Terry v. Uchtman et al

Filing 84

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 3/7/2013. (et, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MELKY TERRY,
Petitioner,
Case No. 06 C 1093
v.

Hon. Harry D. Leinenweber

ALAN UCHTMAN,
Respondent.

MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner’s Melky Terry’s (“Terry”), 28
U.S.C. § 2254 petition.
petition

is

denied.

For the reasons stated herein, his
The

Court

also

notes

that

Terry

is

incarcerated at the Menard Correctional Center, where Michael
Atchison

replaced

Respondent

Alan

Uchtman

as

the

Warden.

Accordingly, Michael Atchison is substituted as the Respondent.
See Rule 2 of the Rules Governing Section 2254 Cases in the United
States District Courts; Rumsfeld v. Padilla, 542 U.S. 426, 436
(2004).
I.

BACKGROUND

This case arises from the 1985 deaths of 16-year-old Grace
Marcatante (“Grace”) and her 11-year-old brother John, both of whom
suffered extensive head injuries after being struck repeatedly with
a baseball bat.
1985.

Terry was charged in state court by indictment in

In 1987, a jury in the Circuit Court of Cook County found

him guilty of first degree murder in connection with John’s death
and voluntary manslaughter in connection with Grace’s death. Terry
was

sentenced

to

life

in

prison

on

the

first

degree

murder

conviction and a concurrent thirty year extended term sentence on
the voluntary manslaughter conviction.
Terry unsuccessfully pursued a direct appeal and a variety of
state collateral remedies.

In addition, he began his efforts to

obtain federal habeas corpus relief in December 1992, but his
§ 2254 petition was not fully briefed until almost twenty years
later on November 14, 2012, in a second federal habeas corpus case
filed in 2006.

The procedural history is thus labyrinthine. It is

also relevant in light of Respondent’s allegations that Terry’s
present petition is time-barred.

Because of this, the Court will

begin by summarizing the underlying facts and Terry’s state and
federal proceedings.
The

Court

presumes

that

the

state

court’s

factual

determinations are correct for the purposes of habeas review as
Terry neither contests them nor points to clear and convincing
evidence to the contrary.

See 28 U.S.C. § 2254(e)(1); Todd v.

Schomig, 283 F.3d 842, 846 (7th Cir. 2002).
A.

The Murders and Terry’s Arrest

At approximately 3:30 p.m. on November 25, 1985, police
responded to a call made by eighteen-year-old Rosemary Marcatante,
who reported that a burglary was in progress at her home in
- 2 -

Hillside, Illinois.

Upon arrival, the police found the bodies of

Rosemary’s siblings, sixteen-year-old Grace Marcatante and elevenyear-old John Marcatante, who suffered fatal head injuries.
A neighbor, Edna Kornack, told police that she saw Grace
arrive home from school at 3:00 p.m. and then saw a tall, thin man
wearing a gray hoodie run south on Bellwood Avenue in the same
direction Grace had been walking.

Shortly after that, she saw the

same man run the opposite direction carrying something in his hand.
(Dkt. 77, Ex. GG at 1311-19.)
The victims’ mother, who arrived at the home shortly before
officers,

told

the

officers

that

Grace

had

a

tall,

slender

boyfriend named Melky Terry who had previously threatened Grace.
She also told the officers that she had seen Terry wear a gray
hooded jacket within the past week and provided his address.
Two Bellwood police officers traveled to Terry’s house. While
en route, they saw Terry running on the street wearing a shower cap
and a blue sweatshirt under a gray jacket topped off by a black
jacket.

A third officer was parked near Terry’s house.

recognized Terry and yelled for him to stop.

He

Terry continued to

run toward his home. Subsequently, the officer knocked on the door
of Terry’s house and spoke to his father, who eventually brought
Terry outside.

Police then arrested Terry and took him to the

police station.

- 3 -

B.

Terry’s Statements

Terry does not contest that he was read his Miranda rights at
the police station.

He signed a waiver of rights form and was

questioned by a police sergeant and an assistant state’s attorney.
Terry told the police that he was out walking when he saw
Grace walking home from school.
they argued.

He stated that he followed her and

They went inside the Marcatante home, and according

to Terry, Grace started screaming at him and hit him in the face.
Terry explained to officers that after she hit him, he picked up an
aluminum baseball bat that was in the home and hit Grace in the
head. He also claimed that Grace’s brother John came toward him in
response to his sister’s cries for help, and as John approached,
Terry hit him in the head with the bat.

Terry also told police

that after he left the Marcatante home, he threw the bat onto a
factory roof.
and

shortly

He showed officers the bat’s location on the map,
thereafter,

officers

recovered

the

bat

from

the

location identified by Terry.
Terry then agreed to give a statement transcribed by a court
reporter.

The statement tracked the prior statement, except that

Terry said that John jumped on his back in response to Grace’s
cries for help.

