Opinion
No. 99 C 1612.
June 9, 2000.
OPINION and ORDER
Before the court is Petitioner Gregory Reed's Petition for Writ of Habeas Corpus. For the following reasons, the court denies the Petition.
I. Background
In February 1994, following a jury trial in the Circuit Court of Cook County, Illinois, Petitioner Gregory Reed was convicted of first degree murder and three counts of attempted first degree murder. ( See Ill. App. Ct. Order of Mar. 29, 1996, Ex. A.) A Cook County Public Defender represented Reed at his trial. ( See Pet. Claim 4.) On March 28, 1994, the circuit court judge sentenced Reed to concurrent prison terms of 25 years on each count of attempted first degree murder, to be served consecutively with a 40-year prison term for first degree murder. ( See Ex. A at 1.)
The "Exhibits" to which the court refers in this Opinion and Order are those four exhibits provided by Respondent.
Before the court delves into the procedural background of this case, it summarizes what little it can glean from the record about Reed's crime. To do so, the court examines the Record provided by Respondent. That Record consists of four exhibits: (1) a two-paragraph Illinois appellate court summary order affirming Reed's sentence on direct appeal; (2) a three-page Illinois appellate court order affirming the dismissal of Reed's pro se postconviction petition; (3) Reed's Motion to Dismiss his postconviction appellate counsel's motion to withdraw pursuant toPennsylvania v. Finley, 481 U.S. 551 (1987); and (4) Reed's Petition for Leave to Appeal his Postconviction Petition to the Illinois Supreme Court. ( See Exs. A-D.) Exhibits A, B, and C provide no description of Reed's crime.
Exhibit D, Reed's Petition for Leave to Appeal, includes a six-page summary of the facts presented at trial. ( See Ex. D.) This six-page summary was taken directly from the brief Reed's appellate counsel, the Deputy Defender from the State of Illinois Appellate Defender Office, prepared in support of Reed's direct appeal of his conviction, ( See Traverse, Attachment 1), and the court notes that Reed argues in his Petition that his appellate counsel's representation on direct appeal was constitutionally ineffective. Nevertheless, according to this summary, Reed accompanied a group of men, in two cars, to 66th and Laflin Streets to participate in a fight. ( See Ex. D at 11.) When they arrived at that intersection, one of the men in the two cars "pointed out who he wanted shot." ( Id.) Reed and two other men then left the vehicles and "while these three men were walking, Dave and Tony [the two men walking with Reed] turned and began shooting." ( Id.) The shootings resulted in a death for which Reed was convicted on an accountability theory. ( See Ex. A at 1.)
A "Traverse" is a petitioner's reply to a respondent's answer to a habeas corpus petition. See Advisory Committee Notes to Habeas Corpus Rule 5.
The court does not take this summary of Reed's crime as true, but provides it merely as background. Reed does not dispute this summary of events in either his Petition or his Traverse. Reed also admits that he was present at the crime scene. In Reed's own words, "state evidence proved only that he [Reed] had knowledge and was present at scene of crime which is insufficient to find petitioner guilty on theory of accountability." ( See Pet. Claim 1.) That said, the court proceeds with the procedural posture of this case.
As noted above, Reed directly appealed his sentence with aid of counsel from the state appellate defender. On direct appeal, Reed argued only one point: that his aggregate sentence of 65 years is impermissibly disparate from the 50-year sentence received by the codefendant, David Washington. ( See Ex. A at 1.) Reed contended that because he was convicted on a theory of accountability and had a minimal criminal record while Washington was the actual shooter, his sentence is unfair. On March 29, 1996, the Illinois appellate court rejected this argument, noting that Washington pleaded guilty. ( See id. at 2.) Hence, the Illinois appellate court found no error or abuse of discretion in the trial court's sentencing. ( See id.) Reed raised no other arguments in his direct appeal, and apparently did not petition for leave to appeal to the Illinois Supreme Court regarding this decision.
Reed then filed a pro se postconviction petition in the Circuit Court of Cook County, a copy of which Reed included with his Traverse. ( See Traverse Attachment 3.) In that petition, Reed raised the following arguments:
1. he was not proven guilty beyond a reasonable doubt;
2. he was punished for exercising his right to a jury trial;
3. ineffective assistance of trial counsel where trial counsel failed to:
a. conduct a pre-trial investigation;
b. interview, subpoena, or call witnesses Jewell Reed, Angela Jobe or Angela Dogan;
c. investigate the crime scene or interview eyewitnesses to the crime;
d. subpoena medical records from the Cook County jail;
e. contact, interview or subpoena David Jennings, who was arrested for the crime, or any of Jennings' arresting officers;
f. request hearing on motion to dismiss the venire [the jury].
