Thomas v. Lemke et al

Filing 42

MEMORANDUM Opinion and Order signed by the Honorable Andrea R. Wood on 1/16/2018. Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA ex rel.
PARIS THOMAS,
Petitioner,
v.
RANDY PFISTER, Warden, Stateville
Correctional Center,
Respondent.

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No. 13-cv-03749
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
In 2004, Petitioner Paris Thomas was convicted of first degree murder and home invasion
and was sentenced to consecutive prison terms of 40 years and 10 years, respectively. Thomas is
now serving his sentence at Stateville Correctional Center in Joliet, Illinois. Before the Court is
Thomas’s pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, in which he claims
that (1) his trial counsel was ineffective in a number of ways, (2) his counsel on direct appeal
was ineffective for failing to raise the various failings of his trial counsel, (3) the postconviction
trial court violated state law by making findings of fact before summarily dismissing his petition
as frivolous and patently without merit, and (4) his postconviction appellate counsel was
ineffective for failing to raise the purported error by the postconviction trial court and instead
raising only two other claims in his postconviction petition for leave to appeal (“PLA”). For the
reasons stated below, Thomas’s petition for a writ of habeas corpus is denied.
BACKGROUND
A federal court considering a petition for a writ of habeas corpus presumes correct the
factual findings made by the last state court to adjudicate the case on the merits, unless those
findings are rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Rever v.

Acevedo, 590 F.3d 533, 537 (7th Cir. 2010); Ward v. Sternes, 334 F.3d 696, 704 (7th Cir. 2003).
The last state court to make factual findings regarding Thomas’s case was the Illinois Appellate
Court, in its opinion on direct appeal affirming Thomas’s conviction. (See Ans. Ex. A, Order,
People v. Thomas, No. 1-04-2741 (Ill. App. Ct. Dec. 13, 2007), Dkt. No. 19-1; see also Mendiola
v. Schomig, 224 F.3d 589, 592‒93 (7th Cir. 2000) (stating that a state appellate court’s factual
findings are entitled to the same deference afforded to a state trial court’s findings)). Thomas
argues in conclusory fashion that he has presented “clear and convincing factual representations
that [are] contrary to lower courts[’] findings.” (Reply at 4, Dkt. No. 28.) But the Court, after
reviewing all of the materials submitted by Thomas, fails to discern any evidence that contradicts
the state court findings, and therefore those findings are accepted as correct.
A.

Trial Proceedings1

Thomas was indicted along with Bishara Thomas (“Bishara”), Steven Jackson, and
Terrell Sims for the April l, 2002 home invasion and murder of Tonette Waters. The cases of the
four defendants were severed prior to trial. Because Thomas opted for a jury trial and Sims opted
for a bench trial, the trials of those two defendants were held at the same time, while Bishara and
Jackson were tried later.
1.

Thomas’s Videotaped Statement

A key piece of evidence in the State’s case against Thomas was his videotaped statement
taken during an interview by Assistant State’s Attorney Kim Ward. The statement was made
after Thomas had received Miranda warnings and signed a consent form. Ward conducted most
of Thomas’s initial interview in the presence of Chicago Police Detective Adrian Garcia. Ward
and Garcia also testified at trial.
1

Except where otherwise indicated, the facts set forth in this section are taken from the Illinois Appellate
Court’s opinion affirming Thomas’s conviction. (Ans. Ex. A, Order, People v. Thomas, No. 1-04-2741, at *2–

10 (Ill. App. Ct. Dec. 13, 2007).)

2

In his videotaped statement, Thomas stated that he had encountered his cousin, Steven
Jackson, on the afternoon of Waters’s murder. Both Thomas and Jackson were members of the
Traveling Vice Lords street gang. Jackson asked Thomas whether he wanted to perform a
“lick”—slang for a robbery—for $8,000 in money or drugs. Thomas agreed, and he and Jackson
drove to the home of Terrell Sims, another Traveling Vice Lord with whom Thomas was close.
Thomas told Sims about the planned robbery and asked Sims whether he wanted to participate
for a share of the proceeds. Thomas, Jackson, and Sims then picked up Bishara, another
Traveling Vice Lord, and drove to Waters’s apartment, where she lived with her children and
Lavarious Edwards.
After they arrived at Waters’s apartment, Jackson knocked on the door. When Waters
answered, Thomas told Waters he had Edwards’s keys. When Waters opened the door, Thomas
grabbed her around the waist and turned her aside to allow his accomplices to enter. Jackson
grabbed Waters by her hair and passed her to Bishara, who held her at gunpoint. Bishara and
Jackson took Waters to the back of the apartment while Thomas searched the front. After some
time, Bishara and Jackson returned to the front of the apartment with Waters, and Thomas and
Sims searched the back. After Thomas and Sims found no money, they returned to the front of
the apartment, noticing Waters’s two children for the first time. Bishara and Jackson again took
Waters to the back of the apartment, and when they returned a short time later, Waters was
naked. Waters began screaming, and Jackson told Thomas and Sims to exit through the back
door. Thomas and Sims ran to the car they had left in the alley and waited until Jackson and
Bishara joined them. Jackson then drove Thomas and Sims to Thomas’s house.
Thomas claimed in his videotaped statement that he did not know Waters was dead until
his family told him that a neighborhood girl had been shot and killed. He stated that he went to

