Serio v. Rednour
Filing
31
MEMORANDUM Opinion and Order Signed by the Honorable Gary Feinerman on 2/14/2013: (lp, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RAYMOND SERIO,
Petitioner,
vs.
RANDY PFISTER, Warden,
Respondent.
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11 C 2770
Judge Feinerman
MEMORANDUM OPINION AND ORDER
Petitioner Raymond Serio, who is serving a 50-year sentence in Illinois state prison for
the first degree murder of Richard Neubauer, seeks a writ of habeas corpus under 28 U.S.C.
§ 2254. Serio asserts four grounds for relief: (1) that the state courts should have suppressed
statements he made after being arrested without probable cause; (2) that during a post-trial
hearing on whether his trial counsel was ineffective, the trial court should have questioned his
trial counsel; (3) that his state post-conviction appellate attorney was ineffective in failing to
raise various issues on appeal from the dismissal of his post-conviction petition; and (4) that
Illinois lacked jurisdiction to try him for the murder because the murder occurred in Wisconsin,
and that the indictment was void because it charged him as the shooter rather than as an
accomplice, despite there being no credible evidence that he was in fact the shooter. Doc. 1 at 910. With respect to the third ground, Serio asks this court to address the twenty-four claims that
he asserted in his state post-conviction petition but that his post-conviction appellate attorney
failed to press in his post-conviction appeal. Id. at 10. Serio’s petition is denied, and he is also
denied a certificate of appealability.
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Background
The facts surrounding Neubauer’s murder, which were recounted by the Appellate Court
of Illinois on direct appeal from Serio’s conviction, People v. Serio, 830 N.E.2d 749, 752-55 (Ill.
App. 2005), have no bearing on the disposition of his habeas petition and will not be recited
here.
Serio was convicted by a jury for Neubauer’s murder and sentenced to fifty years in
prison. Id. at 751. On direct appeal, Serio argued: (1) that the trial court erred in not suppressing
a confession he made after being arrested in violation of the Fourth Amendment; and (2) that the
trial court should have considered his post-trial motion alleging that his trial counsel had
provided ineffective assistance. Ibid. The state appellate court affirmed on the suppression
issue, reasoning that the police had probable cause to arrest Serio. Id. at 752-53, 756. But the
appellate court remanded the case to the trial court with instructions to consider Serio’s
ineffective assistance claim. Id. at 753. Serio filed a petition for leave to appeal (“PLA”) in the
Supreme Court of Illinois on the suppression issue, Doc. 19-1 at 108-148, and the State filed a
PLA on the ineffective assistance issue, Doc. 19-2 at 2-32. Both PLAs were denied. People v.
Serio, 844 N.E.2d 45 (Ill. 2005).
At the ineffective assistance hearing held on remand from the appellate court, the trial
court questioned Serio and the trial prosecutor but not Serio’s allegedly ineffective trial attorney.
Doc. 19-3 at 2. The trial court ruled that Serio’s ineffective assistance claim had no merit. Ibid.
Serio appealed, arguing that he was entitled to another ineffective assistance hearing because
“the trial court did not ask trial counsel any questions during the preliminary investigation,” an
omission that, according to Serio, violated People v. Moore, 797 N.E.2d 631, 638 (Ill. 2003), and
other Illinois cases. Doc. 19-2 at 50. The appellate court affirmed. People v. Serio, No. 2-06-
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191 (Ill. App. Jan. 7, 2008) (unpublished, but reproduced at Doc. 19-3 at 1-6). The ground for
the affirmance was that, contrary to Serio’s assertion, neither People v. Moore nor any other
decision “requires a court to question trial counsel in every case.” Doc. 19-3 at 5. Serio filed a
PLA, id. at 7-29, which was denied, People v. Serio, 889 N.E.2d 1121 (Ill. 2008).
Serio next filed a petition for post-conviction relief in state court. Doc. 19-3 at 31-95.