4. ineffective assistance of appellate counsel when appellate counsel failed to raise or present any claims or constitutional violations that Reed and counsel agreed would be raised, and where appellate counsel admitted Reed's guilt in the appellate brief when appellate counsel should have raised meritorious claims of innocence;
5. the trial court improperly denied, without a hearing, Reed's motion to dismiss the venire [the jury] on the grounds that the venire under-represented African-Americans;
6. the prosecution improperly argued allegations not in evidence, improperly characterized the evidence and made erroneous, inflammatory statements in its closing arguments; and
7. the trial court erred when it:
a. denied Reed's motion to quash arrest and suppress evidence;
b. denied Reed's motion in limine regarding evidence obtained during an illegal search; and
c. failed to tender certain jury instructions.
( See Traverse Attachment 3.) The trial court dismissed the petition as frivolous and patently without merit. ( See Ex. B at 1; see also Trial Court Order of December 18, 1996, Traverse, Attachment 4.)
The Cook County Public Defender represented Reed on appeal from the denial of his postconviction petition. ( See Ex. B at 1.) The public defender, however, filed a motion pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), concluding that no appealable issues existed in Reed's case. ( See Ex. B at 2.) Reed then filed a pro se petition disputing the public defender's conclusions and arguing that the dismissal of his postconviction petition be reversed. ( See id.) The Illinois appellate court, agreeing with postconviction appellate counsel, "found no issues of arguable merit to be asserted on appeal." ( Id.) The appellate court also stated that (1) Reed's sufficiency of the evidence claim (Claim 1) was not cognizable in a postconviction proceeding; (2) Reed's claims regarding the propriety of the rulings made by the trial court, the State's closing argument, and his sentence (Claims 4, 5, 6 and 7) were barred under the doctrines of res judicata or waiver; and the remaining claims (Claims 2 and 3) were conclusory and insufficient to survive dismissal. ( See id.) Moreover, as for Reed's ineffective assistance of appellate counsel claim (Claim 3), the appellate court determined that Reed failed to demonstrate this claim because he did not establish the second prong of Strickland v. Washington, 466 U.S. 668 (1984). ( See Ex. B at 2.) In other words, Reed failed to demonstrate that the performance of his appellate counsel prejudiced him. ( See id.) Thus, the appellate court granted the public defender's motion for leave to withdraw as Reed's postconviction appellate counsel and affirmed the circuit court's order dismissing Reed's postconviction claims. ( See id. at 3.)
On December 24, 1997, Reed filed a petition for leave to appeal to the Illinois Supreme Court, arguing the same issues that he raised in his postconviction appeal. ( See Ex. D.) According to Respondent, the Supreme Court of Illinois denied Reed's Petition for Leave to Appeal. ( See Answer at 5, n. 2.)
On March 8, 1999, Reed filed the instant Petition for Habeas Corpus, raising the same claims that he raised in his postconviction petition:
1. he was not proven guilty beyond a reasonable doubt;
2. he was punished for exercising his right to a jury trial, and his sentence was excessive;
3. he was denied the effective assistance of appellate counsel when appellate counsel failed to raise or present claims or constitutional violations that Reed and counsel agreed would be raised on Reed's direct appeal;
4. he was denied effective assistance of trial counsel where trial counsel failed to:
a. interview, subpoena or call as witnesses Jewell Reed, Angela Jobe or Angie Dogan;
b. send investigators to investigate the scene where Reed was arrested;
c. investigate the crime scene or interview witnesses to the crime;
d. subpoena witness Frank Hubbard;
e. subpoena medical records from Cook County Jail;
f. subpoena, contact or interview David Jennings;
g. investigate any plausible line of defense;
h. request a hearing on motion to dismiss the venire [the jury];
5. the trial court improperly denied Reed's motion to dismiss the venire [the jury];
6. the prosecution improperly argued allegations not in evidence during closing arguments;
7. the trial court erred when it:
a. denied Reed's motion to quash arrest and suppress evidence;
b. denied Reed's motion in limine regarding evidence obtained in an illegal search; and
c. failed to tender certain jury instructions.
