Opinion
No. 98 C 0092
August 15, 2000
MEMORANDUM OPINION AND ORDER
Petitioner David Thurman ("Thurman") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the petition is denied.
BACKGROUND
The following facts are drawn from the opinion of the Illinois Appellate Court. People v. Thurman, No. 1-92-1960 (6th Div. Feb. 4, 1994). According to the trial testimony of Demetrius Little ("Little"), on August 1, 1990, Thurman and five other men approached Larry Brooks ("Brooks"), who was sitting on a garbage can. Brooks commented that at some point, Thurman had hit him on the head with brass knuckles. He then reached into the garbage can, took out a bottle, and walked towards Thurman brandishing the bottle. In response, Thurman pulled out a .38 caliber revolver, pointed the gun at Brooks, and said, "Go ahead and hit me, and I'll blow your head off right now." Brooks replied, "You should have shot me. You should have shot me." But Brooks sat back down on the garbage can, and Thurman walked away.
Under 28 U.S.C. § 2254 (e)(1), in the absence of a showing by the petitioner of clear and convincing evidence to the contrary, a determination of a factual issue by a state court is presumed to be correct for habeas review. See, e.g., Abrams v. Barnett, 121 F.3d 1036, 1038 (7th Cir. 1997).
Around 8 p.m. on August 3, 1990, Brooks, Little, Daniel Randall ("Randall"), Ismail Clark ("Clark"), and Lonnie Glenn ("Glenn") were shooting dice on the street. Little saw Thurman, an "associate" of his, and two women drive by in a black car. After this, Little, Randall, and two women who were with them walked into the backyard. About 20 minutes later, they heard shots that Little thought were firecrackers. When Little ran to the back porch, however, he saw Thurman running down the alley and firing a gun in the direction of the group shooting dice. Little ran into the alley when Thurman was gone and saw Brooks and Clark on the ground.
Randall testified that he saw Thurman put a gun to Brooks's head on August 1, 1990. According to Randall, he saw Thurman and his codefendant drive by in a black car on August 3, 1990, and suggested to Brooks that they leave the area. Randall accompanied Little to the backyard, heard shots, and saw Thurman shooting a gun as he and his codefendant ran down the alley.
Glenn's testified that he was playing dice with some friends when he saw Thurman running towards them, shooting a gun. Glenn fell to the ground, wounded, and someone helped him run to a house. According to Glenn, he had seen Thurman and his codefendant driving a black Chevrolet earlier that same day. Glenn identified Thurman from a photo array.
The Illinois Appellate Court does not identify Thurman's codefendant in its opinion.
Kevin Donelson ("Donelson") testified that he was standing with the group shooting dice when Thurman ran up and began shooting. After seeing Brooks fall to the ground, Donelson fled. He later returned to the scene and saw Brooks and Clark on the ground. Donelson testified that although he had never seen Thurman before, he saw his face clearly that night. After the shooting, Donelson and Little leafed through a high school yearbook, and Donelson identified Thurman's photograph as the shooter. Donelson identified Thurman from a photo array at the police station as well.
According to the testimony of Chicago police detective Richard Curley ("Curley"), he obtained an arrest warrant for Thurman after Glenn, Little, and Donelson identified Thurman and his codefendant in a photo array. On August 22, 1990, Curley learned that Thurman was being held at the Maywood police station. Curley Mirandized Thurman and asked him about the killings. Thurman told Curley that he had nothing to do with the killings, but that he'd had an ongoing feud with Brooks. Thurman described the August 1, 1990, incident to Curley and stated that after that incident, he had thrown the gun into the river. This statement was never memorialized in writing.
After Donelson and another individual identified Thurman, Thurman gave Curley a more extensive oral statement. He told Curley that Brooks had "a contract out on" him and that "he [Thurman] thought it was best that he got Mr. Brooks and the others before they got him." Thurman stated that as he approached Brooks, Brooks called him a pussy. In response, Thurman fired his gun at Brooks, striking him in the face, then fired several more shots, fled, and threw his gun into the river. Thurman later told the detectives that the gun was in a parking lot, led them to the gun, and identified it as his.
