Paige v. Harrington et al

Filing 19

MEMORANDUM Opinion and Order. Signed by the Honorable Robert W. Gettleman on 7/23/2014.(rm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MELVIN PAIGE, R15339,
Petitioner,
v.
RICK HARRINGTON, Warden, Menard
Correctional Center,
Respondent.

)
)
)
)
)
)
)
)
)

No. 13 C 5092
Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER
Petitioner Melvin Paige has filed a pro se petition for habeas corpus relief pursuant to the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. For the
reasons discussed below, the habeas petition is denied, and the court declines to issue a
certificate of appealability.
BACKGROUND
In 1999, petitioner, who was sixteen years old, murdered Emil Mennes, an elderly man
who lived in the same condominium complex as petitioner in Palatine, Illinois. Petitioner had
entered Mennes’ condominium through an unlocked front door and stabbed Mennes to death
with a letter opener. Before leaving, he took Mennes’ rosary with a silver cross. Petitioner
confessed to the crime, stating that he murdered Mennes because he had looked at him in a
“disrespectful” way earlier that day. A jury in Cook County, Illinois found petitioner guilty of
first-degree murder, home invasion, and residential burglary. He was sentenced to fifty years
imprisonment for murder, twenty-five years for home invasion, and fifteen years for residential
burglary. The latter two sentences were imposed consecutive to each other and concurrent with
the murder sentence.

Petitioner then filed an appeal, arguing, among other things, that Illinois’ Truth-inSentencing Statute, 730 ILCS 5/3-6-3(a)(2)(I), violates due process because it fails to account for
the potential rehabilitation of minors. The Illinois Appellate Court vacated petitioner’s
residential burglary conviction but affirmed the rest of the judgment. Petitioner then petitioned
for leave to appeal (PLA) in the Illinois Supreme Court but dropped the Truth-in-Sentencing
claim from his argument.1 On March 5, 2005, the Illinois Supreme Court denied the PLA.
In March 2005, petitioner filed a pro se post-conviction petition in the Circuit Court of
Cook County. Petitioner argued that the trial court did not properly consider multiple victimimpact statements at sentencing, and that his trial and appellate counsel were ineffective because
they did not object and raise the issue on appeal. The trial court dismissed the post-conviction
petition. Petitioner appealed, and the state appellate court dismissed the appeal. The Illinois
Supreme Court vacated the state appellate court’s order and remanded the petition to the trial
court for further proceedings.
On remand, the trial court again denied post-conviction relief. Petitioner appealed, and
his counsel filed a motion to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987), which
the state appellate court granted. The court then affirmed the trial court’s denial of relief.
Petitioner did not file a PLA to the Illinois Supreme Court for review of the state appellate
court’s decision on post-conviction relief.
On July 16, 2013, petitioner filed the instant petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, raising one claim: that the Illinois Truth-in-Sentencing statute violates
1

Petitioner argued that the trial court erred in finding that petitioner waived his Miranda
Rights and that the trial court erred in ignoring petitioner’s post-trial allegations that his counsel
was ineffective.
2

petitioner’s due process rights because it does not take into account the potential for juvenile
offenders’ rehabilitation.
LEGAL STANDARD
I. Procedural Default
A petitioner must exhaust his or her available remedies in state court before filing an
application for a federal writ of habeas corpus. 28 U.S.C. § 2254(b); Harrington v. Richter, 131
S.Ct. 770, 787 (2011); Rose v. Lundy, 455 U.S. 509, 510 (1982). If a petitioner has not
exhausted his or her state claims properly at each state court level, then the claim is procedurally
defaulted. Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). A petitioner must first provide
state courts with “ a fair opportunity to act on [the petitioner’s] claims.” O’Sullivan v. Boerckel,
526 U.S. 838, 844 (1999) (emphasis in original).
In order to meet the exhaustion requirement in Illinois, a petition for discretionary review
of the claim must come before the Illinois Appellate Court and the Illinois Supreme Court. See
id. at 845. If the petitioner did not present his or her claim in a petition for discretionary review
to both courts, then the claim is procedurally defaulted and cannot be decided on the merits.
Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir. 1999).
A federal court may entertain a procedurally defaulted claim if the petitioner shows cause
and prejudice, or that failure to review the claim will result in a fundamental miscarriage of
justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). To demonstrate cause and prejudice,
a petitioner must show that “some objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
These objective factors include “interference by officials that makes compliance with the State’s

