Bajdo v. Rednour et al
Filing
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OPINION and Order. Signed by the Honorable Sara L. Ellis on 3/24/2015. Mailed notice. (jl, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KRZYSZTOF BAJDO,
Petitioner,
v.
KIM BUTLER, Warden,
Menard Correctional Center, 1
Respondent.
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No. 11 C 1091
Judge Sara L. Ellis
OPINION AND ORDER
Petitioner Krzysztof Bajdo, who is currently incarcerated at Menard Correctional Center,
is serving a thirty-five year sentence for first degree murder. Bajdo has petitioned this Court for
a writ of habeas corpus under 28 U.S.C. § 2254. The majority of Bajdo’s claims are
procedurally defaulted or not cognizable on federal habeas review. As for his ineffective
assistance of counsel at sentencing claim, which the Court reaches on its merits, Bajdo has not
demonstrated that the state court’s decision was contrary to or an unreasonable application of
clearly established federal law. The Court thus denies Bajdo’s petition for a writ of habeas
corpus.
BACKGROUND
The Court will presume that the state court’s factual determinations are correct for the
purposes of habeas review, as Bajdo has not pointed to clear and convincing evidence to the
contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The
1
Kim Butler is presently the warden at Menard Correctional Center and is substituted as the proper
Respondent in this matter. See Rule 2(a) of the Rules Governing Section 2254 Cases in the United States
District Courts.
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Court therefore adopts the state court’s recitation of the facts and begins by summarizing the
facts relevant to Bajdo’s petition.
I.
Bajdo’s Trial and Conviction
The following facts were established at Bajdo’s jury trial: On October 11, 2003, Bajdo,
Agnieszka Fulara, his girlfriend of three and a half months, and two other women went out to
several nightclubs in Chicago, Illinois. Upon returning to Des Plaines, Bajdo first dropped off
Fulara at her house and then dropped off the two other women. Suspicious that Fulara was
cheating on him with her ex-boyfriend, Greg Schimscheiner, Bajdo then returned to Fulara’s
house to make sure she was still at home. Instead, Bajdo found her car gone and so decided to
drive to the nightclub where Schimscheiner worked, where he saw Fulara parking her car. Bajdo
approached Fulara and demanded that she not go into the club. After some argument, she agreed
and the two drove away separately. They continued arguing on their cellular phones while
driving until Bajdo asked Fulara to pull over so they could talk. Once parked, Bajdo entered
Fulara’s car. Their argument escalated, and at some point Fulara slapped Bajdo across the face.
Their argument then subsided for a time only to again escalate after Fulara repeatedly denied
having a romantic relationship with Schimscheiner. After Fulara stated she wanted to break up
with Bajdo, Bajdo grabbed her throat and choked her until she became unconscious. He then
retrieved a screwdriver from the trunk of Fulara’s car and stabbed Fulara several times in the
chest.
Leaving Fulara in her car, Bajdo took her cellular phone and the screwdriver and drove
away. From Fulara’s cellular phone, Bajdo sent text messages to Schimscheiner blaming him for
what had just occurred. Bajdo then attempted suicide, colliding with a toll booth while driving at
approximately 100 miles per hour. While in intensive care, he confessed that he killed Fulara
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and consented to a search of his car, where the screwdriver was found. Fulara’s body was found
in her car on October 12th. Dr. Ponni Arunkumar testified that she concluded from the autopsy
results that Fulara died of strangulation, with multiple stab wounds being a significant
contributing factor. The evidence was conflicting on whether the stab wounds alone were fatal.
The State charged Bajdo with first degree murder. At the jury instruction conference,
however, his counsel requested that the jury be given a second degree murder instruction. The
State objected. The trial court declined to provide the instruction, finding insufficient evidence
of a sudden and intense passion resulting from serious provocation. The trial court noted that
Bajdo and Fulara were not married or engaged and that Fulara’s slap did not constitute
substantial physical injury, substantial physical assault, or mutual combat. The jury was thus
only instructed as to first degree murder. Soon after beginning its deliberations, the jury sent a
note to the trial court asking whether it could consider convicting Bajdo of a lesser charge. Over
Bajdo’s objection, the trial court responded in the negative, indicating that there was no other
charge for the jury’s consideration. The jury returned a guilty verdict.
