Lockhart v. Hulick

Filing 55

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 6/9/2011:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES ex rel. IAN
LOCKHART (#R18787),

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Petitioner,
v.
DAVE REDNOUR,1 Warden, Menard
Correctional Center,
Respondent.

Case No. 08 C 2374

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Before the Court is Petitioner Ian Lockhart’s amended petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254(d).2 For the following reasons, the Court denies Lockhart’s
amended habeas petition. Further, the Court declines to certify any issues for appeal pursuant to
28 U.S.C. § 2253(c)(2).
BACKGROUND
Lockhart does not present clear and convincing evidence challenging the statement of
facts in the last state court decisions to address his arguments on the merits, which include the
Illinois Appellate Court’s opinions on direct and post-conviction appeal, and thus the Court
presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1);
Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010). The Court therefore adopts the underlying

1

The Court substitutes Dave Rednour, the current Warden of the Menard Correctional
Center where Lockhart is incarcerated, as the Respondent. See Fed.R.Civ. P. 25(d).
2

On April 19, 2011, the Court granted Lockhart’s motion for an extension of time to
file his reply brief on or before June 1, 2011. To date, Lockhart has failed to file his reply brief.

facts as set forth by the Illinois Appellate Court in People v. Lockhart, No. 3-03-0214
(Ill.App.Ct. 2005) (unpublished) and People v. Lockhart, No. 3-06-0084 (Ill.App.Ct. 2007)
(unpublished).
I.

Factual Background
On August 30, 2000, Lockhart, Keith Bland, Jr. (“Keith Jr.), and Christopher Scott,

Lockhart’s brother-in-law and cousin respectively, visited the residence of Delores and Keith
Bland, Sr. (“Keith Sr.”). Delores and Keith Sr. were Keith Jr.’s stepmother and father. The
Blands lived with their sons, Kory Bland and Kenneth Gordon. Keith Sr. had evicted Keith Jr.
from the home over a year before August 2000, therefore, it was unusual for Keith Jr. to stop by
unannounced. Keith Jr., Scott, and Lockhart claimed the purpose of their visit was to show
Keith Jr.’s Navy discharge papers to Delores. Their actual purpose was to determine the Blands’
schedules and whether four guns were still at the residence.
The next day, August 31, 2000, Keith Jr., Scott, and Lockhart returned to the Bland
residence to take the guns that were there. While they were in the home, Delores returned.
When she asked the men what they were doing there, Scott shot her. Later that evening, Kory
Bland returned home and entered the residence through the back door that was ajar. Thereafter,
he found the home ransacked and his mother dead on the living room floor. Kory also noticed
that three of the four guns were missing, as well as a VCR and TV antenna. The same model TV
antenna was later found at the home of Lockhart’s wife.
Police Detective Michael Guilfoyle interviewed Lockhart twice – once on the day after
Delores Bland’s murder and again about three and a half months later. During the second
interview, Lockhart changed numerous aspects of his story about what had occurred on the day

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of the murder. Lockhart, for example, originally told the police detectives that he spent the
afternoon of the murder with his wife at his mother-in-law’s home, but at the second interview
he told police that he went to his mother-in-law’s home in the morning to obtain money to
purchase a birthday gift for his wife – a used VCR and TV antenna – and then spent the rest of
the afternoon and evening at his wife’s home. Also, Lockhart gave Detective Guilfoyle different
dates for the purchase of both the VCR and TV antenna and claimed that he purchased the VCR
on the street, but got rid of it a few days later because he thought the police would check the
serial number. Also, Lockhart initially told Detective Guilfoyle that he wrapped his wife’s
birthday presents, but later stated that he set up the VCR and TV antenna for her to use on her
birthday. Meanwhile, Lockhart implicated Scott and Keith Jr. in Delores Bland’s murder
At Lockhart’s trial, Lockhart’s cell-mate Jason Smith testified that he and Lockhart
discussed Lockhart’s involvement in Delores Bland’s murder. Lockhart told Smith that he,
Keith Jr., and Scott went to the Blands’ home to steal the guns intending to make the theft appear
to be a residential burglary by ransacking the home and stealing other items. Lockhart told
Smith that they needed the guns because they were robbing people for drugs and money. He
also told Smith that he took the Blands’ VCR and TV antenna to make it look like a residential
burglary and then gave them to his wife as a birthday gift.
At trial, the State also offered the prior testimony of Victor McClendon from Keith Jr.’s
trial, as well as McClendon’s recorded statement made to the Will County police. To clarify, at
Keith Jr.’s trial, McClendon testified that in early September 2000, Lockhart and Keith Jr.
approached him in Chicago and asked him if he wanted to purchase a handgun and shotgun. At
Lockhart’s trial, however, McClendon could not remember any details about Lockhart trying to

