Maclin v. Pfister

Filing 25

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the habeas petition is denied, and no certificate of appealability will issue from this Court. A separate AO-450 shall be entered. The tracking status of 09/09/2016 is vacated. Civil case terminated. Emailed and mailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GEORGE MACLIN,
Petitioner,
v.
RANDY PFISTER,
Respondent.

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No. 15 C 04357
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
George Maclin filed this petition for a writ of habeas corpus under 28 U.S.C.
§ 2254, challenging his 2007 state court conviction for first-degree felony murder.1
R. 1, Habeas Pet.2 For the reasons stated below, Maclin’s petition is denied and this
Court will not issue a certificate of appealability.
I. Background
In reviewing a petition for habeas corpus relief under § 2254, a federal court
must presume that the factual findings made by the last state court to decide the
case on the merits are correct. 28 U.S.C. § 2254(e)(1); Coleman v. Hardy, 690 F.3d
811, 815 (7th Cir. 2015). This presumption can be overcome if the petitioner rebuts
the state court’s findings by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Because Maclin has not presented clear and convincing evidence to rebut this
presumption of correctness, the Court adopts the facts set forth by the Illinois
Appellate Court in People v. Maclin, 12 N.E.3d 648 (Ill. App. Ct. 2014)—the last
1The

Court has subject matter jurisdiction over this case under 28 U.S.C. § 2241.
to the record are noted as “R.” followed by the docket number and, when
necessary, the page or paragraph number.
2Citations

state court to address Maclin’s arguments on the merits. Pursuant to Rule 5 of the
Rules Governing Section 2254 Cases in the United States District Courts, the facts
are also supplemented where appropriate by the state-court record lodged with this
Court. See Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002); United States ex rel.
Parish v. Hodge, 73 F. Supp. 3d 895, 899 n.1 (N.D. Ill. 2014).
A. Arrest and Trial
On July 3, 2002, Ernest McGhee was stabbed in the neck and died. People v.
Maclin, 12 N.E.3d 648, 650 (Ill. App. Ct. 2014). That same day, the police arrested
George Maclin for McGhee’s murder. Id. On July 30, 2002, Maclin was indicted on
charges of murder and armed robbery. Id. The State of Illinois proceeded to trial on
one count of felony murder predicated on armed robbery. Id.; 720 ILCS 5/9-1(a)(3)
(felony murder statute); 720 ILCS 5/18-2(a)(1) (armed robbery statute). Almost five
year later, on May 16, 2007, Maclin’s trial began in the Circuit Court of Cook
County, Illinois. Id.
1. Testimony of Emmett Brown
At the time of Maclin’s trial, Emmett Brown worked as a mechanic. Maclin,
12 N.E.3d at 650. Brown testified that he had been friends with McGhee for six or
seven years. Id. He stated that at around 1 a.m. on July 3, 2002, he drove to a
vacant lot on Adams Street and Western Avenue in Chicago to drink beer; he and
his friends often visited that lot on weekends and during the week after work. Id.
While sitting in the passenger seat of his car, Brown opened a beer and began
talking to his friend Vearb Smith. Id. Brown stated that he then noticed Maclin

2

walking back and forth in the vacant lot and heard Maclin say “he wasn’t going to
let nobody else take no money from him” and “whoever do it he going to kill him.”
Id.
A little later, Brown saw another car pull up and park behind him. Maclin,
12 N.E.2d at 650. A woman named Helen was driving and McGhee was in the
passenger seat. Id. at 650-51. When McGhee got out of the car, Maclin immediately
approached McGhee and began arguing about $5 that McGhee owed Maclin. Id. at
651. Brown testified that Maclin told McGhee, “you going to pay me my money,” and
McGhee said, “I don’t have it.” Id. Maclin then told McGhee to go inside a nearby
house and get the money. Id. McGhee went inside the house, but came out emptyhanded. Id. Maclin then began to chase McGhee around one of the vehicles in the
lot before pulling out a knife. Id. Brown stated that Maclin made a stabbing motion
with the knife and said “you going to get my money or I’m going to kill you.” Id.
McGhee then ran across the street, picked up some “rocks or bricks,” and began
throwing them at Maclin. Id. Maclin then walked over to a blue van—which
McGhee had been servicing earlier that day—parked on Adams Street. Id. at 65051. Maclin took McGhee’s toolbox from the van. Id. at 651. McGhee told Maclin,
“you can’t take my toolbox, I need that”; but Maclin responded, “you going to give
me my money.” Id. Maclin then put down the toolbox and began to chase McGhee
again. Id. McGhee started to run away, but ran out of breath and slowed to a walk.
Id. McGhee fell backward, hitting his head on the ground, which gave Maclin time
to catch up, to get on top of McGhee, and to pin down McGhee’s arms. Id. Brown

3

testified that Maclin grabbed McGhee’s hands and “slowly stuck [McGhee] in the
neck.” Id. Maclin then got up and walked away. Id.
Brown testified that after Maclin stabbed McGhee in the neck, Brown got out
of his car to help McGhee. Maclin, 12 N.E.3d at 651. A woman named Rebecca Beck
also came over to help. Id. Both Brown and Beck helped McGhee walk over to the
blue van. Id. Once they reached the blue van, McGhee collapsed against a light pole
and began gasping for air. Id. Brown called the paramedics. Id. Brown stated that
he went to the police station to give a statement and then returned to his car in the
vacant lot. Id. Brown and Smith began trying to figure out Maclin’s last name
because they knew him simply as “George.” Id. Brown and Smith remembered that
Maclin had some “medical papers” with him when he was around the area of the
vacant lot. Id. When they found Maclin’s mail on the side of a building near the
vacant lot, Brown called the police. Id. Both Brown and Smith brought Maclin’s
mail to the police station. Id. Brown testified that later that night, on July 3, 2002,
he saw Maclin in the area of the vacant lot and called the police. Id. When the police
arrived, Brown pointed them in the direction of Western Avenue and Jackson
Boulevard. Id. On July 4, 2002, Brown identified Maclin in a lineup. Id.
2. Testimony of Vearb Smith
Vearb Smith testified that he and McGhee were friends and had worked as
mechanics together. Maclin, 12 N.E.3d at 651. Smith stated that in the early
morning of July 3, 2002, he was asleep on the second floor of a building located at
2337 West Adams Street. Id. Smith heard a commotion and went downstairs to see