The petition claimed that Serio’s counsel on direct appeal was ineffective in failing to raise
twenty-three arguments. Id. at 97-98. The state trial court found that the petition was “frivolous
and patently without merit” and dismissed it. Id. at 96-122. Serio also filed a petition for habeas
corpus in state court and an amendment to that petition. Id. at 123-36. The trial court held that it
lacked jurisdiction to consider the habeas petition. Id. at 137.
The state appellate court affirmed the trial court’s judgment. People v. Serio, Nos. 2-09285 & 2-09-379 (Ill. App. Sept. 28, 2010) (unpublished, but reproduced at Doc. 19-4 at 81-84).
The appellate court explained that while Serio had argued before the post-conviction trial court
that his counsel on direct appeal had been ineffective, he contended in his post-conviction appeal
only that “(1) his right to a fair and impartial jury was compromised when the trial court allowed
friends and family of the victim to intermingle and converse with the jury pool, and (2) his right
to present a defense was compromised when ‘defense counsel failed to properly investigate and
obtain evidence that would have refuted the prosecution’s theory of why Ruhl [Serio’s
accomplice, who was also convicted of Neubauer’s murder] committed a murder at [Serio’s]
request.’” Doc. 19-4 at 83. The appellate court added that “the claims [Serio] asserts on appeal
differ from the issues underlying his claim of ineffective assistance of appellate counsel as raised
[before the trial court] in his postconviction petition.” Id. at 83-84. In other words, the appellate
court ruled that there was no overlap between the issues Serio had pressed before the trial court
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in his post-conviction petition and the issues he was arguing on appeal from the trial court’s
denial of post-conviction relief. The appellate court did not consider the issues that Serio had
argued before the trial court but not on appeal, and it also concluded that Serio had forfeited the
two claims he pressed on appeal by failing to raise them before the trial court. Ibid.
Serio filed a PLA, which argued that the appellate court had erred in concluding that his
appeal raised only two issues because the “issues presented for review section” of his appeal
brief stated that the issue “was weather the trial court erred in dismissing Raymond Serio’s pro
se petition for post conviction relief where Mr. Serio’s petition presented the gist of a claim of
constitutional deprevation.” Doc. 19-4 at 85, 87. According to Serio, that statement brought
before the appellate court “all issues raised under appellate counsel’s ineffective assistance [on
direct appeal],” meaning that the “[a]ppellate court should have then review petitioner’s post
conviction [petition] as a whole.” Id. at 87. The PLA was denied. People v. Serio, 943 N.E.2d
1107 (Ill. 2011).
Serio then filed this federal habeas petition.
Discussion
The Warden argues that of Serio’s habeas claims are either non-cognizable on federal
habeas review or were procedurally defaulted.
I.
Post-Arrest Statements
Serio first argues that the “police did not have probable cause to question and arrest”
him, and that the state courts should therefore have suppressed the confession that he made as a
consequence of his arrest. Doc. 1 at 9. As Serio acknowledges, this claim arises under the
Fourth Amendment. Doc. 27 at 1. The Supreme Court has held that “where the State has
provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner
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may not be granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465,
494 (1976). The Seventh Circuit has explained that “a ‘full and fair opportunity’ guarantees
only ‘the right to present one’s case.’” Watson v. Hulick, 481 F.3d 537, 542 (7th Cir. 2007)
(quoting Cabrera v. Hinsley, 324 F.3d 527, 531-32 (7th Cir. 2003)). Serio did have the
opportunity to present his Fourth Amendment arguments to the state courts; his problem is that
those courts rejected his arguments. Serio, 830 N.E.2d at 756 (discussing Serio’s Fourth
Amendment claim and holding that the police had probable cause to arrest him). Thus, the state
courts satisfied the “full and fair opportunity” standard, which means that Stone precludes this
court from considering the merits of Serio’s Fourth Amendment claim.
