MILTON I. SHADUR, Senior District Judge.
Ignacio Rosario ("Rosario") has filed a Petition for Writ of Habeas Corpus ("Petition") under the Antiterrorism and Effective Death Penalty Act ("AEDPA," 28 U.S.C. § 2254(d)
To address Rosario's claims this Court initially ordered respondent Warden Kevwe Akpore ("Respondent") to file an answer to the petition pursuant to Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts ("Section 2254 Rules"). Although this Court usually automatically grants petitioners the opportunity to file replies under Section 2254 Rule 5(e)
If Rosario nonetheless believes that additional relevant information would call for a different decision, he is free to file a timely motion under Fed.R.Civ.P. 59(e),
Under Section 2254(e)(1) the state court's findings of fact are presumptively correct in any federal habeas proceeding. Accordingly this opinion begins with the Illinois Appellate Court's recitation of the facts on direct review of Rosario's conviction (People v. Rosario, No. 2-09-0371, 2011 WL 10099316, at *2-*5 (Ill.App.2d Dist. June 29)):
On direct appeal of his convictions Rosario argued that (1) he was denied a fair and impartial jury because the trial court failed to comply with Rule 431(b), (2) the trial court erred in failing to limit the use of gang evidence and (3) counsel was ineffective for failing to request a limiting instruction with regard to the gang evidence (Ans. 4). On June 29, 2011 the Illinois Appellate Court rejected each of those arguments and affirmed his conviction (Rosario, 2011 WL 10099316). Rosario next filed a petition for leave to appeal to the Illinois Supreme Court, reiterating the same three arguments, and on May 20, 2012 the Supreme Court denied that petition. Rosario sought no other post-conviction relief in the Illinois state courts, and the time period to seek such relief has
Before a federal court can address the merits of a Section 2254 petition, petitioner must have both exhausted his state remedies and avoided any fatal procedural defaults (Section 2254(b)(1); Perruquet v. Briley, 390 F.3d 505, 513-15 (7th Cir.2004)). Claims are exhausted "by either (a) providing the highest court in the state a fair opportunity to consider the constitutional issue, or (b) having no further available means for pursuing review of one's conviction in state court" (Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir.1985) (per curiam)).
Any claims that survive those threshold procedural obstacles must then satisfy Section 2254(d)'s stringent requirement for addressing habeas claims that the state courts have considered and rejected on their merits:
Thus federal courts will not disturb a state court's application of federal law "unless it is both incorrect and unreasonable" (Carter v. Thompson, 690 F.3d 837, 843 (7th Cir.2012) (internal quotation marks omitted)). "`Unreasonable' in this context means something like lying well outside the boundaries of permissible differences of opinion" (Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir.2012) (internal quotation marks omitted)).
Further, Section 2254(d)'s statutory unreasonableness standard allows "the state court's conclusion to stand if it is one of several equally plausible outcomes" (Woolley v. Rednour, 702 F.3d 411, 425 (7th Cir.2012) (internal quotation marks omitted)). Simply put, "Federal habeas courts are generally limited to a deferential review of the reasonableness, rather than the absolute correctness, of a state court decision" (Newman v. Harrington, 726 F.3d 921, 927 (7th Cir.2013) (internal quotation marks omitted)). As to factual matters, "[t]he state court's factual determinations are entitled to a presumption of correctness, and the petitioner has the burden of overcoming this presumption by clear and convincing evidence" (Thompkins, 698 F.3d at 983; Section 2254(e)).
All those things, then, provide the procedural matrix for consideration of Rosario's
Rosario raises three claims for relief here: (1) that the trial court violated his First Amendment rights by allowing evidence of gang affiliation when the crime was not gang related, (2) that his counsel was ineffective because of a failure to seek an instruction limiting the use of gang evidence or to preserve a "curative defense" and (3) that he was denied equal protection and due process because the trial judge did not comply with Illinois Supreme Court Rule ("Rule") 431(b) (Pet. 9-10). Those claims will be addressed seriatim.
It should be noted at the outset that it is questionable whether the gang affiliation claim is cognizable on habeas review. This Court may examine only errors of federal law on habeas review-matters of state evidentiary law are not cognizable (Perruquet, 390 F.3d at 511). Although a First Amendment violation poses a federal constitutional issue, it is questionable whether Rosario has sufficiently laid out such a claim (see id. at 512-13). Nonetheless, construing the claim liberally as is called for by Rosario's pro se status (id. at 512), this Court will assume arguendo that the claim is cognizable for the sake of this analysis.
