Powers v. Chandler et al

Filing 50

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 4/9/2012 Mailed notice(ca, ).

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

United States of America ex rel.
THOMAS POWERS,
Petitioner,
v.
KEITH ANGLIN, Warden, ROGER WALKER,
IDOC Director, and LISA MADIGAN,
Illinois Attorney General,

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No. 3:06-cv-50030

Respondents.
MEMORANDUM OPINION AND ORDER1
Petitioner Thomas Powers brings this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.

For all the reasons

that follow, his petition is denied.
Petitioner was tried and convicted in the Circuit Court of
Winnebago County of attempted aggravated criminal sexual assault
and aggravated unlawful restraint. The complaining witness alleged
that petitioner attacked her with a knife and attempted to sexually
assault her.

Petitioner received a twenty-five year prison term

for the attempted sexual assault, and he did not receive a sentence
for unlawful restraint because the trial court held that the latter
conviction merged into the former.

1

Keith Anglin has replaced Nedra Chandler as warden of
Danville Correctional Center and thus is substituted as
respondent in this action.
Roger Walker and Lisa Madigan
dismissed as respondents. See Hogan v. Hanks, 97 F.3d 189,
(7th Cir. 1996) (proper respondent is warden of facility).

the
the
are
190

After his appeals, his multiple pro se state postconviction
petitions, his petition for relief from judgment, and his state
habeas corpus petitions were unsuccessful, petitioner filed a pro
se § 2254 petition, raising the following claims:
I.

Petitioner did not receive a full and fair hearing on his
Fourth Amendment claim because: (a) trial counsel was
ineffective for failing to call petitioner’s wife to
testify that there was no consent to search; (b)
appellate counsel was ineffective for not claiming that
the initial search was not justified by any exigency and
that the police moving evidence (a clipboard) to fit the
crime as reported by the victim violated the inevitable
discovery rule; (c) the appellate court erred in finding
that the knife was in plain view; (d) appellate counsel
was ineffective for not challenging this ruling in a
motion to reconsider; and (e) police lacked probable
cause; there was no consent to search; there were not
exigent circumstances; there was no justification for a
protective sweep; police had no search warrant; the
inevitable discovery rule did not apply; and there is no
evidence that petitioner was given Miranda warnings when
he was handcuffed and taken to the police station;

II.

Appellate counsel was ineffective for not claiming that:
(1) trial counsel was ineffective for failing to call:
(a) two police officers to testify that they overheard a
privileged conversation between petitioner and his
attorney about drugs and money and that they revealed
this information to the victim, which should have allowed
the defense to cross-examine the victim about use of
illegal drugs and prescription medication; and (b) Kim
Wallschaeger, a prospective juror, who knew the victim
had psychological problems; and (2) the trial judge
abused his discretion by not allowing petitioner to
cross-examine the victim about illegal drug usage and
prescription medication;

III. Petitioner was entitled to an evidentiary hearing on his
postconviction claim that trial counsel was ineffective
in failing to accurately advise him about the State’s
plea offer because when the State offered him a deal of
fourteen years of imprisonment, counsel advised him that
he would have to serve 85% of the sentence rather than
50%; had he been correctly informed, he would have
2

accepted the deal; and
IV.

The appellate court should have investigated the conflict
between postconviction appellate counsel and petitioner
because petitioner presented a pro se supplemental brief
that included several issues that counsel refused to
include in his brief.

Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), a habeas petitioner is not entitled to a writ of
habeas corpus unless the challenged state court decision is either
“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); see also Williams v. Taylor, 529
U.S. 362, 367 (2000).

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 the Court on a question
of law” or “if the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to ours.”

Williams, 529 U.S. at 404.

To demonstrate an “unreasonable application” of clearly established
federal law, a habeas petitioner must establish that the state
court unreasonably applied the controlling legal rule to the facts
of the case.

Id. at 407.

The state court’s application of Supreme

Court precedent must be more than incorrect or erroneous.
it must be “objectively unreasonable.”