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sell him guns. Although he recalled testifying at Keith Jr.’s trial in May 2002, McClendon said
he could not recall any specific details or the events about which he testified. During an offer of
proof at Lockhart’s trial, McClendon stated that he had previously testified against Keith Jr., but
when the State asked him the same questions that he had answered at that trial, McClendon
testified that he could not recall talking with Lockhart after the murder or the substance of his
prior testimony. McClendon also testified that he was not going to answer any further questions.
The State then presented an offer of proof regarding McClendon’s prior videotaped
statement made to Will County police detectives. After the videotape was played in an effort to
refresh McClendon’s recollection, McClendon admitted that he recognized himself in the tape,
but did not remember making the tape or the substance of his statements on the tape. The jury
was then brought back into the courtroom and McClendon testified that he admitted that he had
previously testified under oath in May 2002. He also testified that he could not recall various
statements regarding a conversation he had with Lockhart in September 2000 about buying guns.
Also, he testified that he could not remember the events about which he had testified.
Thereafter, a transcript of McClendon’s prior testimony was then read to the jury. The
transcript established that McClendon had testified that Lockhart and Keith Jr. approached him
and attempted to sell him guns. The State also played McClendon’s videotaped statement. On
the tape, McClendon stated that Lockhart told him that he was with Scott and Keith Jr. when
Scott killed Delores Bland and that they had gone to the Blands’ house to steal guns.
II.

Procedural Background
Following a 2002 trial in Will County, Illinois, a jury convicted Lockhart of first degree

murder, armed robbery, and residential burglary. On March 13, 2003, the trial court merged the

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residential burglary count into a felony murder charge and sentenced Lockhart to terms of fortyone years for murder and sixteen years for armed robbery – to be served consecutively.
Lockhart filed a timely notice of appeal on March 14, 2003 in which he appealed his
convictions to the Illinois Appellate Court bringing the following claims: (1) the trial court
improperly admitted into evidence the prior statements and testimony of Victor McClendon in
violation of 725 ILCS 5/115-10.2 because McClendon was not available for cross-examination
as required by that statute; (2) the trial court failed to adequately inquire into Lockhart’s claims
that he was denied effective assistance of counsel during pretrial proceedings; and (3) the trial
court abused its discretion in sentencing Lockhart to consecutive prison terms of forty-one and
sixteen years’ imprisonment. The Illinois Appellate Court affirmed Lockhart’s convictions on
March 14, 2005.
Lockhart, through counsel, then filed a petition for leave to appeal (“PLA”) in the
Supreme Court of Illinois in which he claimed that the trial court improperly admitted
McClendon’s testimony under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004),3 because McClendon did not appear for cross-examination. The Supreme
Court of Illinois denied Lockhart’s PLA on May 25, 2005. Lockhart did not file a petition for a
writ of certiorari in the United States Supreme Court.
On November 17, 2005, Lockhart filed a pro se post-conviction petition pursuant to 725
ILCS 5/122-1, et seq., in the Circuit Court of Will County. Lockhart brought the following
claims in his post-conviction petition: (1) he was denied due process because the State