Serio acknowledges Stone, but quotes a Seventh Circuit opinion stating that a defendant
has received the “full and fair opportunity” required by Stone if “(1) he has clearly informed the
state court of the factual basis for the claim and has argued that those facts constitute a violation
of his fourth amendment rights and (2) the state court has carefully and thoroughly analyzed the
facts and (3) applied the proper constitutional case law to the facts.” Pierson v. O’Leary, 959
F.2d 1385, 1391 (7th Cir. 1992)). The Seventh Circuit has acknowledged that this language
from Pierson can erroneously be read to require a more searching federal habeas review of state
court Fourth Amendment rulings than is appropriate under Stone. See Cabrera, 324 F.3d at 531
(“the Pierson approach nullifies the holding of Stone and leads to collateral relief whenever the
search violates the fourth amendment”). Any argument Serio advances based on the Pierson
formulation therefore fails. In any event, Serio’s arguments miss the mark even under Pierson,
for they all go to whether the state courts correctly applied Fourth Amendment precedent to the
facts, Doc. 27 at 2-4, and even Pierson cannot be read to permit federal habeas review of that
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question. See Hampton v. Wyant, 296 F.3d 560, 564 (7th Cir. 2002) (“a blunder, no matter how
obvious, matters only in conjunction with other circumstances that imply refusal by the state
judiciary to take seriously its obligation to adjudicate claims under the fourth amendment”). The
state appellate court considered Serios’s Fourth Amendment arguments and treated them
“seriously,” and that is all that Stone requires. Ibid.
II.
The State Trial Court’s Post-Remand Ineffective Assistance Hearing
Serio next argues that, during the hearing on his claim that his trial counsel had been
ineffective, the state trial court “should have asked [trial] counsel questions.” Doc. 1 at 9. The
basis for this argument is Illinois case law, especially People v. Moore, supra, which described
the inquiry a trial court must make in response to a defendant’s post-trial ineffective assistance
claim. Unless there is a basis for this argument in federal law, it is not cognizable on federal
habeas review. See 28 U.S.C. § 2254(a) (“a district court shall entertain an application for a writ
of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only
on the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States”) (emphasis added); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the
province of a federal habeas court to reexamine state-court determinations on state-law
questions”) (citation and internal quotation marks omitted).
It is true that the Sixth Amendment guarantees criminal defendants representation by
counsel and a certain minimum level of effectiveness. See Strickland v. Washington, 466 U.S.
668 (1984). However, the Sixth Amendment has not been interpreted to require judges
conducting ineffective assistance hearings to question the allegedly ineffective attorney. The
Illinois courts have set out procedures for such claims, in cases like Moore and People v.
Johnson, 636 N.E.2d 485, 497-99 (Ill. 1994), and those are the cases on which Serio grounds his
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argument that the state trial court erred in failing to question his allegedly ineffective trial
attorney. The state appellate court rejected Serio’s reading of Moore and the other relevant
Illinois cases, and whether the appellate court was right or wrong is irrelevant for present
purposes, as this court cannot review the state courts’ application of state law. It follows that the
state trial court’s failure to question Serio’s trial lawyer does not provide a ground for federal
habeas relief.
III.
Ineffectiveness of State Post-Conviction Appellate Attorney
Serio’s third argument concerns the failure of his state post-conviction appellate attorney
to press before the state appellate court the claims that Serio had raised before the trial court in
his post-conviction petition, a failure that led the appellate court to refuse to consider those
claims on the merits. Doc. 1 at 10. Serio contends that this court should find that his postconviction appellate counsel was ineffective in failing to press those claims, that this
ineffectiveness excuses his procedural default of those issues, and that this court should therefore
consider the merits of those claims. Ibid.
Serio cannot bring an independent claim that his post-conviction appellate counsel was
ineffective. The federal habeas statute provides that “[t]he ineffectiveness or incompetence of
counsel during Federal or State collateral post-conviction proceedings shall not be a ground for
relief in a proceeding arising under section 2254,” 28 U.S.C. § 2254(I), and thus by its terms
“precludes [Serio] from relying on the ineffectiveness of his postconviction attorney as a ‘ground
for relief,’” Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012). See Johnson v. McBride, 381 F.3d
587, 590 (7th Cir. 2004) (“Once trial and direct appeals have run their course, however, neither
the sixth amendment nor federal law guarantees effective assistance of counsel for collateral
proceedings.”). The court will consider, however, whether the alleged ineffectiveness of Serio’s
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post-conviction appellate attorney might nonetheless excuse his procedural default of the claims
that the attorney failed to press, thereby allowing this court to consider those claims despite the
procedural default.
