United States District Court, N.D. Illinois, Eastern Division
September 30, 2005.
UNITED STATES OF AMERICA, ex rel. DAMASO MERAS, Petitioner,
BRADLEY J. ROBERT,[fn1] Warden, Centralia Correctional Center, Respondent.
The opinion of the court was delivered by: MARVIN ASPEN, District Judge
*fn1 Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure and Rule 2(a) of the Rules Governing Section 2254 Cases
in the United States District Court, this Court hereby
substitutes Warden Bradley J. Robert, in lieu of Warden Robert
Bensko, as Respondent in this case. Due to Petitioner's transfer
to the Centralia Correctional Center, Robert is now Petitioner's
custodian and is the proper party to be named as Respondent.
MEMORANDUM OPINION AND ORDER
Damaso Meras petitions this Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, alleging that he received
ineffective assistance of trial and appellate counsel in
violation of his rights under the United States Constitution.
Respondent Bradley J. Robert, Warden of the Centralia
Correctional Center (the "State") responded on July 25, 2005,
contending that each of Meras's claims is either procedurally
defaulted or without merit. For the reasons set forth below, we
deny Meras's Petition. BACKGROUND*fn2
On February 16, 1994, following a bench trial in the Circuit
Court of Cook County, Petitioner Damaso Meras was convicted of
the June 12, 1990 beating death of Julian Sotelo and sentenced to
45 years in prison for first-degree murder. At trial, the State
presented several witnesses, who testified that they saw Meras
arguing with the victim minutes before the fatal attack. Meras
did not offer evidence in his defense and did not testify at the
Meras appealed his conviction to the Appellate Court of
Illinois on several grounds, including that his defense counsel
was ineffective because counsel (1) failed to adequately
cross-examine two witnesses; (2) was ill-prepared to oppose
introduction of a hearsay statement admitted under the excited
utterance exception; (3) failed to argue for a second-degree
murder conviction; and (4) included a new theory in a post-trial
motion that had not been developed at trial.*fn3 After
briefly examining each of Meras's claims, the appellate court
affirmed the conviction.
On November 25, 1996, Meras filed a petition for leave to
appeal with the Illinois Supreme Court arguing that the trial
court erred in admitting alleged hearsay testimony, in which the
victim identified Meras as an attacker. Meras's petition for
leave to appeal did not include any other arguments previously
raised to the appellate court, including the ineffective
assistance of counsel claim. On January 29, 1997, the Illinois
Supreme Court denied Meras's petition.
Meras next sought collateral review pursuant to the Illinois
Post-Conviction Hearing Act. See 725 ILCS 5/122-1 et seq. On April 25, 1997, Meras filed a
handwritten pro se Petition for Post-Conviction Relief in the
Circuit Court of Cook County. In this post-conviction petition,
he alleged that he received ineffective assistance of counsel
where trial counsel: (1) failed to sufficiently impeach two
witnesses; (2) failed to contact two defense witnesses Meras
identified prior to trial; and (3) refused to allow Meras to
testify at trial. Meras also alleged that appellate counsel was
ineffective because, despite his insistence, she neglected to
raise these same issues on direct appeal. In support of his
petition, Meras attached affidavits from the two purported
defense witnesses, Evanelina Nuñez (his cousin) and Nilda
Gonzalez (a bar owner), both of whom allegedly would have
testified that he was with them at Gonzalez's tavern at the time
of the murder. Meras submitted his own affidavit describing the
information he provided to his trial and appellate counsels about
the potential witnesses and his desire to testify at
trial.*fn4 With its motion to dismiss Meras's Petition for
Post-Conviction Relief, the State submitted an affidavit from
Michael Unger, Meras's trial counsel. In his affidavit, Unger
stated that he advised Meras of his right to testify before and
during trial. Unger further swore that "[a]fter being informed
that he could have been cross-examined that he fled to Mexico and
could have been impeached by his prior three convictions, the
petitioner and I agreed that it was not advisable for him to
testify." (Resp.'s Ans., Ex. F, Unger Aff. ¶ 2.)
