Groel v. Martin

Filing 54

ORDER DISMISSING CASE: The Court DENIES and DISMISSES petitioner's 2254 habeas petition with prejudice. The Court further DENIES petitioner a Certificate of Appealability. The Clerk shall enter judgment accordingly. Signed by Judge David R. Herndon on 3/22/2017. (kmb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HAROLD C. GROEL,
Petitioner,
No. 13-cv-1008-DRH-CJP

v.

DOUG SIMMONS,
Respondent. 1

MEMORANDUM and ORDER
HERNDON, District Judge:
In June, 2009, a jury in Tazewell County, Illinois, convicted Harold C.
Groel of one count of criminal sexual assault in violation of 720 ILCS 5/1213(a)(4). He was sentenced to fifteen years imprisonment.
The version of the statute in effect at that time provided that a person
commits the offense of criminal sexual assault if he:
commits an act of sexual penetration with a victim who was at least 13
years of age but under 18 years of age when the act was committed and the
accused was 17 years of age or over and held a position of trust, authority
or supervision in relation to the victim.
Now before the Court is Groel’s petition for habeas relief pursuant to 28
U.S.C. §2254 (Doc. 1).

Petitioner is assigned to Jacksonville Correctional Center. Doug Simmons is the current warden
of that institution. See, https://www.illinois.gov/idoc/facilities, visited on March 17, 2017.
Pursuant to Rule 2(a) of the Rules Governing § 2254 Cases in the United States District Courts
and to Fed. R. Civ. P. 25(d), Doug Simmons is ordered substituted as respondent herein.
1

Grounds for Habeas Relief
Petitioner was still pursuing state remedies when the filed his habeas
petition. On September 13, 2016, the Court entered an order declining to stay the
petition until state remedies were exhausted. See, Doc. 50. In that Order, the
Court explained that the petition set forth separate, but related, grounds for
habeas relief:
1.

The state court erred “in finding the defendant guilty, without
requiring further analysis or more definitive definition of the
positions [of] authority, supervision, and trust and how it
applies to the defendant.” (Doc. 1, p. 6).

2.

The failure to specify which of the three terms allegedly applied to
him resulted in “having the defendant prove that he did not fall into
any of the positions and that to have all three positions relieves the
State of it’s [sic] burden of proof denying him due process of law.”
(Doc. 1, p. 10).

The Court will refer to the first ground as the “definition claim” and to the
second ground as the “notice claim.”
The petition also argued that there was not sufficient evidence that
petitioner occupied a position of trust, authority or supervision in relation to the
victim.

See, Doc. 1, pp. 7-8.

However, in his reply to the original answer,

petitioner definitively stated that he is not challenging the sufficiency of the
evidence. See, Doc. 21, p. 1, &2.
Relevant Facts and Procedural History
This summary of the facts is derived from the decision of the Illinois
Appellate Court, Third District, denying petitioner’s direct appeal. A copy of the

decision is located at Doc. 21, Ex. 2, pp. 1-11. 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).

Petitioner has not offered any

evidence to rebut the state court’s determinations of fact.
Groel was initially charged with five counts of criminal sexual assault
against three minor female victims (T.A., S.N. and A.P.), and one count of
endangering the life or health of a child (S.N.) by providing alcoholic beverages
and drugs.

After S.N. failed to appear at trial as scheduled, the three counts

involving her were dismissed.

Defendant was convicted only on one count

involving T.A. Ex. 2, pp. 2, 4.
T.A., S.N. and A.P. were foster children in the custody of petitioner’s
mother-in-law, Judy Morris. Petitioner’s wife, Cathy Groel, sometimes “babysat”
one or more of her mother’s foster children. T.A. was twenty-one years old at the
time of the trial. She testified that she entered the foster care system at the age of
eight, and was placed with Judy Morris when she was thirteen years old. She
testified that Judy Morris would leave her with Cathy Groel at the home Cathy
Groel shared with petitioner while Judy Morris went to play bingo. T.A. testified
that, when she was fourteen years old, petitioner had vaginal intercourse with her
at his home. She said that petitioner had vaginal intercourse with her on other
occasions as well, and that he had stopped having intercourse with her when
another foster child, S.N., moved into Judy Morris’ home. Ex. 2, pp. 3-4.

The Court uses the exhibit and page numbers that are assigned by the CM/ECF electronic filing
system.
2

According to the state court, T.A. testified that, “in the beginning, her
relationship with defendant was similar to spending time with family.

