Wester v. Burtler et al

Filing 35

MEMORANDUM Opinion and Order Entered by the Honorable John W. Darrah on 6/10/2015. Mailed notice (tlm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEWAYNE WESTER
United States of America ex rel,
Petitioner,
v.
WARDEN KIMBERLY BUTLER,

Respondent.

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Case No. 14-cv-5352
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Petitioner DeWayne Wester has filed a Petition for a Writ of Habeas Corpus, pursuant to
28 U.S.C. § 2254, against Respondent Warden Kimberly Butler. For the reasons stated below,
Wester’s § 2254 Petition is denied. Wester’s Motion to Stay is also denied.
BACKGROUND
In 2000, following a jury trial in Lake County, Illinois, Wester was convicted of the firstdegree murder of Brian Blanchard. (Resp. Ans., Exh. A, People v. Wester, No. 99-CF-1675
(Ill. App. Ct. Sep. 6, 2002) at 1-2.) 1 At trial, Wester admitted he shot and killed Blanchard but
claimed self-defense. (Id. at 8-10; Resp. Ans., Exh. D at ¶ 8.) Wester testified that Blanchard
had tried to steal money that Wester had won in a dice game and had punched Wester in the face,
after which the two tussled. (Resp. Ans., Exh. A at 8-10.) Wester further testified that he had

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The factual findings of a state trial or appellate court are presumed true in a federal
habeas proceeding unless the petitioner can rebut the presumption with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). Wester has not challenged the state appellate court’s
summary of facts. Therefore, the following facts are drawn from the state appellate court’s
opinions.

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fired warning shots from his gun and shot Blanchard twice because Blanchard came after him
and bystanders had blocked his escape. (Id. at 9.)
However, the State’s witnesses contradicted Wester’s testimony. They testified that there
was no dice game and that, contrary to Wester’s testimony, Blanchard had not put Wester in a
chokehold. (Id. at 10.) Prior to the shooting, witnesses heard Wester and Blanchard arguing
about money, including Wester saying to Blanchard “give me my f---ing money.” (Id. at 3-4.)
Blanchard’s sister, Sherene Blanchard – whose name was not disclosed in discovery – testified
on rebuttal that Blanchard had asked her for money on the morning of the shooting, but she
responded that she would not pay his drug debt. (Id. at 11.) Three witnesses further testified that
Wester struck Blanchard first by pistol-whipping him. (Resp. Ans., Exh. A at 3-6; see also Resp.
Ans., Exh. D, People v. Wester, No. 99-CF-1675 (Ill. App. Ct. June 10, 2013 at ¶ 33).)
According to the witnesses, Wester shot Blanchard and then, after Blanchard fell to the ground,
fired additional shots while running away. (Id.)
At Wester’s request, the trial court instructed the jurors on self-defense and involuntary
manslaughter but not second-degree murder. (Resp. Ans., Exh. A at 18-19.) After his
conviction, Wester was sentenced to forty-five years’ imprisonment. (Id. at 1.)
Wester appealed both his conviction and his sentence. He raised the following
arguments: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt of
first-degree murder; (2) trial counsel was ineffective for not advising him adequately about
whether to tender a jury instruction on second-degree murder; and (3) the sentencing court
abused its discretion by considering improper factors. (Id.) On September 6, 2002, the state
appellate court affirmed Wester’s conviction and sentence. (Id. at 11-25.)

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On October 18, 2002, Wester renewed his claims by filing a petition for leave to appeal
(“PLA”) to the Illinois Supreme Court. (Resp. Ans., Exh. E.) The Illinois Supreme Court denied
his PLA on February 5, 2003. (Resp. Ans., Exh. F.)
In March 2003, Wester filed a pro se post-conviction petition in state court. (Resp. Ans.,
Exh. D at ¶ 4; Exh. Z.) His petition was amended by counsel in 2005 and raised a claim that the
court had erred by allowing a witness to testify in rebuttal. (Resp. Ans. D. at ¶ 4.) After a series
of preliminary proceedings and remands, Wester was appointed new counsel in the public
defender’s office, who filed an amended petition. Later, private counsel, Gregory Nikitas,
appeared on Wester’s behalf and filed another amended petition. (Resp. Ans. Exh. D at ¶ 5.)
That petition argued that: (1) Wester was unfairly surprised by the testimony of Sherene
Blanchard; (2) three witnesses wrongly offered hearsay testimony; and (3) his trial counsel,
Michael Conway, was ineffective for convincing Wester that he could not tender jury
instructions on both second-degree murder and involuntary manslaughter. (Resp. Ans., Exh. AA
at C481-83.) After holding an evidentiary hearing, the trial court denied Wester’s petition in
September 2011. (Resp. Ans., Exh. D at ¶ 5.) The trial court credited Conway’s testimony from
the evidentiary hearing that Conway had discussed both instructions with Wester and had
recommended submitting both to the jury but that Wester had refused and had chosen to tender
only the involuntary manslaughter instruction, as he was entitled to do under Illinois law. (Resp.
Ans. Exh. AA at C535.)
Wester appealed, arguing that his private counsel, Nikitas, was ineffective for failing to
amend the petition to add claims that (1) Conway was ineffective for failing to object to
Sherene Blanchard’s testimony as hearsay and failing to object to the State’s closing argument
and (2) Wester’s direct appellate counsel, Kim Campbell, was ineffective for failing to raise an

