Douglas Oaks v. Tarry William
Filed opinion of the court by Judge Hamilton. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Daniel A. Manion, Circuit Judge and David F. Hamilton, Circuit Judge. [6854420-1]  [15-2924]
United States Court of Appeals
For the Seventh Circuit
Appeal from the United States District Court for the
Central District of Illinois.
No. 14‐4026 — James E. Shadid, Chief Judge.
ARGUED APRIL 6, 2017 — DECIDED JULY 14, 2017
Before EASTERBROOK, MANION, and HAMILTON, Circuit
HAMILTON, Circuit Judge. In this habeas corpus case, state
prisoner Douglas Oaks asks us to hold that he was deprived
of his Sixth Amendment right to choose his counsel. Because
he procedurally defaulted that claim during his state court
proceedings, we affirm the district court’s denial of habeas re‐
lief without reaching the merits of his claim.
I. Factual and Procedural Background
Because we resolve this case on procedural grounds, we
describe its procedural history in some detail. In 1992, peti‐
tioner Douglas Oaks was indicted in Illinois for the murder of
his girlfriend’s three‐year‐old son. Oaks had no income or as‐
sets, but his family provided $2,000 to retain an attorney. That
attorney asked the state trial court for state funds for expert
witnesses, including an investigator, a forensic pathologist, a
mitigation expert, and a psychiatrist. The court denied the re‐
quest, reasoning that if Oaks could retain a lawyer, he was not
entitled to state‐funded experts. The retained lawyer with‐
drew, asserting that the ruling made him unable to represent
his client “in good conscience.” The court appointed a public
defender to represent Oaks. In his eventual federal habeas pe‐
tition, the petition at issue in this appeal, Oaks argued that the
court’s ruling deprived him of his Sixth Amendment right to
choice of counsel. See United States v. Gonzalez‐Lopez, 548 U.S.
140, 144 (2006) (“[A]n element of [the right to counsel] is the
right of a defendant who does not require appointed counsel
to choose who will represent him.”) (citations omitted).
Following a jury trial, Oaks was convicted of two counts
of first degree murder and one count of aggravated battery of
a child. He was sentenced to death. Oaks appealed his convic‐
tion and sentence directly to the Illinois Supreme Court,
which vacated one of the convictions but otherwise affirmed,
leaving the sentence in place. People v. Oaks, 662 N.E.2d 1328,
1356 (Ill. 1996). He sought and was denied rehearing in the
Illinois Supreme Court, then sought and was denied a writ of
certiorari from the United States Supreme Court. Oaks v. Illi‐
nois, 519 U.S. 873 (1996). Oaks did not raise the choice of coun‐
sel issue at any stage of his direct appeal.
Oaks first raised that issue in a pro se post‐conviction pe‐
tition filed in the state trial court. He simultaneously asserted
that his appellate counsel had been ineffective in failing to
raise the issue on direct appeal. The court appointed post‐con‐
viction counsel, who filed an amended petition that did not
raise either the choice of counsel claim or the appellate coun‐
sel claim. The trial court then dismissed the petition as moot
and lacking merit. Illinois’ appellate court partially reversed,
remanding three issues for further proceedings. (While the
post‐conviction proceedings were pending, Oaks’ death sen‐
tence was commuted to life in prison. See People v. Oaks, 978
N.E.2d 1151, 1154 (Ill. App. 2012).)
During those proceedings, Oaks’ counsel retired and other
attorneys were assigned. They sought leave to file a supple‐
mental post‐conviction petition that again raised the choice of
counsel and ineffective assistance of appellate counsel claims.
The court denied leave, explaining that the issue had been
raised too late and (incorrectly) asserting that it had already
been litigated. The court also denied Oaks’ other claims on
Oaks appealed, arguing among other points that he
should have been allowed to pursue his choice of counsel and
ineffective assistance of appellate counsel claims. The Illinois
appellate court affirmed, finding no abuse of discretion in the
trial court’s decision. Oaks, 978 N.E.2d at 1158. The Illinois Su‐
preme Court denied leave to appeal, People v. Oaks, 982 N.E.2d
773 (Ill. 2013), and Oaks then filed a federal habeas petition.
The federal habeas petition raised the choice of counsel is‐
sue and the accompanying ineffective assistance of appellate
counsel issue. The district court denied the petition, holding
that those claims had been procedurally defaulted and that
they lacked merit. Oaks has appealed.
Procedural default is a defense to federal habeas corpus
review. Davila v. Davis, 582 U.S. —,—, 137 S. Ct. 2058, 2064
(2017). A petitioner’s claim can be procedurally defaulted if he
fails to assert that claim throughout at least one complete
round of state‐court review. O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). Or it can be procedurally defaulted if the state
court rejects it on adequate and independent state law
grounds, including procedural grounds. Coleman v. Thompson,
501 U.S. 722, 729–30 (1991). So if “a state court refuses to reach
the merits of a petitioner’s federal claims because they were
not raised in accord with the state’s procedural rules,” the fed‐
eral court also will not entertain the claim. Kaczmarek v. Red‐
nour, 627 F.3d 586, 591 (7th Cir. 2010) (citations omitted).
