United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Anthony Toliver (which is how he and some official Illinois documents spell his name, though the Warden and other official Illinois documents spell it "Tolliver"), an Illinois prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. He was convicted in 2007 of attempted murder, home invasion, and criminal sexual assault, and sentenced to 50 years' imprisonment. Toliver's petition asserts that: (1) new evidence establishes that the victim lied about not receiving Toliver's Social Security disability checks; (2) the victim's testimony about her bipolar disorder's not causing her to hallucinate is contradicted by medical opinions; (3) his attorney was ineffective in failing to call alibi witnesses, including a psychiatrist and the investigating detective; and (4) the evidence was insufficient to establish his guilt beyond a reasonable doubt considering (a) the victim's false and confusing testimony and (b) the prosecutor's heavy reliance on an invalid protection order. Id. at 5-6. Toliver attaches to his petition a statement from fellow prisoner Anthony Harden, who says that other people broke down the victim's door and beat her when attempting to collect money for cocaine she had bought on credit. Id. at 33-35. The petition is denied, and the court declines to issue a certificate of appealability.
A federal habeas court presumes correct the factual findings made by the last state court to adjudicate the case on the merits, unless those findings are rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012) ("We give great deference to state court factual findings. After AEDPA, we are required to presume a state court's account of the facts correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence.") (internal quotation marks omitted); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010); Ward v. Sternes, 334 F.3d 696, 704 (7th Cir. 2003). The Appellate Court of Illinois is the last state court to have adjudicated Toliver's criminal case on the merits. People v. Toliver, 2012 IL App (1st) 102930-U, 2012 WL 6591948 ( Ill. App. May 29, 2012) (reproduced at Doc. 13-14); People v. Tolliver, No. 1-07-3466 ( Ill. App. Sept. 15, 2009) (reproduced at Doc. 13-1). Following are the facts as described by that court.
Sometime in mid-November 2004, Toliver and his girlfriend of four years ended their relationship and he moved out of her apartment. Doc. 13-1 at 2. On November 30, she obtained an emergency order of protection against him; three days later, when Toliver came to her home, supposedly looking for his Social Security disability checks, she called the police and told him to leave. He did-only to return a few hours later. This time, instead of knocking, he kicked down the double-locked back door to her apartment. She tried to call 911, but Toliver ripped the phone out of the wall and repeatedly hit her on the head with it. Continuing to punch her in the face, he dragged her by her hair across the apartment and told her "you're going to die tonight." He then forced her to disrobe and to fellate him. Responding to calls from a neighbor, the police arrived, and when the victim tried to run toward them, Toliver jumped on her back. The police eventually pried him off her and arrested him. The victim had a bruised and bloody nose and was missing chunks of her hair; she later testified at trial that she also suffered blood clots and swelling in both eyes. Ibid.
Toliver was charged with attempted first degree murder, two counts of home invasion, four counts of aggravated criminal sexual assault, one count of criminal sexual assault, and one count of unlawful restraint. Id. at 1. Testifying at his 2007 bench trial, Toliver claimed that the victim invited him in, that the sex was consensual (and in fact was initiated by her), and that "he did not recall the police kicking in the door, ordering him off the victim, or forcing handcuffs on him"; rather, "[h]e stated that he fell on top of the victim because she tripped over a cord." Id. at 4. Toliver was convicted on all counts and was sentenced to 50 years' imprisonment: concurrent 25-year terms for the attempted murder and both home invasion charges, to be served consecutively to concurrent 25-year terms for two of the aggravated sexual assault charges. Ibid. The state trial court did not impose any sentences for the other convictions.
On direct appeal, the Appellate Court of Illinois vacated one home-invasion and one aggravated sexual assault conviction as violating Illinois's one-act, one-crime rule. Id. at 7-8. The appellate court also remanded the case to the trial court to determine which of the un-sentenced convictions should also be vacated under that rule. Ibid. The appellate court rejected Toliver's plea to reverse the attempted murder conviction on the ground that the prosecutor had failed to present sufficient evidence to prove his intent to kill the victim. Id. at 5-7. The Supreme Court of Illinois denied Toliver's subsequent petition for leave to appeal. Doc. 13-5; People v. Tolliver, 924 N.E.2d 459 (Ill. 2010) (reproduced at Doc. 13-6). On remand, the trial court vacated all of the un-sentenced convictions under the one-act, one-crime rule, except for the unlawful restraint conviction, for which it imposed a concurrent one-year sentence. Doc. 13-10 at 2. The state appellate court affirmed the conviction and sentence, Doc. 13-10, and Toliver did not file a petition for leave to appeal to the state supreme court.