She

explained, ‘we were family,’ and mentioned ‘we’ went out to eat and ‘watched
movies as a family,’ and ‘he was [a] nice regular guy, cool.’” She spent the night at
the Groels’ home and sometimes babysat for the Groels’ children, whom she said
she loved. Ex. 2, p. 10.
On direct appeal, Groel raised the following issues:
1. He was not proven guilty beyond a reasonable doubt.
2. The judge erred in allowing the state to introduce other-conduct
evidence to show his propensity to commit this type of offense.
3. Admission of his prior conviction for endangering the life or health of a
child was error.
4. The state’s closing argument was improper.
Ex. 2, pp. 13-17.
Groel’s petition for leave to appeal, which was filed by counsel, raised only
the following issue:
Leave to appeal should be granted so that this Court can clarify the
meaning of “position of trust, authority, or supervision,” because the
appellate court decisions have failed to furnish a definition of the term that
provides fair notice and a proper standard for adjudication.
Doc. 21, Ex. 3, p. 79.
The Supreme Court denied leave to appeal on September 26, 2012. Ex. 3,
p. 109.
Groel did not file a state postconviction petition under 720 ILCS 5/122-1.
However, about three months before he filed his habeas petition here, he filed a

state court petition for relief from judgment pursuant to 735 ILCS §5/2-1401. As
is relevant here, the petition argued that the judgment was void because “the
indictment did not state an offense nor adequately informed [sic] the defendant of
the offense of criminal sexual conduct.” Doc. 36, Ex. 1. The Circuit Court denied
the petition on May 2, 2014. Doc. 36, Ex. 3. Groel appealed. The Appellate
Court, Third District, affirmed on October 31, 2016.

A copy of that order is

located at Doc. 53, pp. 4-8.
Motion to Proceed with Original Habeas Petition
This Court determined that stay and abeyance pending exhaustion of state
remedies as to the notice claim was not warranted for the reasons set forth in
Doc. 50. This Court directed petitioner to choose whether he wanted to proceed
only on his exhausted definition claim, or to voluntarily dismiss the habeas
petition without prejudice and refile after state remedies were exhausted.
On November 14, 2016, Groel filed a Motion to Proceed with Original
Habeas Petition, Doc. 53, indicating that state remedies had been exhausted as to
the definition claim because the Appellate Court affirmed the denial of his petition
for relief from judgment. Petitioner did not say whether he filed a petition for
leave to appeal.
The Appellate Court issued its Rule 23 Order on October 31, 2016.
Petitioner had 35 days in which to file a petition for leave to appeal.

Illinois

Supreme Court Rule 315(b). On March 9, 2017, this Court was informed by the
Clerk of the Illinois Supreme Court that Groel did not file a petition for leave to

appeal. As state remedies have now been exhausted, the Motion to Proceed with
Original Habeas Petition (Doc. 53) is GRANTED.
Applicable Legal Standards
1.

Law Applicable §2254 Petition
This habeas petition is subject to the provisions of the Antiterrorism and

Effective Death Penalty Act, known as the AEDPA.

“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, 122 S.Ct. 1843, 1849 (2002). “AEDPA's standard is
intentionally ‘difficult to meet.’”

Woods v. Donald, 135 S. Ct. 1372, 1376

(2015)(internal citations omitted).
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, 120 S. Ct.
1495, (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.
Federal habeas review serves as “a guard against extreme malfunctions in
the state criminal justice systems, not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

Even an

incorrect or erroneous application of the federal precedent will not justify habeas
relief; rather, “[a]s a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court's ruling on the claim being
presented in federal court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.”

Id., at 786–787.

“A state court's decision is

reasonable, even if incorrect in our independent judgment, so long as ‘fairminded
jurists could disagree’ on the correctness of the state court's decision.’” McDaniel

v. Polley, 847 F.3d 887, 893 (7th Cir. 2017)(internal citations omitted.)
2.

Timeliness, Exhaustion and Procedural Default
Respondent concedes that the petition was timely filed. See, Doc. 21, p. 4.

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
presented to the federal courts.” O’Sullivan v. Boerckel, 119 S.Ct. 1728, 1732
(1999), see also 28 U.S.C. §2254(c).

Under the Illinois two-tiered appeals

process, petitioners such as Groel 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 1731-1733.
Analysis
Both of petitioner’s grounds are procedurally defaulted because they were
not raised for one full round of state court review. O’Sullivan v. Boerckel, 119
S.Ct. at 1731-1733. The first ground, the definition claim, was raised for the first
time in the petition for leave to appeal. The second ground, the notice claim, is
procedurally defaulted because petitioner did not file a petition for leave to
appeal. The notice claim is also procedurally defaulted because the state court
rejected it on the independent and adequate grounds of timeliness and waiver.
Timeliness and waiver of a claim for failure to assert it on direct appeal are both
independent and adequate state grounds.