At sentencing, the State requested that Bajdo be sentenced to forty-five years in prison.
The State presented evidence of aggravation, testimony from a friend of Fulara’s, and victim
impact statements from Fulara’s parents and another friend. The State also noted that Bajdo’s
demeanor at trial was cold, calculated, and unemotional. Bajdo’s counsel argued in mitigation
that Bajdo was only twenty-five years old, lacked a criminal history, and had finished high
school in Poland, pursued further education here, and held down a steady job. Counsel also
noted that Bajdo attempted suicide, suffering serious injuries. He introduced a statement from
Bajdo’s grandmother, in which she described Bajdo as a caring and loving grandson who helped
her around the house and stated that his actions on October 11, 2003 were a complete departure
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from his usual character. Bajdo made a statement. The trial court also had before it Bajdo’s presentence investigation report, which indicated that Bajdo was not then suffering from any
physical health problems, had never been treated by a mental health professional, had never
taken any psychotropic medication, and did not need to speak to a mental health professional.
After considering everything before it, the trial court imposed a thirty-five year sentence.
II.
Direct Appeal
Bajdo appealed with the assistance of counsel, arguing that (1) the trial court erred in
refusing to instruct the jury on second degree murder and (2) his sentence was excessive because
his rehabilitative potential was not considered. As part of his argument that the trial court erred
in refusing to instruct the jury on second degree murder, Bajdo also contended that the trial court
improperly responded to the jury’s question regarding whether it could deliberate on a lesser
offense. On November 22, 2006, the Illinois Appellate Court affirmed Bajdo’s conviction and
sentence. Bajdo filed a petition for rehearing, arguing that the trial court erred in refusing to
instruct the jury on second degree murder. The Illinois Appellate Court denied the petition for
rehearing on January 4, 2007.
Bajdo then filed a petition for leave to appeal (“PLA”) with the Illinois Supreme Court,
arguing that the trial court erred in refusing to instruct the jury on second degree murder and that
the trial court improperly responded by answering the jury’s question as to whether there was a
lesser charge to consider in the negative. The Illinois Supreme Court denied the PLA on March
28, 2007. Bajdo did not file a petition for a writ of certiorari with the United States Supreme
Court.
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III.
State Post-Conviction Proceedings
Bajdo, with the assistance of counsel, filed a timely post-conviction petition pursuant to
725 Ill. Comp. Stat. § 5/122-1 on September 25, 2007. He argued that (1) trial counsel was
ineffective for failing to interview, investigate, and call witnesses who could testify to Bajdo’s
mental health and medical condition, which would have impacted the existence of an affirmative
defense; (2) trial counsel was ineffective for failing to investigate and raise Bajdo’s mental health
and medical condition as mitigation during sentencing; and (3) he was denied due process by the
trial court’s refusal to instruct the jury on second degree murder. On October 9, 2008, the trial
court dismissed Bajdo’s petition without an evidentiary hearing.
Bajdo appealed, arguing that the trial court erred in dismissing his petition without an
evidentiary hearing because he had made a substantial showing that trial counsel was ineffective
for failing to investigate and raise Bajdo’s mental health as mitigation during sentencing. The
Illinois Appellate Court affirmed the dismissal of Bajdo’s petition on March 30, 2010. Bajdo
filed a pro se petition for rehearing, which was denied on April 22, 2010.
Bajdo, proceeding pro se, filed a PLA, contending that (1) trial counsel was ineffective
for failing to interview, investigate, and call witnesses who could testify to Bajdo’s mental health
and medical condition, which would have impacted the existence of an affirmative defense; (2)
trial counsel was ineffective for failing to investigate and raise Bajdo’s mental health and
medical condition as mitigation during sentencing; (3) the trial court erred in refusing to instruct
the jury on second degree murder; (4) the trial court improperly responded to the jury’s question
as to whether it could consider a lesser charge; (5) the trial court imposed an excessive sentence
that did not consider Bajdo’s rehabilitative potential; (6) the trial court erred in dismissing
Bajdo’s post-conviction petition because he made a substantial showing of ineffective assistance
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of counsel at sentencing; (7) the trial court was biased; (8) the Illinois Appellate Court erred in
failing to reduce Bajdo’s conviction to second degree murder; and (9) the Illinois Appellate
Court should have set aside the verdict because there was insufficient evidence to support a first
degree murder conviction. The Illinois Supreme Court denied the PLA on September 29, 2010.
