The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before this Court on motion of Respondent Terry McCann, Warden of Stateville Correctional Center, to dismiss Petitioner Willie Bishop's petition for writ of habeas corpus. For the following reasons, Bishop's petition is dismissed without prejudice.
Following a 2001 jury trial in the Circuit Court of Cook County, Bishop was convicted, along with his co-defendant, of first-degree murder and was sentenced to forty years in prison. His conviction was affirmed by the Illinois Appellate Court, and the Illinois Supreme Court denied his petition for leave to appeal ("PLA") on September 29, 2006. Bishop petitioned for a writ of certiorari from the United States Supreme Court on December 9, 2006, which was denied on February 21, 2006. He filed a pro se petition for post-conviction review in the Circuit Court of Cook County on March 20, 2006. This petition is still pending in the circuit court; counsel has been appointed for Bishop but apparently has not yet filed an amended petition for post-conviction review. On February 20, 2007, Bishop, through counsel, filed the instant petition in this Court. Shortly thereafter, McCann moved to dismiss, arguing that Bishop has failed to exhaust his claims in the state courts and requesting that we dismiss Bishop's petition without prejudice.
District courts are empowered by 28 U.S.C. § 2254 to entertain writs of habeas corpus on behalf of state prisoners on the ground that they are imprisoned in violation of the Constitution, laws, or treaties of the United States. A federal court may only entertain such a writ once a prisoner has exhausted his challenges to his conviction in the state courts. § 2254(b)(1)(A). Exhaustion has not occurred so long as an applicant has "the right under the law of the State to raise, by any available procedure, the question presented." § 2254(c).
The requirement of exhaustion, designed to further comity between the state and federal courts, ensures that the state courts have a full and fair opportunity to examine and decide the constitutional issues before federal courts intervene. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). A full opportunity to review the constitutional issues means that the prisoner must raise the issues both in his appeal in the appellate court and then in his petition for leave to appeal to the Illinois Supreme Court. Id. at 845-46. A fair opportunity to review the constitutional issues means that the issues must have been fairly presented to each state court in substantive and meaningful fashion such that the court is "alerted" to the federal nature of the claim. Baldwin v. Reese, 541 U.S. 27, 29 (2004).
In considering whether or not a prisoner has set forth the operative facts and legal theories sufficient to alert the state courts as to the nature of his constitutional claims, the Seventh Circuit examines: "1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; 3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and 4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation." Harrison v. McBride, 428 F.3d 652, 661 (7th Cir. 2005) (internal citations omitted).
With these legal principles in mind, we consider the instant motion.
McCann urges us to dismiss Bishop's petition without prejudice because Bishop has failed to fully present his constitutional claims to the state courts. In his petition before this Court, Bishop claims that he was denied due process and his right to a fair trial for the following reasons: the failure to sever his trial from that of his co-defendant or in the alternative, the constitutionally ineffective assistance of his counsel in not articulating all available reasons why severance should have been granted; the allegedly prejudicial and irrelevant admission of Bishop's tattoo; the admission of "other crimes" evidence concerning previous offenses committed by his co-defendant; the admission of allegedly prejudicial and irrelevant gang evidence; the allegedly improper restriction on the cross examination of the State's identification witness; and the use of jury instructions that allegedly mistated the law concerning the evaluation of eyewitness identification. Bishop has appealed his conviction through one complete round of state court review, so we need only examine whether or not he has fairly presented his constitutional claims to the state courts in order to determine whether or not he may proceed under § 2254 at this time.
I. Claims of Ineffective Assistance of Counsel, Admission of Gang Evidence, and Use of Improper Jury Instruction
We need not examine the intricacies of Bishop's arguments to the Illinois courts to conclude that he has failed to fairly present three of his claims: his claims of ineffective assistance of counsel, his claims concerning the admission of gang evidence, and his claims with respect to the use of the jury instruction concerning eyewitness evidence. These claims were either not presented at all to the Supreme Court of Illinois or were presented without any argument.
First, Bishop never raised his claim of ineffective assistance of counsel to the Illinois Supreme Court. Second, although Bishop does claim that his due process rights were violated by allegedly improper admission of gang evidence in his PLA, he never articulates the operative facts or legal theories underlying that claim; instead, his claim of denial of due process with respect to the introduction of gang evidence is made in a heading absent any argument. Third, Bishop does not even make the nature of his federal claim clear with respect to the jury instruction; instead, he merely states in a heading, absent argument, that the appellate court failed to adequately review the use of the jury instruction under the plain error standard. In his response to McCann's motion to dismiss, Bishop argues that he fairly presented all of his claims to the Illinois Supreme Court by the inclusion of a sentence at the beginning of the PLA, in which he stated that the result reached by the appellate court "creates multiple conflicts...with federal decisions" and a paragraph at the conclusion, in which he stated, "this Court should be aware that Petition is asserting ...