Turner v. Bates

Filing 31

ORDER DISMISSING CASE. The Court denies and dismisses with prejudice petitioner's Section 2254 petition. See order for details. Signed by Chief Judge David R. Herndon on 12/3/2013. (kbl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANIEL TURNER,
Petitioner,
vs.
ZACH ROECKEMAN,
Respondent.

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Civil No. 11-cv-892-DRH-CJP

MEMORANDUM and ORDER
HERNDON, Chief Judge:
In January, 2007, a jury in Champaign County, Illinois, convicted Daniel
Turner of unlawful restraint, aggravated battery and vehicular hijacking. Only the
vehicular hijacking conviction is at issue here. Turner filed a petition for habeas
relief pursuant to 28 U.S.C. § 2254 (Doc. 9), raising the following grounds:
1. The state did not prove him guilty beyond a reasonable doubt of the
crime of vehicular hijacking because it did not prove that he “took” the
vehicle from the victim.
2. Appellate counsel was ineffective in failing to raise the issue set forth
above on direct appeal.
I.

Relevant Facts

The facts giving rise to the vehicular hijacking conviction are described by
the Illinois Appellate Court, Fourth District, as follows:
At trial, the evidence tended to show that [Turner] struck [Andrea] Thomas
in the face with his fist, shattering one of her teeth, and that he then
requested the keys to her car. When she gave him the keys, he grabbed her
by the arm and pushed her into the interior of her car, through the driver’s
side door and over to the front passenger seat. He got in the driver’s seat
and drove away, and as he drove, he struck her several more times in the
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face. When he stopped the car, she jumped out and ran to a retail store,
where she spoke with the police.
Doc. 26, Ex. H, p. 2.
State court determinations of facts “shall be presumed to be correct” and
can only be rebutted by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Mr. Turner does not dispute that Andrea Thomas testified to the above facts. See
Doc. 9, p. 5.
On direct appeal, Turner raised only one issue as to the vehicular hijacking
charge, i.e., that his thirty year sentence should be reduced to fifteen years under
the “rule of lenity.” His argument was rejected by the Illinois Appellate Court,
Fourth District. Doc. 26, Ex. C. His petition for leave to appeal was denied by the
Illinois Supreme Court. Doc. 26, Ex. E.
Turner then filed a postconviction petition pursuant to 725 ILCS 5/122-1,
et. seq., which was summarily dismissed by the trial court.

He argued that

counsel on direct appeal was ineffective for failing to argue that the state did not
prove him guilty beyond a reasonable doubt of vehicular hijacking because it did
not prove that he physically separated the victim from her vehicle. The Appellate
Court affirmed the dismissal of the petition.

Doc. 26, Ex. H.

The Illinois

Supreme Court denied his petition for leave to appeal. Doc. 26, Ex. J.
II.

Applicable Legal Standards

A. Law Applicable §2254 Petition
This habeas petition is subject to the provisions of the Antiterrorism and
Effective Death Penalty Act, known as the AEDPA.

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“The Antiterrorism and

Effective Death Penalty Act of 1996 modified a federal habeas court's role in
reviewing state prisoner applications in order to prevent federal habeas ‘retrials’
and to ensure that state-court convictions are given effect to the extent possible
under law.” Bell v. Cone, 535 U.S. 685, 692 (2002).
Habeas is not yet another round of appellate review. 28 U.S.C. § 2254(d)
restricts habeas relief to cases wherein the state court determination “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 “a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.”
A judgment is “contrary to” Supreme Court precedent if the state court
“contradicts the governing law set forth in [Supreme Court] cases.“ Coleman v.
Hardy, 690 F.3d 811, 814 (7th Cir. 2012) (citing Williams v. Taylor, 529 U.S.
362, 405 (2000)).

A state court decision is an “unreasonable application of”

clearly established law “if the state court identifies the correct governing legal
principle from [the Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case.” Id. The scope of federal review of
state court decisions on habeas is “strictly limited” by 28 U.S.C. § 2254(d)(1);
Jackson v. Frank, 348 F.3d 658, 661 (7th Cir. 2003).
application standard is “a difficult standard to meet.”

The unreasonable

Id. at 662.