Terry could not recall how many times he hit Grace

or John with the bat.

- 4 -

C.

Terry’s Trial and Direct Appeal

Prior to trial, Terry filed motions to quash his arrest for
lack of probable cause and to suppress the statements he made
following his arrest.

The trial court denied these motions.

Ultimately, after a full trial, the jury found Terry guilty of
first degree murder and voluntary manslaughter.

He was sentenced

to life imprisonment for murder and thirty years of imprisonment
for voluntary manslaughter.

People v. Terry, No. 1-87-1226 (Ill.

App. Ct. Oct. 25, 1990) (unpublished order, direct appeal) (Dkt. 74
at Ex. D).

Terry appealed, and the Illinois Appellate Court

affirmed both his convictions and his sentence.

Id.

Terry then

filed a petition for leave to appeal with the Illinois Supreme
Court arguing that:
(1)

The jury instructions for murder and voluntary
manslaughter were unconstitutionally confusing
since the jury sent out five notes asking for
clarification over the course of two days of
deliberations and ultimately returned inconsistent
verdicts of voluntary manslaughter and murder.

(2)

The trial court incorrectly responded to a question
from the jury by advising them that the provocation
necessary for a finding of voluntary manslaughter
had to come from each victim individually.

(3)

The trial court improperly excluded the letter from
Rosemary discussing her hatred of Grace.

(4)

At sentencing, the trial court’s consideration of
the deaths of the victims in aggravation was
improper as this factor was inherent in the
offenses of involuntary manslaughter and murder.

(5)

The trial court’s finding that Terry’s behavior was
“exceptionally brutal and heinous” was erroneous
- 5 -

since he was provoked by at least one of the
victims and his behavior was not “premeditated,
prolonged or tortuous.”
(Dkt. 74 at Ex. E) (Terry’s Petition for Leave to Appeal on direct
appeal).
On February 6, 1991, the Illinois Supreme Court denied leave
to

appeal.

People

v.

Terry,

567

N.E.2d

(unpublished order) (Dkt. 74 at Ex. F).

340

(Ill.

1991)

Terry did not file a

petition for a Writ of Certiorari to the United States Supreme
Court.

See Dkt. 8 at 3.
D.

In

Terry’s First State Postconviction Petition

October

1993,

Terry

filed

a

pro

se

petition

under

Illinois’s Postconviction Hearing Act, 725 ILCS § 5/122-1, et seq.,
alleging that his trial counsel was ineffective because he failed
to call Grace and John’s neighbor to testify at the suppression
hearing regarding the neighbor’s description of the man she saw on
the day of the murders or introduce “911 tapes” (presumably, two
messages

broadcast

by

the

Hillside

police

shortly

after

the

murders) that would have corroborated the neighbor’s description.
(Dkt. 74 at Ex. G) (Terry’s state postconviction petition).

Terry

also repeated his ineffective assistance argument from his direct
appeal, and argued that his postconviction counsel failed to
provide assistance with the postconviction petition as is required
by Illinois Supreme Court Rule 651(c).
thirty-year

extended

term

of
- 6 -

He also asserted that his

imprisonment

for

voluntary

manslaughter was void because Illinois law does not allow the trial
court

to

impose

an

extended

term

sentence

for

voluntary

manslaughter when the defendant is also sentenced to natural life
for murder.

(Dkt. 74 at Ex. H.)

The trial court appointed counsel to represent Terry but
ultimately rejected the petition as untimely and declined to
address

the

sentencing

claim.

The

Illinois

Appellate

Court

affirmed. People v. Terry, 1-95-3594 (Ill. App. Ct. Sept. 8, 1997)
(unpublished order) (Dkt. 74 at Ex. K).

Terry then filed a

petition for leave to appeal to the Illinois Supreme Court raising
the sentencing claim.

(Dkt. 75 at Ex. L.)

The Illinois Supreme

Court accepted his petition, but affirmed on June 18, 1998, and
denied rehearing on October 5, 1998.

People v. Terry, 700 N.E.2d

992 (Ill. 1998) (Dkt. 75 at Ex. O).
E.

Terry’s Second State Postconviction Petition

Terry’s state postconviction filings become muddled at this
point.

He filed a successive pro se postconviction petition in

1999 asserting actual innocence based on his views of testimony
presented at trial, the lack of blood or fingerprint evidence tying
him to the crime scene, and the lack of blood on his clothing.
(Dkt. 95 at Ex. P) (second state postconviction petition).

For

statute of limitations purposes, the district judge originally
assigned to this case used the filing date of September 2, 1999,
provided by the Illinois Appellate Court.

- 7 -

Terry v. Hulick, No. 92

C

8215,

Dkt.

71

at

PageID#

88

(N.D.

Ill.

Oct.

19,

2006)

(unpublished order) (Manning, J.).

