United States District Court, N.D. Illinois, Eastern Division
August 24, 2005.
UNITED STATES OF AMERICA ex rel. GERALD BATES, Petitioner
DONALD A. HULICK, Respondent.
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 Feb. 24, 2000) (unpublished order); People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 June 4, 2003) (unpublished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 Feb. 24, 2000) (unpublished order).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
Cir. 1985). In this case, exhaustion is not an issue. Petitioner
has exhausted his state court remedies for purposes of federal
habeas review because he has no further avenues in state court
through which to challenge his convictions. We turn now to the
issue of procedural default.
I. Procedural Default
The procedural default hurdle forbids federal courts from
addressing claims that were not fairly presented to the state
court. Jones v. Washington, 15 F.3d 671, 675 (7th Cir. 1994).
Procedural default occurs when the petitioner fails to present a
claim to the state court at the time, and in the way, required by
the state. Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996).
Illinois law provides for a two-tiered appellate review process,
including (1) the right to a direct appeal by the Illinois
Appellate Court and (2) the option of petitioning the Illinois
Supreme Court for leave to appeal the appellate court's ruling.
Ill. Sup. Ct. Rule 603; O'Sullivan v. Boerckel, 526 U.S. 838,
843 (1999) (discussing the Illinois appellate review process). To
preserve a claim for federal habeas review, the petitioner must
provide the state courts "one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process." Id. at 845. In
Illinois, one complete round is finished once a petitioner has
presented the habeas claims, whether on direct appeal or on
post-conviction appeal, at each stage of the appellate process,
up through and including the Illinois Supreme Court. See id. at
847-48; White v. Godinez, 192 F.3d 607, 608 (7th Cir. 1999). In this case, Bates has procedurally defaulted on all three of
the remaining claims in his habeas petition. In the first claim,
he argues his confession should have been suppressed because it
was given in the absence of a parent, attorney, or other
interested adult. He raised this claim on direct appeal to the
Illinois Appellate Court, which determined he had waived his
right to appellate review by not having raised this issue in his
post-trial motion. People v. Bates, No. 1-98-1968, at 6 (1st
Dist. Feb. 24, 2000) (unpublished order). Under Illinois law,
waiver is both an independent and adequate state court ground
upon which to deny a claim on appeal. Wright v. Walls,
288 F.3d 937, 944 (7th Cir. 2002). A state procedural default serves as an
impediment to habeas review. See Harris v. Reed, 489 U.S. 255,
263 (1989); Lee v. Davis, 328 F.3d 896, 899-900 (7th Cir.
2003). Therefore, Bates has procedurally defaulted on claim one.
In his second claim, Bates argues he was deprived of due
process because his trial counsel coerced him not to testify.
This claim is also procedurally defaulted because, while Bates
raised it in his post-conviction petition to the Illinois
Appellate Court, he failed to raise the issue to the Illinois
Supreme Court when he appealed the dismissal of his
post-conviction petition. As noted earlier, to preserve claims
for habeas review, a habeas petitioner is required to have raised
all of his claims to the Illinois Supreme Court. O'Sullivan,
526 U.S. at 843. Accordingly, Bates has procedurally defaulted on
Finally, in the third claim, Bates argues his appellate counsel
was ineffective on direct appeal for not arguing that
petitioner's sentence was excessive. He raised this claim when he
appealed the dismissal of his post-conviction petition to the
Illinois Appellate Court but failed to raise it in his initial
post-conviction petition with the Circuit Court of Cook County.
The Illinois Appellate Court thus determined that, by this
failure, petitioner had waived the issue. People v. Bates, No. 1-01-1436, at 6 (1st Dist. June 4, 2003)
(unpublished order) Additionally, Bates did not argue this claim
when he appealed the dismissal of his post-conviction petition to
the Illinois Supreme Court. (Rule 5 Exhibits, Ex. J.) The
Illinois courts were thus not afforded "one complete round" to
resolve these issues. O'Sullivan, 526 U.S. at 845. Therefore,
Bates' third claim is also procedurally defaulted.
A federal court may nonetheless address the merits of a
procedurally defaulted claim if the petitioner can establish
cause and prejudice that would excuse the default or,
alternatively, establish that the circumstances fit within the
miscarriage of justice exception to the cause and prejudice rule.
Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Wainwright
v. Sykes, 433 U.S. 72 (1977). Beginning with the cause and
prejudice standard, the Supreme Court has interpreted "cause"
under this test to be something external to the petitioner which
is both beyond his control and which cannot be fairly attributed
to him. Murray v. Carrier, 477 U.S. 478, 488 (1986). In order
to establish prejudice, the petitioner "must show not merely that
the errors at . . . trial created a possibility of prejudice, but
that they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions." Id. at 494.
Under the facts present in this case, Bates cannot avail
himself of the cause and prejudice exceptions. He has failed to
show any cause for his failure to raise his claims on appeal to
the Illinois Supreme Court, such as interference by officials or
the unavailability of the factual or legal basis of the claim.
Moreover, Bates has failed to establish prejudice because he has
not shown how the alleged errors were of constitutional
Although Bates has failed to establish cause and prejudice to
excuse his procedural default, he can still overcome this
forfeiture by showing that he fits within the "miscarriage of justice" exception. This exception is limited to those
extraordinary cases in which a petitioner is actually innocent of
the crime for which he is imprisoned. Bell v. Plerson,
267 F.3d 544, 551 (7th Cir. 2001). Therefore, it requires a colorable
claim of actual innocence, as opposed to legal innocence, coupled
with an allegation of a constitutional claim. See Sawyer v.
Whitley, 505 U.S. 333, 339-40 (1992). The miscarriage of justice
exception applies only if the petitioner can demonstrate that it
is more likely than not that no reasonable jury would have
convicted him in the absence of the alleged defect in the state
court proceedings. Schlup v. Delo, 513 U.S. 298, 327 (1995).
Having carefully reviewed the facts of his case, there is no
colorable claim of actual innocence to satisfy the miscarriage of
justice requirement. The evidence presented at trial established
that, in attempting to rob Gheewala, Bates and an accomplice
stabbed and beat her to death. The brutal murder took place while
the victim's three-year-old daughter waited in her nearby car.
Moreover, Bates confessed to the crime. The record in this case
establishes that there has been no miscarriage of justice.
Accordingly, Bates' claims are not saved by the miscarriage of
justice exception, and the claims in his habeas petition are
II. Merits of the Claims
Even though Bates' claims are procedurally defaulted, we
nonetheless address the merits of his claims as if they were not
Section 2254 governs the consideration of any claim adjudicated
by a state court on its merits. Under the statute, we may grant
habeas relief only if the state court's adjudication of the claim
"was contrary to, or involved an unreasonable application of,
clearly established Federal law as determined by the Supreme
Court of the United States." 28 U.S.C. § 2254(d)(1). Under subsection (d)(2), habeas relief is possible if the state court
adjudication "resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented" in the state court.
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court
attempted to clarify the applicable standard of review within the
meaning of § 2254. The Court noted that the statute does not
explicitly prescribe a recognizable standard of review for
applying either of the statutory clauses. Id. at 385.
Recognizing the need for further clarification and direction to
lower courts, the Court concluded that the "[the statute] plainly
sought to ensure a level of deference to the determinations of
state courts, as long as those decisions do not conflict with
federal law or apply federal law in an unreasonable way." Id.
at 376. Additionally, the Court determined that, in passing the
statute, "Congress wished to curb delays, to prevent retrials on
federal habeas petitions and to give effect to state convictions
to the extent possible under the law. When federal courts are
able to fulfill these goals within the bounds of the law, [the
statute] instructs them to do so." Id. Therefore, this Court is
directed to apply a deferential review of state court decisions
unless it determines that the state court violated federal law.
A. Suppression of Petitioner's Confession
In his habeas petition, Bates first alleges that his
inculpatory statements were given involuntarily and should have
been suppressed at trial. The Supreme Court has established that
the voluntariness of a confession, whether given by an adult or a
minor, is to be assessed in light of the "totality of the
circumstances" surrounding the confession. See Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973); Fare v. Michael C.,