On March 29, 2001, the circuit court heard argument on Meras's
ineffective assistance claims relating to the two potential
witnesses and the denial of his right to testify. The court
ultimately rejected the argument that trial counsel had
prohibited Meras from testifying but granted a hearing limited to his claim of ineffective assistance
of counsel based on the failure to call defense witnesses. At the
October 3, 2001 evidentiary hearing, Meras's aunt the only
defense witness presented testified that she saw two
unidentified young men leave the scene of the murder on a
bicycle. Neither Nuñez, nor Gonzalez, testified at the hearing
to develop Meras's alleged alibi. At the close of the hearing,
the court denied Meras's remaining claims.
On December 11, 2003, Meras appealed the circuit court's order,
alleging that the court erred in dismissing his claim regarding
his fundamental right to testify without an evidentiary hearing.
In a written opinion dated August 10, 2004, the appellate court
affirmed the lower court's dismissal. Shortly thereafter, Meras
filed a Petition for Leave to Appeal with the Illinois Supreme
Court. Meras asserted that the appellate court misapprehended its
role by engaging in a factual analysis of his ineffective
assistance of counsel claim, rather than evaluating whether he
made a substantial showing that the circuit court violated his
rights by denying him an evidentiary hearing. The supreme court
denied the Petition for Leave to Appeal on November 24, 2004.
On March 3, 2005, Meras filed this Petition for a writ of
habeas corpus. Meras claims that he was denied effective
assistance of trial counsel because his attorney refused to allow
him to testify and failed to contact and produce known defense
witnesses. Meras also contends that his appellate counsel failed
to present these constitutional violations on appeal.*fn5 DISCUSSION
A. Procedural Prerequisites
Before we may review the merits of his habeas Petition, Meras
must both: "(1) exhaust all remedies available in state courts;
and (2) fairly present any federal claims in state court first,
or risk procedural default." Bocian v. Godinez, 101 F.3d 465,
468 (7th Cir. 1996) (citations omitted); see also
28 U.S.C. § 2254(c) ; Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir. 1998);
Momient-El v. DeTella, 118 F.3d 535, 538 (7th Cir. 1997). These
requirements ensure that Illinois will have the first chance to
review and correct any alleged violations of its prisoners'
federal constitutional rights. See Perruquet v. Briley,
390 F.3d 505, 513 (7th Cir. 2004); McGowan v. Miller,
109 F.3d 1168, 1172 (7th Cir. 1997).
Meras will be deemed to have exhausted his state court remedies
if he has given the highest court in the state "a fair
opportunity to consider the constitutional issue" presented, or
if he has "no further available means for pursuing review of his
conviction in state court." Wallace v. Duckworth,
778 F.2d 1215, 1219 (7th Cir. 1985); see 28 U.S.C. § 2254(b)(1)(A).
"Where state remedies remain available to a habeas petitioner who
has not fairly presented his claim to the state courts, the
exhaustion doctrine precludes a federal court from granting him
relief on that claim." Perruquet, 390 F.3d at 514. As the
United States Supreme Court held in O'Sullivan v. Boerckel,
petitioners convicted under Illinois law generally must present
their claims to both an intermediate appellate court and to the
Illinois Supreme Court. 526 U.S. 838, 843-846 (1999). The parties
apparently agree that no avenues remain open for Meras to present
his claims, and we similarly conclude that he has exhausted his state court
Like the exhaustion doctrine, the procedural default doctrine
"is grounded in principles of comity, federalism, and judicial
efficiency." Perruquet, 390 F.3d at 514. Procedural default
occurs when a petitioner fails to fairly present a federal
constitutional issue to the state courts on direct or
post-conviction review, or when a state court rejects a claim on
an independent and adequate state law ground. Id.; see Coleman
v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546 (1991). In other
words, and as relevant here, "a habeas petitioner who has
exhausted his state court remedies without properly asserting his
federal claim at each level of state court review has
procedurally defaulted that claim." Lewis v. Sternes,
390 F.3d 1019, 1026 (7th Cir. 2004). To fairly present a constitutional
claim to the state courts, a petitioner must articulate both the
operative facts and controlling legal principles supporting his
claim. Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509
(1971); see Perruquet, 390 F.3d at 519. In short, Meras must
demonstrate that the questions presented here are the same
questions posed earlier to the Illinois courts. See Boyko v.
