Opinion
No. 99 C 3536
June 13, 2000
OPINION and ORDER
Before the court is Petitioner Donald R. Hayes' Petition for Writ of Habeas Corpus. For the following reasons, the court denies the Petition.
I. Background
On November 3, 1989, after a bench trial in the Circuit Court of Cook County, Illinois, Petitioner Donald R. Hayes ("Hayes") was convicted of first degree murder for shaking his five month old son, Robert, so vigorously that he later died of the trauma. Hayes admitted shaking his son, but claims that he was attempting to resuscitate Robert after he fell ill. Hayes was sentenced to 28 years of imprisonment. Hayes appealed his conviction alleging:
1. he was not proven guilty beyond a reasonable doubt;
2. he was denied the effective assistance of counsel when counsel failed to object to proof of other crimes and an inadmissible letter allegedly written by defendant; and
3. he was denied a right to a fair trial by the introduction of proof of other crimes evidence and the court's reliance thereon.
(See Pet. Br. on Direct Appeal, Ex. A.) The Illinois appellate court affirmed Hayes' conviction and sentence. (See Ill. App. Ct. Order of Sept. 30, 1991, Ex. C.) Petitioner filed a petition for leave to appeal to the Illinois Supreme Court alleging that the appellate court erred in finding:
For clarity, the court refers to all documents in the record simply by title followed by their Exhibit letter. All references to exhibits relate to the exhibits provided with Respondent's Answer.
1. that he was proven guilty beyond a reasonable doubt;
2. that he was not denied the effective assistance of counsel; and
3. that certain evidence (other crimes and the letter) was not wrongfully introduced at trial.
(See Pet. for Leave to Appeal, Ex. D.) The Illinois Supreme Court denied Hayes' petition for leave to appeal. (See Ill. Sup. Ct. Order of Feb. 5, 1992, Ex. E.)
Hayes then filed a pro se post-conviction petition, alleging trial counsel provided ineffective assistance by:
1. calling a witness unfavorable to him;
2. allowing incorrect testimony regarding how he shook and handled his son; and
3. wrongfully advising him to waive his right to a jury trial by telling him that, due to the publicity of the case, the trial judge, after trial, would lower the charge to involuntary manslaughter.
(See Postconviction Pet., Ex. F.) The State then filed a motion to dismiss and the court granted the motion without an evidentiary hearing. On appeal, the Illinois appellate court vacated the order of dismissal and remanded the matter to allow Hayes' counsel to file three affidavits of witnesses. (See Ill. App. Ct. Order of Feb. 6, 1996, Ex. G.) The affidavits (see Affs., Ex. I) state that trial counsel made inaccurate representations to Hayes regarding the outcome of the trial, thus inducing him to waive a trial by jury. (See id. at 2.)
The trial court, on remand, again dismissed Hayes' postconviction petition, finding that: (1) Hayes knew that if the State proved intent, he would be found guilty of murder; and (2) the decision to waive a jury trial was that of Hayes alone. (See Ill. Tr. Ct. Order of Apr. 14, 1997, Ex. H at 6.) Hayes, now aided by counsel, appealed this dismissal, alleging that the circuit court erred in dismissing his petition without an evidentiary hearing. Again, Hayes alleged that his jury waiver was induced by trial counsel's promise of a lesser conviction and sentence. (See Pet. Appellate Br., Ex. J.) After the issue was briefed and the appellate court examined the three affidavits mentioned above and a counter-affidavit provided by trial counsel, the appellate court affirmed the dismissal of Hayes' postconviction petition. (See Ill. App. Ct. Order of Sept. 25, 1998, Ex. M.) Hayes' petition for rehearing (see Pet. for Rehearing, Ex. N) was also denied. (See Ill. App. Ct. Order of Dec. 28, 1998, Ex. Q.)
Hayes then filed a pro se petition for leave to appeal to the Illinois Supreme Court alleging:
1. that the appellate court erred in affirming the judgment of the circuit court where a factual determination based on conflicting affidavits was presented and required an evidentiary hearing to resolve;
2. that the allegations in the post-conviction petition stemmed from a matter off the record and thus required an evidentiary hearing to resolve; and
3. that the appellate court erred in concluding that the circuit court did in fact conduct an evidentiary hearing based on the affidavits and, if this was true, the appellate court erred because he was not present for that hearing.
(See Pet. for Leave to Appeal, Ex. P.) The Illinois Supreme Court denied Hayes' petition for leave to appeal. (See Ill. Sup. Ct. Order of Mar. 31, 1999, Ex. Q.)