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the apartment to commit robbery, not to kill anyone. He explained that they brought the gun to
scare Lavarious Edwards if he was present.
Before trial, Thomas moved in limine to redact a portion of the videotaped confession in
which he stated that he or his accomplices usually carried a gun during robberies “for safety.”
Thomas’s counsel argued that this statement referenced prior uncharged offenses, assumed other
crimes, and would be highly prejudicial. The State argued that the statement was merely an
admission that went to Thomas’s intent and knowledge of the presence of the gun, and was not
prejudicial. The trial court denied the motion but offered to instruct the jury to limit its
consideration of that portion of the videotape to issues of Thomas’s intent and knowledge.
Thomas’s counsel declined that offer, and the videotaped statement was entered into evidence at
trial.
2.

Testimony of James Chatman

James Chatman, Bishara’s cousin, testified at trial that on April 1, 2002, Bishara and
Jackson came to his house, Bishara retrieved something from the basement, and then Bishara and
Jackson left his house. Bishara returned 20 minutes later, entered the house, tossed the gun to
Chatman, and told him, “We just did something with this.” Chatman further testified that Bishara
then washed his hands and face. Chatman testified that he could feel that the gun was warm, and
he wrapped it in a shirt and took it back into the basement. Chatman later heard that Waters, his
girlfriend’s best friend, had been killed. He then called the police and arranged to turn in the gun.
3.

Testimony of Kurt Zielinski

Kurt Zielinski, a forensic scientist with the Illinois State Police, testified as an expert in
firearms identification. Zielinski testified that, in his expert opinion, a bullet recovered from

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Waters’s body had been fired from the firearm identified by Chatman to the exclusion of all
other firearms.
4.

Testimony of Varielle Edwards

Varielle Edwards (“Varielle”), the eight-year-old daughter of Waters, testified that she
had fallen asleep and awoke when her mother entered Varielle’s room with a man holding a gun
to her ear, as three other men ransacked the apartment. Varielle later entered the bathroom to find
her mother naked, with one of the men holding her. Three of the men exited the apartment
through the rear door, and the man who was holding Waters shot her in the head. After watching
her mother’s murder, Varielle grabbed her younger brother and ran across the street to her
grandmother’s house. Varielle initially told police that there were three intruders but she could
not identify them.
5.

Jury Instructions and Verdict

The jury was instructed that it could convict Thomas of first-degree murder
when he kills an individual if in performing the acts which caused the death he
intended to kill or do great bodily harm to that individual, or he knows that such
acts will cause death to that individual, or he knows that such acts create a strong
probability of death or great bodily harm to that individual, or he was committing
the offense of home invasion or he was attempting to commit the offense of
armed robbery.
(Ans. Ex. T at 103, Dkt. No. 19-20; Ans. Ex. V at 84, Dkt. No. 19-22.) The jury was given
general verdict forms for the offense of first-degree murder—one form stating that the jury found
Thomas guilty of first-degree murder and the other form stating that the jury found Thomas not
guilty of that offense. (Ans. Ex. V at 90‒91, 95, Dkt. No. 19-22.) The jury found Thomas guilty
of one count of first-degree murder and one count of home invasion. Thomas was ultimately
sentenced to consecutive terms of 40 years’ imprisonment for first-degree murder and 10 years’
imprisonment for home invasion.
5

B.

