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September 30, 2005.

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.


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 trial.

  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 remedies.

  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 ...

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