On May 11, 1999, Hayes filed the instant Petition for Writ of Habeas Corpus ("Petition"), alleging:
1. that he was denied the effective assistance of counsel when trial counsel (a) failed to object to the use of other crimes issues regarding his alleged prior abuse of the victim, his infant son; (b) presented no evidence contradicting the State's allegations that he abused his son prior to his death; and (c) failed to object to the "other crimes" evidence for lack of foundation (see Pet. at 5-A);
2. that the trial court erred when it considered the "other crimes" evidence in finding him guilty (see id.);
3. that the evidence failed to support a guilty verdict beyond a reasonable doubt because the court considered the "other crimes" evidence and the State never proved intent, knowledge, willfulness, or malice (see id.)
4. that he was denied the effective assistance of counsel when trial counsel misled him into waiving his right to a jury trial by stating that he would receive a lesser sentence if he so waived that right, and thus, he involuntarily waived his right to a jury trial (see id. at 6);
5. that he was denied his rights to due process and equal protection of the law because (a) Illinois failed to provide an adequate process with which to attack his conviction; (b) he was denied a fair hearing on the merits of his claim when the trial court denied his postconviction petition without an evidentiary hearing; and (c) he was inadequately advised on issues relating to jury waiver (see id. at 6-A);
6. that he was denied the effective assistance of counsel when trial counsel withheld medical evidence that would establish "other causes of death" (see id. at 7);
7. that he was denied the effective assistance of counsel when trial counsel called a witness to testify for the defense and that witness incriminated him (see id.);
8. that he was denied the effective assistance of counsel when trial counsel failed to call an expert witness to testify, even though the expert witness was paid to testify (see id. at 7-A);
9. that his excessive bail amounted to cruel and unusual punishment (see id. at 8);and
10. that he was denied the effective assistance of counsel when direct and postconviction appellate counsel (a) failed to raise the issue of withholding of exculpatory medical evidence; (b) failed to raise the issue of whether bail was excessive; and (c) failed to address trial counsel's promises regarding the outcome of the trial. (See id. at 7-C.)
The court has renumbered Hayes' claims for the purposes of this opinion.
II. Discussion
A. Procedural Default 1. StandardSection 2254(c) requires a habeas petitioner to exhaust state court remedies prior to filing suit in federal court. See O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). "Section 2254(c) provides that a habeas petitioner `shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.'" Id. at 844 (quoting 28 U.S.C. § 2254 (c)). That Court stated:
because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, we conclude that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.Id. at 845; see also Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999) ("To meet the exhaustion requirement, an applicant must have raised all of his claims during the course of the state proceedings, presenting each claim fully and fairly to the state courts.") (quoting Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992)). Thus, a habeas petitioner's failure to present his federal habeas claims to the Illinois Supreme Court in a timely fashion results in a procedural default of those claims. See O'Sullivan, 526 U.S. at 848 (citing Coleman v. Thompson, 501 U.S. 722, 731-732 (1991); Engle v. Isaac, 456 U.S. 107, 125-126, n. 28 (1982)). Moreover, "the procedural default rule announced in Boerckel applies with equal force in a case . . . on collateral review." White v. Godinez, 192 F.3d 607, 608 (7th Cir. 1999) (holding that a habeas petitioner procedurally defaults those claims pressed in appeal of state Postconviction petition, but not raised in Illinois Supreme Court).
Additionally, merely submitting a claim to a state's highest court in a petition for discretionary review does not constitute fair presentment.See Green v. Peters, 36 F.3d 602, 606 n. 8 (7th Cir. 1994) (citingCastille v. Peoples, 489 U.S. 346, 351 (1989)). "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, 193 F.3d at 916 (citing Picard v. Connor, 404 U.S. 270, 275 (1971). And fair presentment of a constitutional claim to a state court requires both the operative facts and the controlling legal principles to be submitted. See id. (citing Picard, 404 U.S. at 277). With this in mind, the court turns to Hayes' habeas claims, and finds that Hayes failed to fairly present several of his claims to the state court.
2. Claims 5 through 10
A review of the record demonstrates that Hayes failed to present Claims 5, 6, 7, 8, 9 and 10 to the Illinois Supreme Court in a timely fashion. This results in a procedural default of those claims. See O'Sullivan, 526 U.S. at 848. The court sees no reason to examine these defaulted claims one-by-one, as Hayes never argues that he properly presented these claims to the Illinois Supreme Court on direct appeal or pursuant to his postconviction petition.