Direct Appeal

On direct appeal, Thomas argued that:
(1) the State failed to prove him guilty of murder beyond a reasonable doubt;
(2) the prosecutor’s closing argument denied him a fair trial by:
(a) misstating the law regarding accountability,
(b) using a pre-arrest photograph of Thomas to rebut Thomas’s claim that
his confession was coerced, and
(c) incorrectly stating that Thomas grabbed Waters by her braids;
(3) trial counsel was ineffective for:
(a) eliciting harmful testimony on cross-examination,
(b) failing to question jurors about their potential bias against gangs,
(c) declining the trial court’s offer to provide a limiting instruction
regarding Thomas’s admission that he and his accomplices typically bring
a gun to a robbery “for safety,”
(d) failing to move to suppress Thomas’s confession,
(e) failing to present evidence to support his opening statement claim that
Thomas’s confession was coerced, and
(f) failing to object to photographs of the victim.
(Ans. Ex. A at 1‒2, Dkt. No. 19-1; Ans. Ex. L at 2, 23, 26, Dkt. No. 19-12.)
The Illinois Appellate Court affirmed Thomas’s conviction and sentence. (Ans. Ex. A at
36.) In so doing, the court first rejected Thomas’s argument that the State failed to prove the
corpus delicti underlying his murder conviction, reasoning that Thomas admitted in his
videotaped statement that he had agreed to participate in robbing Waters’s apartment; tricked
Waters into opening her door; and searched Waters’s apartment for money. (Id. at 14.) The court
further noted that Thomas had stated that Jackson and Bishara held Waters at gunpoint, that

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Waters was naked the last time he saw her, that he saw two children in the apartment, and that he
and Sims exited the apartment through the rear door. (Id.) The court further observed that the
State had presented independent, mutually-corroborating evidence on several points, including
Varielle’s testimony that one of the intruders shot her mother in the back of the head and forensic
confirmation that the gun Bishara borrowed from Chatman was the murder weapon. (Id. at 14–
15.) Given this evidence, the court found that the evidence established the corpus delicti of the
crime of murder. (Id. at 15.) The court also found that the evidence described above was
sufficient to sustain Thomas’s home-invasion conviction. (Id. at 16.)
The Illinois Appellate Court also rejected Thomas’s ineffective assistance of counsel
claims. In particular, it reasoned that counsel may have reasonably declined the trial court’s offer
to provide a limiting instruction regarding Thomas’s statement that he and his accomplices
typically bring a gun to robberies in order “to avoid unduly emphasizing” the other crimes that
the statement implied. (Id. at 35.) It further found that counsel did not perform unreasonably in
opting not to move to suppress Thomas’s confession, given that the record contained no evidence
to support such a motion. (Id. at 35–36.)
After his conviction was affirmed by the Illinois Appellate Court, Thomas filed a petition
for leave to appeal (“PLA”) to the Illinois Supreme Court, raising the same claims that he had
advanced in the appellate court. (See Ans. Ex. M at 7–8, Dkt. No. 19-13.) The Illinois Supreme
Court denied the PLA. (People v. Thomas, 904 N.E.2d 985 (Ill. 2009) (Table).) The United
States Supreme Court subsequently denied Thomas’s petition for a writ of certiorari. (Thomas v.
Illinois, 558 U.S. 997 (2009).)

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D.

Postconviction Petition and Appeal

In April 2010, Thomas filed a petition for postconviction relief in state trial court, raising
two claims under 725 ILCS 5/122, et seq.:
(1) that his trial counsel was ineffective for:
(a) failing to request separate verdict forms on Thomas’s murder indictments,
(b) failing to challenge the sufficiency of the evidence in a post-trial motion,
(c) failing to object to the constructive amendment of Thomas’s indictments,
(d) failing to interview or call Thomas’s codefendants to testify that Thomas fled
before Bishara shot Waters,
(e) failing to move to suppress Thomas’s videotaped statement based on the fact
that he was presented to a court 39 hours after his arrest,
(f) stipulating to the medical examiner’s testimony, and
(g) these errors cumulatively; and
(2) that appellate counsel was ineffective for failing to:
(a) raise trial counsel’s errors,
(b) preserve the sufficiency-of-evidence claim, and
(c) argue that Thomas was not found guilty beyond a reasonable doubt.
(Ans. Ex. C at 1–2, Dkt. No. 19-3; Ans. Ex. D at 2–13, Dkt. No. 19-4.)
The postconviction trial court dismissed the petition, holding that all of Thomas’s claims
were either barred by res judicata because the claims had been rejected on direct appeal, or
forfeited because they could have been raised on direct appeal but were not. (Ans. Ex. C at 7,
Dkt. No. 19-3.) The postconviction trial court alternatively held that each claim was meritless.
(Id.)

