PETER LEWIS, Petitioner-Appellant, v. JERRY STERNES, Respondent-Appellee.
No. 03-4013
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 18, 2004—DECIDED DECEMBER 6, 2004
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 C 2905—Matthew F. Kennelly, Judge.
ROVNER, Circuit Judge. Peter Lewis filed a petition for a writ of habeas corpus contending that his Illinois conviction for residential burglary should be vacated based on several alleged constitutional violations. The district court dismissed his petition, concluding that Lewis had procedurally defaulted each of his constitutional claims and that federal review of these claims was therefore barred. We agree and affirm.
According to the State‘s evidence, Lewis burglarized the Hyde Park residence of three University of Chicago students in the early morning hours of November 18, 1995. Lewis fled after two of the apartment‘s inhabitants saw him and screamed. Armed with their description of the burglar, police apprehended Lewis approximately 30 minutes later. Lewis was taken back to the apartment, where both of the victims identified him as the burglar. That “show-up” identification apparently was based to some degree on the clothing that Lewis was wearing and a perceived match between Lewis‘s jeans and a stray button that was found in the burglarized apartment.
A jury subsequently convicted Lewis of residential burglary, and the trial judge ordered him to serve a prison term of 20 years. Lewis took an appeal to the Illinois Appellate Court, raising a single issue having to do with the trial court‘s handling of jury voir dire after one of the prospective jurors disclosed that she had expressed an opinion about the case to other members of the venire. R. 8 Exs. A-C. Finding no merit in that issue, the appellate court affirmed Lewis‘s conviction. People v. Lewis, No. 1-97-3014, Order (Ill. App. Ct. Dec. 10, 1998); R. 8 Ex. D. The Illinois Supreme Court denied his pro se petition for leave to appeal.
On September 29, 1999, Lewis filed a pro se petition for post-conviction relief, asserting principally that his counsel at trial and on direct appeal had been constitutionally ineffective in a variety of respects. R. 8 Ex. G. In addition, Lewis alleged that authorities in advance of trial had improperly destroyed the clothes he was wearing at the time of his arrest, depriving him of evidence that would have helped to establish his innocence. Id. at C14-15 ¶ 8. Among the claims of ineffectiveness were four claims that Lewis later would assert in his habeas petition: (a) his trial counsel failed to subpoena and examine the clothing that he
He is just wrong. That is not what it states in this report at all. If I take what [Lewis] states [in his petition] as true, maybe it would be grounds for a hearing. [But] [h]e has included in support of that something that contradicts this. And as I say, I recall the trial in any event. So the petition is meritless and will be dismissed.
R. 8 Ex. H at A3-4.
On November 16, 1999, four days after the trial court dismissed Lewis‘s original post-conviction petition and almost certainly before Lewis received notice of that ruling, Lewis (again pro se) submitted a motion to amend his post-conviction petition. R. 8 Ex. I. In that motion, Lewis sought leave to raise a number of new claims that he had not asserted in the original petition. Among these claims was the contention that Lewis‘s appellate counsel was ineffective for failing to contend on direct appeal that the jury selection
Lewis separately appealed the dismissals of both his original and successive post-conviction petitions. The appeals were not consolidated, and they proceeded on separate but parallel tracks through the Illinois Appellate Court. The Cook County Public Defender‘s Office was appointed to represent Lewis in both appeals.
In the first appeal (No. 1-99-4205), from the summary dismissal of Lewis‘s original post-conviction petition, Lewis, through his appointed counsel, pursued only one of the claims asserted in that petition. The appeal focused on the same claim that the trial court had remarked upon in dismissing the petition—the claim that Lewis‘s trial counsel had improperly failed to call a police officer to testify that the victims had been unable to identify him at the show-up. Lewis‘s counsel contended that because this claim presented the “gist” of a potentially meritorious constitutional argument, the trial court should have appointed counsel and conducted further proceedings rather than summarily dismissing this claim along with the others raised in the post-conviction petition. R. 8 Ex. K.
