VOLNEY MCGHEE, Petitioner-Appellant, v. CAMERON WATSON, Warden, Respondent-Appellee.
No. 15-3881
United States Court of Appeals For the Seventh Circuit
Argued September 7, 2017 — Decided August 17, 2018
Before WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 706 — John Robert Blakey, Judge.
McGhee‘s conviction was affirmed on appeal and in state collateral review. He then sought habeas relief under
McGhee‘s first two claims are waived because he did not present them in his
I. Background
In March 1999 Melvin Thornton and Michael Hopson were shot outside a gas station in Chicago. Thornton died from his wounds but Hopson survived. He and another eyewitness later identified McGhee as the shooter and McGhee‘s red Oldsmobile as the getaway car. Hopson also reported that McGhee used a .40-caliber pistol to shoot him and Thornton. A forensic expert confirmed that a bullet and five casings recovered at the scene were .40 caliber and the casings were fired from the same weapon.
McGhee was charged with the murder of Thornton and the attempted murder of Hopson. A jury found him guilty on both counts. After the clerk read the verdict, McGhee‘s counsel stated: “I want them polled, Judge.” The judge responded, “[a]ll right,” but then simply thanked the jurors and dismissed them without conducting the poll. McGhee‘s counsel neither objected nor raised the mistake in a posttrial motion. The judge imposed concurrent prison sentences of 30 and 40 years.
On direct appeal McGhee raised several claims, but he did not challenge the judge‘s polling error. The state appellate court affirmed, and McGhee petitioned the Illinois Supreme Court for leave to appeal. Again he did not raise the jury-polling issue. The state supreme court denied the petition, and the U.S. Supreme Court denied McGhee‘s subsequent petition for certiorari.
McGhee then filed a pro se postconviction petition in state court, which he later amended with the aid of counsel. The amended petition raised several issues, including the three claims he raises in this appeal: (1) trial counsel was constitutionally ineffective for failing to object to the judge‘s polling error; (2) appellate counsel was ineffective for failing to raise the judge‘s error on direct appeal; and (3) appellate counsel was ineffective for failing to challenge trial counsel‘s ineffectiveness for failing to preserve the error. The judge dismissed the petition without an evidentiary hearing.
McGhee appealed on several grounds but raised only the second claim regarding the polling error: he argued that appellate counsel was ineffective for failing to raise the trial judge‘s error on direct review. See McGhee, 964 N.E.2d at 719. The Illinois Appellate Court rejected the claim on the merits, reasoning that the unpreserved error did not satisfy Illinois‘s plain-error doctrine. Id. The appellate court also expressly noted that McGhee “does not argue that his trial counsel was ineffective for failing to preserve the issue.” Id. at 720 n.2. The appellate court thus affirmed the dismissal of McGhee‘s petition.
McGhee once again sought review in the Illinois Supreme Court, this time including all three postconviction claims related to the polling error. The court declined review. McGhee followed up with a second petition, which was returned to him unfiled.
We granted a certificate of appealability on the issue of “the denial of [McGhee‘s] right to effective assistance of appellate counsel in not raising both the trial court‘s failure to poll the jury and trial counsel‘s failure to challenge that error.” We later amended the certificate to include “the performance of his trial counsel on any ground preserved in the state system.”
II. Discussion
On appeal McGhee raises three Strickland-based claims, each related to the trial judge‘s failure to poll the jury. He argues that (1) his trial counsel was constitutionally ineffective for failing to preserve the judge‘s polling error; (2) his appellate counsel was ineffective for failing to raise the judge‘s error on direct appeal; and (3) his appellate counsel was ineffective for failing to challenge trial counsel‘s ineffectiveness for failing to preserve the error.
The State argues that McGhee waived the first two claims and we agree. To preserve these claims, McGhee first needed to present them to the district judge in his
The petition alleged only one claim related to the jury-polling error: “Appellate counsel‘s performance was deficient because he did not raise the issue of trial counsel‘s ineffectiveness in failing to preserve the polling issue for appeal.” McGhee never alleged that trial counsel was ineffective for failing to preserve the judge‘s error or that appellate counsel was ineffective for failing to raise the judge‘s error on direct appeal. These are separate and independent Strickland-based claims. See Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004) (“[A]n assertion that one‘s counsel was ineffective for failing to pursue particular constitutional issues is a claim separate and independent of those issues.“). McGhee‘s failure to raise them in his
McGhee responds that he alleged facts related to both claims and that should be sufficient to preserve them. We disagree. The petition recites that McGhee‘s state-court petition for collateral relief alleged that the “trial court erred in not polling the jury,” that “appellate counsel was ineffective for not raising the issue,” and that “trial counsel was ineffective for not preserving the error for review.” Read in context, however, these statements merely describe McGhee‘s state-court petition in an effort to show that his third ground for
McGhee also points out that he invoked Strickland as the proper legal standard for ineffective-assistance-of-counsel claims. Simply citing Strickland is not enough. McGhee had to articulate how his counsel failed him in order to alert the district judge and the State of the specific grounds for relief under
That leaves McGhee‘s third claim: that his appellate counsel was ineffective for failing to raise trial counsel‘s ineffectiveness regarding the polling error. This claim was squarely presented in McGhee‘s
McGhee maintains that his postconviction appellate brief adequately raised the claim. There he specifically raised only appellate counsel‘s failure to challenge the judge‘s jury-polling error and unrelated errors by trial counsel. He argued that “the trial court‘s failure to poll the jury upon request was an error so fundamental it required a reversal of [his] convictions” and cited to the record where trial counsel failed to object to the judge‘s error. Finally, in his reply brief, McGhee faulted his appellate counsel in nonspecific, conclusory terms “for not adequately challenging trial counsel‘s representation and failing to raise issues [that] would have resulted in reversal of [his] convictions and a new trial.”