Walker v. Martin, 131 S. Ct. 1120

(2011)(state timeliness rule); Johnson v. Lee, 136 S. Ct. 1802 (2016)(state waiver
rule). Respondent has not raised procedural default. However, for the following
reasons, the Court concludes that it should raise the issue sua sponte.
Procedural default is not jurisdictional, but it is an affirmative defense
which can be waived.

Blackmon v. Williams, 823 F.3d 1088, 1100 (7th Cir.

2016). Regardless of respondent’s failure to raise the defense, this Court may sua

sponte consider procedural default where the respondent has not waived the
issue. Henderson v. Thieret, 859 F.2d 492, 498 (7th Cir. 1988).

If, however,

respondent has waived the defense, the Court may not override that waiver. Ibid.
See also, Perruquet v. Briley, 390 F.3d 505, 518 (7th Cir. 2004), noting a “line of
cases at the circuit level acknowledging that federal courts generally have the
discretion to raise the subject of procedural default sua sponte.”
Waiver is distinct from forfeiture of a defense. Waiver is the intentional
relinquishment of the right to assert a defense; waiver can be explicit or implicit.

Blackmon, 823 F.3d at 1100, citing Perruquet, 390 F.3d at 515. 3 Forfeiture, on
the other hand, is the inadvertent failure to raise an issue. Perruquet, Ibid.
Here, there was no explicit waiver of the defense of procedural default as to
the definition claim. In fact, respondent did not discuss the definition claim at all
in his original answer, Doc, 21, focusing instead on petitioner’s challenge to the
sufficiency of the evidence.

In his supplemental answer, Doc. 34, respondent

focused exclusively on the notice claim, arguing that state remedies had not been
exhausted as to that claim.
There was no explicit waiver of procedural default as to the notice claim. It
only became apparent that the notice claim was procedurally defaulted when

3

28 U.S.C. §2254(b)(3) provides that, as to the defense of failure to exhaust state remedies,
waiver of the defense must be express, i.e., there can be no implicit waiver. In Perruquet, the
Seventh Circuit noted that other courts have held that §2254(b)(3) applies to the defense of
procedural default as well, but declined to decide the issue because the state had not even
implicitly waived the defense. Perruquet, 390 F.3d at 515-516.

petitioner filed his Motion for Leave to Proceed with Original Habeas Petition,
Doc. 53.
In the absence of an explicit waiver, the Court must now determine whether
there was an implicit waiver. In general, “silence on the subject of procedural
default is normally not enough, standing alone, to demonstrate the intent to
relinquish the defense that is the essence of true waiver.” Perruquet, 390 F.3d at
517, and cases cited therein. Rather, an implicit waiver of procedural default
occurs where the defense that the respondent does raise is inconsistent with an
intent to preserve the defense of procedural default. Perruquet, 390 F.3d at 516.
For example, where the respondent argues the merits of one claim but argues that
a second claim is procedurally defaulted, it has implicitly waived the argument
that the first claim is also procedurally defaulted.

Ibid. In contrast, where a

petitioner only raised a particular claim in in his supplemental memorandum, to
which the court did not order the state to respond, the Seventh Circuit held that
there was no implicit waiver of procedural default as to that claim. Blackmon,
823 F.3d at 1100.
Respondent’s failure to argue procedural default here is analogous to the
situation in Blackmon.

The original answer focused on the sufficiency of the

evidence. That focus was understandable, since petitioner recited the standard
for a sufficiency of the evidence claim at length in his petition, giving rise to the
reasonable conclusion that he was challenging the sufficiency of the evidence.
Further, the habeas petition stated that he had raised a sufficiency of the evidence

claim on direct appeal. See, Doc. 1, p. 2, &3 (Petitioner “was not proven guilty of
criminal sexual assault beyond a reasonable doubt. . . .”) It was not until he filed
his reply that he disavowed an intention to challenge the sufficiency of the
evidence. At that point, the Court directed the respondent to file an amended
answer. Respondent did so, but the amended answer addressed only the notice
claim. See, Doc. 34. Respondent has never addressed the definition claim headon.

And, as explained above, procedural default as to the notice claim only

became apparent when petitioner filed his Motion at Doc. 53. Thus, this case
presents a simple failure to assert procedural default, rather than an intentional
relinquishment of the defense. Accordingly, there is no implicit waiver here.
This Court is aware that it is not required to sua sponte raise the issue of
procedural default, and whether to do so is a discretionary matter. Perruquet,
309 F.3d at 519.

This Court concludes that it is appropriate to do so here, for

much the same reasons cited by the Seventh Circuit in Perruquet.
In Perruquet, the state raised procedural default for the first time on
appeal. The Seventh Circuit held that it was appropriate to consider the defense
even though the state had not raised it in the district court because the state had
not intentionally relinquished the defense in the district court.