Even on that assumption, there is no doubt that the claim cannot succeed, for if a habeas petitioner fails to have presented the state courts with the same claim he is bringing in the federal court and the opportunity to raise that claim in state court has passed, the claim is procedurally defaulted (Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir.2007)). It is not enough for the state claim and the federal claim to arise from the same facts — instead the federal court must ask "whether the petitioner has framed his claim in the state proceedings in a way that brings to mind a specific constitutional right, and whether he has alleged a set of facts well within the mainstream of constitutional litigation" (id. at 670 (internal quotation marks omitted)). To that end the federal court must assess "whether the petitioner alerted the state court to the federal nature of his claim in a manner sufficient to allow that court to address the issue on a federal basis" (id. at 670, emphasis added).
That requirement has clearly not been met here. While Rosario did contend in the Illinois Appellate Court that the admission of gang evidence was improper, his arguments said nothing about the First Amendment (see Ans. Ex. B). Instead the Appellate Court dealt only with Rosario's contention that the jury should have been given certain instructions regarding the gang evidence as a matter of state law (Rosario, 2011 WL 10099316, at *7).
Because Rosario has pursued neither of those avenues in the Petition, it is equally plain that his just-explained procedural default cannot be excused (see Crockett v. Hulick, 542 F.3d 1183, 1193 (7th Cir. 2008)).
Rosario next makes an ineffective assistance of counsel claim, arguing that his counsel "failed to seek an instruction relevant to the limited use of gang evidence — or preserve a curative defense upon the admissability [sic] of gang evidence" (Pet. 10). That same argument was rejected by the Illinois Appellate Court, which held that counsel's failure to seek a limiting instruction did not violate the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (Rosario, 2011 WL 10099316, at *8). On that score Respondent asserts that the state court's decision did not "result[ ] in a decision that was contrary to, or involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "result[ ] in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" (Section 2254(d)(1) and (2)).
To establish a claim for ineffective assistance of counsel, Rosario must demonstrate (1) that his counsel's performance fell below an objective standard of reasonableness and (2) that he was prejudiced by the deficient performance (Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Under Strickland "[j]udicial scrutiny of counsel's performance is highly deferential, and under AEDPA we defer to the state court's application of Strickland on federal habeas review, meaning that our evaluation of counsel's performance is doubly deferential" (Thompkins, 698 F.3d at 986 (internal quotation marks omitted)). This Court asks not whether the state court's Strickland determination was correct, but rather only whether it was reasonable (Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011)).
It is clear indeed that the state court's analysis here was not unreasonable. Rosario, 2011 WL 10099316, at *8 first correctly stated the two-pronged Strickland test. Then, even though the Appellate Court stated that "[w]e are not convinced that error occurred," it went on to hold that even if it were to assume arguendo that counsel's inaction did constitute an error, there was no prejudice because "the evidence was overwhelming and the outcome would have been the same" (id.).
True enough, the Appellate Court did not provide in-depth analysis of the first Strickland prong, stating only that it was "not convinced that error occurred." Given that minimal discussion, it may be debatable whether the "doubly deferential" AEDPA standard applies (see Quintana v. Chandler, 723 F.3d 849, 852-54 (7th Cir. 2013)), but analysis shows that even under de novo review the claim does not survive.
As Rosario, 2011 WL 10099316, at *8 correctly noted, to show an error under Strickland the alleged error must be "so
That being so, the situation was very different from one in which competent counsel should give active consideration to a limiting instruction — say a case where gang membership is referred to only tangentially, so that the jury has to be cautioned against permitting it to divert attention from the question of guilt or innocence of a charged crime. Here there was no such reason for Rosario's counsel to consider seeking such a limiting instruction, and it is not really this Court's job to second-guess trial counsel's legitimate decisions (Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment" (id. at 690, 104 S.Ct. 2052), and in this case that presumption has not been overcome.
But even apart from what has just been said, it must be remembered that Strickland prescribes a twofold test, in which the attacker must overcome both hurdles. And as for Strickland's prejudice prong, Rosario, 2011 WL 10099316, at *8 stated:
To show prejudice a petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome" (Harrington, 131 S.Ct. at 787, internal quotation marks omitted).