3

procedural rule impracticable. . . a showing that the factual or legal basis for a claim was not
reasonably available to counsel,” and “ineffective assistance of counsel.” McCleskey v. Zant,
499 U.S. 467, 494 (1991) (quoting Murray, 477 U.S. at 488). Typically, those who suffer a
fundamental miscarriage of justice will satisfy the cause and prejudice test. Murray, 477 U.S. at
495-496. Yet, in cases where cause and prejudice standards are not met, a petitioner may show
that “a constitutional violation has probably resulted in the conviction of one who is actually
innocent.” Id. at 496. Petitioner must then show that no reasonable juror would have found him
guilty but for the alleged error. Bolton v. Akpore, 730 F.3d 685, 697 (7th Cir. 2013).
II. 28 U.S.C. § 2254
The AEDPA governs this petition and protects against “extreme malfunctions” in state
court. Harrington, 131 S.Ct. at 786. It allows federal courts to issue a writ of habeas corpus on
“behalf of a person in custody pursuant to the judgment of a State court only on the ground that
[petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a); see also Harrington, 131 S.Ct. at 783. Federal courts do not grant habeas
relief based on state law errors. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[W]e
reemphasize that it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.”); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
Pulley v. Harris, 465 U.S. 37, 41 (1984).
DISCUSSION
Petitioner argues that the Illinois Truth-in-Sentencing statute, 730 ILCS 5/3-6-3(a)(2)(i),
which prohibits a prisoner serving a sentence for first degree murder from receiving sentence
credit for good behavior and requires the prisoner serve the full sentence, violates his due

4

process rights because the statute does not consider the potential rehabilitation of juvenile
offenders. For this court to review the merits of the claim, petitioner must show that his claim
has not been procedurally defaulted.
Petitioner’s claim is procedurally defaulted because he did not properly present his claim
for review to the Illinois Supreme Court. For petitioner to have fairly presented his claim to this
court, he must have presented his claim in a petition to appeal to both the Illinois Appellate
Court and the Illinois Supreme Court. Petitioner appealed to the Illinois Appellate Court,
arguing that Illinois’ Truth-in-Sentencing violated due process because it does not take into
account the possibility of a juvenile offender’s promise for rehabilitation. Once the Appellate
Court denied his appeal, petitioner opted not to include this claim in a PLA to the Illinois
Supreme Court. Petitioner instead argued two issues unrelated to the Truth-in-Sentencing claim.
As a result, the failure to include the Truth-in-Sentencing claim or any arguments that relate to
this claim in the PLA bars petitioner from federal habeas review.
Further, petitioner did not raise his Truth-in-Sentencing claim in his post-conviction
appeals, which instead focused on other alleged errors. Because petitioner did not bring his
Truth-in-Sentencing claim in both the Illinois Appellate and Supreme Court, or in his postconviction appeals, petitioner’s claim is procedurally defaulted on federal habeas review.
In his reply, petitioner asks this court to excuse procedural default because he argues the
Supreme Court’s holding in Miller v. Alabama, 132 S. Ct. 2455 (2012), retroactively affects his
“substantive procedural due process rights.” Accordingly, petitioner argues that because the
Supreme Court did not decide Miller until seven years after he filed his PLA, he could not bring