However, the Seventh Circuit

determined

second

that

Terry

filed

petition on July 11, 1999.

his

state

postconviction

Terry v. Gaetz, 339 F.Appx. 646, 648

(7th Cir. 2009) (“[T]he record shows that Terry actually filed his
[second postconviction] petition on July 11, 1999.”). As a result,
this Court will use the date approved by the Seventh Circuit.
The

state

trial

court

summarily

dismissed

postconviction petition on January 7, 2000.

the

second

People v. Terry, No.

1-00-3971, at 2 (Ill. App. Ct. May 24, 2002) (unpublished order)
(Dkt. 75 at Ex. T).

Terry appealed, arguing that:

(1) under

Illinois law, the trial court was required to appoint counsel to
represent him because his postconviction petition had been pending
for

more

than

ninety

days;

(2)

a

provision

of

Illinois’s

Postconviction Hearing Act violated the “single subject rule” of
the Illinois Constitution; and (3) his sentence violated Apprendi
v. New Jersey, 530 U.S. 466 (2000).
The

Illinois

Appellate

Court

(Dkt. 75 at Ex. Q.)
agreed

with

Terry’s

first

argument, vacated the judgment of dismissal, and remanded the case.
People v. Terry, No. 1-00-3971 (Ill. App. Ct. May 24, 2002)
(unpublished order) (Dkt. 75 at Ex. T).

On remand, appointed

counsel amended the petition to add an Apprendi challenge to
Terry’s sentence, Dkt. 79 at Ex. QQ, at C27-32 (supplemental
petition for post conviction relief and supporting affidavit of

- 8 -

counsel).

The trial court dismissed the amended petition as

untimely and successive, stating:
[T]he Defendant was convicted in ‘87. His conviction was
affirmed in ‘90, and [leave to appeal] was denied in ‘91.
Under
the
statute
of
limitations
applying
to
[postconviction petitions], the [petition] should have
been filed within six months of that time. And it was
filed actually eight years late. And in addition, it’s
a successive petition. And any issue which is raised
here would have been waived because it should have been
raised in the first petition.
(Dkt. 75 at Ex. U at A3) (transcript of proceedings before the
trial court).
Terry again appealed, but only argued that his sentence
violated Apprendi.
again affirmed.

Id.

However, the Illinois Appellate Court

People v. Terry, No. 1-04-2096 (Ill. App. Ct.

Sept. 8, 2005) (unpublished order) (Dkt. 75 at Ex. X at 3).

Next,

Terry filed a petition for leave to appeal to the Illinois Supreme
Court reiterating his Apprendi claim.

(Dkt. 75 at Ex. Y.)

The

Illinois Supreme Court denied leave to appeal on December 1, 2005,
id. at Ex. Z.
F.

Federal Habeas Proceedings

Terry filed his first federal habeas petition in 1992.
v.

Hulick,

92

C

8215.

That

petition

was

dismissed

Terry

without

prejudice in June of 1995 based on Terry’s failure to exhaust his
state court remedies.

See Terry v. Hulick, 92 C 8215, Dkt. 55;

Terry v. Gaetz, 339 F.Appx. 646, 647-48 (7th Cir. 2009).

On

March 1, 2006, the clerk docketed another pro se § 2254 petition
- 9 -

from Terry dated February 28, 2006.

Terry v. Uchtman, No. 06 C

1093, Dkt. 1; Terry v. Gaetz, 339 F.Appx. at 647.

“The district

court [originally presiding over this case], worried about statuteof-limitations problems due to the intervening passage of AEDPA,
decided to circumvent any potential problems with Terry’s second
habeas petition by converting its 1995 dismissal of Terry’s first
habeas petition into a stay.

It drew support for this course of

action from our intervening decision in Newell v. Hanks, 283 F.3d
827 (7th Cir. 2002), in which we held that a district court may
stay, rather than dismiss, a federal habeas petition while the
petitioner exhausts his state remedies.

The district court then

construed Terry’s second habeas petition as an amended petition and
reopened his case under the first [1992] docket number.”

Terry v.

Gaetz, 339 F.Appx. at 647-48.
Shortly thereafter, the district judge ordered additional
briefing based on recent Seventh Circuit precedent.
Uchtman, No. 06 C 1093, Dkt. 23.

Terry v.

It then held that the 2006

petition was time-barred, Terry v. Hulick, 92 C 8215, Dkt. 71, and
denied

a

group

of

motions

to

reconsider

after

a

series

of

administrative problems regarding the receipt of Terry’s filings
and the docketing of orders addressing those filings.

Id. at

Dkt. 77.
On appeal, the Seventh Circuit granted a certificate of
appealability, appointed counsel, and ultimately held that the 2006
- 10 -

petition was governed by AEDPA’s one-year grace period, which was
tolled “during the pendency of a properly filed petition for state
postconviction relief.” Terry v. Gaetz, 339 F.Appx. at 648 (citing
28 U.S.C. § 2444(d)(2)).