Assistant State's Attorney Jennifer Borowitz testified that on the date of Thurman's arrest, she interviewed him and wrote up a statement which Thurman read aloud, corrected, and signed. Thurman gave another statement after the gun was recovered. Although the trial court read defendant's statements, the written statements were not included in the record on appeal.
At trial, Thurman testified that the police forced him to give a statement about the shootings. Thurman also testified that several weeks before the shooting, Brooks had called him a pussy. A friend alerted Thurman that Brooks was sneaking up on him from behind with two broken bottles, and Thurman brandished his gun at Brooks and told him to back off. Brooks did not stop walking towards Thurman until he cocked the gun, and when Brooks left, he warned, "[Y]ou know, you going to regret that you didn't kill me."
Thurman testified that on August 3, 1990, he was waiting for his codefendant to emerge from the grocery store when Brooks and two other men walked out of the alley. Thurman was immediately concerned that "[Brooks] was going to start something." According to Thurman, Brooks walked towards him and called him a pussy, then grabbed him by his shirt. Thurman testified that because he believed that Brooks "[was] fitting to make good on [his] threat," he pulled out his gun. At that moment, Brooks called to the men shooting dice, and Thurman began shooting the gun because he believed the men were going "to help [Brooks] jump on [him]."
The trial judge convicted Thurman of two counts of first degree murder for the August 3, 1990, killings of Brooks and Clark and sentenced him to natural life in prison without the possibility of parole. Thurman appealed his conviction and sentence to the Illinois Appellate Court, arguing that the evidence did not support a finding of first degree murder beyond a reasonable doubt, and that he should have been convicted of second degree murder instead. In his appellate brief, Thurman also suggested that the court should have found that he shot Brooks and Clark in self defense. After considering Thurman's arguments on appeal, the Illinois Appellate Court affirmed his conviction in an order dated February 4, 1994. Thurman's petition for leave to appeal to the Illinois Supreme Court was denied on February 1, 1995.
On February 22, 1995, Thurman filed a pro se post-conviction petition. In his post-conviction petition, Thurman argued that: (1) his Fifth and Fourteenth Amendment rights were violated because he was not proven guilty beyond a reasonable doubt of first degree murder; (2) he was deprived of due process of law because the trial judge was partial to the State, as evidenced by the fact that he credited Donelson and Curley's testimony even though the evidence revealed that those two witnesses had perjured themselves; (3) he was denied effective assistance of counsel at trial because his lawyer did not attempt to impeach Donelson or Curley and did not present codefendant McIntyre's confession, which would have corroborated Thurman's trial testimony; and (4) he was denied effective assistance of counsel on appeal because his attorney did not mention any of the three grounds raised in the post-conviction petition, did not mention the inconsistencies in Donelson's testimony, and incorrectly stated that Thurman shot Brooks out of fear.
The post-conviction petition was dismissed in an oral ruling on June 2, 1995. The post-conviction court addressed at least some of Thurman's claims on the merits and concluded that the petition was frivolous and patently without merit. Thurman appealed this decision to the Illinois Appellate Court on July 25, 1995. On April 12, 1996, the appellate court affirmed Thurman's conviction and sentence, finding no issues of arguable merit. People v. Thurman, No. 1-95-2768 (6th Div. Apr. 12, 1996). Thurman filed a petition for leave to appeal to the Illinois Supreme Court, which was denied on January 29, 1997.
On June 5, 1998, Thurman argues that he was convicted in violation of his following claims. In Claim 1, Thurman argues that he was convicted in violation of his Fourteenth Amendment right to due process because the prosecution failed to prove him guilty beyond a reasonable doubt of first degree murder. In Claim 2, Thurman contends that his due process rights were violated because the trial judge allowed the State's witnesses to perjure themselves and was predisposed to find him guilty of first degree murder. In Claim 3, Thurman argues that he received ineffective assistance of trial counsel. And in Claim 4, Thurman claims that he received ineffective assistance of appellate counsel.
DISCUSSION
I. Standard of Review
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides the standard of review applied to federal habeas corpus petitions filed under 28 U.S.C. § 2254 by persons in state custody. To the extent that petitioner's claims are not procedurally barred or otherwise unreviewable, the standard of review described below applies to their and analysis.
