Contreras v. Lashbrook et al

Filing 15

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 2/14/2018: For the foregoing reasons, the Court denies Contreras's petition for a writ of habeas corpus [dkt. no. 1] and declines to issue a certificate of appealability. The Clerk is directed to enter judgment in favor of respondent. Mailed notice. (pjg, )

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

RUBEN CONTRERAS,
Petitioner,
vs.
JACQUELINE LASHBROOK, Warden,
Respondent.

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Case No. 17 C 3007

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
In January 2009, Ruben Contreras was charged with the first degree murder of
his estranged wife, Graciela Guijarro. Contreras admitted to detectives that he hugged
Guijarro and covered her nose and mouth for several minutes during an argument so
that she would not yell and attract the attention of neighbors or police. When he let go,
Guijarro was dead. At trial, Contreras was represented by an attorney from the Lake
County Public Defender's Office who argued that he lacked the requisite mental state to
be found guilty of first degree murder. The trial judge instructed the jury on involuntary
manslaughter and first degree murder. In April 2013, the jury returned a verdict of guilty
on the charge of first degree murder, and the judge later sentenced Contreras to fortyeight years in prison.
Contreras timely appealed his conviction. On appeal, he was represented by an
attorney from the Office of the State Appellate Defender. Contreras presented the
following arguments:

1) the evidence was insufficient to support a conviction for first degree
murder;
2) his trial counsel was ineffective for failing to request a jury instruction
defining "knowledge" even though the only contested issue before the jury
was his mental state;
3) the prosecution engaged in prosecutorial misconduct during closing
argument by telling the jury that returning a verdict of guilty of involuntary
manslaughter would be an injustice; and
4) his sentence was excessive.
In October 2015, the Illinois Appellate Court rejected Contreras's claims and affirmed
his conviction and sentence. See People v. Contreras, 2015 IL App (2d) 131048-U.
With the assistance of counsel, Contreras filed a timely petition for leave to appeal to
the Illinois Supreme Court in which he asserted only the prosecutorial misconduct claim.
The court denied the petition in January 2016. Contreras did not file a petition for postconviction relief in state court, and the time to do so has since expired. See 725 ILCS
5/122-1(c).
Contreras has filed a pro se petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. For the sake of clarity, the Court will address Contreras's claims in a different
order than they are presented in the petition. Contreras repeats three of the claims that
he previously made on direct appeal: (1) the evidence was insufficient to support his
conviction for first degree murder, (2) his trial counsel was ineffective for failing to
request a jury instruction defining "knowledge" for purposes of the first degree murder
charge, and (3) the prosecution engaged in prosecutorial misconduct during closing

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argument. He also contends that appellate counsel rendered ineffective assistance
when he failed to raise these first two claims through one complete round of the state
court's appellate review process, by omitting them from the petition for leave to appeal
(PLA). Contreras contends that it would be a "miscarriage of justice" for the Court to
refuse to consider these procedurally defaulted claims on their merits. 2254 Mot. at 6.
The Court also construes this contention as an argument that appellate counsel's
alleged ineffective assistance constitutes cause for the default of Contreras's first two
claims. See id. (contending that "[b]ut for counsel's failure to preserve all his issues, the
outcome of the case would reasonably [have] been different"). 1
Respondent contends that there is no valid excuse for Contreras's procedural
default of his first two claims and that relief is not warranted on the third claim (regarding
prosecutorial misconduct) because the state court's decision on the issue was not
contrary to or an unreasonable application of clearly established Supreme Court law.
Lastly, respondent argues that Contreras's ineffective assistance of appellate counsel
claim is non-cognizable because there is no constitutional right to effective assistance of
counsel at the state discretionary appeal stage. For the reasons discussed below, the
Court denies Contreras's petition.
Discussion
A state prisoner is entitled to a writ of habeas corpus "only on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United States." 28

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In a September 2017 letter to the Court, Contreras alleges that two detectives
subjected him to psychological torture and forced him to waive his rights (presumably
before he confessed to Guijarro's murder). To the extent that Contreras intended to
assert this as a separate ground for relief under section 2254, the claim is procedurally
defaulted because he never presented it to the state courts.
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U.S.C. § 2254(a).
A.