( See Pet.) Reed maintains that Claim 2 (his excessive sentence and punishment for exercising his right to jury trial claim) was not raised on direct appeal "because issue was a matter not in record." ( See id. 11. ¶ 13.) Reed also states that he did not raise Claims 3 and 4 on direct appeal because those issues involved ineffective assistance of trial and appellate counsel. ( See id.) Additionally, Reed contends that Claims 1, 5, 6, and 7 were not raised on direct appeal "because appellate counsel failed to do so." ( See id.)
Respondent answered the Petition arguing that Reed procedurally defaulted Claims 1, 2, 4, 5, 6 and 7 by failing to raise them on direct appeal. ( See Answer at 7-12.) Respondent also contends that Claim 3 should be denied because Reed fails to demonstrate the requirements of Strickland. ( See Answer at 14.)
Subsequently, Reed filed a Traverse which he designated as an Answer to Respondent's Answer. ( See Traverse.) Attached to the Traverse are: (1) Reed's brief submitted on direct appeal (prepared by Reed's appellate counsel); (2) the first page of appellate court's denial of his direct appeal (that is, a duplicate of Ex. A.); (3) his pro se postconviction petition; and (4) the trial court's denial of Reed's postconviction petition. ( See Traverse attachments.) Included within the four Traverse Attachments are: (1) a transcript of Washington's sentencing hearing; (2) Reed's pro se postconviction petition, which is supported by his own affidavit; and (3) the trial court's order dismissing Reed's postconviction petition. ( See Traverse Attachments 1-4.)
The court notes that Respondent failed to comply with Habeas Corpus Rule 5, which requires an answer to indicate "what transcripts (of pretrial, trial, sentencing, and post-conviction proceedings) are available, when they can be furnished, and also what proceedings have been recorded and not transcribed." See Habeas Corpus Rule 5. As the record stands, there is no description of the crime from any source other than Reed's counsel, who described the crime in Reed's brief on direct appeal. ( See Ex. D at 6-12.) Furthermore, the Petition, the Answer, the Exhibits, the Traverse and the state court decisions do not provide the facts upon which the state courts based their decisions. Moreover, while Reed apparently had access to the trial transcript, ( See Pet. Claim 1; Claim 7 (referencing transcripts)), Reed provides no part of the trial transcript, nor does he argue that the transcript supports the vast majority of his arguments.
II. Discussion
A. Procedural Default 1. Standard
Section 2254 requires a habeas petitioner to exhaust the remedies available in the state courts prior to pursuing a habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A). "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.'" O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (quoting 28 U.S.C. § 2254(c)). The O'Sullivan 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. O'Sullivan, 526 U.S. at 848 (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Engle v. Isaac, 456 U.S. 107, 125-26, n. 28 (1982)). Moreover, 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)). 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).
Additionally, "`[i]n the habeas context, the application of the independent and adequate state ground doctrine,' of which a procedural default is typically an instance, `is grounded in concerns of comity and federalism.'" Trest v. Cain, 522 U.S. 87, 89 (1997) (quoting Coleman, 501 U.S. at 730). The doctrine applies "to bar consideration on federal habeas of federal claims that have been defaulted under state law." Lambrix v. Singletary, 520 U.S. 518, 523 (1997) (citing Coleman, 501 U.S. at 729-30). "It `ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases.'" Lambrix, 520 U.S. at 523 (quoting Coleman, 501 U.S. at 732). With this in mind, the court turns to Reed's habeas claims, and finds that the state courts never discussed the merits of most of his claims other than to call them frivolous.
2. Reed's Procedurally Defaulted Claims
As noted above, the trial court examined the exact claims Reed raises in the instant Petition when it considered Reed's postconviction petition. That court found all of the claims frivolous and patently without merit. ( See Traverse, Attachment 4; Ex. B at 1.) Likewise, on appeal of Reed's postconviction petition, the appellate court also found "no issues of arguable merit to be asserted on appeal." (Ex. B at 2.) Additionally, as noted in the Background section of this Opinion and Order, the appellate court found:
The sufficiency of the evidence [Claim 1] is not cognizable in a post-conviction proceeding ( People v. Dunn, 288 N.E.2d 463 (Ill. 1972)), and defendant's claims regarding the propriety of the rulings made by the trial court, the State's closing argument and his sentence [habeas Claims 4, 5, 6, and 7] were barred under the doctrines of res judicata or waiver. People v. Franklin, 656 N.E.2d 750 (Ill. 1995). Waiver also applies to defendant's claims of ineffective assistance of trial counsel [Claim 4] which were based on facts appearing of record ( People v. Pearson, 544 N.L.2d 1026 (Ill. 1989)), and those remaining [Claims 2 and 3] were conclusional in nature and therefore insufficient to survive the summary dismissal stage of proceedings. People v. Jackson, 572 N.L.2d 475 (Ill. 1991).