Any claim adjudicated by a state court on the merits is governed by 28 U.S.C. § 2254(d), under which habeas relief may be awarded only where the state court's adjudication of a petitioner's claim: (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. § 2254(d)(1)-(2).
The Supreme Court recently clarified § 2254(d)(1). The Court held with respect to the first phrase: "[A] state court acts contrary to clearly established federal law if it applies a legal rule that contradicts [the Supreme Court's] prior holdings or if it reaches a different result from one of [the Court's] cases despite confronting indistinguishable facts." Ramdass v. Angelone, 120 S.Ct. 2113, 2119-20 (2000) (citing Williams v. Taylor, 529 U.S. ___, 120 S.Ct. 1495, 1516 (2000) (O'Connor, J., delivering the opinion of the Court with respect to Part II)). "[A] run-of-the-mill state-court decision applying the correct legal rule from our cases to the facts of a prisoner's case would not fit comfortably within § 2254(d)(1)'s contrary to' clause." Williams, 120 S.Ct. at 1520.
The Williams Court employed a hypothetical to explain its holding. The court stated that if, for example, a state court deciding an ineffective assistance of counsel claim correctly identifies Strickland v. Washington, 466 U.S. 668 (1984), as the controlling legal authority and rejects a petitioner's claim under that authority, "the state-court decision would be in accord with our decision in Strickland as to the legal prerequisites for establishing an ineffective-assistance claim, even assuming the federal court considering the prisoner's habeas application might reach a different result applying the Strickland framework itself." Williams, 120 S.Ct. at 1520. "Although the state-court decision may be contrary to the federal court's conception of howStrickland ought to be applied in the particular case, the decision is not `mutually opposed' to Strickland itself." Id. In other words, "if the state court applied the proper rule, yet reached a conclusion that the federal habeas court would not have independently reached, the federal court cannot grant the writ based on the `contrary to' clause."Washington v. Smith, ___ F.3d ___, 2000 WL 943515, at *6 (7th Cir. July 6, 2000).
The second phrase of § 2254(d)(1) "authorizes federal habeas corpus relief if, under clearly established federal law, a state court has been unreasonable in applying the governing legal principle to the facts of the case." Ramdass, 120 S.Ct. at 2119-20. "[W]hen a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case, a federal court applying § 2254(d)(1) may conclude that the state-court decision falls within that provision s unreasonable application' clause." Williams, 120 S.Ct. at 1521. In addition, "[a] state determination may be set aside under [the unreasonable application clause] if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled." Ramdass, 120 S.Ct. at 2120.
"Stated simply, a federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 120 S.Ct. at 1521 (rejecting the Fourth Circuit's requirement that the habeas court ask whether "the state court has applied federal law in a manner that reasonable jurists would all agree is unreasonable."). "[L]est we think that this provides us grounds for independent review of state court decisions on questions of federal law, the Supreme Court cautions that we must bear in mind that `an unreasonable application of federal law is different from an incorrect application of federal law.'"Washington, 2000 WL 943515, at *7, "Under § 2254(d)(1)'s `unreasonable application' clause, . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 120 S.Ct. at 1522.
II. Exhaustion of Remedies and Procedural Default
In order for this court to reach the merits of his claims, Thurman must clear two procedural hurdles: exhaustion of remedies and procedural default. See Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995). The exhaustion requirement demands that a petitioner take his claims to the state courts first, if the state courts "have not yet had a full and fair opportunity to consider the petitioner's constitutional claims and remain open to address [his] claims. . . ." See Cawley v. DeTella, 71 F.3d 691, 693 (7th Cir. 1995). If a petition contains an unexhausted claim, the court must dismiss the entire petition without addressing the merits of any claim, even if the petition contains other exhausted claims. See Liegakos v. Cooke, 106 F.3d 1381, 1388 (7th Cir. 1997); Wickstrom v. Schardt, 798 F.2d 268, 269 (7th Cir. 1986). Thurman has exhausted his state court remedies because no further avenues of relief remain open to him in the state court. See Cawley, 71 F.3d at 693.