None of these statements adequately presented this claim to the state appellate court. McGhee had to do more than generally allege ineffective assistance of counsel or broadly challenge the underlying jury-polling issue. Johnson, 574 F.3d at 432 (“A bare mention of ineffective assistance is not sufficient to avoid a procedural default ... .); Pole, 570 F.3d at 937–38 (“Simply referring to the gunshot residue test, of course, is not enough to preserve” the issue of counsel‘s failure to present the test.). He needed to present both the operative facts and the legal principles that control the claim in a manner that would sufficiently alert the state court to the issue. Hicks v. Hepp, 871 F.3d 513, 530–31 (7th Cir. 2017); see also Johnson, 574 F.3d at 431; Pole, 570 F.3d at 934. He did not do so. It‘s worth repeating that the state appellate court specifically noted that McGhee “does not argue that his trial counsel was ineffective for failing to preserve the issue.” McGhee, 964 N.E.2d at 720 n.2. Trial counsel‘s ineffectiveness on this issue was neither a stand-alone Strickland claim nor a factual basis for appellate counsel‘s ineffectiveness.
In a last-ditch effort to save this claim, McGhee argues that the procedural default should be excused because his postconviction counsel was constitutionally ineffective for failing to raise this claim. After this appeal was briefed, however, the Supreme Court held that ineffective assistance of postconviction counsel does not provide cause to excuse the procedural default of claims challenging the ineffective assistance of appellate counsel. Davila, 137 S. Ct. at 2063. In light of Davila, McGhee‘s fallback argument cannot succeed.
AFFIRMED.
WOOD, Chief Judge, concurring in the judgment. While I agree with my colleagues that Volney McGhee‘s petition for a writ of
As the majority notes, McGhee is raising layered claims about one underlying error: the state trial judge‘s failure to poll the jury after it returned its verdict. At the first layer, McGhee asserts that his trial lawyer rendered ineffective assistance of counsel, as that is understood by Strickland v. Washington, 466 U.S. 668 (1984), when he failed to object to this omission at the crucial time. Second, he argues that his appellate counsel was ineffective for failing to raise the trial court‘s error in failing to poll the jury as a point on appeal. Finally (layer three), he argues that his appellate counsel was ineffective for failing to argue that trial counsel was ineffective for failing to complain about the missing poll. The majority concludes that the first two arguments were waived and the third was procedurally defaulted.
Claim One. My colleagues hold that McGhee failed entirely to present in the district court his claim that trial counsel was ineffective for failing to complain about the lack of a poll, in which case there is a full-blown waiver of the point. I regard this as a close question. But bearing in mind the rule that pro se filings are “to be liberally construed,” I would not saddle McGhee with waiver. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). This court was willing to issue a certificate of appealability for McGhee on all three facets of his polling claim, after all. In the same spirit, I would approach this case from the standpoint of procedural default, based on McGhee‘s failure adequately to present this point at the state appellate level.
At the post-conviction stage in the state trial court, McGhee clearly raised the argument that trial counsel was ineffective for failing to challenge the court‘s failure to poll the jury. In the state appellate court, however, he confined himself to a complaint about his appellate counsel. Then, in his petition for leave to appeal before the Illinois Supreme Court, he raised all three points that are now before us. In his handwritten petition before the federal district court in the current proceedings, however, he was once again inconsistent. A straightforward reading of his headings indicates that he was complaining only about his appellate counsel‘s ineffective assistance for failing to raise the polling issue on appeal. Supplemental Appendix (“SA“) 6. But later in the petition, he challenges the state appellate court‘s understanding that he was not arguing about the effectiveness of his trial counsel. SA 36. McGhee contended that he did raise the claim about trial counsel and insisted that it was not defaulted. SA 37. It is far more likely that he failed to recognize the nuances among these different claims and thought that he was presenting everything that he needed to both the state courts and the federal court. Compare Malone v. Walls, 538 F.3d 744, 753–55 (7th Cir. 2008) (holding that petitioner exhausted claim of trial counsel‘s ineffectiveness even though he specifically asserted only appellate counsel‘s ineffectiveness). Still, McGhee‘s failure to raise this claim in his state-court appeal precludes our review.
Though in narrow instances procedural default can be overcome, McGhee has failed to make the necessary showing
In this connection, I believe that it is important to distinguish between the clarity with which a petitioner raises his arguments before the state courts and the standard that applies to a petition under
Claim Three. My colleagues find this claim to be procedurally defaulted. I agree with them on that point, and to that extent I join the opinion.
For these reasons, I concur in the judgment of the court.