The opinion of the court was delivered by: Blanche M. Manning
Petitioner Cornell Morgan, through counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, Morgan's petition is denied.
Petitioner Cornell Morgan (prisoner #K75038) is currently incarcerated at the Dixon Correctional Center. Following a 2003 jury trial in the Circuit Court of Cook County, Morgan was convicted of attempted first-degree murder and aggravated battery with a firearm and sentenced to twenty-two years' imprisonment. Morgan appealed his conviction and sentence to the Appellate Court of Illinois, arguing that: (1) the trial court improperly failed to conduct a fitness hearing before trial; (2) his trial attorney's failure to request a fitness hearing constitutes ineffective assistance of counsel; (3) he was denied his right to a fair and impartial jury when the court failed to question jurors who might have overheard discussions about the case; (4) he was denied effective assistance of counsel when his trial attorney allowed two allegedly biased jurors to remain on the jury; and (5) he was not proven guilty beyond a reasonable doubt. See People v. Morgan, No. 1-05-0924 (1st Dist. Dec. 21, 2006) (unpublished order). On December 21, 2006, the state appellate court affirmed Morgan's conviction and sentence. See id.
Morgan filed a petition for leave to appeal ("PLA") with the Supreme Court of Illinois raising two issues relating to his fitness to be tried. Specifically, Morgan argued that: (1) he was denied due process when the trial court failed to conduct a full fitness hearing given his history of mental illness and the fact that his medication was changed shortly before his trial began; and (2) the trial court erred in finding that he was fit for trial based on a doctor's report prepared six months prior to trial that did not address his current mental condition. On March 28, 2007, the state supreme court denied Morgan's PLA. People v. Morgan, 223 Ill.2d 664 (2007).
Morgan did not file a petition for post-conviction relief pursuant to 725 ILCS 5/122-1, et seq. Instead, on November 2, 2007, he filed a federal petition for writ of habeas corpus raising two issues. First, Morgan asserts that he was denied his constitutional right to a meaningful hearing to determine his fitness for trial because "[t]he 'hearing' that was conducted on March 11, 2003, relied on stale information, failed to consider [his] rapidly deteriorating psychiatric condition, failed to account for his current suicidal and homicidal thoughts, and failed to evaluate the consequences of the change of his psychotropic medications." Petition at ¶ 34. Second, Morgan argues that his trial counsel was ineffective because he "had a constitutional duty to conduct some investigation of [his] fitness as of March 11, 2003, given the evolving circumstances and the well-documented history of longstanding psychiatric problems" but "[w]ithout conducting any investigation, defense counsel stipulated to outdated information and offered an opinion as to [his] current fitness." Id. at ¶ 35.
A. Ineffective Assistance of Counsel
Morgan raised his ineffective assistance of counsel claim before the Illinois Appellate Court as part of his direct appeal. However, he did not include this issue in his PLA. He also did not file a petition requesting state post-conviction relief, and hence did not present the issue in any state collateral proceedings.
The respondents contend that Morgan's failure to raise his ineffective assistance of counsel claim through one complete round of state review means that it is procedurally defaulted. Morgan acknowledges that he did not present his ineffective assistance claim to the Illinois Supreme Court. Nevertheless, he contends that no evidence shows that he was mentally fit enough to decide what issues to include in his PLA, so his procedural default should be excused.
It is well established that a petitioner must present his claims to the Illinois courts, up to and including the Illinois Supreme Court, to avoid procedural default. See O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). This means that claims presented to a federal court must first appear not only in the petitioner's PLA but also in his filings with the state trial court and intermediate appellate court. See Castille v. Peoples, 489 U.S. 346, 349 (1989) (failure to present claim to state intermediate court means that it is procedurally barred); Boerckel, 526 U.S. at 844 (failure to present claim tostate's highest court means that it is procedurally barred); Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007) ("In Illinois, . . . a petitioner must have directly appealed to the Illinois Appellate Court and presented the claim in a petition for leave to appeal to the Illinois Supreme Court"); Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004) ("Fair presentment in turn requires the petitioner to assert his federal claim through one complete round of state-court review, either on direct appeal of his conviction or in post-conviction proceedings . . . . This means that the petitioner must raise the issue at each and every level in the state court system, including levels at which review is discretionary rather than mandatory").
