Opinion
No. 97 C 2806
September 1, 2000
MEMORANDUM OPINION AND ORDER
Petitioner, Mark Davenport ("Davenport"), a prisoner in the custody of Thomas F. Page, Warden of Menard Correctional Center, Menard, Illinois, seeks a writ of habeas corpus. In July of 1987, Davenport pleaded guilty to murder and armed robbery and was sentenced to concurrent sentences of 80 and 30 years, respectively. In his petition for federal habeas corpus pursuant to 28 U.S.C. § 2254, Davenport raises six grounds for relief. He claims: (1) the trial court erred in finding that his actions were brutal or heinous; (2) his guilty plea was not voluntary or intelligent; (3) the trial court improperly accepted a waiver of a presentence investigation; (4) his counsel on direct appeal was ineffective in failing to argue ineffectiveness of trial counsel; (5) the trial court improperly informed him he was eligible for the death penalty when he was not so eligible, and (6) ineffective assistance of appellate counsel for failure to raise all of the preceding issues on direct appeal.
FACTS
In reviewing a petition for writ of habeas corpus under 28 U.S.C. § 2254, a federal court presumes that the facts found by state courts are correct. See Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769 (1981). A petitioner has the burden to establish, by convincing evidence, that a state court's factual determinations are erroneous. See U.S. ex rel. Green v. Greer, 667 F.2d 585, 589 n. 6 (7th Cir. 1981). Davenport does not challenge the Illinois appellate court's factual findings in his petition, so the court adopts the facts set forth in People v. Davenport, No. 1-88-1523, 207 Ill. App.3d 1105, 604 N.E.2d 578 (Table) (1st Dist. 1990). See Kines v. Godinez, 7 F.3d 674, 677 (7th Cir. 1993).
On July 13, 1986, Davenport told his roommate that he planned to rob Frank DiCecco ("DiCecco"), a former acquaintance with whom Davenport had a dispute. (Respondent's Answer ("Answer"), Ex. D. Ill. App. Ct. Order No. 1-88-1523; Illinois v. Davenport, No. 86 CR 11257 at p. 1.) Later that day, Davenport went to DiCecco's apartment carrying a bag that held a hammer. ( Id. at p. 1-2.) Sometime after gaining entry to DiCecco's apartment (the record does not reveal how), Davenport repeatedly hit DiCecco on and about the head from behind with the hammer. ( Id. at p. 2.) Davenport then showered at the apartment and left, taking DiCecco's foreign coin collection, some jewelry, and a VCR. ( Id.) The cause of DiCecco's death was later determined to be blunt trauma to the head and bodily area, including, notably, a caved-in skull inflicted by a hammer of the same type found at the crime scene. (Transcript, People v. Davenport, No. 86-CR-11257 Common Law Record and Report of Proceedings at p. 43.) The stipulated facts initially described two separate beatings, but Davenport's trial counsel corrected the record to reflect one set of blows. (Answer, Ex. A, Brief and Argument for Defendant-Appellant, No. 88-1523 at p. 9.) It is unclear from the record whether the initial blows rendered DiCecco unconscious instantly, as Petitioner suggests, or whether DiCecco remained conscious for some time afterwards, aware of the continued blows, as the State has maintained. (See Answer, Ex. C, Reply Brief for Defendant-Appellant, No. 88-1523 at p. 11-12.) Davenport returned to the apartment once again the day of the murder to take DiCecco's bicycle, credit cards and money. (Answer, Ex. D at p. 2.) The next day, Davenport bought a television set with one of DiCecco's credit cards, signing the victim s name. ( Id.) DiCecco's body was not discovered until July 21, 1986. ( Id.) The record does not reflect the exact time of DiCecco's death.
On August 10, 1986, Chicago Police Detective J. Fitzsimmons, after interviewing several people in the area, arrested Davenport for DiCecco's murder. (Answer, Transcript p. 41.) Fitzsimmons took Davenport to the police station, where, after being advised of his Miranda rights, Davenport gave a statement admitting to the murder. (Answer, Ex. D. at p. 2.) Davenport was thereafter indicted for murder, armed robbery, armed violence, and residential burglary. He was arraigned on September 10, 1996.
