Hotz v. Mathy

Filing 41

ORDER denying habeas corpus petition and DISMISSING with prejudice Hotz's cause of action. Order also denies certificate of appealability. See Order for details. Signed by Chief Judge David R. Herndon on 3/26/13. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RICKY A. HOTZ,
Petitioner,
v.
GUY PIERCE, Warden,
Respondent.

Civil No. 3:08-cv-850-DRH

MEMORANDUM AND ORDER
HERNDON, Chief United States District Judge:
Before the Court is a Petition for a Writ of Habeas Corpus (Doc. 1) filed by
Petitioner, Ricky A. Hotz and a Response to the Petition for a Writ of Habeas
Corpus (Doc. 23) filed by Respondent, Guy Pierce. For the reasons stated below,
the Petition for Writ of Habeas Corpus (Doc. 1) is DENIED and this matter is
DISMISSED WITH PREJUDICE.
BACKGROUND
Petitioner Ricky A. Hotz (“Hotz” or “petitioner”) is currently incarcerated at
the Pontiac Correctional Center in Pontiac, Illinois, in the custody of Warden Guy
Pierce (“Pierce” or “respondent”). (Doc. 23 at 1). Petitioner brings this habeas
corpus petition pursuant to 28 U.S.C. § 2254 to challenge the constitutionality of
his confinement.
On September 21, 2001, in the Circuit Court of Madison County, Illinois,
petitioner entered a negotiated plea to one count of felony murder (first degree

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murder committed in the course of a home invasion) and was sentenced to a term
of natural-life imprisonment without the possibility of parole.
I. Direct Appeal
Petitioner’s appellate counsel appealed the conviction and sentence, raising
the following grounds for relief: (1) that his plea was not knowing and voluntary
because the trial court failed to adequately admonish him of the potential for a
natural-life sentence on a conviction of felony murder; (2) that the sentence was
not legally permitted for the offense and that the trial court failed to determine
that he committed the murder with the necessary intent to support a life sentence
or that the defendant understood that it was necessary to commit the murder with
a particular intent to qualify for a natural-life sentence. (Doc. 23-3 at 1). In a
Rule 23 Order in April 2003, the Illinois Appellate Court affirmed the denial of
petitioner’s motion to withdraw his guilty plea and upheld the conviction entered
by the Circuit Court of Madison County, Illinois. (Doc. 23-3 at 11); (Doc. 23-4 at
3).
In May 2003, Hotz filed a Petition for Leave to Appeal (“PLA”) to the
Supreme Court of Illinois, arguing that: (1) the Illinois Appellate Court abused its
discretion in denying Hotz’s motion to withdraw his guilty plea because the plea
was not knowing and voluntary; (2) although he agreed to the sentence of life
imprisonment, he was misled as to the availability of that sentence for the offense
to which he was pleading guilty; and (3) the sentence was not legally permitted for
the offense and that the trial court failed to determine that he committed the
murder with the necessary intent to support a life sentence or that the defendant
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understood that it was necessary to commit the murder with a particular intent to
qualify for a natural-life sentence. (Doc. 23-4 at 1). On October 7, 2003, the
Supreme Court of Illinois denied the PLA. (Doc. 23-5 at 1).
II. First Petition for Post-Conviction Relief
On April 19, 2004, Hotz filed a pro se combined petition for post-conviction
relief and relief from judgment in the Circuit Court of Madison County, Illinois.
Petitioner argued that he was entitled to withdraw his plea for the following
reasons: (1) newly discovered evidence rendered his conviction unreliable; (2) he
was denied due process because his plea was neither voluntary nor intelligently
made; (3) his constitutional right to competent plea counsel was abrogated
through his attorney’s failure to move to quash his arrest and suppress the
evidence that was garnered at the time of his arrest; and (4) a natural-life sentence
was erroneously imposed where the maximum prison sentence that could be
statutorily imposed was from twenty to sixty years’ imprisonment. (Doc. 23-9 at
3). Petitioner’s pleading did not deny that he murdered the victim and he did not
argue that appellate counsel rendered ineffective assistance of counsel. (Doc. 23-9
at 3).