Insufficiency of the evidence and ineffective assistance of trial counsel
claims
A habeas corpus petitioner must give the state courts a full and fair opportunity to

review and resolve his federal claims before a federal court may consider them on
habeas corpus review. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). Thus,
claims that were not fairly presented to the state courts through "one complete round of
the State's established appellate review process"—either on direct appeal or in postconviction proceedings—will be found to have been procedurally defaulted and thus will
not be addressed on their merits in federal court. Id. at 845; see also Hicks v. Hepp,
871 F.3d 513, 530 (7th Cir. 2017) (to avoid procedural default, a petitioner must fairly
present constitutional claims through one complete round of the state's appellate review
process). Failure to present a claim to the state supreme court on a petition for
discretionary review such as a PLA constitutes procedural default. See O'Sullivan, 526
U.S. at 845-48.
There are two means by which a habeas corpus petitioner may overcome a
procedural default. First, a court may reach the merits of a defaulted claim if the
prisoner shows cause for the default and prejudice resulting from it. Hicks, 871 F.3d at
531. Constitutionally ineffective assistance of counsel may serve as cause to excuse a
default. Oaks v. Pfister, 863 F.3d 723, 726 (7th Cir. 2017). A procedural default also is
excused if the prisoner demonstrates that refusal to hear the claim will result in a
fundamental miscarriage of justice because he is "actually innocent of the offenses for
which he was convicted." Hicks, 871 F.3d at 531 (citation omitted).
Contreras does not contest that the insufficiency of the evidence and ineffective
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assistance of trial counsel claims are procedurally defaulted. Instead, he argues that
the Court should excuse this default on the ground that his appellate counsel rendered
ineffective assistance by failing to raise these claims in the PLA after having argued
them on direct appeal. Respondent argues that appellate counsel's failure to raise
these issues at the PLA stage cannot serve as cause to excuse the default because a
criminal defendant has no constitutional right to effective assistance of counsel to
pursue a state discretionary appeal.
As a preliminary matter, the Court overrules Contreras's contention that the
procedural default should be excused on the ground that refusal to hear these claims on
the merits would result in a "miscarriage of justice," because he has not shown that in
light of new, not previously considered evidence, it is more likely than not that no
reasonable juror would have found him guilty of first degree murder beyond a
reasonable doubt. See House v. Bell, 547 U.S. 518, 536-37 (2006); Gladney v. Pollard,
799 F.3d 889, 896 (7th Cir. 2015); see also McDowell v. Lemke, 737 F.3d 476, 483 (7th
Cir. 2013) ("The fundamental miscarriage of justice standard erects an extremely high
bar for the habeas petitioner to clear. It applies only in the rare case where the
petitioner can prove that he is actually innocent of the crime of which he has been
convicted."). It follows that the Court may reach the merits of these claims only if
Contreras's allegations regarding his attorney's failure to raise them in the PLA provide
cause for the default.
An attorney's error will not qualify as cause to excuse a procedural default
unless it amounts to "constitutionally ineffective assistance of counsel." Davila v. Davis,
137 S. Ct. 2058, 2062 (2017) (emphasis added). In Anderson v. Cowan, 227 F.3d 893,