Parke, 259 F.3d 781, 789 (7th Cir. 2001); Hampton v. Liebach,
290 F. Supp. 2d 905, 918 (N.D. Ill. 2001).
Turning to Meras's allegation that trial counsel was
ineffective by denying him the right to testify, we conclude that
this claim is properly before us.*fn6 Meras apparently did
not present this argument on direct appeal to the Illinois state courts.
Nonetheless, he included it in his Petition for Post-Conviction
Relief, describing the factual predicate to this claim and citing
to appropriate authorities, including the seminal case governing
claims of ineffective assistance of counsel, Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Further, Meras
pressed this issue throughout the appellate proceedings. This
particular argument is the basis of his appeal from dismissal of
the post-conviction petition and the resulting Petition for Leave
to Appeal.*fn7 In affirming the circuit court's dismissal,
the appellate court explicitly addressed Meras's allegation that
counsel prohibited him from testifying, and engaged in the
Strickland analysis. Because Meras afforded the Illinois courts
a meaningful opportunity to hear this constitutional complaint,
we may consider its merits in evaluating his Petition. With respect to his ineffective assistance claim based on
appellate counsel's alleged faults, we hold that Meras did not
fairly present this claim to the Illinois courts. Because Meras's
appellate counsel also represented him when seeking leave to
appeal his conviction to the Illinois Supreme Court, he
understandably did not raise this claim during those proceedings.
Meras initially raised this argument in his Petition for
Post-Conviction Relief. Meras, however, omitted this claim from
the appeal of the dismissal of his post-conviction petition. Nor
did he include this particular claim in his Petition for Leave to
Appeal filed with the Illinois Supreme Court. This "failure to
appeal the dismissal of an issue raised in a post-conviction
petition in Illinois state court" constitutes procedural default
and bars further review by this Court. Boerckel,
526 U.S. at 839.
Meras similarly failed to pursue the claim that his trial
counsel neglected to contact Nuñez and Gonzalez as defense
witnesses. Though he identified several of counsel's alleged
mistakes in his direct appeal, this error was not among them.
Moreover, while Meras included this claim in his Petition for
Post-Conviction Relief, he did not advance it in the subsequent
appeals to the Illinois Appellate and Supreme Courts.
Accordingly, Meras procedurally defaulted this claim.*fn8
Procedural default may be excused if a petitioner demonstrates
"cause for the default and actual prejudice as a result of the
alleged violation of federal law, or . . . that failure to
consider the claims will result in a fundamental miscarriage of
justice." Coleman, 501 U.S. at 750. As to the "cause-and-prejudice" exception, ineffective assistance of
counsel may constitute a "cause" for procedural default, if the
petitioner also presented the state courts with an independent
claim of that ineffective assistance. See Edwards v.
Carpenter, 529 U.S. 446, 451-453, 120 S.Ct. 1587 (2000) ;
Murray v. Carrier, 477 U.S. 478, 488-489, 106 S.Ct. 2639 (1986).
In establishing "prejudice," a habeas petitioner must show "not
merely that the errors at his 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." United States v. Frady,
456 U.S. 152, 170, 102 S.Ct. 1584 (1982); see also Perruquet,
390 F.3d at 515. The "fundamental miscarriage of justice" exception is
"narrow" and limited to "extraordinary" cases where the
petitioner is actually innocent, and not merely legally innocent,
of the crime of conviction. Steward v. Gilmore, 80 F.3d 1205,
1212 (7th Cir. 1996); Lemons v. O'Sullivan, 54 F.3d 357, 361 n.