Rather,

Lockyer v. Andrade, 538

U.S. 63, 75 (2003); Hardaway v. Young, 302 F.3d 757, 762 (7th Cir.
2002) (state court decision must lie “well outside the boundaries

3

of permissible differences of opinion”).
Before a federal court will consider a habeas corpus petition,
a petitioner must satisfy several requirements, including the
exhaustion of state remedies and the avoidance of procedural
default.

Procedural default refers primarily to two situations.

The first occurs when the petitioner presents federal claims in his
habeas petition that he did not “fairly present” to the state
courts, thereby depriving the state courts of the first opportunity
to address the claims.
45 (1999).

O’Sullivan v. Boerckel, 526 U.S. 838, 844-

A petitioner’s failure to fairly present each habeas

claim to every level of the state courts in the time and manner
required leads to a default of the claim, thus barring a federal
court from reviewing the claim’s merits.

Boerckel, 526 U.S. at

848. The second occurs where the state court bases its judgment on
a finding of procedural default or waiver under state law, where
such grounds are “independent of the federal question and adequate
to support the judgment.”

Franklin v. Gilmore, 188 F.3d 877, 881

(7th Cir. 1999). A federal court, however, may excuse a procedural
default if a petitioner can show either cause for the default and
actual prejudice as a result of the alleged violation of federal
law, or can demonstrate that failure to consider the claim will
result in a fundamental miscarriage of justice.
Thompson, 501 U.S. 722, 750 (1991).

4

Coleman v.

A.

Claim Two
In his second claim, petitioner alleges ineffective assistance

of counsel and trial court error connected to alleged drug use and
psychological problems of the victim.
claim is procedurally defaulted.

Respondent argues that this
I agree.

While petitioner

presented dozens of claims to the state trial court, he only filed
two petitions for leave to appeal (“PLA”) to the Illinois Supreme
Court. Because neither of these PLAs contained the claims asserted
in Claim Two, the various claims in Claim Two are procedurally
defaulted. See Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir.
2004) (habeas petitioner who failed to assert his claim at each
level of state court review has procedurally defaulted his claim).2
A

federal

court

may

excuse

a

procedural

default

if

a

petitioner can show either cause for the default and actual
prejudice as a result of the alleged violation of federal law, or
can demonstrate that failure to consider the claim will result in

2

Petitioner filed a May 16, 2011 “Petition for Leave to
Appeal” in which he raised “Point 1" and “Point II.” “Point I”
stated that the appellate court erred by failing to investigate an
alleged conflict between petitioner and his appellate counsel,
where counsel refused to raise on appeal all claims from
petitioner’s pro se “Supplemental Brief.” Petitioner now attempts
to argue in reply that he filed his “Supplemental Brief” with the
Illinois Supreme Court as a PLA. This is not the case. In the
PLA, petitioner stated that he attached his “Supplemental Brief” to
support his assertion that the alleged conflict necessitated a
hearing. Because the focus of the PLA itself is on the appellate
court’s failure to hold a holding, I do not read the PLA as
including all the various claims in petitioner’s “Supplemental
Brief.”
5

a fundamental miscarriage of justice.

Coleman, 501 U.S. at 750.

To the extent petitioner argues that he is actually innocent
of the crimes, he has not put forward evidence to satisfy this
extremely demanding standard.

The “fundamental miscarriage of

justice” exception is limited to the “extraordinary case, where a
constitutional violation has probably resulted in the conviction of
one who is actually innocent[.]”
(1995).
Id.

Schlup v. Delo, 513 U.S. 298, 321

Such instances of actual innocense are “extremely rare.”

In order to demonstrate actual innocence in a collateral

proceeding, a petitioner must present “new reliable evidence that
was not presented at trial.”

Id. at 327-28.

asserts

excuse

actual

innocence

to

A petitioner who

procedural

default

must

establish that “it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable doubt.” Id.
at 327. As the Seventh Circuit has said, “To demonstrate innocence
so convincingly that no reasonable jury could convict, a prisoner
must

have

documentary,

biological

(DNA),

or

other

powerful

evidence: perhaps some non-relative who placed him out of the city,
with credit card slips, photographs, and phone logs to back up the
claim.”

Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005).

First, and most importantly, petitioner cannot attempt to show
actual innocence because he has not put forward any “new reliable
evidence” that was not produced at his original trial.
Jaimet, 350 F.3d 673, 679 (7th Cir. 2003).

6

Gomez v.

Second, even if I were

to excuse this requirement, petitioner has failed to show that he
is “actually innocent” and that no reasonable juror would have
found him guilty.

Petitioner argues that this was a “he said; she

said” case and that the complaining witness lied on the stand. His
main argument is that the state failed to prove that he took a
“substantial step” towards penetration of the complainant (which
is, he argues, a required element of Attempt Aggravated Criminal
Sexual Assault).
victim.

He also asserts that he never used a knife on the

However,

petitioner

himself

points

out

that

the

complaining witness testified at trial that, during a struggle,
petitioner pulled her pants down around her thighs multiple times.
Further, she testified that she received multiple slashes on her
hands.
the

Essentially, petitioner argues that this witness lied on

stand,

and

that

he

is

innocent.

Despite

petitioner’s

assertion, the jury believed the testimony of the complaining
witness and found petitioner guilty.

In light of the evidence

presented at trial, and ultimately believed by the jury, he has
failed to show that “it is more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable
doubt.”
Finally, to the extent petitioner attempts to argue in his
reply brief that ineffective assistance of counsel was “cause” for
the default, such an argument fails.

Ineffective assistance of

counsel can constitute “cause” for the purpose of procedural

7

default.
1128,

See United States ex rel. Simmons v. Gramley, 915 F.2d

1132

(7th

Cir.

1990).

Before

a

petitioner

can

use

ineffective assistance of counsel as cause for procedural default,
however, “he must first present this claim as an independent claim
to the state courts either on direct appeal or in post-conviction
proceedings.”

Lemons v. O’Sullivan, 54 F.3d 357, 360 (7th Cir.

1995) (emphasis added).

Because petitioner did not present this

claim to all levels of the state courts, he may not now argue that
his counsel’s ineffectiveness constituted “cause” for the default.
B.

Claim Four

In his fourth claim, petitioner argues that the appellate
court

should

have

investigated

the

alleged

conflict

between

postconviction appellate counsel and petitioner. Petitioner argues
that his appellate counsel refused to argue certain claims on
appeal, and that, as a result, the appellate court should have
accepted and considered petitioner’s pro se “Supplemental Brief.”
Respondent argues that this claim is procedurally defaulted.
Specifically,

respondent

argues

that

although

this

claim

was

presented to the Illinois Supreme Court in a PLA, it was never
presented as having any federal basis.

As a result, petitioner

failed to “fairly present” this claim – as a federal claim – to the
Illinois Supreme Court.
Section

2254

mandates

that

a

habeas

petitioner

“fairly

present” all issues, and their federal constitutional bases, to the
8

state judiciary.
Cir. 2006).

See Lockheart v. Hulick, 443 F.3d 927, 929 (7th

A claim is not fairly presented if the state court

pleading does not “cit[e] any case that might have alerted the
court to the alleged federal nature of the claim.”

Baldwin v.

Reese, 541 U.S. 27, 33 (2004). “[F]or a constitutional claim to be
fairly presented to a state court, both the operative facts and the
controlling legal principles must be submitted to that court.”
Verdin v. O’Leary, 972 F.2d 1467, 1474 (7th Cir. 1992).

“A habeas

petitioner must provide the state courts with a fair opportunity to
apply constitutional principles and correct any constitutional
error committed by the trial court.”

Id. at 1474.

In assessing whether a petitioner fairly presented the habeas
claim

in

state

court,

a

court

must

consider

four

factors:

(1) whether petitioner relied on federal cases that engage in a
constitutional analysis; (2) whether petitioner relied on state
cases that apply a constitutional analysis to similar facts;
(3) whether petitioner framed the claim in terms so particular as
to call to mind a specific constitutional right; and (4) whether
petitioner alleged a pattern of facts that is well within the
mainstream of constitutional litigation.