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900 (7th Cir. 2000), the Seventh Circuit rejected a petitioner's argument that his
attorney's ineffective assistance constituted cause for his failure to present a different
ineffective assistance claim in his petition for leave to appeal to the Illinois Supreme
Court. The court explained that, because there is no constitutional right to counsel to
pursue discretionary state appeals, see, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555
(1987), a criminal defendant cannot claim constitutionally ineffective assistance of
counsel at that stage. See Anderson, 227 F.3d at 901; see also Coleman v. Thompson,
501 U.S. 722, 756-57 (1991) (because a criminal defendant "has no right to counsel
beyond his first appeal in pursuing state discretionary or collateral review," attorney
error at those stages cannot constitute cause to excuse procedural default), holding
modified by Martinez v. Ryan, 566 U.S. 1 (2012). 2
Although Contreras had a constitutional right to effective assistance of counsel at
trial and on direct appeal, a petition for leave to appeal to the Illinois Supreme Court is a
petition for discretionary review. See O'Sullivan, 526 U.S. at 843 ("A party may petition

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The Supreme Court subsequently created a narrow exception to Coleman's general
rule that an attorney's errors in state collateral proceedings do not establish cause for a
procedural default because there is no constitutional right to counsel in post-conviction
proceedings. See Martinez v. Ryan, 566 U.S. 1 (2012). To account for the fact that,
under certain circumstances, a prisoner may have no occasion to raise an ineffective
assistance of trial counsel claim prior to state collateral review, the Supreme Court held
in Martinez that inadequate assistance of counsel at initial-review collateral proceedings
could establish cause for the procedural default of a claim of ineffective assistance of
trial counsel. Id. at 9. The Court nonetheless emphasized the limited nature of this
exception, taking care to explain that it does not extend to "attorney errors in other kinds
of proceedings, including appeals from initial-review collateral proceedings, second or
successive collateral proceedings, and petitions for discretionary review in a State's
appellate courts." Id. at 16. Martinez therefore does not govern here, where the
proceeding at issue is a petition for discretionary review in the Illinois Supreme Court.
See, e.g., Hancher v. Warden, Warren Corr. Inst., 989 F. Supp. 2d 643, 653 n.5 (S.D.
Ohio 2013).
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for leave to appeal a decision by the Appellate Court to the Illinois Supreme Court . . .
but whether 'such a petition will be granted is a matter of sound judicial discretion.'")
(quoting Ill. S. Ct. R. 315(a)). Thus Contreras did not have a constitutional right to
effective assistance of counsel at the discretionary PLA stage of the state court
proceedings. For that reason, his attorney's failure to include certain claims in the PLA
was not constitutionally ineffective assistance, and therefore it does not provide the
cause necessary to excuse the procedural default of Contreras's claims of insufficiency
of the evidence and ineffective assistance of trial counsel. See Davila, 137 S. Ct. at
2062. 3
Because Contreras has failed to show cause to excuse the procedural default of
these claims and because he has not demonstrated that a fundamental miscarriage of
justice will otherwise result, the Court overrules his insufficiency of the evidence and
ineffective assistance of trial counsel claims without considering their merits.
B.

Prosecutorial misconduct claim
If a state court has adjudicated a petitioner's claim on the merits, a writ of habeas

corpus may issue only if the state court's 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

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There is another reason (albeit not one raised by respondent) why this ineffective
assistance of counsel claim does not excuse Contreras's procedural default: he
procedurally defaulted the ineffective assistance claim itself by failing to raise it before
the state court in a petition for post-conviction relief. In Edwards v. Carpenter, 529 U.S.
446, 453 (2000), the Supreme Court held that "an ineffective-assistance-of-counsel
claim asserted as cause for the procedural default of another claim can itself be
procedurally defaulted." Although Contreras had the opportunity to raise this claim
before the state court via a petition for post-conviction relief, he did not do so.
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(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)(1)-(2). A state court's decision is "contrary to" clearly established federal law
only if the state court applies a rule that contradicts the governing Supreme Court
precedent or if it reaches an outcome inconsistent with a Supreme Court decision in a
case with materially indistinguishable facts. Ben-Yisrayl v. Buss, 540 F.3d 542, 546 (7th
Cir. 2008).
With respect to allegations of prosecutorial misconduct in a closing argument, the
Supreme Court has made it clear that "it is not enough that the prosecutors' remarks
were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S.
168, 181 (1986) (citation omitted). Instead, the comments must "so infect[ ] the trial
with unfairness as to make the resulting conviction a denial of due process." Donnelly
v. DeChristoforo, 416 U.S. 637, 643 (1974).
In response to Contreras's attorney's efforts to convince the jury that he should
be convicted of involuntary manslaughter rather than first degree murder, the
prosecution made the following statement during closing argument: "[Y]ou should not
find the defendant guilty of involuntary manslaughter. Absolutely do not find him guilty
of involuntary manslaughter. That's not the crime he committed. To return [a] verdict of
guilty on this offense would be an injustice." Apr. 11, 2013 Trial Tr. 23:8-23:13 (Resp.
Ex. H). The trial judge sustained Contreras's attorney's objection to the statement,
although the judge did not instruct the jury to disregard the statement after sustaining
the objection.
Contreras contends that the prosecutor's remarks in closing arguments

