Thomas v. Jones et al

Filing 74

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 12/23/2013:Mailed notice(air, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DENNIS THOMAS,
Petitioner,
v.
MARC HODGE,1
Respondent

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)
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) No. 08 C 00819
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) Judge John J. Tharp, Jr.
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)

MEMORANDUM OPINION AND ORDER
Dennis Thomas is imprisoned at the Lawrence Correctional Center, serving a thirty-year
sentence for attempted first-degree murder. Thomas was convicted in 2004 after a jury trial in the
Circuit Court of Cook County for stabbing his then-girlfriend five times. He now petitions for a
writ of habeas corpus under 28 U.S.C. § 2254. In his timely pro se amended petition,2 Thomas
1

The current warden of the Lawrence Correctional Center has been substituted for the
original respondent, Gerardo Acevedo. See Fed. R. Civ. P. 25(d); Rule 2(a) of the Rules
Governing Section 2254 Cases in the United States District Courts.
2

Thomas’s amended habeas petition, filed on November 28, 2011, is the operative
habeas petition. See Newell v. Hanks, 283 F.3d 827, 834 (7th Cir. 2002) (amended habeas
petition supersedes original habeas petition). The amended petition appears to be timely. The
one-year statute of limitations for filing the petition, 28 U.S.C. § 2244(d)(1)(A), began to run
upon the denial of Thomas’s petition for certiorari in the U.S. Supreme Court on February 20,
2007, when Thomas’s judgment became final. About 352 days had run off of the 365 day clock
when the habeas petition was filed on February 7, 2008. On February 12, 2008, Thomas’s case
was stayed pending the disposition of his pending post-conviction proceedings in state court.
Minute Entry 2/12/08 (Dkt. 9).
Thomas filed an amended petition for habeas corpus on November 28, 2011, twenty days
after the stay was lifted in federal court and within the thirty-day deadline set by the court.
Minute Entry 11/8/11 (Dkt. 43, 45). The Supreme Court has set a standard for amendments made
after the statute of limitations has run—new claims relate back to the date of the original
pleading if “the original and amended petitions state claims that are tied to a common core of
operative facts.” Mayle v. Felix, 545 U.S. 644, 664 (2005). An amended habeas petition does not
relate back “when it asserts a new ground for relief supported by facts that differ in both time and
type from those of the original pleading….” Mayle, 545 U.S. at 650. Thomas raises two new
claims in his amended petition—confrontation of witnesses and fair trial. The fair trial claim

raises seven possible grounds for habeas relief. For the reasons set forth below, the Court denies
the petition for a writ of habeas corpus and declines to issue a certificate of appealability.
FACTS3
In November 2002, the petitioner Dennis Thomas, Renee Hackett (Thomas’s girlfriend at
the time), and Hackett’s sixteen-year-old daughter, Chendre Brown, shared an apartment at 2650
West Ogden Avenue in Chicago, Illinois. According to Hackett’s testimony at trial, Hackett and
Thomas had an argument the previous month regarding Hackett’s purchase of a jacket for her exboyfriend. Thomas was upset with Hackett because he thought she was being unfaithful. Hackett
further testified that on the afternoon of November 1, 2002, Hackett and Thomas were at home
sitting on the couch and talking about “normal things.” Hackett noticed that Thomas smelled of
alcohol, but this was not new or unusual. Thomas told Hackett that his aunt told him earlier that
day that he “had to kill a virgin.” Thomas also told Hackett that Chendre, Hackett’s daughter,

appears to be tied to the same “common core of operative facts” as the original pleading. The
confrontation claim raises facts of a different type (that Thomas was unable to physically see
witnesses at his trial), although not time (since the facts relate to the same trial as Thomas’s other
claims)—and the new claim must “differ in both time and type” to not relate back. Accordingly,
the date of the original pleading, February 7, 2008, will stand as the date on which to measure
the statute of limitations under § 2244.
Further, the statute of limitations did not need to be tolled while Thomas pursued state
post-conviction relief, because Thomas filed his initial habeas petition in federal court while his
state post-conviction petition was already pending. See 28 U.S.C. § 2244(d)(2) (“The time during
which a properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted toward any period of
limitation…”).
3

The facts in this opinion are principally derived from the state appellate court’s opinion
affirming the trial court’s dismissal of Thomas’s petition for post-conviction relief. People v.
Thomas, No. 1-07-2226 (Ill. App. Ct. 1st Dist. Nov. 10, 2009) (Dkt. 60-2). The state court’s
factual findings are presumed to be true, and Thomas has the burden of rebutting that
presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Thompkins v. Pfister,
698 F.3d 976, 983 (7th Cir. 2012).

2

was a virgin and that he was not going to allow another of his children to become pregnant.
Hackett told Thomas that Chendre was not his daughter.
Thomas got up and began to choke Hackett. Hackett fought back and was able to get
away from Thomas, but Thomas caught her, threw her to the ground, and held her down. Thomas
then said, “now see, I have to kill you.” Thomas reached into his pocket, pulled out a red Swiss
Army knife, and stabbed Hackett once in the neck. When Thomas tried to stab Hackett a second
time, Hackett turned her head because she was “afraid he was going to slit [her] throat and he got
[her] on the chin.” Thomas also inflicted superficial wounds to Hackett’s finger and thumb.
Thomas got up, called 911, and reported that “he had stabbed his wife,” but he gave the 911
operator the wrong address. Thomas then ran out of the apartment. Hackett picked up the phone
to call for help. She then saw Thomas come back into the apartment, put the knife on the ironing
board, and leave again.
At 1 a.m. on November 2, 2002, Thomas waved down a police officer and told the officer
that he had badly hurt his “wife” by cutting her with a Swiss Army knife. Thomas was placed in
a squad car where he told an officer that he had hurt his “wife” by stabbing her in the neck
because they had an argument over Hackett “seeing other guys.”
According to Thomas’s testimony at trial, Thomas is a drug addict and alcoholic who has
been using both substances since he was a teenager. On the day of the incident, he smoked two
rocks of cocaine in the apartment he shared with Hackett, he purchased and drank a fifth of
whiskey, and he purchased and drank a half a pint of gin. He testified that he blacked out while
he was talking to Hackett on the couch and he could see her speaking but could not understand
her words. He remembered struggling with Hackett, but then blacked out again, and the next
thing he remembered was standing outside the apartment and Hackett saying, “Dennis don’t stab

3

me.” Thomas looked down and saw that he was holding a knife and had blood on his hands. He
saw Hackett holding her neck. He testified that he “couldn’t believe this,” this was not his
normal behavior, and he didn’t know he had stabbed Hackett at the time. He then heard sirens,
panicked, and fled, but returned to the apartment to get his jacket and left a second time.
The medical evidence at trial showed that Hackett had two surgeries for her injuries,
which included five stab wounds to her neck, chin, finger, and thumb. Dr. Robert Yario, the
physician who operated on Hackett, testified that the stab wounds to Hackett’s neck were lifethreatening and that the arteries in her neck were bleeding and needed to be surgically repaired.
Because Hackett had sickle cell anemia, she developed a blood clot that had to be removed in a
second surgery. Hackett testified that she was in the hospital for seventeen days. Dr. Yario
further testified that Hackett suffered no permanent physical injuries due to the incident.
During deliberations, the jury sent a note to the judge, asking, “Was his blood drug
alcohol level measured at the hospital?” Thomas’s attorney waived Thomas’s presence during
the courtroom discussion of the jury’s note. Thomas’s attorney asked the judge to respond by
telling the jury that they had heard all of the evidence and to continue deliberating; the State
agreed. The judge told counsel that he would tell the jury, “Jurors, you have received all of the
evidence admitted at trial and will have to rely on that evidence in arriving at your verdicts.
Please continue deliberating.” On May 6, 2004, the jury found Thomas guilty of attempted firstdegree murder and aggravated domestic battery. The judge imposed a thirty-year sentence for
attempted first-degree murder.
PROCEDURAL HISTORY
Thomas raised four issues in his direct appeal: (1) he was denied a fair trial when Dr.
Yario testified about the potentially fatal nature of the knife cuts to Hackett’s throat; (2) the trial