On July 13, 1987, Petitioner informed the court through his attorney of his desire for a plea conference. ( Id.) The Assistant State's Attorney initially declined to participate in the conference because the State was seeking a death sentence, but after conferring with his supervisor, agreed to participate. ( Id.) Before the plea conference, the court informed Davenport of the range of possible penalties, including natural life and the death penalty. ( Id.) Davenport was also advised that a murder charge carries a 20-year minimum sentence. ( Id.) Petitioner stated that he understood and wanted to participate in the conference. ( Id.) The parties then went off the record. (Transcript at p. 24.) When the record resumed, Davenport expressed some hesitation about the jury waiver form and stated, "I can't do 40 years." ( Id. at p. 25-26; Answer, Ex. D. at 2-3.) Davenport then conferred with his attorney ( Id. at p. 3), who, later that day informed the court that Petitioner wished to plead guilty. (Transcript at p. 27.) Following the conference, the court stated that it had received information regarding the incident as well as Petitioner's background and advised Petitioner that if he were to plead guilty, the court would sentence him to 80 years for the murder count and a concurrent 30 years on the armed robbery count. (Answer, Ex. D. at p. 3.) The court then asked the Petitioner if he wanted to plead guilty and Petitioner responded, "Yes, sir." ( Id.)
The court questioned the Petitioner to insure his plea was voluntary, reading the charges against him after which the Petitioner said he understood. ( Id.) The court advised the Petitioner of the full range of sentencing options and asked whether he had discussed the range of possible sentences with his attorney, to which Petitioner replied, "Yes, sir." ( Id. at p. 4.) The court explained that because the Petitioner was over 17 years of age and the offense was accompanied by exceptionally brutal and heinous behavior, which was indicative of wanton cruelty, it would impose an extended term. ( Id.) The court asked Petitioner if he had discussed his legal rights with counsel and Petitioner acknowledged that he had. ( Id.) The court then asked if Petitioner had been promised anything else besides the 80- and 30-year sentences previously mentioned in return for his plea or if Petitioner was being compelled to plead guilty, to which Petitioner answered "No, sir." ( Id.) When the court asked Petitioner if he was pleading guilty of his own free will, Petitioner answered, "Yes, sir." ( Id.)
See 730 ILCS 5/5-8-2 (formerly Ill. Rev. Stat. Ch. 38 1005-8-2 (1987)). Illinois permits imposition of an extended term where an aggravating factor as enumerated in 5/5-3-2(b) is present. See 5/5-8-2(a). One such aggravating factor is when defendant is convicted of a felony accompanied by "exceptionally brutal or heinous behavior indicative of wanton cruelty." 730 ILCS 5/5-3-2 (formerly Ill. Rev. Stat. ch. 38 § 1005-5-3.2(b)(2)). In the case of a murder accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, natural life imprisonment may alternatively be imposed. See 730 ILCS 5/5-8-1(a)(1)(b) (formerly Ill. Rev. Stat. ch. 38 § 1005-8-1(a)(1)(b)). Moreover, the death penalty may be imposed where a defendant convicted of first-degree murder killed his victim during the course of another felony. See 730 ILCS 5/5-9-1(b)(6)(a)(i) and (b)(6)(c) (formerly Ill. Rev. Stat. ch. 38 § 1005-9-1(b)(6)(a)(i), § 1005-9-1(b)(6)(c)).
The factual basis for Petitioner's plea was then read into the record by the Assistant State's Attorney and the court accepted Petitioner's guilty plea. ( Id. at p. 5.) The Assistant State's Attorney informed the court that the State would not be requesting a presentence investigation report. ( Id.) The court explained the purpose of the report to the Petitioner, who signed a waiver of the report. ( Id.) The State requested a separate hearing to determine whether Petitioner should be given the death penalty and Petitioner waived his right to a jury trial on this issue. ( Id. at p. 6.) At the sentencing hearing, the State and Petitioner stipulated that the Petitioner was convicted of armed robbery in 1982. ( Id.) Both parties submitted aggravating and mitigating factors to the court. (Transcript at p. 49-55.) This included stipulating to testimony about Petitioner's past were the State to call certain witnesses, the feelings of the victim's mother that 80 years was an appropriate term, and recognition of Petitioners's guilty plea as an admission of his wrongful acts. ( Id.) The court then sentenced Petitioner to an extended term of 80 years for murder and a concurrent 30-year term for armed-robbery. (Answer, Ex. D at p. 6) The court found Petitioner remorseful, as evidenced by his guilty plea, and considered this sufficient mitigation to preclude imposition of natural life imprisonment or the death penalty. ( Id.)
