Austin v. Austin
Filing
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MEMORANDUM Opinion signed by the Honorable Samuel Der-Yeghiayan on 10/21/2015. (jh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DARRYL AUSTIN,
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v.
ASSISTANT WARDEN LINDSAY
MACON.
No. 15 C 451
MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Petitioner Darryl Austin’s (Austin) pro se
petition for writ of habeas corpus (Petition) brought pursuant to 28 U.S.C. § 2254.
For the reasons stated below, the Petition is denied.
BACKGROUND
In a bench trial in Illinois state court, Austin was convicted of being an armed
habitual criminal (AHC), possession with intent to deliver within 1,000 feet of a
church, and unlawful use of a weapon by a felon (UUWF). The state trial court
sentenced Austin to three concurrent 15-year terms of imprisonment. Austin filed an
appeal, and on July 20, 2012 the AHC and possession convictions were affirmed, but
the UUWF conviction was vacated. Austin then filed a petition for leave to appeal
(PLA) with the Illinois Supreme Court, which was denied on January 29, 2014.
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Austin had also separately filed a post-conviction petition in July 2011, which was
dismissed by the trial court, and affirmed on appeal on May 24, 2013. The record
does not reflect that any PLA was filed for that petition. Austin had also filed a
petition for relief from judgment in October 2011, which was denied by the trial
court and affirmed on March 15, 2013. The record does not reflect that any PLA was
filed for that petition. On January 15, 2015, Austin filed the instant petition.
LEGAL STANDARD
An individual in custody pursuant to state court judgment may seek a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, which provides the following:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim--(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) 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). The decision made by a state court is deemed to be contrary to
clearly established federal law “‘if the state court applies a rule different from the
governing law set forth in [Supreme Court] cases, or if it decides a case differently
than [the Supreme Court has] done on a set of materially indistinguishable facts.’”
Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009)(quoting Bell v. Cone, 535 U.S.
685, 694 (2002)). The decision by a state court is deemed to involve an unreasonable
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application of clearly established federal law “‘if the state court correctly identifies
the governing legal principle from [Supreme Court] decisions but unreasonably
applies it to the facts of the particular case.’” Emerson, 575 F.3d at 684 (quoting
Bell, 535 U.S. at 694).
DISCUSSION
This court has liberally construed Austin’s pro se filings. See Perruquet v.
Briley, 390 F.3d 505, 512 (7th Cir. 2004)(stating that “[a]s [the plaintiff] was without
counsel in the district court, his habeas petition [wa]s entitled to a liberal
construction”); Greer v. Board of Educ. of City of Chicago, Ill., 267 F.3d 723, 727
(7th Cir. 2001)(indicating that a court should “liberally construe the pleadings of
individuals who proceed pro se”). Austin asserts in the Petition: (1) that the
restriction on his right to bear arms violates his Second Amendment rights (Pet. 7,
17) (Claim 1), and (2) that the police lacked probable cause to search his apartment
and violated his Fourth Amendment rights (Claim 2).
I. Claim 1
Respondent argues that Claim 1 lacks any merit. As indicated above, a
petition must show that the adjudication of the claim “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United States. . . .” 28 U.S.C. §
2254(d). Austin argues that the state court conviction violates his Second
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Amendment rights and is contrary to the law set forth in District of Columbia v.
Heller, 554 U.S. 570 (2008). (Pet. 7, 17). The Court in Heller recognized “the
individual right to possess and carry weapons in case of confrontation.” Id. at 592.
However, the Court did not hold that such a right with without limit, or that such
rights could not be curtailed if a person had committed a felony. In fact, the Court
specifically stated that “nothing in [the] opinion should be taken to cast doubt on
longstanding prohibitions on the possession of firearms by felons. . . .” Id. at 627.
Thus, Austin has not shown that an adjudication resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United States, and Claim 1 lacks any
merit.
II. Claim 2
Respondent argues that Claim 2 is procedurally defaulted.
A. Default
Respondent contends that Austin failed to raise Claim 2 through one complete
round of the state court appellate review process. A district court “cannot review a
habeas petitioner’s constitutional issue unless he has provided the state courts with
an opportunity to resolve it ‘by invoking one complete round of the state’s
established appellate review process.’” Byers v. Basinger, 610 F.3d 980, 985 (7th
Cir. 2010)(quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). If a habeas
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petitioner failed to “properly assert[] his federal claim at each level of state court
review,” the petitioner is deemed to have “procedurally defaulted that claim.”
Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008)(quoting Lewis v. Sternes, 390
F.3d 1019, 1025 (7th Cir. 2004)); see also Johnson v. Hulett, 574 F.3d 428, 431 (7th
Cir. 2009)(stating that “[t]o obtain federal habeas review, a state prisoner must first
submit his claims through one full round of state-court review,” and that “[t]he
penalty for failing to fully and fairly present [] arguments to the state court is
procedural default”). A petitioner, in exhausting his state court remedies, has “‘the
duty to fairly present his federal claims to the state courts.’” Malone, 538 F.3d at
753 (stating that fair presentment includes “‘the petitioner . . . assert[ing] his federal
claim through one complete round of state-court review, either on direct appeal of his
conviction or in post-conviction proceedings’”)(quoting Lewis, 390 F.3d at 1025).
The record does not reflect that Austin raised Claim 2 during his direct appeal.
(Ex. A, E). Nor does the record indicate that Austin raised Claim 2 in his postconviction petition or subsequent appeal. (Ex. G). Further, the record does not
indicate that Austin raised Claim 2 in his petition for relief from judgment or
subsequent appeal. (Ex. K, L). Therefore, Claim 2 is procedurally defaulted.
Respondent also correctly points out that even if the claim was not procedurally
defaulted, it would be barred. See Turentine v. Miller, 80 F.3d 222, 224-25 (7th Cir.
1996)(stating that generally, “criminal defendants may not seek collateral review of
Fourth Amendment exclusionary rule claims under § 2254 if they received an
opportunity for full and fair litigation of their Fourth Amendment claims in state
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court” and that once “the petitioner has received a full and fair opportunity to litigate
his Fourth Amendment claim in state court, and federal habeas corpus review is
barred by” Stone v. Powell, 428 U.S. 465 (1976))(internal quotations omitted).
Based on the above, the Petition is denied.
B. Justification to Excuse Default
Respondent also argues that there are no facts in this case that provide a
justification to excuse the default of Claim 2. A procedurally defaulted claim can
still be considered by a district court “if a petitioner can show cause and prejudice or
a fundamental miscarriage of justice.” Coleman v. Hardy, 628 F.3d 314, 318 (7th
Cir. 2010); see also Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir.
2010)(stating that “[a] federal court on collateral review will not entertain a
procedurally defaulted constitutional claim unless the petitioner can establish cause
and prejudice for the default or that the failure to consider the claim would result in a
fundamental miscarriage of justice”); Holmes v. Hardy, 608 F.3d 963, 968 (7th Cir.
2010)(stating that a “way to avoid procedural default is to show actual innocence,
that is, to show that in light of new evidence, it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable
doubt”)(internal quotations omitted)(quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)); Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010)(stating that “default
could be excused if [the petitioner] can establish cause and prejudice, or establish
that the failure to consider the defaulted claim will result in a fundamental
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miscarriage of justice”). In the instant action, Austin has not provided facts showing
that he was prevented from properly presenting Claim 2 in the state system in order
to avoid the procedural default. Austin has not shown cause and prejudice. Nor has
Austin shown actual innocence or a fundamental miscarriage of justice that would
excuse the procedural default.
III. Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the court must
issue or deny a certificate of appealability “when it enters a final order adverse to the
applicant.” Id. A district court should only issue a certificate of appealability “if the
applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). The petitioner must also show that “reasonable jurists could
debate whether (or, for that matter, agree that) 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, 529 U.S. 473, 484
(2000)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In the instant action,
Austin has not made a substantial showing of the denial of a constitutional right as to
any claims presented in his Petition. Nor has Austin shown that reasonable jurists
could debate whether the Petition should have been resolved in a different manner or
that the issues presented in the Petition deserve encouragement to proceed further.
Therefore, should Austin decide to appeal this court’s ruling, this court finds that a
certificate of appealability would not be warranted, and is denied.
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CONCLUSION
Based on the foregoing analysis, the Petition is denied.
___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: October 21, 2015
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