The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM, OPINION AND ORDER
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 Feb. 24, 2000) (unpublished order); People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 June 4, 2003) (unpublished
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 Feb. 24, 2000) (unpublished order).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