MEMORANDUM OPINION AND ORDER

WAYNE R. ANDERSEN, U.S. District Judge

The Illinois Appellate Court affirmed his conviction and his petition for leave to appeal to the Illinois Supreme Court was denied. Martin is currently serving his sentence in the Shawnee Correctional Center in Vienna, Illinois. He now petitions this court for a writ of habeas corpus relief pursuant to Title 28, United States Code, Section 2254 challenging his conviction. For the reasons stated below, we deny Martin's petition.

BACKGROUND

Except where noted, Martin does not challenge the statement of facts set forth in the order of the Illinois Appellate Court affirming his conviction for attempted murder. See People v. Martin, No. 1-98-1327 (Ill.App.Ct. July 21, 1998) (unpublished order). For purposes of federal habeas review, "a determination of a factual issue made by a state court shall be presumed to be correct." 28 U.S.C. § 2254(e). We, therefore, adopt certain portions of the statement of facts as our own.

The victim of the alleged crime testified that Martin was her boyfriend. On June 17, 1996, Martin gave her $10 with which to buy crack cocaine. The victim took the money from Martin, but did not come back to him with the crack cocaine. Two days later, at 2:00 a.m., the victim was near her grandmother's house at the corner of 55th and State Streets in Chicago when she saw Martin. She testified that he approached from behind and "started jumping" on her, demanding to know where she had been. According to the victim, Martin then grabbed her by the neck and hit her in the face with his fist. The victim further testified that Martin then dragged her to an abandoned building on 58th and Perry. Martin then took the victim to the second floor, retrieved a baseball bat from behind a couch and beat her with the bat "from head to toe" until the bat broke. The victim passed out after bleeding from her head and hands.

When she woke up the next day, Martin was there. He asked to look at her head. Martin asked her what she was going to tell police and the victim told him that she would say that "three girls jumped on" her. Martin then walked over to a Mr. Nitty's house to call an ambulance. The police also responded to the call. Martin was still at Nitty's house when the police arrived. The victim told the police what she had told Martin she would say. She testified that she did so because she was afraid of the defendant. When she got to the hospital (and Martin was no longer present), she told the police that Martin had beaten her with a bat and a piece of wood.

The victim remained in the hospital for eight days. The cut on her head required fifteen staples to close. She also had two broken ribs and needed treatment for an injury to her knee.

According to the victim's testimony, Martin's sister, Rosie Jeanette Martin ("Jeanette"), offered her $50 to sign a statement recanting her statement to the police. The victim, who said that she did not have any money, agreed to sign the document. On February 8, 1997, Jeanette gave a version of the recantation to the victim who then copied the language in her own handwriting and signed it. (The original document, as well as the copy of it purportedly in the victim's handwriting were not part of the record on appeal.) When the victim testified, she denied that the handwriting on the exhibit showed to her was her handwriting and that she had taken it to a currency exchange to be notarized.

The victim admitted that, at the time of the incident, she regularly used cocaine and occasionally used PCP. She stated that she had used cocaine the day that she was beaten.

Detective Thomas Brankin stated that on June 21, 1996, he spoke to the victim at the hospital. He further testified that Martin gave an oral statement to him in the presence of Assistant State's Attorney Kirby. According to Brankin, Martin stated that he spent the night with the victim three or four days before the beating incident. When he woke up, he noticed that $50 was missing from his pants pocket. Martin said that when he saw the victim a few days later at 55th and State Streets, he confronted her about the money and that she admitted taking the money to buy cocaine with his. According to Brankin, Martin then admitted to beating the victim with a broomstick (not a bat) in the abandoned building and that they then fell asleep. When they awoke, he noticed that she was injured and was having difficulty breathing. Martin walked her to a friend's house and called an ambulance. This alleged statement was not transcribed into written form.

Both parties stipulated that Dr. John Alverdy would have testified that the victim sustained multiple rib fractures, open wounds to the knee area and the face, slash wounds to the leg and ankle. The parties also stipulated that James Walter, a radiologist, would have testified that she sustained a fracture to the ribs and a left parietal scalp laceration. Finally, both sides agreed that the victim tested positively for cocaine and phencyclidine.

