Opinion
No. 98 C 3342
October 23, 2000
MEMORANDUM OPINION AND ORDER
This case comes on remand from the United States Court of Appeals for the Seventh Circuit. Oringinally, petitioner Uluches Jefferson ("Jefferson") filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with this court. This court denied Jefferson's petition as untimely. The Seventh Circuit reversed that decision, granted a certificate of appealability and remanded the matter to allow this court to make a first assessment on the underlying merits of Jefferson's claims. After assessing the underlying merits, Jefferson's petition for habeas relief is DENIED.
PROCEDURAL HISTORY
Jefferson was convicted of first degree murder in the Circuit Court of Cook County, Illinois and sentenced to 35 years of imprisonment in the Illinois Department of Corrections. People v. Jefferson, 1-93-0817 (Ill.App. Ct. 1st Dist. Sept 17, 1996). Jefferson timely appealed to the Illinois Appellate Court after his conviction and on September 17, 1996, the Illinois Appellate Court affirmed his conviction and sentence. People v. Jefferson, No. 1-93-0817 (2d Dist. 1996) (unpublished order pursuant to Supreme Court Rule 23). Jefferson failed to file a timely petition for leave to appeal before the Illinois Supreme Court.
On February 9, 1996, while the direct appeal was pending in the Illinois Appellate Court, Jefferson filed a post-conviction petition, pro se, in the Cook County Circuit Court. On March 22, 1996, Judge Dennis J. Porter dismissed the petition as frivolous and patently without merit. On May 16, 1996, Jefferson filed a notice of appeal from the dismissal of his post-conviction petition. On November 6, 1996, the Illinois Appellate Court affirmed the judgment of the circuit court. People v. Jefferson, No 1-96-2474 (1st Dist. 1996) (unpublished order pursuant to Supreme Court Rule 23).
On July 17, 1997, Jefferson moved for leave to file a late petition for leave to appeal both decisions of the appellate court to the Illinois Supreme Court. See Jefferson v. Welborn, 222 F.3d 286, 287 (7th Cir. June 29, 2000). On September 24, 1997, the Illinois Supreme Court issued an order in which it granted Jefferson's motion for leave to file a late petition for leave to appeal. On December 3, 1997, the Illinois Supreme Court denied his petition for leave to appeal.
On March 12, 1998, Jefferson filed a petition for writ of habeas corpus with this court. This court dismissed Jefferson's petition as untimely, based on the one year statute of limitation for filing a first petition for collateral review under 28 U.S.C. § 2254-2255. See 28 U.S.C. § 2244 (d).
On appeal, the Seventh Circuit reversed and remanded the matter to this court. The Seventh Circuit found the Jefferson's course of events was enough to make his appeal of his state proceedings one that was properly filed as of July 17, 1997, for purposes of the statute of limitations.See Welborn, 222 F.3d. at 289.
STANDARDS OF REVIEW
Jefferson filed his petition for a writ of habeas corpus with this court on March 12, 1998. Accordingly, review of this petition is governed by 28 U.S.C. § 2254 as amended by the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"). Under amended § 2254, in order for Jefferson to demonstrate that a writ of habeas corpus should be granted, he must show that the claim was adjudicated on the merits in state court and that the adjudication either: (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 court proceeding. 28 U.S.C. § 2254 (d). In reviewing a petition for a writ of habeas corpus, any determination of a factual issue made by a state court will be presumed to be correct unless petitioner can rebut the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1).
ANALYSIS
I. Procedural Default
In addition to the substantive burden Jefferson must carry in order to demonstrate that a writ must be granted, Jefferson must also clear certain procedural hurdles. This court may not consider the merits of a petitioner's claim if the claim has been procedurally defaulted.Momient-El v. DeTella, 118 F.3d 535, 532 (7th. Cir. 1997). A writ of habeas corpus will be denied as procedurally defaulted unless Jefferson has exhausted all the remedies available in state court according to state procedure. 28 U.S.C. § 2254 (b). Additionally, procedural default can occur where: (1) the petitioner presents an issue within a petition never before presented to the state court for review See Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995); (2) the petitioner failed to properly and fairly raise the federal element of an issue now presented on petition first to the state court for review, See Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992); or (3) the state court previously disposed of an issue now presented on petition on an independent and adequate state law ground, such as a state procedural bar. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546 (1991).