4

what was going on.3 Id. As he stood on the porch of his building, he saw McGhee
lying on the ground with Maclin “standing on top of [McGhee].” Id. Maclin then
walked away from McGhee, and McGhee started to yell for help. Id. Beck helped
McGhee get up and walk toward Smith. Id. Smith noticed that McGhee was holding
his neck, and saw McGhee collapse at the base of a light pole near the blue van. Id.
Smith stated that he remained at the scene and spoke with a police officer. Id.
Smith testified that later that morning, he was on the porch of his building talking
to Brown. Id. Smith and Brown wanted to learn Maclin’s last name. Id. Smith
remembered that Maclin had been drinking in the area of the vacant lot with his
“V.A. papers,” id. at 651-52, presumably a reference to Veterans Affairs documents.
Smith stated that he went to the side of a building where Maclin had been drinking,
retrieved Maclin’s papers, and gave the papers to Brown. Id. at 652. Smith and
Brown then called the police and took the papers to the police station. Id. On July 4,
2002, Smith identified Maclin in a lineup. Id.
3. Testimony of Chicago Police Officer Todd Stremplewski
Chicago Police Officer Todd Stremplewski testified that he and his partner
were the original officers on the scene, where they learned that a man had been
stabbed with a knife. Maclin, 12 N.E.3d at 652. The next day, on July 4, 2002,
Officer Stremplewski and his partner responded to a radio call regarding property
found at the vacant lot of 2339 West Adams Street. Id. When he arrived at the lot,
3Although

this might appear somewhat inconsistent with Brown’s testimony, it is
not necessarily so. Brown stated that Smith had walked away from the scene before the
argument between Maclin and McGhee escalated. R. 10-6 at 103-04. So it is possible that
Smith spoke with Brown just as Brown testified, and then also went home to bed before the
incident between McGhee and Maclin occurred, as Smith’s testimony suggests.

5

Officer Stremplewski spoke with Marilyn Green. Id. He testified that Green took
him to the area where McGhee was killed and directed him to a nearby garbage can.
Id. Officer Stremplewski looked in the garbage can and found a knife. Id. The
parties stipulated that the knife had a bloodstain on it which was consistent with
McGhee’s DNA profile. Id.
4. Testimony of Chicago Police Detective David March
Chicago Police Detective David March was assigned as a follow-up detective
to investigate McGhee’s killing. Maclin, 12 N.E.3d at 652. Detective March testified
that the original case report stated that the offender was named “George.” Id.
Detective March reviewed the available reports and learned that some mail
addressed to Maclin had been recovered. Id. At 11:30 p.m. on July 3, 2002, Detective
March received a telephone call from Brown; Brown informed March that Maclin
was back at the scene of McGhee’s killing. Id. When Detective March arrived at the
scene, Beck directed him to a Chicago Transit Authority bus that was going
westbound on Jackson Boulevard. Id. Detective March and his fellow detectives
stopped the bus and took Maclin into custody. Id. At the police station, Detective
March advised Maclin of his Miranda rights and interviewed him. Id. Maclin denied
having any knowledge of, or involvement in, McGhee’s death. Id. Maclin stated that
he did not remember where he was during the incident. Id. Detective March
testified that as part of processing, he removed Maclin’s shirt to note any scars,
tattoos, or other marks that could be used for identification purposes. Id. When he
did this, Detective March noticed an abrasion on Maclin’s left armpit area. Id. When
Detective March asked Maclin about this, Maclin replied that the injury occurred
6

two weeks earlier but that he did not remember how it happened. Id. Detective
March did not notice any blood on Maclin’s shirt. Id.
5. Testimony of Medical Examiner Mitra Kalelkar
Dr. Mitra Kalelkar testified that she is a forensic pathologist and the one who
conducted McGhee’s autopsy. Maclin, 12 N.E.3d at 652. Dr. Kalelkar stated that the
cause of McGhee’s death was internal bleeding as a result of a stab wound to the
left side of his neck. Id. She concluded that McGhee’s death was a homicide. Id.
6. Maclin’s Testimony
Maclin testified in his own defense. He testified that on July 3, 2002, he was
sitting in a white van in the area of Adams Street and Western Avenue, smoking
crack cocaine with a friend named “Willie.” Maclin, 12 N.E.3d at 652. Maclin stated
that he saw McGhee in the area and approached him. Id. Maclin asked McGhee if
he had the money that he owed Maclin. Id. Maclin stated that McGhee looked at
him in an angry way and that he felt scared. Id. Maclin again asked McGhee about
the money, and McGhee became “indignant.” Id. McGhee stated that he did not owe
Maclin any money, nor would he give Maclin any money. Id. Maclin testified that he
backed away from McGhee because McGhee had several people with him. Id. at
652-53. McGhee then came toward Maclin “in a manner like he was getting ready to
reach out.” Id. Maclin testified that he was scared and reacted by hitting McGhee.
Id. Maclin then went back to the white van, got into the driver’s seat, and smoked
another bag of crack cocaine with Willie. Id.
A little later, McGhee was standing next to the driver’s side of the white van.
Maclin, 12 N.E.3d at 653. McGhee asked Maclin to get out. Id. As Maclin opened
7

the van door, he felt a sharp sting in the area of his armpit, as if he was “being
stuck with something.” Id. Maclin looked down and noticed McGhee pulling his
hand back. Id. Maclin saw something in McGhee’s hand but could not tell what it
was. Id. Maclin testified that he fell back into the van and picked up his knife from
the seat. Id. Maclin then noticed a toolbox on the floor of the driver’s side of the van.
Id. Maclin stated that he grabbed the toolbox to use as a shield. Id.
Maclin testified that he stepped outside the white van with the toolbox in his
right hand and the knife in his left. Maclin, 12 N.E.3d at 653. He backed up toward
Western Avenue to get away from McGhee because McGhee had several friends
with him. Id. As Maclin walked away, he noticed McGhee following him, so Maclin
stopped and turned toward McGhee. Id. McGhee also stopped and was about 15 or
20 feet away from Maclin. Id. Maclin began walking again, but soon noticed
McGhee jogging toward him. Id. Maclin turned toward McGhee and said “man leave
me alone.” Id. Maclin began walking again and turned around to see where
McGhee’s friends were; they were standing back, but McGhee was standing right in
front of Maclin. Id. Maclin testified that McGhee stepped back and the two men got
tangled and fell. Id. Maclin fell on top of McGhee and noticed that McGhee was
holding an object resembling a screwdriver. Id. Maclin grabbed McGhee’s hands and
put his knees on McGhee’s arms. Id. Maclin testified that “next think [sic] I know,
[Beck] is standing there.” Id. Beck told the two men to “stop all of this” and to “give
me those things.” Id. Maclin testified that he handed the knife to Beck and began to
get off McGhee, but noticed that McGhee still had an object in his hand. Id. Maclin