3

The Supreme Court decided Crawford on March 8, 2004, during the pendency of
Lockhart’s direct appeal. In fact, Lockhart addressed the Crawford decision in his reply brief
filed on August 9, 2004.
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knowingly
used false information to suggest his motive for committing the crimes; (2) he was denied due
process because he was required to wear an electronic stun belt during trial pursuant to the Will
County Sheriff’s Department policy without the trial judge considering whether the belt was
necessary; (3) his trial counsel was constitutionally ineffective for failing to object to the stun
belt; (4) appellate counsel was constitutionally ineffective for failing to raise on direct appeal
that he was denied a fair trial due to (a) the State’s improper comments during closing
arguments, including comments that McClendon and Lockhart were friends and that McClendon
had no mental health issues; (b) the cumulative effect of the prosecutor’s improper comments,
(c) the trial court’s failure to instruct the jury to disregard Lockhart’s courtroom behavior during
the testimony of the government’s witnesses, and (d) the State’s failure to correct McClendon’s
statement that his testimony was not pursuant to an agreement with the prosecution; and (5)
appellate counsel was ineffective for failing to raise on direct appeal the claim that trial counsel
was ineffective for failing to investigate evidence that might have impeached the State’s witness
or that might have rebutted the State’s theory regarding Lockhart’s motive. On January 9, 2006,
the trial court dismissed Lockhart’s pro se post-conviction petition as frivolous and patently
without merit. See 725 ILCS 5/122-2.1.
Lockhart, represented by counsel, then appealed the dismissal of his post-conviction
petition raising the following claims to the Illinois Appellate Court: (1) he was denied due
process because he was required to wear an electronic stun belt during the trial pursuant to the
Will County Sheriff’s Department policy without the trial judge considering whether the belt
was necessary; and (2) trial counsel was ineffective for failing to object to the stun belt. The

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Illinois Appellate Court affirmed the dismissal of Lockhart’s post-conviction petition on
September 17, 2007. Thereafter, Lockhart filed a pro se motion for substitution of appellate
counsel asserting that his post-conviction appellate counsel refused to present certain claims
raised in his pro se post-conviction petition. The Illinois Appellate Court denied Lockhart’s
motion on March 26, 2007.
Lockhart, by counsel, then filed a PLA to the Supreme Court of Illinois setting forth the
following claims: (1) he was denied due process because he was required to wear an electronic
stun belt during the trial pursuant to the Will County Sheriff’s Department policy without the
trial judge considering whether the belt was necessary; and (2) his trial counsel was ineffective
for failing to object to the stun belt. The Supreme Court of Illinois denied Lockhart’s PLA on
November 27, 2007.
On April 25, 2008, Lockhart filed his original pro se petition for a writ of habeas corpus
in this matter. On December 12, 2008, Judge Andersen, the presiding judge at that time, granted
Lockhart’s motion to stay the federal proceedings to allow Lockhart to exhaust a new claim
through a successive post-conviction petition in the Illinois courts. In particular, on February 9,
2009, Lockhart filed a motion for leave to file a successive post-conviction petition in the Circuit
Court of Will County arguing that he was denied effective assistance of counsel in securing his
rights under the Illinois Speedy Trial Act, 725 ILCS 5/103-5(c). The trial court denied Lockhart
leave to file a successive petition. Lockhart appealed and his appointed counsel filed a motion
for leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95
L.Ed.2d 539 (1987). Lockhart then filed a written objection. Thereafter, the Illinois Appellate
Court granted counsel’s motion to withdraw and affirmed the trial court’s judgment because

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Lockhart had failed to meet the cause and prejudice test under Illinois law permitting Lockhart to
file a successive post-conviction petition. See 725 ILCS 5/122-1(f). Lockhart then filed a PLA
in the Supreme Court of Illinois claiming that his trial and appellate counsel were
constitutionally ineffective for failing to secure his rights under the Illinois Speedy Trial Act,
725 ILCS 5/103-5(c). On November 24, 2010, the Supreme Court of Illinois denied Lockhart’s
PLA.
III.

Habeas Petition
After the Executive Committee of the Northern District of Illinois reassigned this matter

to the Court on October 29, 2010 – due to Judge Andersen’s retirement from the bench – the
Court granted Lockhart’s motion to lift the stay of his habeas petition on January 4, 2011.
Lockhart then filed an amended pro se petition for habeas corpus relief on February 23, 2011.
Construing his pro se allegations liberally, see McGee v. Bartow, 593 F.3d 556, 565-66 (7th Cir.
2010), Lockhart’s amended habeas petition includes the following claims: (1) he was denied his
rights under the Confrontation Clause; (2) he was denied due process based on the trial court
requiring him to wear an electronic stun belt that caused him to not testify in his own defense;
(3) his trial counsel was ineffective for failing to object to the requirement that he wear a stun
belt; (4) he was denied due process because the State (a) knowingly used false information to
suggest his motive for the crimes, (b) suggested that McClendon’s memory loss was because he
was friends with Lockhart, and (c) suggested that McClendon did not have mental health
problems; and (5) appellate counsel was ineffective.
LEGAL STANDARDS
I.