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Thomas timely appealed the postconviction trial court’s decision. On postconviction
appeal before the Illinois Appellate Court, Thomas argued that his trial counsel was ineffective
for failing to request separate verdict forms for each theory of first-degree murder. (Ans. Ex. E at
2, Dkt. No. 19-5.) Thomas further argued that his counsel on direct appeal was ineffective for
failing to raise this claim and also for failing to challenge the sufficiency of the evidence
underlying Thomas’s murder charge “on a theory of accountability.” (Id.) The Illinois Appellate
Court affirmed the dismissal of the postconviction petition, finding that Thomas’s direct-appeal
counsel had raised a sufficiency-of-evidence claim on direct appeal and that Thomas “failed to
overcome the presumption that [trial] counsel’s failure to request separate verdict forms was the
product of sound trial strategy where requesting separate verdict forms may have made it easier
for the jury to find [Thomas] guilty of murder under a theory of felony murder due to the
overwhelming evidence of his participation in the underlying home invasion.” (Ans. Ex. B at 4–
6, Dkt. No. 19-2 (citing Strickland v. Washington, 466 U.S. 668 (1984)).)
Thomas subsequently filed a postconviction PLA with the Illinois Supreme Court. (Ans.
Ex. H at 25, Dkt. No. 19-8.) His postconviction PLA raised two claims: that his trial counsel was
ineffective for failing to request separate verdict forms for each theory of first-degree murder,
and that his direct-appeal counsel was ineffective for failing to raise his trial counsel’s
ineffectiveness. (Id. at 3, 12–14.) The Illinois Supreme Court denied Thomas’s postconviction
PLA. (People v. Thomas, 981 N.E.2d 1002 (Ill. 2012) (Table).)
LEGAL STANDARD
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides that this Court
may not grant a petition for a writ of habeas corpus unless a state court decision “was contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by

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the Supreme Court of the United States” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). In
addition, to qualify for federal habeas review, a federal constitutional claim must have been
“fully and fairly presented . . . to the state appellate courts, thus giving the state courts a
meaningful opportunity to consider the substance of the claims that [petitioner] later presents in
his federal challenge.” Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005). To have been fairly
presented, the claim must have been asserted in one complete round of state-court review—either
on direct appeal or in postconviction proceedings. Lewis v. Sternes, 390 F.3d 1019, 1025 (7th
Cir. 2004). In Illinois, one complete round of review includes the filing of a PLA with the Illinois
Supreme Court. O’Sullivan, 526 U.S. at 845–46. When a petitioner has failed to fairly present his
federal constitutional claim to the state courts and the opportunity to raise that claim has passed,
the claim is procedurally defaulted for purposes of federal habeas review. Gonzales v. Mize, 565
F.3d 373, 380 (7th Cir. 2009).
Federal courts may review procedurally defaulted claims in two instances. First, if the
petitioner establishes cause for failure to raise the claim and actual prejudice resulting therefrom.
Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007). The United States Supreme Court has
defined cause sufficient to excuse procedural default as “some objective factor external to the
defense,” which precludes a petitioner’s ability to pursue his claim in state court. Murray v.
Carrier, 477 U.S. 478, 488 (1986). Second, if the petitioner establishes that a federal court’s
refusal to consider the defaulted claim would result in a fundamental miscarriage of justice—that
is, where the constitutional violation has probably resulted in a conviction of one who is actually
innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995). To show “actual innocence,” a petitioner
must present clear and convincing evidence that no reasonable juror would have convicted him if

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not for the alleged trial errors. Id. He must support his allegations “with new reliable evidence—
whether exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Id. at 324.
Because Thomas filed his petition pro se, it must be “liberally construed,” Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Estelle v. Gamble, 429 U.S. 97, 106 (1976), and held to less
stringent standards than formal pleading drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520
(1972); Hughes v. Rowe, 449 U.S. 5, 9–10 (1980).
DISCUSSION
Thomas asserts four claims before this Court:
(1) Trial counsel was ineffective for failing to:
(a) “request separate verdict forms on murder indictments”;
(b) “challenge [the] sufficiency of evidence or put it in a pre-trial motion”;
(c) “object to constructive amendment of indictment”;
(d) interview and call Thomas’s codefendants as witnesses at his trial;
(e) move to suppress unspecified evidence “based upon a prompt
presentment hearing;”
(f) object on unspecified grounds to the medical examiner’s stipulated
testimony;
(g) perform all of the above, which acted cumulatively to prejudice
Thomas’s defense;
(2) Counsel on direct appeal was ineffective for failing to raise trial counsel’s
failures to:
(a) object to the purported constructive amendment of the indictment;
(b) call Thomas’s co-defendants at trial;
(c) file a motion to suppress unspecified evidence; and

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(d) raise unspecified “confrontation issues;”
(3) The postconviction trial court violated Thomas’s due process and equal
protection rights by making findings of fact before summarily dismissing his
petition as frivolous and patently without merit, contrary to the “state statute
governing post-conviction proceedings;” and
(4) Postconviction appellate counsel was ineffective for:
(a) failing to raise claim 3, above; and
(b) raising only two claims in Thomas’s postconviction PLA.
(Pet. at 7‒13, Dkt. No. 1.)2
I.