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constituted prosecutorial misconduct that denied him due process and a fair trial. He
argues that the prosecution's statement minimized the seriousness of a verdict of
involuntary manslaughter and that it improperly alluded to the effect of the verdict. On
direct appeal, the state appellate court considered and rejected Contreras's
prosecutorial misconduct claim on the merits. See Contreras, 2015 IL App (2d) 131048U. Specifically, the Illinois Appellate Court concluded that, although the issue was a
close one, the prosecutor's comments were not improper, and thus Contreras was not
denied a fair trial. Id. at ¶¶ 76-77. Contreras points to no United States Supreme Court
case holding that an analogous remark was so improper that it deprived the defendant
of a fair trial, and this Court is not aware of any such case. Moreover, the state court's
decision is plainly consistent with the standard articulated by the Supreme Court in
Donnelly, as there is no indication that the prosecutor's comments, even if they were
improper, infected Contreras's trial to such a degree that his resulting conviction
constituted a denial of due process. See Donnelly, 416 U.S. at 643. Because the state
court's decision on Contreras's prosecutorial misconduct claim was not contrary to or an
unreasonable application of clearly established federal law, and was not based on an
unreasonable factual determination, he is not entitled to relief based on this claim.
C.

Ineffective assistance of appellate counsel claim
As previously explained in Section A of this opinion, there is no constitutional

right to counsel to pursue a discretionary state appeal such as a petition for leave to
appeal to the Illinois Supreme Court. Finley, 481 U.S. at 555; Coleman, 501 U.S. at
756-57. Contreras does not claim that any other federal law creates such a right.
"[W]here there is no constitutional right to counsel, there cannot be constitutionally

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ineffective assistance of counsel." Wyatt v. United States, 574 F.3d 455, 459 (7th Cir.
2009). Because appellate counsel's failure to include certain arguments in Contreras's
PLA did not violate the Constitution or any other federal law, Contreras's claim of
ineffective assistance is not cognizable on a section 2254 petition. Cf. U.S. ex rel.
Thomas v. Pfister, No. 13 C 03749, 2018 WL 453747, at *6 (N.D. Ill. Jan. 16, 2018)
(ineffective assistance of post-conviction appellate counsel is not a cognizable ground
for habeas corpus relief because federal law does not guarantee effective assistance of
counsel for collateral proceedings); U.S. ex rel. Willhite v. Walls, 241 F. Supp. 2d 882,
891-92 (N.D. Ill. 2003) (petitioner's claim that he received ineffective assistance of
counsel in appealing his state court post-conviction petition was not cognizable on
habeas corpus review because he had no constitutional right to counsel in a collateral
proceeding).
Conclusion
For the foregoing reasons, the Court denies Contreras's petition for a writ of
habeas corpus [dkt. no. 1] and declines to issue a certificate of appealability. The Clerk
is directed to enter judgment in favor of respondent.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: February 14, 2018

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