Even an

incorrect or erroneous application of the federal precedent will not justify habeas
relief; rather, the state court application must be “something like lying well

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outside the boundaries of permissible differences of opinion.” Id. at 662 (internal
citation omitted).
B. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel must be analyzed under
Strickland v. Washington, 466 U.S. 668 (1984). Analysis under Strickland and
on habeas review under § 2254 are both highly deferential. Where, as here, both
apply, the review is “doubly” deferential. Harrington v. Richter, 131 S.Ct. 770,
788 (2011).
In order to show ineffective assistance of counsel under Strickland, a
petitioner must demonstrate (1) that counsel’s performance “fell below an
objective standard of reasonableness” (“the performance prong”), and (2) “that the
deficient

performance

prejudiced

Strickland, 466 U.S. at 687-688.

the

defense”

(“the

prejudice

prong”).

In order to be entitled to habeas relief, the

petitioner must satisfy both prongs of the Strickland analysis. However, there is
no mandatory order for the analysis, and a habeas court is not required to
address both prongs if the petitioner has failed to make a sufficient showing on
one. Id. at 695-696.
Under Strickland’s performance prong, a court enquires into “the objective
reasonableness of counsel’s performance.”

Harrington, 131 S.Ct. at 790.

“Strickland does not guarantee perfect representation, only a ‘reasonably
competent attorney.’”

Id. at 791.

There is a strong presumption of adequate

assistance and the exercise of reasonable professional judgment to avoid the

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temptation to second-guess counsel’s assistance.

Id. at 789.

Indeed, a

petitioner’s right to effective assistance of counsel is violated only when counsel’s
conduct, in light of all the circumstances, “[was] outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690.
With respect to prejudice, a challenger must demonstrate “a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 669. “The likelihood of
a different result must be substantial, not just conceivable.” Harrington, 131 S.
Ct. at 792. Ultimately, “[t]he focus of the Strickland test for prejudice . . . is not
simply whether the outcome would have been different; rather, counsel’s
shortcomings must render the proceeding fundamentally unfair or unreliable.”
Gray v. Hardy, 598 F.3d 324, 331 (7th Cir. 2010).
III.

Timeliness, Exhaustion, and Procedural Default

Respondent concedes that the petition was timely filed. Doc. 25, p. 6.
A habeas petitioner must clear two procedural hurdles before the Court
may reach the merits of his habeas corpus petition: exhaustion of remedies and
procedural default.

Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995).

Before seeking habeas relief, a petitioner is required to bring his claim(s) through
“one complete round of the State’s established appellate review process” because
“the exhaustion doctrine is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are

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presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119
S.Ct. 1728 (1999); see also 28 U.S.C. § 2254(c). Under the Illinois two-tiered
appeals process, petitioners such as Turner must fully present their claims not
only to an intermediate appellate court, but also to the Illinois Supreme Court,
which offers discretionary review in cases such as this one. Id. at 843-846.
Here, respondent admits that petitioner has exhausted state remedies and
that he presented his ineffective assistance of counsel argument for one full round
of state court review in state postconviction proceedings. Doc. 25, p. 6.
IV.

Analysis

The Illinois vehicular hijacking statute, 720 ILCS 5/18-3(a), provides:
A person commits vehicular hijacking when he or she knowingly
takes a motor vehicle from the person or the immediate presence of
another by the use of force or by threatening the imminent use of
force.
Petitioner argues that “takes” means “to forcibly separate” a person from
her vehicle. He relies on remarks made by the sponsor of the legislation during
floor debate and on a case from an Indiana Appellate Court construing the
Indiana vehicular hijacking statute.

He maintains that, since there was no

evidence that he forcibly separated Andrea Thomas from her vehicle, the state did
not prove him guilty of vehicular hijacking. Notwithstanding petitioner’s attempt
to cast this as an attack on the sufficiency of the evidence, this argument raises
only a non-cognizable issue of state law.
Federal courts cannot review state court interpretations of state law on §
2254 petitions.

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Curtis v.

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Montgomery, 552 F.3d 578, 582 (7th Cir. 2009). Turner’s point is really that the
state court misunderstood the elements of the crime of vehicular hijacking. This
argument in no way constitutes a cognizable sufficiency of the evidence argument.
Quite simply, a “claim that the state court misunderstood the substantive
requirements of state law does not present a claim under § 2254.

Bates v.