Procedural default may occur in one of two ways: (1) when a petitioner fails to raise an issue on direct appeal or post-conviction review properly, see Rodriguez, 63 F.3d at 555; or (2) when the state court rests its judgment on an adequate and independent finding of procedural default under state law. See Patrasso v. Nelson, 121 F.3d 297, 301 (7th Cir. 1997). If a petitioner has procedurally defaulted with respect to a habeas petition claim, a federal court cannot reach the merits of that claim unless the petitioner demonstrates: (1) cause for and prejudice from failing to raise the claim earlier; or (2) that the default would lead to a "fundamental miscarriage of justice." Steward v. Gilmore, 80 F.3d 1205, 1211-12 (7th Cir. 1996) (quoting Wainwright v. Sykes, 433 U.S. 72, 87 (1977)). In its answer, respondent acknowledges that Thurman has not procedurally defaulted on Claims 1 and 4, but argues that Claim 2 is not cognizable on habeas review and that Claim 3 is procedurally defaulted. These arguments will be addressed in the following discussion of Thurman's claims.
III. Analysis of the Claims Presented
A. Failure to Prove Guilt Beyond a Reasonable Doubt (Claim 1)
In Claim 1, Thurman contends that the prosecution may have proved him guilty of second degree murder, but failed to prove him guilty beyond a reasonable doubt of first degree murder. In essence, Thurman contends that the prosecution did not sufficiently rebut his claim that he shot Brooks in self-defense, or, alternatively, that he shot out of the unreasonable belief that the force he used was justified, a showing that would have reduced his crime to second degree murder. Respondent acknowledges in its answer that Claim I is not procedurally defaulted because Thurman raised this claim on direct appeal and again in his post-conviction petition. Accordingly, the court addresses Claim 1 on the merits.
Although Thurman contends in his reply brief that he is not claiming that the court should have found that he acted in self defense, but is instead claiming that he should have been found guilty of second degree murder, it appears that he raised both arguments before the state appellate court in contending that he should not have been convicted of first degree murder. The appellate court addressed both arguments.
In addressing Thurman's reasonable doubt claim on the merits, the court must apply the second clause of § 2254(d)(1) and determine if the state appellate court's decision involved an unreasonable application of clearly established Federal law. Specifically, the court must determine if the state appellate court unreasonably applied the Supreme Court's standard for judging the sufficiency of the evidence in rejecting Thurman's reasonable doubt claim.
Under the standard set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979). for entertaining challenges to the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. In affirming Thurman's conviction, the state appellate court relied on a related principle set forth in People v. Willis, 577 N.E.2d 1215 (Ill.App.Ct. 1991), the principle that the appellate court will not disturb the trier of fact's conclusions unless the evidence presented was so improbable or unsatisfactory as to raise a reasonable doubt of defendant's guilt.
In his appellate brief, Thurman argued that he used force against Brooks out of the unreasonable belief that the force he used was justified, a situation that constitutes second degree murder. People v. O'Neal, 472 N.E.2d 441, 443 (Ill. 1984). He also suggested that he had acted in self-defense. Under Illinois law, a defendant who wishes to raise the defense of self defense must present some evidence of each of the elements of this defense. People v. Zolidis, 450 N.E.2d 1290, 1294 (Ill.App.Ct. 1983). "The defense is raised when evidence is presented that unlawful force was threatened against the defendant; that the danger of harm was imminent; that defendant was not the aggressor; that defendant actually believed that danger existed and that the kind and amount of force used was necessary to avert that danger; and that defendant's beliefs were reasonable." Id. The burden of proof then shifts to the State to disprove at least one of the elements of self defense beyond a reasonable doubt. Id.
In affirming Thurman's conviction, the appellate court explicitly held that because the trial court had found that Thurman's version of the events was not credible, there was no evidence at trial to support Thurman's contention that he was operating under even an unreasonable belief that he faced a threat of imminent harm that only the use of force could avert. The appellate court thus concluded that a rational trier of fact could have found that the evidence established neither a necessary element of second degree murder nor a necessary element of the defense of self-defense. Moreover, the appellate court held that even if Thurman had presented credible evidence to support his self-defense argument, thus shifting the burden to the State to disprove one of the elements of the defense, the State had presented sufficient evidence that Thurman was not operating under the threat of imminent harm to negate the elements of self-defense beyond a reasonable doubt.
