state court record of Petitioner's trial
and state post-conviction proceedings. For the reasons stated
below, the Petition is dismissed.
Petitioner is imprisoned pursuant to a judgment of the Illinois
courts. The Court has taken the facts of the matter from the
record of Petitioner's trial and post-conviction petition,
appellate court opinions and orders in her criminal case and
post-conviction petition, and from her own filings in those
cases. Ms. Annie Jones, the victim in this case, was seventy-seven
years old when her landlord and a worried friend discovered her
dead body in her disordered apartment on December 6, 1994.
People v. Beachem (Beachem I), No. 1-96-3260, slip op. at 2, 6
(Ill.App.Ct. Jan. 22, 1998). Petitioner and a friend of hers,
Tianna Jackson, were arrested in connection with Ms. Jones's
death the next day, December 7. Id. at 2. The police suspected
Petitioner and Jackson of the crime because they had attempted to
use Ms. Jones's credit card on December 5, 1994, the day before
Ms. Jones's body was discovered. Id.
Petitioner told the police a series of stories, the last of
which was transcribed by the police, signed by Petitioner, and
later admitted into evidence at Petitioner's trial. Id. First
Petitioner claimed that she had found Ms. Jones's car with Ms.
Jones's keys and purse inside. Id. Then Petitioner said that
she and Jackson had taken Ms. Jones's car and credit card from
Ms. Jones's apartment building, but Petitioner denied that she
had injured or harmed Ms. Jones. Id. Finally, in the version
which was transcribed and signed, Petitioner admitted to using
violence against Ms. Jones.
Petitioner said that she had plotted with Jackson to rob Ms.
Jones of her credit card. Id. at 2-3. Petitioner stated that
she and Jackson had tried to get Ms. Jones to let them into Ms.
Jones's apartment building on December 2, 1994, but Ms. Jones
refused to do so because they would not identify themselves and
Ms. Jones started yelling at them. Id. at 3. Petitioner (who
was at least somewhat acquainted with Ms. Jones, id.) and
Jackson therefore refined their plan and devised a ruse to get
Ms. Jones to allow them into her building.
A few days later, on December 5, Petitioner and Jackson tried
again to get Ms. Jones's credit card. Id. This time, according
to Petitioner, "she and Jackson figured out a way to get Ms. Jones to open the door for them." Id. When Ms. Jones asked
who was at the door, Petitioner and Jackson stated that they were
Jehovah's Witnesses, and Ms. Jones opened the door. Id.
Petitioner said that as soon as Ms. Jones opened the door,
Petitioner grabbed the "skull cap" Ms. Jones always wore and
pulled it down over Ms. Jones's eyes. Id. at 3-4. Jackson then
pushed Petitioner through the doorway into the building, causing
Petitioner to knock Ms. Jones down and fall on top of her. Id.
at 4. Jackson locked the front door. Id.
Ms. Jones struggled in the hallway outside of her apartment and
was making noise. Id. Ms. Jones also was praying and begging
Petitioner and Jackson not to hurt her, saying such things as
"Lord, please send somebody" and "In the name of Jesus, don't
hurt me." Id. Ms. Jones told Petitioner and Jackson that they
could have whatever they wanted. Id.
Petitioner tried to keep the skull cap in place over Ms. Jones
eyes, but eventually Ms. Jones succeeded in removing it. Id.
Petitioner told police that when this occurred, she "snapped" and
banged Ms. Jones's head against the floor "about three times."
Id. Petitioner said that after she repeatedly banged the
elderly woman's head on the floor, Ms. Jones became quiet and
stopped struggling. Id. Petitioner and Jackson dragged Ms.
Jones into Ms. Jones's apartment and loosely bound her with a
phone cord and tied her "skull cap" pulled down over her face
with a phone cord that Petitioner had brought with her. Id.
Petitioner and Jackson left Ms. Jones on the floor while they
searched for the credit card and any other valuables that might
be found. Id. Petitioner stated that she later thought she
heard Ms. Jones making sounds, so she told Jackson to check on
Ms. Jones; Petitioner said that Jackson went to Ms. Jones and
kicked her in the back of the head. Id. at 5. Petitioner said
that she and Jackson found and took Ms. Jones's purse, credit
card, identification, and car keys, as well as some rings, and left in Ms. Jones's car, which they
stole. Id. at 4-5.
Petitioner said that she and Jackson soon went to a jewelry
store at the Ford City Mall and tried to make a $1,200 purchase.
Id. at 5. The store owner became suspicious, called the credit
card company, and asked Petitioner and Jackson for picture
identification. Id. at 5-6. Petitioner first claimed that the
credit card was hers, but she later admitted that it was not;
mall security detained both Petitioner and Jackson in the store's
back room. Id. at 6. Petitioner said in her signed statement to
police that while she was in that room, she threw Ms. Jones's car
keys into the trash. Id. Ms. Jones's body was discovered on
December 6, after a friend became concerned because she did not
come to church as usual. Id.
Petitioner was charged with first degree murder, home invasion,
residential burglary, and robbery. Id. at 1. The prosecution
corroborated at least parts of Petitioner's confession with
further evidence at trial. For example, one of Ms. Jones's
neighbors testified that Ms. Jones's car had been in front of the
apartment building at 7:30 a.m. on December 5, but was gone at
1:00 p.m. on the same day. Id. at 7. A police officer testified
that she found the car parked in the Ford City Mall parking lot.
Id. A detective testified that he discovered the car's keys in
one of the Mall's dumpsters the next day; the store owner
testified that three days thereafter, he found Ms. Jones's
driver's license hidden in his store. Id. A doctor who had
performed an autopsy on Ms. Jones testified to numerous injuries
that her examination revealed, and opined that Ms. Jones had died
because head trauma had caused hemorrhaging in her scalp and
brain, which had in turn caused her brain to swell. Id. at 7-8.
The doctor also testified that when she first saw Ms. Jones, she
had a knit cap pulled over her face and tied with a cord. Id.
at 7. The doctor testified to various other injuries Ms. Jones
had suffered, including broken ribs, various facial bruises and
lacerations, and a bruised heart. Id. at 8. Petitioner's trial counsel responded first by attacking the
alleged correspondence between the physical evidence and
Petitioner's confession. For instance, he called the first police
officer to see Ms. Jones's body to the stand as a defense
witness; the officer testified that he had seen marks on Ms.
Jones's neck that he believed were signs of strangulation. Id.
at 8. In closing argument, Petitioner's counsel further stressed
alleged incongruities, noting the lack of evidence of a struggle
in the hallway (Supplemental Exhibits (D.E. 15), Supp. Ex. 1
("Trial Transcripts, People v. Beachem, Circuit Court of Cook
County, No. 95 CR 406") at H-49), the fact that Ms. Jones's
slippers were found in the room rather than the hallway (id. at
H-50), and the fact that the injuries were more extensive than
Petitioner's confession acknowledged (id. at H-51). The
confession, he then repeatedly argued, had been coerced. (Id.
at H-47, H-53 to H-54, H-57.) Petitioner had unknowingly used Ms.
Jones's property, but was not involved in the murder. (Id. at
H-42 to H-43.) The police had merely latched onto the first lead
available and decided to ensure the conviction of the resulting
suspects. Beachem I, No. 1-96-3260, slip op. at 8.
The defense was unsuccessful: the jury convicted Petitioner on
all counts. Id. at 1, 8. The trial court sentenced Petitioner
to concurrent prison terms of ninety, thirty, fifteen, and six
years on the murder, home invasion, burglary and robbery charges,
respectively. Id. at 1.
Normally, sentences for first degree murder in Illinois are not
to exceed sixty years. 730 Ill. Comp. Stat. 5/5-8-1(a)(1)(a)
(2002). Under the law applicable at the time of Petitioner's
conviction, however, a court was permitted to sentence defendants
to terms of up to one hundred years if it found certain
aggravating factors. 730 Ill. Comp. Stat. 5/5-8-1(a)(1)(b)
(1996), superceded by 2000 Ill. Legis. Serv. P.A. 91-953
(West); 730 Ill. Comp. Stat. 5/5-8-2(a)(1) (1996), superceded
by 2000 Ill. Legis. Serv. P.A. 91-953 (West). At sentencing, the
court found two such aggravating factors including that the
victim, Ms. Jones, was over sixty years old. See Beachem I, No. 1-96-3260, slip op. at 13-15; see also 730
Ill. Comp. Stat. 5/5-8-2(a)(1) (1996); 730 Ill. Comp. Stat.
5/5-5-3.2(b)(2), (4)(ii) (1996). The jury had not been asked to
make a determination regarding this aggravating factor in regard
to the murder count. People v. Beachem (Beachem II),
784 N.E.2d 285, 288, 295 (Ill.App.Ct. 2000). However, the jury was
required in connection with the robbery count to find that Ms.