See Byers v. Basinger,

610 F.3d 980, 985 (7th Cir. 2010).
I agree with respondent that none of these factors weighs in
petitioner’s favor.

Petitioner argued to the Illinois Supreme

Court that the Illinois trial court had an obligation to inquire

9

into

pro

se

filings

circumstances.

by

Petitioner

constitutional provision.

counseled
never

defendants

cited

a

under

federal

limited
case

or

The single Illinois case petitioner

cited in his brief did not include any clear citation to federal
authority concerning hybrid representation. In his PLA, petitioner
did not assert his claim in such a manner as to call to mind a
specific constitutional right, nor did petitioner allege a fact
pattern

within

the

mainstream

of

constitutional

litigation.

Rather, petitioner’s claim concerns the appellate court’s decision
to enforce a state-law bar on hybrid representation.

Thus, this

claim was never presented as a federal claim to the state courts
and is barred here.
For

all

the

reasons

given

with

respect

to

Claim

Two,

petitioner has failed to put forward any persuasive argument that
an exception to procedural default applies here.

Claim Four is

thus procedurally defaulted.
C.

Claim One
In

his

first

claim,

petitioner

Amendment rights were violated.

argues

that

his

Fourth

Respondent argues that this claim

is barred by Stone v. Powell, 428 U.S. 465 (1976).
In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court
established a general rule that criminal defendants may not seek
collateral review of Fourth Amendment exclusionary rule claims
under § 2254 if they received “an opportunity for full and fair

10

litigation of” their Fourth Amendment claims in state court.

The

Seventh Circuit has held that such an opportunity has been provided
when: (1) the petitioner has “‘clearly informed the state court of
the factual basis for that claim and has argued that those facts
constitute a violation of his fourth amendment rights, and (2) the
state court has carefully and thoroughly analyzed the facts and (3)
applied the proper constitutional case law to the facts.’” Hampton
v. Wyant, 296 F.3d 560, 563 (7th Cir. 2003) (quoting Pierson v.
O’Leary, 959 F.3d 1385, 1391 (7th Cir. 1992)).
Petitioner filed pretrial motions to suppress evidence and the
search warrant, and the state trial court denied those motions
after an evidentiary hearing.

The trial judge determined that the

police had probable cause to arrest petitioner after he gave his
consent to search and that, assuming that consent was either not
given or revoked, there were exigent circumstances present.
Further, the court found, even if there was no consent, the
evidence

seized

discovery.

was

subject

to

the

doctrine

of

inevitable

On appeal, the state appellate court agreed with the

trial court’s findings.
Based on the above, the state provided “an opportunity for
full and fair litigation of” petitioner’s Fourth Amendment claim.
Petitioner fails to point out any deficiencies in the state court
proceedings.

Rather, he asserts that the state court reached the

wrong result. Such an argument cannot overcome the Stone bar.

11

See

Watson

v.

Hulick,

481

F.3d

537,

542

(7th

Cir.

2007)

(where

petitioner presented his Fourth Amendment claim to state court,
federal court will not consider whether state court “got the
decision right” absent a “subversion of the hearing process”).
In addition to the allegations concerning errors made by the
trial court, Claim One also includes the following allegations:
(a) trial counsel was ineffective for failing to call petitioner’s
wife to testify that there was no consent to search; (b) appellate
counsel was ineffective for not claiming that the initial search
was not justified by any exigency and that the police moving
evidence (a clipboard) to fit the crime as reported by the victim
violated the inevitable discovery rule; and (c) appellate counsel
was ineffective for not challenging the trial court’s ruling that
the knife was in plain view in a motion to reconsider.

Because

these three claims were never raised in any PLA to the Illinois
Supreme Court, they are procedurally defaulted.

As explained

above, petitioner cannot show that any exception applies here and
the claims are thus barred.
D.

Claim Three
In petitioner’s third claim, he argues that he was entitled to

an evidentiary hearing on his postconviction claim that trial
counsel was ineffective for failing to accurately advise him about
the state’s plea offer.