Habeas Standard

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“[I]n all habeas corpus proceedings under 28 U.S.C. § 2254, the successful petitioner
must demonstrate that he ‘is in custody in violation of the Constitution or laws or treaties of the
United States.’” Brown v. Watters, 599 F.3d 602, 611 (7th Cir. 2010) (quoting 28 U.S.C. §
2254(a)). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), habeas
relief cannot be granted unless the state court’s decision was contrary to, or an unreasonable
application of federal law clearly established by the Supreme Court. See Williams v. Taylor, 529
U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Brown v. Finnan, 598 F.3d 416, 421
(7th Cir. 2010). In Williams, the Supreme Court explained that 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 this Court on a question of law” or “if the state court confronts facts
that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a
result opposite to ours.” Williams, 529 U.S. at 405; see also Brown, 598 F.3d at 421-22.
Under the “unreasonable application” prong of the AEDPA standard, 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. See Williams, 529 U.S. at 407; Brown, 598
F.3d at 422. “A state court’s decision is ‘unreasonable’ within the meaning of § 2254(d)(1) only
if it is ‘so erroneous as to be objectively unreasonable.’” Bennett v. Gaetz, 592 F.3d 786, 790
(7th Cir. 2010) (citation omitted); see also Williams, 529 U.S. at 410 (“unreasonable application
of federal law is different from an incorrect application of federal law”) (emphasis in original);
Wood v. Allen, 130 S.Ct. 841, 849 (2010) (state court’s factual finding not unreasonable “merely
because the federal habeas court would have reached a different conclusion in the first
instance.”). To be considered objectively unreasonable, a state court’s decision must be “well

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outside the boundaries of permissible differences of opinion.” Bennett, 592 F.3d at 790 (citation
omitted). Put differently, to be reasonable, a state court’s decision must be “at least minimally
consistent with the facts and circumstances” of the case. Williams v. Thurmer, 561 F.3d 740,
746 (7th Cir. 2009).
II.

Exhaustion and Procedural Default
Before bringing a habeas claim in federal court, a habeas petitioner must exhaust all

remedies available to him in state court. See Gonzales v. Mize, 565 F.3d 373, 380 (7th Cir.
2009); 28 U.S.C. § 2254(b)(1)(A). In particular, a habeas petitioner must fully and fairly present
his federal claims to the state courts before he files his federal habeas petition. See O’Sullivan v.
Boerckel, 526 U.S. 838, 845, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Sturgeon v. Chandler,
552 F.3d 604, 610 (7th Cir. 2009). “A procedural default occurs where a habeas petitioner ‘has
exhausted his state court remedies without properly asserting his federal claim at each level of
state court review.’” Crockett v. Hulick, 542 F.3d 1183, 1192 (7th Cir. 2008) (citation omitted).
Procedural default precludes federal court review of a petitioner’s habeas claims. See Johnson v.
Pollard, 559 F.3d 746, 752 (7th Cir. 2009).
A habeas petitioner may overcome procedural default by demonstrating cause for the
default and actual prejudice or by showing that the Court’s failure to consider the claim would
result in a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536, 126 S.Ct.
2064, 165 L.Ed.2d 1 (2006); Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991). The Supreme Court defines cause sufficient to excuse procedural default as
“some objective factor external to the defense” which prevents a habeas petitioner from pursuing
his constitutional claim in state court. See Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct.

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2639, 91 L.Ed.2d 397 (1986); see also Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010). A
fundamental miscarriage of justice occurs when a petitioner establishes that “a constitutional
violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477
U.S. at 496; see also Smith, 598 F.3d at 387-88.
ANALYSIS
I.

Procedurally Defaulted Claims
A.