Bajdo did not file a petition for writ of certiorari with the United States Supreme Court but
timely filed his federal habeas corpus petition with this Court.
LEGAL STANDARD
A habeas petitioner is entitled to a writ of habeas corpus if the challenged state court
decision is either “contrary to” or “an unreasonable application of” clearly established federal
law as determined by the United States Supreme Court or if the state court decision “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)(1)–(2). A state court decision is “contrary to” clearly
established federal law “if the state court arrives at a conclusion opposite to that reached by [the
Supreme] 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 [the
Court].” Williams v. Taylor, 529 U.S. 362, 404–05, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).
An “unreasonable application” of federal law occurs if the state court correctly identified the
legal rule but unreasonably applied the controlling law to the facts of the case. See id. at 407.
Whether a state court’s application of Supreme Court precedent is unreasonable is judged by an
objective standard. Id. at 409; Winston v. Boatwright, 649 F.3d at 624.
ANALYSIS
Bajdo has asserted nine grounds for relief: (1) trial counsel was ineffective for failing to
interview, investigate, and call witnesses who could attest to Bajdo’s mental health and medical
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condition at trial; (2) trial counsel was ineffective for failing to investigate and raise Bajdo’s
mental health and medical condition as mitigation during sentencing; (3) the trial court erred by
refusing to instruct the jury on second degree murder; (4) the trial court erred by responding to
the jury’s question as to whether it could consider a lesser charge in the negative; (5) the trial
court imposed an excessive sentence that did not consider Bajdo’s rehabilitative potential; (6) the
trial court erred in dismissing Bajdo’s post-conviction petition because he made a substantial
showing of ineffective assistance of counsel at sentencing; (7) the trial court was biased; (8) the
Illinois Appellate Court erred in failing to reduce Bajdo’s conviction to second degree murder;
and (9) there was insufficient evidence to convict Bajdo of first degree murder. Respondent
argues that Bajdo has procedurally defaulted claims 1, 4, 5, 7, 8, and 9, that claims 2 and 3 are
meritless, and that claim 6 is not cognizable and therefore cannot serve as a basis for habeas
relief.
I.
Procedural Default
A petitioner must fairly present his claims to all levels of the Illinois courts to avoid
procedural default. See O’Sullivan v. Boerckel, 526 U.S. 838, 845, 848, 119 S. Ct. 1728, 144 L.
Ed. 2d 1 (1999). To be “fairly presented,” a claim must be brought forth on one complete round
of state court review, either on direct appeal or in post-conviction proceedings. Lewis v. Sternes,
390 F.3d 1019, 1025 (7th Cir. 2004). In Illinois, this means appeals up to and including the
filing of a PLA to the Illinois Supreme Court. O’Sullivan, 526 U.S. at 845–46; Duncan v.
Hathaway, 740 F. Supp. 2d 940, 945 (N.D. Ill. 2010). When a petitioner has failed to present his
federal claim to the state courts and the opportunity to raise that claim has subsequently passed,
the claim is procedurally defaulted and not available for federal habeas review. Gonzales v.
Mize, 565 F.3d 373, 380 (7th Cir. 2009).
