Opinion
Case No. 98 C 5061
June 26, 2000
MEMORANDUM OPINION AND ORDER
Background
This habeas petition arises from a 1991 home invasion and shooting. Shortly after midnight on October 16, 1991, four masked intruders broke into an apartment occupied by a couple and their three young children. The father recognized petitioner Stanley McIntyre as one of the intruders by his voice, and by pulling off his mask during the incident. The father had known McIntyre for years. During the incident, McIntyre shot the father twice in the legs, and struck the mother in the head with his pistol. McIntyre was arrested later that day when an officer responded to a radio report of two men with guns near the location of the intrusion. The officer testified that he chased McIntyre, caught him, and found a loaded gun in his waistband.
On April 14, 1993, following a bench trial, McIntyre was convicted of unlawful use of a weapon by a felon, and was sentenced to a prison term of five years. Following another bench trial, McIntyre was convicted of two counts of home invasion and one count of aggravated battery with a firearm, and was sentenced to three concurrent prison terms of thirty years each.
McIntyre appealed his convictions and sentences in both cases to the Illinois Appellate Court, arguing that the trial court erroneously denied his motions to suppress because the police lacked probable cause to arrest and search him, and the search was not justified by exigent circumstances. The appellate court rejected his arguments, affirming his convictions and sentences on October 7, 1994.
On May 19, 1995, McIntyre filed a motion for leave to file a late petition for leave to appeal to the Illinois Supreme Court. On September 26, 1995, the motion was granted. On December 6, 1995, McIntyre's petition for leave to appeal was denied.
McIntyre filed a petition for post-conviction relief on July 30, 1996. He claimed that he was ineffectively represented by counsel in that counsel failed to research adequately the condition of McIntyre's legs at the time of the arrest. McIntyre argued that if his counsel had researched McIntyre's leg injuries, the court would have known that — contrary to the arresting officer's testimony — it would have been physically impossible for McIntyre to have run away from the officer. McIntyre's post-conviction petition was denied on September 18, 1996 because McIntyre failed to provide the court with any documentation in support of his claim.
McIntyre appealed the denial of his post-conviction petition to the Illinois Appellate Court. The Cook County Public Defender, who represented McIntyre on the appeal, filed a motion for leave to withdraw as appellate counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). The Public Defender concluded that "there are no appealable issues in the case." (Exh. F to Answer) McIntyre was advised that he could submit any points in support of his appeal, but he did not respond. On September 2, 1997, the appellate court granted the Public Defender's motion to withdraw, and affirmed the denial of McIntyre's post-conviction petition.
On December 17, 1997, McIntyre filed a motion for leave to file a late petition for leave to appeal to the Illinois Supreme Court. The motion was granted. McIntyre's petition for leave to appeal was denied on June 3, 1998.
In his habeas petition, McIntyre challenges his conviction on a single ground. He claims that his trial counsel was constitutionally ineffective because he failed to investigate McIntyre's injuries properly, and that his counsel would have learned that it was physically impossible for McIntyre to run away from the arresting officer.
Analysis
The Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. 104-132, 110 Stat. 1218 (1996), applies to all habeas petitions filed after the Act's effective date — April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Therefore, McIntyre's habeas petition — filed August 14, 1998 — is governed by the AEDPA's provisions. Among these provisions is a one-year limitations period for the filing of habeas actions that normally runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1). The time during which a properly filed post-conviction petition is pending is not counted toward the limitations period. Id. § 2244(d)(2). Further, the limitations period does not begin to run until the AEDPA's effective date. See Gendron v. United States, 154 F.3d 672, 675 (7th Cir. 1998), cert. denied, 119 S.Ct. 1758 (1999). Given that McIntyre's habeas petition was filed less than one year after final judgment on his post-conviction petition, it is timely.
Under 28 U.S.C. § 2254, as amended by the AEDPA, the court may not grant McIntyre's habeas petition unless he has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). "In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This rule "reduces friction between the state and federal court systems by avoiding the `unseemliness' of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." Id. at 845 (internal brackets omitted).