Jones had been more than sixty years old, because "Beachem was
charged with committing a robbery on a victim over 60 years of
age." Id. at 295; see also id. ("Thus the jury's guilty
verdict was a finding that the murdered victim of the robbery was
Petitioner appealed her conviction to the Illinois Appellate
Court, alleging both that improper comments in the prosecution's
closing argument had denied her a fair trial and that the trial
court had abused its discretion in sentencing her to a ninety
year prison term. Beachem I, No. 1-96-3260, slip op. at 1-2.
The appellate court rejected both arguments. It found that the
comments which Petitioner alleged had drawn improper and
irrelevant sympathy to the victim that Ms. Jones had been a
"deeply religious woman," a "benevolent, deeply religious woman,"
"a true victim," and "the type of woman that our society, at
least some of us, have been taught to respect," id. at 8-9
were not improper. For example, the court explained that
according to Petitioner's confession, she and Jackson schemed to
exploit Ms. Jones's religious convictions to gain entry to her
apartment by pretending to be Jehovah's Witnesses; the court
found that the prosecution's comments properly pointed out this
correspondence between the confession and Ms. Jones's personality
without improperly dwelling on Ms. Jones's religion. Id. at
10-11. Similarly, the court found that the description of Ms.
Jones as a "true victim" was both accurate and reasonable. Id.
Petitioner further alleged that the prosecution had made two
arguments unsupported by evidence in its closing argument: that Petitioners' fingerprints
were not found in Ms. Jones's apartment because Petitioner had
worn gloves, and that the police did not leave the State's
Attorney alone in an interview with the Petitioner because
Petitioner was a killer. Id. at 9. The appellate court found
the first prosecution argument to be supported by the evidence.
Because the crime had occurred in Chicago in the middle of winter
and the jury had heard testimony that gloved hands do not leave
fingerprints, it was reasonable to suggest that Petitioner had
committed the crime but had worn gloves. Id. at 11.
Petitioner's trial counsel never objected to the prosecution's
comment about the State's Attorney interview at trial, and the
appellate court considered arguments based upon it waived. Id.
at 11-12. In the alternative, the court found that if the comment
was otherwise objectionable, the defense had provoked it by
claiming that the police had remained in the room with the
State's attorney in order to intimidate Petitioner. Id. at 12.
As to the allegedly improper arguments and comments by the
prosecution, the court concluded with an alternative holding. The
court held that even if it had found that the allegedly offending
comments were improper, such error would have been harmless
because of the "overwhelmin[g]" evidence supporting the
conviction. Id. at 12.
Finally, Petitioner alleged that had the trial court had
underweighted or ignored so many factors calling for a lower
sentence that it had abused its discretion by sentencing
Petitioner to ninety years in prison, ignoring the likelihood
that she would be rehabilitated. The appellate court noted that
Petitioner had been eligible for the death penalty, and held that
it was not an abuse of discretion for the trial court to conclude
that although the various alleged mitigating factors suggested
that Petitioner should not receive a death sentence, she should
nonetheless be sentenced to ninety years. Id. at 13-16; see
also id. at 15 ("The facts of this case indicate that Beachem formulated a plan to rob Annie Jones months before she
acted on it. . . . Beachem tailored her plan so that she could
get Ms. Jones to open the door for her. Then Beachem beat a
frail, elderly woman to keep her from making noise and exposing
their plan to steal a credit card. . . .").
The appellate court thus affirmed the judgment of the trial
court. Petitioner sought leave to appeal to the Illinois Supreme
Court. Her petition presented the same bases for relief as her
earlier appeal: that the prosecution had made improper comments
designed to draw sympathy to Ms. Jones (Answer (D.E. 12), Ex. B
(Pet. for Leave to Appeal) at 9-10) and misstated evidence in its
closing argument (id. at 11-12), and that the trial court
abused its discretion in sentencing (id. at 12-16). The court
denied her petition without an opinion. Beachem I, No. 85093,
slip op. at 1 (Ill. June 25, 1998).
The next year, Petitioner filed a petition for post-conviction
relief in the Illinois state courts. She raised a number of new
claims which purported to prove that her trial counsel had been
so ineffective as to deny her the constitutional right to
counsel. Petitioner's trial counsel allegedly failed to move to
quash Petitioner's arrest and confession, Beachem II,
95-CR-00406, slip op. at 14-15 (Ill. Cir. Ct. Jan 14, 1999),
forbade her to testify at trial, id. at 15-17, failed to inform
her of a plea offer from the prosecution, id. at 17-18, failed
to object to victim impact statements introduced at sentencing,
id. at 18-19, failed to challenge two jurors for cause, id.
at 20, and presented an inadequate closing argument, id. at
20-21. She further alleged that her trial counsel should have
objected to a line of questioning the prosecution pursued with
one police witness, in which the prosecution elicited testimony
to the effect that the witness had heard from Petitioner's father
that Petitioner had stated that she knew something about Ms.
Jones's murder. Id. at 19. Petitioner also renewed her argument
that the original trial court had abused its discretion in sentencing. Id. at 9, 21.
The trial court dismissed the petition for post-conviction
relief as "frivolous and patently without merit" (id. at 1)
after reviewing the claims in a lengthy opinion. Id. at 1-22.
The trial court did not hold an evidentiary hearing because
Petitioner's claims were not supported by the requisite
affidavits or supporting evidence required under Illinois law and
were not clearly supported by the record. Id. at 8-9, 17-18,
see also 725 Ill. Comp. Stat. 5/122-2.1(a)(2) (2002). (The
trial court noted that the only arguments offered came via the
petition and Beachem's own affidavit, which was insufficient
under Illinois law, particularly given that "[t]he tendered
documents . . . do not explain with any degree of specificity,
how the petitioner's rights were violated. They further do not
support any of the claims alleged in the petition." (Beachem
II, 95-CR-00406, slip op. at 9 (Ill. Cir. Ct. Jan. 14, 1999)
(collecting Illinois authorities).) The trial court also held
that the abuse of discretion claim was barred by "res judicata"
because of its previous litigation in the direct appeal, id. at
13, and that all of the ineffective assistance claims except for
the one based on failure to report a plea agreement could have
been raised on direct appeal and were thus waived, id. at
The court offered alternative substantive grounds for the
dismissal of most of the claims; the Court relays those relevant
to the present petition for habeas corpus. The court found that
the record indicated not that Petitioner's counsel had refused to
permit her to testify "as to how she became involved in the
situation," id. at 9, but rather that counsel had merely
advised her not to testify, id. at 17. The trial court
admonished Petitioner of her right to testify, and Petitioner
acknowledged that she understood and did not wish to do so. Id.
With respect to Petitioner's claim that her trial counsel had
failed to relay a plea agreement from the prosecution to her, the
court discussed the lack of any affidavit or other evidence other
than Petitioner's conclusory allegation, and held as a matter of state law that "[u]nsupported
conclusory allegations in the petition or in the petitioner's own
affidavit are not sufficient to require a hearing under the
[Illinois Post-Conviction Hearing] Act." Id. at 17-18
(collecting Illinois cases). The court dismissed Petitioner's
claim as insufficiently developed and as meritless in any event.
Petitioner appealed, narrowing her claims for relief to her
trial counsel's alleged failure to relay a plea offer (D.E. 12,
Ex. E (Brief and Argument for Petitioner-Appellant) at 12-15) and
her trial counsel's failure to object to the prosecution's line
of questioning that produced hearsay evidence regarding a
discussion between Petitioner and her father (id. at 17-19).
Petitioner also added the claim that the prosecution had deprived
her of a fair trial by eliciting testimony from a witness to the
effect that Jackson had confessed to the crime. (Id. at 20-22.)
Petitioner also alleged, either as an independent ground for
relief or as an excuse for failing to raise the issue sooner,
that her appellate counsel had been ineffective in failing to
raise this last argument. Finally, in a supplemental brief, the
Petitioner alleged that her sentence violated the rule of
Apprendi v. New Jersey, 530 U.S. 466 (2000), that "any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt." Id. at 490. Petitioner argued that unless
the jury had been instructed in regard to the murder charges to
determine whether any of the statutory aggravating factors
applied, Petitioner could not have been sentenced to more than
sixty years in prison, the normal statutory limit of 730 Ill.
Comp. Stat. 5/5-8-1(a). (D.E. 12, Ex. F (Supp. Brief and Argument
for Defendant-Appellant) at iv-v.)
The appellate court initially found against the Petitioner on
everything but her Apprendi claim. The court affirmed the trial
court's dismissal of Petitioner's plea agreement claim, finding
it "frivolous" and "patently without merit" because there was no
record support as required by Illinois law. See Beachem II, 740 N.E.2d 389, 391
(Ill.App. 2000) ("It was pure unsupported conclusion.").
Although Petitioner claimed that she had in fact attached an
affidavit from her mother to her petition, of which the trial
court allegedly had failed to take note (D.E. 12, Ex. E at
14-15), the court disagreed: the affidavit was addressed "To the
Appellate Court" and was dated almost a month after the trial
court dismissed the petition. Beachem II, 740 N.E.2d at 391.
The appellate court could not consider it because it had not been
properly presented to the trial court. Id. The court also found
that the prosecutorial misconduct issues had not been properly
raised below and were waived. Id.