On March 22, 2001, the appellate court affirmed the dismissal of this claim. Like the trial court, the appellate court reasoned that the police report attached to Lewis‘s post-conviction petition undermined his allegation that the victims of the burglary had been unable to identify him at the show-up. Consequently, there was no reason to believe that the police detective who witnessed the show-up would have
In the second appeal (No. 1-00-0128), from the summary dismissal of Lewis‘s successive post-conviction petition, the Cook County public defender sought the appellate court‘s leave to withdraw as Lewis‘s counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990 (1987). R. 8 Ex. N. In the defender‘s view, Lewis had no meritorious argument to make in support of reversing the dismissal of his successive petition. Among other things, the defender noted that the Illinois post-conviction hearing act contemplated the filing of a single petition for relief by the petitioner. Id. at 3. Counsel also pointed out that if Lewis prevailed in the first appeal, from the dismissal of his original petition, he would be given the opportunity to amend that petition. Id. at 4.
Lewis filed a brief in opposition to his counsel‘s Finley motion. In that brief, Lewis listed a host of claims that, in his view, were meritorious and that he believed the appellate court ought to address. Among those claims were several that Lewis had set forth in his original post-conviction petition, including his claim that the prosecution had improperly destroyed exculpatory evidence (the clothing he was wearing at the time of his arrest) (R. 8 Ex. O at 21-24), and his claims of attorney ineffectiveness based on his trial counsel‘s failure to examine his clothing before it was destroyed and counsel‘s failure to contact (and call to testify) certain witnesses who allegedly would have given exculpatory testimony (id. at 1-5, 12-15, 16-20).
In an order issued on February 22, 2001, the Illinois Appellate Court granted the Cook County public defender leave to withdraw as Lewis‘s counsel and affirmed the dismissal of Lewis‘s successive petition. People v. Lewis, No. 1-00-0128, Order (Ill. App. Ct. Feb. 22, 2001); R. 8 Ex. M-2.
We have carefully reviewed the record in this case, the aforesaid brief [in support of the public defender‘s motion to withdraw], and defendant‘s response in compliance with the mandate of the Finley decision and find no issues of arguable merit. Therefore, the motion of the public defender for leave to withdraw as counsel is allowed.
The judgment of the Circuit Court of Cook County is affirmed.
Order at 2; R. 8 Ex. M-2 at 2.
Lewis subsequently obtained leave from the Illinois Supreme Court to file a late petition for leave to appeal. R. 8 Ex. Q. That petition, along with a subsequent motion to amend the petition, contained only the number of his first appeal. R. 8 Exs. R, S. However, those documents referred to the second appeal and the issues raised therein, and Lewis attached to the petition itself the orders issued by the appellate court in the second as well as the first appeal. The order allowing Lewis to file the petition also referenced the numbers of both appeals. See R. 8 Ex. Q. The Illinois Supreme Court ultimately denied the petition. R. 8 Ex. T.
Having exhausted his state court remedies, Lewis filed a pro se petition for a writ of habeas corpus in the district court. R. 1. In that petition (as fleshed out by the memorandum that he subsequently filed in reply to the State‘s answer), Lewis asserted four basic claims: (1) that suggestive procedures tainted the identifications of the burglary victims; (2) that the State had improperly destroyed exculpatory evidence (the clothing Lewis wore at the time of his arrest) in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); (3) that the State‘s exercise of peremptory challenges in jury selection violated Batson, and that the trial court had erred in not answering certain factual questions about the case that the jury posed to the court during
The district court ultimately dismissed Lewis‘s petition in its entirety on the ground that he had procedurally defaulted each of his claims. In the first of two opinions, the court found that Lewis had failed to properly assert Claims 1, 2, or 3 either on direct appeal from his conviction or in the post-conviction proceedings and had therefore defaulted those claims; moreover, he had not established cause for the default or resulting prejudice that would permit the court to overlook the default. Lewis v. Sternes, No. 02 C 2905, 2002 WL 31687607, at *4-*5, *6 (N.D. Ill. Dec. 2, 2002). As for the four grounds of attorney ineffectiveness alleged in Claim 4, the State in its answer had asserted that two of these four grounds likewise had been procedurally defaulted. The court agreed as to one of these grounds—Claim 4(b), based on his trial counsel‘s failure to move to suppress the victim identifications—and ordered the State to supplement
After reviewing the State‘s supplemental memorandum, the court agreed that Lewis had procedurally defaulted the remaining instances of alleged ineffectiveness—Claims 4(a), 4(c), and 4(d). Lewis v. Sternes, No. 02 C 2905, 2003 WL 22250020 (N.D. Ill. Oct. 1, 2003). It reasoned that although Lewis had, for the most part, asserted the claims in his original petition for post-conviction relief,2 he had not
The district court later agreed to certify for appeal the question whether it is proper to permit the State to belatedly assert instances of procedural default not raised in its original answer. It also certified for appeal the question whether Lewis‘s habeas claims were, indeed, procedurally defaulted. Lewis v. Sternes, No. 02 C 2905, 2003 WL 22682319 (N.D. Ill. Nov. 13, 2003).