Ineffective Assistance of Counsel Claims
A.

Ineffective Assistance of Postconviction Appellate Counsel

As an initial matter, Thomas’s claim for habeas relief based on purported ineffective
assistance of his postconviction appellate counsel does not present a cognizable ground for
federal habeas relief. “The 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); see also Martinez v. Ryan, 566 U.S. 1, 17 (2012)
(“Section 2254(i) precludes [a habeas petitioner] from relying on the ineffectiveness of his
postconviction attorney as a ‘ground for relief’”); Johnson v. McBride, 381 F.3d 587, 590 (7th
2

While his petition was pending before this Court, Thomas filed a Motion to Cite Additional Authority
seeking leave to cite the decision in Adorno v. Pierce, No. 14-cv-00791, 2016 WL 1719788 (N.D. Ill.
April 29, 2016). (Dkt. No. 40.) The Court grants Thomas’s motion but the additional authority does not
affect the Court’s analysis for two reasons. First, Thomas’s motion asserts that this additional authority
supports his argument that he was denied due process and equal protection when the jury was presented
with two different standards of proof in the jury instructions, a preponderance of evidence standard for
“accountability,” and a beyond a reasonable doubt standard for murder and home invasion. (Id. at 2‒3.)
But Thomas made no such argument in his petition or in his reply in support. (See Dkt. Nos. 8, 28.)
Indeed, Thomas did not make any arguments regarding jury instructions in his petition at all. Second,
even if Thomas had made such an argument in his petition, Adorno would not affect the Court’s analysis
because, since Thomas’s motion, the Seventh Circuit has reversed Adorno, clarifying that an instruction
explaining the reasonable-doubt standard “will amount to federal constitutional error only if ‘there is a
reasonable likelihood that the jury understood the [remarks] to allow conviction based on proof
insufficient to meet the [reasonable-doubt] standard.’” Adorno v. Melvin, No. 16-2273, 2017 WL
5952105, *3 (7th Cir. Dec. 1, 2017) (quoting Victor v. Nebraska, 511 U.S. 1, 6 (1994)).

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Cir. 2004) (“Once trial and direct appeals have run their course . . . neither the sixth amendment
nor federal law guarantees effective assistance of counsel for collateral proceedings.”).
Accordingly, the Court denies habeas relief based on this claim.
B.

Procedurally-Defaulted Claims

Respondent argues that a number of Thomas’s ineffective assistance of counsel claims
have been procedurally defaulted. Thomas contends in conclusory fashion that he raised all of
the claims at issue here in state court. (Reply at 2, 4, Dkt. No. 28.) After a review of the record,
however, it is clear to this Court that most of Thomas’s claims listed above were not subject to a
complete round of state court review and thus are procedurally defaulted. Specifically:


Thomas claims that his trial counsel was ineffective for failing to “challenge [the]
sufficiency of evidence or put it in a pre-trial motion.” (Pet. at 7, Dkt. No. 1.) Even
construing this argument broadly, the Court finds that this is procedurally defaulted.
Although Thomas argued in his initial postconviction petition before the state trial
court that his trial counsel “was ineffective for not raising a challenge to the
sufficiency of the evidence in a post-trial motion,” (Ans. Ex. D at 4–6, Dkt. No. 194), Thomas did not present this argument in his postconviction appeal or
postconviction PLA. And he did not raise this claim at all on direct appeal.



Thomas claims that his trial counsel was ineffective for failing to “object to
constructive amendment of indictment.” (Pet. at 8, Dkt. No. 1.) Thomas raised this
issue in his initial postconviction petition, arguing that his trial counsel was
ineffective “for not objecting to the constructive amendment of the petitioner’s
indictments for first degree murder.” (Ans. Ex. D at 6, Dkt. No. 19-4.) However, he
did not present this argument in his postconviction appeal or postconviction PLA. He
also did not raise this claim on direct appeal.