By contrast, the court initially found Petitioner's Apprendi
argument at least potentially persuasive. (It reversed itself
shortly thereafter on remand after consulting intervening
precedent.) The court held that Apprendi applied retroactively
to judgments finalized before that decision, and that it
presented potential implications for Petitioner's case. Id. at
397. However, the court was reluctant to make any determinations
before the issue was developed more fully below, and the court
remanded the petition to the trial court for reconsideration in
light of Apprendi. Id. at 399.
The State of Illinois petitioned the Illinois Supreme Court for
summary review and remand to the appellate court for
reconsideration in light of three cases from the Illinois Supreme
Court. (D.E. 12, Ex. H (Motion for Summary Remand in Light of
People v. Ford (Ill. 2001), People v. Hopkins (Ill. 2002),
and People v. Rogers (Ill. 2001).) The Illinois Supreme Court
remanded the case to the appellate court for reconsideration
without an opinion. Beachem II, 779 N.E.2d 1147, 1148 (Ill.
On remand, the appellate court changed its mind on the merits
of Petitioner's Apprendi claim and affirmed the trial court's
dismissal of her post-conviction petition. Although it still held that the rule established in that case applied retroactively
to the Petitioner's, it found that the trial court's ninety year
sentence was consonant with that rule. Beachem II,
784 N.E.2d 285, 295 (Ill.App.Ct. 2002). First, the court found that the
"statutory maximum" penalty for first degree murder was death,
rather than sixty years in prison, and that the ninety year
prison term was more lenient than a death sentence, so that there
was no need for either of the aggravating factors upon which the
trial court relied to have been found by a jury. Id. Second,
the court found that Apprendi's jury-finding requirement had
been met when the jury had explicitly found that Ms. Jones had
been over sixty years old in relation to the burglary count, so
that even if the ninety year sentence had exceeded the purported
"statutory maximum" it would nonetheless have been
The Petitioner sought leave to appeal to the Illinois Supreme
Court. The petition for leave to appeal explicitly raised the
claims that Petitioner's original trial counsel had been
constitutionally ineffective in refusing to allow Petitioner to
testify and failing to relay a plea offer (D.E. 12, Ex. K (Pet.
for Leave to Appeal) at 2), and that Petitioner was denied "due
process" when "sentenced to an extended term" (id.). Within
this last claim Petitioner included and did not clearly
distinguish between arguments that the trial court abused its
discretion in sentencing, that the judicial finding of
aggravating factors violated Apprendi, and that the evidence at
trial was insufficient to permit a jury to conclude beyond a
reasonable doubt that she had committed the crime. (See id. at
7-9.) The Court dismissed her petition without opinion. Beachem
II, No. 95699, slip op. at 1 (Ill. Apr. 2, 2003).
I. Standard of Review
The grounds upon which the Court may issue a writ of habeas
corpus for a person imprisoned pursuant to a state court criminal judgment are
subject to meaningful limits. First and most basically, habeas
relief can be granted "only on the ground that [a prisoner] is in
custody in violation of the Constitution or laws or treaties of
the United States." 28 U.S.C. § 2254(a) (2000). The Court may not
review claims that a state court incorrectly applied state law,
except to the extent that such application also violated federal
The Court may not provide habeas relief unless Petitioner has
exhausted her available remedies in the state courts.
28 U.S.C. § 2254(b)(1)(A) (2000). This means that she must not be currently
capable of raising claims she presents to the Court in a
proceeding that is part of a full round of Illinois's established
appellate-review system for a determination on the merits.
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Federal
courts have determined that for the purpose of habeas corpus,
Illinois's appellate-review system includes presentation of
claims to the Illinois Supreme Court for discretionary review,
id. at 845-848; accord Hadley v. Holmes, 341 F.3d 661, 664
(7th Cir. 2003), and the rule applies to petitions for
post-conviction relief as well as direct appeals from criminal
courts, White v. Godinez, 192 F.3d 607, 608 (7th Cir. 1999).
Petitioner must furthermore have avoided "procedurally
defaulting" her claims in the Illinois courts. There are at least
two ways in which such a procedural default can arise. First, if
a state court decision resolving a claim rests upon an
independent state-law ground that is adequate to support the
judgment, even if it is a procedural rather than substantive
ground, such claims are defaulted and may not be reviewed by
federal courts. Coleman v. Thompson, 501 U.S. 722, 729 (1991);
accord Conner v. McBride, 375 F.3d 643, 648 (7th Cir. 2004).
This is a corollary to the more general rule that federal habeas
relief is only available for violations of federal law if a
judgment is consistent with constitutionally permissible state
law, there is no such violation. See Coleman, 501 U.S. at 729
(noting that the default rule applies "whether the state law ground is substantive or procedural"). Where multiple
state court rulings support a judgment, the grounds supporting
the judgment are those of the last court to "articulate a reason"
for the judgment. Brooks v. Walls, 279 F.3d 518, 522 (7th Cir.
2002) (citing Ylst v. Nunnemaker, 501 U.S. 797 (1991)). If a
state court decision appears to be at least interwoven with
federal law, and the adequacy and independence of any state-law
grounds are unclear on the face of the opinion, it is presumed
that the decision rests upon federal law. Coleman,
501 U.S. at 733.
Second, if Petitioner did not pursue a full round of review in
Illinois's appellate system, so that the state court to which she
would have been permitted to present her claims would now reject
them on independent and adequate state-law procedural grounds,
those claims are procedurally defaulted and may not be heard in
federal court. See Conner, 375 F.3d at 648; accord
O'Sullivan, 526 U.S. at 848. In essence, this means a claim may
not be reviewed if an attempt to present the claim to state
courts for the first time would produce a judgment that would
create a procedural default under the independent and adequate
state-law ground doctrine. See Coleman, 501 U.S. at 735 n. 1
(stating that claims are defaulted if "the court to which the
petitioner would be required to present his claims in order to
meet the exhaustion requirement would now find the claims
Either kind of procedural default may be excused in limited
circumstances. One such circumstance is where a "fundamental
miscarriage of justice" has occurred that is, where a
petitioner can show by clear and convincing evidence that but for
the alleged violation of federal law in the state court
proceedings, no reasonable juror would have convicted her.
Dellinger v. Bowen, 301 F.3d 758, 767 (7th Cir. 2002) (citing
Schlup v. Delo, 513 U.S. 298, 327 (1995)). The presumption of
innocence does not apply in such a situation because of the prior
finding of guilt by a jury, so a petitioner alleging a
fundamental miscarriage of justice has the burden of proving her innocence. See, e.g., Buie v. McAdory,
341 F.3d 623, 626-27 (7th Cir. 2003) ("A defendant who asserts actual
innocence as a reason to excuse procedural default must
demonstrate innocence; the burden is his, not the state's, for
the state has the benefit of the jury's verdict.") (emphasis in
Procedural default is also excused where there is "cause for
the default and actual prejudice as a result of the alleged
violation of federal law." Coleman, 501 U.S. at 750. The "cause
for the default" must be an excuse: "something external to the
petitioner, something that cannot fairly be attributed to" her.
Id. at 753 (emphasis in original). For example, conduct by a
petitioner's counsel that is constitutionally ineffective under
Strickland v. Washington, 466 U.S. 668 (1984), constitutes
cause. Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing
Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). However, a
claim that certain circumstances constitute cause for procedural
default can itself be procedurally defaulted if it is not
properly presented to state courts. Carpenter,
529 U.S. at 452-53.
Finally, additional restrictions on federal habeas relief for
state prisoners were created by the Antiterrorism and Effective
Death Penalty Act ("AEDPA"), 110 Stat. 1214 (1996). First, the
challenged imprisonment must not only violate federal law, but
the state court judgment pursuant to which the petitioner is
imprisoned must further be "contrary to, or involve an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States," or be
"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) (2000). A judgment is "contrary to" Supreme Court
precedent if the state court made a statement of law inconsistent
with one made by the Supreme Court, or if the state court decided
a case with "materially indistinguishable facts" differently from
the Court. Huynh v. Bowen, 374 F.3d 546, 548 (7th Cir. 2004) (citing Williams v. Taylor, 529 U.S. 362,
413 (2000)). A decision need not cite or even be aware of
relevant Supreme Court precedents in order to be consistent with
them. Early v. Packer, 537 U.S. 3, 8 (2002). A state court's
application of law to facts is not necessarily unreasonable
merely because a federal court disagrees with it. Huynh v.
Bowen, 374 F.3d at 548. Rather, the application must be
objectively unreasonable. See, e.g., Lockyer v. Andrade,
538 U.S. 63, 75-76 (2003). A petitioner has the burden of showing
that an application was unreasonable. See Woodford v.
Visciotti, 537 U.S. 19, 25 (2002).
