The opinion of the court was delivered by: MICHAEL MIHM, District Judge
Now before the Court is Petitioner, David Julian's ("Julian"),
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254.
For the reasons set forth below, the Petition [#2] is denied.
Following a trial in the Circuit Court of Tazewell County,
Illinois, Julian was found guilty of armed robbery. On January
10, 2001, he was sentenced to a term of 40 years' imprisonment.
Julian was subsequently convicted of a second charge of armed
robbery in the same court, and on April 5, 2001, he was sentenced
to another 40-year term to be served concurrently with his first
term. He is now incarcerated at the Illinois River Correctional
Center in Canton, Illinois.
Julian filed a consolidated direct appeal to the Illinois
Appellate Court, Third District in which he appealed both
convictions and raised essentially two issues: (1) the cause
should be remanded for further post-trial proceedings on his
claim of ineffective assistance of counsel; and (2) petitioner should be
resentenced for each of his convictions because the court
considered an improper factor in aggravation. On December 11,
2002, the Illinois Appellate Court rejected his claims and
affirmed his convictions and sentences. Julian's petition for
leave to appeal to the Illinois Supreme Court was denied on April
On August 7, 2002, Julian filed a petition for post-conviction
relief in which he raised the following claims: (1) he received
ineffective assistance of counsel for incorrectly advising him
that the maximum sentence he could receive was 30 years for each
crime, to run concurrently, inducing him to reject the State's
plea offer of 23 years; (2) his Sixth and Fourteenth Amendment
rights were violated when trial counsel coerced him to request a
bench trial rather than a jury trial; (3) the trial court denied
him effective assistance of counsel by failing to admonish him
under Illinois Supreme Court Rule 403 at the stipulated bench
trial; (4) his right to testify under the Sixth and Fourteenth
Amendments was violated at both trials; and (5) he received
ineffective assistance of counsel with respect to each of these
claims. Following an evidentiary hearing, Julian's petition was
denied by the circuit court on March 18, 2003. He filed an appeal
with the Illinois Appellate Court, and the trial court's
dismissal of his post-conviction petition was affirmed on October
14, 2004. Julian's petition for leave to appeal to the Illinois
Supreme Court, which raised only the first issue, was denied on
January 26, 2005.
Julian then filed the present Petition for Writ of Habeas
Corpus pursuant to § 2254 mounting a collateral attack with
respect to his April 2001 conviction. In this Petition, he argues
that he received ineffective assistance of counsel when counsel advised him that he could not receive a sentence greater than 30
years' imprisonment based on the Supreme Court's decision in
Apprendi v. New Jersey, and this information coerced him to
reject the State's plea offer of a 23-year sentence. This Order
Before reaching the merits of a petition for writ of habeas
corpus brought pursuant to 28 U.S.C. § 2254, a district court
must consider "whether the petitioner exhausted all available
state remedies and whether the petitioner raised all his federal
claims during the course of the state proceedings." Farrell v.
Lane, 939 F.2d 409, 410 (7th Cir. 1991), quoting
Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988). If
the answer to either of these questions is "no," then the failure
to exhaust state remedies or procedural default bars the
petition. Id. In other words, if a petitioner fails to give the
state courts a full and fair opportunity to review his claims,
then his petition must fail. Bocian v. Godinez, 101 F.3d 465,
468-69 (7th Cir. 1996).
Exhaustion of a federal claim occurs when it has been presented
to the highest state court for a ruling on the merits or when it
could not be brought in state court because a remedy no longer
exists when the federal petition is filed. Id. In the present
case, Respondent does not argue that Petitioner has failed to
exhaust his state remedies.
Procedural default occurs when a claim could have been but was
not presented to the state court and cannot, at the time the
federal petition is filed, be presented to the state court.
Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992).
This occurs in one of two ways. First, a procedural default may
occur when a petitioner fails to pursue each appeal required by state law, Jenkins v.
Gramley, 8 F.3d 505, 507-08 (7th Cir. 1993), or when he did
not assert the claim raised in the federal habeas petition in the
state court system. Resnover, 965 F.2d at 1458-59. The second
way in which a petitioner may procedurally default a claim is
when a state court disposes of the case on an independent and
adequate state law ground, regardless of whether that ground is
substantive or procedural. Coleman v. Thompson, 501 U.S. 722,
111 S.Ct. 2546, 2553-55 (1991).
Federal review is barred for claims that are procedurally
defaulted unless the petitioner can demonstrate cause and
prejudice. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558,
1572-73 (1982); Farrell, 939 F.2d at 411. Review in federal
court is also possible if a fundamental miscarriage of justice
would otherwise occur in that a constitutional error probably
resulted in the conviction of someone who is actually innocent.
Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 864-67 (1995).
With respect to claims that are not barred either for failure
to exhaust or procedural default, federal courts must employ a
strict analysis. A petition must be denied with respect to any
claim previously adjudicated on the merits in a state court
unless the decision of the state court:
(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). See also Lindh v. Murphy, 96 F.3d 856,
868-71 (7th Cir. 1996), rev'd on other grounds,
521 U.S. 320, 117 S.Ct. 2059 (1997). Subsection (d)(1) instructs that Supreme Court precedent
governs legal questions. Id. at 869. In resolving mixed
questions of law and fact, relief is unavailable unless "the
state's decision reflects an unreasonable application of the
law," meaning federal courts are to have a hands-off attitude
unless the state court judgment is premised on an unreasonable
error. Id. at 870 (internal quotation marks omitted). A
responsible, thoughtful decision that is made after a full
opportunity to litigate suffices, "even ...