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ineffective assistance claim against Conway on these grounds. (Resp. Ans., Exh. J at 20-21; see
also Resp. Ans., Exh. D at ¶ 23.) On June 10, 2013, the appellate court affirmed the dismissal of
the post-conviction petition. (Resp. Ans., Exh. D at ¶¶ 27-30.) Wester’s subsequent PLA was
denied by the Illinois Supreme Court on March 27, 2013. (See generally Resp. Ans., Exhs. O &
P.) Wester later moved unsuccessfully to vacate his conviction under 735 Ill. Comp. Stat. § 5/21401.
On May 26, 2014, Wester filed the instant § 2254 Petition, raising the following claims: 2
(1) trial counsel was ineffective for telling him that he must choose either a jury
instruction on second-degree murder or involuntary manslaughter, but not both
(Doc. 1 at 5);
(2) his sentence is based on improper factors (id.);
(3) he was denied his right to due process and a fair trial because the trial court
allowed Sherene Blanchard to offer rebuttal testimony, though the State did not
disclose her name in pretrial discovery (id. at 6);
(4) he was denied due process and fair trial by a jury instruction which misled the
jury into believing that he bore the burden of proving self-defense (id.);
(5) he was denied due process and fair trial by a jury instruction which led jurors
to believe that all intentional or knowing homicides are unjustified (id. at 7); and
(6) he was ineffectively assisted by his trial and appellate counsel when they
failed to challenge Sherene Blanchard’s testimony as hearsay (id.).
On the same day as filing his Petition, Wester moved to stay this case to allow him to
exhaust some claims in state court, which this Court denied on September 23, 2014. Wester then
moved to reconsider the Court’s initial denial of his stay request, which this Court denied on
October 22, 2014, and to “delete” Claims 4 and 5 from his Petition, which this Court granted on
November 11, 2014.

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The Petition is dated and postmarked in May but was not entered on the Court’s docket
until July 11, 2014.

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On December 1, 2014, Wester filed a petition in the state court for leave to file a
successive post-conviction petition challenging the jury instructions used at his trial; that petition
remains pending. (Resp. Ans. Exh. Q.) On December 4, 2014, Wester filed another Motion to
Stay this Petition while he pursues that state successive petition, and this Court ordered the
Respondent to respond to that Motion. In his reply brief in support of his Petition, Wester
affirmed that he has deleted Claims 4 and 5 from his Petition on the basis that he has not
exhausted those claims.
LEGAL STANDARD
Historically, habeas corpus relief has been viewed as “an extraordinary remedy, ‘a
bulwark against convictions that violate fundamental fairness.’” Brecht v. Abrahamson, 507
U.S. 619, 633 (1993) (quoting Engle v. Isaac, 456 U.S. 107, 126 (1982)) (other internal citations
omitted). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this
Court’s authority to grant petitions for habeas corpus. Schriro v. Landrigan, 550 U.S. 465, 473
(2007). It provides that relief may not be granted to any claim adjudicated on the merits in a
state court proceeding unless the claim “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court” or “resulted in a
decision that 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); see also Smith v. McKee,
598 F.3d 374, 382 (7th Cir. 2010). The federal court deferentially reviews the decision of the
last state court. Griffin v. Pierce, 622 F.3d 831, 841 (7th Cir. 2010). State court factual findings
are presumed to be correct unless the petitioner rebuts this presumption with “clear and
convincing evidence.” Schriro, 550 U.S. at 474 (citing 28 U.S.C. § 2254(e)(1)).

