United States District Court, N.D. Illinois, Eastern Division
DER-YEGHIAYAN, District Judge
matter is before the court on Petitioner Leshun Smith's
(Smith)pro se petition for writ of habeas corpus
(Petition) brought pursuant to 28 U.S.C. § 2254 (Section
2254). For the reasons stated below, the Petition is denied.
was convicted by a jury in state court of murder and
sentenced to thirty-six years in prison. Smith filed an
appeal and the conviction was affirmed. Smith then filed a
petition for leave to appeal (PLA) with the Illinois Supreme
Court, and the PLA was denied. Smith then filed a
post-conviction petition, which was dismissed. Smith appealed
that ruling, and the Illinois Appellate Court affirmed the
dismissal. Smith then filed another PLA, which was denied on
March 30, 2016. On January 12, 2017, Smith filed the instant
Petition. Respondent has filed an answer to the Petition.
individual in custody pursuant to state court judgment may
seek a writ of habeas corpus pursuant to Section 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
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).
court has liberally construed Smith' spro 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, III, 267 F.3d 723,
727 (7th Cir. 2001)(indicating that a court should
"liberally construe the pleadings of individuals who
proceed pro se"). Smith asserts in the
Petition: (1) that he received ineffective assistance of
counsel at sentencing because his counsel did not call
certain character witnesses to testify on behalf of Smith
(Claim 1), and that his sentence was disproportionate to
other sentences for the same conduct in violation of the
Eighth Amendment (Claim 2).
argues that Claim 1 lacks merit. As indicated above, Smith
asserts in Claim 1 that he received ineffective assistance of
counsel at sentencing because his counsel did not call
certain character witnesses to testify on behalf of Smith.
The decision of whether or not to call such witnesses was a
strategic decision made on the part of Smith's counsel,
and Smith has not shown that the decision was outside the
boundaries of effective representation. See Stallings v.
United States, 536 F.3d 624, 627 (7th Cir. 2008)(stating
that a court reviewing a Section 2255 motion "shall not
second-guess strategic decisions that were arguably
appropriate at the time but that hindsight has revealed to be
unwise"). The Illinois Appellate Court also already
specifically addressed this claim and properly concluded that
"decisions about whether to call certain witnesses on a
defendant's behalf are matters of trial strategy,
reserved to the discretion of trial counsel, which enjoy a
strong presumption that they reflect sound trial strategy,
rather than incompetence" and that no prejudice was
shown as a result of failing to call such witnesses.
People v. Smith, 2015 IL App (1st) 131093-U. Claim 1
thus lacks any merit.
argues that Claim 2 is procedurally defaulted. As indicated
above, Smith asserts in Claim 2 that his sentence was
disproportionate to other sentences for the same conduct in
violation of the Eighth Amendment. Smith contends that a
thirty-six year sentence was not an appropriate sentence for
shooting his victim multiple times and murdering his victim.
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 claims to