A.
Procedural Default
The initial question is whether Serio in fact procedurally defaulted the arguments made to
the state trial court in his post-conviction petition. That petition argued that Serio’s attorney on
direct appeal had been ineffective and listed twenty-three claims that, according to Serio, the
attorney should have made but failed to make. Doc. 19-3 at 31-36. Thus, the post-conviction
petition effectively presented twenty-four claims: the preliminary claim that Serio’s attorney on
direct appeal had been ineffective, followed by the twenty-three claims that the allegedly
ineffective attorney had failed to make. Serio asks this court to address those twenty-four
claims. Doc. 1 at 10 (“Petitioner asks this court to address all of defendant’s issues argued in his
post conviction petition at this time.”).
The Warden responds that Serio procedurally defaulted those twenty-four claims by
failing to present them to the state appellate court on appeal from the dismissal of his postconviction petition. Doc. 18 at 22-26. The Warden is correct. “To preserve a question for
federal collateral attack, a person must present the contention to each level of the state
judiciary.” Bland v. Hardy, 672 F.3d 445, 449 (7th Cir. 2012) (citing O’Sullivan v. Boerckel,
526 U.S. 838 (1999)). Serio did not raise any of those twenty-four claims in appealing the
dismissal of his post-conviction petition; instead, his appeal made only two claims: “that his
right to a trial before a fair and impartial jury was abridged,” and “that defense counsel failed to
obtain evidence that would have discredited the prosecution’s theory that Ronald Ruhl [who, as
noted above, was also convicted of murdering Neubauer] murdered the victim because he owed
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money to Mr. Serio.” Doc. 19-4 at 8-13. As the state appellate court explained, neither of those
claims was raised in the post-conviction petition. Id. at 82-84. Therefore, the twenty-four
claims raised in Serio’s post-conviction petition but not in his post-conviction appeal are
procedurally defaulted, and this court cannot consider them unless some exception to the
procedural default rule applies.
In his reply brief in this court, Serio argues for the first time that this court should
consider the two claims that were raised in his state post-conviction appeal but not in his state
post-conviction petition before the trial court. By not raising those claims in his federal habeas
petition, Serio forfeited them. See Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (“the
district court is entitled to find that an argument raised for the first time in a reply brief is
forfeited”); Karim v. Hardy, 2013 WL 393330, at *1 (N.D. Ill. Jan. 31, 2013). Even putting
aside forfeiture, Serio procedurally defaulted those two claims. The state appellate court held
that Serio forfeited those two claims by failing to raise them before the trial court in his postconviction petition, and it cited authority for the proposition that this constituted a forfeiture
(called “waiver” in Illinois parlance) under Illinois law. Doc. 19-4 at 83; see 725 ILCS 5/122-3
(“Waiver of Claims. Any claim of substantial denial of constitutional rights not raised in the
original or an amended petition is waived.”); People v. Jones, 809 N.E.2d 1233, 1239 (Ill. 2004)
(“a defendant may not raise an issue for the first time while the matter is on review”); People v.
Johnson, 609 N.E.2d 304, 307 (Ill. 1993) (“We decline to address this claim, as it was not raised
in either the pro se or the amended petition for post-conviction relief, and was therefore
waived.”). “A state is entitled to treat as forfeited a proposition that was not presented in the
right court, in the right way, and at the right time—as state rules define those courts, ways, and
times. Failure to comply with the state’s procedural rules furnishes an independent and adequate
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state ground of decision that blocks federal collateral review.” Szabo v. Walls, 313 F.3d 392,
395 (7th Cir. 2002) (citation omitted). It follows that Serio procedurally defaulted those two
claims.
B.
Whether Serio Can Overcome the Procedural Default
“In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991); see also Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir. 2010) (same). The same
two exceptions apply where a prisoner procedurally defaults a claim under Boerckel by failing to
present it to each level of the state judiciary. See Smith v. McKee, 598 F.3d 374, 382 (7th Cir.
