United States District Court, N.D. Illinois, Eastern Division
January 6, 2005.
NORMAN MOSS, Petitioner,
VICTOR TRANCOSO, Respondent.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Petitioner Norman Moss'
("Moss") petition for writ of habeas corpus filed pursuant to
28 U.S.C. § 2254. For the reasons stated below, we deny Moss'
petition for writ of habeas corpus.
Following a jury trial in the Circuit Court of Cook County,
Illinois ("trial court"), Moss was convicted of first degree
murder and sentenced to thirty-five years imprisonment. Moss
appealed his conviction and the Appellate Court of Illinois
affirmed the judgment of the trial court. Moss then filed a
petition for leave to appeal to the Supreme Court of Illinois, which was denied.
Subsequently, Moss filed a petition for post-conviction relief
with the trial court, which was dismissed. Moss appealed the
dismissal of his petition for post-conviction relief and the
Appellate Court of Illinois affirmed the judgment of the trial
court. Moss then filed a petition for leave to appeal to the
Supreme Court of Illinois, which was denied. Moss is incarcerated
at the Illinois River Correction Center in Canton, Illinois.
A district court may entertain a habeas corpus petition from
a "person in custody pursuant to the judgment of a State court
only on the grounds that he is in custody in violation of the
Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). Pursuant to 28 U.S.C. § 2254(d):
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). DISCUSSION
In Moss' petition for writ of habeas corpus, he has alleged
that his trial counsel was ineffective because she refused to
allow him to testify; that his trial counsel was ineffective
because she allowed the trial court to let in improper jury
instructions at trial in violation of the equal protection
clause; that his sentence was excessive in light of his passive
role in the murder, that the evidence at trial failed to prove
that he was guilty beyond a reasonable doubt; and that he is
actually innocent. (Pet. 5-6). Respondent maintains that all of
Moss' claims are procedurally defaulted and that Moss' petition
for writ of habeas corpus should be denied.
It is well settled that before a petitioner can present a claim
in a petition for writ of habeas corpus, the petitioner must
first have presented that claim in "one complete round of the
State's established review process." O'Sullivan v. Boerckel,
526 U.S. 838, 848 (1999); see also Lewis v. Sternes,
390 F.3d 1019, 1025-26 (7th Cir. 2004); Perruquet v. Briley,
390 F.3d 505, 513 (7th Cir. 2004). Under Illinois' two-tiered appellate
review process, except for death penalty claims which are heard
directly by the Supreme Court of Illinois, a petitioner has a
right to have his claims on appeal initially heard by the
Appellate Court of Illinois. Boerckel, 526 U.S. at 843. After a
petitioner's claims have been decided by the Appellate Court of
Illinois, the petitioner may file a petition for leave to appeal
to the Supreme Court of Illinois. Id. Failure by a petitioner
to present a claim in a petition for leave to appeal to the Supreme Court of Illinois will result in a
procedural default of that claim if it is later raised in a
petition for writ of habeas corpus. Rittenhouse v. Battles,
263 F.3d 689, 697 (7th Cir. 2001); see also White v. Godinez,
192 F.3d 607, 608 (7th Cir. 1999) (explaining that the procedural
default rule announced in Boerckel that addressed a
petitioner's failure to pursue a claim on direct appeal, "applies
with equal force" in cases where a petitioner fails to pursue a
claim in a post-conviction petition on collateral review). In
Verdin v. O'Leary, 972 F.2d 1467, 1473-74 (7th Cir. 1992), the
Seventh Circuit adopted a "fair presentment" test and stated
[i]f the petitioner's argument to the state court did
not: (1) rely on pertinent federal cases employing
constitutional analysis; (2) rely on state cases
applying constitutional analysis to a similar factual
situation; (3) assert the claim in terms so
particular as to call to mind a specific
constitutional right; or (4) allege a pattern of
facts that is well within the mainstream of
constitutional litigation, then [the] court will not
consider the state courts to have had a fair
opportunity to consider the claim.
See id. (noting that "the presence of any one of these factors,
particularly factors (1) or (2), does not automatically avoid a
waiver . . . [and] the court must consider the specific facts of
each case."). However, even where a petitioner procedurally
defaults a claim for failing to present that claim to the state
courts, a federal court can still review that claim if the
petitioner "shows cause for failure to raise [that claim] at the
appropriate time and actual prejudice which resulted from such
failure" or, "[a]bsent such a showing, a defaulted claim is
reviewable only if refusal to consider would result in a `fundamental miscarriage of
justice'. . . ." Rodriguez v. Scillia, 193 F.3d 913
(7th Cir. 1999).
Although Moss has fully exhausted his remedies under Illinois'
two-tiered appellate review process, none of the claims contained
in Moss' petition for writ of habeas corpus were previously
presented in Moss' petitions for leave to appeal to the Supreme
Court of Illinois on direct appeal or in post-conviction
proceedings. (Resp't Ex. C, I). Further, Moss' arguments in his
petitions for leave to appeal to the Supreme Court of Illinois
did not rely on any pertinent federal or state cases employing
constitutional analysis, did not allege any violations of a
constitutional right in any particularity, and did not allege a
pattern of facts well within the mainstream of constitutional
litigation that would have afforded the Supreme Court of Illinois
an opportunity to "adjudicate squarely" the habeas claims Moss
has presented in his petition for writ of habeas corpus. Bocian
v. Godinez, 101 F.3d 465, 469 (7th Cir. 1996). As a result of
Moss' failure to previously present his habeas claims in his
petitions for leave to appeal to the Supreme Court of Illinois,
such claims are now procedurally defaulted. Rittenhouse,
263 F.3d 697. Additionally, we find that Moss has not shown cause for
his failure to previously present his claims in a petition for
leave to appeal to the Supreme Court of Illinois. Furthermore,
there is no indication that refusal by this court to review Moss'
claims would result in a fundamental miscarriage of justice,
given the evidence against Moss. (Resp't Ex.'s A-J). Accordingly, we find that all of Moss'
claims contained in his petition for writ of habeas corpus are
procedurally defaulted. Since neither exception to procedural
default is applicable, procedural default bars habeas review of
Moss' claims. Therefore, we deny Moss' petition for writ of
Based on the foregoing analysis, we deny Moss' petition for
writ of habeas corpus.
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