The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Following a bench trial in the Circuit Court of Cook County, petitioner Denise Payne was convicted of first degree murder. After pursuing an unsuccessful direct appeal, petitioner filed a petition for relief pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq., which was dismissed as being frivolous and patently without merit. On December 20, 2002, the Illinois Appellate Court affirmed. People v. Payne, No. 1-00-4120 (unpub. order under Supreme Court Rule 23), 336 Ill.App.3d 154 (1st Dist. 2002). The Illinois Supreme Court denied petitioner's petition for leave to appeal. People v. Payne, No. 95700. On October 6, 2003, the United States Supreme Court denied petitioner's petition for writ of certiorari.
On April 5, 2004, petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises four issues: (1) the trial court erred in summarily dismissing her post-conviction petition since it presented the "gist" of a meritorious claim that trial counsel was ineffective for failing to present available evidence in support of her challenge to her confession; (2) her appellate counsel was ineffective on direct appeal for failing to argue that her sentence was excessive; (3) her sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000); and (4) Public Act 83-942 violates the single subject clause of the Illinois Constitution.
In respondent's answer to petitioner's petition for writ of habeas corpus, respondent concedes that petitioner has exhausted her state court remedies because the time for filing state court proceedings has expired, but argues that petitioner's claims are procedurally defaulted or otherwise not cognizable on federal habeas review. On July 9, 2004, the court entered a minute order directing petitioner to filed her response to respondent's answer on or before September 2, 2004. Petitioner has failed to file a reply. For the reasons stated below, the petition is denied.
Petitioner's conviction arose from the beating death of her five-year-old stepson on February 21, 1995. Following closing arguments, the trial court found defendant guilty of first degree murder. The State sought the death penalty and petitioner waived a jury for both phases of the capital sentencing hearing. After a death penalty hearing, the trial court found petitioner eligible for the death penalty because the victim was under 12 years old and his death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty. The trial court declined to impose the death penalty because petitioner did not have a significant criminal background, petitioner was beaten by her mother as a child, and petitioner was "operating under a high degree of stress at the time of this bearing." Noting that "[t]his is perhaps one of the worst beating cases, if not the worst beating case I have ever observed," the trial court imposed an extended-term sentence*fn2 of 80 years in prison.
Before the court may entertain the merits of a habeas petition, it must first inquire whether petitioner has, (1) exhausted all available state remedies, and (2) raised all of her claims during the course of her state proceedings. Kurzawa v. Jordan,146 F.3d 435, 440 (7th Cir. 1998). If a petitioner fails to meet either of these requirements, the court may not reach the merits of her habeas claims. Id. Respondent concedes that petitioner has exhausted her available state remedies, but maintains that all four grounds of the instant petition are procedurally defaulted. The court agrees.
As the Supreme Court noted in O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process" to preserve a claim for habeas review. See also Hadley v. Holmes, 341 F.3d 661, 664 (7th Cir. 2003) (failure to take claim through "complete round" of appellate process resulted in procedural default). Federal courts may review defaulted claims if the petitioner shows cause for failure to raise them at the appropriate time and actual prejudice that resulted from such failure, or if a fundamental miscarriage of justice would result from the failure to address the defaulted claims. Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir. 1999).
I. Ineffective Assistance of Trial Counsel
Petitioner's first claim, which she raised in her pro se petition for post-conviction relief and her appeal before the Illinois Appellate Court from the dismissal of her post-conviction petition, is that her trial counsel was ineffective in not establishing that the circumstances of the police interrogation, her limited education, and her medical conditions induced her into confessing or otherwise prevented her from having the capacity to understand the meaning and effect of her confession. Respondent argues that this ground is procedurally defaulted because the Illinois Appellate Court found that petitioner failed to comply with a state procedural requirement that she provide evidentiary support for her post-conviction petition or an explanation why such support was not available.
Procedural default can occur when the state court declined to address a claim because the petitioner failed to comply with a state procedural requirement. Coleman v. Thompson, 501 U.S. 722, 729 (1991); Barksdale v. Lane, 957 F.2d 379, 382 (7th Cir. 1992). If the state court's decision on the procedural requirement rests on a state law ground that is independent of the federal question and adequate to support the judgment, the claim is procedurally defaulted. Coleman, 501 U.S. at 729. The Supreme Court in Harris v. Reed, 489 U.S. 255, 264 n.10 (1989), held that if the state court's decision rests on both a procedural default and a lack of merit, and the finding of default is clear, federal review is foreclosed.
In the instant case, the state court held that petitioner failed to comply with a state procedural requirement that the post-conviction petition be supported by attached affidavits, records, or other evidence, or the petitioner must offer an explanation for the absence of such documentation. Payne, 336 Ill.App.3d at 164. Petitioner did neither. The appellate court rejected petitioner's arguments that it would have been impossible for her to obtain an affidavit from her trial counsel admitting ineffectiveness and that the record sufficiently stated her claim of ineffectiveness. Id. at 165-166. Accordingly, the court held that petitioner was procedurally defaulted from raising this claim. The court also discussed the merits of petitioner's claim, and held that the record "actually refutes" petitioner's claim of ineffectiveness. Id. Although the court examined the merits of petitioner's ineffectiveness of trial counsel claim, its finding of procedural default was clear. Under the Supreme Court's decision in Harris, this finding precludes federal review. 489 U.S. at 264 n. 10.
Even if the finding of default was not clear, and this court was thus permitted to review petitioner's claim, the appellate court's alternative holding that petitioner had failed to establish that counsel was ineffective was not "contrary to" and did not employ an "unreasonable application of" United States Supreme Court precedent, and was not premised on an unreasonable determination of facts. 28 U.S.C. § 2254(d)(1-2); ...