8

grabbed McGhee’s hand and Beck took the object from McGhee. Id. Maclin then got
off of McGhee and walked away; McGhee walked in the other direction. Id. Maclin
testified that Beck yelled “somebody is bleeding.” Id. At that time, Maclin did not
know McGhee had been stabbed. Id.
Maclin also testified that he sat in a park until morning because he lived at
Woodside Manor and the doors were locked for the night. Maclin, 12 N.E.3d at 653.
Woodside Manor is a health care and assisted living facility in Chicago Heights,
Illinois. Id. At 6:30 a.m. on July 3, 2002, Maclin took the bus to St. James Hospital
to have his wound treated. Id. Maclin testified that his wound was flushed and
bandaged, and that he was given medication. Id. Maclin was then released from the
hospital. Id. After he arrived back home at Woodside Manor, Maclin went to see
“Nurse Mary.” Id. Maclin stated that Nurse Mary works at Woodside Manor and
fills prescriptions for patients. Id. Nurse Mary looked at Maclin’s wound and gave
him medication. Id. Later in the day on July 3, 2002, Maclin went back to the area
of the vacant lot to try to buy drugs. Id. Maclin stated that while he was on a bus on
Jackson Boulevard, a police officer removed him from the bus.4 Id.
7. Testimony of Nurse Mary Willis
Mary Willis testified that in July 2002 she worked as a licensed practical
nurse at Woodside Manor in Chicago Heights. Maclin, 12 N.E.3d at 654. She stated
that on July 3, 2002, she was approached by Maclin who said he had been stabbed.
Id. Nurse Willis observed a puncture wound on Maclin’s left chest, which looked
4After

Maclin’s testimony concluded, defense counsel filed a motion seeking to admit
evidence of McGhee’s propensity for violence pursuant to People v. Lynch, 470 N.E.2d 1018
(1984). Maclin, 12 N.E.3d at 654. The trial court denied the motion. Id.

9

“fresh” but was not bleeding. Id. Nurse Willis faxed Maclin’s prescriptions to a
pharmacy outside of Woodside Manor. Id. She stated that she asked Maclin how he
was injured, and Maclin replied “I woke up in the woods, and I don’t know what
woods.” Id. Maclin made no mention of being stabbed by McGhee. Id.
8. Trial Verdict
After closing arguments, the trial court instructed the jury on the offenses of
first-degree murder and armed robbery. Maclin, 12 N.E.3d at 654. The jury was told
to return a verdict of guilty only if it found that the State had proven all of the
elements of both offenses beyond a reasonable doubt. Id. The trial court refused to
instruct the jury on the defenses of necessity and self-defense. Id. The jury found
Maclin guilty of first-degree felony murder. Id. On June 19, 2007, Maclin filed a
motion for a new trial, which the trial court denied. Id. On October 29, 2007, the
trial court sentenced Maclin to a mandatory term of life imprisonment because he
had previously been convicted of first-degree murder. Id.
B. Direct Appeal
On direct appeal, Maclin—who was represented by counsel at the time—
argued that (1) the State failed to prove that he was guilty of felony murder beyond
a reasonable doubt, and (2) the trial court erred in refusing to admit evidence of
McGhee’s violent history pursuant to People v. Lynch, 470 N.E.2d 1018 (Ill. 1984).
Maclin, 12 N.E.3d at 654; R. 10-10, Exh. C, Pet’r’s Direct Appeal Br. The Illinois
Appellate Court rejected Maclin’s arguments and affirmed the judgment of the trial
court. Maclin, 12 N.E.3d at 654. The appellate court concluded that based on the

10

evidence at trial, the jury could have reasonably inferred that Maclin took the
toolbox through a threat of force, and that he did so before stabbing McGhee. Id.
The appellate court further concluded that the trial court did not err in excluding
evidence of McGhee’s violent history because that evidence was both legally and
factually irrelevant. Id. Maclin then filed a Petition for Leave to Appeal with the
Illinois Supreme Court. R. 10-11, Exh. F, Pet’r’s Direct Appeal PLA. In his petition,
Maclin argued that the Illinois Appellate Court erred in affirming the trial court’s
decision to exclude the evidence of McGhee’s violent history. Id. at 2-3.5 On March
24, 2010, the Illinois Supreme Court denied Maclin’s petition. R. 10-11, Exh. G,
Denial of Direct Appeal PLA.
C. Post-Conviction Proceedings in State Court
On September 21, 2010, Maclin filed a pro se post-conviction petition in state
court. Maclin, 12 N.E.3d at 654; see also R. 10-11, Exh. H, Pet’r’s Post-Conviction
Pet. Maclin argued, among other things, that direct-appeal counsel was ineffective
for failing to argue that the trial court erred in refusing to instruct the jury on the
defenses of necessity to the armed robbery of the toolbox and self-defense to felony
murder. Maclin, 12 N.E.3d at 654; Pet’r’s Post-Conviction Pet. On December 17,
2010, the trial court dismissed Maclin’s petition as frivolous and patently without
merit. Maclin, 12 N.E.3d at 654.
On post-conviction appeal, Maclin renewed his claim that his direct-appeal
counsel was ineffective for failing to argue that the trial court erred in refusing to

5When

citing Maclin’s state court briefs, the Court cites to the page number of the

actual briefs.

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instruct the jury on the defenses of necessity and self-defense. R. 10-11, Exh. I,
Pet’r’s Post-Conviction Appeal Br. at 1. Maclin asserted that he was entitled to the
instructions “given the unusual fact pattern in which there was some evidence that
[McGhee] … stabbed Maclin before Maclin committed the armed robbery.” Id.
Maclin was represented by counsel during his post-conviction appeal. Id. at 28. The
Illinois Appellate Court rejected Maclin’s arguments. R. 10-12, Exh. L, Appellate
Court Post-Conviction Op.; see also People v. Maclin, 12 N.E.3d 648 (Ill. App. Ct.
2014). Maclin filed a Petition for Leave to Appeal with the Illinois Supreme Court,
in which he asserted—again through counsel—that his direct-appeal counsel was
ineffective for failing to argue that the trial court erred in refusing to instruct the
jury on the defenses of necessity and self-defense. R. 10-12, Exh. M, Pet’r’s PostConviction PLA at 2-4. On September 24, 2014, the Illinois Supreme Court denied
Maclin’s petition. R. 10-12, Exh. N, Denial of Post-Conviction PLA.
D. Federal Habeas Corpus Petition
Maclin filed his pro se petition for a writ of habeas corpus in this Court on
May 18, 2015. R. 1, Habeas Pet. Maclin raises two claims in his petition. First, he
asserts the Illinois trial court violated his federal due process rights by failing to
conduct an initial review of his state post-conviction petition within 90 days of its
filing, as required by the Illinois Post Conviction Hearing Act, 725 ILCS 5/1222.1(a). Id. at 5. Second, he asserts his direct appeal counsel was ineffective for not
arguing that the trial court erred in refusing to instruct the jury on the defenses of
necessity and self-defense. Id.