In this case, it is undisputed that Jefferson has exhausted all of his state court remedies of relief. The State argues that Jefferson did not properly follow state procedure in exhausting his claims. The State asserts that Jefferson procedurally defaulted four out of his five claims because he failed to file a petition for leave to appeal following the state appellate court affirming his conviction and sentence on direct appeal. This argument must fail because as both the Seventh Circuit stated in its opinion Jefferson v. Welborn, 222 F.3d 286 (7th Cir. June 29, 2000) and as Jefferson aptly noted in his reply to the State's answer to his petition for writ, Jefferson's July 17th motion to the Illinois Supreme Court for leave to file a late petition for leave to appeal concerned the appeal of both his direct appeal as well as his post-conviction appeal. See Welborn, 222 F.3d at 287. As a result, the Illinois Supreme Court order of December 3, 1997, was a substantive rejection of both his direct appeal and collateral attack. See Id. at 288.
The confusion that has arisen if any, is because Jefferson alleged over fourteen claims between his direct and post-conviction appeals within the state court system. Now in this currently pending petition, Jefferson presents five claims and seven sub-claims. For clarity and consistency, Jefferson's claims pending in this petition are identified herein as follows: (A) ineffective assistance of counsel for (1) failure to call Dr. Young to establish his medical condition at the time of the shooting, (2) failure to ensure that the jury was properly instructed, (3) allowing the trial judge to shift the burden of proof to him, and (4) failure to object to hearsay testimony of Detective Kill; (B) denial of due process and a fair trial where: (1) the trial judge failed to properly instruct the jury as to the defenses presented, (2) the trial court unconstitutionally shifted the burden of proof to him to prove his innocence, and (3) the trial court improperly weighted mitigating factors on sentencing; (C) the prosecution improperly withheld from the defense evidence material to guilt and favorable to the defense; (D) the State did not prove the elements of the offense beyond a reasonable doubt; and (E) the State was improperly permitted to call Detective Kill as a surprise witness. Jefferson presented the broad constitutional claims of(A), (B), and (C) only on his collateral attack, whereas the sub-issues of (A)(2), (3), and (4); (B)(1), (2), and (3); and issues (C), (D) and (E) were either never brought up at all in state court or only brought up by inducement and innuendo on direct appeal. Without the sub-issues presented in his direct appeal, Jefferson's constitutional claims presented in this petition are vague, sweeping allegations. Similarly, without the constitutional claims of the collateral attack, the sub-issues within this petition do not present a federal violation upon which habeas relief may be granted. In reviewing the record of the state court, this court finds that claims (A)(2), (3), (4), and (B)(1), (2), (3) are procedurally defaulted because Jefferson failed to present these claims in any form to the state court, that claim (C) is procedurally defaulted because the Illinois Appellate Court has already dismissed this claim on an independent and adequate state court basis, and that claims (D) and (E) are procedurally defaulted because Jefferson failed to fairly present the federal issue within these claims to the state court for their review first. As a result, the only claim that this district may review on its merits is claim (A)(1) ineffective assistance of counsel for failure to call Dr. Young to establish Jefferson's medical condition at the time of the shooting.
A. Procedure Default by Failure to Present Issues to State Court
A state prisoner must give the state court system an opportunity to act on his constitutional claims before presenting those claims to a federal court in a habeas petition. See O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999); Anderson v. Cowan, No. 99-3485 2000 WL 1319513 (7th Cir. Sept. 15, 2000). To accomplish this, state prisoners must present and pursue fully any issue presented on writ through one complete round of the State's established appellate review process.Boerckel, 526 U.S. 838, 119 S.Ct. at 1732. This exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts. Thus, claims that were never presented to the state courts cannot be raised for the first time in a federal habeas petition.See Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995).