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Before a federal court can address the merits of a § 2254 petition, the petitioner must
satisfy several procedural steps in state court. 28 U.S.C. § 2254(b)(1). The petitioner must have
given “the state courts a fair opportunity to address his claims and to correct any error of
constitutional magnitude.” Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001) (internal citations
omitted). Specifically, the petitioner must have “fairly presented” each of his habeas claims to
the state’s appellate and supreme courts, including the underlying operative facts and controlling
legal principles for each claim. McKee, 598 F.3d at 382; see also Guest v. McCann, 474 F.3d
926, 930 (7th Cir. 2007). Failure to present each claim to the state judiciary leads to procedural
default of that claim and bars the federal court from reviewing the claim’s merits. McKee, 598
F.3d at 382. Furthermore, a federal court will not review a habeas claim that was presented to
the state court but rejected on “an independent and adequate state ground.” Id. (citing Coleman
v. Thompson, 501 U.S. 722, 729-30 (1991)).
The petitioner may overcome procedural default where “the petitioner can demonstrate
both cause for and prejudice stemming from that default, or he can establish that the denial of
relief will result in a miscarriage of justice.” Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir.
2004) (internal citations omitted) (emphasis in original). Cause “is defined as ‘an objective
factor, external to the defense, that impeded the defendant’s efforts to raise the claim in an earlier
proceeding.’” McKee, 598 F.3d at 382 (quoting People v. Britt-El, 794 N.E.2d 204, 209 (Ill.
2002)). Prejudice is “‘an error which so infected the entire trial that the resulting conviction
violates due process.’” Id. (quoting Britt-El, 794 N.E.2d at 209). To establish that denial of the
habeas petition would result in a miscarriage of justice, the petitioner must demonstrate that “he
is actually innocent of the offense for which he was convicted, i.e., that no reasonable juror

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would have found him guilty of the crime but for the error(s) he attributes to the state court.”
Lewis, 390 F.3d at 1026.
ANALYSIS
Motion to Stay
As noted above, Wester has moved to stay his habeas petition while he seeks leave to file
a successive state post-conviction petition raising unexhausted arguments in Claims 4 and 5.
A stay and abeyance of a habeas petition is “available only in limited circumstances”
because it “frustrates AEDPA’s objective of encouraging finality [and] undermines AEDPA’s
goal of streamlining federal habeas proceedings.” Rhines v. Weber, 544 U.S. 269, 277 (2005).
A district court has the discretion to stay a “mixed” habeas petition – one that contains both
exhausted and unexhausted claims – where “the petitioner had good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.” Id, 544 U.S. at 278. Conversely, it
is an abuse of discretion to stay a habeas petition where the petitioner has not demonstrated good
cause for the delay or where the unexhausted claims are “plainly meritless.” Id. at 277. Where a
stay is not justified, the district court may permit the petitioner to delete the unexhausted claims
from the habeas petition and proceed with the exhausted claims. Id. at 278.
Here, Wester’s Motion to Stay identifies no good cause for failing to raise Claims 4 and 5
earlier. Rather, he simply claims that “time constraints” prevented him from exhausting those
claims. This is insufficient to excuse Wester’s delay. Furthermore, Claims 4 and 5, which claim
error with the jury instructions, are clearly without merit. A review of the jury instructions
demonstrates that they set forth the correct legal principles, including that the defendant is
presumed innocent, that the State bears the burden of proof and must prove beyond a reasonable

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doubt that the defendant was not justified in the force he used, and that a person may be justified
in using lethal force in self-defense. The instructions also told the jurors to find Wester guilty
only if his conduct was both “without lawful justification” and either knowing or intentional.
A stay of Wester’s Petition is not appropriate and would constitute an abuse of discretion.
Wester’s Motion to Stay is denied. Accordingly, Wester’s unexhausted claims, Claims 4 and 5,
are deleted from the Petition.
Claim 1 – Choice between Jury Instructions
In Claim 1, Wester argues that trial counsel was ineffective when he advised Wester that
he must choose between instructing the jury on second-degree murder or involuntary
manslaughter but not both. (Pet. at 5.) This claim is procedurally defaulted because Wester did
not fairly and fully present this claim’s operative facts through one complete round of state-court
review.
In his direct appeal PLA, Wester argued that his decision to forgo the second-degreemurder instruction was based on his trial counsel’s failure to adequately explain the instructions
and defenses to him. (Resp. Ans., Exh. E at 14.) He stated that he chose involuntary
manslaughter because to him it “sound [sic] a lot better” than second-degree murder. (Id.) 3
Wester did not present the current rationale – that he wanted jurors to hear both instructions, but
his counsel told him that he could not do so – until his post-conviction petition. (Resp. Ans.,
Exh. AA at C442.) However, on appeal and represented by counsel, Wester abandoned all
arguments about the jury instructions. (See Resp. Ans., Exh. J at 19-37.) References to the jury

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Furthermore, the appellate court held that Wester had no reasonable probability of
obtaining a second-degree-murder verdict even if the instruction had been given, due to the
overwhelming evidence that Wester was the aggressor and not in imminent danger of death or
great bodily harm when he shot Blanchard. (Resp. Ans., Exh. A at 20.) Accordingly, Wester
could not establish that he was prejudiced by the failure to give the instruction.

