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United States of America, Ex Rel. v. Marcus Hardy

January 11, 2011


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge


Petitioner Michael Stone ("Stone") has filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the petition is denied.


On the afternoon of September 12, 1999, the apartment at which Stone was living was burglarized. The burglars made off with money, jewelry, and a stash of marijuana. Stone's brother, Carter, believed that Friday Gardner ("Gardner") was involved in the burglary. Later that day, Carter, Stone, and Cortez Jones ("Jones") attempted to steal a radio from Gardner's van. Gardner caught them in the act, a confrontation ensued, and Gardner was shot and killed.

Witnesses gave police investigators conflicting information about the incident. Some witnesses stated that Carter and Jones had shot Gardner. Others identified Stone as the shooter. Some witnesses claimed that Gardner had pulled a gun before he was shot. Others said that Gardner appeared to have been unarmed.

Stone, Carter, and Jones were arrested in connection with Gardner's death. Stone and Carter were tried together. At the trial, Stone testified that he had shot Gardner, but he insisted that the shooting was in self-defense. Stone admitted that he never saw Gardner draw a gun during the incident. Nevertheless, Stone claimed that, based on Gardner's reputation as a bully and gang member, he shot Gardner in the belief that Gardner was planning to shoot him and Carter. Stone and Carter were convicted of first degree murder and sentenced to thirty years in prison.


Stone's habeas petition advances a disparate array of claims. First, he argues that the state trial court violated his right to a fair trial by (A) allowing the state to introduce prior statements by certain of Stone's witnesses that contradicted their testimony at trial; and (B) allowing the state to introduce evidence of unrelated criminal conduct (e.g., the marijuana stolen from Stone's apartment). Stone also contends (C) that the trial court denied his right to "fully present a defense" when it prohibited him from introducing evidence of prior consistent statements that he made to police concerning the incident. He further argues (D) that the prosecution erred by making a number of improper comments during the trial, and (E) that his thirty-year sentence was excessive. In addition, Stone maintains (F) that his trial counsel was constitutionally ineffective and (G) that his appellate counsel was constitutionally ineffective. Lastly, he contends (H) that the state failed to prove that he did not act in self-defense.*fn1

Of these claims, all but two -- claims (D) and (F) -- are procedurally defaulted. It is axiomatic that "[t]o avoid procedural default, a habeas petitioner must fully and fairly present his federal claims to the state courts." Anderson v. Benik, 471 F.3d 811, 814 (7th Cir. 2006) (quotation marks omitted). This requires a petitioner to raise his claims through one complete round of state court review. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999).

Claims (A), (B), (C), and (E) were not properly presented as federal claims for one full round of state court proceedings. To the extent that these claims were raised in the state court proceedings, they were framed purely in terms of Illinois law. While Stone makes an occasional, passing reference to a "fundamental right to a fair trial" in some of his state court filings, the Seventh Circuit has made clear that alluding to issues in such vague and perfunctory terms is not enough "to give the state courts a meaningful opportunity to pass upon the substance of the claims later presented in federal court." Harding v. Sternes, 380 F.3d 1034, 1047 (7th Cir. 2004). Grounds (G) and (H) are likewise procedurally defaulted. Although Stone raised both claims in his post-conviction appeal in the trial court, he failed to raise them in the appellate court or in his PLAs.

The fact that the foregoing claims are procedurally defaulted is not the end of the story. A petitioner may overcome a procedural default by showing cause for, and prejudice from, the default; a procedural default can also be overcome if the petitioner is able to show that a fundamental miscarriage of justice would result if the merits of his claims were not considered. See, e.g., Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004).

Stone makes only a half-hearted effort to avail himself of these doctrines. In his reply brief, for example, he cites his counsel's ineffectiveness as cause for his failure to adequately present claim (B) in the state court proceedings. "When a habeas petitioner seeks to excuse a procedural default through an ineffective-assistance claim, the 'cause' and 'prejudice' test from Wainwright is replaced by the similar test for ineffective assistance set out in Strickland v. Washington." Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008). Yet after raising the ineffective-assistance argument, Stone makes no effort to address Strickland's performance or prejudice prongs.

In a separately-filed motion for leave to amend his petition, Stone seeks to overcome his procedural default by invoking the "miscarriage of justice" exception. He raises a number of arguments in an effort to show his actual innocence of the murder charge. These, however, turn out to be essentially the same arguments as those previously advanced in his petition and reply brief. These come nowhere close to establishing his actual innocence.*fn2

Stone's two remaining claims -- (D) and (F) -- are partially defaulted. In claim (D), Stone asserts that his right to a fair trial was violated as a result of prosecutorial error. Specifically, he argues that the prosecution erred by: (1) misrepresenting the testimony of one of the witnesses; (2) making inflammatory remarks and improperly invoking the integrity of the State's Attorney's office in urging the jury to convict him; and (3) improperly commenting on his counsel's tactics and impermissibly shifting the burden of proof from the prosecution to the defense. He also claims (4) that ...

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