4

court erred when it refused to instruct the jury with Illinois Pattern Jury Instruction 5.01A, which
defines “intent;” (3) the thirty-year sentence was excessive; and (4) Thomas was entitled to
additional days of credit. The appellate court addressed and rejected the merits of the first three
of Thomas’s claims and affirmed his conviction. As to the day credit claim, the court ordered
that the mittimus be corrected to reflect 623 days of credit. People v. Thomas, No. 1-04-2316 (Ill.
App. Ct. 1st Dist. Apr. 13, 2006) (Dkt. 60-1 at 1). Thomas then filed a petition for leave to
appeal with the Illinois Supreme Court, but his petition was denied. The United States Supreme
Court denied Thomas’s petition for writ of certiorari on February 20, 2007. Dkt. 60-2 at 44.
Thomas next filed a pro se petition for post-conviction relief in the Circuit Court of Cook
County. In his petition, Thomas raised eight claims: (1) Thomas was not proven guilty beyond a
reasonable doubt; (2) Thomas was not tried by an impartial jury; (3) the trial court erred in
giving Illinois Pattern Jury Instructions 1.01 and 3.02 (“The Functions of the Court and the Jury”
and “Definition of Circumstantial Evidence”); (4) the trial court erred in refusing a jury
instruction on the affirmative defense of involuntary intoxication; (5) ex parte communications
occurred during jury deliberations; (6) at sentencing, the trial court gave excessive weight to the
victim’s impact statement but gave little consideration to defendant’s intoxication; (7) Thomas’s
conviction violated the one-act, one-crime rule; and (8) Thomas was denied effective assistance
of trial and appellate counsel. On July 17, 2007, the trial court dismissed Thomas’s postconviction petition, concluding that all of Thomas’s arguments were “frivolous and patently
without merit.” Dkt. 60-2 at 50.
On appeal of the denial of his post-conviction petition, Thomas argued that: (1) his
appellate counsel was ineffective for failing to raise the argument that the evidence at trial was
insufficient to establish that Thomas had the specific intent to kill Hackett; (2) it was error to

5

discuss the jury’s note concerning Thomas’s “blood drug alcohol level” outside of Thomas’s
presence; and (3) the jury should have been instructed on the affirmative defense of involuntary
intoxication. The Illinois Appellate Court addressed the merits of each argument. As to
Thomas’s ineffective assistance argument, the court found that it could not be reasonably argued
that (i) appellate counsel’s performance was below the objective standard of reasonableness by
virtue of not raising specific intent on appeal or (ii) the outcome of Thomas’s direct appeal
would have been different had Thomas’s counsel raised that issue. Dkt. 60-2 at 14. Second, as to
Thomas’s jury note argument, the appellate court found that the issue was properly preserved for
review, and that there was, in fact, insufficient evidence that Thomas voluntarily, knowingly, and
intelligently waived his right to be present. Id. at 15. The court concluded, however, that
Thomas’s absence did not prejudice him because he did not assert that he would have requested a
different instruction if he were present during the courtroom discussion of the jury note. Id. at
16-17. Finally, as to Thomas’s argument that he was entitled to a jury instruction on the
affirmative defense of involuntary intoxication, the appellate court found that, due to Thomas’s
long history of drug and alcohol use, the effects of Thomas’s cocaine use and alcohol
consumption on the day of the offense “cannot be deemed to be unexpected or unwarned,” and
therefore, the instruction was not required. Id. at 21-22. The appellate court further found that it
could not reasonably be argued that Thomas’s counsel’s performance fell below an objective
standard of reasonableness based on his failure to raise the issue of involuntary intoxication. Id.
at 22.

6

In sum, the appellate court affirmed the dismissal of Thomas’s petition, and later denied a
petition for rehearing. Thomas raised the same three claims in a petition for leave to appeal that
the Illinois Supreme Court denied.4
Thomas’s amended petition for a writ of habeas corpus raises seven purportedly separate
grounds for relief: (1) the trial court erred when it refused to instruct the jury with Illinois Pattern
Jury Instruction 5.01A, which defines “intent;” (2) the trial court imposed an excessive sentence;
(3) Thomas was deprived of the right to a fair trial when the trial court and defense counsel
engaged in an ex parte communication to discuss a jury note and trial counsel was ineffective for
waiving Thomas’s presence; (4) evidence of intent to commit first degree murder was
insufficient and appellate counsel was ineffective for failing to make this argument on direct
appeal; (5) Thomas was denied the right to a fair trial when the trial court refused to instruct the
jury on the affirmative defense of involuntary intoxication, and his appellate counsel was
ineffective for failing to make this argument on direct appeal; (6) Thomas was denied the right to
confrontation because his view of witnesses at trial was physically blocked by the judge’s bench;
and (7) Thomas was denied a fair trial based on “these errors of fact collectively” and based on
4

On February 26, 2009, one year after filing his initial petition for a writ of habeas
corpus in federal court, and while his state post-conviction petition was still pending, Thomas
filed a successive post-conviction petition in state court. Dkt. 60-4 at 25. He raised five issues:
(1) he was deprived of the ability to confront witnesses at trial because he could not physically
see them over the judge’s bench; (2) the hearsay testimony of two police officers was improperly
admitted; (3) the State did not rebut evidence presented by the defense’s expert witness; (4) the
State offered inadmissible evidence of his previous criminal acts; and (5) the jury returned
inconsistent verdicts. Thomas argued that he demonstrated cause for this late effort to seek relief
because he was provided with insufficient time in the prison library, which deprived him of
meaningful access to the courts. The Circuit Court of Cook County denied Thomas leave to file
the successive post-conviction petition. The Illinois Appellate Court affirmed, and the Illinois
Supreme Court denied the petition for leave to appeal on September 28, 2011. Dkt. 60-4 at 1724; Dkt. 60-5 at 64. Meanwhile, Thomas’s petition for habeas corpus was stayed in federal court
pending resolution of the state post-conviction petition. That stay was lifted on November 8,
2011. Thomas filed an amended petition for a writ of habeas corpus on November 28, 2011 (Dkt.
45). The State filed its answer on April 16, 2012 (Dkt. 59).

