Gorga v. State Of Illinois et al

Filing 14

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 11/12/2010:Mailed notice(mpj, )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA ex rel. EMILIO GORGA, Petitioner, v. JODY HATHAWAY, Respondent. ORDER Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. I agree with the government's interpretation that ) ) ) ) ) ) ) ) ) ) )

No. 10 cv 4208

petitioner raises five grounds for relief, although he lists only three in his petition. (The remaining two grounds emerge from the text of petitioner's argument.) The first three claims are: 1) that the trial court erred in relying on the translations of an

ineffective translator; 2) that the trial court erred in allowing the same interpreter to interpret for both petitioner and the state; and 3) that "even th[]ough Mr. Gorga and his attorney did not object to the interpreter or the interpretations during the trial proceedings, the courts should allow this issue on appeal [because] Mr. Gorga was deprived of his constitutional rights and the plain error rule applies." Petitioner's additional claims are: 4) that the trial court denied petitioner his right to selfrepresentation; and 5) that petitioner's counsel was ineffective

for failing to object to the ineffective interpreter.

For the

following reasons, none of these claims entitles petitioner to relief. Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), I may grant petitioner's petition only if the state courts' adjudication of his claims "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or "was based on an unreasonable determination of the facts in light of the evidence presented." Griffin v. Pierce, ---F.3d---, 2010 WL 3655899 at *8 (7th Cir. Sept. 22, 2010) (citing 28 U.S.C. § 2254(d)). Errors of state law

are not grounds for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("federal habeas corpus relief does not lie for errors of state law"). AEDPA's exhaustion requirement generally constrains my review of the merits of habeas claims to those claims that have been fairly presented throughout one complete round of the state's appellate review process. 845 (1999). O'Sullivan v. Boerckel, 526 U.S. 838,

That is, I may not rule favorably to petitioner on the

merits of any claim that has not been exhausted in the state courts, although I may reject a non-exhausted claim on its merits. Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004) (citing 28 U.S.C. § 2254(b)(2)). The related procedural default doctrine

precludes my review of the merits of any claim that was either 1) 2

rejected by the state courts based on adequate and independent state-law procedural grounds, or 2) not presented to state courts, and those courts would now hold the claim to be procedurally barred. Id. (citing Coleman v. Thompson, 501 U.S. 722, 735 & n.

1 (1991); Harris v. Reed, 489 U.S. 255, 263 & n. 9 (1989); and Conner v. McBride, 375 F.3d 643, 648 (7th Cir. 2004)). In view of the foregoing principles, I conclude that claims one, two, three, and five are outside the scope of my authority to grant habeas relief, either because they have not been exhausted in state court; because they have been procedurally defaulted; because they assert errors of state, not federal law; or for more than one of these reasons. Petitioner raised claims one and two in his intermediate state appeal, but he did not raise them in his petition for leave to appeal ("PLA") to the state supreme court, which he must do to satisfy the exhaustion requirement. Id. at 838. Moreover, even

assuming petitioner's time to assert these claims in a state postconviction petition has not lapsed, he is barred from pursuing the claims in post-conviction proceedings by Illinois' rule that claims litigated in direct appeals cannot be re-litigated in post-

conviction appeals.

People v. Beaman, 890 N.E. 2d 500, 509 (Ill.

2008) (issues decided on direct appeal are barred by res judicata; issues that could have been raised but were not are forfeited in collateral proceedings). Accordingly, 3 these claims are

procedurally defaulted on federal habeas review. F.3d at 514.

Perruquet, 390

In addition, on direct appeal petitioner framed For

claims one and two as violations of state, not federal law.

this reason, too, they are not subject to challenge on federal habeas review. See Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001) (to satisfy requirement of "fair presentment" of

constitutional claim in state proceedings, petitioner must have presented "both the operative facts and the legal principles that control each claim to the state judiciary.") (Citation and internal quotation omitted). Claim three is somewhat hard to parse, and it is not entirely clear that it articulates an independent basis for relief, as opposed to petitioner's theory about why he is entitled to relief on claims one and two. to assert that the In any event, I read the text of the claim Illinois Appellate Court erred in its

application of the plain error rule when it declined to overlook petitioner's forfeiture of his claims relating to his translator. Even assuming that this claim now asserts a violation of

constitutional law (and this is a considerable stretch, since petitioner states only that he "was deprived of his constitutional rights," and "vague or do cursory not references" to constitutional constitutional

principles

generally

articulate

viable

claims, see Verdin v. O'Leary 972 F.2d 1467, 1475 (7th Cir. 1992)), petitioner failed, in his PLA, to challenge the intermediate

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court's application of the plain error rule at all, much less assert that the appellate court's application of the rule resulted in the deprivation of any constitutional right. For at least these reasons, petitioner is not entitled to habeas relief on claim three. Claim five asserts ineffective assistance of counsel, a

cognizable constitutional claim. But this claim, too, falters both procedurally and substantively. Procedurally, the claim is

probably defaulted because petitioner did not raise it at any point in his state appeals and would likely be barred from doing so now in post-conviction proceedings. See People v. Erickson, 641 NE 2d

455, 458-59 (Ill. App. Ct. 1994) (explaining that ineffective assistance of counsel claims based on what the record discloses are "subject to the usual procedural default rule," i.e., barred if not brought on direct appeal). But even if the claim is merely non-

exhausted (in which case I must deny relief, but petitioner could return to the state courts to pursue further state remedies), it fails on the merits. In its analysis of the allegedly defective translation

provided by petitioner's translator, the Illinois Appellate Court concluded that "nothing in the record establishes that [the

translation] was inaccurate," and that an "isolated unresponsive answer" upon which petitioner relied "hardly evinces ineffective translation." These conclusions are presumed correct on federal

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habeas review, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), and indeed petitioner essentially concedes in his reply that

speculation is required to conclude that the interpreter was ineffective. convincing But petitioner must come forth with clear and evidence--not mere speculation--to overcome the

presumption that the state courts' factual findings are correct. Id. was The Illinois Appellate Court's conclusion that the translator not ineffective eviscerates assistance the of essential counsel premise if of the

petitioner's

ineffective

claim:

translation itself was not defective, petitioner's counsel cannot have been ineffective for failing to object to it, nor could petitioner have been prejudiced by such failure. See Strickland v. Washington, 466 U.S. 668, 692 (1984)(successful ineffective

assistance of counsel claim requires proof of both deficient performance and prejudice). This leaves only claim four, in which petitioner asserts that he was denied the right to self-representation when the trial court refused to allow him to proceed pro se. Claims involving the right

to self-representation are governed by Faretta v. California, 422 U.S. 806 (1975). The Seventh Circuit has held that while under

Faretta a defendant "has the constitutional right to conduct his own defense," the request to proceed pro se must be "made in a timely fashion." U.S. v. Oakey, 853 F.2d 551, 553 (7th Cir. 1988). In Oakey, the court held that the trial court was within its

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discretion to deny a defendant's request to proceed pro se on the ground that the request was made "prior to the fourth day of trial, [and] was obviously not timely." Id. In this case, petitioner

requested to proceed pro se only after the conclusion of his trial and the rendition of a guilty verdict. Appellate Court correctly identified and Because the Illinois applied Faretta in

evaluating petitioner's claim, I am without authority to second guess its determination that the trial court did not abuse its discretion. For the foregoing reasons, petitioner's petition is denied.

ENTER ORDER:

____________________________ Elaine E. Bucklo United States District Judge Dated: November 12, 2010

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