PROCEDURAL HISTORY
On August 3, 1987, the Public Defender's Office sought for leave to withdraw as counsel and for appointment of counsel other than the Public Defender because Davenport believed his trial attorney from the Public Defender's Office had been incompetent. On August 11, 1987, Davenport filed a pro se motion to withdraw the guilty plea and vacate the judgment. ( Id.) On December 30, 1987, an attorney appointed from outside the Public Defender's Office, Thomas Breen, appeared before Judge Robert V. Boharic, who had also been the presiding trial judge, to argue the motion to withdraw. Breen also filed a supplemental motion to vacate the plea. In that motion, Petitioner alleged that: (1) his confession was coerced by the police, (2) he was denied effective assistance of counsel; and (3) he had involuntarily waived his right to trial. ( Id.) After a hearing on February 19, 1988, the circuit court determined the issue to be one of credibility and denied Davenport's motion to suppress. ( Id.; Transcript at p. 193-198.) The court then agreed to assign the State Appellate Defender to represent Petitioner in his appeal. (Transcript at p. 199.)
On June 23, 1989, Davenport appealed the order, this time alleging: (1) the court erred in imposing an extended term based on its improper conclusion that the act was accompanied by exceptionally brutal or heinous behavior; (2) Petitioner's guilty plea was not voluntary or intelligent; and (3) the trial court lacked authority to request or accept a waiver of the presentence investigation where the State did not agree to any sentence other than death. (Answer, Ex. A, Brief and Argument for Defendant-Appellant, No. 88-1523.) On December 31, 1990, the appellate court affirmed the circuit court's denial of Petitioner's motion to withdraw the guilty plea. (Answer, Ex. D at p. 6.) The appellate court noted that Petitioner had failed to raise these three issues in his post-plea motion and the issues were therefore waived, however, the court went on to address and reject each claim on the merits. ( Id.) Petitioner did not seek leave to appeal to the Illinois Supreme Court. (Petition for Writ of Habeas Corpus at p. 5.)
Davenport claimed that although the court had announced the sentence it would give, the Assistant State's Attorney sought a death penalty hearing and that both parties must agree to a sentence before a presentence investigation can be waived. 730 ILCS 5/5-3-1 (formerly ILL. REV. STAT., 1987, Ch. 38, § 1005-3-1); People v. Youngbey, 82 Ill.2d 556, 413 N.E.2d 416 (1980).
Under Ill. S.Ct. Rule 604(b)(6): "in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to vacate the judgment and to withdraw his plea of guilty shall be deemed waived." Note: the rule was amended April 1, 1992 (eff. Aug. 1, 1992) to include motions to reconsider the sentence.
On the first claim, the appellate court noted that the determination of a sentence is a matter of judicial discretion and no abuse of discretion was found on review. On the second claim, the appellate court found that the trial court had more than adequately complied with Supreme Court Rule 402 in informing Petitioner of possible sentences. On the third claim, the appellate court found that the trial court's actions were not inconsistent with Youngbey, that the trial court had informed both parties of the sentence he would give, that the trial court had heard aggravating and mitigating evidence in the plea conference, and that there was no prejudice to the Petitioner from having waived the presentence investigation. (Answer, Ex. D, at p. 6-10.)