7

ineffective assistance of trial and appellate counsel. In its response, the State of Illinois argues
that the petition must be denied because the claims are either procedurally defaulted, see 28
U.S.C. § 2254(b), not cognizable, see id. § 2254(a), or lacking in merit.
DISCUSSION
This case is governed by the provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. AEDPA allows this Court to grant a petition for a
writ of habeas corpus by a state prisoner only on the ground that he is in custody “in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In order for a writ
to issue, a prisoner in custody pursuant to a judgment in state court must show that the state
adjudication 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
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). A decision by a state court is “contrary to”
clearly established federal law if it applies a rule different from that established by the Supreme
Court, or reaches a different outcome than that of the Supreme Court on a set of materially
indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002); McNary v. Lemke, 708 F.3d
905, 913 (7th Cir. 2013). A state court engages in an “unreasonable application of” federal law if
it identifies the correct legal standard articulated by the Supreme Court, but applies it in an
unreasonable manner. See Williams v. Taylor, 529 U.S. 362, 407 (2000). The decision must be
“objectively unreasonable,” and not simply incorrect or erroneous. See Wiggins v. Smith, 539
U.S. 510, 520–21 (2003). Under the statute, courts must give “full effect” to state judgments that
are consistent with federal law. See Williams, 529 U.S. at 383. This means applying a deferential

8

standard of review, under which state court rulings are given the benefit of the doubt. See
Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
A court must construe a pro se petition liberally. See Ward v. Jenkins, 613 F.3d 692, 697
(7th Cir. 2010). Nevertheless, the statutory requirements are clear, and as set forth more fully
below, two claims—(6) and (7) of the petition—cannot be considered because Thomas
procedurally defaulted claim (6) in state court before attempting to raise it here and he raises
claim (7) for the first time in his habeas petition in federal court. Other claims—(1), (5), and
(2)—are not cognizable on federal habeas review because they exclusively raise errors based on
state law. That leaves two claims for resolution on the merits—(3) and (4); as to these claims, the
state courts’ rulings were reasonable applications of federal law.
I. Procedural Default – Claims (6) and (7).
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
Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). A claim is also procedurally defaulted
“when a state court [has] declined to address a prisoner’s federal claims because the prisoner
[has] failed to meet a state procedural requirement.” Moore v. Bryant, 295 F.3d 771, 774 (7th
Cir. 2002). To overcome a procedural default, a petitioner must establish that (1) good cause
exists for the default and actual prejudice was suffered as a result or (2) the default would lead to
a “fundamental miscarriage of justice.” See Morales v. Johnson, 659 F.3d 588, 604 (7th Cir.
2011).
A. Claim (6) – Confrontation.
In Claim (6) of his amended petition, Thomas asserts that his right to confront witnesses
was violated at his trial. Thomas asserts that “[d]uring my 3 … day trial, all the witnesses for the

9

state [were] blocked by the judge[‘]s bench. I had no view of them as they gave evidence against
me.” Dkt. 45 at 9. With the amended petition, Thomas submitted a hand-drawn exhibit to show
the layout of the courtroom—as he perceived it—during his trial. Id. at 11.
Thomas did not raise this claim until his petition for leave to file a successive postconviction petition in state court in 2009. Dkt. 60-4 at 52-53. In other words, Thomas did not
raise this issue at trial, in his direct appeal, or in his first round of post-conviction review in state
court. In Illinois, filing a successive petition requires leave of court, and leave of court may be
granted “only if a petitioner demonstrates cause for his or her failure to bring the claim in his or
her initial post-conviction proceedings and prejudice results from that failure.” 725 ILCS 5/1221(f) (“Petition in the trial court”). Thomas argued that he belatedly raised this claim because his
access to the prison library was limited to two and a half hours per week while incarcerated in
maximum security. Dkt. 60-4 at 43-45. The Illinois Appellate Court affirmed the circuit court’s
dismissal of Thomas’s motion on the basis that “prison regulations that restrict an inmate’s time
in the law library do not constitute cause for purposes of filing a successive post-conviction
petition.” Dkt. 60-4 at 23. In other words, the appellate court did not reach the merits of
Thomas’s confrontation claim because Thomas did not make the requisite showing of cause and
prejudice to overcome the procedural default.
Where that leaves Thomas is with a claim that has never been heard on its merits by the
state courts in Illinois. The ruling of the Illinois Appellate Court that Thomas could not excuse
his belated claim rests on adequate and independent state-law grounds, namely that Thomas
violated 725 ILCS 5/122-1 by failing to raise the errors in prior proceedings. See Coleman v.
Thompson, 501 U.S. 722, 737 (1991) (a claim is procedurally defaulted if the state court clearly
and plainly relies on the default as an independent and adequate state law ground for its ruling).

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The appellate court also found that Thomas could not demonstrate cause and prejudice
for the belated advancement of his new claim. This Court agrees. The effort to demonstrate cause
due to inadequate library access must be examined on a case-by-case basis. See Williams v. Buss,
538 F.3d 683, 686 (7th Cir. 2008) (citation omitted). Thomas can only show cause by identifying
an objective factor, and an external impediment, that impeded his ability to raise this claim
during his initial post-conviction proceedings. 725 ILCS 5/122-1(f). See also Lewis, 390 F.3d at
1026. As an initial matter, Thomas was present at his own trial and therefore knew of the
potential confrontation issue as early as 2004. Yet he did not raise the claim until he filed his
successive post-conviction petition in February 2009, two years after he filed his state postconviction petition. Second, Thomas asserts that he received two and a half hours per week in the
library at the time he filed his initial post-conviction petition and that this was inadequate.
Prisoners must receive sufficient access to prison libraries to research law and to determine what
facts may be necessary to state a cause of action. See Lewis v. Casey, 518 U.S. 343, 350-51
(1996). Thomas received adequate library access, two and a half hours per week, during which
he was able to prepare, assisted by appointed counsel, the several additional claims that he did
include in his post-conviction petition. Viewed in that light, there is no reason to believe that
given additional time in the prison law library Thomas would have raised his confrontation
argument at an earlier time. The Court will not reach the prejudice prong, since prejudice is moot
without successfully demonstrating cause. Further, Thomas did not assert a miscarriage of
justice. Accordingly, Thomas’s claim regarding confrontation of witnesses fails due to an
unexcused procedural default.5

5

Thomas also failed to raise this claim in his first petition for habeas corpus filed in
federal court on February 7, 2008. Rather, as discussed above, he raised it for the first time in his
successive post-conviction in state court, and then for the first time in federal court in his
11

B. Claim (7) – Collective Error and Fair Trial.
In Claim (7) of Thomas’s amended petition, Thomas asserts “These errors of fact
collectively denied me a fair trial. When you deny a defendant basic rights the result is a
conviction and sentence that is fundamentally unfair, such is the case here.” Dkt. 45 at 10.
Thomas did not bring this claim until he filed an amended petition in federal court, nor did he
effectively make an argument at any prior point that he wished all of his claims to be considered
collectively under the umbrella of fundamental fairness. Since Thomas did not fairly present this
claim to the state courts, Claim (7) is procedurally defaulted. See Lewis, 390 F.3d at 1025 (a
claim is procedurally defaulted if a habeas petitioner fails to assert his federal claim at each level
of state court review). Thomas has identified no cause for this default, so his claim is barred.
II. Non-Cognizable Claims – Claims (1), (5), and (2).
In a federal habeas proceeding, a federal court may only consider a petitioner’s claims
that he is in custody in violation of the Constitution, laws, or treaties of the United States. 28
U.S.C.A. § 2254(a). In other words, “errors of state law in and of themselves are not cognizable
on habeas review.” Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004) (citing Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991)).
Thomas asserts three claims in his amended habeas petition that are based solely upon
Illinois law.
A. Claims (1) and (5) – Jury Instructions.

amended petition for habeas corpus. As the respondent concedes (see Dkt. 59 at 20 n.5), Thomas
was ordered to wait to amend his petition until the stay that was imposed pending the resolution
of state court proceedings was lifted. Minute Entry, June 29, 2009 (Dkt. 16). Although Thomas
would normally be precluded from asserting a new claim in an amended petition after AEDPA’s
one-year statute of limitations, see Mayle, 545 U.S. at 650, Thomas was following a court order
to wait, and further the claim does not “differ in both time and type” from claims in Thomas’s
original petition. Accordingly, Thomas’s confrontation claim is not precluded on this basis.