Martin's sister Jeanette testified for the defense. She stated that the victim signed a document at her house stating that Martin did not beat her. She denied writing the original document or offering the victim money, but stated that she gave her a piece of paper on which to write a statement. Jeanette also testified that the victim demanded money in exchange for the writing the statement, but that she refused to give her any money. Jeanette also stated that the victim took the paper to the currency exchange to have it notarized. She stated that the statement was dated February 8, 1997 and that it was notarized on the 20th of February.

Martin also testified in his own defense. He said that he had seen the victim in the vicinity of 57th and State Streets on the day before she went to the hospital. She approached him and asked for $10 with which to buy crack cocaine. Martin gave her to money so that she would leave. According to Martin, he was at his sister's house when the victim arrived. He said that it looked like she was on drugs and that she wanted more money to buy drugs. Their argument angered his sister who objected to the noise that they were making and Martin then "kicked" the victim out. The next time that Martin saw the victim, she was badly beaten and he walked her to a friend's house and called an ambulance for her.

Martin denied both beating the victim and that he had ever told the police the contrary. Martin said that he would not have said anything to the police without legal representation.

Both parties agreed that Officer Hoy would have testified that when he spoke with the victim on June 19, 1996 at the hospital, she "changed her story" and stated that Martin beat her with a wooden pole instead of a bat.

In rebuttal, Assistant State's Attorney John Kirby corroborated Detective Brankin's version of Martin's statement to the police.

In finding Martin guilty of the charged crime, the trial court stated that it had considered the fact that the victim's statement had changed several times when it weighed the evidence against Martin, but that he credited the Assistant State's Attorney's corroboration of Detective Brankin's account of Martin's admission that he had beaten the defendant..

On appeal, Martin challenged the sufficiency of the evidence to convict him. He argued that the state had not proved that he had the requisite intent to kill, and that the victim's story was not credible. Martin did not contend that the trial court erred in admitting the statement or that his counsel should have moved to suppress it. The Appellate Court rejected his argument, stating that the evidence, including the extent of the victim's injuries, proved the requisite intent and that credibility determinations concerning the witnesses' testimony must be left to the trier of fact. The Appellate Court affirmed Martin's conviction on July 21, 1998.

In his petition for leave to appeal to the Supreme Court, Martin raised for the first time the argument that his trial counsel was ineffective because he did not argue that Martin's statement should have been suppressed because his Miranda rights were violated, and that the trial court erred because he was improperly sentenced to a lesser included offense. He also reiterated his argument that the evidence was insufficient to convict him. The Supreme Court refused to hear any further appeal on December 2, 1998.

Martin next filed a petition for post-conviction relief in state court. (Neither side has provided this petition to the Court. The Attorney General's Office attempted to locate a copy of the petition at the Court's request, but the Clerk of Circuit Court of Cook County has been unable to find it. We, therefore, rely on the parties' representations concerning what Martin alleged in this petition for purposes of our ruling.) In his post-conviction petition, Martin reiterated the grounds set forth in his petition for leave to file an appeal before the Supreme Court. On March 12, 1998, the Circuit Court of Cook County dismissed his petition summarily. The Appellate Court affirmed that decision on April 13, 1999. Martin did not file a timely appeal of that decision to the Illinois Supreme Court.

In his original petition for a writ of habeas corpus before this court (filed on March 8, 1999), Martin made three arguments. He contended that his Miranda rights were violated. He further contended that his trial counsel was ineffective for failing to attempt to suppress his statement. Finally, he argued that the trial court erred when it sentenced him to a lesser included offense. In his federal petition he also erroneously claimed that he had appealed the denial of his post-conviction petition by the Appellate Court to the Supreme Court of Illinois, and that this petition was still pending. Because he had made this statement in his petition, the court ordered him to demonstrate that he had, in fact, exhausted his state court remedies. In his response to that order (on June 17, 1999), Martin stated that after he filed his post-conviction petition and it was denied, his public defender moved to withdraw as counsel on appeal (asserting that there were not, in fact, any appealable issues) and this motion was allowed. Martin further asserted that he had exhausted his state remedies. Martin attached a letter to this response from James H. Reddy, Chief of the Appeals Division, dated April 14, 1999, informing him that the Appellate Court had affirmed the dismissal of his post-conviction petition and further advising him that he had twenty-one days to appeal that denial to the Supreme Court of Illinois. As it turned out, Martin inexplicably did not follow this advice.