On July 19, 2006, the circuit court denied petitioner’s post-conviction

petition on the grounds of res judicata, forfeiture, and failure to present an issue
of a constitutional magnitude. (Doc. 23-9 at 5).
Petitioner appealed, arguing that the circuit court erred in dismissing his
petition because: (a) he should have been allowed to withdraw his guilty plea
because the factual basis for his plea was insufficient to prove certain elements
that were necessary to demonstrate the offense of home invasion: that his entry
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into the victim’s apartment was unauthorized or that he “entered with criminal
intentions;” and (b) his plea was invalid when plea counsel rendered ineffective
assistance by failing to speak to him or obtain discovery materials prior to the
entry of the plea. (Doc. 23-9 at 5). On February 5, 2008, the appellate court
affirmed the denial of the post-conviction petition.
Petitioner filed a PLA, raising the same claims that he presented to the
Illinois Appellate Court. (Doc. 23-10). On May 29, 2008, the Illinois Supreme
Court denied the PLA. (Doc. 23-11).
III.Federal Petition for Writ of Habeas Corpus
On December 1, 2008, petitioner filed the instant petition for habeas
corpus relief pursuant to 28 U.S.C. § 2254. (Doc. 1). In his petition, Hotz alleges
that his plea counsel rendered ineffective assistance; the sufficiency of the factual
basis for the plea was inadequate in light of newly discovered evidence; and his
guilty plea was not knowing and voluntary. (Doc. 1); (Doc. 23 at 10).
RELEVANT FACTS
The Illinois Appellate Court described the relevant facts of the case as
follows:
On September 21, 2001, the defendant entered a fully negotiated plea
of guilty to one count of first-degree murder stemming from his July
6, 2001, murder of M.L.M. in the course of the commission of a
home invasion. The defendant had strangled the victim with a
telephone cord as he sodomized her. The defendant was identified
as the perpetrator of the crime when biological evidence that he had
left at the scene of the murder was matched with his sex offender’s
DNA sample in the Combined DNA Index System (CODIS) data bank.
He confessed to the police that he had sodomized and murdered
M.L.M., and then he led them to the location where he had disposed
of the telephone cord with which he had garroted the victim. His
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guilty plea was entered in exchange for the State’s agreement to drop
two counts of first-degree murder and two counts of aggravated
criminal sexual assault and to not seek the death penalty. The
defendant, who had prior felony convictions for aggravated criminal
sexual assault, deviate sexual assault, rape, and failure to register as
a sex offender, was sentenced to natural-life imprisonment. On
March 7, 2002, the defendant testified in support of his amended
motion to withdraw his plea. The court found that the defendant’s
plea was knowing and voluntary and that he had not been under the
influence of drugs when he entered his plea. It noted that the State
had sought the death penalty for the defendant, that the defendant
faced a mandatory natural-life sentence on the aggravated-criminalsexual-assault charge, that he had confessed to the murder and DNA
directly connected him with the crime, and that he had led the police
to evidence that he had disposed of after the murder. The judge
stated that the fact that the defense had managed to negotiate a
natural-life sentence where the State had sought the death penalty
demonstrated that there was definitely no misrepresentation of
counsel in this case.
(Doc. 23-9 at 1–2) (internal citations omitted).
DISCUSSION
I. Petitioner’s Ineffectiveness of Counsel Claims Are Procedurally
Defaulted and Lack Merit.
Generally, federal courts cannot review a petition for writ of habeas corpus
premised on questions of federal law unless the petitioner exhausted the remedies
available in state court. 28 U.S.C. § 2254(b)(1)(A); Gomez v. Jaimet, 350 F.3d
673, 677 (7th Cir. 2003). When “a petitioner does not adequately present a claim
to the state court” the claim is procedurally defaulted and will not be considered
on the merits by a federal court on habeas review unless there is a showing of
“cause and prejudice for the default or . . . that a failure to grant him relief would
work a fundamental miscarriage of justice.” Richardson v. Briley, 401 F.3d 794,
801 (7th Cir. 2005) (citing Moore v. Casperson, 345 F.3d 474, 484 (7th Cir.
5

2003)); Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005) (finding that a
fundamental miscarriage equals “the conviction of an innocent person”); see
Edwards v. Carpenter, 529 U.S. 446, 451–52 (2000).
When a state court denies a prisoner relief on a question of federal law and
bases its decision on a state procedural ground that is independent of the federal
question, the federal question is procedurally defaulted. Lee v. Davis, 328 F.3d
896, 899–900 (7th Cir. 2003); Coleman v. Thompson, 501 U.S. 722, 729 (1991).
Even when both the merits of a claim and a state procedural bar are discussed
together, the state procedural grounds will be determinative if they are clearly
presented and they constitute an adequate independent ground for the denial of
the state habeas petition. Lee, 328 F.3d at 899–900.
This rule promotes federalism by respecting the importance of state
procedural rules and the finality of state court judgments. Gomez v. Jaimet, 350
F.3d 673, 677 (7th Cir. 2003). Furthermore, it discourages defense lawyers from
withholding constitutional claims in state proceedings to have them heard first in
federal court. Id.
Petitioner’s ineffectiveness of plea counsel claim is procedurally barred for
failure to bring it previously on direct appeal.

Although the state court gave

alternative reasoning on the merits, this does not preclude the effect of the
procedural bar as this was a clear and express decision of the Illinois Appellate
Court.

Petitioner also cannot show sufficient cause and prejudice or actual

innocence to overcome the procedural bar because he did not claim on direct

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appeal of his post-conviction petition that his appellate counsel provided
ineffective assistance of counsel by failing to raise the issue of ineffectiveness of
plea counsel. Finally, even if the claims weren’t procedurally barred, petitioner
also would be unsuccessful upon review of his claims on the merits.
A. Petitioner’s Ineffectiveness of Counsel Claims Are Procedurally
Defaulted
A petitioner must “fairly present” a claim before the state court to allow the
state an opportunity to correct any constitutional violations. Sanders v. Cotton,
398 F.3d 572, 581 (7th Cir. 2005). This fair presentment requirement means
that the petitioner must invoke “one complete round of the state’s established
appellate review process” for each claim. O’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999); see also Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005). He
must present “operative facts and controlling legal principles” for the state court
to review. Sanders, 398 F.3d at 580. “A habeas petitioner who has exhausted his
state court remedies without properly asserting his federal claim at each level of
state court review has procedurally defaulted that claim.” Bintz, 403 F.3d at 863.
The burden is upon the respondent to show that the petitioner has procedurally
defaulted his claims. Id.
In Illinois, post-conviction review is only open to claims that could not have
been raised on direct appeal.