The Seventh Circuit treated both of

Terry’s state postconviction petitions as tolling the limitations
period but did not address whether those petitions were “properly
filed” under 28 U.S.C. § 2244(d)(2).

Id. at 648-50 & n.3.

Instead, the Seventh Circuit acknowledged that the state court
had “dismissed [the first] petition as untimely.”

It nevertheless

found that the Respondent’s failure to contend that the petition
was not “properly filed” at the district court level resulted in a
waiver of that point.

Id. at 649 at n.3.

Similarly, the Seventh Circuit treated Terry’s first state
postconviction petition as “pending” in state court through the
date the Illinois Supreme Court denied the corresponding petition
for rehearing (October 5, 1998), rather than the date that the
appellate court affirmed the judgment in Terry’s case (June 18,
1998).

Four days before oral argument, Respondent filed a letter

suggesting that June 18, 1998, was the proper date.

The Seventh

Circuit acknowledged that if the petition was no longer pending as
of June 18, 1998, the 2006 § 2254 petition would be time-barred.
However, it held that Respondent had waived its ability to rely on
the June 18 date as it neither raised that argument before the
district court nor included it in his appellate brief.

- 11 -

Id. at 649.

On remand to the district court initially assigned to Terry’s
case, the court appointed counsel through the Federal Defender
Program.

Counsel

discovered

that

necessary

portions

of

the

transcripts from Terry’s state court trial were missing, located
the transcripts, and had them transcribed. In 2012, Terry filed an
amended petition, Dkt. 64, containing five claims:
1.

The jury instructions on voluntary manslaughter
misstated Illinois law under People v. Reddick, 526
N.E.2d 141 (Ill. 1988), as they required the State
to prove that Terry acted under a sudden and
intense passion caused by John even though the
State’s theory was that John did not provoke Terry.
In addition, the trial court violated Terry’s
constitutional rights by improperly answering
questions asked by the jury.
Finally, “[t]he
State’s actions at trial and in arguing that
certain answers be given to jury questions mandated
that the jury could not find [Terry] guilty of the
voluntary manslaughter of John even though the
trial Judge determined that such a verdict would be
appropriate for the jury to consider.” Dkt. 64 at
PageID# 224. (Claim I)

2.

Answers to questions posed by jury “highlighted the
flawed jury instructions” by improperly precluding
the jury from finding voluntary manslaughter as to
John because John did not provoke Terry. Id. at
PageID# 224-35. (Claim II)

3.

Terry’s sentence for voluntary manslaughter was
“void” and “improperly imposed under the relevant
[Illinois] statutes.”
Id. at PageID# 227.
(Claim III)

4.

Terry’s trial counsel was ineffective (Claim IV)
because he failed to:
(a)

“interview
any
of
witnesses
in
this
PageID# 227.

- 12 -

the
identified
case,”
id.
at

(b)

interview
Mary
Hamblin, whom
Terry
contends would have stated that she saw
Grace, John, and a tall man who was not
Terry
wearing
“a
dark
jacket
and
something on his head” walking toward the
Marcatante home on the afternoon of the
murders, id. at PageID#227.

(c)

impeach
Officer
Wendt’s
suppression
hearing and trial testimony by:
(I)

calling Edna Kornack to testify that
she never told police that the man
she saw running from the direction
of the Marcatante house was AfricanAmerican; and

(ii) subpoena and introduce “police radio
tapes,” which according to Terry
would have corroborated Kornack and
impeached Wendt on that point, id.
at PageID#228.
5.

The cumulative effect of the constitutional
violations in Terry’s first four claims violated
his right to a fair trial and sentencing (Claim V).
II.

LEGAL STANDARD

A habeas petitioner is not entitled to a writ of habeas corpus
under 28 U.S.C. § 2254 unless the challenged state court decision
is either “contrary to” or “an unreasonable application of” clearly
established federal law as determined by the United States Supreme
Court.

See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S.

362, 404–05 (2000).

A state court’s decision is “contrary to”

clearly established Supreme Court law “if the state court arrives
at a conclusion opposite to that reached by the [United States
Supreme] Court on a question of law” or “if the state court
confronts

facts

that

are

materially
- 13 -

indistinguishable

from

a

relevant Supreme Court precedent and arrives at a result opposite
to ours.”
With

See Williams, 529 U.S. at 405.
respect

to

the

“unreasonable

application”

prong

of

§ 2254(d)(1), a habeas petitioner must demonstrate that although
the state court identified the correct legal rule, it unreasonably
applied the controlling law to the facts of the case.
407.

See id. at

A state court’s application of Supreme Court precedent is

unreasonable

if

the

court’s

decision

was

“objectively”

unreasonable.