2010). “Cause for a default is ordinarily established by showing that some type of external
impediment prevented the petitioner from presenting his claim. Prejudice is established by
showing that the violation of the petitioner’s federal rights worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” Thompkins v.
Pfister, 698 F.3d 976, 987 (7th Cir. 2012) (citations and internal quotation marks omitted). “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, 598
F.3d at 387-88 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Serio can satisfy neither
exception to the procedural default rule.
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1.
Cause and Prejudice
Serio argues that the alleged ineffectiveness of his post-conviction appellate attorney
constitutes “cause” that could excuse the procedural default of the claims that the attorney failed
to press before the appellate court. Doc. 27 at 6. To support this argument, he quotes the
statement in Wrinkles v. Buss, 537 F.3d 804 (7th Cir. 2008), that “[a]ttorney error rising to the
level of ineffective assistance of counsel can constitute cause to set aside procedural default.”
Id. at 812. But the allegedly ineffective attorney in Wrinkles was the petitioner’s trial attorney,
while Serio’s case presents the question whether “cause” can be satisfied by the ineffective
assistance of the petitioner’s state post-conviction attorney.
Seventh Circuit precedent answers that question in the negative. Relying on Coleman,
501 U.S. at 752-57, the Seventh Circuit has held that “ineffective assistance of post-conviction
counsel does not supply ‘cause’ for the cause-and-prejudice formula under which federal courts
sometimes entertain claims that were not properly presented to the state courts.” Szabo, 313
F.3d at 397; see also Maples v. Thomas, 132 S. Ct. 912, 922 (2012) (“Negligence on the part of a
prisoner’s postconviction attorney does not qualify as ‘cause.’”). Last Term, the Supreme Court
“qualifie[d] Coleman by recognizing a narrow exception: Inadequate assistance of counsel at
initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a
claim of ineffective assistance at trial.” Martinez, 132 S. Ct. at 1315 (emphasis added). That
exception does not assist Serio, however, because the claim he procedurally defaulted is not
ineffective assistance of trial attorney, but rather ineffective assistance of his attorney on direct
appeal, along with the claims Serio believes his appellate attorney was ineffective in failing to
raise. Those procedurally defaulted claims do not include Serio’s claim that his trial attorney
was ineffective, the kind of claim addressed by Martinez; Serio’s attorney on direct appeal did
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make that claim, albeit without success. It follows under Szabo—which survived Martinez
except as to the procedural default of a claim of ineffective assistance by trial counsel—the
alleged ineffectiveness of Serio’s post-conviction appellate attorney cannot be “cause” to excuse
the procedural defaults. See Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012)
(“Martinez applies only to a prisoner’s procedural default of a claim of ineffective assistance at
trial, not to claims of deficient performance by appellate counsel.”) (internal quotation marks
omitted); Ibarra v. Thaler, 687 F.3d 222, 224 (5th Cir. 2012) (“Martinez, by its terms, applies
only to ineffective-assistance-of-trial-counsel claims.”). And because Serio cannot establish
cause, there is no need to determine whether he can satisfy the prejudice prong of the cause-andprejudice exception to procedural default.
2.
Fundamental Miscarriage of Justice
Serio’s short miscarriage of justice argument is not directed to his contentions regarding
the issues that he procedurally defaulted by failing to press them in his post-conviction appeal,
but rather to other claims that will be discussed in the next section. Serio therefore forfeited any
argument that the miscarriage of justice exception excuses his procedural default of the claims
not pressed in his post-conviction appeal. See Franklin v. Gilmore, 188 F.3d 877, 884 (7th Cir.
1999) (“[P]rocedural default will be excused if a defendant can show that a failure to review the
defendant’s claims would result in a fundamental miscarriage of justice. Franklin, however,
does not make this argument and we will not make it for him.”).
IV.