12

In July 2015, this Court dismissed Maclin’s first claim when it conducted its
initial review of Maclin’s habeas petition. R. 4, 7/06/15 Order at 2-3; see also Rule 4
of the Rules Governing Section 2254 Cases in the United States District Courts
(requiring district courts to conduct a preliminary review of all habeas petitions).
The Court explained that even if the state court had failed to abide by Illinois’ 90day requirement, as Maclin alleges, the state court’s failure still would not amount
to an independent federal due process claim, especially because the 90-day rule had
no bearing on Maclin’s guilt or innocence. 7/06/15 Order at 2-3. So the Court
dismissed that claim. But Maclin’s second claim—his ineffective assistance of direct
appeal counsel claim—was allowed to move forward. Id. at 3.
On August 17, 2015, the State answered Maclin’s petition and submitted the
applicable state court records. R. 9, State’s Answer to Habeas Pet.; see also R. 10.
The State asks this Court to deny Maclin’s petition. State’s Answer to Habeas Pet.
II. Legal Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Pub. L. No. 104-132, 110 Stat. 1214, a state petitioner seeking a writ of habeas
corpus in federal court must first exhaust the remedies available to him in state
court, 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) (internal quotation marks and citation omitted). A
habeas petitioner must fully and fairly present his federal claims through one
complete round of the state appellate review process before filing a federal habeas

13

petition. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). If a petitioner fails to
properly assert his federal claims at each level of state review, his claims are
procedurally defaulted. McDowell v. Lemke, 737 F.3d 476, 482 (7th Cir. 2013).
But if the petitioner successfully runs the procedural-default gauntlet for a
particular claim, then a federal court can at least consider the merits of that federal
habeas claim. Under AEDPA, however, a federal court may not grant habeas relief
unless the state court’s decision was contrary to, or an unreasonable application of,
clearly established federal law as determined by the United States Supreme Court.
28 U.S.C. § 2254(d)(1). A state court’s decision is “contrary to” clearly established
Supreme Court law “if the state court arrives at a conclusion opposite to that
reached by th[e] Court on a question of law or if the state court decides a case
differently than th[e] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Alternatively, under the
“unreasonable application” prong of the AEDPA standard, a habeas petitioner must
demonstrate that although the state court identified the correct legal rule, it
unreasonably applied the controlling law to the facts of the case. See id. at 413. But
even if a federal court independently concludes that the relevant state-court
decision applied clearly established federal law erroneously, still the writ does not
necessarily issue; rather, the state court’s application must be objectively
unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). “This is a difficult
standard to meet; ‘unreasonable’ means ‘something like lying well outside the

14

boundaries of permissible differences of opinion.’” Jackson v. Frank, 348 F.3d 658,
662 (7th Cir. 2003) (quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).
III. Analysis
In his only remaining habeas claim, Maclin asserts that his attorney on
direct appeal was ineffective for not asserting that the trial court erred in refusing
to instruct the jury on two defenses: (1) a defense of necessity for the armed robbery
of the toolbox, and (2) self-defense to felony murder. Habeas Pet. at 5. In assessing
Maclin’s claim, the Court must construe Maclin’s pro se petition liberally. Perruquet
v. Briley, 390 F.3d 505, 512 (7th Cir. 2004). The relevant decision for habeas review
is the decision of the last state court to rule on the merits of Maclin’s claim. Morgan
v. Hardy, 662 F.3d 790, 797 (7th Cir. 2011). Here, that is the Illinois Appellate
Court’s decision affirming the denial of Maclin’s post-conviction petition. People v.
Maclin, 12 N.E.3d 648 (Ill. App. Ct. 2014); see also R. 10-12, Exh. L, Appellate Court
Post-Conviction Op.
Initially, the Court notes that the State does not dispute that Maclin has
exhausted his state-court remedies, see State’s Answer to Habeas Pet, and this is for
good reason. Illinois has a two-tiered appellate review system. McDowell, 737 F.3d
at 482. To avoid procedural default, “a petitioner must present a claim at each level
of the state court system, either on direct appeal or in post-conviction proceedings.”
Id. Here, Maclin presented his same ineffective assistance of direct-appeal counsel
claim during every stage of his state court post-conviction process (of course he
could not raise such a claim during the direct appeal itself). Maclin raised the claim

15

in his original post-conviction petition before the state trial court. R. 10-11, Exh. H,
Pet’r’s Post-Conviction Pet. He raised it again on post-conviction appeal. R. 10-11,
Exh. I, Pet’r’s Post-Conviction Appeal Br. And he raised it a third time in his postconviction petition to the Illinois Supreme Court. R. 10-12, Exh. M, Pet’r’s PostConviction PLA. Maclin’s claim is therefore not subject to procedural default. See
Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007) (explaining that in Illinois,
exhaustion of a claim requires the petitioner to directly appeal to the Illinois
Appellate Court and present the claim in a petition for leave to appeal to the Illinois
Supreme Court). The Court may properly consider the merits of Maclin’s claim.
A. Necessity Defense
Maclin first contends that his direct-appeal counsel was ineffective for not
arguing that the trial court erred in refusing to instruct the jury on the defense of
necessity to the armed robbery of the toolbox. Habeas Pet. at 5. Maclin contends
that there was “some evidence” that McGhee stabbed him first and that he took the
toolbox to use as a shield against McGhee. Id. Although Maclin does not lay out any
more detail in his pro se petition, presumably, what Maclin is trying to argue (as he
did in his state court post-conviction proceedings, when he was represented by
counsel on post-conviction appeal) is that based on this evidence, the jury could
have found that he committed the armed robbery out of necessity, and therefore,
that he was not guilty. As a result, Maclin would argue, appellate counsel should
have challenged—and was ineffective for not doing so—the trial court’s refusal to
give this instruction, as there is a reasonable probability that the appellate court