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In Claims (1) and (5), Thomas asserts that the trial court erred in its refusal to instruct the
jury regarding the definition of “intent” and the defense of involuntary intoxication.
In general, a state trial court’s refusal to give a particular jury instruction does not
implicate federal constitutional rights. See Perruquet, 390 F.3d at 510 (citations omitted); see
also United States ex rel. Waters v. Bensinger, 507 F.2d 103, 105 (7th Cir. 1974) (“Normally …
instructions to the jury in state trials are matters of state law and procedure not involving federal
constitutional issues.”) (citations omitted). Due process, however, entitles a defendant to a fair
trial, but “only if the state court committed an error so serious as to render it likely that an
innocent person was convicted can the error be described as a deprivation of due process.”
Perruquet, 390 F.3d at 510. The petitioner must “draw[] enough of a connection between his
right to due process and the trial court’s (alleged) evidentiary and instructional errors to render
his claim cognizable on habeas review.” Id. at 512. In Perruquet, for example, the petitioner
“[did] more than merely cite his constitutional right to a fair trial.” He “articulated the theory …
he wished to pursue; he has described the evidence … he has argued that preventing him from
pursuing [the] theory … likely resulted in the conviction of an innocent person … [H]is petition
contains enough detail to describe a claim that is within the power of a federal court to address.”
Id.
Thomas fails to tie the alleged jury instruction errors to a violation of his due process
rights, and so neither claim is cognizable on federal habeas review.
1.

Claim (1) – “Intent.”

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In Claim (1), Thomas asserts that he was entitled to Illinois Pattern Jury Instruction
5.01A (“Intent”)6 at trial and that he was
denied the right to have [the] jury consider my testimony by way of
instructions on … essential element of the offense of [a]ttempted murder. Trial
c[our]t refused to allow instruction unless jury requested it specifically. Because
the court felt it was the law.
Dkt. 45 at 7 (emphasis in original). It is clear from the context of the record, however, that
Thomas is asserting not that the jury instructions omitted an essential element of the offense, but
that he was entitled to an instruction defining “intent.” During the jury instruction conference at
trial, Thomas’s counsel submitted IPI 5.01A. Dkt. 60-7 at KK-11-12. The state countered that
“intent” has a “plain meaning within the jury’s common understanding,” and so the instruction
was unnecessary unless the jury requested a definition. Id. at KK-12. The court refused the
5.01A instruction conditionally, adding that “If we get a note from them where they have some
confusion about intentional, intent or knowledge, then I think you’re right, I think they should be
given [this] at that point.” Id. at KK-13. During closing argument, the state defined attempted
first degree murder, including the requirement of intent (“when he with the intent to kill”), and
noted that the state must prove “that the defendant [performed an act which constituted a
substantial step towards the killing of an individual] with the intent to kill the individual,” or in
more specific terms, “did the defendant intend to kill Rene [Hackett][?]” Id. at KK-72-74
(emphasis added). In Thomas’s closing, his attorney reiterated that the State must prove intent
beyond a reasonable doubt. Id. at KK-86. The court then instructed the jury that a “person
commits the offense of attempt[ed] first degree murder when he, with the intent to kill an
individual, does any act which constitutes a substantial step towards the killing of an individual.”
6

“A person [(intends) (acts intentionally) (acts with intent)] to accomplish a result or
engage in conduct when his conscious objective or purpose is to accomplish that result or engage
in that conduct.” IL-IPICRIM 5.01A (“Intent”).

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Id. at KK-101. The court further instructed the jury that the state must prove “that the defendant
[performed an act which constituted a substantial step towards the killing of an individual] with
the intent to kill an individual.” Id. at KK-101-02.
Although Thomas asserts that the failure to instruct the jury on the meaning of “intent”
deprived him of due process, he does little to elaborate on the basis of that claim.7 He describes
why he believes he did not have the specific intent to murder Hackett, and argues that the jury
was unable to consider his mens rea defense without the intent instruction. Dkt. 67 at 3-5.
Although Thomas’s pro se petition is entitled to a liberal construction, see Ward, 613 F.3d at
697, Thomas does not draw an adequate connection between the alleged error of refusing to
instruct the jury with the definition of “intent” and the deprivation of his due process rights. See
Verdin v. O’Leary, 972 F.2d 1467, 1475 (7th Cir. 1992) (bare allegations of an unfair trial and
cursory references to “due process” insufficient to articulate federal constitutional claims).
Even if the Court were to regard Thomas’s articulation of his due process claim as
adequate, making the claim cognizable, the outcome would be no different.8
7

The respondent asserts that this claim is procedurally defaulted because Thomas did not
apprise the state supreme court of the claim’s federal nature in his petition for leave to appeal.
Dkt. 59 at 12. To the contrary, Thomas takes up half of his petition for leave to appeal with this
topic. See, e.g., Dkt. 60-2 at 3 (“This court should grant leave to appeal to clarify whether the
circuit court should, at the defense’s request, instruct the jury on the definition of ‘intent’ in the
absence of a question about the definition from the jury…”); id. (“The current requirement that
the instruction should be given only when the jury submits a question regarding the definition
during deliberation does not sufficiently protect the defendant’s constitutional right to due
process …”); id. at 12 (“[T]he circuit court’s refusal of th[e] requested instruction violated
Thomas’s right to due process and trial by jury.”).
8

The appellate court on direct appeal found that Thomas properly preserved his “intent”
instruction claim because he requested the instruction at trial and because he raised the issue in
his supplemental post-trial motion. Dkt. 60-1 at 14. To review the merits of Thomas’s claim, this
Court must examine the last state court to rule on the merits of the issue—the Illinois Court of
Appeals deciding Thomas’s direct appeal after trial. Dkt. 60-1. See Schultz v. Page, 313 F.3d
1010, 1015 (7th Cir. 2002) (“a federal court reviewing a habeas petition should examine the
decision of the last state court to rule on the merits of the issue.”).