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A petitioner may nonetheless pursue a procedurally defaulted claim if he can establish
cause for the default and actual prejudice as a result of the alleged violation of federal law or can
demonstrate that the Court’s failure to consider the claim will result in a fundamental miscarriage
of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991);
Johnson v. Loftus, 518 F.3d 453, 455–56 (7th Cir. 2008). Cause exists where “some objective
factor external to the defense impeded [the petitioner’s] efforts to comply with the State’s
procedural rule.” Strickler v. Greene, 527 U.S. 263, 283 n.24, 119 S. Ct. 1936, 144 L. Ed. 2d
286 (1999) (citation omitted) (internal quotation marks omitted). Prejudice exists where the
petitioner shows that the violation of his federal rights “worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” Lewis, 390 F.3d
at 1026 (quoting United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 71 L. Ed. 2d 816
(1982)). The fundamental miscarriage of justice exception is “limited to situations where the
constitutional violation has probably resulted in a conviction of one who is actually innocent.”
Dellinger v. Bowen, 301 F.3d 758, 767 (7th Cir. 2002). This requires new, reliable evidence of
the petitioner’s innocence in light of which “no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt.” Woods v. Schwartz, 589 F.3d 368, 377 (7th Cir.
2009) (quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)).
A.
Claims Not Raised Through One Complete Round of State Court Review
(Claims 1, 5, 7, 8, and 9)
Bajdo did not present claims 1, 5, 7, 8, and 9 through one complete round of state court
review. Although he raised claim 1, that trial counsel was ineffective for failing to interview and
present witnesses regarding his mental health and medical condition during trial, in his postconviction petition, it was not included in his appeal of the dismissal of the post-conviction
petition, which focused instead only on ineffective assistance of counsel at sentencing. Bajdo
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raised it again in his post-conviction PLA, but the omission of the claim at the post-conviction
appeal stage means that it is defaulted. Bajdo raised claim 5, that the trial court’s sentence was
excessive, on his direct appeal to the Illinois Appellate Court but not in his direct appeal PLA.
He also raised it in his post-conviction PLA, but not with the trial or appellate courts on postconviction review. Similarly, claims 7 (trial court bias), 8 (appellate court error in failing to
reduce the conviction to second degree murder), and 9 (insufficient evidence to convict of first
degree murder) were all first raised in Bajdo’s post-conviction PLA but not presented to the
lower courts for their review. Thus, these claims are procedurally defaulted.
B.
Fair Presentment of the Federal Basis of Claim 4
Bajdo presented claim 4, that the trial court erred by responding in the negative to the
jury’s question as to whether it could consider a lesser charge, through one full round of review.
But Respondent contends that, to the extent the claim alleges a federal constitutional violation, it
is procedurally defaulted because Bajdo did not alert the state courts to the claim’s federal
nature. A petitioner “must provide the state courts with a fair opportunity to apply constitutional
principles and correct any constitutional error committed by the trial court.” United States ex rel.
Sullivan v. Fairman, 731 F.2d 450, 453 (7th Cir. 1984). This requires the petitioner to present
his claim “in such a way as to fairly alert the state court to any applicable constitutional grounds
for the claim.” Id. This can be done, “for example, by citing in conjunction with the claim the
federal source of law on which he relies or a case deciding such a claim on federal grounds, or by
simply labeling the claim ‘federal.’” Baldwin v. Reese, 541 U.S. 27, 32, 124 S. Ct. 1347, 158 L.
Ed. 2d 64 (2004). In determining whether a petitioner has sufficiently alerted the state courts to
the constitutional nature of his claims, the Court looks to whether the petitioner “(1) relied on
relevant federal cases applying constitutional analysis; (2) relied on state cases applying federal
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constitutional analysis to a similar factual situation; (3) asserted the claim in terms so particular
as to call to mind a specific constitutional right; and (4) alleged a pattern of facts that is well
within the mainstream of federal constitutional litigation.” White v. Gaetz, 588 F.3d 1135, 1139
(7th Cir. 2009).
