The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Now before the Court is Petitioner, Andrew Lamon's ("Lamon"), Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Petition [#7] is DENIED.
Following a jury trial in the Circuit Court for Peoria County, Illinois, Lamon was convicted of aggravated criminal sexual assault and unlawful possession of a controlled substance with intent to deliver. He was sentenced to an extended term of 30 years' imprisonment for the first conviction and 5 years' imprisonment on the second conviction, with the sentences to run concurrently.
Lamon appealed to the Illinois Appellate Court, arguing: (1) the evidence was insufficient to convict him of the aggravated criminal sexual assault; (2) the jurors' exposure to the newspaper article deprived him of an impartial jury; and (3) the prosecutor knowingly failed to correct false testimony by the victim. His convictions and sentences were affirmed on February 13, 2004. A Petition for Leave to Appeal ("PLA") to the Illinois Supreme Court raising the sufficiency of evidence claim and a claim that he was denied an impartial jury was denied on May 26, 2004.
On December 13, 2004, Lamon filed a post-conviction petition in the trial court, in which he raised two claims: (1) counsel was ineffective for failing to object to the presentation of false testimony by the victim, failing to interview or call witnesses to corroborate his testimony, failing to call Bertram Goodman ("Goodman") to testify that he did not pressure the victim to recant, and failing to properly present the claims raised in his motion for new trial; and (2) the prosecutor impeached him in bad faith by suggesting that he had asked Goodman to pressure the victim to recant without corroborating evidence. The petition was denied on May 11, 2005, and Lamon appealed to the Illinois Appellate Court, arguing that trial counsel was ineffective for failing to call Goodman to testify and the prosecutor improperly suggested that he had pressured the victim to recant without providing proof. The denial of the post-conviction petition was affirmed, and Lamon's PLA to the Illinois Supreme Court was denied on May 31, 2007.
During the pendency of his post-conviction proceedings. Lamon filed a Petition for Relief from Judgment in the trial court, contending that his conviction was void because the prosecutor committed fraud upon the Court by failing to correct false testimony by the victim or disclose a report of his investigator's interview with Goodman. The petition was dismissed as untimely on February 6, 2006, and subsequent petitions raising similar issues were denied as well.
On July 5, 2007, Lamon filed a successive post-conviction petition in the trial court in which he argued that he was actually innocent of aggravated criminal sexual assault, based on the prosecutor's presentation of perjured testimony by the investigator. This petition was denied on September 13, 2007, based on the conclusion that the investigator was merely a rebuttal witness, and as such, the attack on his testimony did not advance a claim of actual innocence. Lamon appealed, arguing that the trial court erred in declining to appoint counsel to represent him in his successive post-conviction petition. The Court of Appeals affirmed the denial of the successive petition, and the Illinois Supreme Court denied his PLA on May 28, 2009.
Lamon then filed the present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging: (1) he was denied a fair trial because two jurors were exposed to a newspaper article mid-trial; (2) the evidence was insufficient to convict him of the aggravated criminal sexual assault charge; (3) the prosecutor erred in failing to correct false testimony by the victim; (4) trial counsel was ineffective for failing to impeach the victim with evidence of her inconsistent explanations for her recantation; (5) trial counsel was ineffective for failing to call Goodman; (6) the prosecutor committed misconduct by suggesting that he had pressured the victim to recant without offering proof; (7) the prosecutor committed misconduct by failing to correct false testimony by the investigator; and (8) trial counsel was ineffective for failing to impeach the investigator. The petition is fully briefed, and 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). Respondent asserts that several of Lamon's claims have been procedurally defaulted.
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).
I. Juror Exposure to Newspaper Article
Lamon asserts that he is entitled to federal habeas corpus relief because he was denied a fair trial after two jurors read an article that appeared in the local newspaper following the first day of trial. This matter was addressed by the Court of Appeals on direct review. The Illinois Appellate Court found that not every incident of unauthorized information being considered by jurors results in prejudicial error. People v. Lamon, 346 Ill.App.3d 1082, 1092. Rather, to be actionable, a defendant must establish that: "(1) the newspaper article was prejudicial, (2) a juror was exposed to the prejudicial article, and (3) the juror's decision was influenced by the article." Id., citing People v. Malmenato, 14 Ill.2d 52 (Ill. 1958). In making this determination, the trial judge must consider the responses of the jurors on interrogation, as well as the nature of the publicity, its content, and it's potential for prejudice. Id., at 1092-93, citing People v. Barrow, 133 Ill.2d 226 (Ill. 1989).
The Court of Appeals found that while the trial court erred in not admonishing the jury to avoid such exposure and in reaching its ruling without even reading the article in question, Lamon failed to show that he was prejudiced, and the error was harmless. Id., at 1093. The trial court later found that the article contained only information that the jurors were already aware of through the evidence presented at trial and properly set forth the standard required to be convicted of aggravated sexual assault. Id. Accordingly, the Illinois Appellate Court determined that the article was not prejudical and that the jurors therefore remained impartial despite their exposure. Id.
While the trial court may have failed to follow state law procedure in considering the effect of the publicity, an error under state law that does not constitute an error under clearly established federal law does not form a basis for federal habeas corpus relief. Lamon has pointed to no Supreme Court precedent mandating a contrary result. In fact, Respondent correctly notes that in Mu'Min v. Virginia, 500 U.S. 415, 425-26 (1991), the Supreme Court rejected the suggestion that the U.S. Constitution compelled a trial court to go beyond a juror's assurances of impartiality after being exposed to pre-trial publicity to examine the content of the articles themselves.
Lamon next argues that the state courts erred in failing to apply the standard set forth in Sheppard v. Maxwell, 384 U.S. 333 (1966). In Sheppard, the Supreme Court noted that a new trial should be ordered where publicity during the proceedings threatens the fairness of the trial. Id., at 363. After finding that extensive pre-trial publicity had emphasized evidence and opinions that tended to incriminate the defendant and that ongoing publicity during the trial had revealed matters discussed outside the presence of the jury, the Supreme Court concluded that the defendant was entitled to a new trial as a result of the "inherently prejudicial publicity which saturated the community. . . ." Id.
Here, unlike the situation in Sheppard, there was no saturation of adverse pre-trial publicity or articles revealing matters discussed outside the presence of the jury. Nor would it appear that the article in question emphasized evidence that tended to incriminate Lamon. Rather, the trial court made a finding of fact that the article essentially reiterated testimony that the jury had heard in open court during the trial and accurately stated the prosecution's burden of proof that must be met in order to obtain a conviction. The trial court further found that both jurors were very credible and believable when they said that they were not prejudiced. These factual determinations are presumed to be correct in the absence of clear and convincing evidence to the contrary. ...