United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, UNITED STATES DISTRICT JUDGE
January 2009, Ruben Contreras was charged with the first
degree murder of his estranged wife, Graciela Guijarro.
Contreras admitted to detectives that he hugged Guijarro and
covered her nose and mouth for several minutes during an
argument so that she would not yell and attract the attention
of neighbors or police. When he let go, Guijarro was dead. At
trial, Contreras was represented by an attorney from the Lake
County Public Defender's Office who argued that he lacked
the requisite mental state to be found guilty of first degree
murder. The trial judge instructed the jury on involuntary
manslaughter and first degree murder. In April 2013, the jury
returned a verdict of guilty on the charge of first degree
murder, and the judge later sentenced Contreras to
forty-eight years in prison.
timely appealed his conviction. On appeal, he was represented
by an attorney from the Office of the State Appellate
Defender. Contreras presented the following arguments:
1) the evidence was insufficient to support a conviction for
first degree murder;
2) his trial counsel was ineffective for failing to request a
jury instruction defining "knowledge" even though
the only contested issue before the jury was his mental
3) the prosecution engaged in prosecutorial misconduct during
closing argument by telling the jury that returning a verdict
of guilty of involuntary manslaughter would be an injustice;
4) his sentence was excessive.
October 2015, the Illinois Appellate Court rejected
Contreras's claims and affirmed his conviction and
sentence. See People v. Contreras, 2015 IL App (2d)
131048-U. With the assistance of counsel, Contreras filed a
timely petition for leave to appeal to the Illinois Supreme
Court in which he asserted only the prosecutorial misconduct
claim. The court denied the petition in January 2016.
Contreras did not file a petition for post-conviction relief
in state court, and the time to do so has since expired.
See 725 ILCS 5/122-1(c).
has filed a pro se petition for a writ of habeas
corpus under 28 U.S.C. § 2254. For the sake of clarity,
the Court will address Contreras's claims in a different
order than they are presented in the petition. Contreras
repeats three of the claims that he previously made on direct
appeal: (1) the evidence was insufficient to support his
conviction for first degree murder, (2) his trial counsel was
ineffective for failing to request a jury instruction
defining "knowledge" for purposes of the first
degree murder charge, and (3) the prosecution engaged in
prosecutorial misconduct during closing argument. He also
contends that appellate counsel rendered ineffective
assistance when he failed to raise these first two claims
through one complete round of the state court's appellate
review process, by omitting them from the petition for leave
to appeal (PLA). Contreras contends that it would be a
"miscarriage of justice" for the Court to refuse to
consider these procedurally defaulted claims on their merits.
2254 Mot. at 6. The Court also construes this contention as
an argument that appellate counsel's alleged ineffective
assistance constitutes cause for the default of
Contreras's first two claims. See Id.
(contending that "[b]ut for counsel's failure to
preserve all his issues, the outcome of the case would
reasonably [have] been different").
contends that there is no valid excuse for Contreras's
procedural default of his first two claims and that relief is
not warranted on the third claim (regarding prosecutorial
misconduct) because the state court's decision on the
issue was not contrary to or an unreasonable application of
clearly established Supreme Court law. Lastly, respondent
argues that Contreras's ineffective assistance of
appellate counsel claim is non-cognizable because there is no
constitutional right to effective assistance of counsel at
the state discretionary appeal stage. For the reasons
discussed below, the Court denies Contreras's petition.
prisoner is entitled to a writ of habeas corpus "only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a).
Insufficiency of the evidence and ineffective assistance of
trial counsel claims
habeas corpus petitioner must give the state courts a full
and fair opportunity to review and resolve his federal claims
before a federal court may consider them on habeas corpus
review. O'Sullivan v. Boerckel, 526 U.S. 838,
844-45 (1999). Thus, claims that were not fairly presented to
the state courts through "one complete round of the
State's established appellate review process"-either
on direct appeal or in post-conviction proceedings-will be
found to have been procedurally defaulted and thus will not
be addressed on their merits in federal court. Id.
at 845; see also Hicks v. Hepp, 871 F.3d 513, 530
(7th Cir. 2017) (to avoid procedural default, a petitioner
must fairly present constitutional claims through one
complete round of the state's appellate ...