Respondent mentions in passing that Hayes procedurally defaulted Claim 8, but argues that excessive bail violations may only be vindicated prior to trial, (see Answer at 15 (citing Atkins v. Michigan, 644 F.2d 543, 549 (6th Cir. 1981)), and that once the charges against a petitioner are resolved, the issue becomes moot. (See Answer at 16 (citing Murphy v. Hunt, 455 U.S. 478, 481 (1982)). Given Hayes' procedural default of Claim 8, the court need not address this argument.
The court recognizes that any claim of ineffective assistance of appellate counsel regarding his postconviction petition, such as Claim 10, is untenable since, "[t]he ineffectiveness or incompetence of counsel during . . . State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." 28 U.S.C. § 2254 (i).
3. Cause, Prejudice and Fundamental Miscarriage of Justice
Given that Hayes defaulted Claims 5, 6, 7, 8, 9 and 10, the court can address the claims only if "the petition shows cause for failure to raise them 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)); see also Schaff v. Snyder, 190 F.3d 513, 526-27 (7th Cir. 1999). In what can be construed as an argument for cause, Hayes states that Claim 5 should not be defaulted because he had no way to raise that claim before his habeas petition. (See Reply at 2.) Hayes apparently argues that he could not have argued the violation of his due process and equal protection rights in connection with his appeals until the state appellate proceedings were complete. The court declines to address whether Hayes establishes cause for defaulting Claim 5. Instead, as seen below see discussion infra p. 8, Hayes fails to demonstrate prejudice as to this defaulted claim. Additionally, the court considers the merits of Claim 5 later in this opinion. See discussion infra pp. 22-23. Thus, whether Hayes demonstrates cause for failing to raise Claim 5 in state court need not be addressed.
The Seventh Circuit in Schaff, examined issues similar those presented in Hayes' Claims 6 through 10: whether the petitioner's claims of ineffective trial and appellate counsel established cause and prejudice.See 190 F.3d at 526-27. Thus, the Schaff court embarked on a Strickland analysis, asking the question whether trial counsel was ineffective for failing to pursue a Brady violation. See Brady v. Maryland, 373 U.S. 83 (1963) (holding that a violation of due process occurs when prosecution suppresses evidence favorable to an accused where evidence is material either to guilt or to punishment). Ultimately, the Schaff court determined that the petitioner's ineffective assistance of trial counsel claim was weak, and that there was no reasonable probability raising that the Brady issue would have produced a different result at trial. See id. at 527.
As seen below, Hayes fails the Strickland analysis. See discussioninfra at 12-22. Hayes fails to demonstrate that his trial counsel was ineffective or that his counsel on direct appeal was ineffective. Moreover, Hayes cannot argue that ineffective appellate counsel's handling of his postconviction petition satisfies Strickland for two reasons. First, "[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under sections 2254." 28 U.S.C. § 2254 (i); see also Coleman, 501 U.S. at 752 (stating that habeas petitioners have no constitutional right to postconviction counsel). Second, given that Hayes acted pro se when he filed his original postconviction petition, he cannot blame postconviction counsel for failing to raise claims. Accordingly, Hayes' ineffective assistance of counsel arguments fail to establish cause for his failure to properly and fairly introduce Claims 6 through 10 to the Illinois courts.
Moreover, Hayes does not even argue how his counsel's decisions resulted in prejudice to him. Given that defense strategy at trial was that Hayes did not intend to harm his baby, the court cannot find that he was prejudiced by trial counsel's failure to produce medical evidence that would establish "other causes of death" (Claim 6); calling of a witness to testify for the defense and that witness incriminated Hayes (Claim 7); failure to call an expert witness to testify, even though the expert witness was paid to testify (Claim 8); and failure to argue that his excessive bail amounted to cruel and unusual punishment (Claim 9). Because Hayes establishes none of his ineffective assistance of trial counsel claims, Hayes fails to establish prejudice in support of his claims that he was denied the effective assistance of direct and postconviction appellate counsel when appellate counsel (a) failed to raise the issues of withholding of exculpatory medical evidence; (b) failed to raise the issue of whether bail was excessive; and (c) failed to address trial counsel's promises regarding the outcome of the trial (Claim 10). (See Pet. at 7-C.) Thus, Hayes shows neither cause nor prejudice for Claims 6 through 10 and fails to show prejudice as to Claim 5.
