Opinion
No. 97 C 262.
September 18, 2000
MEMORANDUM OPINION AND ORDER
On December 2, 1991, Petitioner Rolando Guerrero pleaded guilty to murder and was sentenced to a 50-year term. Now a prisoner in the custody of John C. Battles, Warden of Illinois River Correctional Center, Guerrero seeks a writ of habeas corpus, arguing that his guilty plea was unlawfully induced, that his trial counsel was ineffective, and that the trial court erred in dismissing his post-conviction petition. Respondent argues that Guerrero's claims are procedurally defaulted and seeks reconsideration of two previous orders from this court permitting the case to proceed. Having again reviewed the procedural history of this case and the relevant case law, the court concludes that Petitioner's claims are in fact procedurally defaulted and that this case must be dismissed.
PROCEDURAL HISTORY
On August 21, 1991, Petitioner was charged with one count of first degree murder. The indictment alleged that Guerrero, then 16 years old and a sophomore in high school, together with an accomplice, killed Michael G. Horton with a baseball bat, The Public Defender's Office was appointed to represent Guerrero. He initially entered a plea of not guilty but on December 2, 1991, the date set for trial, Guerrero entered a plea of guilty pursuant to a plea agreement and was sentenced to 50 years in the Illinois Department of Corrections. Guerrero did not pursue a direct appeal.
On October 17, 1994, Petitioner filed a pro se petition under the Illinois Post-Conviction Act seeking to vacate the judgment against him. The Post-Conviction Petition asserted that Petitioner's attorney was ineffective in (1) failing to investigate the charges against him; (2) coercing a guilty plea; (3) providing inaccurate information concerning the potential sentence; (4) refusing to withdraw the guilty plea; and (5) failing to file a pre-trial motion or bill of particulars. (Petition for Post-Conviction Relief, Exhibit A to Respondent's Answer.) On November 19, 1994, the trial court dismissed the Petition, finding that Guerrero's allegations "are patently without merit and fail to raise a sufficient constitutional question upon which relief can be granted." (Order of Dismissal in Case No. 91 CV 2786, Circuit Court of Will County, Exhibit B to Respondent's Answer.)
Petitioner appealed the denial of his Post-Conviction Petition. The brief filed by the State Appellate Defender on his behalf identified the issue on appeal as "whether the trial court erred in summarily dismissing Defendant's Post-Conviction Petition . . . ." The brief urged that Petitioner had in fact presented a constitutional claim in that he had asserted that trial counsel refused to file a motion to withdraw his guilty plea. (Brief on Appeal in No. 3-95-0423, Exhibit C to Respondent's Answer.) In an unpublished order, the Illinois Appellate Court, Third District, affirmed. The court reviewed the procedures for post-conviction review, noting that the Illinois Post-Conviction Act establishes a three-step process for adjudication of petitions for post-conviction relief. In the first step, a pro se petition need only present the "gist of a meritorious constitutional claim," but this requires more than a "bare allegation" that the petitioner's rights were violated. ( People of the State of Illinois v. Guerrero, No. 3-95-423, Illinois Appellate Court, 3d Dist, May 10, 1996, slip op. at 2, 3, Exhibit F to Respondent's Answer.) The Appellate Court found no more than bare allegations in the petition, noting specifically that Petitioner had not presented any facts to support his claims, not even "whatever grounds he would have had to withdraw his guilty plea had a proper motion to withdraw been filed." Id. at 3.
In his brief in support of a petition for leave to appeal to the Illinois Supreme Court, Petitioner again proceeded pro se, He argued that the lower courts had erred in dismissing his pro se petition because, in Petitioner's view, he had in fact presented the gist of a meritorious constitutional claim as required by Illinois law. (Petition for Leave to Appeal at 3, Exhibit G to Respondent's Answer.) The brief again reiterated Petitioner's contentions concerning inadequacy, asserting that his trial counsel failed to investigate the charges against him, coerced him into a plea bargain, gave him false information concerning the length of his potential sentence, refused to withdraw his guilty plea and failed to file pre-trial motions or a bill of particulars. ( Id.) On October 2, 1996, the Supreme Court denied Guerrero's petition for leave to appeal. (Order, People v. Guerrero, No. 81409, Exhibit H to Respondent's Answer.)