Bajdo’s presentation of this issue to the state courts was rather brief, as it was mainly a
sub-issue encompassed within his argument that the jury should have been instructed on second
degree murder (claim 3 here). To the extent it is encompassed by claim 3, it is addressed in this
Opinion below. But to the extent it stands alone as a separate claim, Bajdo did not present it to
the state courts as a federal claim. Bajdo did not rely on any federal cases, nor did the one state
case he cited in support of this claim, People v. Oden, 633 N.E.2d 1385, 261 Ill. App. 3d 41, 199
Ill. Dec. 394 (1994), rely on a federal constitutional analysis. He does not frame his claim as a
denial of due process or a constitutional violation. And Bajdo’s reference in his PLA to the trial
court’s alleged “abuse of discretion” in answering the jury’s question does not suffice to call to
mind a federal constitutional right. See Wilson v. Briley, 243 F.3d 325, 328 (7th Cir. 2001)
(“[A]buse-of-discretion arguments are ubiquitous, and most often they have little or nothing to
do with constitutional safeguards.”). Thus, claim 4 was not fairly presented to the state court and
is procedurally defaulted.
C.
Exceptions to Procedural Default
Bajdo can nonetheless proceed on his procedurally defaulted claims if he can establish
cause and prejudice for the default or that the failure to consider the claim would result in a
fundamental miscarriage of justice. Johnson, 518 F.3d at 455–56. But Bajdo does not set forth
any argument on either point, having failed to file a reply to Respondent’s answer. The Court,
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therefore, cannot consider his defaulted claims. See Crockett v. Hulick, 542 F.3d 1183, 1193
(7th Cir. 2008).
II.
Non-Defaulted Claims
A.
Ineffective Assistance of Counsel at Sentencing (Claim 2)
Bajdo contends that his trial counsel was ineffective for failing to interview, investigate,
and call witnesses who could attest to Bajdo’s mental health and medical condition for purposes
of mitigation at sentencing. Respondent argues that the Illinois Appellate Court’s decision on
the merits of his ineffective assistance claim was not contrary to or an unreasonable application
of clearly established federal law.
In order to establish constitutionally ineffective assistance of counsel, Bajdo must show
(1) “that counsel’s representation fell below an objective standard of reasonableness” and (2)
“that there is a reasonable probability that, but for 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). In considering the first prong, the Court indulges “a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance” and may not let hindsight interfere with its review of counsel’s decisions. Id. at 689.
As for prejudice, a “reasonable probability” is “a probability sufficient to undermine confidence
in the outcome.” Id. at 694. To show prejudice with respect to his sentence, Bajdo must show
that but for counsel’s errors, “there is a reasonable probability that he would have received a
different sentence.” Griffin v. Pierce, 622 F.3d 831, 844 (7th Cir. 2010). That probability is
determined by evaluating “the totality of the available mitigation evidence—both that adduced at
trial, and the evidence adduced in the habeas proceeding” and “reweig[hing] it against the
evidence in aggravation.” Porter v. McCollum, 558 U.S. 30, 41, 130 S. Ct. 447, 175 L. Ed. 2d
398 (2009) (quoting Williams, 529 U.S. at 397–98). The Court need not address both prongs of
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the Strickland test if one provides the answer; that is, if the Court determines that the alleged
deficiency did not prejudice Bajdo, it need not consider the first prong. Ruhl v. Hardy, 743 F.3d
1083, 1092 (7th Cir. 2014).
The Illinois Appellate Court affirmed the trial court’s dismissal of Bajdo’s postconviction petition on two grounds. First, the court found that Bajdo’s petition and supporting
documentation was procedurally deficient and thus failed to comply with the requirements of
Illinois’ Post-Conviction Hearing Act, 725 Ill. Comp. Stat. 5/122-2. Second, the court found that
Bajdo had not made a substantial showing that his trial counsel was ineffective under Strickland.
After setting forth the Strickland standard for prejudice, the Illinois Appellate Court considered
the evidence Bajdo claimed would have been mitigating in connection with the evidence that the
trial court had before it in making its sentencing decision. The court determined that the trial
court’s stated reasons for imposing the sentence demonstrated that Bajdo’s mental health history
would not have altered the sentence Bajdo received. The court noted that information regarding
a defendant’s mental health is not inherently mitigating, that Bajdo did not indicate in his postconviction petition what a psychological evaluation would have revealed or how he was
prejudiced by a lack of an evaluation, and that Bajdo did not claim that his current mental health
impacted his fitness or sanity. In concluding that counsel’s inquiry into Bajdo’s mental history
would not have made a difference to Bajdo’s sentence, the court also noted the trial court’s
statements that it “took . . . into account” Bajdo’s attempted suicide and that “he was not totally
mentally balanced.” Ex. J at 7.