16

would have reversed Maclin’s conviction based on this necessity defense. Maclin, 12
N.E.3d at 657. See also Pet’r’s Post-Conviction Appeal Br. at 19-21; Pet’r’s PostConviction PLA at 17-19.
Ineffective assistance of counsel claims like Maclin’s are governed by the
familiar two-part, performance-and-prejudice standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, Maclin must show (1) that his
attorney’s performance was deficient and (2) that he was prejudiced by that
deficient performance. 466 U.S. at 687. To satisfy the first element, Maclin must
show

that

“counsel’s

representation

fell

below

an

objective

standard

of

reasonableness.” Id. at 688. But in assessing his attorney’s performance, the Court
must maintain a “strong presumption that counsel’s conduct [fell] within the wide
range of reasonable professional assistance.” Id. at 689. So Maclin bears a “heavy
burden” in establishing ineffective assistance. Walker v. Litscher, 421 F.3d 549, 558
(7th Cir. 2005). To satisfy the second element, Maclin must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. Both elements
must be satisfied before relief may be granted. Id. at 697; Walker, 421 F.3d at 558.
Maclin challenges the assistance he received from his direct-appeal counsel;
the two-element Strickland standard also governs ineffective assistance of appellate
counsel claims. Smith v. Robbins, 528 U.S. 259, 285-89 (2000); Howard v. Gramley,
225 F.3d 784, 789-90 (7th Cir. 2000). When challenging whether appellate counsel
failed to raise the correct issues on appeal—as Maclin does here—the performance

17

element may be met by showing that “[appellate] counsel omit[ted] a ‘significant
and obvious issue’ without a legitimate strategic reason for doing so.” Howard, 225
F.3d at 790 (quoting Mason v. Hanks, 97 F.3d 887, 892-93 (7th Cir. 1996)). The
prejudice element is met “when that omitted issue ‘may have resulted in a reversal
of the conviction, or an order for a new trial.’” Id. (quoting Mason, 97 F.3d at 893).
But counsel is not required to raise every non-frivolous claim, and will not be
deemed ineffective merely for failing to do so. Smith, 528 U.S. at 288; Mason, 97
F.3d at 893 (“Effective advocacy does not require the appellate attorney to raise
every non-frivolous issue[.]”). Instead, counsel may properly “select from among
the[] [non-frivolous claims] in order to maximize the likelihood of success on
appeal.” Smith, 528 U.S. at 288; Page v. United States, 884 F.2d 300, 302 (7th Cir.
1989) (“One of the principal functions of appellate counsel is winnowing the
potential claims so that the court may focus on those with the best prospects.”).
In this case, the Illinois Appellate Court properly identified Strickland as the
standard applicable to Maclin’s ineffective assistance of counsel claim. Maclin, 12
N.E.3d at 658 (“A defendant’s claim of ineffective assistance of counsel is analyzed
under … Strickland… .”). It also correctly identified and discussed Strickland’s two
requirements. Id. Because the Illinois Appellate Court identified the correct legal
rule, its analysis was not contrary to clearly established federal law. See Garth v.
Davis, 470 F.3d 702, 710 (7th Cir. 2006) (“A decision applying the correct legal rule
to the facts of a case is not ‘contrary to’ within the meaning of § 2254(d)(1).”).

18

This then leaves the question of whether the Illinois Appellate Court
unreasonably applied Strickland. To make this showing, Maclin must demonstrate
that although the appellate court identified the correct legal rule, it unreasonably
applied the controlling law (in this case, Strickland) to the facts of the case.
Williams, 529 U.S. at 413. This is a difficult showing for Maclin to make because
under AEDPA, the Court must defer to the state court’s application of Strickland
unless it was “objectively unreasonable.” Williams, 529 U.S. at 409; Wiggins v.
Smith, 539 U.S. 510, 520-21 (2003); Knowles v. Mirzayance, 556 U.S. 111, 123
(2009); Harrington v. Richter, 562 U.S. 86, 101 (2011) (“pivotal question [under
habeas statute] is whether the state court’s application of the Strickland standard
was unreasonable”). Put another way, the Court is not deciding whether the state
court’s determination was correct under Strickland, but rather whether it “produced
an answer within the range of defensible positions.” Taylor v. Bradley, 448 F.3d
942, 948 (7th Cir. 2006) (internal quotation marks omitted); Harrington, 562 U.S. at
101. This is a “substantially higher threshold,” Knowles, 556 U.S. at 123, as the
Court must give the Illinois Appellate Court “a deference and latitude that [would]
not [be] in operation [if] the case involve[d] review under the Strickland standard
itself,” Harrington, 562 U.S. at 101. What’s more, because Strickland is a “general
standard,” state courts are given “even more latitude to reasonably determine that a
defendant has not satisfied that standard.” Knowles, 556 U.S. at 123 (citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule
application was unreasonable requires considering the rule’s specificity. The more

19

general the rule, the more leeway courts have in reaching outcomes in case-by-case
determinations”)). So Maclin faces a “doubly deferential judicial review.” Id.
In its evaluation of this claim, the Illinois Appellate Court held that Maclin’s
attorney on direct appeal was not ineffective because the trial court properly denied
the necessity instruction. Maclin, 12 N.E.3d at 657-59. The Illinois Appellate Court
explained that, in Illinois, a defendant is entitled to the necessity defense only if he
is “without blame in [causing] or developing the situation at issue.” Id. at 658 (citing
People v. Brown, 793 N.E.2d 75, 81 (Ill. App. Ct. 2003); People v. Roberts, 483
N.E.2d 1328, 1329 (Ill. App. Ct. 1985); People v. Perez, 422 N.E.2d 945, 948 (Ill. App.
Ct. 1981)); see also 720 ILCS 5/7-13. Even assuming Maclin’s testimony was
credible, the Illinois Appellate Court concluded that Maclin still “shared blame for
creating the situation in which he took McGhee’s toolbox.” Id. The appellate court
supported its holding with the following evidence: Maclin’s testimony that he
approached McGhee to ask about money McGhee owed him; Maclin’s testimony that
he hit McGhee after McGhee appeared to be reaching toward Maclin; Maclin’s
testimony that this was the first physical contact between the two men; and
Brown’s testimony that before McGhee arrived at the vacant lot, Maclin was
walking around saying he would kill anyone who tried to take money from him. Id.
at 658-59. This evidence, the Illinois Appellate Court stated, “clearly establishes
that Maclin played a role in causing or exacerbating the situation in which [Maclin]
ended up taking McGhee’s toolbox.” Id. at 659. The Illinois Appellate Court then
held that the trial court did not err in refusing to give the necessity instruction and