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instruction argument resurfaced in Wester’s post-conviction PLA, but by that point, Wester had
already procedurally defaulted on the argument in the appellate court. (Resp. Ans., Exh. M at
33-34.)
The exhaustion requirement not only requires that the broad claim be raised but also the
legal and factual arguments that support the claim. Mckee, 598 F.3d 374 at 382; see also
McNary v. Lemke, 708 F.3d 905, 919 (7th Cir. 2013) (holding that although petitioner “raised the
claim of ineffective assistance of counsel in the state court, he did not raise the underlying
facts”); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state prisoners must give the state
courts one full opportunity to resolve any constitutional issues by invoking one complete round
of the State’s established appellate review process.”). Here, Wester did not raise the legal and
factual arguments underlying Claim 1 to the Illinois Appellate Court. He also has not set forth
any that would constitute cause to excuse his procedural default. See Lewis, 390 F.3d at 1026.
Consequently, Claim 1 is procedurally defaulted.
Claim 2 – Improper Sentencing Factors
In Claim 2, Wester asserts that the sentencing judge considered “improper factors” and
abused his discretion, violating due process and “fair trial” principles. Even though Wester has
couched this claim in constitutional terms of due process and fair trial, his claim appears to boil
down to an argument that the judge violated state sentencing law, a state law claim that is not
cognizable under 28 U.S.C. § 2254. Habeas relief is only appropriate when the petitioner’s
custody “violates the Constitution, treaties, or laws of the United States.” Gonzalez v. DeTella,
127 F.3d 619, 621 (7th Cir. 1997) (citing Estelle v. McGuire, 502 U.S. 62 (1991)). Accordingly,
errors of state law will not support a writ of habeas corpus unless they rise to the level of a
constitutional violation, such as a due process violation. See id. (trial court’s alleged improper

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admission of evidence was an error of state law that did not violate constitutional due process).
Here, Wester’s alleged state law error does not rise to the level of a constitutional violation and,
therefore, is not a basis for issuing habeas relief.
Furthermore, even if a federal claim could be asserted on this basis, Wester procedurally
defaulted on any such claim. In Wester’s direct appeal PLA, he accused the sentencing judge of
violating state law when the judge considered “improper factors” and that in doing so the judge
committed an “abuse of discretion.” (Resp. Ans., Exh. E at 18.) Wester made no mention of
federal law in making this argument. Wester was required “to alert fairly the state court to the
federal nature of the claim and to permit that court to adjudicate squarely that federal issue.”
Villanueva v. Anglin, 719 F.3d 769, 775 (7th Cir. 2013) (citing Verdin v. O’Leary, 972 F.2d
1467, 1474 (7th Cir. 1992)). Wester’s allusion to “improper factors” and “abuse of discretion”
did not put the state courts on fair notice that there was a federal issue. See Wilson v. Briley, 243
F.3d 325, 328 (7th Cir. 2001) (affirming dismissal of habeas petition where petitioner did not
alert the Illinois courts to the constitutional nature of his claim). Consequently, Wester failed to
raise this claim in one complete round of state appellate review.
In his reply brief, Wester blames the failure to “fairly present” this claim on his appellate
counsel. (Reply br. at 36.) This is insufficient to constitute cause to explain his default.
Therefore, Claim 2 is procedurally defaulted.
Claim 3 – Sherene Blanchard’s Rebuttal Testimony
In Claim 3, Wester claims that he was denied due process and a fair trial when the state
offered rebuttal testimony through Sherene Blanchard, who was not disclosed during pre-trial
discovery. (Pet. at 6.) Wester asserted this unfair-surprise claim in his post-conviction petition.
(Resp. Ans., Exh. AA at C481-82.) On appeal from that petition, however, Wester dropped this