In his post-conviction appeal, Jefferson claimed that trial counsel was ineffective for: (a) failing to call a doctor to testify regarding the condition of his leg; (b) failing to call for a clinical psychologist to examine the state's witnesses in order to establish that they were easily led and would repeat stories; and (c) failing to call a defense witness who could have given testimony to the Jefferson's whereabouts ten minutes before the shooting occurred. Jefferson never made any allegations of ineffective assistance of counsel on direct appeal. In this petition, Jefferson now claims ineffective assistance of counsel: (2) for failure to ensure that the jury was properly instructed, (3) for allowing the trial judge to shift the burden of proof to him, and (4) for failure to object to hearsay testimony of Detective Kill. By alleging (2), (3), and (4) for the first time in this petition Jefferson denied the state courts the opportunity resolve these claims. As a result, sub-issues (2), (3), and (4), within Jefferson's claim of ineffective of assistance, are procedurally defaulted.
Concerning Jefferson's claims of denial of due process and fair trial, in his post-conviction appeal Jefferson claimed only a broad constitutional denial of a fair trial with no specific details and did not claim any denial of due process. Again, Jefferson never made any allegations of denial of due process or fair trial on direct appeal. Now in this petition, Jefferson claims for the first time denial of due process and a fair trial where: (1) the trial judge failed to properly instruct the jury as to the defenses presented, (2) the trial court unconstitutionally shifted the burden of proof to him to prove his innocence, and (3) the trial court improperly weighted mitigating factors. Again, by alleging (1), (2), and (3) for the first time in this petition, Jefferson denied the state court the opportunity to adjudicate these issues, and as a result Jefferson's claims of denial of due process and fair trial sub-issues (1), (2), and (3) are procedurally defaulted.
B. Procedural Default by Independent and Adequate State Grounds
A federal court will not consider an issue of federal law on direct review from a judgment of a state court if that judgment is based on a state law ground which is both "independent" of the merits of the federal claim and an "adequate" basis for disposition of the issue. See Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 1042 (1989). This rule applies to state court judgments based on both substantive and procedural grounds. Id. The state court's opinion must contain a plain statement that its decision rests upon an adequate and independent state ground.Harris, 489 U.S. at 261, 109 S.Ct. at 1042. Thus, the mere fact that a petitioner failed to abide by a state procedural rules does not, in of itself, prevent a federal district court from reaching the federal claim. The state court must have actually relied on the procedural bar as an independent basis for disposition of the case. Id.
In this case, Jefferson on direct appeal in the state court and here in this petition claims that the State withheld evidence to his defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). Jefferson properly presented this issue first to the state court and properly framed the federal issue for the state court to adjudicate. Nonetheless, this claim is procedurally defaulted because the Illinois Appellate Court disposed of this claim by a state procedural bar. In its opinion dated September 17, 1996, the Appellate Court of Illinois, First Judicial District stated that Jefferson's Brady claims were waived because Jefferson failed to raise the issue in his post-trial motion.See People v. Jefferson, 282 Ill. App.3d 1103 (1st Dist. 1996) (unpublished order pursuant to Supreme Court Rule 23). The procedural bar employed by the Illinois Appellate Court to dispose of Jefferson's claims is an independent and adequate basis for disposition of Jefferson's claim. As a result, this court will not consider Jefferson's Brady claim.
C. Procedural Default b Failure to Fairly Present Federal Issue to State Court
A state must be first accorded the opportunity to protect the federally assured interests of its criminal defendants. Verdin, 972 F.2d at 1473. Federal habeas only exists to rescue those in custody because of a failure to apply federal rights correctly if applied at all. Id. This court will consider an issue fairly presented to the state courts for their evaluation if the petitioner's argument to the state courts either: (1) relied on pertinent federal cases employing constitutional analysis; or (2) relied on state cases applying constitutional analysis to a similar factual situation; or (3) asserted claims in terms so particular as to call to mind a specific constitutional right; or (4) alleged a pattern of facts that is well within the mainstream of constitutional litigation. Verdin, 972 F.2d 1473-4. The presence of any one of these factors, particularly factors (1) or (2), does not automatically avoid procedural default. Id. This court must consider fully the specific facts of each case in order to determine whether claims are fairly presented.