Absent a showing of cause and prejudice, "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. . . .'"Rodriguez, 193 F.3d at 917 (quoting Murray v. Carrier, 477 U.S. 478, 495-96 (1986) and citing Coleman, 501 U.S. at 750). 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)); see also Britz v. Cowan, 192 F.3d 1101, 1103 (7th Cir. 1999). As the Illinois appellate court stated:
Here, defendant admitted that he shook [decedent infant] Robert, allegedly in an attempt to resuscitate him, and dropped him into his baby seat. Robert's extensive injuries, including the bruises on his head, buttocks, and thigh, and the evidence of hemorrhaging in the brain and eyes, indicated that the child was either shaken violently or grossly mishandled. Dr. Farrell, the treating physician, concluded that Robert's condition was caused by a "shake injury" in connection with child abuse. Dr. Kirschner said that the death was caused by blunt head trauma, possibly as a result of violent shaking, and that the manner of death was homicide. Defendant was the only person, other than his 2 1/2 year old daughter, who was with Robert in the period leading up to the onset of his fatal condition. The other evidence, including defendant's makeshift will and his flight from the jurisdiction, also points to his guilt.
The circuit court concluded that defendant knew his acts created a strong probability of death or great bodily harm, and found him guilty of first-degree murder . . . At bar, there is no reasonable doubt of defendant's guilt.
(Answer, Ex. C at 7-8.)
In the case at bar, Hayes offers, and the record provides, nothing to demonstrate that a fundamental miscarriage of justice will occur if this court does not review his defaulted claims. Given that Hayes shook Robert, (see Answer, Ex. C at 7-8), his unsupported assertion that he is innocent (see Reply at 1), fails to establish an "actual innocence" defense. See Rodriguez, 193 F.3d at 917. Thus, Hayes cannot establish that a constitutional violation has probably resulted in the conviction of one who is actually innocent, or that it is more likely than not that "no reasonable juror' would have convicted him." Id. at 917 (citations omitted). Thus, Claims 5, 6, 7, 8, 9 and 10 are defaulted.
B. Merits
The court now turns to those claims that are not procedurally defaulted, and begins with the standard for relief.
1. Standard for Habeas Corpus Relief
The Antiterrorism and Effective Death Penalty Act of 1996 amended 28 U.S.C. § 2254 (d). That section now provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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), (d)(2); see also Williams v. Taylor, ___ U.S. ___, No. 98-8384, 2000 WL 385369, at *22 (Apr. 18, 2000); Schaff, 190 F.3d at 521-22 (7th Cir. 1999). As the Supreme Court stated inWilliams:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
___ U.S. ___, 2000 WL 385369, at *1.
The "contrary to" clause of 2254(d)(1) relates to questions of law, which the court reviews de novo. See Schaff 190 F.3d at 522. The "unreasonable application" of clearly established federal law refers to the state court's determination of the facts, and is a mixed question of law and fact, to which the court grants deference to any reasonable state court decision. See id. at 522-23. But see Williams, ___ U.S. ___, 2000 WL 385369, at * 13 (dissenting opinion) ("The statutory text [of § 2254] does not obviously prescribe a specific, recognizable standard of review for dealing with either [the `contrary to' or `unreasonable application of] phrase. Significantly, it does not use any term, such as `de novo' or `plain error,' that would easily identify a familiar standard of review.")
The "unreasonable determination of the facts" language of § 2254(d)(2) relates to pure questions of fact. See 28 U.S.C. § 2254 (d)(2); cf.Hall v. Washington, 106 F.3d 742, 752 (7th Cir. 1997). "[T]he facts of the state court decisions are `presumed to be correct.'" Schaff; 190 F.3d at 521 n. 5 (quoting 28 U.S.C. § 2254 (e)(1)); see also Gardner v. Barnett, 199 F.3d 915, 917 (7th Cir. 1999) (holding that, on habeas review of an Illinois conviction, an Illinois appellate court's statement of facts are entitled to a presumption of correctness). Thus, petitioner Hayes "has the burden of rebutting that presumption of correctness by clear and convincing evidence." See Schaff, 190 F.3d at 521 (citing 28 U.S.C. § 2254 (e)(1); Williams v. Parke, 133 F.3d 971, 973 (7th Cir. 1997)).
2. Claim 1
In Claim I, Hayes alleges that he was denied the effective assistance of counsel when trial counsel (a) failed to object to the use of other crimes issues regarding Hayes' alleged prior abuse of the victim, Hayes' infant son; (b) presented no evidence contradicting the State's allegations that Hayes abused his son prior to his death; and (c) failed to object to the "other crimes" evidence for lack of foundation. (See Pet. at 5-A.) As the Supreme Court recently summarized:
In Strickland v. Washington, 466 U.S. 668 (1984), we held that criminal defendants have a Sixth Amendment right to "reasonably effective" legal assistance, id., at 687, and announced a now-familiar test: A defendant claiming ineffective assistance of counsel must show(1) that counsel's representation "fell below an objective standard of reasonableness," id., at 688, and (2) that counsel's deficient performance prejudiced the defendant, id., at 694.Roe v. Flores-Ortega, ___ U.S. ___, 120 S.Ct. 1029, 1034 (2000). Courts must judge the reasonableness of counsel's conduct in light of the facts of each case, viewed at the time of counsel's conduct. See Roe, 120 S.Ct. at 1034 (citing Strickland, 466 U.S. at 690). Furthermore, "[j]udicial scrutiny of counsel's performance must be highly deferential[.]" Id. at 1035 (quoting Strickland, 466 U.S. at 689).