II.
The district court‘s determination that Lewis procedurally defaulted each of the claims asserted in his habeas petition was a legal determination. E.g., Abela v. Martin, 380 F.3d 915, 922 (6th Cir. 2004); Villot v. Varner, 373 F.3d 327, 331 (3d Cir. 2004). Our review of the lower court‘s decision is therefore de novo. Page v. Frank, 343 F.3d 901, 905 (7th Cir. 2003); Braun v. Powell, 227 F.3d 908, 911-12 (7th Cir. 2000).
Inherent in the habeas petitioner‘s obligation to exhaust his state court remedies before seeking relief in habeas
A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim. See id. at 848-49, 119 S. Ct. at 1734; see also, e.g., Howard v. O‘Sullivan, 185 F.3d 721, 725 (7th Cir. 1999); Momient-El v. DeTella, 118 F.3d 535, 541 (7th Cir. 1997). A procedural default will bar federal habeas relief unless the petitioner can demonstrate both cause for and prejudice stemming from that default, Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S. Ct. 2497, 2506 (1977), or he can establish that the denial of relief will result in a miscarriage of justice, Murray v. Carrier, 477 U.S. 478, 495-96, 106 S. Ct. 2639, 2649 (1986). Cause for a default is ordinarily established by showing that some type of external impediment prevented the petitioner from presenting his federal claim to the state courts. Id. at 488, 492, 106 S. Ct. at 2645, 2648. Prejudice is established by showing that the violation of the petitioner‘s federal rights “worked to his actual and substantial disadvantage, infecting his entire trial with error
Lewis procedurally defaulted Claims 1 (tainted identifications) and 3 (Batson violation). He did not pursue either of these claims, as such, on direct appeal or in the post-conviction proceeding. It is true that during the post-conviction proceeding, Lewis cited his trial and/or appellate counsel‘s failure to pursue these claims in support of his claims of attorney ineffectiveness. However, an assertion that one‘s counsel was ineffective for failing to pursue particular constitutional issues is a claim separate and independent of those issues. A meritorious claim of attorney ineffectiveness might amount to cause for the failure to present an issue to a state court, but the fact that the ineffectiveness claim was raised at some point in state court does not mean that the state court was given the opportunity to address the underlying issue that the attorney in question neglected to raise. It is undisputed that Lewis did not raise Claims 1 or 3 in state court. Consequently, unless Lewis can demonstrate one of the two bases discussed above for excusing his default (i.e., cause and prejudice, or a miscarriage of justice), habeas relief on those claims is foreclosed to him.
As Lewis suggests and the State concedes, if his trial and/or his appellate attorneys were ineffective for failing to present these claims at trial and on direct appeal of his conviction, then their sub-par representation might supply cause for his procedural default of these claims. However, a claim of ineffectiveness must itself have been fairly presented to the state courts before it can establish cause for
Claim 2 (the Brady claim) stands on a somewhat different footing. Lewis‘s original post-conviction petition did contain an argument that the State improperly destroyed the clothing that he wore at the time of his arrest and that the destroyed clothing might have established his innocence. R. 8 Ex. G at C14-15. This argument fell within a section of the post-conviction petition that Lewis entitled “Ineffective Assistance of Trial Counsel” (id. at C-11); and consistent with that heading, most of the arguments in that section were focused on steps that his trial attorney had failed to take and arguments that he had failed to advance. In contrast to those other arguments, however, this particular contention did not advance a theory as to why Lewis‘s attorney was ineffective for failing to raise this issue; it simply suggested that the evidence was improperly destroyed. As the State concedes (State Br. at 29), given a liberal construction, the post-conviction petition could be interpreted to be making a Brady claim proper, as opposed to a claim that Lewis‘s attorney was ineffective for failing to make such a claim. As Lewis prepared the petition without the assistance of counsel, we owe it a generous interpretation. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595-96 (1972).