15

To raise a successful due process claim, a jury instruction error must “so infect[] the
entire trial that the resulting conviction violates due process.” Garth v. Davis, 470 F.3d 702, 711
(7th Cir. 2006) (citing Estelle, 502 U.S. at 72). Further, the instruction “may not be judged in
artificial isolation, but must be considered in the context of the instructions as a whole and the
trial record.” Estelle, 502 U.S. at 72 (internal quotations and citations omitted). This Court
cannot conclude that the Illinois appellate court’s adjudication of Thomas’s jury instruction
claim “resulted in a decision that was contrary to, or involved an unreasonable application of”
the facts or clearly established federal law, or “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). The appellate court’s decision to deny Thomas’s instruction
claim was reasonable on all counts.
There was no error in denying Thomas’s requested instruction defining “intent.” There
was no requirement, or need, for the court to define “intent” for the jury deliberating Thomas’s
guilt. See, e.g., U.S. v. LaGrou Dist. Systs., Inc., 466 F.3d 585, 592 (7th Cir. 2006) (citations
omitted) (“We have long held that a court need not recite the differences between general and
specific intent.”). Even where instructions do not correctly set out the specific intent requirement
(the instructions did do so in Thomas’s case), the instructions as a whole adequately conveyed
the elements of attempted murder. See Canaan v. McBride, 395 F.3d 376, 391 (7th Cir. 2005)
(even where instructions do not correctly set out specific intent requirement, it is still possible
that instructions as a whole adequately conveyed elements of crime and that the one error did not
“so infect[] the entire trial”). Here, it was eminently reasonable for the appellate court to
conclude that the one withheld instruction defining the meaning of a common term did not taint
the larger context of Thomas’s trial. As the appellate court noted, the jury was instructed in at

16

least two ways about intent: (1) “A person commits the offense of attempt[ed] first degree
murder when he, with the intent to kill an individual, does any act which constitutes a substantial
step towards the killing of an individual” and (2) the state must prove “that the defendant
[performed an act which constituted a substantial step towards the killing of an individual] with
the intent to kill an individual.” Dkt. 60-1 at KK-101-02. Further, the jury made no request for
the definition of intent during its deliberations. Dkt. 60-1 at 16. That the jury showed no
confusion about the meaning of “intent” is a reasonable basis to conclude that Thomas was not
denied a fair trial as a result of the withheld instruction. See People v. Averett, 381 Ill. App. 3d
1001, 1136 (2008) (holding that “intent” instruction was unnecessary where jury “did not
specifically request a definition of the word ‘intent’ or exhibit confusion about the word.”).
Thomas argues that without the instruction defining intent, the jury could not consider
whether he had the “conscious objective” to kill Hackett. Dkt. 67 at 4. He does not explain,
however, how this gloss on the definition of intent was necessary for the jury to understand the
elements of the offense. Nor does he explain why the he needed an instruction defining “intent”
as “conscious objective” in order to argue that he did not have a conscious objective to kill
Hackett. Lawyers are permitted to offer a gloss on jury instructions so long as their explanations
are consistent with the instructions and the common meaning of the terms they use. See, e.g.,
United States v. Castillo, 406 F.3d 806, 820 (7th Cir. 2005) (no error in failure to instruct jury on
meaning of “in furtherance of” due, in part, to fact that the prosecutor accurately defined the
meaning of the term during closing argument). The argument that Thomas did not have the
conscious objective to kill Hackett could have been made with or without the instruction, and in
fact the defense did argue lack of intent, asserting, for example, that to be guilty of attempted
murder “you have to intend to do the act,” and that had Thomas intended to kill Hackett he

17

would have used a bigger knife.9 Dkt. 60-7 at KK-86-87. The jury had ample instruction and
argument with which to apply the “common understanding” of the word “intent,” as the appellate
court reasonably concluded.
2. Claim (5) –Involuntary Intoxication.
In Claim (5), Thomas asserts that he should have been allowed to present the defense of
involuntary intoxication to the jury. Dkt. 45 at 9. Thomas adds that while his direct appeal was
pending, the Illinois Supreme Court decided People v. Hari, in which the court stated, “When
evidence is presented showing a defendant ingested prescribed medication and suffered an
adverse reaction whereby he was unable to control his own will when he committed a criminal
act, a defendant is entitled to a jury instruction on the defense of involuntary intoxication.” 218
Ill. 2d 275, 290 (2006) (quoting Illinois Appellate Court decision in same case).
In Thomas’s case, the Illinois Appellate Court addressed this claim as a potential jury
instruction error, and secondarily as a claim for ineffective assistance of appellate counsel.
Accordingly, this Court will address the claim in the same manner. To the extent Claim (5) is a
jury instruction error, this Court finds that it is not cognizable on federal habeas review. To the
extent Claim (5) is a claim for ineffective assistance of appellate counsel,10 this Court reaches the
9

Thomas’s counsel argued in her closing, “You’ve been told that there is an element in []
attempt[ed] murder of intent, and they must prove that element beyond a reasonable doubt,
intent. You have to intend to do something. The substantial step is not enough. You have to
intend to do the act … First of all, how could he have intended to do anything? He didn’t walk in
there holding his knife open and go for her. He had no intention of doing anything to her at all,
and if he did intend to hurt her, remember the police officer who testified that he went to the
crime scene that day, and he saw the Swiss army knife on the ironing board, and he saw chef
knives in the kitchen. Well, please, if you intend to kill somebody, maybe you ought to go in
there and get one of those great big, huge, gigantic kni[ves] so you can do the job. He didn’t do
that, did he? There was no intention at all. He’s not guilty of trying to kill her, he’s just not.”
Dkt. 60-7 at KK-86-87.
10

Thomas asserts that “Claims 3, 4, 5 are ineffective assistance of appellate counsel, and
due process.” Dkt. 67 at 19.

18

claim on its merits and finds that the state appellate court’s determination was a reasonable
application of Strickland.
Thomas again fails to draw an adequate connection between the claimed jury instruction
error and a deprivation of his due process rights. Thomas does refer to due process at least twice
in his description of Claim (5) in his “Answer.” Dkt. 67 at 22. Further, Thomas relies on the
Illinois Supreme Court’s decision in People v. Hari, in which the court noted that a trial court’s
refusal to instruct a jury can result in the denial of the defendant’s due process rights. 218 Ill. 2d
at 297. Yet Thomas does not assert that the state court committed an error “so serious” that it
was likely an innocent person was convicted. Perruquet, 390 F.3d at 510. Nor does he
extrapolate about the connection between his references to due process and Hari and the trial
court’s refusal to give the involuntary intoxication instruction. Thomas has not asserted enough
in the realm of a violation of federal law to make this claim cognizable in federal court.
Even if Thomas had asserted a cognizable claim, it would fail on the merits. The
appellate court’s decision to deny Thomas’s involuntary intoxication instruction claim was
reasonable under 28 U.S.C. § 2254(d). The facts of Thomas’s case simply did not support this
instruction. Thomas argued to the appellate court that he was involuntarily intoxicated during the
incident because his chronic drug and alcohol abuse caused him to be in a dissociative state. Dkt.
60-3 at 30. He also argued that after voluntarily ingesting drugs and alcohol, he was not fully
aware of what he was doing when he attacked Hackett and that he did not expect or intend that
his drug and alcohol use that day would cause a dissociative state. Id. at 31. The appellate court
noted that Thomas
had a long history of drug and alcohol use. Given that history, the
effects of defendant’s use of cocaine and consumption of alcohol
on the day of the offense cannot be deemed to be unexpected or
unwarned. Nor can it be argued that the effects of such drug and