Petitioner’s claim, to the extent it

centers on the need for a hearing, fails because it presents a

12

question solely of Illinois state law.
on federal habeas review.

Thus, it is not cognizable

Estelle v. McGuire, 502 U.S. 62, 67-68

(1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”).
Reading this claim broadly, petitioner may also be arguing
that his counsel was ineffective for failing to accurately advise
him

about

the

State’s

plea

offer.3

Specifically,

petitioner

alleges that his counsel mistakenly advised him, during plea
negotiations, that, with good-conduct credit, he would have to
serve 85% of the proposed fourteen-year sentence.

Petitioner

asserts that, in actuality, he would have had to only serve 50% of
that sentence, or a total of seven years.

Petitioner states that

had he known about the 50% rule, he would have accepted the State’s
plea offer.
The Illinois Appellate Court concluded that counsel was not
ineffective for failing to inform petitioner of the good-conduct
credit provisions of the Illinois code.

It stated:

In his affidavit, [petitioner] stated that his trial
counsel, while on the telephone with assistant State’s
Attorney Mark Karner, told [petitioner] “‘that the

3

Petitioner also stated that “Appellate counsel was
ineffective for not raising that also the trial judge abused his
discretion when claiming the charge for Attempt Aggravated Criminal
Sexual Assault also questioned [sic] if the charge was at 85% and
the state’s attorney stating all offers are to be at 85%.” Pet. at
8.
While it is not entirely clear what the precise nature of
petitioner’s claim is, this claim is procedurally defaulted in any
event as petitioner failed to raise this claim before the state
supreme court.
13

[S]tate is offering you 14 years and that it would be
served at 85%.’” [Petitioner] also alleged that Karner
stated at unspecified times “during the trial” and “on
the record” that [petitioner’s] “charge is to be served
at 85%” and that “all offers were at 85%.”
Without
specifying when or where, [petitioner] also alleged that
defense counsel told him “that the charge is at 85%.”
However, [petitioner] claimed that he was eligible to
serve only 50%, instead of 85%, of his sentence. Under
3-6-3(a)(2.1) of the Unified Code of Corrections (Code),
[petitioner] was eligible to receive “one day of good
conduct credit” for each day of his sentence, and each
day of credit “shall reduce by one day the prisoner’s
period of imprisonment.” 730 ILCS 5/3-6-3(a)(2.1)(West
2000).
Thus, both Karner and defense counsel were
incorrect in their statements that [petitioner] would be
required to serve 85% of his sentence.
According to [petitioner], the difference between
85% and 50% was “almost 40 months.” [Petitioner] then
stated that he “never received a proper offer” and that
if he had received a proper offer [he] would not have
been forced to take this case to trial. [Petitioner]
argues that counsel was ineffective because, had counsel
advised him correctly regarding the potential goodconduct credit, [petitioner] would have taken the plea
offer.
However, this argument is a counterfactual
conditional, a conclusion based on a false premise.
[Petitioner’s] premise is that, had his attorney been
competent in raising the correct good-conduct credit
calculation, the State would have stood by the offer of
14 years with the more generous credit applying. This
premise is both speculative and counterintuitive. Not
only is there nothing in the record to support this
premise, common sense leads one to conclude that the
State would have amended its offer upwards when it
learned of the proper good-conduct credit calculation.
We do not accept [petitioner’s] claim, as it is
speculative and presumes facts that have not been
established.
Defense counsel passed along an offer the State
presented that contained an element that did not conform
to the applicable statutory scheme. There was no meeting
of the minds on that offer, i.e., no acceptance of the
State’s offer. However, there was a meeting of the minds
regarding the State’s intention in extending the offer:
[petitioner] would serve at least 11.9 years in prison.
14