Illinois has a procedural rule providing that a

defendant must assert ineffective assistance of counsel claims on direct appeal
that are apparent from the record, or risk forfeiture of the claim on postconviction review.

Diggs v. Hulick, 236 Fed. Appx. 212, 216 (7th Cir. 2007).
7

When, under this rule, the state court declines to review a claim not properly
raised, the state court decision rests upon a state law ground that is both
“independent of the federal question and adequate to support the judgment.” Id.;
Gomez v. Jaimet, 350 F.3d 673, 677 (7th Cir. 2003); Coleman v. Thompson,
501 U.S. 722, 729 (1991).

An adequate and independent state ground bars

federal habeas review of constitutional claims only if “the last state court
rendering judgment in the case ‘clearly and expressly’ states that its judgment
rests on the state procedural bar.” Gomez, 350 F.3d at 677–78; Harris v. Reed,
489 U.S. 255, 263 (1989).
Here, the Illinois Appellate Court was the last state court to consider
petitioner’s case; the Illinois Supreme Court denied review. The Illinois Appellate
Court “clearly and expressly” found that petitioner waived his ineffective
assistance of plea counsel claim by failing to raise the inadequacy of plea
counsel’s representation on direct appeal. Petitioner only raised the ineffective
assistance of plea counsel claim for the first time in his petition for postconviction relief. Because petitioner failed to bring his ineffective assistance of
plea counsel claim previously, at trial or on direct appeal, he is procedurally
barred from raising it now.
Petitioner also cannot show sufficient cause and prejudice or actual
innocence to overcome this procedural bar.

Defaulted claims can only be

considered if a petitioner can show cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that failure to

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consider the claims will result in a fundamental miscarriage of justice. Coleman,
501 U.S. at 750; Hernandez v. Hulick, 2007 U.S. Dist. LEXIS 4987 (N.D. Ill. Jan.
22, 2007).
Under the cause-and-prejudice test for excusing a procedural default in
habeas proceedings, a cause is defined as, an objective factor, external to the
defense, which impeded the defendant’s efforts to raise the claim in an earlier
proceeding. Smith v. McKee, 598 F.3d 374, 383–84 (7th Cir. 2010). Prejudice
means, an error which so infected the entire trial that the resulting conviction
violates due process. Id. In the absence of cause and prejudice, petitioner must
show a fundamental miscarriage of justice. Id. The fundamental miscarriage of
justice exception to procedural default requires a habeas petitioner to show that a
constitutional violation has probably resulted in the conviction of one who is
actually innocent. Id. To establish the requisite probability, the petitioner must
show that it is more likely than not that no reasonable juror would have convicted
him in the light of the new evidence. Id.
Here, petitioner does not argue that the procedural default should be
excused under either cause and prejudice or a fundamental miscarriage of justice.
Even assuming that petitioner argues the applicability of one of the exceptions, he
would still be unsuccessful.

Petitioner failed to claim on appeal of his post-

conviction petition that his appellate counsel provided ineffective assistance of
counsel by failing to raise the issue of ineffectiveness of plea counsel.

An

independent claim of ineffectiveness of counsel must itself be fairly presented at

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each level of the state appellate process before it can serve as cause for the
procedural default of another claim. Edwards v. Carpenter, 529 U.S. 446, 452–
54 (2000); Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004) (a procedurally
defaulted ineffectiveness claim cannot excuse the default of other claims). For
these reasons, petitioner fails to show cause and prejudice or a fundamental
miscarriage of justice and is not entitled to a review of his habeas petition on the
merits.
Although failure to raise an issue on direct appeal bars the defendant from
attempting to raise it later, in a post-conviction proceeding, a defendant still may
be able to overcome that bar. United States v. Taglia, 922 F.2d 413, 418 (7th
Cir. 1991).

A defendant is not barred from “claiming ineffective assistance of

counsel for the first time in the post-conviction proceeding in any case in which
the claim is based on extrinsic evidence, because the [bar] applies only to claims
the factual basis for which was laid in the original trial.” Id. It will not bar him in
any event if his counsel for the direct appeal was his trial counsel, who can hardly
be expected to challenge on appeal his own effectiveness at trial.

Id.

Here,

petitioner makes no argument for the ineffective assistance of counsel based on
extrinsic evidence.