However, after raising Claim 2 in his post-conviction petition, Lewis failed to pursue that claim through one complete round of review in the Illinois courts. He did even-
Lewis suggests that it is unduly formalistic and unfair to him to compartmentalize the two appeals in this way. Among other things, he notes that the two appeals were pending before the appellate court at the same time, the appellate court took note of the fact that there were two appeals (see People v. Lewis, supra, No. 1-00-0128, Order at 1; R. 8 Ex. M-2 at 1), and, finally, when the appellate court
We disagree. Although the two appeals certainly were related in the sense that they arose from a single post-conviction proceeding in the trial court, and although they proceeded on parallel tracks through the appellate court, they nonetheless remained distinct: they were filed separately based on two different orders of the trial court, they were briefed separately (in the first instance, by a public defender on Lewis‘s behalf, and in the second instance, by Lewis himself when his appointed counsel sought the court‘s permission to withdraw), and they were decided by separate orders. The appeals were never formally or functionally consolidated in such a way that the parties were invited or permitted to effectively merge the two appeals in their briefing. On the contrary, the documents filed by the parties reflect their understanding that the two appeals were distinct. See R. 8 Ex. K at 3 (Lewis‘s opening brief in first appeal) (“The supplemental post-conviction petition filed on November 16, 1999, and denied on December 14, 1999, is not part of this appeal.“); R. 8 Ex. N at 3 (Finley motion) (noting that Lewis had filed two separate appeals); id., attachment (Lewis‘s second pro se notice of appeal) (noting that the order appealed from was the order of December 14, 1999, described as “Post Conviction Petition Amended Order“).
In short, Lewis could not properly raise Claim 2 in the second appeal from the denial of his successive petition as it was beyond the limited scope of that appeal; he defaulted that claim when his attorney failed to raise that Brady claim in the first appeal, from the denial of his original post-conviction petition. Lewis has not established any basis for excusing this default. Therefore, as with Claims 1 and 3, habeas relief on Claim 2 is foreclosed.
Before going further, we pause to consider whether, as Lewis asserts, the district court improperly allowed the State to raise in an untimely manner several instances of procedural default. As we noted earlier, in its original answer to Lewis‘s habeas petition, the State only contended that two of the four ineffectiveness claims, Claims 4(a) and 4(b), had been procedurally defaulted. The district court agreed as to Claim 4(b), but disagreed as to Claim 4(a). It then ordered the State to file an answer responding to the merits of Claims 4(a), 4(c), and 4(d). Instead, the State, after first missing the deadline for that answer and then securing an extension of time from the court, filed a supplemental memorandum asserting a new theory as to why Claim 4(a) had been procedurally defaulted and contending for the first time that Claims 4(c) and 4(d) also had been defaulted. The district court ordered that memorandum stricken, reasoning that it did not address the merits of these claims, as the court had directed. However, the court allowed the State to file a new supplemental answer in which it both responded to the merits of the claims and asserted the new procedural default arguments. Ultimately, the court found these procedural default arguments to be well taken, rejecting Lewis‘s contention that the State had waived these arguments by not asserting them in its original answer to the petition.