20

Maclin’s attorney was not deficient for failing to raise the necessity defense issue on
appeal. Id.
The Illinois Appellate Court’s decision was a reasonable one. As an initial
matter, the Court must accept the Illinois Appellate Court’s determination that
Maclin was not entitled to the necessity defense under Illinois law. Whether a
defendant is entitled to a particular jury instruction in state court is a matter of
state law. See Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004) (“a state trial
court’s evidentiary rulings and jury instructions turn on state law”); Little v.
Brannon, 2015 WL 4429117, at *3 (N.D. Ill. July 20, 2015). Because state courts are
the “ultimate expositors of their own states’ laws,” McCloud v. Deppisch, 409 F.3d
869, 875 (7th Cir. 2005) (internal quotation marks omitted), it is “not the province of
a federal habeas court to reexamine state-court determinations on state law
questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Perruquet, 390 F.3d at
511; Bates v. McCaughtry, 934 F.2d 99, 102 (7th Cir. 1991) (“State law means what
state courts say it means ... A claim that the state court misunderstood the
substantive requirements of state law does not present a claim under § 2254.”);
United States ex rel. Waters v. Bensinger, 507 F.2d 103, 105 (7th Cir. 1974); Little,
2015 WL 4429117, at *3. So the Court is bound by the Illinois Appellate Court’s
determination that, under Illinois law, Maclin was not entitled to the necessity
instruction at trial.6

6Improper

jury instructions may support the issuance of a writ of habeas corpus only
where the instruction violates a federal right, such as the federal right to due process of
law. Perruquet, 390 F.3d at 511 n.1. To be sure, it is possible to rely on ineffective
assistance (a federal constitutional right) to advance a claim based on a state-law jury

21

But even putting this required deference aside, a review of the record shows
that Maclin has little ground to stand on in arguing that he was wholly without
blame for creating the violent encounter. Maclin’s own testimony shows that he
initiated the first physical contact between him and McGhee—not McGhee. Maclin
testified on direct examination that when McGhee came toward him “in a manner
like he was getting ready to reach out,” Maclin “reacted and I hit him.” R. 10-7 at
100-01, Exh. B, Trial Record. Even according to Maclin, this is the first physical
contact that happened between the two men. The contact also occurred—again, this
is based on Maclin’s own testimony—before Maclin found the toolbox. Id. at 101-08
(testifying that after he hit McGhee, Maclin went back to the white van, smoked
more crack cocaine, and did not notice the toolbox until McGhee later came up to
the driver’s side of the white van); see also Maclin, 12 N.E.3d at 653 (same). And
Maclin could have responded differently; as the Illinois Appellate Court pointed out,
Maclin could have simply walked away. Id. at 659. But he did not. Maclin’s decision
to initiate physical contact with McGhee contributed to the situation’s escalation, or
at least reasonably could be viewed as contributing to it. So too could Maclin’s
decision to approach McGhee about the money in the first place. The appellate
court’s finding that Maclin was not without blame for creating the situation in
which he needed the toolbox was reasonable.
Because Maclin was not entitled to the instruction at trial, Maclin cannot
show that appellate counsel’s decision not to pursue the necessity instruction
instruction error, but the Illinois courts still are the final arbiters of state law (unless the
state-court decision itself is so arbitrary or so departs from precedent that federal due
process is violated).

22

argument on appeal constituted deficient performance. This was not a “significant
and obvious issue” that counsel had no legitimate reason for forgoing. Howard, 225
F.3d at 790; United States ex rel. Navarro v. Atchison, 69 F. Supp. 3d 810, 827 (N.D.
Ill. 2014). To the contrary, appellate counsel had a legitimate reason for not raising
it: it was likely to be a losing argument. “Failure to raise a losing argument,
whether at trial or on appeal, does not constitute ineffective assistance of counsel.”
Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996). At the very least, the Illinois
Appellate Court’s decision that Maclin’s attorney on direct appeal was not
ineffective for failing to pursue this necessity defense argument was reasonable.
B. Self-Defense
Maclin next contends that his attorney on direct appeal was ineffective for
failing to argue that the trial court erred in refusing a self-defense instruction to
felony murder. Habeas Pet. at 5. Maclin argues that “given the unusual fact pattern
in which there was some evidence that [McGhee] stabbed [Maclin] before [Maclin]
grabbed the toolbox” and later retaliated, Maclin was entitled to a self-defense
instruction. Id. Maclin again does not elaborate on this argument. But presumably
(relying on his post-conviction briefing, when he was represented by counsel),
Maclin is asserting that the jury could have believed his version of the events in
which he stabbed McGhee in self-defense after McGhee allegedly first stabbed him,
and that the jury could have concluded that he was not guilty of felony murder. In
turn, Maclin would argue that his attorney should have raised this argument on

23

direct appeal because the appellate court would have reversed Maclin’s conviction
based on this argument. Maclin, 12 N.E.3d at 659.
This claim is again an ineffective-assistance-of-counsel claim, so it too is
governed by Strickland. When conducting its analysis here, the Illinois Appellate
Court properly relied on Strickland. Id. at 659-60. So its decision was not contrary
to clearly established law. Garth, 470 F.3d at 710. This leaves Maclin in the same
position as before. In order to succeed on his self-defense claim, he must show that
the Illinois Appellate Court’s application of Strickland was unreasonable. Williams,
529 U.S. at 413. This requires him to overcome the “doubly deferential” standard of
review discussed above—something he is unable to do.
In its decision, the Illinois Appellate Court held that Maclin’s attorney was
not ineffective for failing to pursue this self-defense argument. The Illinois
Appellate Court first explained that the trial court properly denied the self-defense
instruction because there was not enough evidence to support it. Maclin, 12 N.E.3d
at 659-60. The appellate court noted that “[a] criminal defendant [in Illinois] is
entitled to have a jury instruction on any legally recognized affirmative defense
theory on which he was presented ‘some evidence.’” Id. at 658 (quoting People v.
Roberts, 483 N.E.2d 1328, 1329 (Ill. 1985). But the Illinois Appellate Court then
went on to explain that a defendant in a felony murder case is generally not entitled
to a self-defense jury instruction. Id. at 659-60 (citing People v. Walker, 911 N.E.2d
439, 450 (Ill. App. Ct. 2009)). There is only one narrow exception to this rule:
“Provocation and belief in the need for self-defense can be partial defenses to felony