Moreover, petitioner had different counsel at trial and on

direct appeal. Thus, petitioner’s claim is still procedurally barred.
Finally, the Illinois Appellate Court’s review of the merits of petitioner’s
ineffectiveness claims also does not excuse the procedural default. Even when
both the merits of a claim and a state procedural bar are discussed together, the

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state procedural grounds will be determinative if they are clearly presented and
they constitute an adequate independent ground for the denial of the state habeas
petition. Lee v. Davis, 328 F.3d 896, 899–900 (7th Cir. 2003). An adequate and
independent state ground bars federal habeas review of constitutional claims only
if “the last state court rendering judgment in the case ‘clearly and expressly’ states
that its judgment rests on the state procedural bar.” Gomez v. Jaimet, 350 F.3d
673, 677–78 (7th Cir. 2003); Harris v. Reed, 489 U.S. 255, 263 (1989).

As

explained above, the Illinois Appellate Court “clearly and expressly” found that
petitioner waived his ineffective assistance of plea counsel claim by failing to raise
the inadequacy of plea counsel’s representation on direct appeal.
B. Petitioner’s Ineffectiveness of Counsel Claims Lack Merit
A federal court’s review of state court decisions is limited by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). When dealing with a
state court’s determination on the merits, a federal court may only grant habeas
relief if the decision “was contrary to, or involved an unreasonable application of,
clearly established Federal law,” or “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); Coleman v. Hardy, 690 F.3d 811, 814 (7th Cir. 2012).
The relevant decision that is reviewed by federal courts under AEDPA is always
the decision of the last state court to rule on the merits of the petitioner’s claims. 1
Id.

1

In this case, that is the Illinois Appellate Court’s decision from Hotz’s post-conviction appeal of
his conviction. (Doc. 23 at 2).

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A state court decision is “contrary to” federal law when it “contradicts the
governing law set forth in [Supreme Court] cases.” Id. A state court’s decision is
“contrary to” clearly established Supreme Court precedent when it reaches a legal
conclusion that is opposite to a legal conclusion announced by the Supreme
Court. Coleman, 690 F.3d at 814; Morgan v. Hardy, 662 F.3d 790, 798 (7th Cir.
2011). A state court’s conclusion is an “unreasonable application” of Supreme
Court precedent when the state court identifies the correct legal rule as
determined by the Supreme Court, but unreasonably applies it to the facts of the
case, unreasonably extends a legal principle from existing precedent, or refuses to
extend that principle to a new context where it should apply. Id.
The writ may not issue merely because the state court applied clearly
established federal law erroneously or incorrectly; the application must also be
unreasonable. Williams v. Taylor, 529 U.S. 362, 411 (2000); see also Owens v.
Frank, 394 F.3d 490, 497 (7th Cir. 2005). The burden is on the Petitioner to
show that he is entitled to relief. See Harding v. Sternes, 380 F.3d 1034, 1043
(7th Cir. 2004).
The federal courts give great deference to state court factual findings.
Coleman, 690 F.3d at 815. After AEDPA, federal courts are required to presume
a state court’s account of the facts correct, and the petitioner has “the burden of
rebutting the presumption of correctness by clear and convincing evidence.” Id.;
28 U.S.C. § 2254(e)(1).

The Illinois Appellate Court described the following

interactions between petitioner and his plea counsel:

12

On February 15, 2006, an evidentiary hearing was held on the merits
of the defendant’s petition, his January 20, 2006, pro se amendment
to the petition, his successive pro se motion to withdraw his guilty
plea, and the State’s motion to dismiss that motion. The defendant
and his plea counsel both testified at length. The testimony heard by
the court established that his plea counsel had conferred several
times with the defendant and with his family prior to the date that
the defendant pleaded guilty. He also had reviewed the State’s
discovery material before the defendant entered his plea. The
defendant had been eager to plead guilty in order to remove the death
penalty from the sentencing equation. The defendant did not deny
that he had killed the victim. He testified that he never saw his plea
counsel or the discovery materials until the date that he entered his
guilty plea. After he pleaded guilty, he had obtained copies of the
State’s discovery materials, the “newly[] discovered evidence” to
which his petition referred. He claimed that the discovery materials
proved that he had not committed home invasion because the
victim’s home was not in disarray and the victim had been murdered
sometime after she allowed him to enter.
He argued that he should not have been sentenced to natural life in
prison: ‘[T]here was no home invasion, and it [was] my first murder,
and it was an accident. I said it was an accident.’ The court granted
the State’s motion to dismiss the defendant’s pro se successive
motion to withdraw his plea and continued the hearing on the
defendant’s post-conviction petition.
On March 2, 2006, the hearing resumed. The assistant State’s
Attorney who had prosecuted the defendant testified that prior to the
date upon which the defendant entered his plea, the State had
provided plea counsel with all the discovery material and had told
counsel that blood found at the crime scene had been positively
identified through CODIS as the defendant’s. A police officer who
had been assigned to the case also testified that the defendant
appeared not to be under the influence of drugs when he confessed to
murdering the victim. The hearing was again continued to allow the
defendant to present another witness’s testimony. On March 9,
2006, the defendant’s plea counsel testified that after his March 2,
2006, testimony, he had located and read the defendant’s file. He
had received voluminous discovery material from the State that he
had read at home over the weekend before the plea was taken. He
definitely remembered conferring with the defendant about his case
after he had read all the discovery material that the State had
provided and before the defendant entered his plea. Although no
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written report was yet available on the match between the defendant’s
blood in the CODIS sex offender data bank and the blood that had
been recovered from the back of the victim’s pajama top, the State
had told him the day before the plea that the match had been made.
He testified that many times he would not sign in at the jail when he
visited his clients, and thus there might be no written record of his
consultation with the defendant, but he had conferred with the
defendant at least three times before the defendant pleaded guilty.
On July 19, 2006, the court denied the defendant’s post-conviction
petition on the basis of res judicata and forfeiture and expressly
found that his claims of inadequate assistance of plea counsel had
failed to present any issue of constitutional magnitude.
(Doc. 23) (internal citations omitted).
After summarizing these facts, the Court of Appeals addressed the
ineffective assistance of counsel claims on their merits.