Thomas claims that his trial counsel was ineffective for failing to interview and
subpoena Thomas’s co-defendants. (Pet. at 8, Dkt. No. 1.) Thomas argued in his
postconviction petition that his “[t]rial counsel was ineffective for failing to interview
and subpoena the petitioner’s co-defendants to testify at trial, thereby not subjecting
the State’s case to adversarial testing.” (Ans. Ex. D at 8, Dkt. No. 19-4.) He did not
present this argument in his postconviction appeal or postconviction PLA. Nor did he
raise this argument on direct appeal.



Thomas claims that his trial counsel was ineffective for failing to object to the
medical examiner’s stipulated testimony. (Pet. at 9, Dkt. No. 1.) Although Thomas
argued in his postconviction petition that trial counsel was ineffective for not
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objecting to the stipulation of the medical examiner’s testimony (Ans. Ex. D at 11–
12, Dkt. No. 19-4), Thomas failed to include this argument in either his
postconviction appeal or his postconviction PLA. Thomas also never raised this
argument on direct appeal.


Thomas claims that his trial counsel was ineffective for failing to “file a motion to
suppress evidence, based upon a prompt presentment hearing.” (Pet. at 9, Dkt. No. 1.)
Although Thomas does not specify what evidence his counsel purportedly failed to
attempt to suppress, this argument corresponds with the argument he raised in his
postconviction petition faulting his trial counsel for failing to file “a motion to
suppress [Thomas’s videotaped] statement for the State’s failure to comply with the
‘prompt presentment’ requirement.” (Ans. Ex. D at 10–11, Dkt. No. 19-4.) However,
Thomas did not include this argument in either his postconviction appeal or his
postconviction PLA, and never raised this issue on direct appeal.3



Thomas argues that his trial counsel’s cumulative errors prejudiced his defense. (Pet.
at 10, Dkt. No. 1.) Thomas argued in his postconviction petition that his
“constitutional right to the effective assistance of counsel was violated due to trial
counsel’s cumulative errors.” (Ans. Ex. D at 12–13, Dkt. No. 19-4.) Thomas failed to
raise this argument in either his postconviction appeal or his postconviction PLA, and
he did not raise the claim on direct appeal.

Accordingly, these claims are all procedurally defaulted.
Thomas also raises a number of claims regarding the ineffective assistance of his directappeal counsel. However, the only such claim he raised in his postconviction proceedings was
that his direct-appeal counsel was ineffective for failing to raise trial counsel’s ineffectiveness in
not requesting separate verdict forms on Thomas’s murder indictments. (See Ans. Exs. D, E, H,
Dkt. Nos. 19-4, 19-5, 19-8.) Thomas did not request habeas relief from this Court on that basis,
and thus all of Thomas’s claims regarding the ineffective assistance of his direct-appeal counsel
are procedurally defaulted.

3

On direct appeal, Thomas did claim that his attorney was ineffective for failing to file a motion to
suppress his videotaped statement on the premise that it was coerced. (Ans. Ex. L at 9–16). This argument
was asserted through an entire round of state-court review, as Thomas also included this claim in his PLA
on direct appeal. (Ans. Ex. M at 8, Dkt. No. 19-13.) However, the argument regarding failure to file a
suppression motion brought before this Court (and in Thomas’s postconviction petition) is based on a
separate set of facts and is procedurally defaulted because it was not asserted through a full round of statecourt review. See Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005) (“In the state courts, the petitioner
must present both the operative facts and legal principles that control each of his claims.”).

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None of Thomas’s procedurally-defaulted claims fall within the (1) cause and prejudice,
or (2) fundamental miscarriage of justice exceptions that would allow this Court to review them
despite procedural default. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Thomas argues that
his failure to assert the defaulted claims was caused by the ineffective assistance of his directappeal counsel. (See Reply at 26–27, Dkt. No. 28.) However, a claim of ineffective assistance of
counsel cannot serve as cause to excuse procedural default unless the petitioner raised it as an
independent claim in one full round of state-court review or, if the claim is itself defaulted,
unless petitioner can show cause and prejudice for that ineffective assistance claim. Edwards v.
Carpenter, 529 U.S. 446, 451–52 (2000) (“[I]neffective assistance adequate to establish cause
for the procedural default of some other constitutional claim is itself an independent
constitutional claim . . . [which must] be first raised in state court.” (emphasis in original));
Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010). As discussed above, Thomas has not
pursued a claim regarding his direct-appeal counsel’s performance through a complete round of
state-court review, nor has he shown any independent cause and prejudice to excuse this default.
Thomas also claims that his lack of counsel when he filed his postconviction petition
serves as cause for his procedural default pursuant to Martinez v. Ryan, 132 S. Ct. 1309 (2012).
(Reply at 41, Dkt. No. 28.) The Martinez Court held that cause may excuse a default if: “(1) the
claim of ineffective assistance of trial counsel was a substantial claim; (2) the cause consisted of
there being no counsel or only ineffective counsel during the state collateral review proceeding;
(3) the state collateral review proceeding was the initial review proceeding in respect to the
ineffective-assistance-of-trial counsel claim; and (4) state law requires that an ineffective
assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.”
Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (quoting Martinez, 132 S. Ct. at 1318–19, 1320–