19

alcohol use was not a conscious effect of defendant’s will or a
result of his free and unrestrained choice.
Id. at 21-22.
The court further rejected Thomas’s argument that the Illinois Supreme Court’s decision
in People v. Hari controlled the outcome. In Hari, the court noted, the defendant had no reason
to know that taking a prescription medication could have adverse effects, but in Thomas’s case,
he could anticipate the effects of drug and alcohol use due to his long experience with abuse. An
intoxicated or drugged person is criminally responsible for conduct unless the condition is
“involuntarily produced.” 720 ILCS 5/6-3. Taking a new prescription medication and suffering
an unforeseeable reaction, which was the case in Hari, is a far cry from a sustained course of
drug and alcohol abuse over thirty years. The effects of alcohol and crack cocaine are well
known and not unanticipated, particularly by someone with Thomas’s admitted extensive
experience with them. It follows that Thomas was not deprived of his due process rights when
the court denied a jury instruction premised on Thomas’s voluntary, not involuntary, ingestion of
drugs and alcohol on the day of the incident. See People v. McMillen, 961 N.E.2d 400, 405 (Ill.
App. Ct. 1st Dist. 2011) (collecting cases and holding that the “knowing, or voluntary, ingestion
of cocaine or other illegal drugs precludes the use of the involuntary intoxication defense”). The
facts, in sum, do not support a defense, or instruction, of involuntary intoxication.
As to Thomas’s claim that his appellate counsel was ineffective for not raising this issue
on direct appeal, the Court reaches the merits and finds that the Illinois Appellate Court’s
application of the Strickland standard11 was reasonable. The appellate court found that it is not
arguable that by failing to raise this issue on appeal, counsel’s performance fell below an

11

The Illinois Appellate Court cited People v. Hodges, 234 Ill. 2d 1, 17 (2009), which in
turn relies on Strickland for its analysis. Dkt. 60-2 at 66.

20

objective standard of reasonableness, and further that appellate counsel would not have been
successful in raising this issue on direct appeal. Dkt. 60-2 at 66.
The Illinois Appellate Court correctly identified the Strickland standard, as articulated in
Hodges, so the only remaining question is whether the court’s application of the standard was
unreasonable. 28 U.S.C. § 2254(d)(1). The Court finds nothing unreasonable about the appellate
court’s application of the Strickland standard. The appellate court reasonably concluded that in
light of Thomas’s voluntary and willing use of drugs and alcohol on the day in question, and his
awareness of the effects of drug and alcohol use because of his long history, Thomas’s claim for
an involuntary intoxication instruction failed. Dkt. 60-2 at 66. Consequently, Thomas could not
show that his appellate counsel was unreasonable, nor could he show that the outcome would
have been different had Thomas’s counsel raised the issue. Id. The state court’s conclusion that
the outcome would be the same had appellate counsel raised the claim on appeal was not an
unreasonable application of the Strickland standard, and therefore Thomas’s ineffective
assistance argument fails on the merits. Id.
B. Claim (2) – Excessive Sentence.
Thomas also argues that his thirty-year sentence for attempted first-degree murder is
excessive. Specifically, he claims that
During sentencing, trial c[our]t considered, that harm was caused.
That is a[n] element of aggravated battery but is implicit i[n] the
offense of attempted murder. Also the greater [and] lesser offense
was put to the jury – from one act – yet, not told they had a choice,
thereby allowing the trial court to impose the maximum sentence
as suggest[ed] by the People.

21

Dkt. 45 at 7 (emphasis in original). Claim (2) is procedurally defaulted and not cognizable on
federal habeas review.12
1. Claim (2) is procedurally defaulted.
Thomas has exhausted his state court remedies without properly asserting a federal claim
at each level of state court review. Claim (2), therefore, is procedurally defaulted.
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. Lewis,
390 F.3d at 1026. In other words, where the petitioner has already pursued his state court
remedies, as in Thomas’s case, “and there is no longer any state corrective process available to
him, it is not the exhaustion doctrine that stands in the path to habeas relief … but rather the
separate but related doctrine of procedural default.” Bolton v. Akpore, 730 F.3d 685, 696 (7th
Cir. 2013). Here, Thomas did not fairly present Claim (2) to the state courts and the opportunity
to raise that claim in state court has passed. See Perruquet, 390 F.3d at 514. He failed to frame
his excessive sentence claim as a federal claim in his direct appeal; he relied solely on state law
and did not make any reference to federal constitutional rights. In his post-conviction appeal,
Thomas did not raise an excessive sentence claim at all. The procedural default therefore bars
this Court from reaching the merits of Thomas’s claim. Since Thomas has made no effort to
show cause and prejudice, or a miscarriage of justice, as an excuse, the procedural default stands
and Claim (2) is denied. Perruquet, 390 F.3d at 514.
To the extent ineffective assistance of appellate counsel is the thrust of Thomas’s claim,
that claim is also procedurally defaulted. Thomas did not raise a claim for ineffective assistance

12

Further, in his reply brief, Thomas seems to waive any argument that his claim is not
procedurally barred or non-cognizable. See Dkt. 67 at 6 (“No contest to the first two defenses,
and I will prove merit.”).

22

of appellate counsel in his direct appeal or post-conviction petition, so no state court has
addressed this federal constitutional claim. Bolton, 730 F.3d at 696 (citing Perruquet, 390 F.3d at
514). And Thomas, again, offers no argument to establish cause or prejudice to excuse the
default, so this claim is barred.
2. Claim (2) is not cognizable.
Even if it were not procedurally defaulted, Thomas’s sentencing claim is not cognizable.
Although Thomas develops Claim (2) under the Fifth Amendment right against selfincrimination, the Sixth Amendment right to effective assistance of appellate counsel, and the
Sixth Amendment right to confrontation (Dkt. 67 at 5-6), Thomas’s sentence is within the range
established by Illinois law. See United States ex rel. Sluder v. Brantley, 454 F.2d 1266, 1269 (7th
Cir. 1972) (the severity of a sentence “is not sufficient grounds for relief on federal habeas
corpus” if the sentence is within the range established by Illinois law); see also United States v.
Vasquez, 966 F.2d 254, 257 (7th Cir. 1992) (holding that unless trial court relied on improper
criteria or unreliable information in imposing the sentence, habeas relief is not warranted).
Thomas was convicted of attempted first-degree murder and was sentenced to a thirty-year
prison term. Under the relevant Illinois sentencing statutes,13 the trial court could have sentenced
Thomas to between six and thirty years of imprisonment, choosing for Thomas the maximum
possible penalty of thirty years. Since Thomas’s sentence was within the statutory range, Claim
(2) is not cognizable on federal habeas review.
Thomas asserts that the trial court relied on improper criteria, as the petition suggests an
argument that his convictions violated the “one act – one crime” rule in Illinois, leading to an
13

See 720 ILCS 5/8-4(c)(1) (“The sentence for attempt to commit first degree murder is
the sentence for a Class X felony”) and 730 ILCS 5/5-4.5-25(a) (for class X felonies: “The
sentence of imprisonment shall be a determinate sentence of not less than 6 years and not more
than 30 years”).