The court cited

Strickland v. Washington, 466 U.S. 668 (1984) as the applicable standard and
reasoned:
Despite the defendant’s obvious forfeiture of the issue, the allegations
in the defendant’s post-conviction petition about plea counsel’s
allegedly inadequate representation were exhaustively explored at the
three hearings on the defendant’s petition. The record supports the
conclusion that the discovery material upon which the defendant
bases his claim was in his counsel’s possession prior to the entry of
his plea, that counsel had reviewed the discovery material prior to
advising the defendant to plead guilty, that the discovery material did
not undermine the evidence of home invasion and murder upon
which the defendant’s plea and conviction were based, and that
counsel had conferred with the defendant more than once prior to
the time that he pleaded guilty. The evidence against the defendant
was truly overwhelming: the blood that was found on the back of the
victim’s pajama top matched the defendant’s sex offender’s DNA
sample, he confessed to the murder, he led the police to a field where
he had thrown away the remnant of the telephone cord with which he
had garroted the victim, and he entered a knowing and voluntary plea
of guilty to murdering the victim in the course of a home invasion.
Moreover, at the hearing on his post-conviction petition he made a
judicial admission that he had murdered the victim. The record
substantiates that the trial court did not abuse its discretion when it
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found the defendant’s post-conviction allegations of attorney
inadequacy to be subject to res judicata and forfeited and not to be of
constitutional magnitude.
(Doc. 23) (internal citations omitted).
At the time petitioner’s conviction became final, the law was clearly
established that the Sixth Amendment guarantees a criminal defendant the right
to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668

(1984). To succeed on the merits of an ineffective assistance of counsel claim,
petitioner must prove both that (1) his counsel’s performance fell below “an
objective standard of reasonableness,” and (2) “there is a probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 688; Smith v. McKee, 598 F.3d 374, 384 (7th Cir. 2010). When
a court reviews a petitioner’s claim, it must evaluate whether his counsel’s
performance undermined the adversarial process to the extent that “the trial
cannot be relied on as having produced a just result.” Strickland, 466 U.S. at
686. A court’s review of counsel’s performance “must be highly deferential.” Id.
at 689. “Because of the difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’”

Id.

The Court notes, however, that “[a]

defendant’s own conduct may serve to waive his right to appointed counsel.” Hall
v. Washington, 106 F.3d 742, 751 (7th Cir. 1997).

15

The standard for judging performance of counsel on de novo review is
highly deferential, as is the standard under § 2254(d). Harrington v. Richter, 131
S. Ct. 770, 788 (2011). “When the two apply in tandem,” deference is “doubly so.”
Id. “When § 2254(d) applies, the question is not whether counsel’s actions were
reasonable.

The question is whether there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Id.
In applying both the deferential standard of Strickland and the deferential
standard of § 2254(d), this Court finds that it was not unreasonable for the state
court to conclude that petitioner was adequately represented by plea counsel. As
noted by the state court, the evidentiary record supports the conclusion that the
discovery material upon which the defendant based his claim was in his counsel’s
possession prior to the entry of his plea, that counsel had reviewed the discovery
material prior to advising the defendant to plead guilty, that the discovery
material did not undermine the evidence of home invasion and murder upon
which the defendant’s plea and conviction were based, and that counsel had
conferred with the defendant more than once prior to the time that he pleaded
guilty.
Moreover, the state court found that the evidence against the defendant was
truly overwhelming because: the blood that was found on the back of the victim’s
pajama top matched the defendant’s sex offender’s DNA sample, he confessed to
the murder, he led the police to a field where he had thrown away the remnant of
the telephone cord with which he had garroted the victim, and he entered a

16

knowing and voluntary plea of guilty to murdering the victim in the course of a
home invasion. Finally, at the hearing on his post-conviction petition he made a
judicial admission that he had murdered the victim. Therefore, the Court finds
that the appellate court’s determinations regarding ineffective assistance of
counsel were neither contrary to nor an unreasonable application of clearly
established federal law. Accordingly, the Court denies relief on these grounds.
II. Petitioner’s Adequacy of Plea Claims Are Procedurally Defaulted,
Noncognizable, and Lack Merit
This claim is procedurally barred because petitioner failed to raise it at
trial.