Independent and Adequate State Procedural Grounds

In response to Lockhart’s habeas petition, Respondent maintains that Lockhart’s claim
that the state trial court violated his due process rights by requiring him to wear an electronic
stun belt during trial is procedurally defaulted. More specifically, Respondent asserts that the
post-conviction Illinois Appellate Court decided this issue on independent and adequate state
procedural grounds. To clarify, “[f]ederal habeas corpus relief from a state conviction is not
available when the decision rests on a state procedural ground independent of any federal issue
and adequate to support the judgment.” Kerr v. Thurmer, 639 F.3d 315, 321 (7th Cir. 2011).
In making its determination on this issue, the Illinois Appellate Court reviewed this claim
for plain error because Lockhart did not object to the alleged error at trial or raise this issue in his
post-trial motion. (Ex. I, 9/17/2007, Order, at 6-8.) In doing so, the appellate court concluded
that Lockhart did not establish plain error requiring the reversal of the trial court’s summary
dismissal of his post-conviction petition. (Id. at 9.) Because the Illinois court relied upon the
procedural bar of waiver to dispose of this claim, the state law ground is independent under the
Kerr standard. See Kaczamerk v. Rednour, 627 F.3d 586, 592 (7th Cir. 2010). The state law
ground of waiver is also adequate because waiver is a firmly established procedure and is a

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regularly followed state practice. See id. at 592. Therefore, Lockhart has procedurally defaulted
his habeas claim that the trial court violated his due process rights by requiring him to wear an
electronic stun belt during trial.
B.

One Complete Round of State Court Review
1.

Due Process Claim

Next, Lockhart has procedurally defaulted his claim that the State denied him due process
because the State (a) knowingly used false information to suggest his motive for the crimes, (b)
suggested that McClendon’s memory loss was because he was friends with Lockhart, and (c)
suggested that McClendon did not have mental health problems. In particular, Lockhart failed to
assert these claims through one complete round of state court review. See Byers v. Basinger, 610
F.3d 980, 985 (7th Cir. 2010) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct.
1728, 144 L.Ed.2d 1 (1999)). Indeed, although Lockhart brought these claims in his postconviction petition, he did not appeal them in his post-conviction appeal and did not include
them in his post-conviction PLA to the Supreme Court of Illinois. Instead, the only claims he
brought in his post-conviction PLA were that he was denied due process because he was
required to wear a stun belt during trial and that his trial counsel was constitutionally ineffective
for failing to object to the stun belt at trial.
2.

Ineffective Assistance of Appellate Counsel

Similarly, Lockhart procedurally defaulted his ineffective assistance of appellate counsel
claim. Specifically, Lockhart failed to present his ineffective assistance of appellate counsel
claim through one complete round of state court review because he did not bring this claim in his
post-conviction appeal or in his post-conviction PLA to the Supreme Court of Illinois. As such,

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Lockhart procedurally defaulted these claims barring the Court from reviewing the claim’s
merits. See McGee v. Bartow, 593 F.3d 556, 565 (7th Cir. 2010).
C.

Exceptions to Procedural Default
1.

Cause and Prejudice

A claim of ineffective assistance of counsel can establish cause for procedural default.
See Promotor v. Pollard, 628 F.3d 878, 887-88 (7th Cir. 2010). Because Lockhart procedurally
defaulted his ineffective assistance of appellate counsel claim and petitioners do not have a
constitutional right to counsel in collateral proceedings, the Court turns to whether Lockhart’s
trial counsel’s ineffectiveness caused his procedurally default. See id.; Lewis v. Sternes, 390
F.3d 1019, 1026 (7th Cir. 2004); 28 U.S.C. § 2254(i). As discussed in detail below, Lockhart
has failed to establish that his trial counsel was constitutionally ineffective, and thus trial
counsel’s performance cannot fulfill the “cause” requirement under the cause and prejudice
exception to his procedurally defaulted claims. See Promotor, 628 F.3d at 887-88; McGee, 593
F.3d at 563-64.
2.

Miscarriage of Justice Exception

The “fundamental miscarriage of justice exception” concerns actual innocence and
provides a gateway for the Court to review the merits of Lockhart’s procedurally defaulted
claims. See Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993).
“The fundamental miscarriage of justice exception requires ‘the habeas petitioner to show that a
constitutional violation has probably resulted in the conviction of one who is actually innocent.
To establish the requisite probability, the petitioner must show that it is more likely than not that
no reasonable juror would have convicted him in the light of the new evidence.’” Smith v.

