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, ...