Illinois’s Jurisdiction to Try Serio and the Validity of the Indictment
Serio contends that his right to “due process was violated when Illinois prosecuted him
for 1st degree murder without jurisdiction over said murder. The evidence clearly shows
victim’s body was found in Wisconsin. And that victim was still alive when he was shot fatally
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in Wisconsin.” Doc. 1 at 10. Serio raised this claim in his state habeas petition. Doc. 19-3 at
124-26. But he never raised it in the state appellate court, Doc. 19-4 at 1-14, and this failure
constitutes a procedural default. See Bland, 672 F.3d at 449 (“To preserve a question for federal
collateral attack, a person must present the contention to each level of the state judiciary.”).
Serio also argues that “the indictment in [his criminal case] is void because it did not
charge [him] as accomplice even though there was no credible evidence to show defendant was
the shooter. The indictment charged defendant as the shooter to stop the defense from getting
instruction of conspiracy to commit murder as lesser included offense. If indictment is allowed
to stand a defendant could be indicted as the shooter, found not guilty, and then reindicted under
accountability theory. And indictment must list all elements of the accused crime to stop such
things from taking place.” Doc. 1 at 10. Serio raised this claim in an amendment to his state
habeas petition. Doc. 19-3 at 133-36. But as with his challenge to Illinois’s jurisdiction to try
him, he never raised the improper indictment claim to the state appellate court. Doc. 19-4 at 114. This claim is procedurally defaulted as well. See Bland, 672 F.3d at 449.
In the PLA he filed after the state appellate court rejected his post-conviction appeal,
Serio did briefly mention his arguments about the jurisdiction of the Illinois court to try him and
the validity of the indictment. Doc. 19-4 at 94 (“The court also dismissed petitioner’s State
Habeas Corpus challenging the State’s jurisdiction to prosecute petitioner for a murder that took
place in another State. The trial court dismissed stating because defendant filed noticed of
appeal on the dismissal of his post conviction petition the court lost[] jurisdiction to hear the
State Habeas Corpus issues.”). Whether or not this would suffice to “present” those issues to the
state supreme court, Serio did not present them to the state appellate court, and so he still failed
to present them to every level of the state judiciary.
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As mentioned above, Serio argues that the procedural default of his challenges to
Illinois’s jurisdiction to try him and to the validity of the indictment should be excused because
enforcing the default would result in a fundamental miscarriage of justice. Doc. 27 at 8. The
applicable standard “requires the habeas petitioner to show that ‘a constitutional violation has
probably resulted in the conviction of one who is actually innocent.’” Schlup, 513 U.S. at 327
(quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). But Serio makes no reference to
innocence. Instead, he states only: “It would be a ‘fundamental miscarriage of justice’ to allow a
‘void’ indictment to stand. Also to allow a prisoner to be convicted within a state that has no
legal jurisdiction to put him on trial for the crime he was convicted of committing.” Doc. 27 at
8. These arguments miss the mark. Serio does not contend that he is “actually innocent,” and so
he cannot show that a fundamental miscarriage of justice will result from this court’s refusing to
consider his procedurally defaulted arguments regarding Illinois’s jurisdiction to try him or the
allegedly defective indictment.
Conclusion
Because all of Serio’s claims are either non-cognizable or procedurally defaulted, his
petition for a writ of habeas corpus is denied. Rule 11(a) of the Rules Governing Section 2254
Cases states that “[t]he district court must issue or deny a certificate of appealability [(‘COA’)]
when it enters a final order adverse to the applicant.” See Lavin v. Rednour, 641 F.3d 830, 832
(7th Cir. 2011). “A certificate of appealability may issue … only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The
applicable standard is as follows:
To obtain a COA under § 2253(c), a habeas petitioner must make a
substantial showing of the denial of a constitutional right, a demonstration
that … includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a
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different manner or that the issues presented were adequate to deserve
encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks omitted); see also
Lavin, 641 F.3d at 832; Davis v. Borgen, 349 F.3d 1027, 1029 (7th Cir. 2003).
This court’s denial of Serio’s petition relies on settled precedent regarding the treatment
of Fourth Amendment claims and claims based on state rather than federal law, as well as on the
rules governing procedural default. The application of that law to Serio’s petition does not
present difficult or close questions, and so the petition does not meet the applicable standard for
granting a certificate of appealability. The court therefore denies a certificate of appealability.
February 14, 2013
United States District Judge
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