Harrington v. Richter, — U.S. —, 131 S.Ct. 770, 786

(2011) (“even a strong case for relief does not mean that the state
court’s contrary conclusion was unreasonable”).
III.
A.
Under

ANALYSIS

Terry’s § 2254 Petition & Statute of Limitations
28

U.S.C.

§

2244(d)(2),

the

one-year

statute

of

limitations applicable to § 2254 petitions is tolled when “a
properly filed application for State post-conviction or other
collateral review . . . is pending.”

28 U.S.C. § 2244(d)(2).

Respondent reasserts his argument that both of Terry’s state
postconviction petitions were untimely.

He reasons that because

these petitions were not “properly filed” they could not have
tolled the statute of limitations.

Respondent acknowledges that

the Seventh Circuit found that he had waived this argument and that
the finding of waiver is controlling as it is the law of the case.
Nevertheless, he asserts that the Seventh Circuit’s finding of
- 14 -

waiver applies only to Terry’s 2006 pro se § 2254 petition.
According to Respondent, the filing of an amended petition through
counsel in 2012 opened the door for him to re-raise his previously
rejected statute of limitations defense in response to the 2012
petition.
“An amended habeas petition . . . does not relate back (and
thereby escape AEDPA’s one-year time limit) when it asserts a new
ground for relief supported by facts that differ in both time and
type from those the original pleading set forth.”
545 U.S. 644, 650 (2005).

Mayle v. Felix,

However, “[s]o long as the original and

amended petitions state claims that are tied to a common core of
operative facts, relation back will be in order.”

Id. at 664.

The

Respondent concedes that Terry’s claims in his amended petition are
tied to the core of operative facts raised in the 1996 petition.
(Dkt. 72 at PageID# 252-53.)

He also acknowledges that he has been

unable to find any authority “addressing whether the mandate rule
extends to waiver-based timeliness rulings in cases where the
waiver is no longer effective due to the filing of an amended
pleading on remand.”

Id. at 13, n.8.

This Court declines to excuse the Respondent’s waiver.

The

Seventh Circuit clearly contemplated that upon remand this Court
would address Terry’s claims on the merits.

Terry v. Gaetz,

339

F.Appx.

the

his

at

650

(“Terry

has

not

waived

merits

of

constitutional arguments, and the district court should proceed to

- 15 -

address them on remand.”).

This Court does not believe that the

filing of an amended petition that relates back to the original
petition somehow resurrects the Respondent’s waived statute of
limitations defense.

Moreover, acceptance of the Respondent’s

argument would penalize Terry for the Court’s decision to appoint
counsel upon remand. Accordingly, the Court turns to the merits of
Terry’s claims.
B.

Terry’s § 2254 Petition:

Claims I and II

Terry’s first and second claims center around information
provided to the jury relating to the viability of rendering a
verdict of voluntary manslaughter (instead of first degree murder)
as to John.

Terry first contends that the jury instructions on

voluntary manslaughter misstated Illinois law under People v.
Reddick, 526 N.E.2d 141 (Ill. 1988), as they required the State to
prove that Terry acted under a sudden and intense passion caused by
John even though the State’s theory was that John did not provoke
Terry.
violated

Terry also appears to be arguing that the trial court
his

constitutional

questions asked by the jury.

rights

by

improperly

answering

Next, Terry asserts that the State

acted improperly as it requested that certain answers be given to
jury questions in a way that prevented the jury from finding Terry
guilty of John’s voluntary manslaughter.

Finally, he argues that

the answers to the jury’s questions “highlighted the flawed jury

- 16 -

instructions”

by

preventing

the

jury

from

finding

voluntary

manslaughter as to John given that John did not provoke Terry.
1.

People v. Reddick (Claim I)

In People v. Reddick, 526 N.E.2d 141 (Ill. 1988), the Illinois
Supreme Court held that certain instructions about the State’s
burden of proof when a defendant relied on provocation to support
a verdict of voluntary manslaughter were erroneous. Terry contends
that he is entitled to relief under Reddick and that “[t]he failure
of the State courts to grant relief in [his] case while granting
relief

in

other

similar

cases

was

violative

of

instructions

(Dkt. 64 at PageID# 224.)
answers

to

instructions”

jury
by

involving

[his]

the

same

constitutional

flawed
rights.”

He also argues that the trial court’s

questions
preventing

“highlighted
the

jury

from

the

flawed

finding

jury

voluntary

manslaughter as to John given that John did not provoke Terry.
Unfortunately for Terry, the Seventh Circuit has found that a
§ 2254 claim based on Reddick is based on Illinois criminal law and
thus “is without a federal constitutional basis” and “is not
cognizable on habeas review.”

Verdin v. O’Leary, 972 F.2d 1467,

1476 (7th Cir. 1992) (the invocation of Reddick to the state courts
does not fairly present a federal due process claim); see also
Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995) (quoting
Gilmore v. Taylor, 508 U.S. 333, 340 (1993)) (a claim that an
instruction misstates Illinois law based on Reddick is “some
- 17 -

distance from arguments based on the Constitution, because . . . we
have held that instructions that contain errors of state law may
not form the basis for federal habeas relief.”).