The Roe Court held that "counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal . . .; or (2) that this particular defendant reasonably demonstrated that he was interested in appealing." 120 S.Ct. at 1036.
"To establish prejudice, a defendant `must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Williams, ___ U.S. ___, No. 98-8384, 2000 WL 385369, at *15 (citing Strickland, 466 U.S. at 694). The Roe Court put it this way:
In Williams, the Supreme Court held that failure to discover and introduce a significant amount of additional mitigating evidence, that is not justified by a tactical decision, demonstrates counsel's failure to fulfill their ethical obligation to defendant. ___ U.S. ___, 2000 WL 385369, at *2. That Court also found that, under the facts of that case, a state's highest court's failure to evaluate the totality of the mitigating evidence is unreasonable under a Strickland analysis. See id.
We "normally apply a `strong presumption of reliability' to judicial proceedings and require a defendant to overcome that presumption," [Smith v. Robbins, ___ U.S. ___, 120 S.Ct. 746, 765 (2000)] (citing Strickland, 466 U.S. at 696, by "show[ing] how specific errors of counsel undermined the reliability of the finding of guilt." [United States v. Cronic, 466 U.S. 648, 659, n. 26 (1984)]. Thus, in cases involving mere "attorney error," we require the defendant to demonstrate that the errors "actually had an adverse effect on the defense." Strickland, supra, at 693. See, e.g., Robbins, supra, at 746 (applying actual prejudice requirement where counsel followed all required procedures and was alleged to have missed a particular nonfrivolous argument); Strickland, supra, at 699-700 (rejecting claim in part because the evidence counsel failed to introduce probably would not have altered defendant's sentence).120 S.Ct. at 1037-38. Had Hayes alleged the complete denial of trial or appellate counsel, the court would presume prejudice. See id. at 1038. But because Hayes alleges specific errors of trial and appellate counsel, Hayes must demonstrate that counsel's errors actually had an adverse effect on the defense. See id. at 1037.
A court presumes prejudice in three situations: (1) in a case of denial of counsel; (2) in certain kinds of state interference with counsel's assistance; and (3) when counsel is burdened by a conflict of interest. See Robbins, 120 S.Ct. at 765.
In the instant case, Hayes fails to demonstrate that his counsel's failure to (a) object to the use of other crimes issues regarding Hayes' alleged prior abuse of the victim, Hayes' infant son; (b) present evidence contradicting the State's allegations that Hayes abused his son prior to his death; and (c) object to the "other crimes" evidence for lack of foundation fell below an objective standard of reasonableness. The Illinois appellate court, on direct appeal, summarized some of the facts of Hayes' case and the court repeats them here:
Here, defendant admitted that he shook [decedent infant] Robert, allegedly in an attempt to resuscitate him, and dropped him into his baby seat. Robert's extensive injuries, including the bruises on his head, buttocks, and thigh, and the evidence of hemorrhaging in the brain and eyes, indicated that the child was either shaken violently or grossly mishandled. Dr. Farrell, the treating physician, concluded that Robert's condition was caused by a "shake injury" in connection with child abuse. Dr. Kirschner said that the death was caused by blunt head trauma, possibly as a result of violent shaking, and that the manner of death was homicide. Defendant was the only person, other than his 2 1/2 year old daughter, who was with Robert in the period leading up to the onset of his fatal condition. The other evidence, including defendant's makeshift will and his flight from the jurisdiction, also points to his guilt.
The circuit court concluded that defendant knew his acts created a strong probability of death or great bodily harm, and found him guilty of first-degree murder . . . At bar, there is no reasonable doubt of defendant's guilt.
(Answer, Ex. C at 7-8.) The appellate court also stated that:
defendant asserts that evidence of Robert's fractured femur was irrelevant to the charges against defendant and served no purpose other than to raise the inference that defendant had a propensity to abuse Robert. Evidence of other crimes is admissible when relevant to prove modus operandi, intent, identity, motive, or absence of mistake; in other words, evidence of other offenses is admissible if it is relevant for any purpose other than to show the propensity to commit crime. People v. McKibbens, (1983), 96 Ill.2d 176, 182, 449 N.E.2d 821.