On January 6, 1992, Petitioner filed a pro se petition for post-conviction relief, alleging: (1) that appellate counsel was ineffective in failing to challenge the trial court's statement that Petitioner was eligible for the death penalty when he was not; (2) that trial counsel was ineffective for telling the Petitioner he was eligible for the death penalty when he was not; (3) that the trial court's inaccurate statement that Petitioner was eligible for the death penalty induced Petitioner to plead guilty. (Answer, Ex. E, Petition for Post-Conviction Relief, No. 86 CR 11257.) The petition was summarily dismissed by the circuit court. (See Answer, Ex. F, Ill. App. Ct. Order No. 92-2470, People v. Davenport, No. 86 CR 11257.) Thereafter, Petitioner filed an appeal, raising only two issues: (1) whether his petition for Post-Conviction Relief was timely filed; and (2) whether his petition for Post-Conviction Relief sufficiently alleged that his rights were violated by his attorney's statement that Davenport was eligible for the death penalty. (Answer, Ex. G, Petition for Leave to Appeal, No. 77290 at p. 3.) Petitioner's court-appointed counsel filed a motion to withdraw as appellate counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990 (1987). On September 21, 1993, the appellate court reviewed the record in assessing the Finley motion, found no issues of arguable merit, granted the motion to withdraw, and affirmed the judgment of the circuit court. (Answer, Ex. F.)
On May 27, 1994, Petitioner filed a pro se petition for leave to appeal to the Illinois Supreme Court, alleging: (1) ineffective assistance of trial counsel for erroneously advising him that he was eligible for the death penalty when he was not so eligible and for failing to object to the trial court's similarly erroneous statement; (2) ineffective assistance of appellate counsel where counsel failed to raise on direct appeal the claim of ineffective assistance of trial counsel in claim (1) above; and (3) the timeliness of Petitioner's petition for post-conviction relief. (Answer, Ex. G.) On October 6, 1994, the Illinois Supreme Court denied the petition. (Answer, Ex. H, Denial of Petition for Leave to Appeal, No. 77290.)
On April 21, 1997, Petitioner filed the instant pro se federal habeas corpus petition seeking relief from his state court conviction and sentence. Petitioner raises six arguments identified earlier: (1) improper sentence; (2) involuntariness of the guilty plea; (3) improper waiver of the presentence investigation; (4) appellate counsel's failure to argue ineffective assistance of trial counsel; (5) trial court's false statement about Petitioner's eligibility for the death penalty; and (6) ineffective assistance of appellate counsel for failure to raise all of the preceding issues on direct appeal. (Petition for Writ of Habeas Corpus at p. 5-7a.) Respondent denies the Petitioner is entitled to any relief. Respondent argues that (a) all of the claims are procedurally defaulted and (b) two claims are noncognizable for federal habeas relief. (Answer at ¶ 10.) The Respondent also requests the opportunity to respond on the merits should the court preserve any or all of the instant claims. ( Id.)
DISCUSSION
I. Standard of Review
Davenport's petition was filed on April 21, 1997, and is therefore governed by the amendments to 28 U.S.C. § 2254, Antiterrorism and Effective Death penalty Act of 1996, Pub. 104-132, § 104(3), 110 Stat. 1219 (effective April 24, 1996). The federal habeas corpus statute, 28 U.S.C. § 2254, provides that a district court will consider a petition for writ of habeas corpus presented by an individual "in custody pursuant to the judgment of a State court only on the ground that he is in the custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Before reaching the merits of a habeas corpus petition, however, Petitioner must show that he has exhausted available state remedies and avoided procedural default. Moleterno v. Nelson, 114 F.3d 629, 633-34 (7th Cir. 1997). As exhaustion is not contested by Respondent (Answer ¶ 8), the court focuses on the closely related doctrine of procedural default.
II. Procedural Default
Procedural default occurs when "a claim could have been but was not presented to the state court and cannot, at the time that the federal court reviews the habeas petition, be presented to the state court." McClain v. Deuth, 151 F.3d 1033 (Table, Text in WESTLAW), 1998 WL 516804 *2 n. 1 (7th Cir. 1998) citing Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992). More specifically, procedural default occurs in two ways: (1) a petition to the federal court includes claims that the petitioner failed to raise at the state level, see Momient-El v. DeTella, 118 F.3d 535, 540-41 (7th Cir. 1997), cert. denied, 522 U.S. 984, 118 S.Ct. 448 (1997); or (2) the state court declined to address a claim because the petitioner failed to comply with a state procedural requirement, see Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S. Ct. 2546, 2554 (1991). To preserve a claim for federal habeas review, "the petitioner must provide the state courts with the opportunity to review his constitutional claims." Pisciotti v. Washington, 143 F.3d 296, 300 (7th Cir. 1998). When the petitioner has not presented his constitutional claim and the state has not otherwise waived the presentment requirement, courts should find that the state courts have not had a fair opportunity to consider the claims. Moleterno, 114 F.3d at 634.
