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August 24, 2005.

DONALD A. HULICK, Respondent.

The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge


This case is before the Court on the petition of Gerald Bates for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we deny the petition.


  For purposes of federal habeas review, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e). Accordingly, we adopt the facts set forth in the orders of the Illinois Appellate Court affirming petitioner's conviction as our own. See People v. Bates, No. 1-98-1968 (1st Dist. Feb. 24, 2000) (unpublished order); People v. Bates, No. 1-01-1436 (1st Dist. June 4, 2003) (unpublished order).

  On January 30, 1998, in the Circuit Court of Cook County, Bates was convicted of one count of first-degree felony murder and one count of attempted armed robbery in violation of 720 ILCS 5/9-1(a)(3) and 720 ILCS 5/8-4 and 5/18-2, respectively. The evidence presented at trial established that Bates, along with an accomplice, participated in the stabbing and beating death of Naina Gheewala during an attempted robbery. The murder took place while Gheewala's three-year-old daughter waited in her nearby car.

  On the morning following the murder, Bates and an accomplice, both minors at the time, were brought to the Park Forest Police Department to be questioned in reference to Gheewala's murder. The minors were separated at the police station for interrogation purposes. After three rounds of questioning, Bates admitted his involvement in the crime. His confession occurred before he had the opportunity to consult either his parents or a lawyer. At trial, Bates' confession was admitted into evidence. Following his convictions, the trial judge sentenced Bates to a prison term of 58 years. (Rule 5 Exhibits, Ex. A.)

  Bates appealed his conviction to the Illinois Appellate Court. In his appeal, he argued the police lacked probable cause to detain him and his inculpatory statements should have been suppressed. He also argued his statements were inadmissible because he was not accompanied by a parent or juvenile officer during police questioning. On February 24, 2000, the Illinois Appellate Court affirmed Bates' conviction. People v. Bates, No. 1-98-1968 (1st Dist. Feb. 24, 2000) (unpublished order). Following the Appellate Court's decision to affirm, Bates filed a petition for leave to appeal to the Illinois Supreme Court raising the same claims he had raised in his direct appeal. On May 31, 2000, the Illinois Supreme Court denied his petition. People v. Bates, 731 N.E.2d 765 (Ill. 2000).

  On December 19, 2000, Bates again challenged his conviction by filing a post-conviction petition in the Circuit Court of Cook County. In that petition, Bates argued, inter alia, that (1) his trial attorney had pressured him not to testify on his behalf; (2) he had been detained without probable cause; (3) he had not been informed that any officers present were youth officers; (4) the police did not immediately call his parents; (5) he confessed only because he wanted to go home; and (6) appellate counsel was ineffective for refusing to raise various issues on appeal. On March 13, 2001, the Circuit Court of Cook County denied the post-conviction petition. (Rule 5 Exhibits, Ex. E.)

  On March 30, 2001, Bates appealed the dismissal of his post-conviction petition to the Illinois Appellate Court. In that appeal, he restated his claim that he had been coerced into giving up his right to testify and argued, for the first time, that his appellate counsel on direct appeal had been ineffective for failing to argue his sentence of 58 years was excessive. On June 4, 2003, the Illinois Appellate Court affirmed the Circuit Court's denial and found, inter alia, that Bates's challenge to his appellate counsel's representation had been waived as the issue had not been raised in his original post-conviction petition. (Id., Ex. I.)

  On July 25, 2003, Bates filed a petition for leave to appeal the Illinois Appellate Court's decision with the Illinois Supreme Court. The single issue raised by the petition was whether fundamental fairness could serve as an exception to the rule that claims not raised in an original or amended post-conviction petition are waived for purposes of appellate review. The Illinois Supreme Court denied the petition on October 7, 2003. (Id., Ex. J.)

  On November 14, 2003, Bates filed a pro se petition for a writ of habeas corpus in this Court raising four claims. In the first claim, he alleges his arrest constituted a violation of his rights under the Fourth Amendment. On May 3, 2004, however, Bates petitioned this Court for leave to dismiss the first claim, which we now grant. (See Reply Brief for Pet'r, at 1.) In the remaining claims, Bates alleges: (1) a violation of his Fifth Amendment rights as his confession should have been suppressed because he was interrogated without benefit of a parent, guardian, or lawyer present; (2) ineffective assistance of counsel because his trial counsel allegedly coerced him not to testify at trial; (3) ineffective assistance of appellate counsel on direct appeal because counsel did not raise the issue that his sentence was excessive.


  Federal courts may issue a writ of habeas corpus if a petitioner demonstrates that he is "in [state] custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Moffat v. Gilmore, 113 F.3d 698, 702 (7th Cir. 1997); see also Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1370 (7th Cir. 1994) (en banc) ("[F]ederal courts can grant habeas relief only when there is a violation of federal statutory or constitutional law."). The federal courts may not grant habeas relief under § 2254 unless the state court's judgment "(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).

  Before a federal court may review the merits of a habeas petition, a petitioner must: (1) exhaust all remedies available in state court; and (2) fairly present any federal claims in state court first, or risk procedural default. See Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001) ("Failure to exhaust available state court remedies constitutes a procedural default."); see also Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir. 1996). "The habeas petitioner must present his federal constitutional claims initially to the state courts in order to give the state `the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'" McGowan v. Miller, 109 F.3d 1168, 1172 (7th Cir. 1997) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). A petitioner may exhaust his state court remedies "by either (a) providing the highest court in the state a fair opportunity to consider the constitutional issue, or (b) having no further available means for pursuing a review of one's conviction in state court." Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir. ...

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