Accordingly,

Terry’s Reddick claim is not cognizable for purposes of federal
habeas review. Similarly, his claim that answers to questions from
the jury “highlighted” the Reddick error is not cognizable.
These conclusions are not altered by Terry’s bald contention
that the allegedly erroneous instruction followed by the series of
jury questions and answers violated his right to due process under
the United States Constitution.

On direct appeal, the Illinois

Appellate Court held that the Reddick error was harmless because
Terry was not entitled to an instruction on voluntary manslaughter
as to John as it did “not believe that the act of 11-year-old John
Marcatante in jumping on the defendant’s back was enough to excite
an intense passion in a reasonable person” and “the defendant,
given his greater size and the fact that he was armed with a deadly
weapon,

attacked

John

Marcatante

with

proportion to the slight provocation.”
1226 at 10 (Dkt. 74 at Ex. D).

violence

all

out

of

People v. Terry, No. 1-87-

The Illinois Appellate Court also

held that the trial court correctly advised the jury that the
provocation necessary to find involuntary manslaughter as to John
needed to come from John himself (as opposed to Grace).

Id. at 15.

The Court may reexamine a state court’s determination of a
state law question if it rises to the level of a violation of due

- 18 -

process.

See generally Middleton v. McNeil, 124 S.Ct. 1830, 1832

(2004).

However, this Court may only consider a due process

argument if it was properly presented to the state courts.

Since

Terry did not couch his jury instruction argument in constitutional
terms during the state court proceedings, he has procedurally
defaulted it.

Lieberman v. Thomas, 505 F.3d 665, 670 (7th Cir.

2007) (to avoid procedural default, a petitioner must “alert[] the
state court to the federal nature of his claim in a manner
sufficient to allow that court to address the issue on a federal
basis”).
Nevertheless, the Court may still reach the merits of a
procedurally defaulted claim if Terry can establish cause for his
failure to follow a rule of state procedure and actual prejudice,
or that the default will result in a fundamental miscarriage of
justice.
(2000).
by

“some

See, e.g., Edwards v. Carpenter, 529 U.S. 446, 452
To demonstrate cause, Terry must show that he was impeded
objective

factor

external

to

the

defense”

such

as

governmental interference or the reasonable unavailability of the
factual basis for the claim.
(7th Cir. 1995).

Cawley v. Detella, 71 F.3d 691, 696

No evidence in the record shows that Terry can

meet this standard.

Because Terry cannot establish cause, the

Court need not reach the prejudice prong.
The fundamental miscarriage of justice exception to procedural
default also does not help Terry.

- 19 -

To establish a fundamental

miscarriage of justice, Terry must present new and convincing
evidence of his innocence by showing that it is more likely than
not that no reasonable jury would convict him in light of the new
evidence.
2001).

U.S. ex rel Bell v. Pierson, 267 F.3d 544, 551 (7th Cir.

Terry’s petition, as well as the state court pleadings

submitted

to

the

Court,

do

not

contain

any

substantiated

allegations of actual innocence.
In this regard, the Court notes that Terry’s second state
postconviction petition contains a list of reasons why he is
allegedly actually innocent.

(Dkt. 95 at Ex. P.)

Terry’s reasons

include his disagreement with the jury’s view of the evidence, the
lack of blood on his clothing or the baseball bat, the absence of
his fingerprints at the Marcatante home, and his claim that his
statements to the police were incorrect.

This is not new evidence

from which it is more likely than not that no reasonable juror
would convict him.

Accordingly, the Court need not reach the

merits of Terry’s procedurally defaulted claims regarding the
alleged erroneous jury instruction.
Moreover, the Court notes that this procedurally defaulted
claim also fails on its merits.

See Garth v. Davis, 470 F.3d 702,

712-13 (7th Cir. 2006) (any error instructing the jury was harmless
where the jury’s verdict was based on a credibility determination
that was amply supported by the record).
rejects Terry’s first claim.

- 20 -

As such, the Court

2.

Answers to Questions Asked by the Jury (Claim II)

Terry next approaches his Reddick argument from a different
angle, arguing that the trial court violated his constitutional
rights by improperly answering questions asked by the jury.

This

argument is essentially a recasting of the non-cognizable Reddick
claim.

Additionally,

Terry

fails

to

identify

a

federal

constitutional right allegedly at issue with respect to this claim
and fails to point to portions of the state court record to
demonstrate that he presented this argument to all levels of the
Illinois courts.

See O’Sullivan v. Boerckel, 119 S.Ct. 1728, 1732

(1999); Castille v. Peoples, 109 S.Ct. 1056, 1059 (1989).