( See id.) Thus, Reed never fairly and timely presented Claims 1, 2, 4, 5, 6 or 7 to the Illinois Supreme Court, and has procedurally defaulted those claims.
The court may examine Reed's defaulted claims under either of two scenarios. In the words of the Supreme Court,
[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman, 501 U.S. at 750; see also Rodriguez, 193 F.3d at 917 (citing Wainwright v. Sykes, 433 U.S. 72, 91 (1977)); Schaff v. Snyder, 190 F.3d 513, 526-27 (7th Cir. 1999); Franklin v. Gilmore, 188 F.3d 877, 883 (7th Cir. 1999). Significantly, the Supreme Court stated, "We therefore require a prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim." Edwards v. Carpenter, ___ U.S. ___, 120 S. Ct. 1587, 1591 (Apr. 25, 2000) (citing Coleman, 501 U.S. at 750). The court finds that Reed demonstrates neither cause and prejudice nor a fundamental miscarriage of justice.
3. Cause and Prejudice
As noted above, given that Reed procedurally defaulted all of his claims (save Claim 3), this court can address the claims if the Petition shows cause for failure to properly raise them at the appropriate time and actual prejudice resulting from that failure. See Coleman, 501 U.S. at 750. Reed maintains that: (1) he failed to raise Claim 2 (his excessive sentence and punishment for exercising his right to jury trial claim) on direct appeal "because issue was a matter not in record[;]" (2) he did not raise Claims 3 and 4 on direct appeal because those issues "involved ineffective assistance of trial and appellate counsel[;]" and (3) he failed to raise Claims 1, 5, 6, and 7 on direct appeal "because appellate counsel failed to do so." ( See Pet. ¶ 13.) Because Reed could certainly have ascertained whether his sentence was excessive or that he was punished for exercising his right to a jury trial (Claim 2) by the time he appealed his conviction and sentence, Reed will not be heard to argue that Claim 2 establishes cause for his failure to raise that Claim on direct appeal. Thus, the court addresses Reed's contention that his appellate counsel was ineffective.
In order to determine whether Reed's appellate counsel's performance constitutes cause for Reed's failure to properly present his claims, the court performs a Strickland analysis. See Schaff, 190 F.3d at 526-27 ("An assessment of the performance of either appellate or trial counsel is based on the well-established standard set forth in Strickland. . . .") see also Franklin, 188 F.3d at 883. The Supreme Court recently summarized the familiar Strickland requirements:
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 (Feb. 23, 2000).
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.
Additionally, the Supreme Court recently stated, "[i]n Jones v. Barnes, 463 U.S. 745 (1983), we held that appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, ___ U.S. ___, 120 S. Ct. 746, 765 (Jan 19, 2000). "Notwithstanding Barnes, it is still possible to bring a Strickland claim based on counsel's failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent." Id. (citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) ("Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.")). The Seventh Circuit has also stated that appellate counsel is considered ineffective for failing "to raise issues that are (1) obvious, and (2) clearly stronger than the ones raised." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994). If a court reviewing a habeas petition determines that petitioner's counsel "omitted raising" a significant and obvious issue without a legitimate strategic purpose, the reviewing court must conclude that the petitioner received ineffective assistance of counsel. See Franklin, 188 F.3d at 884 (citing Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996) (stating that "only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.")).
On direct appeal, Reed's counsel filed a well-constructed 17-page brief arguing that Reed received an unfairly disparate sentence. ( See Traverse, Attachment 1.) The court emphasizes that "[j]udicial scrutiny of counsel's performance must be highly deferential[,]" Roe, 120 S. Ct. at 1035 (quoting Strickland, 466 U.S. at 689); see also Mason, 97 F.3d at 892 ("We indulge a strong presumption that the petitioner's counsel was constitutionally effective.") (citing Strickland, 466 U.S. at 688). 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). Where a record fails to provide insight as to why appellate counsel failed to raise certain claims on direct appeal, a federal court makes its own assessment of a petitioner's claims. See Franklin, 188 F.3d at 883. Thus, the court examines the exhibits, pleadings and documents presented in order to determine if Reed's appellate counsel omitted significant and obvious issues without a legitimate strategic purpose. Throughout this examination, the court keeps in mind that it not only presumes that appellate counsel's assistance was constitutionally effective, but also that "the facts of the state court decisions are `presumed to be correct.'" Schaff, 190 F.3d at 521, n. 5 (citing 28 U.S.C. § 2254(e)(1)).