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21)). However, Martinez is not applicable to cases originating in Illinois because Illinois courts
consider ineffective assistance claims on direct appeal, and thus collateral proceedings are not
the first opportunity to raise such claims. E.g., People v. Miller, 988 N.E.2d 1051, 1062 (Ill. App.
Ct. 2013); Chatman v. Magana, No. 14-cv-01650, 2014 WL 3866016, at *5 (N.D. Ill. Aug. 6,
2014) (holding that an Illinois prisoner could not successfully invoke Martinez); Puente v.
Chandler, No. 04-cv-04877, 2014 WL 1318675, at *9–10 (N.D. Ill. Apr. 1, 2014) (same).
Because Thomas has not shown cause sufficient to waive procedural default, the cause and
prejudice exception does not apply to Thomas’s defaulted claims.
Thomas also has not shown a fundamental miscarriage of justice. Although Thomas
argues that he is actually innocent of the crime of first-degree murder because the State failed to
prove that he “aimed and pulled a trigger on a gun, to shoot or kill anyone,” (Reply at 44‒45,
Dkt. No. 28), this argument (aside from the fact that it miscomprehends the legal theory under
which he was convicted) fails to meet the “demanding” standard required to establish actual
innocence. Coleman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014) (“[T]enable actual-innocence
gateway pleas are rare: [A] petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable doubt.”). Thomas offers no new evidence of
his innocence, much less evidence sufficient to meet this high standard. See id.; Schlup v. Delo,
513 U.S. 298, 324 (1995) (a show of actual innocence requires “new, reliable evidence . . . that
was not presented at trial”).

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C.

Remaining Ineffective Assistance Claim

Thomas raises a single cognizable claim for ineffective assistance of counsel that has not
been defaulted: that his trial counsel was ineffective for failing to request separate verdict forms
for each theory of first-degree murder upon which his prosecution was based.
Reversing Thomas’s conviction on the basis of this claim is only appropriate if he can
show that (1) “counsel’s performance was deficient,” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the
first prong, the standard for measuring counsel’s performance “is that of reasonably effective
assistance,” and “a court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id. at 687, 689. That is, in evaluating a
claim for ineffective assistance, the Court presumes that counsel was competent. Kimmelman v.
Morrison, 477 U.S. 365, 384 (1986). Deficient performance requires a showing “that counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland, 455 U.S. at 687. With respect to the second
prong, to establish prejudice, a petitioner “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. A court need not address both prongs of the Strickland test if one provides the
answer; that is, if a court determines that counsel’s performance was not deficient, the court need
not consider the prejudice issue. Id. at 697.
Additionally, Thomas’s verdict-forms claim was adjudicated by the state courts, which
rejected the claim on Thomas’s postconviction petition (Ans. Ex. C at 7–8, Dkt. No. 19-3) and
on postconviction appeal. (Ans. Ex. B at 5–6, Dkt. No. 19-2.) The claim is therefore subject to

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the strictures of 28 U.S.C. § 2254(d), which precludes relitigation of a claim adjudicated on the
merits in state court unless that state-court decision was “(1) contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) 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). When assessing an
ineffective assistance claim that was adjudicated on the merits by the state court, a federal court’s
habeas inquiry is “doubly deferential;” the Court does not ask whether the state court’s
Strickland determination was incorrect, “but whether that determination was unreasonable—a
substantially higher threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting
Schriro v. Landrigan, 550 U.S. 465, 473 (2007)).
This Court finds that the Illinois Appellate Court did not unreasonably apply the
Strickland standard in its denial of Thomas’s postconviction petition claim that his trial counsel
was deficient in failing to request separate verdict forms for each theory of first-degree murder
upon which his prosecution was based. Thomas argued before the Illinois Appellate Court that if
the jury had been asked to specify the theories under which it found him guilty of murder, the
jury might have found him guilty only of felony murder, thus preventing the court from
sentencing him for the home invasion upon which the felony-murder theory was predicated.
(Ans. Ex. E at 22–23.) The Illinois Appellate Court rejected this argument, finding that Thomas
“failed to overcome the presumption that counsel’s failure to request separate verdict forms was
the product of sound trial strategy where requesting separate verdict forms may have made it
easier for the jury to find defendant guilty of murder under a theory of felony murder due to the