23

excessive sentence. This argument, however, is based solely on state law and so it is also not
cognizable on federal habeas review. See, e.g., U.S. ex rel. King v. Cahill-Masching, 169 F.
Supp. 2d 849, 854-55 (N.D. Ill. 2001) (Castillo, J.) (rejecting “one act-one crime” claim because
it relied on state law only).
The Court further discerns in Thomas’s pleadings an argument that his sentence was
based on inadmissible evidence (prior bad acts), see Dkt. 1 at 29 (“Defendant request[s] a new
resentencing hearing without inadmissible evidence”), and an additional layer of argument
related to ineffective assistance of Thomas’s appellate counsel. See Dkt. 67 at 5-7 (“appellate
counsel had a duty to investigate hearsay evidence admitted during sentencing”). To the extent
inadmissible evidence at sentencing is the thrust of Claim (2), then the Court returns to the
requirement that Thomas tie the facts he alleges to a deprivation of due process. See Perruquet,
390 F.3d at 512 (the petitioner must “draw[] enough of a connection between his right to due
process and the trial court’s (alleged) evidentiary and instructional errors to render his claim
cognizable on habeas review.”). Without such a tie—which Thomas fails to provide—Thomas’s
claim that certain evidentiary errors occurred at his sentencing hearing, leading the trial court to
impose an excessive sentence, is not cognizable on federal habeas review. And since hearsay
evidence is permitted at sentencing and Thomas does not challenge the truth of the prior bad acts
at issue, he would have no claim in any event. See United States v. Thomas, 280 F.3d 1149, 1154
(7th Cir. 2002) (“Hearsay is permitting at sentencing as long as it is reliable and the defendant is
afforded an opportunity to rebut the evidence.”).
Thomas further argues, relying on Estelle v. Smith, 451 U.S. 454 (2010), that his Fifth
Amendment right against self-incrimination was violated when expert witness Dr. Jonathan
Lipman testified to Thomas’s prior bad acts at sentencing. But Dr. Lipman was Thomas’s

24

retained expert witness. Dkt. 60-9 at OO-4; OO-12. When the State asked Dr. Lipman questions
about Thomas’s prior bad acts during cross-examination, Thomas’s attorney objected, arguing
that Dr. Lipman was called as an expert on drugs and alcohol intake, and not as a “mitigation
expert.” Id. at OO-32-33. The court overruled the objection. Id. Thomas’s case is unlike Estelle,
in which the Supreme Court held that when a defendant neither initiates a psychiatric evaluation
nor attempts to introduce any psychiatric evidence, his compelled statements to a psychiatrist
cannot be used against him. 451 U.S. at 468. Whether a “mitigation expert” or not, Thomas was
not compelled to tell Dr. Lipman about his prior bad acts; he made voluntary statements to
Lipman that were admissible at sentencing. There can therefore be no violation of Thomas’s
right against self-incrimination. Dkt. 60-9 at OO-12. Thomas’s case is also unlike Kansas v.
Cheever, in which the Supreme Court recently held that the prosecution may offer evidence from
a court-ordered psychological examination for the limited purpose of rebutting the defendant’s
expert. 134 S.Ct. 596 (2013). Thomas’s interview by Dr. Lipman, by contrast, was not courtordered and completely voluntary. Dkt. 60-9 at OO-5 (explaining that Dr. Lipman was retained
by Thomas’s counsel for the purpose of reviewing records and interviewing Thomas). The State,
then, was permitted to elicit testimony from Dr. Lipman at sentencing regarding statements
Thomas previously made to Lipman.
Thomas also asserts that the Confrontation Clause of the Sixth Amendment was violated
when he was not permitted to cross-examine witnesses at sentencing who testified about his
future dangerousness. Dkt. 67 at 8-9. The Confrontation Clause, however, does not apply at
sentencing. See United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005).
III.Claims Reviewed on their Merits – Claims (3) and (4).

25

That leaves two claims for resolution on the merits—(3) and (4). As to these claims, the
rulings of the Illinois Appellate Court were neither unreasonable applications of federal law nor
unreasonable determinations of the facts in light of the evidence presented. 28 U.S.C. § 2254(a).
A. Claim (3) – Juror Note.
Thomas asserts that during jury deliberations, the court considered a note from the jury
after Thomas’s counsel waived his appearance, resulting in an ex parte communication between
the judge and jury. The trial transcript reflects the issue Thomas raises:
THE COURT: All right. In the manner of Mr. Thomas, do you
want him brought out?
MS. CARBELLOS: No, I’ll waive his presence.
THE COURT: At 2:59, there was a note received from the jury,
“Was his blood for drug alcohol level measured at the hospital,”
question mark.
MS CARBELLOS: I would respectfully say that you should
respond, “You have heard all the evidence, keep deliberating.”
MR. BRASSIL: State concurs.
THE COURT: My response will be, “Jurors, you have received
all,” and I’ve underlined “all,” “all of the evidence admitted at
trial and will have to rely on that evidence in arriving at your
verdicts. Please continue your deliberations.”
MR. CARBELLOS: That’s fine.
Dkt. 60-7 at KK-106-07. Thomas asserts that he would have helped his defense counsel if he
were present for the discussion, adding “I knew my blood was drawn twice at the hospital.” Dkt.
45 at 8.
The Illinois Appellate Court reached the merits of the jury note claim. The court found it
to be “problematic” that there was no evidence that Thomas voluntarily, knowingly, and
intelligently waived his right to be present during the courtroom discussion of the note. Dkt. 60-2
at 60. The court also found, however, that Thomas’s absence alone did not prejudice him because
“that was the only proper response [to the note] under the circumstances.” Id. at 61. The court

26

concluded that the circuit court did not err in dismissing Thomas’s claim. Id. at 62. This Court
finds that the state court’s ruling was not an unreasonable application of federal law.
A defendant has a Sixth Amendment right to be present at all critical stages of the
criminal proceedings. See Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004) (citing Illinois v.
Allen, 397 U.S. 337, 338 (1970)). Under Illinois law, jury deliberations are a critical stage of the
trial affecting substantial rights. See People v. Childs, 159 Ill. 2d 217, 234 (1994). This right does
not extend to every interaction between the court and the jury. See Winters v. Miller, 274 F.3d
1161, 1168 (7th Cir. 2001) (citation omitted). An ex parte communication between the judge and
the jury creates a rebuttable presumption of error, but it does not constitute per se grounds for
reversal. Id. (citation omitted). Thomas must still prove that the substance of the communication
resulted in prejudice and that the defendant’s presence “has a relation, reasonably substantial, to
the fullness of his opportunity to defend against the charge.” Moore, 368 F.3d at 940 (quoting
Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). Specifically, the Seventh Circuit has
noted, “we look to see if the communications had a prejudicial effect on the defendant and
rendered the trial ‘fundamentally unfair.’” Id. (citation omitted).
As mentioned above, Thomas takes issue with his trial attorney’s waiver of his
appearance during the courtroom discussion about the jury note, and he adds that he “would have
help[ed] in my defense, I knew my blood was drawn twice at the hospital.” Dkt. 45 at 8. In his
reply brief, Thomas states that he learned of the jury note from reading the trial record, and that
his absence during discussion of the note “had a substantial and injurious effect on the jur[y]’s
verdict.” Dkt. 67 at 11, 14. The purpose of the prohibition against ex parte communications is to
prevent the judge from improperly influencing the jury. See Winters, 274 F.3d at 1168 (citation
omitted). Significantly, when a jury requests additional information or clarification, and that

