JAMES E. SHADID, Chief District Judge.
This matter is before the Court on Petitioner, Craig Harvey's ("Petitioner") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254 [1]. For the reasons set forth below, the Petition [1] is DENIED.
Petitioner is an inmate at Stateville Correctional Center in Joliet, Illinois under the custody of Respondent, Warden Lemke. Following a jury trial in the Circuit Court of Peoria County in 2005, Petitioner was convicted of first-degree murder, aggravated battery with a firearm, and unlawful possession of a weapon by a felon and sentenced to consecutive terms of 70 years for murder and a 15-year term for aggravated battery, as well as a concurrent seven-year term for unlawful possession of a weapon.
Petitioner pursued a direct appeal to the Illinois Appellate Court, contending that he was denied a fair trial because the prosecutor made improper references to trials on television during closing argument. On February 21, 2007, the appellate court affirmed the conviction finding that the claim had been forfeited because it had not been raised through objection at trial or in a post-trial motion. No Petition for Leave to Appeal (PLA) to the Illinois Supreme Court was filed from this decision.
In August 2010, Petitioner filed a pro se post-conviction petition for relief pursuant to 725 ILCS 5/122-1 arguing: (1) appellate counsel was ineffective for various reasons, and (2) trial counsel was also ineffective. The trial court dismissed the Petition and Petitioner appealed, raising only two claims: (1) trial counsel was ineffective for failing to interview or subpoena alibi witnesses, and (2) the trial court erred by ordering Petitioner to submit a DNS sample and pay the related fee. Judgment was affirmed, but the portion of the trial court's order directing Petitioner to submit a DNA sample and pay the corresponding fee was vacated. In a pro se PLA, Petitioner argued that (1) trial counsel was ineffective for failure to interview or subpoena alibi witnesses, and (2) the post-conviction appellate court erred by denying him leave to file a pro se supplement to the appellate briefs submitted by counsel. On May 29, 2013, the Supreme Court denied leave to appeal.
Petitioner filed the instant Petition raising nine claims: (1) appellate counsel was ineffective; (2) trial counsel was ineffective; (3) he was denied his right to a speedy trial; (4) the State knowingly relied on perjury to obtain the conviction; (5) the prosecutor made improper remarks to the jury; (6) he was not proven guilty beyond a reasonable doubt; (7) a witnesses' videotaped statement was erroneously allowed in evidence; (8) he was denied due process when he was identified during an unduly suggestive lineup; and (9) his sentence was unconstitutional because he was never notified that enhancements were being sought. Respondent has filed his answer, and this Order follows.
When presented with a petition for writ of Habeas Corpus pursuant to 28 U.S.C. §2254, a district court must first consider whether the petitioner has exhausted all available state remedies. If the district court determines that the petitioner has not given the state courts a "full and fair opportunity to review" the claims in its own judicial process prior to petitioning for federal review, the petition is barred for failure to exhaust state remedies and the district court cannot address the merits of the constitutional claims.
In order for exhaustion to occur, the petitioner must assert each of the federal claims to be brought in his habeas corpus petition at each and every level in the state court system.
Procedural default occurs when the petitioner had a claim that could have been presented to the state court but was not, and cannot, at the time the federal petition is filed, be presented to the state court.
If a claim has not been barred for failure to exhaust or for procedural default, the district courts must apply a strict analysis. 28 U.S.C. §2254(d) bars relitigation of any claim previously "adjudicated on its merits" in state court unless the decision of the state court:
28 U.S.C. 2254(d). See also
Subsection (d)(1) instructs that Supreme Court precedent governs legal questions.
Although all of Petitioner's claims were raised in his post-conviction petition, he failed to raise them in his appeal from the denial of that petition. When Petitioner attempted to file a pro-se supplemental brief raising these issues on appeal, his request was denied based on the state law ground that prisoners cannot file pro-se supplements in appeals in which they are represented by counsel. Accordingly, Petitioner failed to raise his claims through one complete round of judicial review, and the Appellate Court enforced an independent and adequate state law procedural ground in denying leave to file his supplement.
State courts may refuse to review a claim if it was "not presented in the right court, in the right way, and at the right time — as state rules define those courts, ways, and times."
The Seventh Circuit has not addressed the issue of whether the prohibition against hybrid representation can be invoked as an independent and adequate state law ground for purposes of a procedural default analysis. See
Here, in denying Petitioner leave to file a supplemental brief pro se, the Appellate Court specifically noted the State's response brief, which rested solely on an objection to Harvey attempting to proceed with hybrid representation and cited
Federal courts will not review claims that are procedurally defaulted unless the petitioner can demonstrate "cause and prejudice" to excuse the fault.
Petitioner has not proffered, nor can he show, any cause to excuse these defaults, let alone actual prejudice, and he has not invoked the fundamental miscarriage of justice exception. Although he argues that his claims were not raised on direct appeal as a result of ineffective assistance of counsel, he cannot justify why the claims were not properly preserved through the post-conviction process. Section 2254 specifically rejects ineffective assistance of post-conviction counsel as a basis for relief, as there is no right to effective assistance of post-conviction counsel, and Petitioner could have dismissed counsel and proceeded pro se in order to present his claims through the post-conviction process.
Rule 11(a) of the Rules Governing § 2254 Proceedings states "district court must issue or deny a certificate of appealability (CA) when it enters a final order adverse to the applicant." To obtain a CA, a petitioner must make a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court has rejected the constitutional claim on the merits, § 2253(c) requires the petitioner demonstrate "that reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong."
All of Petitioner's claims have been procedurally defaulted. Petitioner did not raise any arguments that jurists of reason would find debatable. Accordingly, the Court declines to issue a certificate of appealability.
For the reasons set forth above, the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254 [1] is DENIED.