Guerrero filed a petition for a writ of habeas corpus in this court on January 13, 1997, alleging an unlawfully-induced guilty plea, ineffective assistance of trial counsel, and Illinois court error in summary dismissal of his state post-conviction petition. In an order denying Respondent's motion to dismiss the petition, Judge Gettleman concluded that Guerrero had not procedurally defaulted his ineffective assistance claim, relying in part on the Seventh Circuit's holding in White v. Godinez, 143 F.2d 1049, 1053 (7th Cir. 1998) that failure to present a claim on post-conviction proceedings does not constitute a procedural default. This court revisited that determination after the Supreme Court's decision in O'Sullivan v. Boerckel, 526 U.S. 838 (1999). O'Sullivan made it clear that a habeas petitioner's failure to include a claim of ineffective assistance of counsel in his discretionary post-conviction appeal does constitute a procedural default. Despite O'Sullivan, this court concluded that Guerrero's ineffective assistance claim was not defaulted for failure to present the matter to Illinois's highest court; in fact, Petitioner had specifically identified the ineffective assistance claim in his brief to the Illinois Supreme Court.
Respondent again seeks reconsideration of that determination. He argues that Petitioner's submissions to the Illinois Appellate Court and the Illinois Supreme Court did not effectively present any constitutional claims. Rather than presenting the ineffective assistance claims to the Illinois courts, Respondent argues, Petitioner raised before those courts only a state law issue: i.e., whether his post-conviction petition presented the "gist" of a constitutional claim. Respondent argues, further, that even if this court were to conclude that Petitioner had presented constitutional arguments to the state courts, this court must nevertheless find a procedural default here because the state court declined to address Petitioner's constitutional arguments due to his failure to comply with a state procedural requirement. Petitioner insists that he did in fact preserve his constitutional claims in the state court proceeding. Even if the court finds default, Petitioner argues, his procedural default is not adequate to bar federal habeas relief because the Illinois procedural rule is not applied in a consistent manner. Finally, Petitioner argues that his procedural default is not a bar here, because Illinois has no substantial or legitimate interest in denying him an opportunity to replead his post-conviction petition. The court considers these arguments below.
DISCUSSION
I. Procedural Default
Guerrero's petition is governed by the amendments to 28 U.S.C. § 2254, Antiterrorism and Effective Death Penalty Act of 1996. The federal habeas corpus statute, 28 U.S.C. § 2254, provides that a district court will consider a petition for writ of habeas corpus presented by an individual "in custody pursuant to the judgment of a State court only on the ground that he is in the custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). Before reaching the merits of a habeas corpus petition, however, Petitioner must show that he has exhausted available state remedies and avoided procedural default, Moleterno v. Nelson, 114 F.3d 629, 633-34 (7th Cir. 1997). Exhaustion is not at issue here; Petitioner failed to file an appeal and his state post-conviction petition has been dismissed with no further opportunity for review.
Procedural default, the central issue on this motion, can occur in one of two ways: (1) a petition to the federal court includes claims that the petitioner failed to raise at the state level, see Momient-El v. DeTella, 118 F.3d 535, 540-41 (7th Cir.), cert. denied, 522 U.S. 984, 118 S.Ct. 448 (1997); or (2) the state court declined to address a claim because the petitioner failed to comply with a state procedural requirement, see Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 2554 (1991).