Second, the AEDPA made clear that the procedural default rules
extend to attempts to introduce new evidence in federal
proceedings. If a petitioner through her own fault failed to
develop the factual basis of a claim for habeas relief in state
court, see United States v. Williams, 529 U.S. 420, 431-34
(2000), a federal court cannot hold an evidentiary hearing unless
the claim relies upon a new retroactive constitutional rule or
upon facts that could not have been previously discovered through
a duly diligent investigation, or if the facts underlying the
claim would establish a fundamental miscarriage of justice,
28 U.S.C. § 2254(e)(2) (2000); see also United States ex rel.
Hampton v. Leibach, 347 F.3d 219, 240 (7th Cir. 2003).
II. Issues Raised in the Petition
Petitioner alleges that a great number of infirmities in her
trial entitle her to federal habeas relief. As explained further
below, none warrants relief.
A. The Apprendi Claim
Petitioner alleges that her "rights to due process [were]
denied by being sentenced to an extended term." (Pet. for Writ of
Habeas Corpus (D.E. 1) at 5.) Respondent reads this portion of
the Petition, together with the next sentence ("The trial court
abused its discretion when it failed to consider mitigating
factors in sentencing." (Id. at 5)), to allege only that the
trial court abused its discretion in sentencing. This is not the fairest
reading of Petitioner's argument the two distinct sentences
suggest two distinct claims, and the claim that the extended term
sentence violated the Due Process Clause of the Fourteenth
Amendment calls to mind the purported violation of the Apprendi
rule alleged in Petitioner's state court post-conviction
proceedings. In this regard, in the post-conviction proceedings,
Petitioner filed a Petition for Leave to Appeal to the Illinois
Supreme Court, in which the heading "[d]efendant was denied her
right to due process by being sentenced to an extended term"
(D.E. 12, Ex. K at 2) was used in part to introduce her
Apprendi claim (see generally id. at 7-9 (using the word
"Apprendi" several times)).
The Court must thus examine the Apprendi claim, first
determining whether its history is such that the Court should
address its substance (i.e., whether or not it is procedurally
barred, properly exhausted, etc.), and then if necessary doing
so. In this instance, there are no reasons for the Court to stop
short of the substantive issue itself. As Apprendi is a federal
constitutional holding, the violation of its rule would present a
violation of the Constitution upon which this Court may grant
relief. See Apprendi, 530 U.S. at 490. The claim was raised
soon after the issuance of the Apprendi opinion in the
appellate court, which did not hold it procedurally barred.
Beachem II, 740 N.E.2d at 391, 397 ("[W]e turn to the merits of
[Petitioner's] claim. . . ."). After the appellate court decided
against her on remand, Beachem II, 784 N.E.2d at 295,
Petitioner raised the claim in her Petition for Leave to Appeal
to the Illinois Supreme Court, properly exhausting her remedies
(D.E. 12, Ex. K at 7-9). The last opinion to give a reason for
the judgment was the second appellate court opinion, which
addressed the issue on the merits and concluded that Apprendi
had not been violated. Beachem II, 784, N.E.2d at 295. This
Court, in turn, should resolve the issue on the merits and ask
whether Apprendi requires the issuance of a writ of habeas corpus.
Examining the existing law, the Court concludes that it does
not, for multiple reasons. First, the Illinois Appellate Court's
ruling that the Apprendi analysis applies retroactively to
judgments that became final before its issuance has not been
accepted by the United States Supreme Court or the Seventh
Circuit. See Schiro v. Summerlin, 124 S.Ct. 2519, 2526 (U.S.
2004); Curtis v. United States, 294 F.3d 841, 844 (7th Cir.
2002) ("Apprendi therefore does not disturb sentences that
became final before June 26, 2000," the date of its release). A
judgment becomes final for purposes of retroactivity analysis
when further direct appeals of the judgment are no longer
available, Teague v. Lane, 489 U.S. 288, 295 (1989), even if a
case is collaterally reviewed. The judgment against the
petitioner became final when the Illinois Supreme Court denied
direct review in 1998, two years before Apprendi was decided.
Thus, even if the Illinois Appellate Court misread Apprendi, it
would not render Petitioner's imprisonment contrary to the
Second, Petitioner's case is distinguishable from Apprendi,
and the Court does not believe that the appellate court's
judgment was contrary to or an unreasonable application of the
Apprendi rule requiring jury determination of facts that
increase sentences. One reason the appellate court gave for
affirming the dismissal of the post-conviction petition was that
although the jury had not, in its instructions specifically
regarding the murder count, been asked to make a determination
regarding the statutory aggravating factors, the jury
instructions regarding the robbery count did ask the jury to
determine whether Ms. Jones had been over sixty years old (see
D.E. 15, Supp. Ex. 1 at H-82 to H-83 ("That the person from whom
the defendant took property was 60 years of age or older.")), and
the jury did in fact determine that she was.
Thus, even if Apprendi required a jury finding that the
victim was over sixty years of age with respect to the murder count, it is clear that any error
relating to this particularized requirement would be harmless on
the facts of this case. It is "only for certain structural errors
undermining the fairness of a criminal proceeding as a whole that
even preserved error requires reversal without regard to the
mistake's effect on the proceeding," United States v.
Dominiguez-Benitez, 124 S.Ct. 2333, 2339 (U.S. 2004), and
failure to include a particular element of an offense in the jury
instructions is not one of those structural errors, Neder v.
United States, 527 U.S. 1, 8-9 (1999). Where, as here, the
burden is on a petitioner to show error, the petitioner must show
"a reasonable probability that, but for [the error claimed], the
result of the proceeding would have been different."
Dominiguez-Benitez, 124 S.Ct at 2339 & n. 7 (internal citation
and quotation omitted; brackets in Dominiguez-Benitez); see
also Aleman v. Sternes, 320 F.3d 687, 690 (7th Cir. 2003)
(collecting cases and holding that the standard on collateral
review is whether error had a "substantial and injurious effect
or influence in determining the jury's verdict").
The Court can think of no reason, and none has been suggested,
why the jury would have refused to find that Ms. Jones was over
sixty years old in regard to the murder count when it found that
Ms. Jones was over sixty years old in regard to the robbery
count. The Supreme Court recently decided a similar case,
Mitchell v. Esparza, 540 U.S. 12, 18 (2003), in which it held
that an Ohio court's finding of harmless error was not
unreasonable for purposes of the AEDPA; there the trial court had
failed to include jury instructions calling for a determination
of whether the defendant was the "principal" in a crime, but the
defendant alone was charged and alleged to have taken place in
the crime. Just as it is logically necessary that the sole
perpetrator of a crime is its principal, so in Petitioner's case,
as the robbery and murder of Ms. Jones were never argued to have
occurred at different times and were, indeed, part of the same
event, it was logically necessary for Ms. Jones to have been the same age
during the robbery and the murder. Thus, even assuming that
Apprendi applied retroactively to Petitioner's case and that
the failure to issue jury instructions on Ms. Jones's age
specifically in connection with the murder count was error, there
is no reasonable argument by which the purported error would have
had any effect on the verdict. Accord, e.g., United States v.
Farmer, 924 F.2d 647, 650 (7th Cir. 1991) (collecting cases and
holding that, even if four RICO predicates found by jury were
barred by principles of double jeopardy, the error was harmless
because remaining predicates found by jury were "surely enough to
. . . [constitute] a RICO pattern."). Petitioner's Apprendi
claim does not ground habeas relief.
B. Abuse of Discretion in Sentencing
Next, Petitioner alleges that "[t]he trial court abused its
discretion when it failed to consider mitigating factors in
sentencing." (D.E. 1 at 5.) Respondent correctly notes that abuse
of discretion granted to a state court by state law does not
implicate the federal Constitution. Dellinger, 301 F.3d at 764
("[A]n error in . . . the application of state sentencing rules,
does not present a cognizable claim for federal habeas relief.")
The use of the term "abuse of discretion" marks this claim as
alleging improper use of discretion granted to the trial court by
Illinois law, rather than an attack on the constitutionality of
the grant of discretion itself. State court opinions have all
reasonably read Petitioner's arguments on this point as
implicating only state law. Beachem I, No. 95-CR-406, slip op.
at 12 ("[Petitioner] does not dispute her eligibility for an
extended term sentence, but claims the circumstances militate
against it.") (citation omitted), Beachem II, No. 95-CR-00406,
slip op. at 21 ("does not create a constitutional issue").
Petitioner's filings addressing her sentence have only once, in
her initial post-conviction petition, cited the Eighth and
Fourteenth Amendments; the citations were not used before or on
appeal. (D.E. 15, Supp. Ex. 4 ("Common Law Record, People v. Beachem,
Circuit Court of Cook County, No. 95 CR 40601") at C42.) The
filings stress the mitigating circumstances and rehabilitative
potential of Petitioner rather than any outrageous excess in the
sentence. (See, e.g., id. (stressing lack of evidence, criminal
background, and age).) This is not a situation where a state
court was probably, or even somehow, alerted to possible federal
claims as a practical matter. See Bocian v. Godinez,
101 F.3d 465, 470 (7th Cir. 1996). Any reading of the Petition to offer
more than state-law claims regarding Petitioner's sentence would
be strained and inappropriate.