In sum, the appellate court concluded that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of first degree murder beyond a reasonable doubt. Although the appellate court did not cite Jackson in reaching its conclusion, the appellate court applied the correct legal rule, and certainly did not apply a legal rule that contradicts Jackson. Accordingly, the appellate court's holding was not contrary to" clearly established federal law. Moreover, the court's conclusion was not an unreasonable application of the Supreme Court's holding in Jackson to the facts presented at trial. Accordingly, the court rejects Thurman's Claim 1.
B. Judicial Bias and Use of Perjured Testimony (Claim 2)
In Claim 2, Thurman contends that the trial judge was predisposed to find him guilty of first degree murder, as evidenced by the fact that the judge allowed the State's witnesses to lie and impeach themselves on the stand. In its answer, respondent contends that Claim 2 is not cognizable on federal habeas review. Respondent is incorrect. A habeas court may review a petitioner's perjury claim. See. e.g., Schaff v. Snyder, 190 F.3d 513, 529-30 (7th Cir. 1999). Nevertheless, Claim 2 is likely procedurally defaulted, because Thurman failed to raise this claim on direct appeal. The Seventh Circuit has held that in certain circumstances, a petitioner's "failure to raise [a] . . . claim on direct appeal is not fatal to his habeas petition if that claim was fairly presented to the Illinois courts in the state postconviction proceedings."Momient-El, 118 F.3d at 539. In his post-conviction petition, Thurman presented "both the operative facts and the `controlling legal principles'" of his perjury claim, alleging that the judge's reliance on the allegedly perjured testimony deprived him of his right to due process of law. Verdin, 972 F.2d at 1474.
Regardless of whether Claim 2 is procedurally defaulted, a review of the merits of that claim demonstrates that it does not provide a basis for granting the instant petition. Thurman contends in Claim 2 that he was deprived of due process because Detective Curley and Donelson committed perjury. Thurman points to inconsistencies in Curley's testimony, and to defense counsel's impeachment of Curley. "[M]ere inconsistencies in testimony by government witnesses do not establish the government's knowing use of false testimony. Rather, the alleged perjured testimony must bear a direct relationship to the defendant's guilt or innocence." United States v. Saadeh, 61 F.3d 510, 523 (7th Cir. 1995) (citations omitted). The inconsistencies Thurman identifies are peripheral and do not bear a direct relationship to his guilt. Moreover, to establish a due process violation, Thurman must demonstrate that the State knowingly used perjured testimony. Schaff, 190 F.3d at 530. Thurman does not argue that the State knew that Curley's testimony was perjurous and does not present any evidence in support of such a proposition.
In addition, Thurman contends that the State suborned perjury from Donelson. Thurman cites a passage from Donelson's trial testimony in which Donelson admitted on cross-examination that his friends pointed Thurman out to him in a yearbook and told him Thurman's name before he spoke to Detective Curley about the case. When the defense attorney asked Donelson, "So Demetrius Little said that's the man, didn't he?," Donelson replied in the affirmative. Donelson agreed that Little then told him the name David Thurman. On redirect, the State asked Donelson whether his friends told him to pick Thurman out of the yearbook as the shooter, or whether Donelson recognized Thurman on his own and then learned Thurman's name from his friends. Donelson replied that he recognized Thurman on his own, and that his friends told him Thurman's name.
The transcript Thurman attaches contains the following colloquy: "`Q: Sir, the day that you looked at that year book with your friends, did they tell you who to pick out as the person you recognized as the person who shot, or did you recognize him on your own?' A: `I recognized him on my own.' Q: "Then you looked in the book and he told you the name of the person, is that correct?' A: `Yes.`"
The court rejects Thurman's contention that Donelson's testimony constitutes perjury, and that the state's attorney's questions constitute subornation of perjury. The foregoing testimony "does not establish the type of palpable testimonial contradiction or untruth that is necessary to indicate perjury." Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1387 (7th Cir. 1994) (citations omitted). To the degree that Thurman's "testimony contained contradictory statements and ambiguities, they do not rise to a level of perjury but are mere inconsistencies." Saadeh, 61 F.3d at 523. In addition, Thurman does not argue or establish that the prosecution was aware that Donelson was perjuring himself. And finally, it is the job of the finder of fact to sift through inconsistencies and contradictions and decide what testimony to credit and what evidence to reject. "Federal courts are in no position to redetermine the credibility of witnesses observed by state trial courts." Kines v. Godinez, 7 F.3d 674, 678 (7th Cir. 1993). For the foregoing reasons, Claim 2 fails on the merits.