Because Martin had, in fact, exhausted his available state remedies, respondent was ordered to answer the petition. It did so on September 14, 1999, arguing that Martin had procedurally defaulted the issues raised in his federal petition because he did not first raise them before the Appellate Court. On December 29, 1999, Martin filed a document which is entitled "Amended Petition, For and Answer to Respond to, Respondent Brief." (The court inexplicably did not receive this document at the time that it was filed.) In this pleading, and in response to the state's argument that he had procedurally defaulted the issues he raises now, Martin argued that these matters were not raised in his direct appeal because his appellate counsel was ineffective. He further argued that the review of his post-conviction petition in the state court did not afford him a full and fair hearing because the facts were not fully developed. He also claimed that he was denied counsel at the appellate review of his petition. Lastly he claimed that the errors about which he complains create not only the possibility of prejudice, but infect his entire trial with error of unconstitutional dimensions.

Before this court could rule on his petition, Martin requested a stay of his habeas petition so that he could file a belated appeal to the Supreme Court of Illinois of the Appellate Court's ruling on his post-conviction petition. The state objected, arguing that Martin's failure to do so resulted in a further procedural default under White v. Godinez, 192 F.3d 607 (7th Cir.), cert. denied, 120 S.Ct. 1004 (1999), in which the Seventh Circuit held that failure to pursue a discretionary appeal to the highest court of a state relating to a post-conviction appeal constitutes a procedural default. The court denied Martin's motion and, unaware that Martin earlier had attempted to rebut the default with a cause and prejudice argument, dismissed the petition on this ground.

After the court obtained the entire file on this matter, we vacated our dismissal and ordered respondent to address the cause and prejudice arguments that Martin raised. The state then filed a Supplemental Answer and Martin has responded to that Answer. The issues are, therefore, ripe for our review.

DISCUSSION

Federal courts may issue a writ of habeas corpus if a petitioner demonstrates that he is "in [state] custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2245(a); Moffat v. Gilmore, 113 F.3d 698, 702 (7th Cir. 1997); see also Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1370 (7th Cir. 1994) (en banc) ("[F]ederal courts can grant habeas relief only when there is a violation of federal statutory or constitutional law.") (citations omitted), cert. denied, 514 U.S. 1037 (1995). The federal courts may not grant habeas relief under Section 2254 unless the state court's judgment "(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. § 23254(d).

Before a federal court may review the merits of a habeas petition, a petitioner must: (1) exhaust all remedies available in state courts; and (2) fairly present any federal claims in state court first, or risk procedural default. Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir. 1996) (citations omitted); see also Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988) (noting that a petitioner who fails to satisfy either of these requirements "is barred either for a failure to exhaust state remedies or for procedural default."), cert. denied, 490 U.S. 1009 (1989). "The habeas petitioner must present his federal constitutional claims initially to the state courts in order to give the state `the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." McGowan v. Miller, 109 F.3d 1168, 1172 (7th Cir. 1997) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)).

A petitioner has exhausted his state court remedies "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 a review of one's conviction in state court." Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir. 1985). In this case, Martin has no further available means for pursuing a review of his conviction in state court. We turn to the issue of procedural default.

The procedural default hurdle forbids the federal courts from addressing claims that were not fairly presented to the state courts.Jones v. Washington, 15 F.3d 671, 675 (7th Cir.), cert. denied, 512 U.S. 1241 (1994). Procedural default occurs either when a state court has declined to address a federal claim because the petitioner failed to satisfy an independent state procedural requirement, Coleman v. Thompson, 501 U.S. 722, 729-30 (1991), or when the petitioner fails to present a claim to the state courts at the time, and in the way, required by the state. Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996).

