United States District Court, N.D. Illinois, Western Division
G. Reinhard, Judge
following reasons, defendant's 28 U.S.C. § 2254
motion  is denied. The court declines to issue a
certificate of appealability. This matter is terminated.
October 11, 2016, petitioner Aaron Clarke filed a 28 U.S.C.
§ 2254 petition challenging his Illinois conviction for
aggravated kidnapping and conspiracy to commit aggravated
kidnapping, arguing that the Illinois appellate courts
applied the wrong legal standard in his appeals with regard
to his claims: (1) that hearsay testimony regarding his
co-conspirators' statements was improperly admitted into
evidence in his criminal trial; and (2) the jury was given an
improper instruction at his trial. See . On
February 27, 2017, respondent filed the state court record
 and an answer to the petition, arguing that that
petitioner's claims were noncognizable, procedurally
defaulted, and in any case without merit. See .
Petitioner was invited to file a reply but did not do so.
These matters are now ripe for the court's review.
brief recitation of the relevant factual and procedural
background, derived from the state court record, is
necessary. Petitioner and several co-conspirators kidnapped
and beat Michael Johnson after Johnson stole marijuana from
petitioner and one of the co-conspirators. Petitioner was
arrested, indicted, and tried for kidnapping and conspiracy
to kidnap. During the trial, the trial court admitted
testimony from three witnesses concerning his
co-conspirators' statements and actions regarding
attempts to conceal the crime. During the instructions phase,
the trial court gave the jury Illinois pattern jury
instruction 5.04, defining the meaning of the defense of
“withdrawal” from the offense. Petitioner was
convicted and did not challenge the trial court's jury
instruction of 5.04 in his post-trial motion.
appealed and raised a number of arguments to the appellate
court, including the claims he raises here. In relevant part,
he argued to the appellate court that the witnesses'
testimony regarding his codefendants' actions were
improperly admitted. He also argued that the trial court
improperly instructed the jury as to IPI 5.04, defining
“withdrawal” from the offense. The appellate
court held that petitioner had forfeited the IPI claim as a
matter of state law because he failed to raise it in his
post-trial motion, and he failed to establish plain error to
excuse his forfeiture because the instruction was correct as
a matter of state law. The appellate court agreed with
petitioner that the trial court had abused its discretion in
admitting the hearsay testimony regarding the
co-conspirators, but found that the error was harmless
because there was overwhelming and independent evidence of
petitioner's guilt. Thus, the appellate court affirmed
with regard to the issues petitioner raises here, although it
did vacate petitioner's conspiracy conviction on other
grounds. Petitioner filed a PLA to the Illinois Supreme
Court, raising the IPI and hearsay claims, but the PLA was
later filed a postconviction petition, raising ineffective
assistance of trial counsel claims that he has not raised
with this court. The trial court dismissed the petition, the
appellate court affirmed, and petitioner did not file a PLA.
U.S.C. § 2254 limits a federal district court's
ability to grant habeas relief to state prisoners.
Relief will not be granted unless the court determines that a
state court's adjudication of a claim resulted in a
decision that was 1) “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the United States Supreme Court[;]” or
was 2). . . “based on an unreasonable determination of
the facts in light of the evidence presented. . .” 28
U.S.C. § 2254 (d)(1)-(2). The federal courts review a
state court's decision on a deferential standard of
review. Griffin v. Pierce, 622 F.3d 831, 841 (7th
Cir. 2010). A federal court may not grant relief if it
determines a state court applied federal law incorrectly.
Instead, a writ can only be issued if the federal court
determines that a state court's application of federal
law was “objectively unreasonable.” Williams
v. Taylor, 529 U.S. 362, 409 (2000). This is a difficult
standard for a habeas petitioner to prove as the Seventh
Circuit has defined objectively unreasonable as
“something lying well outside the boundaries of
permissible differences of opinion.” McFowler v.
Jaimet, 349 F.3d 436, 447 (7th Cir. 2003).
petitioner argues that the Illinois Supreme Court applied the
wrong standard of law in denying his PLA and affirming the
appellate court's ruling on his hearsay and IPI claims.
First, to the extend petitioner is challenging the Illinois
Supreme Court's denial of his PLA, this is noncognizable
on federal habeas review. See Woods v. Chandler,
2007 WL 3034427 (N.D. Ill. 2007). Next, petitioner's IPI
challenge is not reviewable on federal habeas review because
the state court denied it on an independent and adequate
state law procedural basis. See Coleman v. Thompson,
501 U.S. 722, 729 (1991) (“This Court will not review a
question of federal law decided by a state court if the
decision of that court rests on a state law ground that is
independent of the federal question and adequate to support
the judgment.”). Moreover, his challenge as to the IPI
instruction in state court and his argument here is in effect
no more than a disagreement of state law, which is not
cognizable on federal habeas review. See Perruquet v.
Briley, 390 F.3d 505, 511 (7th Cir. 2004) (holding that
“errors of state law in and of themselves are not
cognizable on habeas review”).
same is true of petitioner's claim regarding the
testimony of his co-conspirators' actions. Petitioner
challenged the admission of the testimony as a matter of
state evidentiary law, and the appellate court applied a
state law harmless error analysis, making petitioner's
claims not cognizable on federal review. See id.;
Aleman v. Sternes, 320 F.3d 687, 691 (7th Cir. 2003)
(“The state's court of appeals did not mention
Chapman because it apparently did not think that the federal
Constitution had been violated. It applied a state-law
standard of harmlessness to what it saw as an error of state
law by the prosecutor.”). Even assuming petitioner
raised a constitutional claim, after reviewing the state
court record, this court cannot find that the state appellate
court made an unreasonable finding of fact in determining
that the trial court's evidentiary error was harmless
because the independent evidence of petitioner's guilt,
including defendant's own statements and eyewitness
testimony as to his presence during the kidnapping, was so
strong that there is no “reasonable possibility”
that the improperly admitted evidence did not contribute to
his conviction. See Davis v. Ayala, 135 S. Ct. 2187,
2198 (2015) (citing Chapman v. California, 386 U.S.
18, 24 (1967)); Welch v. Hepp, 793 F.3d 734, 738-39
(7th Cir. 2015) (“The state court's finding of
harmless error here was not only reasonable but correct. . .
. Because the evidence against [the petitioner] was so
strong, the two statements he considers improper neither
prejudiced him nor influenced the jury's
verdict.”). For the foregoing reasons, petitioner's
claims must fail.
to Rule 11(a) of the Rules Governing § 2254 Proceedings
for the United States District Courts, the court declines to
issue a certificate of appealability. A certificate may issue
only if defendant has made a substantial showing of the
denial of a constitutional right. 28 U.S.C. §
2253(c)(2). The court finds that while defendant has
attempted to raise constitutional claims, his claims are not
cognizable or reviewable on federal habeas review, or
otherwise without merit, and the court does not find that
“reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to ...