Morgan's ineffective assistance claim is defaulted because it did not appear in his PLA. Morgan does not attempt to show that either of the two exceptions to procedural default (cause and prejudice and a fundamental miscarriage of justice, both of which are discussed below) excuse his default. Instead, he contends that his mental condition means that he should be exempt from the normal exhaustion and procedural default rules. See Response at 12 ("But what sense does it make to require exhaustion and impose a procedural default on a person who is unfit? Petitioner's unfitness prevented him from making decisions necessary to protect and preserve his rights").
In support, Morgan directs the court's attention to Pate v. Robinson, 383 U.S. 375, 384 (1966). In Pate, the Supreme Court held that an incompetent defendant cannot "knowingly or intelligently 'waive' his right to have the court determine his capacity to stand trial." Id. According to Morgan, his mental illness prevented him from understanding or approving the decisions made by the attorney who represented him in connection with his PLA, so the Pate decision means that he cannot be held responsible for that attorney's decision to omit Morgan's ineffective assistance of trial counsel argument from his PLA.
Morgan's argument that mental illness exempts him from the normal procedural default rules is flatly incorrect. First, Pate stands for the proposition that the due process clause prohibits states from trying and convicting mentally incompetent defendants. See id. at 384-86. The decision does not address the procedural default issue presently before the court. Second, an argument that mental illness excuses a procedural default is in fact an effort to establish the "cause" prong of the cause and prejudice exception to procedural default. See Harris v. McAdory, 334 F.3d 665, 669 (7th Cir. 2003). It thus is not a means by which a petitioner can wholly absolve himself from the need to comply with state procedural rules to avoid procedural default.
The court thus rejects Morgan's claim that his mental illness means he is not subject to procedural default rules. Because he procedurally defaulted his ineffective assistance claim by failing to include that claim in his PLA, the court may reach the merits of that claim only if Morgan can establish both cause for his failure to follow a rule of state procedure and actual prejudice, or show that the default will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Cause exists where "some objective factor external to the defense impeded [the petitioner's] efforts to comply with the State's procedural rule." Strickler v. Greene, 527 U.S. 263, 282 (1999).
Unfortunately for Morgan, the Seventh Circuit has held that mental illness does not constitute cause for default because it is not an external impediment. Harris v. McAdory, 334 F.3d at 669 (collecting cases); see also Dowery v. Wilson, No. 3:06-CV-492 PS, 2007 WL 951930, at *1-2 (N.D. Ind. Mar. 28, 2007) (rejecting petitioner's attempt to use his "mental problems and conditions" to establish cause); Smith v. Wilson, No. 3:07-CV-152 RM, 2007 WL 1308836, at *1 (N.D. Ind. May 3, 2007) ("mental illness is not cause"). Morgan has not attempted to distinguish this precedent and, indeed, does not address it at all in his response.
In the interests of completeness, the court also notes that Morgan's argument about his mental capacity at the time he filed his PLA (as opposed to his mental condition years earlier when he was tried) is not supported by any specific evidence. Instead, Morgan's current counsel contends generally that Morgan was incompetent at the time of his trial and assumes, without discussion, that his condition remained static and was the same when he filed his PLA years later. Based on the present record, the court would thus have to speculate as to whether Morgan was capable of participating in his defense in a meaningful way at the time he filed his PLA. Accordingly, even if the court could consider Morgan's mental health as of the time he filed his PLA for the purposes of establishing cause and prejudice, Morgan would still not be entitled to relief. See id. at 669-70. For all of these reasons, Morgan has not established cause that excuses his procedural default.
The court will thus consider whether the second exception to procedural default -- the fundamental miscarriage of justice exception -- helps Morgan. "[T]his relief is limited to situations where the constitutional violation has probably resulted in a conviction of one who is actually innocent." Dellinger v. Bowen, 301 F.3d 758, 767 (7th Cir. 2002), citing Schlup v. Delo, 513 U.S. 298, 327 (1995). To show "actual innocence," a petitioner must present clear and convincing evidence that, but for the alleged error, no reasonable juror would have convicted him. Id. Morgan's petition, as well as the state court pleadings submitted to the court, do not contain any substantiated allegations of actual innocence. Thus, this exception does not apply.
In sum, Morgan procedurally defaulted his ineffective assistance claim, his alleged mental health issues do not exempt him from the procedural default rules, and no exception to procedural default applies. Thus, he is not entitled to relief under § 2254 with respect to his ineffective assistance claim.