In this petition, Jefferson claims that (D) the State did not prove the elements of his offense beyond a reasonable doubt, and that (E) the State was improperly permitted to call Detective Kill as a surprise witness. On direct appeal to the Illinois Appellate Court, however, Jefferson raised three claims: (1) the circuit court erred in allowing the jury to view autopsy photographs of the victims during deliberations; (2) he was not proved guilty beyond a reasonable doubt; and (3) the court erred in considering evidence of another shooting at sentencing. In a supplementalpro se brief, Jefferson raised five additional issues: (4) the court erred in limiting the cross-examination of a state's witness; (6) the court erred in admitting evidence of a prior crime; (7) his sentence of 35 years is excessive; and (8) the court improperly excluded evidence of his state of mind at the time of the crime. In comparing these two appeals, it is clear that Jefferson in state court did not rely on pertinent federal cases to establish any of the allegations present in claims (D) or (E). Additionally, Jefferson did not rely on any state case law applying federal constitutional analysis. Furthermore, Jefferson did not assert his claims to the state court in terms so particular to call to mind a specific constitutional right. Lastly, Jefferson did not allege to the state court a pattern of facts that is well within the mainstream of constitutional litigation. Although Jefferson has correctly presented both of these claims first to the state courts, giving them the opportunity to act on his claims, Jefferson failed to notify the state courts as to the federal issues he now raises in this pending petition. Therefore, Jefferson failed to accord the state court the opportunity to protect his federal rights, and as a result, Jefferson's claims (D) and (B) are procedurally defaulted.
D. No Cause Shown to Save Procedurally Defaulted Claims
If a federal district court does not reach claims raised by a petitioner because of a procedural default, that court may nonetheless review the merits of such claims if the petitioner demonstrates cause sufficient for the default and actual prejudice as a result of the alleged violation of federal law. See Wainwright v. Sykes, 433 U.S. 72, 90-1, 97 S.Ct. 2497 (1977). In order for there to be sufficient cause, there must be a showing of some external impediment that prevented the petitioner from properly raising the claim. Murray v. Carrier, 477 U.S. 478, 488 (1986). In the alternative to demonstrating cause and prejudice, a petitioner may show that review of a procedurally defaulted claim is necessary to correct a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. A fundamental miscarriage of justice is a very narrow exception limited to extraordinary cases where the petitioner is actually innocent, and not merely legally innocent, of the crime convicted. See Steward v. Gilmore, 80 F.3d 1205, 1212 (7th Cir. 1996). A fundamental miscarriage of justice is established by demonstrating that it is more likely than not that no reasonable juror would have convicted petitioner in light of new evidence. See Schlup v. Delo, 513 U.S. 298, 327 S.Ct. (1995).
Here, Jefferson has made no showing of cause and no showing of prejudice for his failure to properly preserve claims (A)(2), (3), (4); (B)(1), (2), (3); (C), (D), and (E) for review by this court. In the alternative, Jefferson has not alleged nor presented any proof suggesting that this court needs to review any of his procedurally defaulted claims in order to avoid a fundamental miscarriage of justice. As such, Jefferson's habeas claims (A)(2), (3), (4); (B)(1), (2), (3); (C), (D), and (E) will not be considered by this court.