Reed argues in his Traverse that appellate counsel's representation violated Strickland, but offers no facts to demonstrate cause or prejudice. Notably, "[a] petitioner must have a Supreme Court case to support his claim, and that Supreme Court decision must have clearly established the relevant principle as of the time of his direct appeal." Schaft, 190 F.3d at 521 (citing Yancey v. Gilmore, 113 F.3d 104, 106 (7th Cir. 1997)). While Reed cites to numerous Supreme Court cases in his Traverse, he neglects to argue their applicability to the facts of his case. The court reproduces the bulk of Reed's argument regarding this issue (found in Reed's Petition) here:
Appellate counsel failed to and did not raise or present any claims or constitutional violations that petitioner and counsel agreed would be raised on petitioner direct appeal. Petitioner and counsel discuss these claims and issues several times that appear in petitioner motion for new trial and arrest of judgment. Appellate counsel denied petitioner the right to a fair hearing at the first level of review. By appellate counsel own admission in petitioner brief (page 14) counsel state that the evidence in the instant case indicates that co-defendant was a principle participant, while petitioner was merely present during the incident clearly shows that counsel was deficient by not presenting petitioner claims and issues. The only issue counsel presented clearly suggest that petitioner is guilty and his conviction should be affirmed and that petitioner should only receive a lesser sentence. Appellate counsel also failed to inform petitioner that the appellate court affirmed the judgment. And when petitioner ask counsel why she did not proceed with the appeal process, appellate counsel stated that she did not see any merit in issue and would be a waste of her time. Petitioner filed motion for appointment of different counsel. Petitioner also requested the first judicial district office to re-assign or appoint different counsel to appraise petitioner transcripts and review appellate counsel judgment. Office of appellate counsel did not respond.
(Pet. Claim 4.)
This argument, however, fails to demonstrate cause for Reed's failure to properly present his defaulted claims. Reed fails to show that the issues he raised in his postconviction petition (and here) are significant and obvious and that his appellate counsel omitted them for no legitimate reason. Indeed, it appears that Reed's counsel evaluated those issues, concluded that they were meritless, and told Reed so. ( See id.) While the court is mindful that "a lawyer who disregards specific instructions from the defendant [a habeas petitioner] to file a notice of appeal acts in a manner that is professionally unreasonable[,]" Roe, 120 S. Ct. at 1035, that rule is inapplicable here. Although Reed alleges that at some point, his appellate counsel agreed to raise certain issues on appeal, he goes on to state that his counsel abandoned those claims for Lack of merit. ( See Pet. Claim 4.)
Moreover, Reed's argument does not include allegations that his appellate counsel disregarded specific instructions to raise specific claims. In fact, exactly which claims Reed argues should have been raised is unclear. Reed argues that appellate counsel should have raised those claims brought in his "motion for new trial and arrest of judgment," ( See Traverse, Attachment 3 p. 18). However, Reed is not even asserting all of the claims raised in that motion here in his Petition; he has clearly abandoned several of his arguments that he previously raised. ( See id.) Thus, Reed's reference to his Motion for New Trial fails to help the court in determining which claims Reed's appellate counsel should have raised.
Reed's Motion for New Trial provides: (1) a lengthy list of eleven alleged errors made by the trial court in conducting Reed's trial; (2) an assertion that Reed's guilt was not proven beyond a reasonable doubt; (3) an assertion that the verdict was against the weight of the evidence; and (4) an assertion that Illinois' First Degree Murder Statute is unconstitutional. ( See Traverse Attachment 4 at 18.) Reed offers no facts in support of this motion. ( See id.)
