Ball v. Butler et al

Filing 16

MEMORANDUM Opinion and Order: For the reasons stated herein, the Court dismisses Balls petition 1 with prejudice, denies his motion to stay, and declines to issue a certificate of appealability. Civil case terminated. Signed by the Honorable Virginia M. Kendall on 7/28/2015.Mailed notice(tsa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BOBBY BALL,
Petitioner,
v.
KIM BUTLER, Warden,
Menard Correctional Center,
Respondent.

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No. 14 C 5685
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Petitioner Bobby Ball is incarcerated at the Menard Correctional Center in Menard,
Illinois, in Kim Butler’s custody. (Dkt. No. 9 at 1). Ball is serving a fifty-five year sentence for
felony murder and home invasion. (Id.). Ball now petitions the Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Alternatively, Ball moves the Court to stay these proceedings to
allow him to exhaust any state court remedies available to him. (Dkt. No. 14 at 4). Upon review
of the state court record, the Court concludes that Ball’s federal petition is procedurally
defaulted. The Court therefore dismisses Ball’s amended habeas petition (Dkt. No. 9) with
prejudice, denies Ball’s motion to stay, and declines to issue a certificate of appealability.
BACKGROUND
Following a 2008 bench trial in the Circuit Court of Cook County, Illinois, Ball was
convicted of felony murder, 720 ILCS 5/9-1(a)(3), and home invasion, 720 ILCS 5/12-11(a)(2). 1
(Dkt. No. 12-1 at 1). Following his conviction, Ball appealed to the Illinois Appellate Court for
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Statute renumbered as 720 ILCS 5/19-6 on January 1, 2013.

the First District, arguing that he was denied due process of law because the trial court shifted the
burden of proof during a suppression hearing and that he was denied a fair trial when his
statements were used against him in violation of Missouri v. Seibert, 542 U.S. 600 (2004). (Dkt.
No. 12-2 at 20 & 27). On December 28, 2010, the Illinois Appellate Court affirmed both of
Ball’s convictions. (Dkt. No. 12-1 at 1). Ball subsequently filed a petition for leave to appeal
(PLA) in the Illinois Supreme Court, which was denied on March 30, 2011. (Dkt. No. 12-6).
Ball filed a pro se post-conviction petition pursuant to 725 ILCS 5/122-1 on October 17,
2011 asserting, among other things, that (1) police officers involved in his investigation deprived
him of his due process rights when they failed to videotape an interview with him, (2) trial and
appellate counsel provided ineffective assistance of counsel when they failed to argue that claim,
and (3) the prosecutor at his trial knowingly concealed information that blunt force injuries
contributed to the victim of the underlying crime’s death and presented false evidence that the
victim died from a gunshot wound. (Dkt. No. 12-12 at C00080-C00107). Finding Ball’s
contentions to be meritless, the trial court denied the post-conviction petition. (Dkt. No. 12-12 at
C00076). Upon appeal, the Illinois Appellate Court for the First District appointed counsel. (Dkt.
No. 12-8). Appointed counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481
U.S. 551 (1987), stating that the appeal would “be without arguable merit.” (Dkt. No. 12-8 at 3).
On May 16, 2013, the Illinois Appellate Court granted appointed counsel’s motion to withdraw
and affirmed the judgment of the trial court dismissing Ball’s post-conviction petition. (Dkt. No.
12-7 at 4).
Important to the viability of Ball’s federal petition, Ball’s pro se PLA to the Illinois
Supreme Court did not raise the arguments found in his post-conviction petition. (See Dkt. No.
12-10). Instead, Ball diverted course and challenged the Illinois Appellate Court’s findings

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concerning the sufficiency of the evidence at his suppression hearing and at trial to support his
convictions and the trial court’s admission of certain pieces of evidence, including some of his
statements and a 9mm semi-automatic handgun. (Dkt. No. 12-10 at 1-3). Ball also claimed he
received ineffective assistance from trial counsel for failing to subpoena witnesses to appear at a
hearing to suppress statements made by Ball to police, and received ineffective assistance from
appellate counsel for failing to raise an ineffective assistance of trial counsel claim. (Dkt. No. 1210 at 22-24). Ball additionally argued that the prosecutor violated Brady v. Maryland, 373 U.S.
83 (1963) by failing to disclose information concerning an “F.B.I. hat” and that he did not
receive a Miranda warning. (Dkt. No. 12-10 at 2-3). On January 29, 2014, the Illinois Supreme
Court denied Ball’s post-conviction PLA. (Dkt. No. 12-11).
This Court received Ball’s pro se petition for a writ of habeas corpus on July 21, 2014.
(Dkt. No. 1). Ball filed an amended petition on November 3, 2014. (Dkt. No. 9). Consistent with
his original post-conviction petition in state trial court but disparate from his PLA to the Illinois
Supreme Court, in his federal petition, Ball claims that police officers violated his due process
rights by failing to videotape an interview with pursuant to 20 ILCS 3930/7.2 2, that trial counsel
was ineffective for failing to argue that claim, and that the prosecutor knowingly concealed
information that blunt force injuries contributed to the victim’s death and presented false
evidence that the victim died from a gunshot wound. (Dkt. No. 9). Respondent Kimberly Butler
filed an answer on December 5, 2014. (Dkt. No. 11). The Court received Ball’s reply on
February 23, 2015, over two months past its due date. (Dkt. No. 14). Despite its tardiness, the
Court considers Ball’s reply in this ruling.