Respondent has renewed its motion to dismiss, urging that procedural default occurred in both ways in this case. With respect to Respondent's first argument, the court stands by its earlier determination: although Petitioner styled his argument before the Illinois appeals courts as a state-law challenge, his original post-conviction petition and his briefs to the Illinois Appellate Court and the Illinois Supreme Court did identify several ways in which he believed his trial counsel had been deficient. This court concludes, as it did earlier, that Petitioner adequately presented his ineffective-assistance claim to the Illinois courts.
Respondent correctly points out, however, that the court's previous decisions did not address the second prong of the procedural default doctrine. Respondent argues that Petitioner fails this test because the Illinois courts declined to address his constitutional claim based on a state law procedural requirement. The Supreme Court addressed this matter in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546 (1991):
This Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment. (citation omitted). This rule applies whether the state law ground is substantive or procedural.Id. at 729, 111 S.Ct. at 2553-54. Thus, the Court concluded, if a state court dismisses a prisoner's federal claims due to a state procedural requirement, "the state judgment rests on independent and adequate state procedural grounds." Id. at 730. It must be clear, however, that the state court relied on independent and adequate state law grounds in reaching its decision. Id. at 735. Where a state court concludes that a petitioner has failed to comply with a state procedural rule, comity dictates that the federal court is bound by this finding. White v. Peters, 990 F.2d 338, 340 (7th Cir. 1993).
Respondent asserted in its Amended Answer, and emphasizes in this motion to reconsider, that the state trial court dismissed Guerrero's post-conviction petition based on his failure to meet procedural requirements of the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. The Act provides a three-stage process for adjudicating post-conviction relief petitions. People v. Seaberg, 262 Ill. App.3d 79, 635 N.E. 126 (2nd Dist. 1994). During the first stage, a pro se petition need only present the gist of a meritorious constitutional claim in order to avoid dismissal. People v. Marks, 239 Ill. App.3d 178, 607 N.E.2d 286 (3rd Dist. 1993). The pro se petitioner must, however, plead sufficient facts to present a valid claim, People v. Prier, 245 Ill. App.3d 1037, 613 N.E.2d 1226 (4th Dist. 1993), and must support his constitutional claims with citations to the record or with accompanying affidavits. Seaberg, 262 Ill. App.3d at 82, 635 N.E.2d at 129.
As noted earlier, the trial court found Guerrero's petition "patently without merit." The appellate court found no abuse of discretion and refused to overturn the dismissal. In reaching that conclusion, the Appellate Court referred expressly to the procedural requirement that a pro se post-conviction petitioner present the "gist" of a constitutional claim. The court concluded that Guerrero's petition did not meet this test and expressly relied on Petitioner's failure to provide "some facts" that would support his allegations of ineffective assistance. (Order of the Illinois Appellate Court, Third District, in People v. Guerrero, No. 3-95-0423.) Comity requires that this court respect the state court's findings under Illinois law.
The Petitioner argues that the Post-Conviction Hearing Act is not an adequate state law, and therefore is an insufficient basis for procedural default, because it is not strictly or regularly applied. See Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 1987 (1988). Indeed, if a state rule is not applied in a "consistent and principled way" it is inadequate to bar federal habeas relief. Prihoda v. McCaughtry, 910 F.2d 1379, 1382-83 (7th Cir. 1990): "A basis of decision applied infrequently, unexpectedly, or freakishly may be inadequate, for the lack of notice and consistency may show that the state is discriminating against the federal rights asserted." Id.
The standard for what constituted a sufficient statement to constitute the gist of a constitutional claim was at one time governed by People v. Dredge, 148 Ill. App.3d 911, 500 N.E.2d 445 (4th Dist. 1986). In Dredge, the court explicitly gave wide latitude to pro se complainants as "such petitioners are often persons of limited education." Id. at 913, 500 N.E.2d at 446. Thus, pro se petitioners would not be denied review based on their writing or arguing skills. Seven years later, in People v. Lemons, 242 Ill. App.3d 941, 613 N.E.2d 1234 (4th Dist. 1993) the same court again explicitly addressed the standard necessary to present the "gist" of a constitutional claim. This time, the court made it clear that a gist "is not a bare allegation of a deprivation of a constitutional right" but rather, is supported by "sufficient facts from which the trial court could find a valid claim of deprivation of a constitutional right." Id. at 946, 613 N.E.2d at 1237.