II. Merits of Claim not Defaulted
The first phrase of § 2254(d)(1) pertains only to questions of law and authorizes habeas relief when the state court's decision is "contrary to" clearly established federal law as determined by the Supreme Court.Lindh v. Murphy, 96 F.3d 856, 868 (7th Cir. 1996), rev'd on other grounds not relevant here, 512 U.S. 320 (1997). Thus, federal courts are "free to express an independent opinion on all [constitutional] legal issues in the case." Lindh, 96 F.3d at 868-69. The second phase of § 2254(d)(1) pertains to mixed questions of law and fact and authorizes habeas relief when the state court's decision involves an unreasonable application of clearly established federal law as determined by the Supreme Court. Id. at 870. This phrase "tells federal courts: Hands off, unless the judgment in place is based on an error grave enough to be called `unreasonable.'" Id. A state court's application of Supreme Court precedent is reasonable if it is "at least minimally consistent with the facts and circumstances of the case." Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997). "[W]hen the constitutional question is a matter of degree, rather than concrete entitlements, a . . . responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support [a state court's] judgment." Lindh, 96 F.3d at 871. If a state court asks the "legally correct question [such as] whether the trial judge abused his discretion . . . [then] the fact-specific answer cannot be called `unreasonable' even if it is wrong . . ." Id. at 876-77.
The only claim which Jefferson has properly preserved for review by this court is his claim that trial counsel was ineffective for failing to call Dr. Young to testify regarding the condition of Jefferson's leg. This court may only grant habeas relief if Jefferson can demonstrate that the state courts' adjudications were either contrary to, or an unreasonable application of, Supreme Court precedent. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court stated that in order to succeed on a claim of ineffective assistance of counsel a defendant must show: (1) that trial counsel's representation was deficient; and (2) that this deficient performance resulted in prejudice to the defendant. If a defendant falls to make a sufficient showing of either prong, a reviewing court need not address the remaining prong and the entire claim must fail Strickland, 466 U.S. at 697.
Jefferson, in his petition, details how his counsel at trial failed to adduce medical records regarding the condition of his knee, which was impaired due to a .38 caliber gunshot wound and in a brace at the time of the shooting. Jefferson claims that this information was vital for the jury to hear because it would have further corroborated his self-defense case. However, the appellate record reveals that Jefferson testified at trial that he was hindered by a gunshot wound to the knee. The record shows that Jefferson testified that he was nervous for his health because of the relative size of the decedent and the decedent's brother, the close proximity of the brothers, and because of his inability to retreat from the scene due to the condition of knee. Additionally, the record shows that the State did not contest any the facts concerning Jefferson's knee nor his inability to retreat. There is no evidence to suggest that Jefferson's trial counsel was deficient in not producing additional evidence to corroborate these uncontested facts. In essence, there is nothing in the record to suggest that trial counsel's performance was so deficient that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment.
In addition to the lack of evidence to support a finding of deficiency by counsel, Jefferson has failed to show how counsel's "deficiency" prejudiced his case. In his order of March, 22, 1996, Judge Dennis J. Porter of the Circuit Court of Cook County stated in response to Jefferson's claim of ineffective assistance of counsel:
Defendant's [Jefferson's] allegations related to alleged ineffective assistance of counsel for counsel's failure to call additional witnesses regarding the condition of defendant's legs are without merit as such evidence is merely cumulative to the evidence adduced at trial. The defendant has suffered no prejudice. (Respondent's Exhibit at ¶ 4).
Jefferson does not argue that the factual findings made by the state courts with respect to this claim were unreasonable. Therefore, these findings are accepted as true by this court.
This court finds that Jefferson's representation at trial was not deficient. Additionally, the state court was reasonable in determining that Jefferson suffered no prejudice as a result of the lack of additional medical records offered at trial. Furthermore, the state court's ultimate resolution of this issue is not contrary to federal law. Therefore, Jefferson's claim of ineffectiveness of trial counsel is denied.
CONCLUSION
For the reasons stated, Jefferson's claims identified herein as (A)(2), (3), (4); (B)(1), (2), (3); (C), (D) and (E) in support of his petition for writ of habeas corpus are all procedurally defaulted. Jefferson's remaining claim identified as (A)(1) is without merit and therefore denied. Accordingly, Jefferson's petition for a writ of habeas corpus is DENIED. This case is dismissed in its entirety. All other pending motions are moot.