C. Ineffective Assistance of Trial Counsel (Claim 3)
In Claim 3, Thurman contends that he received ineffective assistance of counsel at trial. Specifically, Thurman claims that trial counsel provided ineffective assistance because he: (1) did not move to have Donelson impeached for lying on the stand; (2) did not impeach all of the State's witnesses for telling Donelson to lie; (3) did not impeach Curley for lying during his testimony; (4) failed to introduce the post-arrest statement of a codefendant that would have corroborated Thurman's own testimony; and (5) failed to investigate Thurman's claim that he had signed his post-arrest statement under duress in preparation for his pretrial motion to quash the statement. Respondent argues in its answer that Claim 3 is procedurally defaulted and that therefore the court cannot reach the merits of that claim.
1. Procedural Default
"As a general rule, federal district courts may not reach the merits of a habeas petition challenging a state conviction if the `state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests on independent and adequate state procedural grounds.'"Barksdale v. Lane, 957 F.2d 379, 382 (7th Cir.) (quoting Coleman v. Thompson, 501 U.S. 722 (1991)), cert. denied sub nom Barksdale v. Peters, 506 U.S. 890 (1992). If the last state court rendering a judgment in a case "clearly and expressly" stated that it was resting its opinion on a state procedural bar, this procedural default at the state level bars consideration of a federal claim on habeas review. Harris v. Reed, 489 U.S. 255, 263 (1989). As this court recently explained, "even if the appellate court reached the merits of the federal claim in an alternate holding, procedural default `curtails reconsideration of the federal issue on federal habeas as long as the state court explicitly invoke[d] a state procedural bar rule as a separate basis for decision.'" United States ex rel Weston v. Clark, 101 F. Supp.2d 685, 689 (N.D. Ill. 2000) (quoting Harris, 489 U.S. at 264 n. 10). If a state court does not reach a federal issue because of a state procedural bar, that issue is procedurally defaulted and cannot be raised in a writ of habeas corpus to a federal court without a showing of cause and prejudice. O'Sullivan v. Boerkel, 526 U.S. 838 (1999).
In ruling on Thurman's post-conviction petition, the state court did not clearly and expressly state that it was rejecting Thurman's ineffective assistance of trial counsel claim because Thurman had not raised this issue on direct appeal. The post-conviction court briefly addressed Thurman's ineffective assistance claim on the merits, and then stated, "Based on the fact that those issues that occurred at the trial court could have or should have or were raised on direct appeal, . . .; therefore, the court's finding that this petition is frivolous and is patently without merit and does not raise any arguable issues." The court cannot say that the postconviction court explicitly invoked a state procedural bar as the basis for rejecting Thurman's ineffective assistance claim. Moreover, in its opinion affirming the dismissal of Thurman's postconviction petition, the appellate court did not clarify the grounds upon which the lower court had based its dismissal, but merely held that it did not find any issues of arguable merit in the petition. The court concludes that the post-conviction court did not rest its judgment on an adequate and independent finding of procedural default under state law.
Although Thurman did not raise any of his ineffective assistance claims on direct appeal, "[petitioner's] failure to raise his ineffective assistance claim on direct appeal is not fatal to his habeas petition if that claim was fairly presented to the Illinois courts in the state postconviction proceedings." Momient-El, 118 F.3d at 539. Thurman raised the first four of his five ineffecive assistance claims in his post-conviction petition. Accordingly, those claims are not procedurally defaulted.
Thurman failed to raise his fifth ineffective assistance of trial counsel claim in his postconviction petition. In that claim, Thurman contends that in preparation for the pretrial motion to quash his post-arrest statement, his trial attorney failed to investigate his contention that he had signed the statement under duress. In support of this argument, Thurman submits three pages of a transcript from the hearing on his motion to quash, at which Thurman testified that Curley threatened to place him in a lock-up room with the victim's fellow gang members unless he signed his statement. Thurman appears to contend that the motion to quash would have been successful had his attorney conducted an independent investigation of his charges against Curley.