The State could achieve such an outcome with the proper
rate of good-conduct credit by offering [petitioner] a
term of approximately 24 years.
There simply is no
showing of a reasonably probability that, but for
counsel’s deficient performance, the result of the
proceeding would have been different. In the absence of
such a showing of prejudice, there is no substantial
showing of a constitutional violation, and dismissal of
the postconviction petitioner was not error.
Further, the failure to inform a defendant of a
consequence of a guilty plea is material only if the
consequence is a direct consequence of the guilty plea;
a collateral consequence provides no basis for reversal.
A direct consequence is one that is definite, immediate,
and largely automatic in its effect on a defendant’s
punishment, while a collateral consequence does not
relate to the length of the sentence that is imposed.
The focus is on the sentence imposed rather than on the
sentence that is ultimately served.
In general,
collateral consequence [sic] are things beyond the
court’s control.
In
Frison,
the
defendant
alleged
in
his
postconviction petition that his trial counsel was
ineffective for failing to inform him prior to pleading
guilty that he would be required, under section 3-63(a)(2) of the Code (730 ILCS 5/3-6-3(a)(2)(West
2000))(“truth-in-sentencing”), to “serve at least 85% of
his sentence.”
This court found the defendant’s
characterization of the applicable Code section to be
“ill-taken.” The statute makes a defendant “eligible”
for good-conduct credit and allows a defendant to reduce
his sentence by a certain amount of such credit. “It no
more mandates that he serve a certain sentence than the
day-for-day good-conduct provisions require a defendant
to serve half of his or her sentence.”
The award of
good-conduct credit is contingent on the defendant’s
behavior while in prison; it is not something that is
“definite, immediate, and largely automatic in its effect
upon a defendant’s punishment.” Thus, we concluded that
good-conduct credit “is not a direct consequence of a
guilty plea.” Therefore, counsel was not ineffective for
failing to inform [petitioner] of the good-conduct credit
provisions of the Code.
Exh. FF at 3-5.

15

In

order

for

petitioner

to

prevail

on

this

claim,

the

appellate court’s application of Strickland v. Washington, 466 U.S.
668 (1984), must have been objectively unreasonable.

Petitioner

“must do more than show that he would have satisfied Strickland’s
test if his claim were being analyzed in the first instance,
because under § 2254(d)(1), it is not enough to convince a federal
habeas court that, in its independent judgment, the state-court
decision applied Strickland incorrectly. Rather, he must show that
the [Illinois Appellate Court] applied Strickland to his case in an
objectively unreasonable manner.” Bell v. Cone, 535 U.S. 685, 698699 (2002) (internal citations omitted).
To establish ineffective assistance of counsel, a petitioner
must

demonstrate:

(1)

that

his

attorney’s

performance

was

deficient; and (2) that such representation prejudiced his case.
Strickland, 466 U.S. at 687.
showing

that

counsel’s

The first prong is satisfied by

performance

fell

below

the

“objective

standard of reasonableness” guaranteed under the Sixth Amendment.
Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993) (quoting
Strickland, 466 U.S. at 688).

To satisfy the Strickland prejudice

element, a petitioner must demonstrate that it is reasonably likely
that, but for his counsel’s errors, the decision reached would have
been different. Strickland, 466 U.S. at 696.
The

Illinois

Appellate

Court’s

conclusion

petitioner’s claim was not objectively unreasonable.

16

regarding

With respect

to the deficient performance prong, the appellate court held that
because

the

good-conduct

credit

issue

was

a

“collateral

consequence,” and not a “direct consequence,” counsel was not
deficient in failing to advise petitioner regarding the correct
percentage.

Respondent argues that this conclusion was entirely

reasonable, given the fact that the Seventh Circuit and the Supreme
Court have both noted that there is a lot of ambiguity in the lower
courts concerning the distinction between direct and collateral
consequences.
In McDonald v. Hardy, 359 Fed. Appx. 650, 653 (7th Cir. 2010),
petitioner, who alleged he acted in self-defense, was given the
option by the trial judge to have a second-degree murder jury
instruction

given

in

addition

to

a

first-degree

murder

jury

instruction. Id. at 652. Petitioner declined to offer the seconddegree murder jury instruction, and he was ultimately found guilty
of first-degree murder.