Thus,

even if this claim was cognizable, it would be procedurally barred.
Terry also asserts that the State acted improperly when it
requested

that

certain

answers

be

given

to

jury

questions.

According to Terry, the State’s proposed answers prevented the jury
from finding him guilty of John’s voluntary manslaughter.

Setting

aside the fact that Terry’s trial counsel agreed to all but one of
the responses, this argument is not based on federal constitutional
law and was not presented to the state courts in the guise of a
federal constitutional claim.

It thus is not cognizable in this

federal habeas corpus proceeding.

Accordingly, the Court finds

that Terry is not entitled to relief based on any of his jury
instruction claims.

- 21 -

C. The Imposition of Natural Life Plus an
Extended Term for Voluntary Manslaughter (Claim III)
In his third claim, Terry asserts that “[t]he Illinois Supreme
Court has taken conflicting views in different cases with regard to
the propriety of the imposition of an extended term such as the
trial

judge

imposed

in

this

case”

and

concludes

that

the

inconsistent holdings on this issue violate his right to due
process and

equal

protection.

(Dkt.

64,

PageID#

226.)

This

argument appears to be directed at the Illinois Supreme Court’s
opinion in Terry’s first state postconviction proceeding, People v.
Terry, 700 N.E.2d 992 (Ill. 1998) (Dkt. 75 at Ex. O).
Illinois

Supreme

Court,

Terry

argued

that

Illinois’

At the
criminal

statutes only authorize the imposition of an extended term sentence
for the most serious of a defendant’s offenses.

Thus, his 30-year

sentence for voluntary manslaughter was improper since he was also
sentenced to natural life for murder.

The Illinois Supreme Court

rejected this argument and held that an extended term sentence was
improper if a defendant received a sentence of a term of years for
murder,

but

permissible

imprisonment or death.

if

he

received

Id. at 995-96.

a

sentence

of

life

Terry’s argument now is

that the state court improperly applied state law.
This claim is not cognizable as “it is not the province of a
federal habeas court to reexamine state-court determinations on
state-law questions.” Wilson v. Corcoran, 131 S.Ct. 13, 16 (2010).
Terry attempts to circumvent this well-established rule by claiming
- 22 -

that the state court’s ruling deprived him of his right to due
process and equal protection under the United States Constitution.
However, he did not couch his sentencing argument in federal
constitutional terms in the state court proceedings, so any attempt
to transform his state law argument into a federal constitutional
claim now is procedurally defaulted.
1732.

See O’Sullivan, 119 S.Ct. at

Moreover, for the reasons discussed above, no exceptions to

procedural default are applicable.
In any event, this Court cannot sit as an appellate court and
review the Illinois Supreme Court’s determination of Illinois law.
See Smith v. Phillips, 102 S.Ct. 940, 948 (1982) (“Federal courts
hold no supervisory authority over state judicial proceedings and
may

intervene

dimension.”).

only

to

correct

wrongs

of

constitutional

Accordingly, the Court rejects Terry’s third claim

as it is not one arising under the federal Constitution.
D.
In

Ineffective Assistance of Trial Counsel (Claim IV)
his

ineffective

assistance of counsel entitles him to habeas relief.

Respondent

contends

his

fourth

that

this

claim,

claim

Terry

is

argues

that

procedurally

defaulted

and,

alternatively, fails on the merits.
1.

Procedural Default

Terry concedes that his ineffective assistance claims were not
raised in his state postconviction proceedings but asserts that his
default is excused because his state postconviction counsel was
- 23 -

ineffective for not challenging trial counsel’s effectiveness.

It

is well established, however, that there is no constitutional right
to

counsel

on

collateral

review,

so

the

performance

of

postconviction counsel cannot act as cause to excuse a default.
Steward v. Gilmore, 80 F.3d 1205, 1212 (7th Cir. 1996) (rejecting
effort to use postconviction counsel’s failure to allege trial
counsel’s

ineffectiveness

to

excuse

procedural

default

as

“[i]neffective assistance of postconviction counsel is not itself
a cognizable federal constitutional violation and may not serve as
cause for a procedural default.”).
The Court notes that Terry’s concession of failing to raise
his

ineffective

assistance

claim

in

proceedings is not completely accurate.

his

state

postconviction

He raised an ineffective

assistance claim in his first state postconviction petition, which
was filed pro se.

See Dkt. 74 at Ex. G.

He did not, however,

repeat this

in

state

claim

appellate briefs.

either

of his

two

postconviction

See Dkt. 74 at Ex. H; Dkt. 95 at Ex. Q.

The

failure to present a claim to state intermediate court means that
it is procedurally barred.
349.

See Castille v. Peoples, 489 U.S. 346,

The Court will thus not parse through Terry’s petitions for

leave to appeal as the failure to present the ineffective claim to
the

Illinois

defaulted.

Appellate

Court

means

Id.