Petitioner argues that the procedural requirement involved here has been is not a valid basis for dismissal because it is inconsistently applied. Respectfully, the court disagrees. Illinois courts are gnerally consistent in requiring factual support for a post-conviction petition. In limited cases, a bare allegation has been deemed sufficient, but in those instances, the court has found clear evidence in the record that a petitioner's constitutional rights were violated. In Seaberg, 262 Ill. App.3d at 83, 635 N.E.2d at 130-34, for example, the court remanded a post-conviction proceeding, concluding that the trial court should have moved to the second stage of evaluation with respect to one of the petitioner's claims: his assertion that he was prevented from testifying at his trial. There, petitioner had submitted an affidavit in which he asserted that his attorney advised him that he would be impeached by his prior misdemeanor convictions if he took the stand, advice which the state acknowledged was erroneous. Notably, with respect to a second claim — that counsel failed to file a motion to suppress — the court concluded no second stage evaluation was necessary where the record provided no indication that his challenge to the search had merit. Similarly, in People v. Piper, 272 Ill. App.3d 843, 651 N.E.2d 739 (5th Dist. 1995), the court overturned dismissal of a post-conviction petition where petitioner submitted an affidavit in which he asserted that he asked his attorney to allow him to testify, his attorney refused the request, and he was unaware that he could bring the matter to the attention of the trial judge. The court found these assertions factual rather than conclusory, and determined that they presented the gist of a constitutional violation because only the criminal defendant himself may waive his right to testify: "The denial of a defendant's right to testify can be a constitutional violation in and of itself." 272 Ill. App.3d at 846, 651 N.E.2d at 741. Thus, to entertain a post-conviction petition, Illinois courts require factual support in the record itself or other evidence of a constitutional violation.
Indeed, in two cases decided the same day as Lemons, the Fourth District affirmed dismissal of post-conviction petitions even where petitioners had submitted detailed affidavits. In People v. Prier, 245 Ill. App.3d 1037, 1041, 613 N.E.2d 1226, 1229 (4th Dist. 1993), the court affirmed dismissal of a post-conviction petition claiming ineffective assistance of counsel even where the petitioner had attached affidavits that provided evidence of mitigating circumstances that his lawyer failed to present to the sentencing judge. In People v. Ramirez, 242 Ill. App.3d 954, 613 N.E.2d 1230 (4th Dist. 1993), the petitioner argued that his guilty plea was improperly coerced by promises from trial counsel that his sentence had been "fixed." Despite the fact that petitioner had offered affidavits in support of the claim, the appellate court concluded that his failure to raise the matter at the time of sentencing or at a hearing on his motion to withdraw the plea supported dismissal of the post-conviction petition as "frivolous and patently without merit." 242 Ill. App.3d at 960, 613 N.E.2d at 1233.
The trial court in the instant case reviewed the record alongside the petition and "other relevant documents" in reaching its decision. (Circuit Court Order of Dismissal, Case No. 91 CF 2786.) The only additional support Petitioner had provided for his allegations was his own affidavit swearing each allegation was true. The court found no evidence within the record or petition to support Petitioner's allegations and dismissed them. The Illinois Appellate Court found likewise and affirmed. Notably, the state courts found no facts in the record that would have supported withdrawal of the Petitioner's guilty plea, and Petitioner himself presents no arguments even in this habeas petition that would suggest his plea was involuntary. This court finds nothing "infrequent, unexpected or freakish" in the state courts' denial of Petitioner's claims in the apparent absence of facts to support them.