Petitioner's first three claims — that the trial court improperly found brutal or heinous behavior, that his guilty plea was not voluntary or intelligent, and that the court lacked authority to waive a presentence investigation — are procedurally defaulted because Petitioner failed to present them to the Illinois Supreme Court after they were denied by the Illinois Appellate Court. In O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1730 (1999), the Supreme Court established that when a state prisoner fails to present claims that he had raised before the appellate court in a timely petition for discretionary review to a state's supreme court, he procedurally defaults those claims for purposes of his petition for federal habeas relief.
Nor does Petitioner's post-conviction petition serve as an avenue for review by the state courts. Petitioner's right to seek reversal of these claims was waived when Petitioner failed to raise them in his post-plea motion. (Answer, Ex. A.) The Illinois appellate court's finding that these claims were waived (Answer, Ex. D at pp. 6-9) was a "plain statement" that the court was relying on adequate state procedural default in affirming the denial of relief. See Michigan v. Long, 463 U.S. 1032, 1042, 103 S.Ct. 3469, 3477 (1983). The Supreme Court has clearly ruled that "in all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565.
In addition, Petitioner's first and third claims fail to state a constitutional claim on which this court can grant habeas relief. As stated above, 28 U.S.C. 2254 limits habeas review to questions of federal statutory or constitutional law. Accordingly, the petitioner must claim a violation of same to be entitled to review. U.S. ex rel Lee v. Flannigan, 884 F.2d 945, 952 (7th Cir. 1989) cert. denied, 497 U.S. 1027, 110 S.Ct. 3277 (1990). Petitioner's first and third claims — trial court's conclusion Petitioner was eligible for the death penalty and trial court's waiver of presentence investigation — fail to state the necessary federal statutory or constitutional violation. These claims would therefore not be considered by the court even if they were not procedurally defaulted as discussed above.
Petitioner's fourth and fifth claims — ineffective assistance of appellate counsel in not arguing that trial counsel was ineffective and denial of due process in the trial court's assertion that Petitioner was eligible for the death penalty — are also procedurally defaulted. Petitioner pursued these claims in his post-conviction petition (See Answer, Ex. E), but failed to raise the claims on appeal from the circuit court's denial of post-conviction relief. His petition for appeal from that order raised only two issues: whether his petition had been timely and whether he had sufficiently alleged a violation of his rights where his attorney stated he was eligible for the death penalty. (Answer, Ex. G.) It is unclear from the record whether the appellate court affirmed the circuit court's judgment on the merits or due to the timeliness of the petition. At least one court in this district has addressed the merits of claims dismissed pursuant to Finley where such claims were not clearly denied on state grounds. See Armstrong v. Burris, 48 F. Supp.2d 1084, 1086 (N.D. Ill. 1999). There is no need to do so here, however, because the claims brought before the Illinois Appellate Court were not those raised in Petitioner's initial petition for post-conviction relief or in his petition for leave to appeal to the Illinois Supreme Court. The Supreme Court explained in O'Sullivan, that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." 526 U.S. at 844. In switching back and forth between claims, Petitioner has failed the "one complete round" test.
Even were the fourth and fifth claims not precluded, the claims fail on the merits. At the crux of these claims is Petitioner's eligibility for the death penalty under the Illinois felony-murder doctrine. See 720 ILCS § 5/9-1 (formerly Ill. Rev. Stat. (1985), Ch. 38, par. 9-1). Under Illinois law, a defendant is eligible for the death penalty if the defendant killed his victim in the course of another felony. Id., (b)(6). Petitioner incorrectly argues that first he killed DiCecco and then robbed him and therefore he is not eligible for the death penalty. (Answer, Ex. E. at 9.) The record shows that Petitioner left for DiCecco's apartment after stating his intention to rob DiCecco and arming himself with a hammer. Whether Petitioner left the apartment with DiCecco's belongings, before, after or while beating DiCecco to death is a distinction the court need not make. "When a defendant's sentence is based on a murder committed during the course of an armed robbery, the State need not prove that the victim was alive at the time of the robbery, but only that the two crimes occurred during one criminal episode." People v. Jackson, 304 Ill. App.3d 883, 897, 711 N.E.2d 360, 370 (1st Dist. 1999) ( cert. denied by Jackson v. Illinois, 120 S.Ct. 1275 (U.S. 2000)). In Jackson, the court upheld defendant's conviction on felony-murder when, after stabbing the victim multiple times with a knife, the defendant took the victim's watch, ring, bracelet and car. The circumstances here were functionally identical. The trial court therefore correctly informed Petitioner that he was eligible for the death penalty under Illinois's felony-murder doctrine.