In that regard the Illinois Appellate Court correctly stated the standard, and this Court cannot say that a reasonable court could not have come to the same conclusion. Indeed, it should be remembered that the jury acquitted Rosario on seven of the thirteen charges against him — hardly the action of a jury tainted by an assumption of guilt based on gang membership. Because the Appellate Court's determination in that respect was certainly not unreasonable, Claim Two also fails.
Finally, Rosario argues that he was denied due process because the trial court erred in failing to comply with Rule 431(b). Rule 431(b) states that during voir dire:
That Rule goes on to specify that "[t]he court's method of inquiry shall provide
Respondent counters with two arguments: (1) that Claim Three is not federally cognizable and (2) that the claim is procedurally defaulted. Both of those arguments are meritorious. It is axiomatic that "errors of state law in and of themselves are not cognizable on habeas review" (Perruquet, 390 F.3d at 511). "[O]nly if a state court's errors have deprived the petitioner of a right under federal law can the federal court intervene" (id., emphasis added). Matters of evidentiary rulings and jury instructions are usually beyond the scope of federal habeas review (id.), and this case is no exception. Rosario, 2011 WL 10099316, at *6 clearly stated that "[a] violation of Rule 431(b) does not implicate a fundamental right or constitutional protection, but only involves a violation of the supreme court's rules." Because the alleged error rises and falls solely on questions of state law and does not implicate any federal due process rights, it is not cognizable on habeas review.
Even if that were not so, the claim would still be procedurally defaulted. On that score a claim is procedurally defaulted when the "claim was presented to the state courts and the state-court ruling against the petitioner rests on adequate and independent state-law procedural grounds" (Perruquet, 390 F.3d at 514). Rosario, 2011 WL 10099316, at *5-*6 addressed Rosario's Rule 431(b) argument but held that the argument was forfeited because he did not present his objection either during the voir dire or in his motion for a new trial and because the "plain error doctrine" did not apply so as to excuse forfeiture.
Procedural requirements such as those clearly qualify as independent and adequate state grounds (Holmes v. Hardy, 608 F.3d 963, 967 (7th Cir.2010)). As Smith, 598 F.3d at 382 has explained:
Here Rosario's discussion of the issue makes it plain that the court was "actually relying" on forfeiture as a basis for disposing of the claim (Rosario, 2011 WL 10099316, at *5-*6). Although Rosario, id. at *6 did touch briefly on the merits of the claim in its discussion of the applicability of the plain error doctrine, Kaczmarek v. Rednour, 627 F.3d 586, 592 (7th Cir.2010) has reconfirmed our Court of Appeals' consistent holdings that "where a state court reviews a federal constitutional claim for plain error because of a state procedural bar ... that limited review does not constitute a decision on the merits."
As for adequacy, "[a] state law ground is adequate when it is a firmly established and regularly followed state practice at the time it is applied" (Smith, 598 F.3d at 382). There is no doubt that the forfeiture rule is an established rule in Illinois state courts, and our Court of Appeals has acknowledged that it constitutes an adequate and independent state ground for procedural default (Miranda v. Leibach, 394 F.3d 984, 997 (7th Cir.2005)).
As discussed earlier as to Claim One, it may be possible for some procedural defaults to be excused (Smith, 598 F.3d at 382), but Rosario has presented no argument as to why this Court should excuse
Section 2254 Rule 11(a) requires this Court to issue or deny a COA when it enters a final order adverse to a habeas petition — and it does indeed dismiss Rosarios's petition. Moreover, this Court holds that the crystal — clear basis for that dismissal obviates any need to direct the parties to submit arguments as to whether a COA should issue.
In that respect, if a claim is rejected on substantive grounds, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong" (Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). Claim Two, the only claim to be rejected on substantive grounds, does not meet that standard.
And where a claim is rejected on procedural grounds, as is the case regarding Claims One and Three), "a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling" (id.). That standard has not been met as to either of those claims, for the procedural hurdles were clearly not overcome in either instance.
In sum, no COA will be issued here. If Rosario seeks to carry his claims further, he must tender that issue to the Court of Appeals.
For the reasons set out at length in this opinion, Rosario's Petition is dismissed in its entirety. As stated at the outset, if Rosario believes that he can submit additional information that would call for a change in this Court's analysis (a prospect that appears highly unlikely), Fed.R.Civ.P. 59(e) provides a nonextendable 28 day period within which he may do so.
It has never been clear whether that means a habeas petitioner has the right to submit a reply or whether it means that the judge may order such a reply as needed. In an abundance of caution this Court has most often proceeded with the former reading, but as the text reflects that does not appear to be called for here.