Here, the evidence established that the fracture to Robert's leg was the result of a twisting or bending motion. This injury was at least several days old. Because the State had the burden of proving that defendant knew his acts created a strong probability of death or great bodily harm to Robert, there is no question that evidence of Robert's fracture was relevant and admissible to establish defendant's intent or mental state in shaking Robert. (See People v. Wachal, (1987), 156 Ill. App.3d 331, 336, 509 N.E.2d 648.) Further, proof of other crimes need not be established beyond a reasonable doubt. (People v. Milner, (1984), 123 Ill. App.3d 656, 661, 463 N.E.2d 148.) This alleged evidentiary error did not deny defendant a fair trial. Further, there is no reasonable probability that but for the admission of evidence of the femur fracture, the result of the trial would have been different. (See Strickland, 466 U.S. at 687.) The State presented ample evidence of the nature and cause of Robert's other injuries, and the circuit court determined that defendant was guilty beyond a reasonable doubt.
This recitation of facts set forth by the state appellate court are summaries and excerpts taken from that court's previous, broader description of the facts. (See Answer, Ex. C at 1-5.) The court finds no inconsistencies with the facts.
Hayes offers nothing to rebut the presumption that these facts are correct. See 28 U.S.C. § 2254 (e)(1). Given this, and that judicial scrutiny of counsel's performance is highly deferential, see Roe, 120 S.Ct. at 1035, trial counsel's failure to object to the use of "other crimes," failure to contradict the State's allegations of abuse, and failure to object to the "other crimes on foundational grounds was not objectively unreasonable. See id. at 1037 (`The relevant question is not whether counsel's choices were strategic, but whether they were reasonable."). Hayes offers nothing to indicate that he did not abuse his son before his death; nor does he suggest what evidence counsel had to offer to demonstrate as such. Similarly, Hayes offers, and the record holds, nothing to indicate that objection to the other crimes on foundational grounds would been fruitful. Clearly, the evidence and the reasoning of the state appellate court indicate otherwise. Given the physicians' testimony at trial, Hayes' own admissions, and the physical evidence, counsel's failure to object on the above grounds was not objectively unreasonable.
As for the prejudice prong of Strickland, the court emphasizes that there exists a strong presumption of reliability to judicial proceedings, that a defendant has the burden to overcome. Roe at 1034 (citing Robbins, 120 S.Ct. at 765). As the appellate court stated: "Proof of other crimes need not be established beyond a reasonable doubt. . . . This evidentiary error did not deny defendant a fair trial." (Answer, Ex. C at 9.) The court agrees. Given the evidence introduced regarding Hayes' actions and demeanor, Hayes does not show that trial counsel's performance prejudiced the trial's outcome. In sum, Hayes fails to demonstrate either prong of Strickland and fails to demonstrate that his trial counsel's performance "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Schaff, 190 F.3d at 526 (quoting Strickland, 466 U.S. at 686). There is no reasonable probability that trial counsel's objections to the "other crimes" evidence would have led to a different result. See id. at 527.
3. Claim 2
In Claim 2, Hayes argues that the trial court erred when it considered the "other" evidence in finding Hayes guilty. (See Pet. at 5-A.) Thus, the court examines whether the trial court's consideration of Hayes' "other crimes 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." 28 U.S.C. § 2254 (d)(1). In Hayes' appellate brief, he presented his argument that the "other crimes" evidence was inadmissible because it merely demonstrated Hayes' propensity to commit crime. (See Answer, Ex. A at 26-29.) After review of Hayes' arguments, the Illinois appellate court stated that "there is no question that evidence of Robert's fracture was relevant and admissible to establish defendant's intent or mental state in shaking Robert." (Answer, Ex. C at 9 (citing People v. Wachal, 509 N.E.2d 648, 651 (Ill. 1987) ("such evidence is admissible if it is relevant for other purposes, such as to show intent, identity, motive, modus operandi, or absence of mistake.").) Given the facts of this case, the trial court did not commit constitutional error in admitting the other evidence to demonstrate Hayes' intent, identity, motive, modus operandi, or absence of mistake; the ruling was reasonable in light of federal law. Accordingly, the court cannot find that consideration of the "other crimes" evidence was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court.See 28 U.S.C. § 2254 (d)(1).
Nor did the admission of the "other crimes" evidence result in a decision based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254 (d)(2). The Supreme Court has stated that a federal court may grant habeas relief based on trial error only when that error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citations and internal marks omitted). Again, given the facts of this case, specifically that Hayes shook Robert and dropped him into his baby seat (see Answer, Ex. C at 7), the omission of the evidence of Robert's prior injuries would not have affected the guilty verdict.
