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Berry v. Pfister

United States District Court, N.D. Illinois, Eastern Division

April 27, 2017

MICHAEL BERRY
v.
RANDY PFISTER

          MEMORANDUM OPINION

          SAMUEL DER-YEGHIAYAN, District Judge.

         This matter is before the court on Petitioner Michael Berry's (Berry) pro se petition for writ of habeas corpus (Petition) brought pursuant to 28 U.S.C. § 2254. For the reasons stated below, the Petition is denied.

         BACKGROUND

         Berry was found guilty by a jury in state court of attempted first-degree murder and the unauthorized use of a weapon by a felon and Berry was sentenced to a total term of sixty years of imprisonment. Berry filed an appeal, and in September 2012 the Illinois Appellate court affirmed his sentence and conviction. Berry filed a petition for leave to appeal (PLA) with the Illinois Supreme Court, and the PLA was denied in January 2013. In October 2013, Berry filed a post-conviction petition, which was dismissed. McLennan appealed the post-conviction petition ruling, and the trial court's dismissal was affirmed in December 2015. The Illinois Supreme Court denied the subsequent PLA in June 2016. On October 13, 2016, Berry filed the instant Petition.

         LEGAL STANDARD

         An individual in custody pursuant to state court judgment may seek a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which provides the following:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(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 an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The decision made by a state court is deemed to be contrary to clearly established federal law “‘if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.'” Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009)(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). The decision by a state court is deemed to involve an unreasonable application of clearly established federal law “‘if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.'” Emerson, 575 F.3d at 684 (quoting Bell, 535 U.S. at 694).

         DISCUSSION

         This court has liberally construed Berry's pro se filings. See Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir. 2004)(stating that “[a]s [the plaintiff] was without counsel in the district court, his habeas petition [wa]s entitled to a liberal construction”); Greer v. Board of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir. 2001)(indicating that a court should “liberally construe the pleadings of individuals who proceed pro se”). Berry asserts in the Petition: (1) that there was insufficient evidence to prove him guilty beyond a reasonable doubt (Claim 1), (2) that his trial counsel was ineffective by failing to object to certain jury instructions and secure a separate verdict form (Claim 2), that his trial counsel was ineffective by failing to object to the prosecutions repeated oral arguments (Claim 3), that his appellate counsel was ineffective because he did not raise alleged errors by his trial counsel relating to the jury learning the name and nature of Berry's prior felony conviction (Claim 4a) and failure to attempt to sever his firearm charges (Claim 4b)

         I. Procedurally Defaulted Claims

         Respondent argues that Claims 1, 2, 3, and 4b are procedurally defaulted and that there is no justification to excuse the default.

         A. Procedural Default

         Respondent contends that Berry failed to raise Claims 1, 2, 3, or 4b through one complete round of the state court appellate review process. A district court “cannot review a habeas petitioner's constitutional issue unless he has provided the state courts with an opportunity to resolve it ‘by invoking one complete round of the state's established appellate review process.'” Byers v. Basinger, 610 F.3d 980, 985 (7th Cir. 2010)(quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). If a habeas petitioner failed to “properly assert[] his federal claim at each level of state court review, ” the petitioner is deemed to have “procedurally defaulted that claim.” Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008)(quoting Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004)); see also Johnson v. Hulett, 574 F.3d 428, 431 (7th Cir. 2009)(stating that “[t]o obtain federal habeas review, a state prisoner must first submit his claims through one full round of state-court review, ” and that “[t]he penalty for failing to fully and fairly present [] arguments to the state court is procedural default”). A petitioner, in exhausting his state court remedies, has “‘the duty to fairly present his federal ...


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