Petitioner's sixth claim — ineffective assistance of appellate counsel for failure to raise all of the above claims — has been brought for the first time in the instant habeas petition. The absence of any opportunity for the state courts to address this claim renders it procedurally defaulted. See Momient-El, 118 F.3d at 540-41.
III. Exceptions to Default
Even if a petitioner has procedurally defaulted a claim, a federal court may examine its merits if the petitioner is able to: (1) demonstrate both cause for the procedural error and establish prejudice resulting from that error; or (2) show that failure to consider the claim will result in a fundamental miscarriage of justice. Aliwoli v. Gilmore, 127 F.3d 632, 634 (7th Cir. 1997). Petitioner has done neither.
Cause has been narrowly defined as "some objective factor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rules." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986). The Supreme Court in Murray provided the following examples: "a showing that the factual or legal basis for a claim was not reasonably available to counsel" or "when some interference by officials made compliance impracticable." Id. Petitioner has made no such showing. Petitioner's post-conviction petitions to the Illinois Appellate Court and the Illinois Supreme Court did raise the issue whether his post-conviction petition was timely filed. (Answer, Ex. G, Petition for Leave to Appeal, No. 77290.) The court did not address the issue, but Petitioner's timeliness argument does not present an objective factor. Petitioner filed his petition late. His timeliness argument improperly asks this court to revisit the state courts' interpretation of the filing statute, a matter of state law.
Petitioner's petition was due to be filed December 31, 1991. Petitioner claims to have mailed his petition January 2, 1992 and it was received by the Clerk of the Court on January 6, 1992. (Answer, Ex. G at p. 24.) Petitioner argues that (1) as a pro se petitioner he is allowed four additional days to file; (2) effective January 1, 1992, the date of mailing is the date of filing; and (3) the date Petitioner gave his petition to prison authorities is the day of mailing. The Illinois Appellate Court did not accept his argument.
Petitioner contends that he did not file a direct appeal from his conviction to the Illinois Supreme Court because his attorney "refused to file such." (Petition at p. 5.) Counsel's refusal to proceed is not "cause," however, as the Supreme Court explained in Coleman, "attorney ignorance or inadvertence is not `cause' because the attorney is the petitioner s agent when acting or failing to act, in furtherance of the litigation, and the petitioner must `bear the risk of attorney error.'" Coleman, 501 U.S. at 753, 111 S.Ct. at 2566-67, citing Murray, 477 U.S. at 488, 106 S.Ct. at 2645. Provided the attorney's performance was not constitutionally ineffective under the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the petitioner will bear the risk of attorney error resulting in procedural default. Coleman, 501 U.S. at 752, 111 S.Ct. at 2566.
"When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 687-88, 104 S.Ct. at 2064. There is nothing in the record to indicate, nor did Petitioner argue, that appellate counsel's alleged unwillingness to file an appeal to the Illinois Supreme Court was unreasonable, especially given that the Illinois Appellate Court affirmed the circuit court on both procedural grounds and on the merits.
The standard for fundamental miscarriage of justice was set forth by the Supreme Court in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851 (1995). Citing Murray, the Court ruled that petitioner must show that he is actually innocent, but was probably convicted due to a constitutional violation. Schulp, 513 U.S. at 327, 115 S.Ct. at 867. "To establish the requisite probability, the Petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. Petitioner makes no claim of innocence and has at no time offered new evidence to that effect. In addition, the evidence identified at the time of the plea is sufficient for a reasonable juror to convict Petitioner.
CONCLUSION
For the reasons discussed above, the court denies Petitioner's petition for a writ of habeas corpus. The Clerk of the Court is instructed to enter judgment pursuant to FED. R. Civ. P. 58, in favor of Respondent.