442 U.S. 707, 725 (1979); Hardaway v. Young, 302 F.3d 757, 762 (7th
Cir. 2002) (reversing the district court grant of a writ of
habeas corpus because the Illinois state courts had considered the
totality of the circumstances and determined that a 14-year-old
petitioner's confession was given voluntarily, despite his age
and the absence of a "friendly adult"). When considering a
confession made by a minor, federal courts have determined that
the "totality of the circumstances" requires an examination of
the minor's age, experience, background, education, and
intelligence as well as the circumstances in which the confession
was given. See Fare, 442 U.S. at 725; Hardaway,
302 F.3d at 762. While great weight has been accorded to factors such as the
age of the minor and whether or not an interested adult was
present at the time the minor confessed, those elements of
circumstance are not necessarily dispositive in determining the
voluntariness of the confession. See Hardaway,
302 F.3d at 764-65. Rather, all relevant factors, including the manner in
which the minor was treated during the police interrogation, the
minor's understanding of his rights when he made his confession,
and his mental capacity must be considered. See Hardaway,
302 F.3d at 767-68. Once the state trial and appellate courts have
conclusively determined the voluntariness of a confession, a
federal court may upset the decision only by finding that the
determination was unreasonable. See Williams v. Taylor,
529 U.S. 362, 411 (2000); Hardaway 302 F.3d at 766-67.
In this case, Bates argues the police department delayed in
notifying his parents of his interrogation, and therefore,
because there was no interested adult present when he gave his
confession, the confession should have been suppressed at trial.
It is clear, however, that the state courts properly assessed the
"totality of the circumstances" surrounding Bates' confession.
The record reflects that Bates was given his Miranda rights
before he made his confession and understood these rights.
Additionally, there is no evidence that Bates was mistreated by
police interrogators. He was not handcuffed, photographed, or
fingerprinted, and was provided both food and drink. He also confessed within a half hour of his
arrival at the police station, suggesting there was no grueling,
prolonged period of interrogation. While we recognize that Bates
was merely fifteen when he confessed, this fact alone does not
make his confession involuntary. Thus, because the trial court
considered the totality of the circumstances when assessing the
voluntariness of Bates' confession, and its conclusion was
reasonable, we have no reason to upset the decision of the state
courts that Bates' confession was voluntary and properly admitted
B. Fifth Amendment Right to Testify
Bates alleges in his second claim for habeas relief that he was
denied his right to testify as a witness by his trial counsel. A
criminal defendant has a federal constitutional right to testify
on his own behalf under the Fifth Amendment's Due Process Clause.
Rock v. Arkansas, 483 U.S. 44, 49-53 (1987); Morgan v.
Krenke, 232 F.3d 562, 569 (7th Cir. 2000). For purposes of state
criminal proceedings, the right to testify arises out of the
Fourteenth Amendment's Due Process Clause. U.S. Const. Amend. XIV
("[n]o State shall . . . deprive any person of life, liberty, or
property, without due process of law."). The right to take the
stand on one's own behalf is personal to the defendant, which
means that it can only be waived by the defendant himself, and
not by his counsel. Jones v. Barnes, 463 U.S. 745, 751 (1983).
A defendant's direct answer to a trial court's colloquy
constitutes a knowing and intelligent waiver. See United States
v. Manjarrez, 258 F.3d 618, 623-24 (7th Cir. 2001) (citing Lee
v. Murphy, 41 F.3d 311, 315 (7th Cir. 1994)). Federal courts
have held, however, that when a defendant's attorney makes a
tactical decision not to have his client testify and the court
was not alerted by the defendant of his desire to testify, "[t]o
hold that a defendant may abide by his lawyer's advice and not take the stand and then invalidate the
trial because he so acted is not fair to the government." United
States v. Edwards, 897 F.2d 445, 446 (9th Cir. 1990).
In this case, Bates engaged in a colloquy with the trial judge
regarding his constitutional right to testify. The trial record
reveals the following:
THE COURT: Just one thing. Mr. Bates, your lawyer has
told me that you did not wish to testify in this
matter. It is your constitutional right. You have the
right to remain silent or you have the right to
testify in this matter. It is a decision that you and
you alone can make or are to make. You can do it upon
the advice of your attorney. Do you understand that?
MR. BATES: Yes.
THE COURT: Do you have any questions about that?
MR. BATES: No.
THE COURT: Do you wish to testify in this matter?
MR. BATES: No.
People v. Bates, No. 1-01-1436, at 2 (1st Dist. June 4, 2003)
The trial record thus reflects that Bates understood his
constitutional right to testify and confirmed his decision to not
testify at trial. Moreover, as noted in the opinion of the
Circuit Court of Cook County denying Bates' post-conviction
petition, even if trial counsel had advised Bates not to testify,
such advice was not improper. Trial counsel had seen Bates
testify during the earlier suppression hearing and could weigh
the advantages and disadvantages of testifying. (Rule 5 Exhibits,
Ex. E, People v. Bates, 93 CR 17330, at 2 (Mar. 13, 2001).)