5

his argument before the Illinois Supreme Court. Thus, the nonexistence of a constitutional rule
at the time of his PLA is cause for his procedural default.
For procedural default to be excused, petitioner needs to establish “cause for his statecourt default . . . and prejudice therefrom” or actual innocence. Edwards v. Carpenter, 529 U.S.
446, 451 (2000). Petitioner can establish cause for procedural default “by showing that some
type of external impediment prevented the petitioner from presenting his claim.” Richardson v.
Lemke, 745 F.3d 258, 272 (7th Cir. 2014). These external impediments can include a factual or
legal basis unavailable to counsel at the time, or official interference, which made compliance
with state’s procedural rule unfeasible. Murray v. Carrier, 477 U.S. 478, 488 (1986).
Petitioner argues that Miller demonstrates that certain sentences for juveniles violate due
process, including sentences without credit for good behavior under the Illinois Truth-inSentencing statute. Petitioner, therefore, asks this court to apply the new rule in Miller and grant
federal habeas review of his claim because Miller was “a factual or legal basis unavailable” at
the time petitioner filed his PLA to the Illinois Supreme Court without his Truth-in-Sentencing
claim. Respondent, conversely, challenges the applicability of Miller to petitioner’s claim.
Respondent further addresses the applicability of other relevant recent Supreme Court precedents
discussing the Eighth Amendment, including Roper v. Simmons, 543 U.S. 551 (2005), and
Graham v. Florida, 560 U.S. 48 (2010).
Miller holds that mandatory life sentences for juveniles without possibility of parole
violate the Eighth Amendment. 132 S. Ct. at 2464. Roper holds that Eighth and Fourteenth
Amendments prohibit the imposition of the death penalty for offenders under the age of eighteen.

6

543 U.S. at 578. Graham holds that the Eighth Amendment prohibits a life sentence without
parole for juveniles who commit crimes other than homicide. 560 U.S. at 82.
No existing Supreme Court precedent is applicable to the instant petition for federal
habeas review. Here, petitioner has not been sentenced to a mandatory life sentence, a sentence
of death or a life sentence without parole. Neither Miller, Roper, Graham, nor any other
Supreme Court case establishes a rule that forbids long sentences for juveniles convicted of
homicide without credit for good behavior. Thus, these cases have not created a rule or claim
unavailable to petitioner at the time he filed his PLA that provide “cause” to excuse the
procedural default. Potentially, Miller could have made petitioner’s claim stronger, but making a
claim less difficult to argue does not show “cause”. See Smith v. Murray, 477 U.S. 527, 537
(1986) (“the question is not whether subsequent legal developments have made counsel’s task
easier, but whether at the time of the default the claim was ‘available’ at all.”); Richardson v.
Lemke, 745 F.3d 258, 274 (7th Cir. 2014) (stating that even though a new Supreme Court rule
made a pre-existing constitutional claim “substantially less difficult to prove,” it was not cause to
excuse a procedural default). These cases, in particular Miller, are not applicable to this habeas
claim, and petitioner has not shown cause for this court to entertain the procedurally defaulted
claim.2
Petitioner has presented no other reasons to excuse procedural default. Because
petitioner has not shown cause and prejudice or actual innocence, his procedural default cannot
be excused and the court cannot address his claim.

2

Because Miller does not apply to this case, this court need not discuss whether Miller, as
a new rule, can be applied retroactively under Teague v. Lane, 489 U.S. 288 (1989).
7

II. Certificate of Appealability
Under 28 U.S.C. § 2253(c), a petitioner may take his or her claim before the court of
appeals only if a district court issues a certificate of appealability. For a district judge to grant
the certificate, the petitioner must show a substantial denial of a constitutional right. 28 U.S.C. §
2253(c)(2). This includes “showing that reasonable jurists could debate whether . . . the
petitioner should have been resolved in a different matter or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). If the district court rejects the constitutional claims on the merits, the petitioner must
show that “reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Id. Further, if “the district court denies the habeas petition on
procedural grounds without reaching the [petitioner’s] underlying constitutional claim,” the court
should issue a certificate of appealability only if the petitioner shows “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Id.
Here, this court concludes that: (1) petitioner procedurally defaulted his claim because he
did not include the claim in his petition for leave to appeal to the Illinois Supreme Court; (2)
petitioner has not shown, through his argument that Miller applies retroactively, cause and
prejudice or a fundamental miscarriage of justice to excuse the procedurally defaulted claim; and
(3) petitioner has not shown that reasonable jurists would find the district court’s decision on the
constitutional claim debatable or wrong.

8

CONCLUSION
For the reasons discussed above, the petition for writ of habeas corpus is denied. The
court declines to issue a certificate of appealability.

ENTER:

July 23, 2014

__________________________________________
Robert W. Gettleman
United States District Judge

9