United States District Court, N.D. Illinois, Eastern Division
August 24, 2005.
UNITED STATES OF AMERICA ex rel. ANTONIO McDONALD,
CHARLES HINSLEY, Warden.
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 Antonio
McDonald for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. For the following reasons, we deny the petition for habeas
Petitioner Antonio McDonald was convicted on October 21, 1999
in the Circuit Court of Cook Country on one count of first degree
murder and two counts of armed robbery. The court sentenced
McDonald to consecutive sentences of 60 years imprisonment for
murder and 30 years imprisonment for armed robbery. McDonald
appealed his conviction to the Illinois Appellate Court arguing
that the trial court erred in sentencing him to consecutive
prison terms and that his sentence was excessive given the
circumstances and his rehabilitative potential. The Illinois
Appellate Court affirmed the conviction and term of McDonald's
sentences but modified the sentences to be served concurrently.
McDonald did not file a petition for leave to appeal these issues
to the Illinois Supreme Court.
McDonald then filed a pro se post-conviction relief petition
alleging that: (1) he was not proven guilty beyond a reasonable
doubt; (2) trial counsel provided ineffective assistance by
failing to file a motion to quash McDonald's arrest based on lack
of probable cause; (3) trial counsel provided ineffective assistance
for failing to file a motion to quash certain witness testimony
identifying McDonald as the murderer; and (4) appellate counsel
provided ineffective assistance for failure to argue on direct
appeal trial counsel's ineffective assistance. On November 16,
2001, the Circuit Court denied McDonald's petition, and he
appealed. On June 4, 2003, the Illinois Appellate Court affirmed
the Circuit Court's decision and denied McDonald's petition for
post-conviction relief. McDonald then filed a petition for leave
to appeal to the Illinois Supreme Court. On December 26, 2003,
the Illinois Supreme Court denied this petition.
On May 27, 2004, McDonald filed a petition for writ of habeas
corpus with this court asserting two claims based on ineffective
assistance of trial counsel and one claim for ineffective
assistance of appellate counsel.
Pursuant to the Antiterrorism Effective Death Penalty Act
("AEDPA"), a person in custody pursuant to "the judgment of a
State court," who believes he is being held in violation of the
Constitution, federal law, or treatise of the United States, may
seek relief by presenting his claims in a petition for writ of
habeas corpus. 28 U.S.C. § 2254(a). The federal courts may not
grant habeas relief under section 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 exhaust all remedies in state court
and 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). A petitioner exhausts 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. 1995).
In this case, exhaustion is not an issue. Respondent Charles
Hinsley concedes that McDonald 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
conviction. We now turn to the issue of procedural default.
I. Procedural Default of Ineffective Assistance of Trial
The procedural default hurdle forbids federal courts from
addressing claims that were not fairly presented to the state
court. See Jones v. Washington, 15 F.3d 671, 675 (7th Cir.
1994). Procedural default occurs when a petitioner fails to
present a claim to the state court at the time, and in the way,
required by the state. See Hogan v. McBride, 74 F.3d 144, 146
(7th Cir. 1996).
In this case, McDonald has procedurally defaulted his two
ineffective assistance of trial counsel claims because he failed
to comply with state procedural requirements. See People v.
McDonald, No. 1-02-0094 (2003), at 5-8. In Illinois, a
post-conviction relief petition is required to include
"affidavits, records, or other evidence supporting its
allegations or shall state why the same is not attached."
725 ILCS 5/122-2. In particular, an ineffectiveness claim involving
counsel's decision not to call a witness must be supported by an affidavit from the proposed witness detailing
what that witness's testimony would have been if called to
testify at trial. See People v. Enis, 194 Ill.2d 361, 380,
743 N.E.2d 1, 13 (2000).
In his first claim for ineffective assistance of trial counsel,
McDonald alleges that counsel should have filed a motion to quash
McDonald's arrest based on lack of probable cause. Specifically,
McDonald alleges that the testimony of a purported witness would
have shown that the police lacked probable cause to arrest
McDonald. However, McDonald, in presenting this claim to the
state courts, did not include any affidavits from this witness.
Furthermore, McDonald did not provide any explanation for his
failure to attach the necessary affidavits. Therefore, the state
courts rejected McDonald's first claim of ineffective assistance
of trial counsel because he failed to comply with Illinois
procedural requirements governing post-conviction relief. See
McDonald, No. 1-02-0094, at 5.
The state courts also rejected McDonald's second claim for
ineffective assistance of trial counsel on similar procedural
grounds. In his second allegation, McDonald alleges that counsel
was ineffective for failing to file a motion to quash certain
witness testimony identifying McDonald as the murderer. While
McDonald did attach police reports to support his petition, the
state courts did not consider this procedurally sufficient. See
McDonald, No. 1-02-0094, at 6. "Police reports are nonverbatim
accounts by officers of what other individuals have told them,
not sworn affidavits of the witnesses themselves, and thus are
not sufficient to support a claim of ineffective assistance of
counsel." Id. Furthermore, McDonald did not attach or cite any
other evidence that would warrant a review of his second allegation. Id. Thus, the state
courts rejected McDonald's second claim on procedural grounds.
Since McDonald failed to comply with Illinois procedural
requirements, this court is barred from reviewing his habeas
claims if the state courts rejected these same claims on state
grounds that are both independent of the federal issue presented
by the claims and "adequate to support the judgment." Franklin
v. Gilmore, 188 F.3d 877, 881 (7th Cir. 1999). Such state
grounds are adequate when they "rest upon firmly established and
regularly followed state practice." Id. at 882.