The district court acted well within its authority to recognize procedural default arguments not raised in the State‘s
As with Claim 2, the procedural missteps with respect to these claims stem from the dual appeals that Lewis took from the trial court‘s dismissal of his original and successive post-conviction petitions. Because Claims 4(a), (c), and (d) were asserted in Lewis‘s original post-conviction petition, he was obligated to raise them on appeal from the dismissal of that petition. He did not do so, however: his attorney pursued only a sub-part of Claim 4(d) that is no longer pertinent (Lewis no longer pursues it). Lewis never attempted to appeal Claim 4(c) at all. He did attempt to assert Claim 4(a) and the remaining (and relevant) portion of Claim 4(d) in the second appeal, from the denial of his successive petition, in the brief he filed in response to his
Lewis contends that this default is immaterial as to Claims 4(a) and 4(d), because in disposing of the second appeal, the Illinois Appellate Court implicitly reached the merits of Claims 4(a) and 4(d) rather than disposing of those claims on the independent, procedural basis that those claims were beyond the scope of that appeal. See, e.g., Hampton v. Leibach, 347 F.3d 219, 242 (7th Cir. 2003) (“A petitioner‘s procedural default will bar federal habeas review only if the state court actually relied on that default as an independent basis for its decision.“) (citing Harris v. Reed, 489 U.S. 255, 261-62, 109 S. Ct. 1038, 1042 (1989)). Lewis points out that after considering his appointed counsel‘s motion to withdraw pursuant to Finley along with his own brief in response (which cited Claims 4(a) and 4(d) as meritorious grounds for appeal), the appellate court elected to not only grant the withdrawal motion but also to summarily affirm the judgment. In Wilkinson v. Cowan, 231 F.3d 347, 352 (7th Cir. 2000), we held that when the Illinois Appellate Court, in response to a Finley motion, had not only granted an attorney‘s motion to withdraw but also summarily affirmed the dismissal of the petitioner‘s post-conviction
But Lewis construes our holding in Wilkinson far too broadly. The precise question that we addressed in that case was whether a habeas petitioner could be charged with a procedural default in the Illinois Appellate Court when, in the face of his counsel‘s motion to withdraw under Finley, the petitioner had neither responded to the motion by identifying meritorious issues that the court should address nor filed an appellate brief of his own pursuing such issues. The State argued that in failing to take either step, the petitioner had effectively abandoned all of the issues that he had raised in the trial court. We rejected that assertion. Because the appellate court had not invited the petitioner to respond to his attorney‘s motion to withdraw or to file a merits brief in his attorney‘s stead, nor had it warned him that he might forfeit the claims he had raised in the trial court by failing to take either step, we did not believe that he could be charged with a procedural default. Id. at 350-52. At the same time, because the appellate court had elected to summarily affirm the trial court upon review of the record rather than dismissing the appeal as frivolous, we concluded that the appellate court‘s disposition was properly construed as one based on the merits of the petitioner‘s claims rather than one based on any procedural misstep (e.g., failing to file a pro se brief) that he might have committed. Id. at 352. Notably, because the petitioner in Wilkinson
So understood, Wilkinson is of no help to Lewis. The Illinois Appellate Court‘s decision, following a review of the record, to summarily affirm the dismissal of Lewis‘s successive post-conviction petition reasonably can be construed only to reach those claims that Lewis raised in his successive petition. See id. at 351 (summary affirmance, pursuant to Finley, of trial court‘s decision to dismiss post-conviction petition “can only be understood as a merits-based decision with respect to each of the claims raised in the petition“). Neither Claim 4(a) nor Claim 4(d) was included in Lewis‘s successive petition; those claims were, as we have discussed, set forth in the original petition that was the subject of a separate appeal. Because those claims were not presented to the trial court in the successive petition, the trial court‘s judgment (i.e., the dismissal of the successive petition) cannot possibly be construed as reaching those claims, nor can the summary affirmance of the judgment be understood to do so. Although Lewis‘s appellate brief argued these claims, nothing in the appellate court‘s summary order mentions those claims or signals the court‘s willingness to expand the scope of the appeal to claims that the trial court had not reached in the particular decision under review. Both the United States Supreme Court and this court have held that an appellant does not fully and fairly present a federal claim to the state courts when he raises that claim for the
Lewis had the opportunity to fairly present Claims 4(a) and (d) to the Illinois Appellate Court. They were among the claims asserted in his original post-conviction petition, and Lewis could have raised those claims in appealing the summary dismissal of his original petition. Instead, his lawyer chose to challenge only the dismissal of a portion of Claim 4(d) that is irrelevant. Having failed to raise these claims in the proper appeal, Lewis procedurally defaulted those claims.
We reject Lewis‘s contention that Massaro v. United States, 538 U.S. 500, 123 S. Ct. 1690 (2003), permits us to overlook the procedural defaults he committed as to his claims of attorney ineffectiveness. Massaro holds simply that a federal prisoner may assert an ineffectiveness claim on collateral review under
Lewis has not demonstrated an equitable basis for excusing any of the defaults he committed as to the claims on which he now seeks relief. Accordingly, he may not seek federal habeas relief on these claims. The district court properly dismissed them.
III.
Because Lewis procedurally defaulted each of the claims he asserted in his petition for habeas corpus, and because he has not established an equitable basis for excusing the defaults, relief in habeas corpus is unavailable to him. We therefore affirm the dismissal of his petition. We thank Lewis‘s attorneys for their vigorous advocacy on his behalf.
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—12-6-04