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United States ex rel. Harvey v. Lemke

United States District Court, C.D. Illinois

June 10, 2014

MICHAEL LEMKE, Warden, Stateville Correctional Center, Defendant.


JAMES E. SHADID, Chief District Judge.

This matter is before the Court on Petitioner, Craig Harvey's ("Petitioner") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254 [1]. For the reasons set forth below, the Petition [1] is DENIED.


Petitioner is an inmate at Stateville Correctional Center in Joliet, Illinois under the custody of Respondent, Warden Lemke. Following a jury trial in the Circuit Court of Peoria County in 2005, Petitioner was convicted of first-degree murder, aggravated battery with a firearm, and unlawful possession of a weapon by a felon and sentenced to consecutive terms of 70 years for murder and a 15-year term for aggravated battery, as well as a concurrent seven-year term for unlawful possession of a weapon.

Petitioner pursued a direct appeal to the Illinois Appellate Court, contending that he was denied a fair trial because the prosecutor made improper references to trials on television during closing argument. On February 21, 2007, the appellate court affirmed the conviction finding that the claim had been forfeited because it had not been raised through objection at trial or in a post-trial motion. No Petition for Leave to Appeal (PLA) to the Illinois Supreme Court was filed from this decision.

In August 2010, Petitioner filed a pro se post-conviction petition for relief pursuant to 725 ILCS 5/122-1 arguing: (1) appellate counsel was ineffective for various reasons, and (2) trial counsel was also ineffective. The trial court dismissed the Petition and Petitioner appealed, raising only two claims: (1) trial counsel was ineffective for failing to interview or subpoena alibi witnesses, and (2) the trial court erred by ordering Petitioner to submit a DNS sample and pay the related fee. Judgment was affirmed, but the portion of the trial court's order directing Petitioner to submit a DNA sample and pay the corresponding fee was vacated. In a pro se PLA, Petitioner argued that (1) trial counsel was ineffective for failure to interview or subpoena alibi witnesses, and (2) the post-conviction appellate court erred by denying him leave to file a pro se supplement to the appellate briefs submitted by counsel. On May 29, 2013, the Supreme Court denied leave to appeal.

Petitioner filed the instant Petition raising nine claims: (1) appellate counsel was ineffective; (2) trial counsel was ineffective; (3) he was denied his right to a speedy trial; (4) the State knowingly relied on perjury to obtain the conviction; (5) the prosecutor made improper remarks to the jury; (6) he was not proven guilty beyond a reasonable doubt; (7) a witnesses' videotaped statement was erroneously allowed in evidence; (8) he was denied due process when he was identified during an unduly suggestive lineup; and (9) his sentence was unconstitutional because he was never notified that enhancements were being sought. Respondent has filed his answer, and this Order follows.


When presented with a petition for writ of Habeas Corpus pursuant to 28 U.S.C. §2254, a district court must first consider whether the petitioner has exhausted all available state remedies. If the district court determines that the petitioner has not given the state courts a "full and fair opportunity to review" the claims in its own judicial process prior to petitioning for federal review, the petition is barred for failure to exhaust state remedies and the district court cannot address the merits of the constitutional claims. Dressler v. McCaughtry , 238 F.3d 908, 912 (7th Cir. 2001) (citations omitted); see also 28 U.S.C. § 2254(b).

In order for exhaustion to occur, the petitioner must assert each of the federal claims to be brought in his habeas corpus petition at each and every level in the state court system. Lewis v. Sternes , 390 F.3d 1019, 1025 (7th Cir. 2004) (citations omitted). This can be done on direct appeal or in post-conviction proceedings, but the petitioner must present the state judiciary with "both the operative facts and the legal principles that control each claim." Stevens v. McBride , 489 F.3d 883, 894 (7th Cir. 2007) (citations omitted). Additionally, "an applicant shall not be deemed to have exhausted the remedies available to the courts of the State... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

Procedural default occurs when the petitioner had a claim that could have been presented to the state court but was not, and cannot, at the time the federal petition is filed, be presented to the state court. Lemon v. O'Sullivan , 54 F.3d 357, 360 (7th Cir. 1995) (citation omitted). This can happen in one of two ways. First, procedural default can occur when a petition fails to pursue each appeal required by state law, or when he did not assert in state court the claims raised in the federal habeas corpus petition. Jenkins v. Gramley , 8 F.3d 505, 507-508 (7th Cir. 1993); Stone v. Farley , 86 F.3d 712, 716 (7th Cir. 1996). The second way procedural default may occur is when a state court decides 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). A state law ground is independent when the court actually relied on the procedural bar as an independent basis for its disposition of the case. Smith v. McKee , 598 F.3d 374, 382 (7th Cir. 2010) citing U.S. v. ex rel . Bell v. Pierson , 267 F.3d 544, 556 (7th Cir. 2001). A state law ground is adequate when it is a firmly established and regularly followed state practice at the time it is applied. Id . citing Franklin v. Gilmore , 188 F.3d 877, 882 (7th Cir. 1999).

If a claim has not been barred for failure to exhaust or for procedural default, the district courts must apply a strict analysis. 28 U.S.C. §2254(d) bars relitigation of any claim previously "adjudicated on its merits" in 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 unreasonable determination of facts in light of the evidence presented in the State court proceedings.

28 U.S.C. 2254(d). See also Willimas v. Taylor , 529 U.S. 362, 402-404 (2000); Harrington v. Richter ...

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