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claim. (Resp. Ans., Exh. D at ¶ 6.) By abandoning this argument, Wester failed to raise it in
“one complete round” of state appellate review and, therefore, procedurally defaulted on it.
O’Sullivan, 526 U.S. at 845.
In his reply brief, Wester argues that “any default of [his] due process claim was caused
by his Appellate Counsel’s failure to raise the issue on direct appeal.” (Reply Br. at 43.)
“[C]ause for a procedural default on appeal ordinarily requires a showing of some external
impediment preventing counsel from constructing or raising the claim.” Murray v. Carrier, 477
U.S. 478, 492 (1986). Wester has made no such showing that would excuse his default.
Therefore, Claim 3 is procedurally defaulted.
Claim 6 – Ineffective Assistance of Counsel
Finally, in Claim 6, Wester argues he received ineffective assistance when his appellate
counsel, Greg Nikitas, failed to amend the post-conviction petition to allege that trial counsel,
Michael Conway, was ineffective for failing to object on hearsay grounds to the testimony given
by Sherene Blanchard. (Pet. at 7.) Wester did not raise this argument about Conway on direct
appeal or in his pro se post-conviction petition. However, on appeal from the denial of his postconviction petition, Wester argued that Nikitas should have amended the petition to include
ineffective-assistance claims about both Conway and Wester’s direct appellate counsel,
Campbell. (Resp. Ans., Exh. D at ¶¶ 26-31.) In his habeas petition, Wester appears to have
dropped any arguments about Campbell.
The state appellate court thoroughly addressed and rejected Wester’s argument about
Nikitas in its June 2013 decision denying Wester’s post-conviction petition. (Id. ¶¶ 26-31.) The
appellate court first noted that a defendant has no constitutional right to effective assistance of
counsel in a post-conviction proceeding. (Id. (citing People v. Flores, 606 N.E.2d 1078, 1084

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(Ill. 1992)). Rather, a defendant has “only a statutory right to reasonable assistance of counsel,”
which is created by state law. (Id. (emphasis in original)); see also Flores, 606 N.E.2d at 1084.
The appellate court explained that Nikitas was required to flesh out the claims that were raised in
Wester’s pro se petition but was “not obligated to scour the record to add new claims.” (Id. at
¶¶ 28-29 (citing People v. Komes, 954 N.E.2d 300 (Ill. App. Ct. 2011)).) The court held that
Nikitas had fulfilled his obligations under Illinos Supreme Court Rule 651(c) and had provided
reasonable assistance to Wester. (Id. at ¶¶ 28-30, 34.)
The court further held that Wester was not prejudiced by Nikitas’s failure to raise the
ineffective-assistance arguments, noting that post-conviction counsel is not required to raise
frivolous or spurious claims on the defendant’s behalf. (Id. at ¶¶ 31-32.) The court found that,
even if Conway had objected to Sherene Blanchard’s testimony, there was “simply no
reasonable possibility, in light of the entirety of the trial evidence, [that] the result of the trial
would have been different.” (Id. at ¶ 32.) Therefore, even if Nikitas had raised ineffectiveassistance-of-counsel claims about Conway or Campbell, those arguments would have failed.
(Id. at ¶ 34.)
Wester has failed to show the appellate court’s decision was “contrary to or involved an
unreasonable application of clearly established Federal law” or was “based on an unreasonable
determination of the facts in the light of the evidence presented in the State court proceeding.”
28 U.S.C § 2254(d). The appellate court’s holding was reasonable both for its conclusion that
Nikitas had provided reasonable assistance and that Wester was not prejudiced by the failure to
raise the argument about Conway. Consequently, Wester has failed to carry his burden
demonstrating that he is entitled to habeas relief under § 2254. His Petition is denied.

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Certificate of Appealability
“A certificate of appealability may issue under paragraph (1) only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A
district court must issue or deny a certificate of appealability when it enters a final order adverse
to the applicant. If the court denies a certificate, a party may not appeal the denial but may seek
a certificate from the court of appeals under Federal Rules of Appellate Procedure 22. Seventh
Circuit Rule 22(b) states: “In a habeas corpus proceeding in which detention complained of
arises from process issued by a state court, or in a 28 U.S.C. § 2255 proceeding, the applicant
cannot take an appeal unless a circuit justice or a district court judge issues a certificate of
appealability under 28 U.S.C. § 2253(c).”
To obtain a certificate of appealability under § 2253, a petitioner must demonstrate the
denial of a constitutional right. This requires the petitioner to show that reasonable jurists could
debate whether 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, 120
S. Ct. 1595, 1603-04 (2000). Where the district court has rejected the constitutional claims on
the merits, the showing required to satisfy § 2253(c) is straightforward: the petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong. Id. at 1604. As discussed above, Wester has not demonstrated the
denial of a constitutional right with respect to any of his claims. Accordingly, a certificate of
appealability shall not issue.

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CONCLUSION
For all the reasons discussed above, Wester’s Motion to Stay [19] and his 28 U.S.C.
§ 2254 Motion to vacate, set aside, or correct his sentence [1] are denied. Civil case is
terminated.

Date:

June 10, 2015
JOHN W. DARRAH
United States District Court Judge

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