The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
*fn1 Since the filing the petition, Charles Hinsley replaced
Eugene McAdory as Warden of Menard Correctional Center. Pursuant
to Fed.R.Civ.P. 25(d) and Rule 2(a) of the Rules Governing
Section 2254 Cases, Warden Hinsley is substituted as the proper
MEMORANDUM OPINION AND ORDER
Greg Jones has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § ("section") 2254 challenging his state
criminal conviction. For the reasons set forth below, the
petition is denied and this case is dismissed with prejudice.
In 1999, Jones was convicted of two counts of first-degree
murder in connection with the deaths of Genova Taylor and Larry
Lowe and was sentenced to a prison term for the remainder of his
natural life. (See Gov't Ex. A, People v. Gregory D. Jones,
No. 1-99-3207, Dec. 19, 2000). He appealed both his conviction
and sentence to the Appellate Court of Illinois, First District,
raising the two issues: (1) there was improper admission of
hearsay evidence; and (2) his counsel was ineffective because he failed to request a fitness hearing. On
December 19, 2000, the Illinois Appellate Court affirmed the
trial court's rulings of his convictions and sentence. (Id. at
On January 29, 2001, Jones filed a petition for leave to appeal
("PLA") to the Illinois Supreme Court. (See Gov't Ex. B,
1/29/01 Pet. Leave Appeal.) In the PLA, Jones claims that there
was insufficient evidence to support his conviction; namely,
there was insufficient evidence to prove both that Jones did not
act in self-defense and that Jones caused Lowe's death. Id. He
also claimed that he was not afforded a fair trial because
hearsay evidence was improperly admitted. Id. On April 4, 2001,
the petition was denied. (See Gov't Ex. C, People v. Gregory
D. Jones, No. 90839 (Ill. Sup. Ct. Pr. 4, 2001).) Jones did not
seek leave to appeal to the United States Supreme Court.
In June 2001, Jones filed a petition for post-conviction
relief, claiming his sentence violated the United States Supreme
Court holding in Apprendi v. New Jersey, 530 U.S. 466 (2000).
(See Gov't Ex. D.,6/14/01 Pet. Post-Conviction Relief.) On June
29, 2001, the petition was denied. (See Gov't Ex. E, People v.
Gregory D. Jones, No. 97 CR 12872-01 Circuit Ct. Cook County
July 2, 2001.)) Jones then appealed the denial of his petition
for post-conviction relief, and on September 30, 2002, the
appellate court affirmed the circuit court's dismissal. (See
Gov't Ex. F, Order of the Illinois Appellate Court, No.
1-01-3185). Jones sought leave to appeal the adverse decision on
his post-conviction petition to the Illinois Supreme Court.
(See Gov't Ex. G, 12/15/00 Pet. Leave Appeal.) On June 4, 2003,
his petition was denied. (See Gov't Ex. H, People v. Gregory
D. Jones, No. 95917 (Ill. Sup. Ct. June 4, 2003).) Discussion
In this section 2254 petition, Jones raises four claims: (1)
that at the bench trial, the court abused its authority by
considering the circumstances of Taylor's death as a basis to
determine that Jones should be convicted of first degree murder
of Lowe; (2) that trial counsel was ineffective because he did
not move to sever the two murder charges; (3) that his Fourth
Amendment due process rights were violated because the cause of
Lowe's death was not proven beyond a reasonable doubt; and (4)
that the state was improperly allowed to present Lowe's hearsay
declaration into evidence.
We can reach the merits of these claims only if Jones "raised
all of [them] during the course of the state proceedings,
presenting each claim fully and fairly to the state courts."
Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir. 1999). "A
petitioner presents his claims fully by pursuing all available
avenues of relief provided by the state before turning to the
federal courts." Id. (internal quotation marks and citation
omitted). A petitioner presents his claims fairly if he gives the
state courts "a meaningful opportunity to pass upon the substance
of the claims later presented in federal court." Id. at 916.
