JOHN W. DARRAH, District Judge.
Petitioner Otis Worley has filed a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. For the reasons provided below, his Petition [1, 4] is denied. The Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
When considering a petition made pursuant to § 2254, the factual determinations of the state court are presumed correct. Ford v. Wilson, 747 F.3d 944, 947 (7th Cir. 2014) (citing 28 U.S.C. § 2254(e)(1)). Worley has made no attempt to rebut the following findings of the Illinois Appellate Court:
Rule 23 Order, People v. Worley, No. 1-08-2348 (Ill. App. Ct. Apr. 26, 2010); (Respondent's Answer, Ex. A).
In his appeal to the Illinois Appellate Court, Worley argued exclusively that the state failed to prove him guilty beyond a reasonable doubt because "[Helen] testified that her assailant was previously unknown to her, but where Worley presented overwhelming evidence that he had an intimate relationship with [Helen] prior to the attack." People v. Worley, No. 1-08-2348 (Ill. App. Ct. Apr. 26, 2010); (Respondent's Answer, Exs. A, B, C, D). The Illinois Appellate Court affirmed his conviction.
Worley's subsequent petition for leave to appeal ("PLA") again argued only that the state had presented insufficient evidence. People v. Worley, No. 110454 (Ill.); (Respondent's Answer, Ex. E, F). On September 29, 2010, the Illinois Supreme Court denied Worley's PLA. Id. The United States Supreme Court denied Worley's petition for writ of certiorari on February 22, 2011. Worley v. Illinois, 131 S.Ct. 1510 (2011).
On June 21, 2011, Worley, proceeding pro se, filed a petition for postconviction relief, pursuant to 725 Ill. Comp. Stat 5/122-1, et seq., in the Circuit Court of Cook County. People v. Worley, No. 06 CR 15585 (Cir. Ct. Cook Cnty.); (Respondent's Answer, Ex. M). In his postconviction petition, Worley argued:
Id. On September 20, 2011, the circuit court dismissed Worley's postconviction petition as frivolous and patently without merit. Id.
Worley appealed the dismissal of his postconviction petition but raised only one issue: that Worley's appellate counsel was ineffective for failing to raise the issue that comments made by the trial court judge demonstrated bias. People v. Worley, No. 1-12-0281 (Ill. App. Ct.); (Respondent's Answer, Exs. H, I, J). On June 25, 2013, the Illinois Appellate Court affirmed the dismissal. People v. Worley, No. 1-12-0281 (Ill. App. Ct. June 25, 2013); (Respondent's Answer, Ex. G). Worley filed a PLA asserting the same argument that his appellate counsel was ineffective for failing to argue judicial bias, and on March 26, 2014, the Illinois Supreme Court denied that PLA. People v. Worley, No. 117246 (Ill. 2014); (Respondent's Answer, Ex. L).
Worley's instant Petition for Writ of Habeas Corpus alleges six grounds for relief:
(Dkt. No. 1.) Neither party disputes that Worley has exhausted his state court remedies, the petition is timely, and none of the claims is precluded by the doctrine of nonretroactivity.
A state court's decision does not provide grounds for habeas corpus relief from the federal court unless that decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "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).
Relief from a state court decision under the "contrary to" clause is available in two ways: when the decision runs counter to the decisions of the United States Supreme Court on a question of law, or when the state court rules differently than the United States Supreme Court on a set of "materially indistinguishable" facts. Williams v. Taylor, 529 U.S. 362, 405 (2000).
The "unreasonable application" clause also is considered in one of two ways. The first arises when the state court correctly identifies the controlling legal principle, but applies it to the case unreasonably. Id. at 407. The second involves the state court "unreasonably extends a legal principle . . . to a new context where it should not apply" or "unreasonably refuses to extend that principle to a new context where it should apply." Id. This standard does not demand merely that application be incorrect, but "objectively unreasonable." Id. A law's application need only be "minimally consistent with the facts and circumstances of the case." Hall v. Zenk, 692 F.3d 793, 798 (7th Cir. 2012) (internal quotation marks and citation omitted).
Because state-court rulings are reviewed in such a deferential light, the burden of proof rests with the petitioner. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). To overcome the presumption of correctness afforded state-court decisions, the petitioner must provide "clear and convincing evidence." Woolley v. Rednour, 702 F.3d 411, 426-27 (7th Cir. 2012) (citing 28 U.S.C. § 2254(e)(1)).
A person in custody pursuant to state-court action may not petition for a writ of habeas corpus until he has exhausted all remedies available to him in state court. 28 U.S.C. § 2254(b)(1)(A). The petitioner is required to assert his claim at every level in the state-court system, "including levels at which review is discretionary rather than mandatory." Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). Otherwise, the claim is procedurally defaulted. Id. "In Illinois, this means that a petitioner must have directly appealed to the Illinois Appellate Court and presented the claim in a petition for leave to appeal to the Illinois Supreme Court." Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007) (citing O'Sullivan, 526 U.S. at 848)).
"[T]he 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." O'Sullivan, 526 U.S. at 845. As set out above, Worley's direct appeal presented only one claim at every level: that the state had presented insufficient evidence to sustain his conviction. In his collateral petition for postconviction relief, Worley alleged numerous grounds before the circuit court. However, after that petition was dismissed, Worley asserted to the Illinois Appellate Court and Illinois Supreme Court only the claim that his counsel was ineffective for failing to argue judicial bias.