A petitioner can overcome a procedural default if he can
establish cause for and prejudice from the default. See Davila,
582 U.S. at —, 137 S. Ct. at 2064–65; Coleman, 501 U.S. at 750.
Constitutionally ineffective assistance of counsel can excuse a
procedural default. Davila, 582 U.S. at —, 137 S. Ct. at 2065.
But because “a prisoner does not have a constitutional right
to counsel in state post‐conviction proceedings, ineffective as‐
sistance in those proceedings does not qualify as cause to ex‐
cuse a procedural default.” Id. at —, 137 S. Ct. at 2062.
That general rule is subject, however, to “a narrow excep‐
tion.” Id. A federal court may hear a procedurally defaulted
claim for ineffective assistance of trial counsel if two criteria
are met: (1) the state’s appeal and post‐conviction procedures
make it “highly unlikely in a typical case that a defendant will
have a meaningful opportunity to raise” the claim on direct
appeal; and (2) post‐conviction counsel was absent or ineffec‐
tive. Trevino v. Thaler, 569 U.S. —,—, 133 S. Ct. 1911, 1921
(2013), quoting Martinez v. Ryan, 566 U.S. 1, 17 (2012). That ex‐
ception does not extend to claims of ineffective assistance of
appellate counsel. Davila, 582 U.S. at —, 137 S. Ct. at 2063.
Oaks presented his choice of counsel claim through a com‐
plete round of state court review: he raised it in his supple‐
mental post‐conviction petition, then in his appellate brief,
and finally in his petition for leave to appeal to the Illinois Su‐
preme Court. But he did so belatedly. His pro se petition was
inadequate to raise the claims: Illinois treats claims that have
been raised in a pro se petition but not in a petition amended
by counsel as “not before the court.” People v. Phelps, 280
N.E.2d 203, 204 (Ill. 1972). And Illinois trial courts exercise dis‐
cretion over amendments or supplements to post‐conviction
petitions. 725 Ill. Comp. Stat. 5/122‐5; People v. King, 735
N.E.2d 569, 573 (Ill. 2000) (“It was well within the post‐con‐
viction court’s discretion to decide whether or not to grant
leave … to file the addendum to the amended post‐conviction
petition.”), citing People v. Sanchez, 662 N.E.2d 1199, 1214 (Ill.
1996). The trial court denied leave to supplement the petition,
and the state appellate court found that that was an appropri‐
ate exercise of its discretion.
Oaks implies that that decision was wrong, emphasizing
two points: (1) that the trial court relied in part on its errone‐
ous belief that the issue had already been addressed; and (2)
that the statute discussing amendments to petitions gives
courts discretion to make orders “as shall be appropriate, just
and reasonable and as [are] generally provided in civil cases.”
725 Ill. Comp. Stat. 5/122‐5. These arguments about the state
courts’ applications of state procedural rules do not avoid the
procedural default. We are not the Illinois Supreme Court and
do “not have license to question … whether the state court
properly applied its own law.” Woodfolk v. Maynard, 857 F.3d
531, 543 (4th Cir. 2017), quoting Sharpe v. Bell, 593 F.3d 372, 377
(4th Cir. 2010). We could assess whether the state rule is a
“firmly established and regularly followed state practice,” but
Oaks does not challenge the rule on those grounds. Promotor
v. Pollard, 628 F.3d 878, 885–86 (7th Cir. 2010), quoting Smith v.
McKee, 598 F.3d 374, 382 (7th Cir. 2010).
Because Illinois courts rejected Oaks’ choice of counsel
claim on adequate and independent state law grounds, he
procedurally defaulted that claim. He cannot use a claim of
ineffective assistance of post‐conviction counsel to establish
cause and prejudice for the default because he has no
constitutional right to post‐conviction counsel. Davila, 582
U.S. at —, 137 S. Ct. at 2062. Oaks argues that we should
extend the logic of Martinez v. Ryan, 566 U.S. 1 (2012), and
Trevino v. Thaler, 569 U.S. —, 133 S. Ct. 1911 (2013), and
nonetheless consider his claim for ineffective assistance of
appellate counsel. But since this case was briefed and argued,
the Supreme Court has rejected just that extension, cabining
Martinez and Trevino to claims of ineffective assistance of trial
counsel. Davila, 582 U.S. at —, 137 S. Ct. at 2066–67.
Accordingly, the judgment of the district court denying
habeas corpus relief to Oaks is
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