McCaughtry, 934 F.2d 99, 102 (7th Cir. 1991).
Turner’s first point does not present a cognizable sufficiency of the evidence
claim. The Supreme Court held in Jackson v. Virginia, 443 U.S. 307 (1979), that
a federal habeas court can consider whether the state presented enough evidence
to permit a reasonable juror to find defendant guilty beyond a reasonable doubt.
In Bates, supra, the Seventh Circuit explained the distinction between a Jackson
sufficiency of the evidence claim and a claim that the state court misunderstood
the elements of state law:
What is essential to establish an element, like the question whether a given
element is necessary, is a question of state law. To say that state law
“rightly understood” requires proof of Z', and that the evidence is
insufficient because the prosecution failed to establish this, is to use
Jackson as a back door to review of questions of substantive law.
Bates, 934 F.2d at 103.
The fact that Mr. Turner’s first point raises only a question of state law is
demonstrated by his reply to respondent’s answer (Doc. 27). He argues that the
interpretation of the word “take” in the statute is unsettled, and that the Appellate
Court’s interpretation is contrary to what the Illinois Supreme Court likely would

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have decided had it considered the issue. This is exactly the kind of state law
issue that this Court is unable to consider on a § 2254 petition.
Mr. Turner’s second point is that his appellate counsel was ineffective for
failing to argue that the state was required to prove that he forcibly separated the
victim from her vehicle. He raised his issue in his postconviction petition. Doc.
26, Ex. F.
On habeas review, the federal court assesses the decision of the last state
court to rule on the merits of the claim. Simpson v. Battaglia, 458 F.3d 585, 592
(7th Cir. 2006). In Turner’s case, that is the decision of the Illinois Appellate
Court affirming the dismissal of his postconviction petition.

The state court

decision is at Doc. 26, Ex. H.
The Illinois Appellate Court correctly identified Strickland v. Washington,
466 U.S. 668 (1984), as the applicable Supreme Court precedent. The court also
cited People v. Jackson, 793 N.E.2d 1 (Ill. 2001), which correctly notes that the
Strickland two-pronged test requires a showing of both deficient performance by
counsel and resulting prejudice. Jackson, 793 N.E.2d at 9.
Applying Strickland, the Appellate Court determined that the performance
of

Turner’s

appellate

counsel

was

not

outside

the

range

of

objective

reasonableness because reasonable professional judgment “did not require
appellate counsel to disregard the linguistic meaning of section 18-3(a).” In the
state court’s view, to “take” something means to get the object into one’s
possession, power, or control; the court observed that a person “can get a car into

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one’s power or control without emptying the car of all people.” Accordingly, the
court concluded that appellate counsel’s failure to argue that the vehicular
hijacking statute requires a showing that defendant physically separated the
victim from her car was not objectively unreasonable. Doc. 26, Ex. H, pp. 2-3.
Petitioner has not demonstrated that the Appellate Court’s application of
Strickland was unreasonable. In fact, it was not.

To prevail on a claim that

appellate counsel was ineffective for failing to raise a particular issue, petitioner
“must show that appellate counsel failed to raise an obvious issue that is stronger
than the other claims raised and that prejudice flowed from that failure.”
Johnson v. Thurmer, 624 F.3d 786, 793 (7th Cir. 2010). Here, the state court
determined that counsel’s interpretation of the state statute was within the realm
of acceptable professional opinion. This Court cannot review the correctness of
that conclusion as it is purely a matter of state law. Notably, Turner cited no
Illinois case in his postconviction brief holding that the state is required to prove
that the defendant physically separated the victim from her vehicle in a vehicular
hijacking case. He cites no such Illinois case here. Under these circumstances,
the issue cannot be said to have been “obvious.”

Under the doubly deferential

standard of review, Harrington, 131 S.Ct. at 788, this Court must conclude that
the Illinois Appellate Court’s application of Strickland was not unreasonable.
Therefore, Turner is not entitled to habeas relief.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, this Court
must “issue or deny a certificate of appealability when it enters a final order

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adverse to the applicant.” A certificate should be issued only where the petitioner
“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). No reasonable jurist could find the above assessment of plaintiff’s
claims to be debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, the Court denies a certificate of appealability.
V.

Conclusion

Daniel Turner’s petition for habeas relief under 28 U.S.C. § 2254 (Doc. 9) is
DENIED. This cause of action is DISMISSED WITH PREJUDICE. The Clerk of
Court shall enter judgment accordingly.
IT IS SO ORDERED.
Signed this 3rd day of December, 2013.

Digitally signed by
David R. Herndon
Date: 2013.12.03
13:20:35 -06'00'
Chief Judge
United States District Court

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