Smith v. Hutchinson

Filing 20

MEMORANDUM OPINION. Signed by the Honorable Samuel Der-Yeghiayan on 6/28/2017. Mailed notice (tt, )

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

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Plaintiff,
v.
JEFFRY HUTCHINSON,
Defendant.

No. 17 C 259

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Petitioner Leshun Smith’s (Smith) pro se
petition for writ of habeas corpus (Petition) brought pursuant to 28 U.S.C. § 2254
(Section 2254). For the reasons stated below, the Petition is denied.

BACKGROUND
Smith was convicted by a jury in state court of murder and sentenced to thirtysix years in prison. Smith filed an appeal and the conviction was affirmed. Smith
then filed a petition for leave to appeal (PLA) with the Illinois Supreme Court, and
the PLA was denied. Smith then filed a post-conviction petition, which was
dismissed. Smith appealed that ruling, and the Illinois Appellate Court affirmed the
dismissal. Smith then filed another PLA, which was denied on March 30, 2016. On

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January 12, 2017, Smith filed the instant Petition. Respondent has filed an answer to
the Petition.

LEGAL STANDARD
An individual in custody pursuant to state court judgment may seek a writ of
habeas corpus pursuant to Section 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
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).

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DISCUSSION
This court has liberally construed Smith’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”). Smith asserts in the Petition: (1) that he received
ineffective assistance of counsel at sentencing because his counsel did not call
certain character witnesses to testify on behalf of Smith (Claim 1), and that his
sentence was disproportionate to other sentences for the same conduct in violation of
the Eighth Amendment (Claim 2).

I. Claim 1
Respondent argues that Claim 1 lacks merit. As indicated above, Smith
asserts in Claim 1 that he received ineffective assistance of counsel at sentencing
because his counsel did not call certain character witnesses to testify on behalf of
Smith. The decision of whether or not to call such witnesses was a strategic decision
made on the part of Smith’s counsel, and Smith has not shown that the decision was
outside the boundaries of effective representation. See Stallings v. United States,
536 F.3d 624, 627 (7th Cir. 2008)(stating that a court reviewing a Section 2255
motion “shall not second-guess strategic decisions that were arguably appropriate at
the time but that hindsight has revealed to be unwise”). The Illinois Appellate Court
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also already specifically addressed this claim and properly concluded that “decisions
about whether to call certain witnesses on a defendant’s behalf are matters of trial
strategy, reserved to the discretion of trial counsel, which enjoy a strong presumption
that they reflect sound trial strategy, rather than incompetence” and that no prejudice
was shown as a result of failing to call such witnesses. People v. Smith, 2015 IL
App (1st) 131093-U. Claim 1 thus lacks any merit.

II. Claim 2
Respondent argues that Claim 2 is procedurally defaulted. As indicated
above, Smith asserts in Claim 2 that his sentence was disproportionate to other
sentences for the same conduct in violation of the Eighth Amendment. Smith
contends that a thirty-six year sentence was not an appropriate sentence for shooting
his victim multiple times and murdering his victim. 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
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
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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 reflects that Smith never presented Claim 2 through a complete
round of the appellate process during either his direct appeal proceedings or during
his postconviction proceedings. (Pet. 7-8); (DE 16-3: 4); (DE 16-9: 2-3). Smith
acknowledges in the Petition that the claim was “never presented” in the state court
proceedings. (Pet. 7-8). Therefore, Claim 2 is procedurally defaulted since Smith
failed to raise Claim 2 through one complete round of the state court appellate review
process.
Respondent also argues that there are no facts in this case that provide a
justification to excuse the default of that portion 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
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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
miscarriage of justice”). In the instant action, Smith has not provided facts showing
that he was prevented from properly presenting Claim 2 in order to avoid the
procedural default. Smith has not shown cause and prejudice. Nor has Smith shown
actual innocence or a fundamental miscarriage of justice that would excuse the
procedural default. The court also notes that even if Claim 2 were not procedurally
defaulted, it lacks any merit and there has been no showing that any counsel
representing Smith in the state court proceedings was ineffective for failing to raise
such a claim.

VII. 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
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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,
Smith has not made a substantial showing of the denial of a constitutional right as to
any claims presented in his Petition. Nor has Smith 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 Smith decide to appeal this court’s ruling, this court finds that a
certificate of appealability would not be warranted, and is denied.

CONCLUSION
Based on the foregoing analysis, the Petition is denied.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: June 28, 2017

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