Only two of Worley's claims raised here even potentially satisfy the exhaustion doctrine requirement. Worley brought his direct appeal claim of insufficient evidence at every level of the state-court system, but he has not made an insufficient evidence claim in the instant petition. Worley also brought an ineffective assistance of counsel claim at every level of his postconviction proceedings, but he failed to "identify the specific acts or omissions of counsel that form the basis for his claim of ineffective assistance," as required. Momient-El v. DeTella, 118 F.3d 535, 541 (7th Cir. 1997) (citing Dugan v. United States, 18 F.3d 460, 464 (7th Cir. 1994)) (emphasis added). None of the eight grounds of ineffective assistance of counsel claims presented to the circuit court was submitted to the Illinois Appellate or Supreme Courts. Conversely, the specific act of failing to argue judicial bias — raised in the Appellate and Supreme Courts — was not raised at the circuit court level. Therefore, all six of Worley's claims in the instant Petition are procedurally defaulted.
An otherwise defaulted claim can be saved by showing either (1) cause for the default and prejudice or (2) that ignoring the default is necessary to prevent a fundamental miscarriage of justice. Id.
The first exception requires the petitioner to identify "some objective factor external to the defense impeded counsel's efforts to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493 (1991) (quotation marks and citation omitted). The petitioner must also show that prejudice "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
Worley does not specifically allege that he was somehow prevented from bringing any of his six claims in the instant petition to every level of the state-court proceedings. Claim B alleges ineffective assistance of appellate counsel for failing to assert that the state destroyed evidence, and ineffective assistance of counsel can be cause for default. McCleskey, 499 U.S. at 494. "However, a claim of ineffectiveness must itself have been fairly presented to the state courts before it can establish cause for a procedural default of another claim." Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004) (citing Edwards v. Carpenter, 529 U.S. 446, 452-54 (2000)). Because Worley failed to assert his ineffective assistance of counsel claim — specifically with regard to alleged destruction of evidence — in the Illinois Appellate and Supreme Courts, it cannot suffice as cause for his default.
The second exception, miscarriage of justice, arises only in cases of "actual innocence," in which a petitioner is required to show that "more likely than not any reasonable juror would have reasonable doubt." House v. Bell, 547 U.S. 513, 538 (2006). Any such claim of actual innocence must be supported by new evidence of innocence. Shlup v. Delo, 513 U.S. 298, 316 (1995) ("Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim").
Worley appended three documents to the Petition in support of his claim of actual innocence. The first was an Illinois State Police forensic report, detailing the results of the victim's vaginal swab and that the victim's fingernail scrapings were not examined. (Dkt. No. 4, Ex. 4.) Yet, the record is clear that Worley stipulated to the testimony of the scientist who performed the tests. Therefore, the information in the report was apparently available at trial and Worley has not shown this was new evidence.
The other two documents contain new information, in that they were not presented at trial. Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003). One document is the affidavit of Ustashi Robertson, swearing in relevant part: (1) that he regularly saw Worley and the victim speaking; (2) that he never witnessed Worley and the victim having sexual intercourse; (3) that he had personal knowledge Worley and the victim were friends; (4) that Worley could not have assaulted the victim "because we all ([Worley], Ronald Dillard and myself) tried to assist her." (Dkt. No. 4, Ex. 4.) As set out above, all of the information in the affidavit was offered by witnesses who did testify at trial. Therefore, the affidavit falls short of evidence that would make it more likely than not a reasonable juror would have reasonable doubt. Gomez, 350 F.3d at 680.
The final document is a police report, indicating that two high school identification cards reported missing by the victim after her attack were found by a mail carrier where the victim was assaulted. (Dkt. No. 4, Ex. 4.) It is not clear why Worley believes this report demonstrates actual innocence, but his own handwriting on the report reads "What happened to blood or fingerprints not mine." To the extent that Worley intended to argue that testing the identification cards for blood or fingerprints would have revealed another party, this is far too speculative to support a claim of actual innocence. Worley has not submitted evidence that there were other fingerprints or blood associated with the assault, only that the identification cards could have been tested. Submitting this theory to the trial judge would not have made it impossible to convict.
Submitting all three documents to the trial judge would not absolutely preclude a conviction. The state presented the victim's testimony that she was attacked at knifepoint, forced into an abandoned apartment, and sexually assaulted. A detective then testified to finding the apartment substantially as the victim described it. The victim identified Worley as her attacker in a photo array. And the state presented the results of the victim's vaginal swab, showing DNA matching Worley's. The trial judge acknowledged Worley's contention that he had a consensual relationship with the victim but specifically credited the victim's testimony. (Respondent's Answer, Ex. C at 11 ("I absolutely believe the testimony of the victim . . . in this case.").) Accordingly, Worley has not established a fundamental miscarriage of justice.
"A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requires that the petitioner show that "reasonable jurists" could resolve the issues differently and that the petitioner's argument "deserve[s] encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
Denying the certificate of appealability on procedural grounds is proper only when a "plain procedural bar" exists on which reasonable jurists could not disagree. Id. However, where a plain procedural bar is present and a district court correctly invokes a bar to dispose of those claims, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. Id. Worley has failed to make a substantial showing of the denial of a constitutional right in the instant Petition. Accordingly, a certificate of appealability shall not issue.
For the reasons stated above, Worley's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [1, 4] is denied. A certificate of appealability is not issued.