Thurman first raised his fifth ineffective assistance claim in his petition for leave to appeal the dismissal of his post-conviction petition to the Illinois Supreme Court. "[T]o set forth a claim of ineffective assistance, a petitioner `must identify the specific acts or omissions of counsel that form the basis for his claim of ineffective assistance.'"Momient-El, 118 F.3d at 541. "Fair presentment requires the petitioner to give the state courts a meaningful opportunity to pass upon the substance of the claims later presented in federal court." Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999). "A claim is not fairly presented if done for the first time in a procedural context in which the reviewing court exercises only discretionary review." Alvarez v. McGinnis, 4 F.3d 531, 534-35 (7th Cir. 1993). Under Illinois law, whether a petition for leave to appeal will be granted "is a matter of sound judicial discretion." Ill. St. S.Ct. Rule 315. Because Thurman did not raise his fifth ineffective assistance of counsel claim to the trial court reviewing his post-conviction petition, but raised this claim for the first time in his petition for leave to appeal the dismissal of his post-conviction petition to the Illinois Supreme Court, this claim was not "fairly presented" to the state courts. See Harris, 489 U.S. at 351.
The court cannot reach the merits of Thurman's fifth ineffective assistance claim unless Thurman "shows cause for failure to raise [the claim] at the appropriate time and actual prejudice which resulted from such failure." Rodriguez, 193 F.3d at 917. Thurman has not attempted to make a showing of cause and prejudice. "Absent such a 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. (quoting Murray v. Carrier, 477 U.S. 478, 495-96 (1986)). "This standard requires a petitioner 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)). Thurman has not made such a showing. Moreover, given the eyewitness testimony presented at Thurman's trial, the court cannot conclude that no reasonable juror (or jurist, in this situation) could have convicted him had his confession been excluded. The court therefore cannot reach the merits of Thurman's claim that his attorney was ineffective for failing to investigate his claims in preparation for the motion to quash.
2. Merits
As explained above, the court can address the merits of four of Thurman's five ineffective assistance claims without requiring Thurman to squeeze between the Scylla and Charybdis of cause and prejudice. Respondent does not address any of Thurman's ineffective assistance of trial counsel claims on the merits in its answer.
To succeed on his remaining ineffective assistance of trial counsel claims, Thurman must establish that the state court reached a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law. Although the post-conviction court did not cite any cases in reaching its conclusion that plaintiffs ineffective assistance of trial counsel claim was not meritorious, the wording of that holding demonstrates that the state court was relying on the federal standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 698 (1984). Because "the rule set forth in Strickland qualifies as `clearly established Federal law,'" Williams, 120 S.Ct. at 1512, Thurman must demonstrate that the post-conviction court's holding was contrary to, or an unreasonable application of, Strickland.
To prove an ineffective assistance of counsel claim, a petitioner must demonstrate both that defense counsel's conduct fell below an objective standard of reasonableness, and that a reasonable probability exists that, but for counsel's substandard performance, the decision reached would have been different. Strickland, 466 U.S. at 696. With respect to the first element, the petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy" and must establish that counsel's conduct was "outside the wide range of professionally competent assistance." Id. at 689, 690. With respect to the second element — prejudice — "a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case," but only that there is a "reasonable probability that . . . the result of the proceeding would have been different." Id. at 693-94. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The petitioner must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.
In dismissing Thurman's ineffective assistance of trial counsel claims, the postconviction court concluded that Thurman had not indicated how he was prejudiced by counsel's actions or that his attorney's conduct fell below an accepted standard of representation. Because this holding was not "contrary to" the standard set forth in Strickland seeWashington, 2000 WL 943515, at *8, the only question is whether it constituted an "unreasonable application" of Strickland to the facts of Thurman's case.
Thurman's first three ineffective assistance claims focus on defense counsel's examination of witnesses Donelson and Curley. It was not unreasonable for the post-conviction court to conclude that the defense attorney's approach to these witnesses did not fall below an accepted standard of representation. The attorney's decisions about what questions to ask these witnesses could easily have constituted sound trial strategy. Moreover, because the court has determined that Thurman's due process rights were not violated as a consequence of the alleged perjury committed by Donelson and Curley, the court concludes that Thurman was not prejudiced by any failure on the part of counsel identified in Thurman's first three arguments.