- 24 -

that

it

is

procedurally

2.

Martinez v. Ryan

In an effort to avoid procedural default, Terry directs the
Court’s

attention

to

the

Supreme

Court’s

recent

decision

in

Martinez v. Ryan, 132 S.Ct. 1309 (2012).

In that case, the Supreme

Court

to

carved

out

a

narrow

exception

the

usual

rule

that

ineffective assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default
of a claim of ineffective assistance of trial counsel.

To be

eligible for this exception, a petitioner must, among other things,
“demonstrate that the underlying ineffective-assistance-of-trialcounsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.”

Id. at

1319.
In his ineffective assistance of counsel claim, Terry contends
that his trial counsel was ineffective for failing to (1) interview
unspecified witnesses; (2) interview Mary Hamblin, a woman who saw
a man walking toward the Marcatante house on the day in question;
and (3)

call

Edna

Kornak, the

Marcatante’s

neighbor,

at

the

suppression hearing.
In order to establish ineffective assistance of counsel, a
defendant must show that his counsel’s representation fell below an
objective standard of reasonableness, and must establish that a
reasonable probability that, but for counsel’s errors, the result
of

the

proceeding

would

have

been

- 25 -

different.

Strickland v.

Washington, 466 U.S. 668, 687-94 (1984).

If a defendant fails to

satisfy one of the Strickland prongs, the Court’s inquiry ends.
See id. at 697; see also Hough v. Anderson, 272 F.3d 878, 890 (7th
Cir. 2002).
The Court rejects Terry’s broad assertion that his trial
counsel failed to interview unspecified witnesses. The Court finds
this argument conclusory and unsubstantiated and fails to meet the
burden in Strickland. United States v. Turcotte, 405 F.3d 515, 537
(7th Cir. 2005).
trial

counsel

The Court also rejects Terry’s argument that his

was

ineffective

for

failing

to

interview

Mary

Hamblin. While Terry argues that Hamblin would have testified that
she saw a tall thin man who was not Terry walking toward the
Marcatante home on the day of the murders and that could have
identified who the real killer was, Hamblin’s account of the events
was

detailed

discovery.

in

a

Given

police
the

report

Terry

overwhelming

received

evidence

in

against

pretrial
Terry,

including his confession and the fact that the baseball bat was
recovered in the exact location Terry pointed to, the Court does
not find that but for his trial counsel’s failure to interview
Hamblin, the result would have been different.

Strickland, 466

U.S. at 694.
Similarly, the Court rejects Terry’s contention that his trial
counsel was ineffective for failing to call Edna Kornack at his
suppression hearing.

Terry argues that Kornack’s testimony would

- 26 -

have impeached the testifying officer by showing that Kornack did
not tell the officer that the man he saw was African-American.
However, at trial, Kornack testified that she saw a tall, thin man,
but could not see the man’s face or distinguish his race from where
she was standing.

Thus, the Court does not find that this

testimony would have affected the suppression hearing where Terry
sought to suppress statements made to officers after his arrest.
See United States v. Harris, 394 F.3d 543, 556 (7th Cir. 2005) (the
failure to impeach on “trivial and collateral matters” is not
ineffective assistance).

Therefore, Terry fails to satisfy his

burden in establishing that his ineffective assistance of counsel
claim has merit.

See Strickland, 466 U.S. at 694; Martinez, 132

S.Ct. at 1319.
E.
Finally,

Terry

Cumulative Error (Claim V)
argues

that

the

cumulative

effect

of

constitutional violations in Claims I-IV deprived him of his
constitutional right to a fair trial and sentencing.

The only

federal constitutional claim that could properly be before this
Court (assuming it was not defaulted) is ineffective assistance.
“[I]effective assistance of counsel is a single ground for relief
no

matter

how

many

failings

the lawyer

may

have

displayed.”

Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005).

A

single error cannot form the basis of cumulative error. See, e.g.,

- 27 -

Christmas v. City of Chicago, 682 F.3d 632, 643 (7th Cir. 2012).
Thus, Terry’s cumulative error claim fails.
F.

Certificate of Appealability

In order to obtain a certificate of appealability, Terry must
make a “substantial showing of the denial of [a] constitutional
right.”

28 U.S.C. § 2253(c).

A petitioner makes a “substantial

showing” if “reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to
proceed further.”

Resendez v. Knight, 653 F.3d 445, 446 (7th Cir.

2011)(citation omitted).

For the reasons stated above, the Court

finds that there can be no substantial showing of the denial of a
constitutional right. The Court declines to issue a certificate of
appealability.
IV.

CONCLUSION

For the reasons stated herein, the Court denies Terry’s
28 U.S.C. § 2254 petition, and declines to issue a certificate of
appealability.

The Court also directs the clerk to substitute

Michael Atchison as Respondent in this matter.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Date:March 7, 2013
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