27

request is denied, any error by the trial court is rebutted. Id. (citation omitted). In this instance,
the jury’s request for more information about whether Thomas’s blood-alcohol level was
measured at the hospital was effectively denied—the judge told counsel that he would respond to
the jury with the statement “Jurors, you have received all of the evidence admitted at trial and
will have to rely on that evidence in arriving at your verdicts. Please continue your
deliberations.” Dkt. 60-7 at KK-107. Even if Thomas were present, he could not have
successfully changed the judge’s denial of additional evidence, because no new evidence is
permitted once the jury begins to deliberate. See Illinois Pattern Instruction 1.01(9); see also Dkt.
60-7 at KK-97 (“The evidence which you should consider consists only of the testimony of the
witnesses and the exhibits which the court has received.”) Any error by the trial court is
harmless; Thomas’s presence, even if improperly waived, would not have changed the outcome
of his trial. Accordingly, this Court concurs with the state court’s determination that Thomas’s ex
parte claim is without merit.
Alternatively, Thomas characterizes this claim as one for ineffective assistance of
appellate counsel. See Dkt. 67 at 13 (“Post-conviction counsel was only concern[ed] with getting
me to second stage of the act … right to effective assistance of counsel”); see also id. at 19
(“Claims 3, 4, 5 are ineffective assistance of appellate counsel”). This argument was not
addressed by the appellate court on its merits, so if that is the thrust of Claim (3), it is
procedurally defaulted. See Lewis, 390 F.3d at 1025 (a claim is procedurally defaulted if a habeas
petitioner fails to assert his federal claim at each level of state court review). And in any event, as
already noted, Thomas can identify no prejudice arising from the Court’s handling of this jury
note, so there would be no basis to conclude that he received ineffective assistance of appellate

28

counsel as the result of his trial attorney’s waiver of his presence during the discussion of the
note.
B. Claim (4) – Sufficiency of the Evidence.
In his fourth claim, Thomas asserts that his direct appellate counsel was ineffective for
failing to argue that the evidence at trial was insufficient to establish that Thomas had the
specific intent to kill Hackett.14 The Court will reach the merits of this claim, since it was raised
in Thomas’s state post-conviction review and it was addressed by the Illinois Appellate Court,
which also reached the claim on its merits.
The appellate court applied Strickland as the relevant standard, which it stated as: “a
petition alleging ineffective assistance may not be summarily dismissed if (i) it is arguable that
counsel’s performance fell below an objective standard of reasonableness and (ii) it is arguable
that the defendant was prejudiced.” Dkt. 60-2 at 54 (citing People v. Hodges, 234 Ill. 2d 1
(2009)). The court noted that Thomas “had the opportunity to use his weapon, a Swiss Army
knife, and did use it to inflict life-threatening injuries on his victim.” Id. at 57. The court also
noted that because Thomas’s actions were “deliberate” and he was “aware of the severity of the
injuries he inflicted,” he had the specific intent to kill Hackett. Id. at 58. Accordingly, the court
concluded that it was not arguable that, by deciding not to raise this issue on appeal, his appellate

14

Although Thomas’s amended habeas petition does not identify this claim clearly on its
face, the Court discerns the thrust of this claim from other pleadings and opinions. In his state
post-conviction brief before the Illinois Appellate Court, Thomas argued that his appellate
counsel was “ineffective for failing to raise the argument that the evidence was insufficient to
establish that Thomas had the specific intent to kill Hackett.” Dkt. 60-3 at 2. In Thomas’s reply
brief in federal court, he cited to the section of the Illinois Appellate Court decision pertaining to
ineffective assistance. Dkt. 67 at 14-15. Thomas goes on to describe certain evidence that he
believes weakens the argument that he had the specific intent to kill Hackett. Id. at 15-19. See
also id. at 19 (“Claims 3, 4, 5 are ineffective assistance of appellate counsel”). In sum, this Court
believes Thomas is making an ineffective assistance of appellate counsel argument and will
address the claim in that context.

29

counsel’s performance fell below the standard of reasonableness. Id. The court further held that
because the outcome of Thomas’s direct appeal would not have been different had his appellate
counsel raised the specific intent issue, it was not arguable that Thomas was prejudiced by his
appellate counsel’s decisions. Id.
The Illinois Appellate Court correctly identified Strickland as the relevant standard, so
the only remaining question is whether the court’s application of Strickland was unreasonable.
28 U.S.C. § 2254(d)(1). The Court finds nothing unreasonable about the appellate court’s
application of Strickland to Thomas’s claim.
It was not unreasonable for the state court to conclude that Thomas’s appellate counsel's
performance was not deficient when he opted not to assert an argument on appeal that had
virtually no chance of success. The appellate court reasonably concluded that in light of the
overwhelming evidence of Thomas’s deliberate actions, Thomas could not satisfy either prong of
Strickland as a matter of law. The appellate court considered the evidence presented at trial that
related to Thomas’s intent—his expressed intent to kill Hackett, his use of a Swiss Army knife to
inflict life-threatening injuries on Hackett through multiple stabbings, including the neck, and
Thomas’s incriminating statements to police officers upon his arrest—and found nothing to
suggest that the outcome would have been different had Thomas’s appellate counsel raised the
issue of insufficient evidence of specific intent on appeal.
Thomas asserts several facts in support of his claim, including that Hackett’s injuries,
although severe, were not life-threatening, that he did not pursue Hackett but stopped to call 911,
and that Thomas decided himself, without outside influence, to prevent himself from killing
Hackett. Dkt. 45 at 8; Dkt. 67 at 14-18. But evidence on these points was presented to the jury,
and it was the within the jury’s province to reject Thomas’s contentions regarding them. The

30

jury, for example, was entitled to credit the testimony of Dr. Yario, who testified that the injuries
Hackett sustained were life threatening, over any contrary evidence Thomas offered. And the
jury need not have inferred from the fact that Thomas broke off his attack, after stabbing and
attempting to stab Hackett multiple times, to call 911 that he did not intend to kill Hackett while
he was stabbing her. None of these facts offers a sufficient contrast to the evidence cited by the
appellate court. To have succeeded on appeal with respect to an argument about the sufficiency
of the evidence, Thomas would have been required to establish that no reasonable jury could
have concluded that he intended to kill Hackett when he told her, “Now see, I have to kill you”
and then stabbed her in the neck. See People v. Bell, 327 Ill. App. 3d 238, 240-41 (2002). His
appellate counsel’s decision not to advance an argument that dubious was not, by any reckoning,
unreasonable, and the state court’s conclusion that the outcome would be the same had appellate
counsel raised the specific intent argument on appeal was not an unreasonable application of
Strickland. Thomas’s sufficiency of the evidence claim was doomed to fail and therefore
Thomas’s ineffective assistance of counsel claim must suffer the same fate.
IV. Certificate of Appealability
Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section 2254
Proceedings, this Court “must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” A state prisoner is required to obtain a certificate of appealability
(from either the district court or from the appellate court) before the court of appeals has
jurisdiction to rule on the merit of habeas appeals. 28 U.S.C. § 2253(c)(1); Miller–El v. Cockrell,
537 U.S. 322, 336 (2003). A certificate should issue when “the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order to satisfy this
standard, “[a] prisoner must show that reasonable jurists would find the district court's

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assessment of the constitutional claim and any antecedent procedural rulings debatable or
wrong.” Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011); see Slack v. McDaniel, 529 U.S.
473, 484 (2000). Here, Thomas cannot make a substantial showing of the denial of a
constitutional right, as it is not fairly debatable that the state court’s determinations about the jury
note claim and the sufficiency claim were unreasonable and the appellate court reasonably
applied Strickland to Thomas’s ineffective assistance of counsel claims. Nor is there reason to
conclude that it is fairly debatable whether Thomas procedurally defaulted numerous claims and
presented non-cognizable claims raising matters of state law. Therefore, the Court declines to
enter a certificate of appealability.
***
For the reasons stated above, the Court denies Thomas’s petition for writ of habeas
corpus and declines to issue a certificate of appealability.

John J. Tharp, Jr.
United States District Judge

Date: December 23, 2013

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