24

murder, if the provocation or the belief in the need for self-defense occurred before
[the] defendant formed the intent to commit the underlying felony.” Id. at 660
(internal quotation marks omitted) (emphasis added). The Illinois Appellate Court
concluded that in Maclin’s case, there was not enough evidence presented at trial to
support the instruction. Id. The court stated that Maclin’s guilt at trial was
overwhelming; it pointed to the following evidence: Brown’s testimony that before
the altercation with McGhee, Maclin was walking around the vacant lot saying he
was going to kill someone if they took money from him; evidence that Maclin
initiated the altercation, took the toolbox after McGhee refused to give him money,
and chased McGhee and stabbed him in the neck; Detective March’s testimony that
Maclin claimed he had no knowledge of the incident with McGhee (showing Maclin’s
consciousness of guilt); Detective March and Nurse Willis’s testimonies that Maclin
told them he did not know how he received the abrasion on his chest (again showing
Maclin’s attempt to entirely avoid being placed at the scene); and Detective March’s
testimony that Maclin told him his injury occurred weeks before the incident with
McGhee. Id. Based on this evidence, the Illinois Appellate Court held that Maclin
was not able to satisfy the “some evidence” standard; nor was he able to show that
the trial court erred in refusing to give the instruction. Id. The Illinois Appellate
Court then went on to note that “even if the trial court had erred in refusing to
instruct the jury on self-defense, the error would have been harmless because the
evidence of Maclin’s guilt was overwhelming and the outcome of the trial would not
have been affected.” Id. The Illinois Appellate Court concluded that Maclin’s

25

“appellate counsel’s representation was not unreasonable, and Maclin was not
prejudiced by counsel’s representation.” Id.
The Illinois Appellate Court’s decision was again reasonable. As discussed
above, a federal habeas court is not in the business of “reexamin[ing] state-court
determinations on state law questions.” Estelle, 502 U.S. at 67-68; Waddington v.
Sarausad, 555 U.S. 179, 192 n.5 (2009); Gilmore v. Taylor, 508 U.S. 333, 342 (1993);
Huusko v. Jenkins, 556 F.3d 633, 637 (7th Cir. 2000) (“a federal court cannot issue a
writ of habeas corpus that rests on a belief that a state court has misunderstood or
misapplied state law”). In this case, the Illinois Appellate Court observed that a
self-defense instruction is only appropriate under Illinois law when the defendant
presents “some evidence” to support it. Maclin, 12 N.E.3d at 658-60. The Illinois
Appellate Court concluded that the trial evidence in this case was not sufficient to
make that showing; so it concluded that “the trial court did not err in refusing to
instruct the jury on self-defense.” Id. at 660. This Court is bound by the Illinois
Appellate Court’s determination on that state law issue when deciding whether
Maclin’s attorney was ineffective for failing to challenge the trial court’s refusal to
give the self-defense instruction. See Navarro, 69 F. Supp. 3d at 828; see also Bates,
934 F.2d at 102 (“State law means what state courts say it means ... A claim that
the state court misunderstood the substantive requirements of state law does not
present a claim under § 2254.”). Because the Illinois Appellate Court determined
that an argument based on the trial court’s rejection of this instruction would have
been unavailing under state law, Maclin cannot show that his attorney was

26

deficient. Navarro, 69 F. Supp. 3d at 828; Stone, 86 F.3d at 717 (“Failure to raise a
losing argument … does not constitute ineffective assistance of counsel.”).
In addition, it is worth noting that when assessing counsel’s performance, the
Court must “evaluate [an attorney’s] performance as a whole rather than focus on a
single failing or oversight.” Ebert v. Gaetz, 610 F.3d 404, 411 (7th Cir. 2010);
Sussman v. Jenkins, 636 F.3d 329, 351 (7th Cir. 2011); Williams v. Lemmon, 557
F.3d 534, 538 (7th Cir. 2009) (“It is essential to evaluate the entire course of the
defense, because the question is not whether the lawyer’s work was error-free, or
the best possible approach, or even an average one, but whether the defendant had
the ‘counsel’ of which the sixth amendment speaks.”); Navarro, 69 F. Supp. 3d at
828. As discussed above, appellate counsel is not required to raise every nonfrivolous claim on direct appeal. Smith, 528 U.S. at 288; Mason, 97 F.3d at 893.
Rather, counsel may choose from among the non-frivolous claims in an effort to
maximize success on appeal. Smith, 528 U.S. at 288.
Here, Maclin’s attorney chose to pursue two other claims: (1) that the State
failed to prove that Maclin was guilty of felony murder beyond a reasonable doubt
because it failed to establish that he committed the underlying felony of armed
robbery; and (2) that the trial court erred in refusing to admit evidence of McGhee’s
violent history given the defense’s theory at trial that McGhee was the initial
aggressor, that no armed robbery occurred, and that Maclin used the toolbox strictly
for defensive purposes. Pet’r’s Direct Appeal Br. at 20-33. In the first claim, Maclin’s
attorney argued that the State had not shown that Maclin took the toolbox through

27

“force or threat of force,” as required under Illinois law. Id. at 22 (citing People v.
Gaines, 430 N.E.2d 1043, 1058 (Ill. 1981)). Given the rather unusual facts
surrounding Maclin’s taking of McGhee’s toolbox, and in particular, Brown’s
testimony that Maclin picked up the toolbox and then put it down after McGhee told
him that he needed that, this was a solid argument to make. If successful, it could
have resulted in a reversal of Maclin’s conviction. Id. at 20-21 (citing to People v.
Ortiz, 752 N.E.2d 410, 429 (Ill. 2001)). In the second claim, Maclin’s attorney argued
that Maclin should have been allowed to present evidence of McGhee’s violent
history because there was conflicting testimony as to who was the initial aggressor:
Brown testified it was Maclin, while Maclin testified it was McGhee. Id. at 32-33.
Maclin’s attorney argued that the Illinois Supreme Court’s decision in People v.
Lynch, 470 N.E.2d 1018 (Ill. 1984), supported the proposition that “[w]here the
theory of self-defense is raised, evidence of the victim’s aggressive or violent
character is relevant to support the defendant’s version of the facts where there are
conflicting accounts of what happened” Id. at 27. Maclin’s attorney argued that the
evidence of McGhee’s violent history would have supported the defense’s theory that
McGhee was the initial aggressor and that Maclin used the toolbox for protection.
Id. at 26. If successful, this claim too could have resulted in a reversal of Maclin’s
conviction and the granting of a new trial. Id. at 33 (requesting conviction reversal
and remand for new trial). Given the conflicting testimony presented in Maclin’s
case, this argument was also a reasonable one to make. Maclin’s attorney’s decision
to pursue these two claims—both of which had a chance of success on appeal