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overwhelming evidence of his participation in the underlying home invasion.”4 (Ans. Ex. B at 5,
Dkt. No. 19-2.) Given the circumstances of the criminal case against Thomas—the appellate
court on direct review also commented on the “overwhelming evidence of Thomas’[s] guilt”
(Ans. Ex. A at 26, Dkt. No. 19-1)—this Court declines to find that the decision was an
unreasonable application of Strickland. See Strickland, 466 U.S. at 689 (petitioner “must
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy”) (internal quotation marks omitted). The Illinois Appellate Court
also found that because Thomas failed to make a showing that trial counsel’s performance was
deficient under Strickland, it did not need to address the prejudice prong of that test. (Ans. Ex. B
at 5, Dkt. No. 19-2.) Again, this conclusion is consistent with Strickland. 466 U.S. at 697
(“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both
components of the inquiry if the defendant makes an insufficient showing on one.”).
II.

Findings of Fact and Credibility Determinations by Postconviction Trial Court
Finally, Thomas also argues that he deserves habeas relief because the postconviction

trial court violated his due process and equal protection rights. According to Thomas, the
postconviction trial court violated the “state statute governing post-conviction proceedings.”
(Pet. at 11–12, Dkt. No. 1.) He elaborates on this argument in his reply brief, arguing that the
postconviction trial court violated 725 ILCS 5/122–2, the Illinois Post-Conviction Hearing Act,
by impermissibly engaging in findings of fact and credibility determinations. (Reply at 6–13,
Dkt. No. 28.)
Such a claim is not cognizable on federal habeas review. This Court cannot grant habeas
relief based only on state court determinations of state law questions. Hemphill v. Hardy, No. 114

This decision was in line with other Illinois Appellate Court decisions rejecting this argument. (Ans. Ex. B at 5,
Dkt. No. 19-2 (citing People v. Calhoun, 935 N.E.2d 663, 682. (Ill. App. Ct. 2010); People v. Mabry, 926 N.E.2d
732, 741 (Ill. App. Ct. 2010); People v. Braboy, 911 N.E.2d 1189, 1197 (Ill. App. Ct. 2009))).

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cv-01282, 2011 WL 2712592, at *6 (N.D. Ill. July 13, 2011) (“Whether the Illinois court
misapplied the state law standard under 725 ILCS 5/122–2 [the Illinois Post–Conviction Hearing
Act], however, is not a cognizable claim on federal habeas review.” (citing Estelle v. McGuire,
502 U.S. 62, 67‒68 (1991) (“[I]t is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.”))).
This claim therefore cannot provide a ground for granting Thomas’s petition unless it
somehow implicates federal law. 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.”). But Thomas’s attempt to convert his argument regarding the state
statute into a federal constitutional claim also must fail. Thomas argues that misapplication of the
statute constitutes a violation of the Equal Protection and Due Process Clauses. It is well
established, however, that there is no constitutional right to state collateral review of a criminal
conviction. See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (“States have no obligation to
provide [collateral] relief.”); Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996) (“No
constitutional provision or federal law entitles [defendant] to any state collateral review. . . .
Unless state collateral review violates some independent constitutional right . . . errors in state
collateral review cannot form the basis for federal habeas corpus relief.”). Therefore, any
allegation “that the State may have failed to comply with its post-conviction procedures would
not raise a cognizable federal habeas claim.” Resendez v. Smith, 692 F.3d 623, 628 (7th Cir.
2012). Accordingly, the Court denies Thomas’s claim for habeas relief based on the
postconviction trial court’s purported error.

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CONCLUSION
For the foregoing reasons, Thomas’s petition for a writ of habeas corpus pursuant to 28
U.S.C § 2254 is denied. Since reasonable jurists would not find this Court’s ruling debatable, see
Slack v. McDaniel, 529 U.S. 473, 484 (2000), this Court declines to certify any issues for appeal
under 28 U.S.C § 2253(c).

ENTERED:

Dated: January 16, 2018

________________________________
Andrea R. Wood
United States District Judge

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