Both the operative facts and the "controlling legal principles"
must be submitted to the state court. Id. at 917 (internal
quotation marks and citation omitted). Jones will have properly
presented his claims if he: (1) relied on federal cases employing
a constitutional analysis or state cases applying a
constitutional analysis to a similar factual situation; (2)
asserted the claim in terms that evoke a specific constitutional
right; or (3) alleged a fact pattern that is "well within the
mainstream of constitutional litigation." Verdin v. O'Leary,
972 F.2d 1467, 1473 (7th Cir. 1992) at 1473-74 (internal quotation marks and citation omitted).
However, satisfying any of these elements does not automatically
mean that the claims have been adequately presented to the state
court. Id. For example, if a petitioner does not raise his
claims in a petition for a discretionary appeal to the state
supreme court, he has not fully presented his claims. O'Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999) ("state prisoners must
give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process"). Furthermore, for
state remedies to have been exhausted, the claim raised in the
habeas petition should be phrased as it was during the state
appellate process. Chamber v. McCaughtry, 264 F. 3d 732, 738
(7th Cir. 2001).
Also, ". . . a district court shall entertain an application
for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court 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.S. § 2254. If the claim
is not affirmatively based on such constitutional grounds it will
be considered to be non-cognizable in federal court. Merely
referencing a constitutional issue in passing will not deem an
issue as having been fairly presented. Fortini v. Murphy,
257 F.3d 39, 44 (1st Cir. 2001). If the presentation requirement is
not fulfilled, the claims are considered to be procedurally
defaulted and if they are grounded solely on state law, they are
considered non-cognizable. See Verdin v. O'Leary,
972 F.2d 1467, 1472-73, 1476 (7th Cir. 1992). Furthermore, procedurally
defaulted and non-cognizable claims are precluded from federal
Respondent asserts that several claims have been procedurally
defaulted. In claim two. Petitioner states that he received
ineffective assistance of counsel when counsel failed to file a
pre-trial motion to have the two murder charges tried separately.
Respondent argues that this claim was not presented in the appellate and post-conviction proceedings.
Respondent further contends that one ground in claim four fails
for the same reason. In addition, Respondent notes that part of
claim four was raised for the first time in the instant habeas
corpus petition and thus it was not "fairly presented" to the
state courts. See Verdin, 972 F.2d at 1479 n. 13.
Petitioner responds that he asked his counsel to seek separate
trials but his counsel never moved to sever. But as his appellate
briefs demonstrate, Jones never included the separation trial
issue in his appeals, post-conviction petitions or PLA. The only
argument that remotely resembles such a claim can be found in his
PLA, where he argued that counsel should have asked for a
"fitness hearing." A fitness hearing seeks to resolve a genuine
doubt of the competency and ability of a defendant to stand
trial. 725 ILCS 5/104-11(a). It has nothing to do with counsel's
failure to ask for severance of the two murder trials. Claim two
is procedurally defaulted and is not entitled to habeas relief.
Claim four suffers the same fate. Petitioner raises for the
first time that he was deprived of his rights under the Sixth
Amendment because the trial court admitted a hearsay statement of
Lowe's that he was a victim. The trial court admitted Lowe's
out-of-court statement before his death as an excited utterance,
and Jones claims that his Sixth Amendment rights were violated
because he was never able to confront Lowe about the statement.
Jones did not raise these Confrontation Clause claims in his
direct appeal, nor did he raise them in his post-conviction
petition or post-conviction appeal. In the appeal process, Jones
did dispute whether the hearsay statement was properly admitted.
However, in his argument there, he contends that the statement
the trial court labeled as an excited utterance was a actually a
dying declaration, but it did not satisfy the elements to be
termed a dying declaration. Jones also argued that the statement
was not reliable and that the improper admission prevented him from receiving a fair trial.
However, Jones's argument was based solely ...