Petitioner argues that the factual basis for his plea was inadequate to

support the finding of guilty in light of newly discovered evidence identified though
the discovery process. Petitioner claims that this new evidence establishes that:
(1) someone else could have committed the crime; (2) no home invasion occurred;
(3) he did not visit the victim with a predetermined disposition to commit a crime;
(4) when the coroner visited the scene, the victim was still bleeding; (5) no DNA
match proved that petitioner committed a sexual assault; and (6) state officials
informed police to look for a family member before targeting petitioner. (Doc. 1
at 5(b)1–5(b)2).
Again, petitioner’s claim is procedurally barred. When a state ground (such
as failure to make a contemporaneous objection, or to raise an issue on appeal)
supports a state court’s rejection of an argument based on federal law, that
federal issue cannot be raised on collateral attack unless the prisoner shows
cause for, and prejudice from, that default. Brooks v. Walls, 279 F.3d 518, 522
17

(7th Cir. 2002); Coleman v. Thompson, 501 U.S. 722, 729–35 (1991).

The

Illinois Appellate Court held on post-conviction appeal that petitioner forfeited the
issue of the sufficiency of the factual basis for the plea when he failed to raise it in
the trial court or on direct appeal. (Doc. 23-9 at 8) Petitioner also failed to avert
forfeiture when he filed his post-conviction petition because he did not claim that
his appellate counsel had provided ineffective assistance by not raising the issue
of sufficiency of the factual basis for the plea on direct appeal. Id. Thus, the
claim is procedurally defaulted.
Although the court held, in the alternative, that the claim was barred by res
judicata, this does not save the claim from forfeiture. Reliance on a state court
finding of res judicata generally does not result in a procedurally defaulted claim
on federal habeas.

Moore v. Bryant, 295 F.3d 771, 776–77 (7th Cir. 2002).

When a state court decides the merits and asserts a procedural bar, the federal
court must respect both rulings. Brooks, 279 F.3d at 522. When state courts
disagree about the right ground of decision, the ruling of the last state court to
articulate a reason governs.

Id. And when the last state court relies on dual

grounds, the procedural ground means that the petition was not “properly filed.”
Id.
The Illinois Appellate Court held that the issue of sufficiency of the factual
basis for the plea was also res judicata as a result of its decision on direct appeal.
(Doc. 23-9 at 9). The state court assessed the factual basis for the plea on direct
appeal in the context of whether plain error would excuse the defendant’s failure
to preserve the issue of the sufficiency of the court’s admonishments. (Doc. 23-9
18

at 9). However, the state court also clearly held that the issue was forfeited on
post-conviction review because petitioner failed to raise it both in the trial court
and in his subsequent direct appeal. (Doc. 23-9 at 9). Petitioner’s claims are
procedurally defaulted notwithstanding the state court’s alternative reasoning for
its judgment because the state court was clearly and expressly held that the
procedural default acted to forfeit petitioner’s claims.
Petitioner’s claims fail to present cognizable grounds for habeas relief.
Under Illinois law, the trial court was bound to investigate the factual basis for
petitioner’s guilty plea. Donald v. Peters, 1991 U.S. App. LEXIS 31050, at *3
(7th Cir. Dec. 27, 1991); see Ill. Sup. Ct. R. 402. This Illinois law is expressly
patterned after Federal Rule of Criminal Procedure 11, which requires that the
factual basis for a guilty plea in federal court be established by the district judge.
Donald, 1991 U.S. App. LEXIS 31050, at *3; Fed. R. Crim. P. 11. It is wellsettled, however, that Rule 11 is not a constitutional requirement. Donald, 1991
U.S. App. LEXIS 31050, at *3; United States v. Timmreck, 441 U.S. 780, 783
(1979) (“A violation [of Rule 11] is neither constitutional nor jurisdictional.”).
Because the post-conviction petition involves a state procedural rule rather than a
constitutional question petitioner’s claim is noncognizable.
Finally, the petitioner’s claims also lack merit. Petitioner argues that newly
discovered evidence undermines the State’s factual basis for the plea. (Doc. 1 at
5(a)(13)-5(b)(1)). Petitioner’s proposed evidence includes the following: someone
else “could have” committed the crime because a person was in the victim’s

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backyard days before the murder; there was no home invasion because petitioner
had been allowed into the victim’s house the day before the victim was found
dead; petitioner’s self-serving statement that he “had no predetermined
disposition” to cause the victim harm; the victim was bleeding when the coroner
arrived; no DNA match existed of a previous sexual assault; and at one point,
family members were being questioned. (Doc. 1 at 5(b)1–5(b)2).
Petitioner’s argument is meritless, and he has failed to rebut the state
appellate court’s fact-bound holding with the requisite clear and convincing
evidence. See § 2254(e)(2). Petitioner claims that he obtained newly discovered
evidence on November 3, 2003 that neither he nor his plea counsel had access to
until after he pleaded guilty. (Doc. 1 at 5(b)1). First, the Illinois Appellate Court
held that the evidence was available to both petitioner and his plea counsel prior
to pleading guilty. On post-conviction appeal, the Illinois Appellate Court held
that “[t]he record supports the conclusion that the discovery material upon which
the defendant bases his claim was in his counsel’s possession prior to the entry of
his plea, that counsel had reviewed the discovery material prior to advising the
defendant to plead guilty, that the discovery material did not undermine the
evidence of home invasion and murder upon which the defendant’s plea and
conviction were based, and that counsel had conferred with the defendant more
than once prior to the time that he pleaded guilty.” (Doc. 23). Petitioner had
access to the information prior to filing his April 19, 2004 post-conviction petition
to the state court.