Even if the Court somehow had the power to review the sentence
for abuse of discretion under federal or state sentencing law
(and the court does not believe it has any such power in this
case), the Court would find the state appellate court's decision
to uphold the sentence reasonable. Under federal law, when a
defendant is not sentenced under the United States Sentencing
Guidelines, courts may not vacate a sentence for abuse of
discretion, even if disparate sentences were imposed on
co-defendants, as long as the sentencing court gave "thoughtful
consideration" to the sentence imposed. United States v. Hall,
212 F.3d 1016, 1019-20 (7th Cir. 2000). If a sentencing court was
aware of mitigating factors and considered them in good faith,
the degree of weight it placed upon each factor will rarely be
questioned or disturbed. United States v. Vasquez,
966 F.2d 254, 258 (7th Cir. 1992).
The standard of review under Illinois law is not seriously
different. If the sentence imposed is within the statutory range,
it "will not be deemed excessive unless it is greatly at variance
with the spirit and purpose of the law or is manifestly
disproportionate to the nature of the offense." People v.
Tisley, 793 N.E.2d 181, 187 (Ill.App.Ct. 2003) (citing People
v. Fern, 723 N.E.2d 207, 210 (Ill. 1999)). Mitigating factors
are not entitled to greater weight than the seriousness of an offense. People v. Shaw, 815 N.E.2d 469, 474
(Ill.App.Ct. 2004). Comparisons to other sentences imposed for
the same kind of crime play no role in the analysis. Fern,
723 N.E.2d at 210 ("We agree with those decisions rejecting
cross-case comparative sentencing as a basis for challenging a
sentence. We find that such an analysis does not comport with our
sentencing scheme's goal of individualized sentencing and would
unduly interfere with the sentencing discretion vested in our
Here, the trial court did consider the relevant mitigating and
aggravating factors: the particular facts of the crime,
Petitioner's lack of criminal history, her psychiatric and family
history, and her age, as well as the need for a punishment that
would deter possible future criminals. Beachem I, No.
1-96-3260, slip op. at 12-13; (D.E. 15, Supp. Ex. 1 at J-192 to
J-195). The state appellate court agreed with its assessment.
Id. at 15-16. More particularly, the trial court considered the
relative culpability of Petitioner and her codefendant.
Petitioner claimed at sentencing that she had "f[allen] in with
the wrong crowd." Id. at 13. The judge did not agree, and found
"that [Petitioner] was the instigator." Id.; (D.E. 15, Supp.
Ex. 1 at J-193). Seeing as the court found that Petitioner rather
than Jackson had instigated the crime, it was entirely reasonable
for it to sentence Petitioner more harshly than Jackson. The
sentence was both thoughtfully considered and sufficiently
proportionate to the offense; it was reasonable for the state
appellate court to conclude that the trial court did not abuse
As previously noted, the Court does not believe that
Petitioner's current claims regarding her sentencing or any of
her previous such claims in state courts were federal in nature.
However, because in some cases courts have found that
petitioners' murky sentencing claims also raised claims that
sentences violated the Cruel and Unusual Punishment Clause of the
Eighth Amendment, see, e.g., Bocian, 101 F.3d at 470, the Court
notes in an abundance of caution that a ninety year sentence cannot be seriously thought
constitutionally disproportionate to the crime of murder in
general, let alone the particular murder of which Petitioner was
convicted. See Holman v. Page, 95 F.3d 481, 486 (7th Cir. 1996)
("[Defendant's] sentence of natural life imprisonment for murder
is eminently rational."), overruled on other grounds by Owens v.
United States, 2004 WL 2339765 (7th Cir. Oct 19, 2004);
Harmelin v. Michigan, 501 U.S. 957, 1004 (1991) (citing Solem
v. Helm, 463 U.S. 277, 290 n. 15 (1983)) ("[N]o sentence of
imprisonment would be disproportionate" to "the crime of felony
murder without specific intent to kill. . . .").
C. Incapacity to Stand Trial Due to Mental Illness
Petitioner alleges that the trial court failed to consider a
bona fide doubt as to her fitness to stand trial raised by her
mental illness. (D.E. 1 at 5.) Respondent correctly notes that
Petitioner did not make this claim in state court either on
direct appeal or in her post-conviction petition. Illinois courts
would now consider the issue waived in any second petition for
post-conviction relief. 725 Ill. Comp. Stat. 5/122-1(f)(2002)
("Only one petition may be filed by a petitioner under this
Article without leave of court. Leave of court may be granted
only if a petitioner demonstrates cause for his or her failure to
bring the claim in his or her initial post-conviction
proceedings. . . ."). Therefore, Petitioner has failed to
properly exhaust her state court remedies and is procedurally
barred from raising the issue here.
Petitioner offers no excuse for this procedural default, and no
excuse suggests itself to the Court. Furthermore, any obvious
excuses, such as ineffective assistance of counsel, were not
raised in state court either, and are thus procedurally defaulted
as well. Nor does the Petitioner have the benefit of a
"fundamental miscarriage of justice" claim. She has not provided
any substantial evidence (indeed, has presented no meaningful
evidence at all) that she is actually innocent of the crime. Accord Buie, 341 F.3d at 626 ("[I]t is
hard to see how one who has confessed can assert actual
innocence" when the confession is uncontested in the petition.).
The Court therefore holds that the Petitioner's claim is
procedurally defaulted. Even if it were not, however, the claim
would not support habeas corpus relief. The Due Process Clause
only requires a court to hold a hearing on a criminal defendant's
fitness to stand trial if the court has "substantial reason to
doubt the defendant's fitness." Eddmonds v. Peters,
93 F.3d 1307, 1316, (7th Cir. 1996) (quoting Phillips v. Lane,
787 F.2d 208, 216 (7th Cir. 1986)). A person is mentally fit to stand
trial under the Due Process Clause if that person has "sufficient
present ability to consult with his lawyer within a reasonable
degree of rational understanding" and has "a rational as well as
factual understanding of the proceedings against him." Godinez
v. Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v. United
States, 362 U.S. 402 (1960)); accord Brooks v. McCaughtry,
380 F.3d 1009, 1012 (7th Cir 2004). Whether the defendant has the
capacity to assist in her own defense is the primary concern.
Eddmonds, 93 F.3d at 1315.
Although the record in this case includes testimony regarding
Petitioner's history of mental illness (see, e.g., D.E. 15,
Supp. Ex. 1 at J-98 (Petitioner was receiving SSI payments for
depression in December 1994); id. at C122 (Petitioner received
inpatient psychiatric treatment for manic depression in 1992)),
Petitioner does not explain and the Court does not see how this
evidence suggests that Petitioner was unable to understand the
charges against her and assist in her defense at trial. Indeed,
this position was explicitly disavowed when the evidence was
introduced at Petitioner's sentencing hearing. When the court
noted that a report prior to trial had indicated that Petitioner
was "fit and sane," Petitioner's trial counsel responded that
"there is no issue here contesting any prior finding of fitness
or sanity. . . . it is a factor in mitigation." (Id. at I-4.) Furthermore, Petitioner's behavior at trial suggested that she
was competent. When competence to stand trial is examined after
the fact, a defendant's behavior at trial can be probative
evidence. Eddmonds, 93 F.3d at 1315. For instance, the court in
Eddmonds concluded that a defendant had been fit to stand trial
because he gave "coherent and very detailed" testimony at a
hearing on a motion to suppress evidence, which "disclose[d] a
reasonably intelligent man actively defending his interests."
93 F.3d at 1318. By contrast, in Benefiel v. Davis, 357 F.3d 655
(7th Cir. 2004), a defendant's refusal to answer his attorney's
questions and to retake the stand after a recess raised serious
questions about his competence. Id. at 659.
In this case, though Petitioner's behavior revealed some clear
disagreement of strategy with her attorney, her conduct
nonetheless showed a rational understanding of the proceeding.
She used her right of allocution at sentencing to express remorse
for the victim's death, stress her rehabilitative potential, and
throw blame on her codefendant. (D.E. 15, Supp. Ex. 1 at J-189 to
J-191 ("If I could have one wish, I would bring Miss Jones back
because it would make a lot of people happy. . . . . I only wish
that I could have another chance to prove myself and become a
productive individual in my community, to continue my
education. . . . I am very sorry for associating with the wrong
crowd.").) Though this speech was read against the advice of her
attorney (id. at J-188), who probably had the better view
Petitioner's hairsplitting apologies and insinuations of
innocence might have struck the sentencing court as inconsistent
with true remorse, making the rest of her speech sound somewhat
canned (see, e.g., id. at J-189 ("I'm very sorry for
associating with the wrong crowd. I want this to be known."))
it nonetheless revealed someone who understood the nature
of the criminal proceeding and sought to protect her interests.
Petitioner has not attempted to introduce new evidence on the
subject indeed, under the AEDPA, she could not introduce new evidence in this proceeding
without cause. It was reasonable for the trial court not to doubt
Petitioner's fitness. Even if the Petitioner's claim were not
procedurally defaulted, the Court would deny habeas relief.