The respondent argues that Martin procedurally defaulted the grounds that he now asserts in his federal petition because he failed to raise them on direct appeal to the Illinois Appellate Court. Martin argues that his failure must be excused because it resulted from the ineffective assistance of counsel on the appellate level. He further maintains that he, in fact, did attempt to raise the grounds he asserts in his habeas petition when he attempted to appeal his conviction to the Illinois Supreme Court. The respondent did not respond to Martin's "cause" for failing to raise these issues first before the Illinois Appellate Court. It is well settled that ineffective assistance of appellate counsel, if established, can constitute "cause" for purposes of surmounting a procedural default. Moment-El v. DeTella, 118 F.3d 535, 541 (7th Cir.),cert. denied, 522 U.S. 984 (1997). But before a petitioner may use ineffective assistance of counsel as "causes" for purposes of overcoming the procedural default hurdle, "he must first present this claim as an independent claim to the state courts either on direct appeal or in post-conviction proceedings." Lemons v. O'Sullivan, 54 F.3d 357, 360 (7th Cir.), cert. denied, 516 U.S. 993 (1995).

Martin did not do this. Furthermore, his attempt to raise them first in his petition for leave to appeal to the Supreme Court does not prevent a procedural default. Raising these issues for the first time in a discretionary appeal is not fair presentment of the claim for purposes of this avoiding procedural default because the state requires issues to first be presented to the Appellate Court. Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996). Therefore, he has procedurally defaulted these claims. Even if Martin could have surmounted this hurdle, however, he faces another procedural default at the post-conviction level. It is undisputed that Martin raised the claims he now makes in his post-conviction petition in state court. However, he did not attempt to appeal the Illinois Appellate Court's affirmance of the dismissal of that petition to the Illinois Supreme Court. Although this is a discretionary appeal, it is now settled that failure to attempt such an appeal results in a procedural default. O'Sullivan v. Boerckel, 526 U.S. 838 (1999);White v. Godinez, 192 F.3d 607 (7th Cir. 1999).

The court invited Martin to explain his failure to do so when it vacated its original dismissal of his petition. However, Martin has offered no reason why he did not pursue his post-conviction petition to the highest court in Illinois. Indeed, he would be hard-pressed to do so. The record clearly indicates that the public defender's office, after it withdrew its representation of Martin, clearly advised Martin that he had to file an appeal with the Supreme Court within a specified time period. His failure to heed this advice, and then offer no explanation for that failure, dooms his federal habeas petition. Martin became cognizant of the import of his failure to pursue an appeal to the Supreme Court during this litigation. In fact, he attempted to stay this proceeding to attempt a belated appeal to the Illinois Supreme Court. But he has not offered any cause for his original inaction and, therefore, we cannot now hear his petition unless Martin can show that he fits within the "miscarriage of justice" exception to the cause and prejudice standard.

This exception is limited to those extraordinary cases in which the petitioner is actually innocent of the crime for which he is imprisoned.Steward v. Gilmore, 80 F.3d 1205, 1212 (7th Cir. 1996). Therefore, it requires a colorable claim of actual innocence, as opposed to legal innocence, coupled with an allegation of a constitutional claim. SeeSawyer v. Whitley, 505 U.S. 333, 339-40 (1992). The miscarriage of justice exception applies only if the petitioner can demonstrate that it is more likely than not that no reasonable juror would have convicted him in the absence of the alleged defect in the state court proceedings.Schlup v. Delo, 513 U.S. 298 (1995).

Martin generally alleges that, but for the ineffective assistance of his counsel at trial, his statement to the police would not have been admitted. However, even assuming this to be true, there was plenty of evidence to support the court's conclusion that the victim was beaten in a life-threatening fashion and that Martin was responsible for that beating. Indeed, Martin does not assert his actual innocence. Therefore, he has failed to establish that, but for the alleged errors in his trial, it is more likely than not that a reasonable trier of fact would not have convicted him of the crime. Thus, the arguments he advances do not establish actual innocence but rather a claim of legal innocence.Montgomery v. Meloy, 90 F.3d 1200, 1205 (7th Cir.), cert denied, 519 U.S. 907 (1996). We find that, because Martin has failed to point to any new or old probative evidence of innocence, the miscarriage of justice exception is inapplicable.

CONCLUSION

For the reasons stated above, we deny Martin's petition for writ of habeas corpus and terminate this case.