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On November 19, 2003, the Illinois legislature instituted a Custodial Interview Pilot Program that sought to
encourage the videotaping of custodial interviews of suspects in first degree murder investigations. See 20 ILCS
3930/7.2.

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DISCUSSION
A.

Ball’s Habeas Petition is Procedurally Defaulted
Before a federal court will consider his claims, a federal habeas petitioner must exhaust

state remedies, see 28 U.S.C. § 2254(b)(1)(A), “thereby giving the State the ‘opportunity to pass
upon and correct’ alleged violations of its prisoners’ federal rights.” Cheeks v. Gaetz, 571 F.3d
680, 685 (7th Cir. 2009) (citations omitted). In particular, a habeas petitioner must fully and
fairly present his federal claims through one full round of state court review before he files his
federal habeas petition. See Mulero v. Thompson, 668 F.3d 529, 536 (7th Cir. 2012). “[W]hen a
petitioner has exhausted state court remedies and failed to properly assert his federal claims at
each level of review those claims are procedurally defaulted.” Woods v. Schwartz, 589 F.3d 368,
373 (7th Cir. 2009). A petitioner also procedurally defaults his claims if he fails to raise them in
compliance with relevant state procedural rules and the state court’s refusal to adjudicate the
claim is based upon an independent and adequate state ground. See Cone v. Bell, 556 U.S. 449,
465 (2009). Procedural default precludes federal court review of a petitioner’s habeas claims. See
Mulero, 668 F.3d at 536.
Here, Ball failed to present his federal claims through one complete round of state court
review, therefore, his petition in this Court is procedurally defaulted. See O’Sullivan v. Boerckel,
526 U.S. 838, 848 (1999); Woods, 589 F.3d at 373. In his pro se post-conviction petition at the
trial court level and in his instant petition, Ball claimed that his due process rights were violated
when police failed to videotape an interview with him in accordance with Illinois state law, that
trial counsel provided ineffective assistance by failing to make that argument, and that the
prosecutor at trial knowingly presented false evidence. Ball presented the same arguments to the
Illinois Appellate Court, which subsequently affirmed the trial court’s dismissal of his post-

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conviction petition. But Ball’s ensuing PLA to the Illinois Supreme Court raised none of the
original arguments found in his post-conviction petition and federal petition. Because those
contentions were not presented to the Illinois Supreme Court in Ball’s post-conviction PLA, his
instant federal petition is procedurally defaulted. See O’Sullivan, 526 U.S. at 848 (where
petitioner’s amended federal habeas petition “raised three claims that he had pressed before the
Appellate Court of Illinois, but that he had not included in his petition for leave to appeal to the
Illinois Supreme Court[,]” those claims were procedurally defaulted); Smith v. McKee, 598 F.3d
374, 382 (7th Cir. 2013) (to avoid procedural default, petitioner must present have presented
each claim in his federal petition “in the habeas petition to the Illinois Appellate Court and to the
Illinois Supreme Court”).
A federal court may hear a habeas petitioner’s procedurally defaulted claim only if he can
demonstrate cause and prejudice for the default or demonstrate that failure to consider the claim
will result in a fundamental miscarriage of justice. Crockett v. Hulick, 542 F.3d 1183, 1193 (7th
Cir. 2008). A petitioner’s failure to raise an argument for either precludes a federal court from
considering a defaulted claim. Id. Here, Ball makes no attempt to show cause for his failure to
present each of his federal claims through one full round of state court review and the Court will
not consider them.
Nor will the Court excuse Ball’s procedural default based on his bare assertion that
failure to do so will result in a “fundamental miscarriage of justice.” (Dkt. No. 14 at 3). That
exception is “grounded in the ‘equitable discretion’ of habeas courts to see that federal
constitutional errors do not result in the incarceration of innocent persons.” McQuiggin v.
Perkins, 133 S. Ct. 1924, 1931 (2013) (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
Although “actual innocence, if proved, serves as a gateway through which a petitioner may pass”

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when the impediment to his petition is a procedural bar, to support a claim of actual innocence,
Ball must come forward with new evidence. McQuiggin, 133 S. Ct. at 1928; see Schulp v. Delo,
513 U.S. 298, 324 (1995). Here, Ball makes no effort to present new evidence or make any
argument that he is actually innocent. The fundamental miscarriage of justice exception is
accordingly inapplicable and the Court dismisses his habeas petition with prejudice.
B.