D. Improper Comments by Prosecutors
Petitioner claims that she was denied a fair trial "when my
attorney and the trial court allowed improper comments made by
prosecutors during closing and rebuttal arguments." (D.E. 1 at
5.) Presumably, Petitioner means the comments regarding Ms.
Jones's religious convictions, the suggestion that Petitioner had
worn gloves at the crime scene, and the comment regarding the
police's refusal to leave the State's Attorney alone with the
Petitioner, which she has discussed before in her state court
appeals. As before, Respondent sees only one claim when fairness
dictates that the Court consider two. The first claim is that
Petitioner's trial counsel was constitutionally ineffective in
failing to prevent the prosecution from making the allegedly
improper comments. Respondent correctly notes that this claim was
not made with Petitioner's other ineffective assistance of
counsel claims in her state post-conviction petition, and that
the claim is thus improperly exhausted and barred from
consideration by this Court. Again, no reason is given to excuse
the procedural default, and none suggests itself.
However, although a claim based on trial counsel's failure to
prevent alleged prosecutorial misconduct is barred, a claim that
the alleged misconduct directly violated Petitioner's
constitutional rights is not. The Petition, read with the charity
due a pro se filing, Winsett v. Washington, 130 F.3d 269, 280
(7th Cir. 1997), can be read to make this claim. Petitioner does
not focus specially on her trial counsel, but rather implicates
every party in the courtroom: her rights were allegedly violated
when her "attorney and the trial court" allowed improper comments
"made by prosecutors." (D.E. 1 at 5.) The sentence makes clear
that the prosecution was the moving force behind the constitutionally
suspect conduct, while the trial court and defense counsel were
only guilty of allowing the conduct to happen. Given that a claim
relating to the defense counsel or the trial court would be new
and barred, and that Petitioner has repeatedly made a claim
dealing directly with the prosecution in her state court appeals,
the Court concludes that her Petition can reasonably be read as
advancing a claim that the prosecutor's comments directly
violated her constitutional rights.
Part of this direct claim is suitable for review by this Court.
A prosecutor's improper comments can potentially "make the
resulting conviction a denial of due process," so the claim
alleges that Petitioner's imprisonment violates the Constitution.
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citing
Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). Petitioner
raised her claims on direct appeal, Beachem I, No. 1-96-3260,
slip op. at 8-9, and preserved them in her Petition for Leave to
Appeal to the Illinois Supreme Court (D.E. 12, Ex. B at 9-12).
She may not now further pursue the claim in state court, and
could not have even in her post-conviction petition, see People
v. Williams, 807 N.E.2d 448, 452 (Ill. 2004) (holding that
post-conviction petitions may address "only . . . constitutional
issues that were not, and could not have been, adjudicated on
direct appeal), so the claim is properly exhausted. The appellate
court, the last court to address the claim, held that Petitioner
had waived her claim regarding the comment about the meeting with
the State's Attorney by failing to object to it at trial, so that
part of the claim is barred by a judgment resting on an
independent and adequate state-law ground. However, the court
addressed the substance of the comments regarding Ms. Jones's
religious convictions and the possibility that Petitioner had
worn gloves at the crime scene and concluded that they were not
improper, so these parts of Petitioner's claim are not
The Court must evaluate the reasonableness of the appellate
court's judgment in two steps. First, it must inquire whether the statements were
improper; if they were, the Court must inquire whether the
comments were so prejudicial as to deprive Petitioner of a fair
trial. Statements made in the closing arguments of the guilt
phase of a trial should be relevant to the guilt or innocence of
the accused; statements which are not relevant are improper. See
United States v. Morgan, 113 F.3d 85, 89 (7th Cir. 1997)
(holding that comments concerning a prosecution witness's
feelings upon being called a liar "were improper . . . because
[they] . . . invited the jury to consider issues beyond the guilt
and innocence of the defendant); see also United States v.
Swiatek, 819 F.2d 721, 730 (7th Cir. 1987) (holding that the
prosecution's revelation to the jury that a key police officer
had been absent from the trial due to the death of the officer's
father was "improper because it was irrelevant, and may have
drawn the jury's sympathy"). Such irrelevant comments sometimes
appeal to the jury's emotions. See, e.g., United States v.
Kelley, 991 F.2d 1308, 1315 (7th Cir. 1993) (holding that
prosecutor's sarcastic cry, "God help us if a police officer
might ask some questions and find out if people like [the
defendant] are carrying loaded guns," improperly "appealed to the
emotions of the jury"). In arguing the facts, prosecutors may
suggest reasonable inferences from the evidence, but may not
suggest totally unsupported theories. United States v. Ward,
211 F.3d 356, 365 (7th Cir. 2000).
It was both relevant and proper for prosecutors to suggest that
Petitioner had worn gloves. "The prosecutor did not state
unequivocally that [Petitioner] wore gloves. . . . [T]he
prosecutor, in response to the defense counsel's comment that
[Petitioner's] fingerprints were not found inside Ms. Jones's
apartment, recalled the evidence technician's testimony that
fingerprints may not be left under certain conditions or if the
person is wearing gloves." Beachem I, No. 1-96-3260, slip op.
at 11. As the Illinois appellate court stated, a jury could
reasonably draw the conclusion that Petitioner wore gloves at the
crime scene from three pieces of evidence: Petitioner's confession, the lack of Petitioner's
fingerprints at the crime scene, and expert testimony regarding
conditions under which fingerprints would not be left. It is
eminently reasonable for a jury to reconcile purportedly
conflicting testimony by deciding upon a theory that is most
consistent with all the available evidence. See, e.g., Makhija
v. Deleuw, Cather and Co., 666 F. Supp. 1158, 1161 (N.D.Ill.
1987). It is not troublesome that one of the purportedly
conflicting pieces in this case is Petitioner's confession.
Although some independent evidence is necessary to establish a
confession's trustworthiness, the prosecution need not provide
independent corroborating evidence of each element of the offense
charged. United States v. Jackson, 103 F.3d 561, 567 (7th Cir.
1997). It was appropriate for the prosecution to argue that since
the Petitioner had confessed that she had been in the room, and
police found none of her fingerprints there, one of the
circumstances in which fingerprints will not be left must have
occurred. Given the date and location of the crime i.e.,
December in Chicago it was entirely reasonable to suggest that
the Petitioner had worn gloves during the murder of Ms. Jones.
The prosecution's comments about Ms. Jones's religious
convictions and personality were tame compared to much that
occurs in criminal trials. As mentioned before, a prosecutor
described Ms. Jones as a "deeply religious woman," and a
"benevolent, deeply religious woman." Beachem I, No. 1-96-3260,
slip op. at 8-9. The prosecutor also said that Ms. Jones was "a
true victim." (D.E. 12, Ex. B at 9 (citing D.E. 15, Supp. Ex. 1
at H-40).) As the Illinois appellate court held, the statements
were not improper because the prosecutor "merely pointed out that
[Petitioner] took advantage of Jones' religious nature. . . ."
Beachem I, No. 1-96-3260, slip op. at 10-11. Evidence before
the jury made clear that Petitioner and her co-defendant had
schemed to exploit their victim's religious convictions and
interests to gain entry to her home.
Even if one assumes arguendo that any or all of the comments
were improper, they also were clearly harmless. To make this determination, the Court must
examine the comment in light of the record as a whole to
determine its effect. Whitehead v. Cowan, 263 F.3d 708, 728
(7th Cir. 2001). A six-factor test governs the inquiry. A comment
is more likely to have rendered a trial unfair if it involved a
misstatement of the evidence or implicated specific rights of the
accused, such as the right against self-incrimination. United
States v. Love, 336 F.3d 643, 647-48 (7th Cir. 2003). It is less
likely to have done so if the defense invited the response, if
the trial court instructed the jury to ignore the comment, if the
defendant had an opportunity to rebut and reduce the comment's
effect, and if the weight of the evidence against the Petitioner
was such that the jury would probably have convicted even in the
absence of the comment. Id. The last factor is the most
Applying this test to Petitioner's case, the Court finds
reasonable the Illinois Appellate Court's conclusion that the
allegedly offending comments were "not a material factor in the
determination of defendant's guilt" because the "evidence
overwhelmingly supports the conviction." Beachem I, No.
1-96-3260, slip op. at 12. Although there is no physical evidence
specifically connecting the Petitioner with the crime scene, the
jury was presented with Petitioner's signed confession to the
crime, as well as clearcut physical evidence connecting her with
the spoils of the confessed robbery. On the facts of this case,
it is not reasonable to think that the prosecutor's opinion as to
whether Ms. Jones was worthy of respect or was a religious woman
would have motivated a jury that otherwise harbored reasonable
doubt about Petitioner's guilt or innocence to return a guilty
verdict. This is especially true given that the jury had already
heard details about the grisly and senseless crime in which
Petitioner with her own hands helped to bind, beat, and kill an
elderly woman who was begging for mercy, so that Petitioner and
her co-defendant could steal a credit card to try to buy some
jewelry from Petitioner's confession and other testimony that were far more
likely to inflame the jury's emotions than the prosecution's
allegedly offending comments.