Assuming that Reed argues that his counsel should have raised the claims he raises now in his Petition, the court finds that Reed fails to establish his burden of demonstrating that his appellate counsel fell below an objective standard of reasonableness for not raising those issues. While the record is devoid of facts necessary to determine the bases of certain state court rulings, this does not relieve Reed's burden of demonstrating that his counsel was ineffective. He cannot point to his factually unsupported assertions and argue that his claims must be considered on that basis. On the other hand, had Reed pointed to the evidence on which he was convicted, the court could assess the strength and obviousness of the claims he now raises. Significantly, Reed does not allege that he cannot access the trial transcript or that he needs other material or aid to make his arguments. With that in mind, the court turns to Reed's claims and finds that Reed fails to demonstrate that those claims should have been raised on direct appeal.
In Claim I, Reed fails to demonstrate that his "not guilty beyond a reasonable doubt" claim is clearly stronger than the issue raised on appeal. Reed's scant review of certain facts, which omits reference to the evidence upon which he was convicted, fails to convince the court that this claim is a strong one. ( See Pet. Claim 1.) Similarly, the court cannot conclude that Claim 2, that Reed was punished for exercising his right to a jury trial and that his sentence was excessive, is obvious and stronger than the issue raised on appeal. ( See Pet. Claim 2.) In Claim 4, Reed alleges, but fails to support, numerous "errors" of trial counsel. ( See Pet. Claim 4.) These unsupported assertions fail to establish that any of trial counsel's alleged errors are obvious or significant. For example, Claim 4(a) alleges that Reed's trial counsel failed to interview, subpoena, or call as a witness, Angie Dogan. ( See Pet. Claim 4(a).) Reed never tells the court, however, to what Angie Dogan would have testified or how this testimony would have affected the proceedings. Such unsupported allegations do not demonstrate that the claims disregarded on direct appeal were stronger than the "disparate sentence" argument actually raised.
Reed also fails to show that Claim 5, his claim that the trial court improperly neglected to dismiss the venire for lack of African-American representation, was stronger than the lone claim asserted on direct appeal. ( See Pet. Claim 5.) Similarly, Reed's contentions that the prosecution improperly argued certain points unsupported by evidence introduced at trial are wholly unsupported by any factual evidence. ( See Pet. Claim 6.) Reed's assertions that conflicting testimony of the arresting officers and witnesses to the arrest demonstrates that the trial court erred in denying Reed's Motion to Quash Arrest and Suppress Evidence is equally unfounded; while the testimony proffered by Reed differs as to the circumstances surrounding the arrest, Reed offers nothing but previously-heard Grand Jury testimony (unsupported by transcript) to demonstrate that the officers testified inaccurately. ( See Pet. Claim 7(a).) Reed's final claims, that the trial court improperly denied his motions in limine (Claim 7(b)) and that the trial court failed to tender certain jury instructions (Claim 7(c)), are similarly conclusory and unsupported. ( See Pet. Claim 7(a); Claim 7(b).)
Again, Reed's burden is to demonstrate that the claims not raised on direct appeal were (1) obvious and (2) stronger than the issue raised. His unsupported, conclusory Claims fail to do so. On the other hand, appellate counsel's brief raised a viable issue, that of disparate sentence, and presented it thoroughly and comprehensively. ( See Traverse, Attachment 1.) Reed fails to demonstrate that his disparate sentence argument was weak relative to the issues proffered in his Petition. Hence, Reed fails to show that his appellate counsel caused him to default his Claims. In other words, Reed fails to demonstrate cause for his defaulted claims.
Moreover, the court finds that Reed also fails the second prong of Strickland, that is, to establish that his counsel's performance prejudiced him. "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 v. Taylor, ___ U.S. ___, 120 S. Ct. 1495, 1511 (Apr. 18, 2000) (citing Strickland, 466 U.S. at 694). The Roe Court put it this way:
A court presumes prejudice in three situations not applicable here: (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 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. 120 S. Ct. 1495. 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. With regard to Claim 3, Reed's claim of ineffective assistance of appellate counsel on direct appeal, the postconviction appellate court stated that Reed failed to show "that counsel's decision to assert this matter to the exclusion of those now proffered caused him substantial prejudice . . . or warrants the relief requested." ( See Id. at 3 (citations omitted).) That said, the court repeats the relevant portion of Reed's argument:
Appellate counsel failed to and did not raise or present any claims or constitutional violations that petitioner and counsel agreed would be raised on petitioner direct appeal. Petitioner and counsel discussed these claims and issues several times that appear in petitioner's Motion for New Trial and Arrest of Judgment . . . and when petitioner asked counsel why she did not proceed with the appeal process, appellate counsel stated that she did not see any merit in issue and would be a waste of her time.