3 (7th Cir. 1995) (citing Carrier, 477 U.S. at 496). "To prove
actual innocence the petitioner must come forward with `new
reliable evidence whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence that was not presented at trial.'" Raygoza,
361 F. Supp. 2d at 788 (quoting Schlup v. Delo, 513 U.S. 298, 324,
115 S.Ct. 851 (1995)). In addition, the petitioner must prove that it
is more likely than not that "no reasonable juror would have
convicted him in light of the new evidence." Schlup,
513 U.S. at 327; see also Hayes v. Battaglia, 403 F.3d 935, 938 (7th
Cir. 2005) ("To demonstrate innocence so convincingly that no
reasonable jury could convict, a prisoner must have documentary,
biological (DNA), or other powerful evidence: perhaps some
non-relative who placed him out of the city, with credit card
slips, photographs, and phone logs to back up the claim.").
Meras does not contend that either of these exceptions applies,
nor does the Court believe that either could excuse his default. Meras's Petition identifies
no external cause for, or prejudice resulting from, his failure
to appeal the two defaulted claims to the Illinois Supreme Court.
Even if he had identified any particular prejudice, he could not
use the alleged ineffective assistance of appellate counsel as
cause to excuse the default of his claim challenging trial
counsel's failure to call witnesses, because the claim as to
appellate counsel is itself defaulted. See Edwards,
529 U.S. at 451-453. While Meras does not articulate the "fundamental
miscarriage of justice" exception, we observe that he claims to
be actually innocent. (Pet. at 2.) Nonetheless, he offers no new
evidence at this stage to support this assertion. The little
evidence he presented to the Illinois courts supporting his
innocence affidavits from family members and one tavern owner
hardly amounts to "powerful evidence" sufficient to prove that no
reasonable juror could have convicted him. See Hayes,
403 F.3d at 938. Because Meras has not offered such convincing evidence,
he cannot avail himself of this exception. Dellinger v. Bowen,
301 F.3d 758, 767 (7th Cir. 2002) (citing Schlup
513 U.S. at 327).
B. Ineffective Assistance of Trial Counsel: Failure to Allow
Meras to Testify
Under the Antiterrorism and Effective Death Penalty Act, this
Court may grant Meras's request for habeas relief with respect to
any claim decided on the merits by the state court only if the
court's decision "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States." See
28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 404-405,
120 S.Ct. 1495 (2000). A state court's decision is "contrary to"
clearly established Supreme Court precedent "if the state court
arrives at a conclusion opposite to that reached by [the Supreme]
Court on a question of law" or "if the state court confronts
facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at a result opposite to [it]."
Williams, 529 U.S. at 405.
A state court's decision is an "unreasonable application" of
clearly established Supreme Court precedent "if the state court
identifies the correct governing legal rule from this Court's
cases but unreasonably applies it to the facts of a particular
prisoner's case" or "if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply."
Id. at 407. A state court's application of Supreme Court
precedent must be more than incorrect or erroneous, it must be
"objectively" unreasonable. Id. at 410 ("An unreasonable
application of federal law is different from an incorrect
application.") (emphasis in original); see Yarborough v.
Gentry, 540 U.S. 1, 5, 124 S.Ct. 1 (2003) (same). For a state
court decision to be considered unreasonable under this standard,
it must lie "well outside the boundaries of permissible
differences of opinion." Hardaway v. Young, 302 F.3d 757, 762
(7th Cir. 2002); see also Henderson v. Briley, 354 F.3d 907,
909 (7th Cir. 2004) (The "question before a federal court on
collateral review . . . is only whether the state court's
decision was so far out-of-bounds as to be `unreasonable.'").
