United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL, District Judge.
Petitioner Bobby Ball is incarcerated at the Menard Correctional Center in Menard, Illinois, in Kim Butler's custody. (Dkt. No. 9 at 1). Ball is serving a fifty-five year sentence for felony murder and home invasion. ( Id. ). Ball now petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Alternatively, Ball moves the Court to stay these proceedings to allow him to exhaust any state court remedies available to him. (Dkt. No. 14 at 4). Upon review of the state court record, the Court concludes that Ball's federal petition is procedurally defaulted. The Court therefore dismisses Ball's amended habeas petition (Dkt. No. 9) with prejudice, denies Ball's motion to stay, and declines to issue a certificate of appealability.
Following a 2008 bench trial in the Circuit Court of Cook County, Illinois, Ball was convicted of felony murder, 720 ILCS 5/9-1(a)(3), and home invasion, 720 ILCS 5/12-11(a)(2). (Dkt. No. 12-1 at 1). Following his conviction, Ball appealed to the Illinois Appellate Court for the First District, arguing that he was denied due process of law because the trial court shifted the burden of proof during a suppression hearing and that he was denied a fair trial when his statements were used against him in violation of Missouri v. Seibert, 542 U.S. 600 (2004). (Dkt. No. 12-2 at 20 & 27). On December 28, 2010, the Illinois Appellate Court affirmed both of Ball's convictions. (Dkt. No. 12-1 at 1). Ball subsequently filed a petition for leave to appeal (PLA) in the Illinois Supreme Court, which was denied on March 30, 2011. (Dkt. No. 12-6).
Ball filed a pro se post-conviction petition pursuant to 725 ILCS 5/122-1 on October 17, 2011 asserting, among other things, that (1) police officers involved in his investigation deprived him of his due process rights when they failed to videotape an interview with him, (2) trial and appellate counsel provided ineffective assistance of counsel when they failed to argue that claim, and (3) the prosecutor at his trial knowingly concealed information that blunt force injuries contributed to the victim of the underlying crime's death and presented false evidence that the victim died from a gunshot wound. (Dkt. No. 12-12 at C00080-C00107). Finding Ball's contentions to be meritless, the trial court denied the post-conviction petition. (Dkt. No. 12-12 at C00076). Upon appeal, the Illinois Appellate Court for the First District appointed counsel. (Dkt. No. 12-8). Appointed counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), stating that the appeal would "be without arguable merit." (Dkt. No. 12-8 at 3). On May 16, 2013, the Illinois Appellate Court granted appointed counsel's motion to withdraw and affirmed the judgment of the trial court dismissing Ball's post-conviction petition. (Dkt. No. 12-7 at 4).
Important to the viability of Ball's federal petition, Ball's pro se PLA to the Illinois Supreme Court did not raise the arguments found in his post-conviction petition. ( See Dkt. No. 12-10). Instead, Ball diverted course and challenged the Illinois Appellate Court's findings concerning the sufficiency of the evidence at his suppression hearing and at trial to support his convictions and the trial court's admission of certain pieces of evidence, including some of his statements and a 9mm semi-automatic handgun. (Dkt. No. 12-10 at 1-3). Ball also claimed he received ineffective assistance from trial counsel for failing to subpoena witnesses to appear at a hearing to suppress statements made by Ball to police, and received ineffective assistance from appellate counsel for failing to raise an ineffective assistance of trial counsel claim. (Dkt. No. 12-10 at 22-24). Ball additionally argued that the prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose information concerning an "F.B.I. hat" and that he did not receive a Miranda warning. (Dkt. No. 12-10 at 2-3). On January 29, 2014, the Illinois Supreme Court denied Ball's post-conviction PLA. (Dkt. No. 12-11).