McDonald has alleged two claims for ineffective assistance of
trial counsel. However, the state courts refused to even examine
these claims because McDonald did not attach or cite sufficient
evidence. See McDonald, No. 1-02-0094, at 4-7. These procedural
requirements are independent of whether McDonald was denied
effective assistance of counsel. Furthermore, these procedural
requirements are adequate to support the state court judgment
because these requirements are codified and regularly enforced.
See 725 ILCS 5/122-2. "Illinois courts routinely dismiss claims
for post conviction relief that lack support in the record or
supporting affidavits for the proposition that the petitioner's
constitutional rights have been violated." Spreitzer v. Peters,
219 F.3d 639, 647 (7th Cir. 2000).
Since McDonald failed to survive procedural default, this court
may only consider the merits of his petition if he can show
adequate cause to excuse his failure to raise his claims in state
court and actual prejudice resulting from the default. See
Farrell v. Lane, 939 F.2d 409, 411 (7th Cir. 1991). However,
McDonald has not alleged any cause or prejudice for failing to
comply with Illinois procedural requirements. Furthermore, McDonald has not alleged that a "gross miscarriage of justice"
would result if this court declined to review his procedurally
defaulted claims. Therefore, this court rejects McDonald's two
ineffective assistance of trial counsel claims because we are
barred from reviewing claims that have been procedurally
II. Merits of Ineffective Assistance of Appellate Counsel
This court, however, will examine the merits of his third
allegation for ineffective assistance of appellate counsel
because the state courts adjudicated the merits of this claim.
McDonald alleges that his appellate counsel was ineffective
because on direct appeal he did not argue that McDonald's trial
counsel was ineffective for failing to file a motion to quash
McDonald's arrest and file a motion to suppress certain witness
testimony. Under the AEDPA, a federal court must deny habeas
relief unless the merits decision by the state reviewing court is
either "contrary to" or employs an "unreasonable application of"
United States Supreme Court precedent, or was premised on an
unreasonable determination of facts. 28 U.S.C. § 2254(d)(1)-(2).
A defendant who alleges ineffective assistance of appellate
counsel must show that the failure to raise a specific issue was
"objectively unreasonable" and that the counsel's decision
prejudiced the defendant. Strickland v. Washington,
466 U.S. 668, 687-88 (1984). "[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment." Id. at
690. Furthermore, appellate counsel is not required to address
every conceivable issue on appeal. See Howard v. Gramley,
225 F.3d 784, 791 (7th Cir. 2000).
First, this court finds that the Illinois Appellate Court
correctly cited the applicable standard from Strickland. See
McDonald, No. 1-02-0094, at 7 (citing Illinois Supreme Court precedence that correctly cites Strickland).
Second, this court finds that the Illinois Appellate Court
reasonably applied this standard. Appellate counsel has only
rendered ineffective assistance if he "fails to raise issues that
are (1) obvious, and (2) clearly stronger than the ones raised."
Kelly v. United States, 29 F.3d, 1107, 1122 (7th Cir. 1994).
McDonald's appellate counsel raised two issues on direct
appeal, and as a result, the Illinois Appellate Court effectively
reduced McDonald's sentence from 90 years imprisonment to 60
years imprisonment. McDonald, however, claims that his appellate
counsel also should have asserted a claim based on ineffective
assistance of trial counsel. McDonald claims, amongst other
things, that trial counsel provided ineffective assistance
because he should have filed a motion to quash McDonald's arrest
based on lack of probable cause. The trial court found that
McDonald committed murder and armed robbery after a dice game
between McDonald and the victim. However, McDonald claims that he
and the victim are members of opposing gangs and that it is
highly improbable that they would play dice together. Therefore,
McDonald alleges that the police lacked probable cause to arrest
him and his trial counsel should have filed a motion to quash the
Trial counsel is not required to investigate every evidentiary
possibility before choosing a defense. See Rutledge v. United
States, 230 F.3d 1041, 1050 (7th Cir. 2000). As the Illinois
Appellate Court correctly noted, "[a] review of the defendant's
allegations show that they involve the type of inconsistencies
that are ordinarily left to the trier of fact in assessing the
credibility of witnesses." McDonald, No. 1-02-0094, at 8. Thus,
appellate counsel's decision to not assert a claim for
ineffective assistance of trial counsel was not objectively unreasonable. In fact, McDonald's appellate
counsel appears quite competent as he successfully argued that
McDonald's prison sentence should be effectively reduced by 33
percent. Therefore, this court finds that the state court
reasonably applied federal law in determining that McDonald has
not sufficiently alleged ineffective assistance of appellate
Furthermore, McDonald does not establish how the state court's
determination was based on an unreasonable determination of facts
given the record evidence. A petitioner contesting findings of
fact bears the burden of rebutting this presumption of
correctness with clear and convincing evidence. See
28 U.S.C. § 2254(e)(1). McDonald has simply not done this. Therefore, this
court rejects McDonald's third claim of ineffective assistance of
appellate counsel because the state courts correctly cited and
reasonably applied federal law as interpreted by the United
States Supreme Court.
For the foregoing reasons, McDonald's petition for writ of
habeas corpus is denied.
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