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McKee, 598 F.3d 374, 387-88 (7th Cir. 2010) (quoting Schlup v. Delo, 513 U.S. 298, 327, 115
S.Ct. 851, 130 L.Ed.2d 808 (1995)). A petitioner must support his actual innocence allegations
“with new reliable evidence – whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence – that was not presented at trial.” Schlup, 513
U.S. at 324; Woods v. Schwartz, 589 F.3d 368, 377 (7th Cir. 2009). “To demonstrate innocence
so convincingly that no reasonable jury could convict, a prisoner must have documentary,
biological (DNA), or other powerful evidence: perhaps some non-relative who placed him out of
the city, with credit card slips, photographs, and phone logs to back up the claim.” Hayes v.
Battaglia, 403 F.3d 935, 938 (7th Cir. 2005). Because this type of evidence is unavailable in the
vast majority of cases, actual innocence claims are rarely successful. See Schlup, 513 U.S. at
324; see, e.g., Smith, 598 F.3d at 387-88.
Here, Lockhart has not provided the Court with any “new reliable evidence – whether it
be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence
– that was not presented at trial.” Schlup, 513 U.S. at 324. Instead, he argues that it would be a
miscarriage of justice if the Court did not consider the merits of his procedurally defaulted
arguments. He also contends that if his trial counsel had done additional research, counsel could
have rebutted the State’s motive theory and impeached his cell-mate’s testimony. Rebutting the
State’s motive theory and additional impeachment evidence against the State’s witness, however,
concern Lockhart’s legal innocence of the criminal charges against him, not his actual innocence
as required under the miscarriage of justice exception. See id. at 314-15; Britz v. Cowan, 192
F.3d 1101, 1103 (7th Cir. 1999). As such, Lockhart cannot prevail under the miscarriage of
justice exception, and therefore, the Court is barred from reviewing the merits of his

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procedurally defaulted claims. See See McGee, 593 F.3d at 565; Johnson, 559 F.3d at 752.
II.

Confrontation Clause Claim
Relying on Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004), Lockhart contends that he was denied his rights under the Confrontation Clause because
the trial court admitted into evidence McClendon’s testimonial hearsay statements even though
McClendon could not recall the events recounted in these statements. Put differently, Lockhart
argues that McClendon was not available for cross-examination at his trial. The Supreme Court
decided Crawford approximately two years after Lockhart’s trial and one year after the trial
court sentenced him. Accordingly, the “holding of Crawford cannot be considered settled
Supreme Court precedent for the purposes of habeas corpus if the Supreme Court had not yet
decided the case.” Smith v. McKee, 598 F.3d 374, 387 (7th Cir. 2010). Meanwhile, any
argument that Lockhart was denied his rights in violation of 725 ILCS 5/115-10.2 is not
cognizable on habeas review because any such challenge does not involve a federal issue. See
Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004) (“To say that a petitioner’s claim is not
cognizable on habeas review is thus another way of saying that his claim presents no federal
issue at all.”) (quotation omitted). Therefore, the Court denies Lockhart’s habeas claim that
relies upon the Supreme Court’s decision in Crawford.
III.

Ineffective Assistance of Trial Counsel Claim
Lockhart also maintains that his trial counsel provided constitutionally ineffective

assistance of counsel in violation of the Sixth Amendment to the United States Constitution. To
establish constitutionally ineffective assistance of counsel, Lockhart must show that (1) his
attorney’s performance “fell below an objective standard of reasonableness,” and (2) “but for