The less important factors of the test are here insufficient to
dislodge this conclusion. The prosecutor did not misstate the
evidence or implicate Petitioner's specific rights. The court
instructed the jury that "[n]either sympathy nor prejudice should
influence you." (D.E. 15, Supp. Ex. 1 at H-75.) Under these
circumstances, and after having reviewed the trial record, which
was obtained, this Court agrees with the conclusions of the
Illinois appellate court that the allegedly offending comments
did not violate Petitioner's constitutional rights, and any error
would be harmless in any event. This Court may not grant habeas
relief on this ground.
E. Trial Counsel's Failure to Inform Petitioner of a Plea Offer
Petitioner alleges that her trial counsel failed to inform her
that the prosecution offered a reduced sentence in return for a
guilty plea. (D.E. 1 at 5.) She alleges that she later learned
about this plea offer from her mother or her aunt, both of whom
allegedly had a conversation with Petitioner's trial counsel
shortly after Petitioner's sentencing in which the trial counsel
said that he held back the information because he "couldn't talk"
to Petitioner. See Beachem II, 784 N.E.2d at 287; (D.E. 15,
Supp. Ex. 4 at C87).
Each of the Illinois Courts to address this issue, the trial
court on post-conviction review, and the Court of Appeals (twice
both before and after the remand) found the claim to be
"frivolous" and "patently without merit." People v. Beachem,
784 N.E.2d 285, 288 (Ill.App.Ct. 2002); People v. Beachem,
740 N.E.2d 389, 391 (Ill.App.Ct. 2000); Beachem II,
95-CR-00406, slip. op. at 1 (Ill. Cir. Ct. Jan. 14, 1999). The
last court to consider this issue the Illinois Court of Appeals
rejected it on both procedural and substantive grounds. The
procedural ground relates to a rule of Illinois law concerning
the presentation of claims in the post-conviction review setting namely, that a claim must be presented with
evidentiary support that is either clear in the record or through
non-conclusory affidavits from others besides the defendant
alone. See, e.g., People v. Maury, 678 N.E.2d 30, 32
(Ill.App.Ct. 1997) ("Unsupported conclusory allegations in the petition or
in the petitioner's affidavit are not sufficient to require a
hearing."); Beachem II, 95-CR-00406, slip. op. at 18 (Ill. Cir.
Ct. Jan. 14, 1999) (collecting Illinois cases). The trial court
relied upon this deficiency to hold that no hearing was necessary
and that Petitioner's claim failed as a matter of state law.
Id. The Illinois courts also rejected the claim on substantive
grounds. In discussing the claim, the Illinois Court of Appeals
found that the claim was based on "pure unsupported conclusion"
and explained that Petitioner had improperly attempted to rely on
evidence on appeal that was not properly presented to the trial
court. People v. Beachem, 784 N.E.2d 285, 287-88 (Ill.App.Ct.
2002); see also Beachem II, 95-CR-00406, slip. op. at 18 (Ill.
Cir. Ct. Jan. 14, 1999) (finding the claim "[a]dditionally to be
substantively "without merit.").
As a result of the state courts' rulings, there is an adequate
and independent state-law procedural bar against granting habeas
relief. Petitioner did not comply with the demands of Illinois
procedural law in terms of presenting her claim, and the Illinois
courts rejected it on that basis. See, e.g., Coleman v.
Thompson, 501 U.S. 722, 729 (1991); United States v. Gramley,
No. 95 C 5804, 1996 WL 82473, at *4 (N.D. Ill. Feb. 26, 1996)
(collecting cases, including Coleman).
In addition, and independently, the claim is substantively
meritless. Because Petitioner did not follow appropriate
procedures for developing the factual record in the Illinois
state courts, Petitioner is now, as explained below, barred from
introducing any further evidence. 28 U.S.C. § 2254(e)(2).
Petitioner did not submit with her post-conviction petition any
affidavits from her mother, aunt, or anybody else to substantiate her
claims. Beachem II, 784 N.E.2d at 288. On appeal, Petitioner
claimed that she had attached a sworn statement from her mother
to the petition, which the trial court had failed to address.
(D.E. 12, Ex. E at 14-15.) However, the appellate court said that
the statement was dated nearly a month after the trial court
judgment, and that it was addressed "To the Appellate Court"; it
concluded that the statement had not been attached to the
petition and that the trial court could not have had it. Beachem
II, 784 N.E.2d at 288. The Court has obtained the record and
verified both that the statement was dated by hand and stamped by
a notary public on February 5, 1999, weeks after the trial court
judgment was entered on January 14, and that it is in fact
addressed "To the Appellate Court." (D.E. 15, Supp. Ex. 4 at
C87.) The appellate court's conclusion concerning development of
the factual record thus was correct and entirely reasonable.
Courts have interpreted 28 U.S.C. § 2254(e)(2)'s "failed to
develop" language to allow expansion of the evidentiary record if
it was left undeveloped through no fault or "lack of diligence"
of the petitioner. United States v. Williams, 529 U.S. at 432;
accord, e.g., id. at 435 ("Diligence . . . depends upon whether
the prisoner made a reasonable attempt, in light of the
information available at the time, to investigate and pursue
claims in state court."); Davis v. Lambert, ___ F.3d ___, 2004
WL 2475102 at *6-7 (7th Cir. Nov. 4, 2004) (in Illinois,
post-conviction petitioners must diligently seek to attach
affidavits or other evidence to obtain a state evidentiary
In this case, however, the evidence establishes that Petitioner
was at fault in failing to supply the requisite affidavit support
required by Illinois law. Her aunt and mother had learned of the
purported plea offer in August of 1996 (D.E. 15, Supp. Ex. 4 at
C87) and had necessarily revealed the alleged failure to report
the plea bargain to Petitioner before Petitioner sought
post-conviction relief. Petitioner does not contend that either of these
relatives were unwilling or unable to supply Petitioner with an
affidavit, and such a conclusion would not be reasonable. Not
only did Petitioner's mother supply a (procedurally improper)
affidavit shortly after the Illinois trial court rejected the
post-conviction petition for lack of one, but Petitioner's mother
had already testified as a defense witness at the penalty phase
of Petitioner's trial. (Id. Supp Ex. 1 at J-87 to J-88.)
Petitioner does not now offer any reason why the affidavit was
not submitted to the trial court. In previous state court
filings, she tried to excuse the lack of an affidavit by claiming
that she was unable to discover her trial counsel's failure to
convey the plea offer until after her post-conviction petition
was dismissed. (D.E. 12, Ex. K at 6.) But this is obviously
false: if Petitioner had not known about the alleged plea offer
before that time, she could not have raised her claim in the
post-conviction petition as she did.
Petitioner could still potentially seek an evidentiary hearing
here if her claim relied on a new retroactive rule of
constitutional law or evidence that could not have previously
been discovered through duly diligent investigation, or if she
could present clear and convincing evidence that but for the
error, no reasonable factfinder could have found her guilty.
28 U.S.C. § 2254(e)(2). None of these exceptions apply, and
Petitioner does not argue that they do. Given the claim's
procedural history, the Court may not allow Petitioner to expand
the record in an evidentiary hearing, and unless a state court
improperly stated or applied federal law and the Illinois
courts did not here a federal court may grant habeas relief
only if the state court judgment pursuant to which a petitioner
is imprisoned relied on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d)(2) (2000). And on the merits,
this Court cannot conclude that the Illinois courts' dismissal of
her petition was unreasonable. The only evidence Petitioner
presented in the state trial court (i.e., at the procedurally appropriate time under
state law) was rank hearsay. That is no evidence at all. See,
e.g., United States v. Godinez, 110 F.3d 448, 456 (7th Cir.
1997) (citing Fed.R. Evid. 802). There is no basis to provide
federal habeas relief.
F. Trial Counsel's Advice Against Petitioner Testifying or
Refusal to Allow Petitioner to Testify
Petitioner alleges that "defendant wanted to testify at trial,
but was advised not to by counsel. If defend[a]nt would have been
allowed to testify at trial, things would have come out a whole
lot different[ly] than [they] did." (D.E. 1 at 5.) Apparently,
Petitioner would have testified that Tianna Jackson approached
her with what unbeknownst to Petitioner were Annie Jones's car
and belongings, which Jackson claimed were a borrowed car and a
purse she had found, and that Petitioner had only been involved
in the attempt to use the credit card. (D.E. 15, Supp. Ex. 4 at
C38-C39.) It is unclear whether Petitioner is saying that her
counsel simply advised her not to testify, or that counsel
actually forbade her to do so. Either occurrence theoretically at
least might have violated the Constitution if the strategic
advice was egregiously poor enough, it could have violated the
rule of Strickland, and forbidding Petitioner to testify might
have violated her constitutional right under the Fifth, Sixth,
and Fourteenth Amendments to testify truthfully, even if defense
counsel believed that decision to be irrational and likely to
harm the defendant's interests. United States v. Manjarrez,
258 F.3d 618, 623 (7th Cir. 2001) (citing Rock v. Arkansas,
483 U.S. 44, 49-53 (1987)).
However, Petitioner procedurally defaulted both claims in the
state courts. Though she raised what was either one or the other
of these claims in her state petition for post-conviction relief,
she did not raise it in her appeal from that petition's
dismissal. The claims did not go through a full round of
Illinois's established appellate process for post-conviction
petitions, and the Illinois courts would now consider them waived. The claims
were thus improperly exhausted, and this Court may not grant
habeas relief. Again, the Petitioner asserts no excuse for the
procedural default and no excuse suggests itself to the Court.
