Chijioke B. Ben-Yisrayl, Petitioner-Appellant,
Ron Neal, Respondent-Appellee.
April 21, 2017
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:12-cv-661-TWP-MJD - Tanya Walton Pratt, Judge.
Wood, Chief Judge, Sykes, Circuit Judge, and Coleman,
District Judge. [*]
Ben-Yisrayl is an Indiana prisoner serving a 60-year sentence
for murder. He appeals from the district court's denial
of his petition for habeas relief under 28 U.S.C. §
2254. Although he raised multiple claims in his petition, his
sole argument on appeal is that his resentencing counsel was
constitutionally ineffective for failing to introduce "a
veritable mountain of mitigation evidence." But he never
raised this claim in his habeas petition, and his failure to
do so is a waiver. We affirm the judgment.
is well acquainted with the judicial system. In 1984 he was
convicted in Indiana state court of capital murder, rape,
criminal confinement, and burglary The jury was unable to reach
a decision in the penalty phase of trial, so the judge
imposed a sentence of death. In case that sentence did not
hold up on appeal, the judge imposed an alternative sentence
of 60 years. On the remaining counts, the judge imposed an
aggregate term of 90 years.
case bounced back and forth for many years in the state trial
and appellate courts as the death sentence and other issues
were litigated on direct review and in postconviction
proceedings. Prosecutors eventually withdrew their request
for the death penalty and settled for the alternative 60-year
sentence on the murder conviction. Ben-Yisrayl won a reversal
of that sentence as well. On resentencing the trial judge
reimposed the 60-year sentence, and this time it was
affirmed. Post-conviction proceedings on other issues
meantime, Ben-Yisrayl pursued habeas relief in federal court
under § 2254. Because he had yet to complete state
post-conviction review, the district judge stayed the
proceedings. When the state courts finally finished with the
case, the judge lifted the stay and ordered the state to
respond to the petition. Indiana did so. Ben-Yisrayl failed
to file his reply within the allotted time, so the case
proceeded to decision without a reply brief from him.
judge denied relief on all grounds without an evidentiary
hearing. She also denied Ben-Yisrayl's motion to alter or
amend the judgment under Rule 59(e) of the Federal Rules of
Civil Procedure. This appeal followed.
Ben-Yisrayl originally sought habeas relief on six grounds,
he later abandoned four of his claims and litigated only two
on the merits before the district court. He argued that (1)
the prosecution team intentionally destroyed exculpatory
evidence; and (2) his counsel at resentencing was
constitutionally ineffective for submitting a meager two-page
sentencing memorandum and for failing to challenge the
prosecution's destruction of evidence. Notably,
Ben-Yisrayl never mentioned the sole claim he now advances on
appeal, which is an attack on his counsel's alleged
failure to introduce a "mountain" of mitigation
evidence at resentencing. Indeed, a reference to mitigation
evidence first pops up in Ben-Yisrayl's Rule 59(e)
motion, and even then it appears only in passing in a
sentence about the district court's denial of an
evidentiary hearing: "Without an evidentiary hearing,
[Ben-Yisrayl] cannot show what mitigation evidence his trial
lawyers failed to present or why they failed to present
omission of this claim from his habeas petition is a waiver.
It is well settled that waiver rules apply in the habeas
context: "Claims not made in the district court in a
habeas petition are deemed waived and cannot be raised for
the first time on appeal." Johnson v. Hulett,
574 F.3d 428, 432 (7th Cir. 2009). The fleeting reference to
this claim in Ben-Yisrayl's Rule 59(e) motion cannot save
it for appellate review; it is equally well settled that a
Rule 59(e) motion is not an appropriate vehicle for advancing
"arguments or theories that could and should have been
made before the district court rendered a judgment."
County of McHenry v. Ins. Co. of the W., 438 F.3d
813, 819 (7th Cir. 2006) (quoting LB Credit Corp. v.
Resolution Tr. Corp., 49 F.3d 1263, 1267 (7th Cir.
also invokes procedural default, but we have no need to
address that argument. Waiver resolves this entire appeal.
Because Ben-Yisrayl's habeas petition never raised a
claim based on his counsel's failure to introduce
mitigation evidence at ...