Because Bates answered the trial court's colloquy with clear
intent to not testify on his behalf, and because his counsel was
not deficient in providing Bates advice in making this decision,
we deny his request for habeas relief on this claim. C. Failure to Raise Excessive Sentence Argument on Direct
In the third remaining claim, Bates argues his sentence of 58
years is excessive and that his appellate counsel should have
raised this issue on appeal. Federal courts have generally
declined to grant federal habeas relief of a sentence imposed by
a trial court as long as the sentence falls within the statutory
sentencing range. See United States ex rel. Ruvalcaba v.
Jaimet, No. 01 C 0200, 2004 WL 42463, at *17 (N.D. Ill. Jan. 6,
2004), citing Henry v. Page, 223 F.3d 477, 482 (7th Cir. 2000).
"[C]hallenges to sentences within statutory limits, in the
absence of evidence that the trial court lacked jurisdiction to
impose it or that the conviction itself was unconstitutional, are
simply not cognizable on habeas review." United States ex. rel.
King v. Chahill-Maching, 169 F. Supp. 2d 849, 855 (N.D.Ill.
2001), citing United States v. Addonizio, 442 U.S. 178, 186
A defendant convicted of first-degree murder in Illinois may be
sentenced to twenty to sixty years in prison.
730 ILCS 5/5-8-1(a)(1)(a). However, the trial court could sentence a
defendant beyond the maximum if it found him eligible for an
extended-term sentence under section 5-5-3.2. 730 ILCS 5/5-5-3.2
(West 2000). An extended term for first-degree murder has a
sentencing range of 60 to 100 years. 730 ILCS 5/5-8-2(a)(1) (West
2000). In this case, the record establishes that the trial court
considered both aggravating and mitigating factors, such as
Bates' age and rehabilitative potential and that he had no prior
convictions on his record. The trial court nonetheless handed
down a 58 year sentence due to the violent nature of the crime.
Because Bates' sentence falls well within the statutory range for
first-degree murder in Illinois, his claim of an excessive
sentence is not appropriate for federal habeas relief.
As for Bates' claim that his appellate counsel was ineffective
for failing to raise the issue of an excessive sentence on direct
appeal, counsel is ineffective only if his performance falls below the norms of the profession and causes prejudice. Page v.
United States, 884 F.2d 300, 302 (7th Cir. 1989), citing
Strickland v. Washington, 466 U.S. 668, 687 (1984). Prejudice
means a "reasonable probability that, but for counsel's
unprofessional errors, the result of the [appeal] would have been
different." Strickland, 466 U.S. at 687. In this case, Bates
has not argued that his appellate counsel failed to advocate his
cause skillfully on direct appeal. He argues, instead, that
counsel left out the issue of his allegedly excessive sentence.
The Supreme Court has held that appellate counsel need not raise
all possible claims of error. Jones v. Barnes, 463 U.S. 745,
754 (1983). "One of the principal functions of appellate counsel
is winnowing the potential claims so that the court may focus on
those with the best prospects. Defendants need dedicated,
skillful appellate counsel, not routineers who present every
non-frivolous claim." Page, 884 F.2d at 302.
Indeed, Bates believes now that his claim is non-frivolous and
we believe he is sincere in this belief. However, as the Illinois
Appellate Court noted in reviewing this claim of an excessive
sentence, Bates failed to raise the issue in his pro se
post-conviction petition in the Circuit Court of Cook County.
People v. Bates, No. 1-01-1436, at 6 (1st Dist. June 4, 2003)
(unpublished order). If the excessive sentence argument was
clearly a winning issue on appeal, Bates would have raised it
himself. Because Bates failed to raise the issue in his pro se
post-conviction petition, this Court cannot find his counsel
deficient for failing to raise an issue that even the petitioner
himself had overlooked. We cannot conclude, therefore, that his
appellate counsel was ineffective or that the result of his
direct appeal would have been any different had his counsel
raised the issue on direct appeal. Thus, we have no reason to
upset the decision of the state court and, accordingly, we deny
Bates' request for habeas relief. CONCLUSION
For all of the foregoing reasons, we deny Bates' § 2254
petition for a writ of habeas corpus [docket # 1-1]. It is so
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