When the last state court to consider a petitioner’s federal claim resolves the claim on an
independent and adequate state ground, such as failure to comply with a state procedural rule, the
Court may not reach the federal claim on federal habeas review. Miranda v. Leibach, 394 F.3d
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984, 991–92 (7th Cir. 2005). “[I]n order to foreclose review on habeas, the state court must
actually state in plain language that it is basing its decision on the state procedural default and
that other grounds are reached only in the alternative.” Jenkins v. Nelson, 157 F.3d 485, 491 (7th
Cir. 1998). The Illinois Appellate Court’s decision was based on both procedural and
substantive grounds, with no explicit language that its discussion of the substance of Bajdo’s
ineffective assistance of counsel claim was merely in the alternative. See Ex. J at 6 (using
“furthermore” to introduce its discussion of Strickland). Thus, the Court may address the merits
of Bajdo’s claim. 2 Jenkins, 157 F.3d at 491 (reaching merits of claim where there was no “clear
statement of intent by the state court” to rely on procedural default and to reach the merits of the
federal claim only in the alternative); cf. Romero v. Battles, 234 F.3d 1273 (Table), 2000 WL
1206691, at *3 (7th Cir. 2000) (claim procedurally defaulted where state court prefaced analysis
by stating “even if we considered the merits”); Stevenson v. Gaetz, No. 11 C 4394, 2013 WL
1385557, at *3 (N.D. Ill. Apr. 3, 2013) (claim procedurally defaulted where state court prefaced
discussion of merits by stating “assuming, arguendo, that defendant had not [forfeited the
claim]” (second alteration in original)); United States ex rel. Wyatt v. Atchison, 920 F. Supp. 2d
894, 898–99 (N.D. Ill. 2013) (habeas review precluded where state court addressed merits with
preface “[w]aiver notwithstanding” (alteration in original)).
Having concluded that the Illinois Appellate Court’s decision is reviewable on the merits,
this Court must apply a “doubly deferential standard” in reviewing Bajdo’s claim. Burt v.
Titlow, --- U.S. ----, 134 S. Ct. 10, 13, 187 L. Ed. 2d 348 (2013) (quoting Cullen v. Pinholster, --U.S. ----, 131 S. Ct. 1388, 1403, 179 L. Ed. 2d 557 (2011)). Bajdo has failed to show that the
2
Moreover, because procedural default is an affirmative defense, and Respondent did not argue that
Bajdo’s ineffective assistance of counsel is barred by the independent and adequate state ground doctrine,
to the extent that doctrine would apply, Respondent has forfeited the argument. See Kaczmarek v.
Rednour, 627 F.3d 586, 591–92 (7th Cir. 2010); Perruquet v. Briley, 390 F.3d 505, 519 (7th Cir. 2004).
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Illinois Appellate Court’s rejection of his claim was contrary to or an unreasonable application of
clearly established federal law. The Illinois Appellate Court properly considered the totality of
the mitigation evidence Bajdo identified in his post-conviction petition in connection with that
produced at his sentencing hearing and weighed the mitigation evidence against the evidence
presented at sentencing in aggravation. See Porter, 558 U.S. at 41. It then concluded that further
information regarding Bajdo’s mental health history would not have altered the sentence the trial
court imposed, considering the brutality of the crime and the fact that the trial court already took
into account Bajdo’s mental condition. This conclusion was not an unreasonable one. See
Richardson v. Lemke, 745 F.3d 258, 276–77 (7th Cir. 2014) (although not every jurist would
agree with conclusion that additional evidence regarding petitioner’s mental health would not
have changed petitioner’s sentence, the conclusion was not unreasonable).
B.
Dismissal of Post-Conviction Petition (Claim 6)
Bajdo separately contends that the trial court erred in dismissing his post-conviction
petition because he made a substantial showing of ineffective assistance of counsel at sentencing.