This Court received Ball's pro se petition for a writ of habeas corpus on July 21, 2014. (Dkt. No. 1). Ball filed an amended petition on November 3, 2014. (Dkt. No. 9). Consistent with his original post-conviction petition in state trial court but disparate from his PLA to the Illinois Supreme Court, in his federal petition, Ball claims that police officers violated his due process rights by failing to videotape an interview with pursuant to 20 ILCS 3930/7.2, that trial counsel was ineffective for failing to argue that claim, and that the prosecutor knowingly concealed information that blunt force injuries contributed to the victim's death and presented false evidence that the victim died from a gunshot wound. (Dkt. No. 9). Respondent Kimberly Butler filed an answer on December 5, 2014. (Dkt. No. 11). The Court received Ball's reply on February 23, 2015, over two months past its due date. (Dkt. No. 14). Despite its tardiness, the Court considers Ball's reply in this ruling.
A. Ball's Habeas Petition is Procedurally Defaulted
Before a federal court will consider his claims, a federal habeas petitioner must exhaust state remedies, see 28 U.S.C. § 2254(b)(1)(A), "thereby giving the State the opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Cheeks v. Gaetz, 571 F.3d 680, 685 (7th Cir. 2009) (citations omitted). In particular, a habeas petitioner must fully and fairly present his federal claims through one full round of state court review before he files his federal habeas petition. See Mulero v. Thompson, 668 F.3d 529, 536 (7th Cir. 2012). "[W]hen a petitioner has exhausted state court remedies and failed to properly assert his federal claims at each level of review those claims are procedurally defaulted." Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir. 2009). A petitioner also procedurally defaults his claims if he fails to raise them in compliance with relevant state procedural rules and the state court's refusal to adjudicate the claim is based upon an independent and adequate state ground. See Cone v. Bell, 556 U.S. 449, 465 (2009). Procedural default precludes federal court review of a petitioner's habeas claims. See Mulero, 668 F.3d at 536.
Here, Ball failed to present his federal claims through one complete round of state court review, therefore, his petition in this Court is procedurally defaulted. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Woods, 589 F.3d at 373. In his pro se post-conviction petition at the trial court level and in his instant petition, Ball claimed that his due process rights were violated when police failed to videotape an interview with him in accordance with Illinois state law, that trial counsel provided ineffective assistance by failing to make that argument, and that the prosecutor at trial knowingly presented false evidence. Ball presented the same arguments to the Illinois Appellate Court, which subsequently affirmed the trial court's dismissal of his post-conviction petition. But Ball's ensuing PLA to the Illinois Supreme Court raised none of the original arguments found in his post-conviction petition and federal petition. Because those contentions were not presented to the Illinois Supreme Court in Ball's post-conviction PLA, his instant federal petition is procedurally defaulted. See O'Sullivan, 526 U.S. at 848 (where petitioner's amended federal habeas petition "raised three claims that he had pressed before the Appellate Court of Illinois, but that he had not included in his petition for leave to appeal to the Illinois Supreme Court[, ]" those claims were procedurally defaulted); Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2013) (to avoid procedural default, petitioner must present have presented each claim in his federal petition "in the habeas petition to the Illinois Appellate Court and to the Illinois Supreme Court").
A federal court may hear a habeas petitioner's procedurally defaulted claim only if he can demonstrate cause and prejudice for the default or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Crockett v. Hulick, 542 F.3d 1183, 1193 (7th Cir. 2008). A petitioner's failure to raise an argument for either precludes a federal court from considering a defaulted claim. Id. Here, Ball makes no attempt to show cause for his failure to present each of his federal claims through one full round of state court review and the Court will not consider them.
Nor will the Court excuse Ball's procedural default based on his bare assertion that failure to do so will result in a "fundamental miscarriage of justice." (Dkt. No. 14 at 3). That exception is "grounded in the equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons." McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013) (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). Although "actual innocence, if proved, serves as a gateway through which a petitioner may pass" when the impediment to his petition is a procedural bar, to support a claim of actual innocence, Ball must come forward with new evidence. McQuiggin, 133 S.Ct. at 1928; see Schulp v. Delo, 513 U.S. 298, 324 (1995). Here, Ball makes no effort to ...