28

(although neither of which turned out successful)—rather than Maclin’s self-defense
argument was not “so far off the wall … [as to] qualify as deficient,” United States v.
Lathrop, 634 F.3d 931, 938 (7th Cir. 2011), especially given the fact that felony
murder defendants are generally not entitled to a self-defense instruction.
Accordingly, the Illinois Appellate Court’s decision that Maclin’s attorney was not
ineffective for failing to challenge the trial court’s refusal to instruct the jury on selfdefense was reasonable.7
C. Arguments Made During State Court Post-Conviction Proceedings
Finally, the Court also considers the arguments Maclin raised in conjunction
with these two jury instruction issues during his post-conviction Petition for Leave
to Appeal to the Illinois Supreme Court. Pet’r’s Post-Conviction PLA. Maclin was
represented by counsel at that time. Because he is currently proceeding pro se, the
Court addresses these lawyer-written arguments in addition to the arguments
Maclin raised in his federal habeas petition. See R. 21, 3/07/16 Minute Entry.
For the most part, Maclin’s attorney relied on the same arguments Maclin
presented in his habeas petition, which the Court has already addressed above. But
Maclin’s attorney did raise a few additional arguments. First, in responding to the
Illinois Appellate Court’s decision on Maclin’s necessity defense argument, Maclin’s
attorney asserted that it was at least arguable that Maclin’s hitting of McGhee did
not contribute to McGhee’s later aggression. Pet’r’s Post-Conviction PLA at 19.
7Because

the Court concludes that it was reasonable for the Illinois Appellate Court
to determine that Maclin’s attorney was not deficient for failing to pursue this self-defense
argument, the Court need not address the appellate court’s harmless error discussion.
Strickland, 466 U.S. at 697 (“there is no reason for a court … to address both components of
the inquiry if the defendant makes an insufficient showing on one”).

29

Maclin’s attorney argued that because several minutes must have passed between
when Maclin hit McGhee and when Maclin picked up the toolbox (at least based on
Maclin’s testimony), it could be argued that Maclin’s physical contact did not
exacerbate the situation. Id. Maclin’s attorney pointed to Maclin’s statement that he
went back to the white van and smoked more cocaine before McGhee approached
Maclin in the white van and Maclin grabbed the toolbox. Id. But this argument does
not save Maclin’s necessity claim. Even taking this argument into account, the
amount of time that supposedly elapsed between Maclin’s hitting McGhee and
Maclin’s grabbing of the toolbox is just one factor that must be considered in a
necessity defense analysis. The analysis would also have to take into account the
other trial evidence, including Brown’s testimony that Maclin was the initial
aggressor, and Maclin’s testimony that he was the first one to initiate contact. On
balance, it is far from clear whether Maclin would have been entitled to the defense
even if the elapsed time were taken into account, so the Illinois Appellate Court
decision cannot be called unreasonable. And the Court must still consider Maclin’s
attorney’s performance as a whole. Ebert, 610 F.3d at 411. His attorney’s decision to
pursue two other viable claims, rather than this necessity claim, was not
unreasonable on this record. Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)
(“Generally, only when ignored issues are clearly stronger than those presented,
will the presumption of effective assistance of counsel be overcome.”).
Next, in responding to the Illinois Appellate Court’s decision on Maclin’s selfdefense claim, Maclin’s post-conviction attorney raised three additional arguments:

30

(1) that the appellate court “improperly reviewed only the State’s evidence and not
the defense’s evidence of self-defense,” (2) that it erred in its harmless error analysis
because “an erroneous refusal to instruct on self-defense is not subject to harmlesserror,” and (3) that it failed to analyze the claim under the correct standard, which
is “whether a post-conviction petition lacks an arguable basis in law or fact.” Pet’r’s
Post-Conviction PLA at 2-3. These arguments again fall short. Maclin’s first and
third argument rest on Maclin’s contention that his own testimony was sufficient to
satisfy Illinois’ “some evidence” standard, or at least sufficient to create an arguable
basis that Maclin was entitled to the self-defense instruction. Id. at 15. But the
problem for Maclin here is that success on either of these arguments would require
the Court to conclude that the Illinois Appellate Court misapplied Illinois law. As
discussed above, it is “not the province of a federal habeas court to reexamine statecourt determinations on state law issues.” Estelle, 502 U.S. at 67-68.
Maclin’s second argument relates to the Illinois Appellate Court’s harmless
error analysis. But as noted above, the Court does not need to address that analysis.
In order for Maclin to succeed on an ineffectiveness claim, Maclin must satisfy both
Strickland prongs: performance and prejudice. Strickland, 466 U.S. at 697; United
States v. Jackson, 103 F.3d 561, 575 (7th Cir. 1996) (“defendant has the burden of
satisfying both prongs of the Strickland test”). Maclin’s inability to show that the
appellate court acted unreasonably in its determination that Maclin’s attorney was
not deficient for failing to challenge the lack of a self-defense instruction is fatal to
Maclin’s self-defense argument. The Court need not perform a prejudice analysis.

31

Strickland, 466 U.S. at 697 (“there is no reason for a court … to address both
components of the inquiry if the defendant makes an insufficient showing on one”);
Walker, 421 F.3d at 558 (“failure to establish either prong is fatal to an
ineffective[ness] … claim”).
IV. Certificate of Appealability
As a final matter, pursuant to Rule 11 of the Rules Governing Section 2254
Cases, this Court “must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” See also 28 U.S.C. § 2253(c)(1)(A). To obtain a
certificate of appealability, “the applicant [must] ma[ke] a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do this, the petitioner
must 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.” Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (internal quotation marks and citation omitted). For the
reasons discussed above, Maclin has not made a substantial showing of the denial of
a constitutional right. Reasonable jurists also would not debate whether the issues
described in Maclin’s habeas petition should have been resolved differently, nor
would they conclude that Maclin deserves encouragement to proceed further. Id.;
Rutledge v. United States, 230 F.3d 1041, 1047 (7th Cir. 2000). The Illinois
Appellate Court’s decision on Maclin’s ineffective assistance of counsel claim was
well within the deference owed to state courts under AEDPA. The Court therefore
declines to issue a certificate of appealability.

32

V. Conclusion
For the reasons discussed above, Maclin’s habeas petition [R. 1] is denied,
and the Court declines to issue a certificate of appealability.

ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: August 23, 2016

33