The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
This matter is before the Court on Petitioner Anthony Gay's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 12). A Response was filed on May 3, 2010 (Doc. 19). Petitioner did not file a Reply, however he did expand the record with an affidavit. (Doc. 22). For the following reasons, the Petition is DENIED.
On January 22, 2002, Petitioner was found guilty of the aggravated battery of a Correctional Officer at the Tamms Correctional Center in Tamms, Illinois. (Doc. 18 at 1). On February 27, 2002, Petitioner was sentenced to eight years in prison for this offense. (Doc. 12 at 1). On direct appeal, Petitioner argued only that the State had failed to prove him guilty beyond a reasonable doubt. (Doc. 12 at 2). His conviction was affirmed and Petitioner did not file a Petition for Leave to Appeal ("PLA") with the Illinois Supreme Court.
Subsequently, on May 31, 2005, Petitioner filed a pro se petition for post-conviction relief. (Doc. 19 at 2). After he was appointed counsel, Petitioner filed a supplemental petition on December 11, 2006. (Doc. 19 at 2). In his petitions for post-conviction relief, Petitioner alleged constitutional violations resulting from (1) the trial court's denial of his motion to interview potential witness Correctional Officer Tracey Nodine; (2) the trial court's decision to allow the People to impeach Petitioner with two of his prior felony convictions; (3) the trial court's denial of his request to call Jack Libby, who wrote a report on the event in question; (4) his sentencing-hearing attorney's failure to consult with him or seek mitigating evidence; (5) the trial court's denial of his motion for a continuance of the sentencing hearing to procure mitigating evidence; and (6) the ineffectiveness of his counsel on direct appeal for failing to raise claims (1)-(5) therein. (Doc. 19 at 2-3). The trial court dismissed Petitioner's original and supplemental post-conviction petitions. (Doc. 19 at 3).
On appeal, Petitioner's counsel sought to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987) because the appeal lacked any meritorious claim. (Doc. 19 at 3). The appellate court granted counsel's motion, and subsequently affirmed the dismissal of petitioner's post-conviction petitions. (Doc. 19 at 4). In deciding the appeal, the Illinois Appellate Court for the Fourth District held that, under Illinois law, issues that could have been raised by Petitioner on direct appeal but were not were deemed forfeited. (Doc. 20 Exh. A at 3). In Petitioner's case, this meant that all claims except for that of appellate counsel's ineffectiveness had been forfeited under Illinois law. (Doc. 20 Exh. A at 4).
With regards to Petitioner's claim for the ineffectiveness of his appellate counsel, the Fourth District found that, with regards to appellate counsel's failure to raise the claim that the trial court erred in not allowing Petitioner to interview Correctional Officer Nodine, Petitioner did not provide any evidence or affidavits relating what information Nodine may have added to his defense. (Doc. 20 Exh. A at 5). Under the Illinois Post-Conviction Hearing Act ("Act"), 725 ILCS 5/122-2, Petitioner was required to provide this information. Because he did not, he failed to show that the claim would have been successful on direct appeal and, consequently, that his appellate counsel was ineffective for not raising it. (Doc. 20 Exh. A at 5). Similarly, with regards to Petitioner's claim that his appellate counsel was ineffective for not arguing that Petitioner's counsel at sentencing was ineffective for failure to consult or uncover mitigating evidence, the Fourth District found that Petitioner again failed to provide any relevant evidence that his sentencing hearing counsel would have uncovered. This again meant that, under the Act, Petitioner's claim for ineffective assistance of sentencing-hearing counsel would not have been successful on direct appeal, and thus Petitioner's appellate counsel was not ineffective for failing to raise it. (Doc. 20 Exh. A at 9-10).
In his PLA to the Illinois Supreme Court, Petitioner raised only two claims: 1) a violation of due process based upon the trial court's denial of his motion to interview Correctional Officer Nodine; and 2) his sentencing attorney's failure to consult with him or seek mitigating evidence. (Doc. 19 at 6). On May 28, 2009, the Illinois Supreme Court denied Petitioner's PLA. (Doc. 19 at 6).
On September 22, 2009, Petitioner filed a Petition for Writ of Habeas Corpus in the United States District Court for the Southern District of Illinois. (Doc. 1). The case was transferred to this Court on November 29, 2009 (Doc. 6), and on November 16, 2009, Petitioner filed the instant Amended Petition for Writ of Habeas Corpus (Doc. 12). In his Amended Petition, which is identical in all material respects to his Original Petition, Petitioner raises only two claims: 1) a violation of due process based upon the trial court's denial of his motion to interview a material witness; and 2) ineffective assistance of counsel at sentencing based upon his sentencing attorney's failure to consult with him or seek mitigating evidence. (Doc. 12 at 6-7).
Before seeking relief in federal court, a petitioner must first fairly present his claims to the state courts. That is, "a prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This principle requires a petitioner to "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." Id. at 845. If a petitioner fails to raise his claims according to the state courts' procedural rules, he has not given them a full opportunity to resolve any constitutional issues. See Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir. 2009).
The procedural default doctrine provides that "federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds." Dretke v. Haley, 541 U.S. 386, 392-393 (2004). Further, "when a state refuses to adjudicate a petitioner's federal claims because they were not raised in accord with the state's procedural rules, that will normally qualify as an independent state ground for denying federal review." Woods, 589 F.3d at 373. As previously noted, in Illinois, "failure to raise a claim which could have been addressed on direct appeal... results in a bar to consideration of the claim's merits in a post-conviction proceeding." Sturgeon v. Chandler, 552 F.3d 604, 611 (7th Cir. 2009). Accordingly, if a petitioner fails to raise a claim on direct appeal, he is defaulted from raising it in a post-conviction proceeding. Further, he has procedurally defaulted his claim in federal court because he has not given the state courts a full opportunity to resolve his constitutional issues.
If Petitioner's claims are procedurally defaulted, they will be barred from federal review unless Petitioner demonstrates cause for the default and actual prejudice as a result. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Harris v. McAdory, 334 F.3d 665, 668 (7th Cir. 2003). To establish "cause," Petitioner must show that some objective external factor impeded him from pursuing his claim in state court. Murray v. Carrier, 477 U.S. 478, 488 (1986). For example, "a showing that the factual or legal basis for a claim was not reasonably available... or that 'some interference by officials'... made compliance impracticable." Id.
There is a narrow exception from the "cause and "prejudice" test if Petitioner "can demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually innocent of the underlying offense." Dretke v. Haley, 541 U.S. 386, 388 (2004). In order to show actual innocence, Petitioner must point to new evidence that makes it "more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 536 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Such evidence includes "documentary, biological (DNA), or other powerful evidence," Hayes v. Battaglia, 403 ...