Id.

Petitioner argued that his trial

counsel was ineffective because counsel failed to inform him that
his eligibility for good-time credit would differ depending on
whether he was convicted of first- or second-degree murder. Id. at
653.

In Illinois, a defendant convicted of first-degree murder is

ineligible for good-time credit, whereas a defendant convicted of
second-degree murder is eligible for the credit.

Id.

The state

court, in denying the ineffective assistance claim, noted that an
attorney is not ineffective for failing to advise his client of the

17

“collateral” consequences of a guilty plea; competent counsel only
need advice his client of all “direct” consequences.
The

court

concluded

that

good-time

credit

is

Id. at 654.
a

collateral

consequence of a plea because “there is no assurance” that the
defendant will receive it.

Id.

After the district court denied the petition, the Seventh
Circuit affirmed.

Petitioner argued that the state court erred

because information concerning good-conduct credit should be deemed
a direct, rather than a collateral, consequence, and that counsel
had a duty to advise him of the good-conduct credit consequences.
Id.

The Seventh Circuit stated that such a classification was a

“difficult” question, but one that it need not answer. Id. at 655.
Noting that the U.S. Supreme Court has never addressed the direct
vs. collateral distinction, the Seventh Circuit noted that other
federal

courts

distinction.

of

Id.

appeals

have

applied

the

direct/collateral

“[G]iven the difficulty of categorizing good-

time credit as a direct or collateral consequence even under
federal law, we cannot conclude that the state court’s decision
that counsel was effective was ‘well outside the boundaries of
permissible

differences

of

opinion.’”

Id.

at

655

(quoting

Starkweather v. Smith, 574 F.3d 399, 402 (7th Cir. 2009)).4

4

The only difference between this case and McDonald is the
fact that the lawyer in McDonald was silent on the good-conduct
credit issue, and the petitioner alleges here that the lawyer
actually gave him incorrect information. Recently, however, the
U.S. Supreme Court rejected the notion that there should be a
18

Based on the similarities between McDonald and his case, I am
convinced

that

the

state

objectively unreasonable.

appellate

court’s

holding

was

not

I cannot conclude that such a holding

lies “outside the bounds of permissible differences of opinion.”
F.

Certificate of Appealability
Upon entering an order denying habeas relief, a district court

should also determine whether a certificate of appealability is
warranted.

See Habeas Rule 11(a) (“The district court must issue

or deny a certificate of appealability when it enters a final order
adverse

to

the

applicant.”).

To

obtain

a

certificate

of

appealability, a petitioner must make a “substantial showing of the
denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

Where

a district court denies a habeas petition on procedural grounds,
without

reaching

the

merits

of

the

underlying

constitutional

claims, the petitioner must show not only that jurists of reason
would find it debatable whether petitioner has alleged at least one
meritorious claim, but also that jurists of reason would find the
procedural ruling debatable.
484 (2000).

See Slack v. McDaniel, 529 U.S. 473,

With respect to my conclusions that petitioner’s

claims are procedurally defaulted, I do not conclude that those
rulings are debatable among jurists of reason.

Likewise, with

distinction between active misinformation and a failure to inform
in the context of Strickland claims at the plea stage. See Padilla
v. Kentucky, 130 S.Ct. 1473, 1484 (2010). Thus, the holding of
McDonald is persuasive here.
19

respect

to

the

remainder

of

my

conclusions

(concerning

petitioner’s Fourth Amendment claim, his alleged entitlement to a
hearing, and the ineffective assistance of counsel at the plea
stage), I do not conclude that jurists of reason would find those
conclusions debatable.
III.
For all the reasons given above, petitioner’s petition under
28 U.S.C. § 2254 is denied.

In light of the fact that petitioner

filed his response, his motion for extension of time [43] is denied
as moot.

Petitioner’s motion for an evidentiary hearing [46] and

petitioner’s motion for appointment of counsel [45] are denied.
ENTER ORDER:

____________________________
Elaine E. Bucklo
United States District Judge
Dated: April 9, 2012

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