The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Now before the Court is Petitioner, William Kehoe's ("Kehoe"), Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Petition [#1] is DENIED.
Following a bench trial in the Circuit Court of Livingston County, Illinois, Kehoe was found guilty of the predatory criminal sexual assault of his stepdaughter. On January 6, 2005, he was sentenced to six years' imprisonment. On appeal, the Illinois Appellate Court affirmed his conviction and sentence, and Kehoe's Petition for Leave to Appeal ("PLA") to the Illinois Supreme Court was denied.
On June 20, 2006, Kehoe filed a pro se post-conviction petition in the Livingston County Circuit Court in which he argued that his trial counsel was ineffective for failing to call alibi witnesses at trial. Following an evidentiary hearing, his petition was denied. On appeal, the Illinois Appellate Court found that the Circuit Court had not erred in concluding that Kehoe had failed to establish a reasonable probability that the result of his trial would have been different if his purported alibi evidence had been presented. As he failed to demonstrate prejudice, the denial of his post-conviction petition was affirmed. Kehoe's PLA to the Illinois Supreme Court was also denied.
Kehoe then filed the present Petition for Writ of Habeas Corpus pursuant to § 2254. In this Petition, he argues: (1) he received ineffective assistance of counsel when counsel failed to present his alibi defense, and (2) he was denied due process and the right to confront witnesses against him where the trial judge made conclusions regarding the credibility of Kehoe's stepdaughter based on his own personal notions of how child sexual abuse victims behave rather than on any expert testimony. This Order follows.
Before reaching the merits of a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, a district court must consider "whether the petitioner exhausted all available state remedies and whether the petitioner raised all his federal claims during the course of the state proceedings." Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991), quoting Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988). If the answer to either of these questions is "no," then the failure to exhaust state remedies or procedural default bars the petition. Id. In other words, if a petitioner fails to give the state courts a full and fair opportunity to review his claims, then his petition must fail. Bocian v. Godinez, 101 F.3d 465, 468-69 (7th Cir. 1996).
Exhaustion of a federal claim occurs when it has been presented to the highest state court for a ruling on the merits or when it could not be brought in state court because a remedy no longer exists when the federal petition is filed. Id. In the present case, Respondent does not argue that Petitioner has failed to exhaust his state remedies.
Procedural default occurs when a claim could have been but was not presented to the state court and cannot, at the time the federal petition is filed, be presented to the state court. Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992). This occurs in one of two ways. First, a procedural default may occur when a petitioner fails to pursue each appeal required by state law, Jenkins v. Gramley, 8 F.3d 505, 507-08 (7th Cir. 1993), or when he did not assert the claim raised in the federal habeas petition in the state court system. Resnover, 965 F.2d at 1458-59. The second way in which a petitioner may procedurally default a claim is when a state court disposes of the case on an independent and adequate state law ground, regardless of whether that ground is substantive or procedural. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2553-55 (1991).
Federal review is barred for claims that are procedurally defaulted unless the petitioner can demonstrate cause and prejudice. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 1572-73 (1982); Farrell, 939 F.2d at 411. Review in federal court is also possible if a fundamental miscarriage of justice would otherwise occur in that a constitutional error probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 864-67 (1995).
With respect to claims that are not barred either for failure to exhaust or procedural default, federal courts must employ a strict analysis. A petition must be denied with respect to any claim previously adjudicated on the merits in a state court unless the decision of the state court:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). See also Lindh v. Murphy, 96 F.3d 856, 868-71 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059 (1997).
Subsection (d)(1) instructs that Supreme Court precedent governs legal questions. Id. at 869. In resolving mixed questions of law and fact, relief is unavailable unless "the state's decision reflects an unreasonable application of the law," meaning federal courts are to have a hands-off attitude unless the state court judgment is premised on an unreasonable error. Id. at 870 (internal quotation marks omitted). A responsible, thoughtful decision that is made after a full opportunity to litigate suffices, "even if it is wrong." Id. at 871, 876-77. Subsection (d)(2) pertains to a decision constituting an unreasonable determination of the facts, and, according to 28 U.S.C. § 2254(e)(1), factual issues are presumed to be correctly resolved. A petitioner must rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
As set forth above, Kehoe presents two different claims for relief. Respondent does not argue that either of the claims has been procedurally defaulted. Accordingly, the state court ruling must be shown to have been either "contrary to" or an unreasonable application of the clearly established law of the United States Supreme Court, or premised on an unreasonable determination of the facts in order to warrant habeas relief.
I. Ineffective Assistance of Counsel
The seminal case on ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court stated that in order for a prisoner to demonstrate that counsel's performance fell below the constitutional standard, the petitioner would have to show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The courts, however, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 690. A prisoner must also prove that he has been prejudiced by his counsel's representation by showing "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Absent a sufficient showing of both cause and prejudice, a petitioner's claim must fail. United States v. Delgado, 936 F.2d 303, 311 (7th Cir. 1991).
Given the procedural posture of this case, the Court does not apply Strickland directly. Rather, in a § 2254 proceeding, habeas corpus relief is appropriate only if the state court's decision was contrary to or involved an unreasonable application of clearly established federal law or an unreasonable determination of the facts. "[T]o be unreasonable is more than to be incorrect in some absolute sense of the term. It means instead a conclusion 'lying well outside the boundaries of permissible ...