Even if either of these possible claims were not procedurally
defaulted, the Court would find against Petitioner on the merits.
Petitioner received constitutionally ineffective assistance of
counsel only if her attorney's advice not to testify fell beneath
an objective standard of reasonable attorney conduct. Yarborough
v. Gentry, 540 U.S. 1, 5 (2003) (citing Strickland,
466 U.S. at 687); accord Martin v. Evans, 384 F.3d 848, 851 (7th Cir.
2004). An attorney's conduct is presumed to be reasonable.
Martin, 384 F.3d at 851. It is proper not to present testimony
if counsel reasonably determines that it would on balance harm
rather than help the defendant's case. Foster v. Schomig,
223 F.3d 626, 631 (7th Cir. 2000). In this case, Petitioner's
testimony would have run headlong into her signed confession. It
would have been foolish for Petitioner to testify about her
activity with Jackson unless she also testified about her
interrogation in such a way as to shake the jury's confidence in
the confession. Petitioner's trial counsel had already tried this
approach in a hearing on a motion to suppress evidence. (See
D.E. 15, Supp Ex. 1 at B-86 (Petitioner testified that officers
told her that suspects got "jacked up" for refusing to confess);
id. at B-87 (Petitioner testified that officers refused to stop
questioning when asked to provide an attorney); id. at B-99
(Petitioner testified that she never gave typed statement); id.
at B-101 (Petitioner testified that she did sign the typewritten
pages presented, but that they "didn't look like that" at the
time).) The trial court found Petitioner's testimony "incredible"
and refused to suppress the confession. (Id. at C-28.) It was
reasonable after the suppression hearing for defense counsel to
conclude that Petitioner would not impress the jury on the stand
and to recommend that Petitioner rely on the presumption of
innocence and whatever doubt could be thrown on the confession without her testimony.*fn1
Furthermore, given Petitioner's conduct at trial, the Court
cannot conclude that she was prevented from testifying against
her will in violation of the Sixth and Fifth Amendments. Not only
would Petitioner's "bare bones" assertion that she was prevented
from testifying likely be insufficient to warrant an evidentiary
hearing, Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991),
but the record further reveals that Petitioner gave "a direct,
unequivocal answer to a trial court's colloquy," which "will
suffice to find a knowing, intelligent waiver" of the right to
testify, Ward v. Sternes, 334 F.3d 696, 707 (7th Cir. 2003)
(citing Lee v. Murphy, 41 F.3d 311, 315 (7th Cir. 1994));
accord Manjarrez, 258 F.3d at 624. Petitioner twice stated in
response to bench questioning that she did not want to testify,
and further said that she understood that she alone could choose
whether or not to testify. (D.E. 15, Supp. Ex. 1 at H-11.) Any
suspicion that these answers were not genuine should be dispelled
by Petitioner's conduct on a similar occasion. At sentencing she
rejected her counsel's advice and exercised her right of
allocution over counsel's express cautions. (Id. at J-188.) If
this is any indication, Petitioner is not one to be cowed by an
attorney in the courtroom. This claim is not a basis for habeas
G. Victim Impact Statements
Petitioner alleges that the trial court improperly heard three
victim impact statements at sentencing, when only one should have
been read. (D.E. 1 at 6.) Petitioner procedurally defaulted this
claim in state court. She failed to raise it either on direct
appeal or in her post-conviction petition, and thus improperly exhausted her remedies. Petitioner
presently suggests no cause to excuse the procedural default. She
did when she claimed in her post-conviction petition that her
trial counsel had been constitutionally ineffective in failing to
object to the victim impact statements; however, the state courts
held that Petitioner had waived the ineffective assistance claim
by failing to pursue it on direct appeal, meaning that the claim
was itself procedurally defaulted because of an independent and
adequate state-law ground for the judgment. Beachem II, No.
95-CR-00406, slip op. at 18. Even if this had not barred the
excuse, Petitioner created an independent procedural default by
failing to appeal from the trial court's dismissal of her claim,
improperly exhausting her remedies.
The court may not grant relief. Even if it could, however, it
would find no constitutional violation. The Court has found no
Seventh Circuit cases supporting the Petitioner's claim that
there is a rule limiting prosecutors to one "victim impact
statement." On the contrary, the Supreme Court in Payne v.
Tennessee, 501 U.S. 808 (1991), adopted a looser rule that
victim impact evidence is admissible in the sentencing phase of
capital murder trials as long as it does not render the trial
"fundamentally unfair." Id. at 825 (citing Darden,
477 U.S. at 179-83).
In this case, there was nothing fundamentally unfair about the
prosecution's presentation or use of the victim impact
statements. The prosecution did not mention the statements at all
in its nine page closing argument or its six page rebuttal,
excepting perhaps one brief statement that "Annie Jones was a
woman who lived in that community . . . who helped others. . . ."
(Id. at J-157 to J-166, J-181 to J-187.) Furthermore, the court
did not have to instruct a jury to avoid passion and sympathy:
Petitioner waived a jury at the penalty phase of her trial, and
the impact statements were heard by the court itself. (Id. at
E-3 to E-11.) The court noted Petitioner's objections to the most
powerful parts of the statements. (Id. at J-82, J-84.) In light
of the trial court's conduct and the statements' total absence from closing
arguments, this Court could not reasonably conclude that the
victim impact statements rendered the trial and sentencing
H. Relative Sentences of Petitioner and Her Codefendant
Petitioner alleges that she and her codefendant, Tianna
Jackson, received vastly different sentences for their
participation in the same crime. While Petitioner is serving a
ninety year prison term, Jackson "was given less time in . . .
juvenile detention and is now home with her family." (D.E. 1 at
6.) Petitioner does not explain how this disparity violated
federal law; the most likely theory is that Petitioner believes
the different sentences violated the Equal Protection Clause of
the Fourteenth Amendment. This claim was never raised in the
state courts, either on direct appeal or in the post-conviction
petition. Petitioner has therefore improperly exhausted her
remedies, and the Court may not grant relief.
Petitioner offers the ineffective assistance of her appellate
counsel as cause for improper exhaustion. However, as already
mentioned, an ineffective assistance of counsel excuse can itself
be procedurally defaulted by failing to properly present it to
the state courts. Petitioner did not include the claim in her
post-conviction petition, and it is defaulted.
Even if the claim had not been procedurally defaulted, it would
not succeed. Constitutional sentencing law does not address the
difference between the sentences of two persons convicted of the
same particular crime, but rather the proportion between the
sentence and the type of crime committed. See, e.g., Solem v.
Helm, 463 U.S. 277, 303 (1983) (finding that a sentence of life
imprisonment without parole was disproportionate to uttering a
no-account check). As previously noted, Petitioner cannot
seriously contend that a ninety year sentence is disproportionate
to murder, and does not appear to do so. The Court's research has uncovered no case in which the Seventh
Circuit or Supreme Court has given special constitutional
scrutiny to the disparate sentences of two participants in a
single crime.To the contrary, in Holman v. Page, 95 F.3d 481
(7th Cir. 1996), the Seventh Circuit held that "`[d]iscretion,
even if it ends in grossly unequal treatment according to
culpability, does not entitle a guilty defendant to avoid a
sentence appropriate to his own crime.'" Id. at 486 (quoting
United States v. Marshall, 908 F.2d 1312, 1321 (7th Cir.
1990)). The court in that case explicitly refused to create a
more stringent law of sentence proportionality under the Equal
Protection or Due Process Clauses. Id. at 485-86.
Other cases address the differences between codefendants'
sentences, asking whether the sentencing court gave "thoughtful
consideration" to the sentences. See, e.g., United States v.
Harty, 930 F.2d 1257, 1269(7th Cir. 1991) (citing United States
v. Nowicki, 870 F.2d 405, 409 (7th Cir. 1989)). However, those
are federal criminal cases reviewing sentences for abuse of
discretion under federal law. Id. As previously mentioned, this
Court cannot review Petitioner's sentence for abuse of discretion
granted by state law, and even if it could, it would find none.
In sum, the trial court found that Petitioner was the instigator
of a senseless, cold-blooded murder of an elderly woman who died
at the hands of her murderers after begging for their mercy.
Giving a substantially higher sentence to the instigator of such
a murder is not subject to reasonable second-guessing by this
For the aforementioned reasons, federal habeas relief is not
warranted. No evidentiary hearing is necessary, and the Petition
for a Writ of Habeas Corpus is dismissed.