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Petitioner’s proposed evidence does not rebut the state court’s reasonable
factual determination that his plea was sound and based on sufficient proof. The
Illinois Appellate Court held that:
the evidence was not so closely balanced nor the error so
fundamental and of such magnitude that the [Petitioner] was
deprived of a fair trial, warranting the application of the plain error
rule. The factual basis presented to the court revealed overwhelming
evidence of his guilt, including the DNA evidence that led to his
arrest, his confession (the voluntariness of which he did not contest),
and his act of leading the police to the missing telephone and its
remnant of the cord with which the victim had been strangled to
death after she unsuccessfully resisted being sodomized by the
[Petitioner].
(Doc. 23-12 at 128); (Doc. 23-9 at 9).
Accordingly, for all of the aforementioned reasons, petitioner is not entitled
to relief on his assertion that “newly discovered evidence” undermined the State’s
factual basis to support the guilty plea in violation of his federal constitutional
rights.
III.Petitioner’s Claims that His Plea Was Unknowing and Involuntary
Are Procedurally Defaulted and Lack Merit.
Finally, petitioner claims that his guilty plea was not knowing and voluntary
because: his lack of education prevented him from understanding the nature of
the charge and the possible sentences; his apprehension of the proceedings was
impaired because he was still suffering from the effects of taking cocaine three
weeks prior to his plea; and he was compelled to make a life-altering decision in a
short span of time. (Doc. 1 at 6(c)(1)); (Doc. 23-9 at 9). Petitioner is not entitled
to habeas relief as these assertions lack merit.
A guilty plea must be voluntary and intelligent. Parke v. Raley, 506 U.S.
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20, 29 (1992). A guilty plea “operates as a waiver of important rights, and is valid
only if done voluntarily, knowingly, and intelligently, ‘with sufficient awareness of
the relevant circumstances and likely consequences.’” Bradshaw v. Stumpf, 545
U.S. 175, 183 (2005) (quoting Brady v. United States, 397 U.S. 742, 748
(1970)); Boatman v. United States, 2012 U.S. Dist. LEXIS 158134 (S.D. Ill. Nov.
5, 2012). “The whole point” of the plea colloquy is to ensure that the plea was
knowingly and voluntarily made. United States v. Ellison, 835 F.2d 687, 693
(7th Cir. 1987); Fed. R. Crim. P. 11(b). A claim that can succeed only if the
defendant lied to the judge during the plea colloquy “may be rejected out of hand
unless the defendant has a compelling explanation for the contradiction.” United
States v. Peterson, 414 F.3d 825, 827 (7th Cir. 2005). Entry of a plea is not
some empty ceremony, and statements made to a judge in open court are not
trifles that defendants may elect to disregard. United States v. Stewart, 198 F.3d
984, 987 (7th Cir. 1999). Petitioner bears the burden of proving that his plea was
involuntary and unintelligent. Marx v. United States, 930 F.2d 1246, 1250 (7th
Cir. 1991).
A defendant must also be properly admonished when pleading guilty.
Illinois Supreme Court Rule 402 requires that the trial court admonish a
petitioner as to: (1) the nature of the charge; (2) the minimum and maximum
sentences; (3) the right to plead not guilty; and (4) the waiver of his right to trial.
See Ill. Sup. Ct. R. 402; Lockhart v. Chandler, 446 F.3d 721, 724 n.1 (7th Cir.
2006). The trial court must also determine whether petitioner’s plea is knowing

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and voluntary by stating the terms of the plea agreement, which petitioner must
confirm in open court. Id.
The Illinois Appellate Court held that petitioner’s argument as to the
natural-life aspect of his plea claims was meritless.

The state court held that

“numerous pro se filings in the record substantiate that the defendant has a basic
working knowledge of the legal system and the ability to adequately express his
position and formulate a request for relief.” The state court also held that the
transcript of the plea proceedings contradicted any claims that the court failed to
advise petitioner that a natural-life sentence was available to punish the crime to
which he wanted to enter a guilty plea.
The transcript makes clear that the defense counsel stated the terms of the
plea agreement, including the natural-life sentence, to which petitioner was in
accord. (Doc. 23-9 at 9). The court also read the felony murder indictment to the
defendant. The petitioner told the court that he understood that the indictment
charged him with felony murder predicated on home invasion. (Doc. 23-9 at 9).
The trial court explained the possible penalties in a manner that was
comprehensible by a person of average intelligence.

(Doc. 23-9 at 9).

The

defendant was properly advised of the only two sentencing options for the crime
to which he wanted to plead guilty: life in prison without the possibility of parole
or death. (Doc. 23-9 at 9).
The court then explained that the guilty plea waived petitioner’s right to:
(1) plead not guilty; (2) a trial by jury or bench (3) representation by the attorney

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of his choice; (4) confront, cross-examine, and subpoena witnesses; (5) testify on
his own behalf; and (6) a presumption of innocence. (Doc. 23-13 at 5–6). The
court also informed petitioner that his guilty plea constitutes a waiver of all the
aforementioned rights.