4. Claim 3
In Claim 3, Hayes argues that the evidence failed to support a guilty verdict beyond a reasonable doubt because the court considered the "other crimes" evidence and the State never proved intent, knowledge, willfulness, or malice. (See id.) However, "The relevant mental state of first-degree murder is that in performing the acts that cause death, an accused knows that such acts create a strong probability of death or great bodily harm." (Ill.App.Ct. Order of Sept. 30, 1991, Ex. C at 6 (citing People v. Bartall, 456 N.E.2d 59 (Ill. 1983).) Hayes does not argue this legal standard, but rather that the evidence at trial did not prove that he acted with the mental state required for first-degree murder. Where, as here,
the [habeas] applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court's determination of a factual issue made therein, the applicant if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State court's factual determination.28 U.S.C. § 2254 (f). The court finds that it has been provided the pertinent part of the State record, and that part provides (as discussed above):
Here, defendant admitted that he shook [decedent infant) Robert, allegedly in an attempt to resuscitate him, and dropped him into his baby seat. Robert's extensive injuries, including the bruises on his head, buttocks, and thigh, and the evidence of hemorrhaging in the brain and eyes, indicated that the child was either shaken violently or grossly mishandled. Dr. Farrell, the treating physician, concluded that Robert's condition was caused by a "shake injury" in connection with child abuse. Dr. Kirschner said that the death was caused by blunt head trauma, possibly as a result of violent shaking, and that the manner of death was homicide. Defendant was the only person, other than his 2 1/2 year old daughter, who was with Robert in the period leading up to the onset of his fatal condition. The other evidence, including defendant's makeshift will and his flight from the jurisdiction, also points to his guilt.
(Answer, Ex. C at 7-8.) Hayes offers nothing to contradict these facts, and the court presumes them to be true. See 2254(e)(1). And given these facts, the appellate court concluded that
defendant need not be shown to have had specific intent to kill or do great bodily harm or to have known with certainty that his acts would achieve those results; it is sufficient to show that he voluntarily and willfully committed an act, that natural tendency of which was to destroy another's life.
(Answer, Ex. C at 6.) That court thus affirmed Hayes' conviction of first-degree murder.
When examining a sufficiency of the evidence claim after a criminal conviction, "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." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)). In this case, the evidence clearly supports the conclusion that Hayes had specific intent to do great bodily harm or to have known with certainty that his acts would achieve those results. Thus, the court finds, in viewing the evidence in a light most favorable to the prosecution, that a rational trier of facts could have found similarly. As such, Hayes' insufficient evidence claim fails; the trial court's verdict, based on the evidence, does not warrant habeas relief. See 28 U.S.C. § 2254 (d).
5. Claim 4
Hayes next claims that he was denied the effective assistance of counsel when trial counsel misled Hayes into waiving his right to a jury trial by stating that Hayes would receive a lesser sentence if he so waived that right. Thus, Hayes contends, he involuntarily waived his right to a jury trial. In discussing this issue, the court also examines that part of Hayes' Claim 5 that alleges that he was denied a fair hearing on the merits of his claim when the trial court denied his postconviction petition without an evidentiary hearing.
Similar to the Claims discussed above, the court examines whether these alleged shortcomings resulted in a decision that was contrary to, or involved an unreasonable application of; clearly established federal law, or if it 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. See 28 U.S.C. § 2254 (d)(1), (d)(2).
The court begins its analysis by noting that the trial court originally denied Hayes' postconviction petition without considering any affidavits or conducting an evidentiary hearing. (See Ill. App. Ct. Order of Feb. 6, 1996, Ex. G at 3-4.) On appeal, the Illinois appellate court remanded the case to the circuit court and ordered Hayes' counsel to attach three affidavits (Affs., Ex. I) to the postconviction petition. (See Ill. App. Ct. Order of Feb. 6, 1996, Ex. G at 5.) The three nearly identical affidavits, sworn by three separate witnesses, stated that Hayes "had been induced to waive his right to a jury trial by defense counsel's representation regarding the outcome of the trial[.]" (Affs., Ex. I at 2.)
On remand, the circuit court reviewed the record and the three affidavits provided. (See Order of Apr. 14, 1997, Ex. H at 4.) That court made the following factual determinations:
The defendant was well aware that the issue of intent was an important one during this trial, as the record indicates with the defendant's and his attorney's discussions of intent, patterns of child abuse and a discussion of strategy where counsel suggested blaming the defendant's wife. The defendant was aware that if the State failed to prove intent the defendant would not have been found guilty of murder, but also if intent were proved then the opposite result would obtain.