Respondent maintains that Bajdo’s claim regarding the dismissal of the post-conviction petition
is not cognizable because it merely challenges the application of state law and does not raise a
constitutional issue. The Court already addressed whether the Illinois Appellate Court’s
substantive decision with respect to Bajdo’s ineffective assistance claim merits habeas relief. To
the extent Bajdo is challenging the application of the Post-Conviction Hearing Act to his postconviction petition, that claim is not cognizable on federal habeas review. See Johnson v.
Acevedo, 572 F.3d 398, 402 (7th Cir. 2009) (“A violation of state law is not the basis for federal
collateral relief.”); United States ex rel. Anderson v. Hardy, 779 F. Supp. 2d 816, 825 (N.D. Ill.
2011) (claim that state post-conviction trial court erred in dismissing post-conviction petition
was not cognizable on federal habeas review because it involved the application of state law).
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C.
Second Degree Murder Instruction (Claim 3)
Bajdo contends that he was denied due process because the trial court refused to instruct
the jury on second degree murder. Respondent argues that no clearly established federal law
requires such an instruction. In Beck v. Alabama, the Supreme Court held that “if the
unavailability of a lesser included offense instruction enhances the risk of an unwarranted
conviction, [a state] is constitutionally prohibited from withdrawing that option from the jury in a
capital case.” 447 U.S. 625, 638, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980). Beck, however, left
open the question of whether the Due Process Clause requires that such instructions be given in a
noncapital case. Id. at 638 n.14. As a result, the Seventh Circuit has concluded that, “in a
noncapital case, there is no clearly established Supreme Court precedent” that would establish a
defendant’s right to a jury instruction on a lesser offense. Calloway v. Montgomery, 512 F.3d
940, 944 (7th Cir. 2008). Additionally, in Hopkins v. Reeves, the Supreme Court held that state
trial courts are not constitutionally required to instruct juries on offenses that are not lesser
included offenses of the charged crime under state law. 524 U.S. 88, 90–91, 96–97, 118 S. Ct.
1895, 141 L. Ed. 2d 76 (1998). In Illinois, second degree murder is not considered a lesser
included offense of first degree murder. People v. Wilmington, 983 N.E.2d 1015, 1026, 2013 IL
112938, 368 Ill. Dec. 211 (2013); People v. Jeffries, 646 N.E.2d 587, 595, 164 Ill. 2d 104, 207
Ill. Dec. 21 (1995). Thus, Bajdo was not constitutionally entitled to a second degree murder
instruction. See United States ex rel. Leyva v. Walls, 230 F. Supp. 2d 847, 854–55 (N.D. Ill.
2002). Because federal habeas review is limited to issues of compliance with federal law, this
claim is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 68, 112
S. Ct. 475, 116 L. Ed. 2d 385 (1991) (“In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”).
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CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the Court must issue or
deny a certificate of appealability when it enters a final order adverse to a petitioner. A habeas
petitioner is entitled to a certificate of appealability only if he can make a substantial showing of
the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003) (citing 28 U.S.C. § 2253(c)(2)). To make a substantial showing,
the petitioner must show 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.’” Slack v. McDaniel, 529 U.S.
473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983)). The requirement of a certificate of
appealability is a threshold issue and a determination of whether one should issue neither
requires nor permits full consideration of the factual and legal merits of the claims. “The
question is the debatability of the underlying constitutional claim, not the resolution of that
debate.” Miller-El, 537 U.S. at 342.
For the reasons stated above, the Court finds that there can be no showing of a substantial
constitutional question for appeal, as reasonable jurists would not find this Court’s rulings
debatable. See Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011) (citing Slack, 529 U.S. at
484–85)). Accordingly, the Court declines to issue a certificate of appealability.
16
CONCLUSION
For the foregoing reasons, Bajdo’s petition for a writ of habeas corpus pursuant to 22
U.S.C. § 2254 is denied and the Court declines to certify any issues for appeal under 28 U.S.C.
§ 2253(c).
Dated: March 24, 2015
______________________
SARA L. ELLIS
United States District Judge
17
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