(Doc. 23-13 at 5–6).

Petitioner indicated that he

understood each of these rights and admonitions by the court. (Doc. 23-13 at 5–
6). The transcript demonstrates that the court properly admonished petitioner
before he pleaded guilty.
Further, petitioner is not entitled to relief on his claim that his plea was not
knowing or voluntary because he was under the influence of cocaine at the time
the plea was entered. First, this claim is procedurally defaulted. The Supreme
Court has described waiver as the “intentional relinquishment or abandonment of
a known right.” Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 913
(7th Cir. 2011); United States v. Olano, 507 U.S. 725, 733 (1993). It is well
established in Seventh Circuit precedent that “skeletal” arguments may be
properly treated as waived, as may arguments made for the first time in reply
briefs. Hernandez, 634 F.3d at 913. The underlying concern is to ensure that
the opposing party is not prejudiced by being denied sufficient notice to respond
to an argument. Id.
As respondent correctly points out, while petitioner did claim that his plea
was not knowing or voluntary on direct appeal, and acknowledged his drug claim
in the statement of facts of his brief (Doc. 23-1), he failed to raise it in the
argument portion of his brief, preventing the state appellate court from

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considering it in its order. (Doc. 23-1 at 6–12). And because his PLA on direct
appeal consisted of his direct appeal brief (Doc. 23-4), petitioner also failed to
raise the claim before the state supreme court that his drug use prohibited him
from knowingly and intelligently pleading.

This claim is thus procedurally

defaulted because petitioner’s mere mention of the issue in the statement of facts
of his direct appeal brief is perfunctory at best. Stevens v. McBride, 489 F.3d
883, 894 (7th Cir. 2007); Baeco Plastics v. Inacomp Fin. Servs., 1995 U.S. App.
LEXIS 6527 (7th Cir. Mar. 29, 1995) (“A party’s principal argument must appear
in the opening brief, so that it may be answered. A litigant may not throw down a
gauntlet in the opening brief and reserve its argument for the reply brief.”); United
States ex rel. Madej v. Schomig, 223 F. Supp. 2d 968, 2002 U.S. Dist. LEXIS
17996 (N.D. Ill. September 24, 2002) (“Like arguments presented initially in a
reply brief, perfunctory arguments are also waived.”).
This claim is also without merit because petitioner cannot demonstrate that
his plea was defective because he was under the influence of cocaine. At no time
during the proceedings or before waiver of the procedural safeguards mentioned
above did petitioner alert the court that he was feeling the effects of cocaine
withdrawal and therefore was unable to comprehend what was happening. (Doc.
23-13 at 1–16). In fact, during the motion to withdraw the guilty plea, the court
noted that although petitioner may have been under the influence of drugs at the
time of his arrest, Petitioner had been in custody for fourteen days or longer
before entering the guilty plea. (Doc. 23-14 at 49). Petitioner’s failure to object or

25

alert the court to any possible cocaine usage at the hearing precludes petitioner
from now asserting that the court erred in accepting his plea. Because petitioner
provides insufficient evidence to establish that he suffered from the effects of
cocaine withdrawal during the plea hearing, he cannot show that his plea was
unknowing and involuntary and he is not entitled to federal habeas relief.
IV. Petitioner Is Not Entitled to a Certificate of Appealability
Further, the Court declines to issue a certificate of appealability on any of
petitioner’s claims. See Rule 11(a) of the Rules Governing § 2254 Cases in the
United States District Courts (“The district court must issue or deny a certificate
of appealability when it enters a final order adverse to the applicant.”) (eff. Dec. 1,
2009). Pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue “only
if the applicant has made a substantial showing of the denial of a constitutional
right,” which is interpreted to mean the petitioner must show that “reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The

petitioner need not show that his appeal will succeed, Miller-El v. Cockrell, 537
U.S. 322, 337 (2003), but he must show “something more than the absence of
frivolity” or the existence of mere “good faith” on his part, Id. at 338 (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). If the district court denies the
certificate, the petitioner may request a circuit judge to issue it. Fed. R. App. P.
22(b)(1).
Petitioner does not provide a compelling explanation for contradicting the
sworn statements in his plea colloquy and plea agreement. Reasonable jurists
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might infer that the claims in petitioner’s habeas petition are either procedurally
defaulted or without merit. There is no basis for believing that reasonable jurists
would find the state court’s assessment of the constitutional claims debatable or
wrong. Consequently, petitioner has not made a substantial showing of the denial
of a constitutional right. A certificate of appealability will not be issued.
CONCLUSION
For the foregoing reasons, the Petition for Writ of Habeas Corpus (Doc. 1) is
DENIED and that this matter is DISMISSED WITH PREJUDICE. Further, the
Court DIRECTS the Clerk of the Court to enter judgment reflecting the same.

Digitally signed by
David R. Herndon
Date: 2013.03.26
14:25:45 -05'00'

DATED: March 26, 2013

Chief Judge
United States District Court

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