In his fourth ineffective assistance of trial counsel claim, Thurman argues that his trial attorney failed to introduce the post-arrest statement of a codefendant that would have corroborated Thurman's own testimony. Thurman contends that one of his codefendants stated to the police that before Thurman began shooting, Thurman and Brooks were arguing and Brooks pushed Thurman. Although the statement given by Thurman's codefendant was read during the trial, it was introduced by the codefendant's attorney. Thurman appears to argue that his own attorney provided sub-par representation by failing to use the statement to corroborate Thurman's testimony that the killing was justified. Again, it was not an unreasonable application of Strickland to conclude that counsel's behavior was not "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Moreover, because the codefendant's statement was presented to the finder of fact, it was not an unreasonable application of Strickland to find that there was no reasonable probability that the outcome of the case would have been different had Thurman's counsel's explicitly argued that the statement supported Thurman's testimony. For these reasons, the court rejects Thurman's Claim 3.
D. Ineffective Assistance of Appellate Counsel (Claim 4)
In his fourth and final habeas claim, Thurman contends that he received ineffective assistance of appellate counsel because his appellate attorney: (I) failed to raise the first three claims Thurman raised in his habeas petition (failure to prove him guilty of first degree murder beyond a reasonable doubt, judicial bias and the State's use of perjured testimony, and ineffective assistance of trial counsel); and (2) undermined Thurman's defense by stating that Thurman shot Brooks out of fear, when in fact Thurman had testified that Brooks grabbed him.
Respondent admits that Thurman's ineffective assistance of appellate counsel claims are not procedurally defaulted because Thurman raised these same arguments to the post-conviction court. After reviewing Thurman's petition, the post-conviction court held, "There is nothing in this petition that alleges why the representation by the appellate attorney fell below an accepted standard of representation or why the petitioner was prejudiced by the representation of the appellate attorney." Again, although the court did not cite Strickland, it clearly relied on the two-pronged Strickland test in reaching its conclusion. Because the post-conviction court applied the proper standard, its holding was not "contrary to" Strickland. See Washington, 2000 WL 943515, at *8. Thurman must therefore demonstrate that the foregoing holding was an unreasonable application of Strickland.
"Effective advocacy does not require the appellate attorney to raise every non-frivolous issue under the sun." Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996). "When a claim of ineffective assistance of counsel is based on failure to raise viable issues, the district court must. examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Gray v. Greer, 800 f.2d 644, 646 (7th Cir. 1986). "[W]hen that omitted issue `may have resulted in a reversal of the conviction, or an order for a new trial,' we will deem the lack of effective assistance prejudicial." Mason, 97 F.3d at 893 (quoting Gray, 800 F.2d at 646).
The first three claims Thurman raises in his habeas petition are not significant and obvious issues that are clearly stronger than the single issue argued in the appellate brief and are not claims that may have resulted in the reversal of Thurman's conviction. Moreover, because (as this court has discussed, above) Thurman's first three claims in his habeas petition are without merit, was not unreasonable for the post-conviction court to conclude that even though appellate counsel did not raise those three claims, his performance was within the realm of reasonable professional judgment and did not prejudice Thurman.
Thurman's second argument in support of his ineffective assistance of appellate counsel claim is that counsel's explication of the single argument in the appellate brief was flawed and admitted to much. On appeal, counsel argued that Thurman should not have been convicted of first degree murder because the evidence supported the defense theories of second degree murder and self-defense. The court cannot say that appellate counsel prejudiced Thurman by stating in the brief that Thurman shot Brooks out of fear. This statement followed naturally from Thurman's testimony that Brooks had grabbed him and threatened him, and it supported the argument that Thurman should not have been convicted of first degree murder. The court cannot say that the post-conviction court unreasonably applied Strickland in holding that appellate counsel's performance did not fall below an acceptable standard and that Thurman was not prejudiced by the argument on appeal.
CONCLUSION
For the foregoing reasons, Thurman's petition for habeas corpus is denied.