To meet this "exhaustion" requirement, McIntyre "must have raised all of his claims during the course of the state proceedings, presenting each claim fully and fairly to the state courts." Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999) (citing Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992)). Fair presentment requires McIntyre "to give the state courts a meaningful opportunity to pass upon the substance of the claims later presented in federal court." Id. For a constitutional claim to be fairly presented, "both the operative facts and the `controlling legal principles' must be submitted" for the court's review. Id. If a state court refused to hear a federal claim because it was not properly presented, and the refusal was based on adequate and independent state grounds, then this court is barred from reviewing the claim. Hogan v. McBride, 74 F.3d 144, 146 (7th Cir.), modified, 79 F.3d 578 (7th Cir. 1996).
Even assuming that McIntyre was justified in not raising his ineffective assistance of counsel claim on direct appeal, he failed to properly present the claim in his petition for post-conviction relief. The circuit court judge denied the petition because "[t]here are no affidavits to support what the defendant has said." (Answer at 6) The Illinois Appellate Court summarily affirmed the circuit court's denial of the petition, and the Illinois Supreme Court denied leave to appeal.
The circuit court denied the petition based on an adequate and independent state ground — namely, McIntyre's failure to submit supporting documentation with his claim. The Illinois Post-Conviction Hearing Act provides that a petition for post-conviction relief "shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2. An evidentiary hearing is allowed only "if the petitioner makes a substantial showing of a violation of a constitutional right and the allegations are supported by the record in the case or by accompanying affidavits." People v. Jackson, 572 N.E.2d 475, 478-79 (Ill.App.Ct. 1991). The showing of a constitutional violation "must be based on factual allegations, not conclusory statements." Id. at 479. Because McIntyre failed to provide supporting evidence, as required by the Act, the court's denial of his petition was based on an independent and adequate state ground, and thus is procedurally defaulted.
Given that McIntyre's claim is procedurally defaulted, this court may not review it unless McIntyre's habeas petition "shows cause for failure to raise [it] at the appropriate time and actual prejudice which resulted from such failure." Rodriguez, 193 F.3d at 917 (citing Wainwright v. Sykes, 433 U.S. 72, 91 (1977)). Absent this showing, "a defaulted claim is reviewable only if refusal to consider it would result in a `fundamental miscarriage of justice,' that is, where `a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Id. (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)). This requires McIntyre "to show that it is more likely than not that no reasonable juror would have convicted him." Id. (citing Schlup v. Delo, 513 U.S. 298, 329 (1995)); see also Buelow v. Dickey, 847 F.2d 420, 427 (7th Cir. 1988) (holding that court "may set aside the cause-and-prejudice test and permit a habeas petition if, due to a fundamentally unjust trial, an innocent defendant was convicted"), cert. denied, 489 U.S. 1032 (1989).
McIntyre does not allege cause for his claim's default. While ineffective assistance of counsel can, under certain circumstances, constitute cause to excuse a procedural default, McIntyre's post-conviction petition — with which McIntyre failed to supply any type of supporting documentation — was filed pro se by McIntyre.
As for the "fundamental miscarriage of justice" exception, McIntyre's defaulted claim, even assuming it to be true, does not suggest that an innocent defendant was convicted. McIntyre alleges only that his leg injuries prevented him from running away from the arresting officer, contrary to the officer's testimony. If this fact had been established by the counsel's investigation, this could have diminished the officer's credibility, but it has no bearing on McIntyre's ability to have committed the crime. McIntyre introduced evidence at trial that his legs were broken in January 1991. The appellate court observed that the casts were removed in August 1991, his legs were healing well, and he could apply weight to them. The crime at issue did not occur until October 1991.
Further, the other evidence linking McIntyre to the crime was formidable. The victims recognized McIntyre's voice. The father had known McIntyre for years, and even pulled off McIntyre's mask and recognized his face. Evidence was also introduced at trial that McIntyre's gun could have fired a bullet found in the victims' apartment. However deficient the counsel's investigation of McIntyre's leg injuries was — and McIntyre offers no evidence suggesting that the investigation was, in fact, deficient — there is no reason to believe that the deficiency led to the conviction of an innocent man.
Conclusion
Finding no grounds for excusing the procedural default of McIntyre's claim, his habeas petition is denied.