The opinion of the court was delivered by: Judge Ronald A. Guzman
MEMORANDUM OPINION AND ORDER
Christopher Neal has filed a petition pursuant to 28 U.S.C. § 2254 for writ of habeas corpus to vacate his state court murder convictions and life sentence. For the reasons set forth below, the Court denies the petition.
A habeas petitioner can pursue his claims in federal court only after raising them in "one complete round of state-court review." Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004); see 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."). "This means that the petitioner must raise [them] at each and every level in the state court system, including levels at which review is discretionary rather than mandatory." Lewis, 390 F.3d at 1025-26.
In his habeas petition, Neal argues that: (1) his conviction violates due process because there is not enough evidence to support it; (2) his trial counsel was ineffective for: (a) failing to call an alibi witness; (b) convincing Neal to waive his right to a jury trial; (c) failing to move to strike improper in-court identifications; (d) failing to present expert testimony on eyewitness identification; (e) abandoning a motion to quash Neal's arrest based on the denial of his right to counsel during the lineup; and (3) his appellate counsel was ineffective for failing to argue that: (a) trial counsel was ineffective for not moving to strike in-court identifications; (b) Neal's right to counsel was violated during the lineup; (c) Neal's sentence was unconstitutional; and (d) trial counsel was ineffective for abandoning the motion to quash Neal's arrest based on the denial of counsel during the lineup.
Neal did not raise: (1) claims 2b, 2c or 3a in his pro se or supplemental petitions for post-conviction relief (see Ex. F, Pro Se Pet. Post-Conviction Relief, People v. Neal, No. 96 CR 14024 (Cir. Ct. Cook Cnty. Sept. 2, 2003); (Ex. G, Supplemental Pet. Post-Conviction Relief, People v. Neal, No. 96 CR 14024 (Cir. Ct. Cook Cnty. May 8, 2007)); (2) claims 2a, 2e, 3b or 3d in his appeal of the order denying his pro se and supplemental petitions for post-conviction relief (see Ex. I, Br. & Arg. Pet'r-Appellant at 2, People v. Neal, No. 1-08-2458 (Ill. App. Ct. Dec. 14, 2009)); and (3) claim 3c in his petition for leave to appeal the order affirming denial of his post-conviction petitions to the supreme court (see Ex. M, Pet. Leave Appeal, People v. Neal, No. 11235 (Ill. Jun. 9, 2011)).
Despite the procedural default, the Court can consider these claims if Neal can show cause for and prejudice from having failed to raise them in state court. Lee v. Davis, 328 F.3d 896, 900 (7th Cir. 2003). The only apparent reason for the default, however, is that Neal's post-conviction counsel failed to raise them. That failure does not, as a matter of law, constitute "cause" for the default. 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."); Neal v. Gramley, 99 F.3d 841, 843 (7th Cir. 1996) (stating that "[t]here is no federal constitutional right to counsel in a post-conviction proceeding," and thus "procedural defaults due to the blunderings of such counsel are not to be excused").
Alternatively, the Court can consider the defaulted claims if Neal "can establish that the denial of relief will result in a miscarriage of justice." Lewis, 390 F.3d at 1026. The miscarriage of justice exception requires Neal to "show that he is actually innocent of the offense[s] for which he was convicted, i.e., that no reasonable [fact finder] would have found him guilty of the crime[s] but for the error(s) he attributes to the state court." Id. Neal contends that claim 2a, that his trial counsel was ineffective for failing to call alibi witness Trina Morton, falls into this exception because she would have testified that he was at home with her at the time of the crimes.
During the post-conviction proceedings, Morton testified that Neal, who was then her live-in boyfriend, came home around 10:00 p.m. the night before the crimes, slept with her all night and was still there the next morning. (See Ex. G, Rep. Proceedings at RR-10-11, 17-20, People v. Neal, No. 96 CR 14024 (June 24, 2008).) She admitted, however, that she did not share this information with trial counsel and had previously signed an affidavit saying Neal arrived home at 12:30 a.m. on the day of the crimes. (Id. at RR-28-35.) Trial counsel testified that the police reports showed that Neal gave three different alibis -- that he was by himself, at a New Year's Eve party with Morton, and at home with Morton, having arrived at 1:30 a.m -- at the time of the crimes. (Id. at RR-56-57.) Counsel also testified that he decided to use a reasonable doubt defense because the state's witnesses were incredible, given their gang affiliations, prior criminal convictions and limited time to observe the shooter, and there was no other evidence, e.g., a confession, ballistics, fingerprints, to corroborate their identifications. (Id. at RR-58-65.) After hearing this testimony and reviewing the transcript from the trial, the state court said:
We go back to three solid eyewitness identifications under well lit conditions. And to go to the bottom line, [trial counsel], an experienced, excellent lawyer, was not ineffective in representing Mr. Neal. He did about as good a job as could be done.
He argued identification, which I think was the proper argument, and Miss Morton's proposed testimony, given the totality of the circumstances . . . would not have changed the outcome [of the case]. (Id. at TT-20-21.) Because this is a reasonable conclusion from the evidence, Neal has not met his burden of showing that no reasonable fact finder would have found him guilty if Trina Morton had been called to testify.
In short, Neal has not shown that there is any basis for excusing the procedural default of claims 2a-c, 2e or 3a-d. Thus, the Court will not ...