II. Exceptions to Default
Even if a petitioner has procedurally defaulted a claim, a federal court may examine its merits if the petitioner is able to: (1) demonstrate both cause for the procedural error and establish prejudice resulting from that error; or (2) show that failure to consider the claim will result in a fundamental miscarriage of justice. Aliwoli v. Gilmore, 127 F.3d 632, 634 (7th Cir. 1997). Petitioner has done neither.
Cause has been narrowly defined as "some objective factor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rules." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986). The Supreme Court in Murray provided the following examples: "a showing that the factual or legal basis for a claim was not reasonably available to counsel" or "when some interference by officials made compliance impracticable." Id. Petitioner has made no such showing. His argument that his failure to comply with state procedural requirements was a product of ineffective assistance of counsel is unavailing here. As described above, the procedural requirements at issue here are relaxed for pro se filings. In any event, there is no constitutional right to counsel in state post-conviction proceedings; therefore, any asserted inadequacy of counsel in those proceedings cannot meet the necessary showing of "cause" for a procedural default. See Coleman, 501 U.S. at 752-56, now codified at 28 U.S.C. § 2254 (i).
Nor may Petitioner proceed under the "fundamental miscarriage of justice" exception to procedural default. The standard for that exception was set forth in Schulp v. Delo, 513 U.S. 298, 115 S. Ct 851 (1995). Citing Murray v. Carrier, 477 U.S. 478, 488 (1986), the Court held that a petitioner seeking to invoke this exception must show that he is actually innocent, but was probably convicted due to a constitutional violation. Schulp, 513 U.S. at 327. Petitioner makes no claim of innocence and has at no time offered any evidence or argument to that effect. Indeed, this lack of evidence was the reason for the state courts' denial of his post-conviction petition.
III. State Interest in Denying Repleading
Finally, Petitioner argues that, in the event the court finds the instant claims procedurally defaulted, it should nevertheless entertain his petition because the State of Illinois has "no substantial or legitimate interest in denying . . . petitioners an opportunity to replead." (Opposition at p. 4.) Petitioner cites two cases in support of his argument, Harmon v. Ryan, 959 F.2d 1457 (9th Cir. 1991) and Smart v. Scully, 787 F.2d 816 (2nd Cir. 1986). Both of these cases pre-date Coleman and the AEDPA. Courts in this district have upheld Illinois's post-conviction procedural requirements as independent and adequate state law grounds for dismissal of a federal habeas petition. At least one of these courts has observed specifically that these procedural requirements do serve appropriate state purposes: "[The Illinois Post-Conviction Hearing] Acts petition requirements grow from common sense, for a state trial court cannot determine whether a meritorious claim exists unless the petitioner includes sufficient facts and supporting records." United States ex rel. Roland-Bey v. DeTella, No. 98 C 1367, 1999 WL 967526, *3 (N.D.Ill. Oct. 7, 1999) (Plunkett, J.) See also United States ex rel. Spivey v. Page, No. 98 C 3750, 2000 WL 139471, *4 (N.D. Ill. Jan. 28, 2000) (Kennelly, J.) (failure of pro se petitioner to submit affidavits, records, or other evidence supporting his ineffective-assistance claim was independent and adequate state law ground for dismissal of his state post-conviction petition and supported finding of procedural default).
This court is not prepared to conclude that Illinois has no interest in requiring a factual showing, even from a pro se petitioner, where a convicted person seeks post-conviction relief. The state courts have reviewed the Petitioner's claims in light of the full record and concluded that the bare allegations Petitioner made are insufficient to continue even to the second stage of evaluation. This determination constitutes a dismissal on an independent and adequate state law ground. Significantly, even now Petitioner offers the court no reason to conclude that there is any merit to his claim of ineffective assistance.
CONCLUSION
For the reasons discussed above, Respondent's motion for reconsideration (Doc. 50-1) is granted. Petitioner's petition for a writ of habeas corpus is denied. The Clerk of the Court is instructed to enter judgment pursuant to FED. R. CIV. P. 58, in favor of Respondent.