It is also apparent from the record, that the defendant's decision to waive his right to a jury trial was his and his alone and that he knowingly made this waiver.
(Id.) The circuit court concluded, "Having thus reviewed the post-conviction petition, supporting documentation and opposing affidavits, the court finds that the petition is without merit, and is hereby dismissed, and that no evidentiary hearing is required since a complete record has been made and evaluated." (Id. at 5.)
On appeal, the Illinois appellate court examined the counteraffidavit filed by Hayes' trial counsel. (See Ill. App. Ct. Order of Sept. 25, 1998, Ex. Mat 4.) That court stated:
In the counteraffidavit, defendant's trial counsel explicitly rebutted the allegations of the affidavits submitted by defendant regarding promises of a predetermined trial outcome.
In the counteraffidavit, trial counsel further stated that the judge noted that a manslaughter conviction might be appropriate if the State was unable to prove intent. Consequently, according to the counteraffidavit, trial counsel and defendant agreed to focus their defense upon defendant's intent at the time he shook his son. Also, trial counsel advised defendant that the judge would be more likely than a jury to rule on the evidence. Finally, according to the counteraffidavit, trial counsel advised defendant not to be swayed by emotions in this case, which involved the death of an infant who had significant preexisting injuries.
(id.) The Illinois appellate court affirmed the trial court's ruling, finding that the circuit court indeed held an evidentiary hearing (although not required to do so) (see id. at 5-6 (citing People v. Humphrey, 46 Ill.2d 88, 91-92 (1970); People v. Montgomery, 162 Ill.2d 109, 113 (1994)), and did not abuse its discretion in limiting the evidence to the affidavits. (See id. at 6.) The appellate court also concluded that "[i]t is not manifestly erroneous for the court to conclude that defendant's allegation about a promised sentence amounting to time served in, what was then, a capital case did not warrant an evidentiary hearing." (Id. at 7.) Hayes subsequently filed a petition for leave to appeal the appellate court's ruling, which the Illinois Supreme Court denied. (See Pet. for Leave to Appeal, Ex. Q.)
Given these facts, Hayes fails to show that the circuit court's procedures and resultant denial of his postconviction petition was an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254 (d)(1). He also fails to demonstrate that the circuit court or appellate court adjudications resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254 (d)(2). To the contrary, the appellate court did not disturb the circuit court's decisions regarding the postconviction petition because it was not manifestly erroneous. (See id. at 6 (citing People v. Lear, 175 Ill.2d 262, 268 (1997)). Thus, Hayes' contention that he was denied a fair hearing on the merits of his claim when the trial court denied his postconviction petition is unsubstantiated and provides no grounds for habeas relief
And for basically the same reasons, Hayes' ineffective assistance of counsel claim for inducing his waiver of a jury trial cannot be sustained. Given the examinations and findings of the state courts, Hayes fails to show that trial counsel's representation fell below an objective standard of reasonableness and that the "deficient" performance prejudiced Hayes. See Roe, 120 S.Ct. at 1034. Noting again that the court is highly deferential to counsel's performance, see id., the court finds that Hayes was afforded "reasonably effective" legal assistance pursuant to Strickland. 466 U.S. at 687.
6. Claim 5
The court has determined that Hayes procedurally defaulted Claim 5 because he never gave the Illinois courts a full and fair opportunity to review those claims and he never demonstrated that the "deficiencies" set forth in Claim 5 prejudiced him. However, to the extent Claims 5 is not procedurally defaulted because Hayes theoretically could not have discovered the denial of his due process and equal protection rights until the state court proceedings were complete (thus demonstrating cause), the Claim fails on its merits. Claim 5 alleges that he was denied his rights to due process and equal protection of the law because (a) Illinois failed to provide an adequate process with which to attack his conviction; (b) he was denied a fair hearing on the merits of his claim when the trial court denied his postconviction petition without an evidentiary hearing; and (c) he was inadequately advised on issues relating to jury waiver (see Pet. at 6-A.) Claim 5(c) raises the identical issue raised in Claim 4, except that in Claim 5(c), he specified two constitutional rights (due process and equal protection) that were allegedly violated. Having found in the analysis of Claim 4 that the state proceedings were adequate and that none of Hayes' constitutional rights were violated regarding the jury waiver issue, see discussion supra at 19-22, Claim 5 likewise fails. The court found no constitutional violation then, and cannot find one here simply because Hayes specifies due process and equal protection as specific constitutional rights that were violated. Accordingly, to the extent that Claim 5 is not procedurally defaulted, it fails on its merits.
III. Conclusion
For the foregoing reasons, the court denies Hayes's for Writ of Habeas Corpus.
IT IS SO ORDERED.