Thus, the question raised by Meras is whether the Illinois
appellate court unreasonably applied the principles set forth in
Strickland v. Washington in dismissing his claim that trial
counsel was ineffective, in violation of his Sixth Amendment
rights, by forbidding him from testifying.*fn9 Strickland,
466 U.S. 668. To obtain relief based on an ineffective assistance
of counsel claim, a petitioner must show that: (1) counsel's
performance fell below an objective standard of reasonableness;
and (2) the deficient performance prejudiced the defendant.
Strickland, 466 U.S. at 687-88. Under the "performance prong,"
a petitioner must demonstrate that, in light of all the
circumstances, counsel's acts or omissions fell "outside the wide
range of professionally competent assistance." United States v.
Trevino, 60 F.3d 333, 338 (7th Cir. 1995). This standard is
"highly deferential to counsel, presuming reasonable judgment and
declining to second guess strategic choices." United States v.
Williams, 106 F.3d 1362, 1367 (7th Cir. 1997). To satisfy the
"prejudice prong," a "defendant must show that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. Indeed:
[if] a state court decision on a prisoner's
ineffective-assistance claim correctly identifies
Strickland as the controlling legal authority and,
applying that framework, rejects the prisoner's claim
. . . [,] the state-court decision would be in accord
with our decision in Strickland as to the legal
prerequisites for establishing an
ineffective-assistance claim, even assuming the
federal court considering the prisoner's habeas
application might reach a different result applying
the Strickland framework itself.
Williams, 529 U.S. at 406.
Here, as he did before the Illinois appellate court, Meras
asserts that his trial counsel refused to permit him to take the
stand in his own defense. In its August 10, 2004 opinion, the
appellate court considered the evidence presented to the circuit
court on this issue, including the "dueling" affidavits submitted
by Meras and his trial counsel. The appellate court cited
Strickland and utilized its two-prong test, ultimately
concluding that Meras failed to satisfy the prejudice
requirement. The court found that Meras could not show any
prejudice in light of the other evidence offered at trial placing
him at the scene of the murder.
We hold that the Illinois appellate court's determination was
not an unreasonable application of Strickland. First, Meras failed to show that his
trial counsel's performance was objectively unreasonable. His
self-serving affidavit is insufficient to demonstrate that trial
counsel refused to allow him to testify. Underwood v. Clark,
939 F.3d 473, 475-476 (7th Cir. 1991) (holding that "in a
subsequent collateral attack on the conviction the defendant must
produce something more than a bare, unsubstantiated, thoroughly
self-serving, and none too plausible statement that his lawyer
(in violation of professional standards) forbade him to take the
stand"). Meras's affidavit is particularly suspect given his
trial counsel's contradictory affidavit, in which Unger stated
that he advised Meras of his right to testify. Unger further
stated that he and Meras agreed that Meras would not testify
because he could face impeachment on his prior convictions and
flight to Mexico. We cannot find that Unger was ineffective for
advising Meras, as a matter of strategy, not to testify under
such circumstances. See Rodriguez v. United States,
286 F.3d 972, 983-984 (7th Cir. 2002). Even if, as Meras claims, Unger's
reason for encouraging him not to testify was that the State had
insufficient evidence to convict him, such a decision also falls
within the bounds of reasonable representation. See Rogers-Bey
v. Lane, 896 F.2d 279, 283 (7th Cir. 1990), abrogation on other
grounds recognized by Willis v. Aiken, 8 F.3d 556, 563 (7th Cir.
Second, and as explicitly held by the appellate court, Meras
did not demonstrate that the outcome of his trial would have been
different had counsel permitted him to testify. The State
presented several witnesses placing Meras at the very spot where
Sotelo was beaten, and arguing with him minutes before the attack
took place. In addition, the State introduced the victim's
statement that Meras was one of his attackers. Meras presumably
would have testified that he was not at the scene of the crime.
Without more, however, Meras has failed to prove that any prejudice resulted from counsel's alleged refusal to call him to
testify. Accordingly, Meras is not entitled to habeas relief.
For the foregoing reasons, Meras's Petition for a writ of
habeas corpus is denied. It is so ordered.
© 1992-2005 VersusLaw Inc.