The Court Denies Ball’s Motion to Stay
Ball alternatively moves the Court to stay these proceedings in order to exhaust his state

court remedies. (Dkt. No. 14 at 3). The Court has the discretion to stay a “mixed” habeas petition
– one that contains both exhausted and unexhausted claims - and hold it in abeyance pending
exhaustion of remedies available to the petitioner in state court. A stay should “only be available
in limited circumstances” since such action plainly frustrates the Antiterrorism and Effective
Death Penalty Act’s objectives of “encouraging finality by allowing a petitioner to delay the
resolution of the federal proceedings” and of “streamlining federal habeas proceedings by
decreasing a petitioner’s incentive to exhaust all his claims in state court prior to filing his
federal petition.” Rhines v. Weber, 544 U.S. 269, 276-77 (2005). Stay and abeyance is only
available where (1) there was good cause for the petitioner’s failure to exhaust his claim first in
state court; (2) the unexhausted claim is potentially meritorious; and (3) the petitioner did not
engage in intentionally dilatory litigation tactics.” Id. at 277-78. 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 278.
The Court denies Ball’s motion to stay because his procedural default of his federal
claims, not a failure to exhaust his state court remedies, is what precludes the Court from hearing
Ball’s instant habeas petition. Ball pursued a direct appeal of his convictions and submitted a

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post-conviction petition in state court. He appealed both the dismissal of his direct appeal and
post-conviction petition to the Illinois Supreme Court, thereby exhausting his state court
remedies. The problem that plagues Ball’s federal petition is that neither of his PLAs to the
Illinois Supreme Court on either his direct appeal or post-conviction petition argued the points he
raises here. Ball’s failure to raise his federal claims in the Illinois Supreme Court is fatal to his
petition and is caused by procedural default, not by a failure to exhaust his state court remedies.
See O’Sullivan, 526 U.S. at 848 (where petitioner failed to raise his federal claims in a PLA to
the Illinois Supreme Court, despite having argued them in the Illinois Appellate Court, his
“failure to present [the claims] to the Illinois Supreme Court in a timely fashion [] resulted in a
procedural default of those claims.”). Here, Ball exhausted his state court remedies. He also
procedurally defaulted his federal claims in the process. See, e.g., Wenger v. Frank, 266 F.3d
218, 223 (3d Cir. 2001) (“If a claim has not been fairly presented to the state courts but further
state-court review is clearly foreclosed under state law, exhaustion is excused on the ground of
futility . . . Under those circumstances, the claim is procedurally defaulted, not unexhausted, and
the claim may be entertained in a federal habeas petition only if there is a basis for excusing the
procedural default.”). As stated above, no basis for excusing Ball’s procedural default exists. The
Court denies Ball’s motion to stay.
C.

The Court Declines to Issue a Certificate of Appealability
Because Ball’s federal petition is procedurally defaulted, the Court dismisses the petition

with prejudice. A petitioner may not appeal the final order in a habeas corpus proceeding where
the detention complained of arises out of process issued by a state court unless the court issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(a). A certificate of appealability may issue
only when “the applicant has made a substantial showing of the denial of a constitutional right.”

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28 U.S.C. § 2253(c)(2). “When a district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim,” a certificate of appealability
should issue only when the prisoner shows “both 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.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added). For the reasons discussed above,
Ball has not made a substantial showing of the denial of a constitutional right: reasonable jurists
would not debate whether the challenges in his habeas petition should been resolved differently
or determine that Ball deserves encouragement to proceed further with his habeas claims. See
Rutledge v. United States, 230 F.3d 1041, 1047 (7th Cir. 2000). There can be no dispute that
Ball’s federal petition is procedurally defaulted and no exceptions apply. The Court therefore
declines to issue a certificate of appealability.
CONCLUSION
For the reasons stated herein, the Court dismisses Ball’s petition with prejudice, denies
his motion to stay, and declines to issue a certificate of appealability.

__________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: 7/28/2015

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