Meanwhile, Toliver filed a pro se post-conviction petition for relief. Doc. 13-21 at 17-57. After the trial court denied the petition, id. at 58-68, Toliver, now with the assistance of counsel, appealed, arguing that his pro se petition had made out the gist of a claim of ineffective assistance of appellate counsel, Doc. 13-11. The state appellate court affirmed the denial of Toliver's petition, Doc. 13-14, and the state supreme court denied Toliver's petition for leave to appeal, Doc. 13-15; People v. Toliver, 981 N.E.2d 1002 (Ill. 2012) (reproduced at Doc. 13-16), thereby exhausting Toliver's state court remedies. Toliver timely filed this federal habeas petition on November 20, 2013. See 28 U.S.C. §§ 2244(d)(1), (2).
The Warden argues that Toliver's first three claims-(1) that new evidence establishes that the victim lied about not receiving Toliver's Social Security disability checks; (2) that the victim's testimony about her bipolar disorder's not causing her to hallucinate is contradicted by medical opinions; and (3) that his attorney was ineffective in failing to call alibi witnesses-are procedurally defaulted because he "failed to fairly present' [them] to the state courts at each stage of their review process." Doc. 12 at 10 (citing Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007)). "To preserve a question for federal collateral attack, a person must present the contention to each level of the state judiciary." Bland v. Hardy, 672 F.3d 445, 449 (7th Cir. 2012) (citing O'Sullivan v. Boerckel, 526 U.S. 838 (1999)). Accordingly, a "procedural default occurs where a habeas petitioner has exhausted his state court remedies without properly asserting his federal claim at each level of state court review." Crockett v. Hulick, 542 F.3d 1183, 1192 (7th Cir. 2008) (internal quotation marks omitted).
Toliver did not raise those three claims on direct appeal. His first direct appeal raised only two claims: that there was insufficient evidence to convict him of attempted murder, and that Illinois's one-act, one-crime rule precluded his being convicted of more than one count of home invasion. Doc. 13-2. His second direct appeal raised only one claim: that his conviction for unlawful restraint should be vacated under the one-act, one-crime rule. Doc. 13-7.
Toliver did raise those three claims in his pro se post-conviction petition. Doc. 13-21 at 41-42 (alleging that the victim lied about her having not received Toliver's Social Security disability checks); id. at 42-43 (alleging that the victim's testimony about her bipolar disorder "is contradictory to all qualified medical opinions on bipolar disorders"); id. at 27 ("In this case counsel[']s failure to call alibi expert witnesse[s] was one of the biggest contributing factors to this defendant, Anthony Toliver[, ] being convicted."). But to avoid procedural default, "the petitioner must raise the issue at each and every level in the state court system, including levels at which review is discretionary rather than mandatory." Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004) (emphasis added) (citing Boerckel, 526 U.S. at 845). Toliver did not raise those three claims in his post-conviction appeal, where he (through counsel) argued only that his appellate counsel on direct appeal had been ineffective in failing to argue that the 50-year sentence was excessive. Doc. 13-11. So despite having included those three claims in his initial pro se petition, by failing to present them to the state appellate and supreme courts, he procedurally defaulted them. See Boerckel, 526 U.S. at 845-46; McDowell v. Lemke, 737 F.3d 476, 482 (7th Cir. 2013); Guest, 474 F.3d at 930; Lewis, 390 F.3d at 1026.
A habeas petitioner may overcome a procedural default (1) by demonstrating cause for the default and actual prejudice, or (2) by showing that the habeas court's failure to consider the claim would result in a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536 (2006); Smith, 598 F.3d at 382. Toliver bears the burden of proving that one of these exceptions applies. See Perruquet v. Briley, 390 F.3d 505, 515 (7th Cir. 2004). Toliver argues that the first exception applies because his appellate lawyers-both on direct appeal and on post-conviction review-were ineffective in failing to preserve the three defaulted issues, and also that the second exception applies because he is actually innocent. Doc. 16 at 5-7.
The second ground is meritless. "[T]enable actual-innocence gateway pleas are rare: [A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013) (second alteration in original) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). Toliver's only attempt to establish his actual innocence arises from his attaching to his habeas petition a statement from fellow prisoner Anthony Harden, who claims that two other people named "Johnny K" and "Co-Co" had kicked in the victim's ...