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counsel’s unprofessional errors the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If
Lockhart fails to make a proper showing under one of the Strickland prongs, the Court need not
consider the other. See id. at 697 (“In particular, a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant ....”); see
also United States v. Taylor, 569 F.3d 742, 748 (7th Cir. 2009) (“Courts may deny ineffective
assistance of counsel claims for lack of prejudice without ever considering the question of
counsel’s actual performance.”).
In his habeas petition, Lockhart argues that his trial counsel was ineffective for failing to
object to him being forced to wear the stun belt and that this requirement prevented him from
testifying in his own defense. In addressing this argument, the Illinois Appellate Court correctly
followed the Strickland prejudice prong in concluding that Lockhart “was not prejudiced by the
failure of his trial counsel to object to the use of th stun belt” because he “told the trial judge that
he did not testify based on advice of counsel. His decision was made because of his attorney’s
advice, not because he had to wear the stun belt.” (Ex. I, People v. Lockhart, No. 3-06-0084, at
*9-10 (Ill.App.Ct. 2007)). Moreover, the Illinois Appellate Court concluded that “the evidence
against Lockhart was overwhelming. Thus, Lockhart failed to show he was prejudiced by
counsel’s failure to object to the use of the stun belt.” (Id.)
The Court would be hard-pressed to conclude that the Illinois Appellate Court
unreasonably applied Strickland to the facts of this case in concluding that Lockhart failed to
establish that he was prejudiced by counsel’s failure to object to the use of the stun belt. See
Williams, 529 U.S. at 407. In other words, the Illinois Appellate Court’s decision is objectively

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reasonable because it is consistent with the facts and circumstances of the case. See Williams v.
Thurmer, 561 F.3d at 746. Specifically, there was overwhelming trial evidence of Lockhart’s
guilt, including the detectives’ testimony of his inconsistent statements concerning the day of
Delores Bland’s murder; his cell-mate’s testimony that Lockhart had told him the details of the
crimes, including that he set up the crime scene to look like a residential burglary even though
the perpetrators were there to steal the Blands’ guns; and McClendon’s prior testimony that
Lockhart and Keith Jr. approached him and attempted to sell him guns. Also, McClendon
testified that Lockhart told him that he was with Scott and Keith Jr. when Scott killed Delores
Bland and that they had gone to the Blands’ house to steal guns. Based on this evidence, the
Illinois Appellate Court’s conclusion that Lockhart did not establish prejudice under the
Strickland prejudice prong is simply not “well outside the boundaries of permissible differences
of opinion.” Bennett, 592 F.3d at 790 (citation omitted). Thus, Lockhart’s ineffective assistance
of counsel claim based on trial counsel’s failure to object to the stun belt fails.
IV.

Certificate of Appealability
Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section 2254

Proceedings, the “district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Accordingly, the Court must determine whether to grant
Lockhart a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) in this order.
A habeas petitioner does not have the absolute right to appeal a district court’s denial of
his habeas petition, instead, he must first request a certificate of appealability. See Miller-El v.
Cockrell, 537 U.S. 322, 335, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); Sandoval v. United
States, 574 F.3d 847, 852 (7th Cir. 2009). A habeas petitioner is entitled to a certificate of

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appealability only if he can make a substantial showing of the denial of a constitutional right.
Miller-El, 537 U.S. at 336; Promotor v. Pollard, 628 F.3d 878, 889 (7th Cir. 2010). Under this
standard, Lockhart must demonstrate that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at
336 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).
In cases where a district court denies a habeas claim on procedural grounds, the Court should
issue a certificate of appealability only if the petitioner shows that (1) jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional right,
and (2) jurists of reason would find it debatable whether the district court was correct in its
procedural ruling. See Slack, 529 U.S. at 485.
Here, jurists of reason would find not find it debatable that Lockhart’s habeas petition
should have been resolved in a different way. See Miller-El, 537 U.S. at 336. As discussed,
there was overwhelming evidence of Lockhart’s guilt, and thus his Strickland claim is without
merit. Also, Lockhart’s claim based on the Supreme Court’s decision in Crawford is equally
unavailing because Crawford was not decided until after his trial. See Smith, 598 F.3d at 387.
As to Lockhart’s procedurally defaulted claims, he has failed to demonstrate that jurists of
reason would find it debatable that the Court was incorrect in its procedural rulings, especially
because he failed to establish any exception to his procedural default. See Slack, 529 U.S. at
485. Thus, the Court declines to certify any issues for appeal pursuant to 28 U.S.C. §
2253(c)(2).

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CONCLUSION
For these reasons, the Court denies Lockhart’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254(d)(1). Also, the Court declines to certify any issues for appeal
under 28 U.S.C. § 2253(c)(2).
Dated: June 9, 2011

ENTERED

AMY J. ST. EVE
United States District Judge

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