(Pet., Ground 3.) But Reed fails to demonstrate that he was prejudiced by his counsel's failure to raise his now-defaulted claims. None of his Claims state that the outcome of the trial or sentencing would have been different had these "errors" been avoided. His conclusory allegations of error fail to demonstrate that he was prejudiced by them. As a result, the court cannot find against the presumption that the state court decisions examining Reed's postconviction arguments were correct.
In sum, Reed fails to offer anything, other than unsupported conclusions, to support any of his claims. Reed completely avoids discussion of the evidence used to convict him (despite his apparent access to the proceedings' transcripts), and thus fails to achieve his burden of demonstrating that appellate counsel's representation "fell below an objective standard of reasonableness" by failing to raise certain claims. Strickland, 466 U.S. at 688. Reed likewise fails to demonstrate that appellate counsel's allegedly deficient performance prejudiced him. See id., at 694. He offers nothing to rebut the presumption that the state judicial proceedings were reliable or that appellate counsel's performance was constitutionally effective. In short, Reed fails to establish either prong of Strickland, and thus fails to establish cause and prejudice as to his defaulted claims.
4. Fundamental Miscarriage of Justice
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." Rodriguez, 193 F.3d at 917 (citing Schlup v. Delo, 513 U.S. 298, 329 (1995)); see also Britz v. Cowan, 192 F.3d 1101, 1103 (7th Cir. 1999). Given Reed's lack of support for his arguments, and that testate courts summarily dismissed Reed's claims as frivolous, the court cannot conclude that a constitutional violation occurred which resulted in the conviction of an innocent man. Thus, the court cannot conclude that a fundamental miscarriage of justice occurred in the state courts.
B. Merits 1. Standard for Habeas Corpus Relief
The remedy of habeas corpus "protects the State's sovereign interest in punishing offenders and its good-faith attempts to honor constitutional rights, while ensuring that the extraordinary remedy of habeas corpus is available to those whom society has grievously wronged. . . ." Calderon v. Coleman, 525 U.S. 141, 145 (1998) (citation and internal marks omitted). The Antiterrorism and Effective Death Penalty Act of 1996 amended the federal habeas statute, 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), 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. As the Supreme Court stated in Williams:
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 521-22. The "unreasonable application" clause of § 2254(d)(1) 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 (noting that the state court's ruling will stand if "it is one of several equally plausible rulings") (quoting Hall v. Washington, 106 F.3d 742, 748 (7th Cir. 1997)). The "unreasonable determination" 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).
As noted above, the only claim not procedurally defaulted is the ineffective assistance of appellate counsel claim. As to that allegation, however, the Illinois appellate court stated that Reed's petition failed to show "that appellate counsel's decision to assert this matter to the exclusion of those now proffered caused him substantial prejudice." (Ex. B at 3.) Because Reed fails to establish a constitutional violation under a Strickland analysis, see discussion supra at 8-13, he fails to demonstrate that the appellate court's conclusion was contrary to United States Supreme Court precedent. Likewise, Reed fails to establish that the appellate court's conclusion was based on an unreasonable application of Strickland. Indeed, a district court keeps its hands off a state court's judgment unless that judgment was based on an error grave enough to be called "unreasonable." See Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir. 1996) rev'd on other grounds, 521 U.S. 320 (1997). Reed's arguments fail to demonstrate such a grave error or that the appellate court wrongly applied the law to the facts. Accordingly, Reed fails to show that he is entitled to habeas relief pursuant to 28 U.S.C. § 2254(d).
The court declines to order the trial transcript, scour it, and make Reed's arguments for him (if they can indeed be made at all). In other words, while pro se pleadings are construed liberally, "[s]ection 2254 and [Habeas Corpus] Rule 2(c) do not require federal courts to winnow through the entire state court record to ascertain whether there are any facts which could support habeas relief" Cardenas v. DeTella, No. 97 C 3005, 2000 WL 149257, at *2 (N.D. Ill. Feb. 8, 2000) (citing Johnson v. Tally, 47 F. Supp.2d 943, 953-54 (N.D. Ill. 1999)). The court further finds that it is not Respondent's responsibility to again prove Reed's guilt in federal court after having done so in the state system. The burden in a habeas corpus proceeding lies with the petitioner and, in this case, Reed fails to sustain that burden.
III. Conclusion
For the foregoing reasons, the court denies Petitioner Gregory Reed's Petition for Writ of Habeas Corpus.
IT IS SO ORDERED.