Even though the

Court here is raising procedural default sua sponte, the rationale of Perruquet is
applicable:
First, . . . the procedural default in this case is clear: Perruquet failed to
raise his due process claim at any level of state-court review. Second,
because no Illinois court was ever given the opportunity to pass on the
merits of Perruquet's constitutional claim, comity and federalism principles

weigh strongly against permitting Perruquet to assert the claim in federal
court. Third, if we were to reach the merits of Perruquet's constitutional
claim, we necessarily would have to do so de novo, as there is no statecourt decision we can look to for an evaluation of this claim. [internal
citations omitted.] This would be inconsistent with the high level of
deference to state-court decisions that Congress mandated when it passed
the Antiterrorism and Effective Death Penalty Act of 1996. [internal
citations omitted.] It would also amount to a windfall for Perruquet, who
would win plenary review of a claim that he never presented to the Illinois
courts, whereas habeas petitioners who properly present their claims to
state courts first are entitled only to the extremely narrow review mandated
by section 2254(d). Fourth and finally, Perruquet's claim would call upon
us to reconcile a State's prerogative to define the elements of crimes and
affirmative defenses, [internal citations omitted] with a defendant's right to
present a complete defense to the charges against him [internal citations
omitted].

Perruquet, 390 F.3d at 518.
It is clear that Groel procedurally defaulted his claim that the failure to
define the statutory terms violated his due process rights. He raised no such
claim in his direct appeal. In fact, his brief noted that Illinois courts use the
common dictionary meanings of the words “trust,” “authority,” and “supervision.”
Doc. 21, Ex. 2, p. 35.

There was no suggestion in the brief that he was arguing

that the use of the common dictionary meanings in any way violated his
Constitutional rights. Rather, his argument in the Appellate Court was that the
evidence was insufficient to prove beyond a reasonable doubt that any of those
common dictionary meanings applied to him. The definition claim was raised for
the first time in the petition for leave to appeal, which was denied. It is also clear
that the notice claim is procedurally defaulted.
Because of petitioner’s failure to properly raise his claims in state court,
there is no state court decision for this Court to review. As in Perruquet, review

here would have to be de novo, and would result in a windfall to Groel because
his claims would not be subject to the exacting standard of §2254(d), which would
apply if he had properly presented his claims for one full round of state court
review.
In sum, this Court concludes that both of petitioner’s grounds for habeas
relief are procedurally defaulted and that respondent did not waive the defense of
procedural default.
Federal habeas review is precluded unless petitioner has demonstrated
actual innocence, or cause and prejudice. See, Maples v. Thomas, 132 S. Ct. 912,
922 (2012); Gladney v. Pollard, 799 F.3d 889 (7th Cir. 2015). Groel has not
made any attempt to show cause for his default or that failure to consider his
arguments would result in a miscarriage of justice. This Court cannot make the
cause and prejudice argument for him. Lee v. Foster, 750 F.3d 687, 694 (7th Cir.
2014).

He likewise has not made a claim of actual innocence sufficient to

overcome his procedural default. McQuiggin v. Perkins, 133 S. Ct. 1924, 1931
(2013).
Certificate of Appealability
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
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).

In order for a certificate of appealability to issue, petitioner must show that
“reasonable jurists” would find this Court’s “assessment of the constitutional
claims debatable or wrong.”

See, Slack v. McDaniel, 120 S.Ct. 1595, 1604

(2000). Where a petition is dismissed on procedural grounds without reaching
the underlying constitutional issue, the petitioner must show both that reasonable
jurists would “find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.”

Slack v.

McDaniel, Ibid.
Here, no reasonable jurist would find it debatable whether this Court’s
ruling on procedural default was correct.

Therefore, the Court DENIES a

certificate of appealability.
Conclusion
Harold C. Groel’s petition for habeas relief under 28 U.S.C. §2254 (Doc. 1)
is DENIED. This cause of action is DISMISSED WITH PREJUDICE. The Clerk
of Court shall enter judgment accordingly.
IT IS SO ORDERED.
Signed this 22nd day of March, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.03.22
15:42:02 -05'00'
UNITED STATES DISTRICT JUDGE

Notice
If petitioner wishes to appeal the dismissal or denial of his petition, he may
file a notice of appeal with this court within thirty days of the entry of judgment.
Fed. R. App. P. 4(a)(1)(A). A motion for leave to appeal in forma pauperis should
set forth the issues petitioner plans to present on appeal. See Fed. R. App. P.
24(a)(1)(C).
A certificate of appealability is required to appeal from the dismissal or
denial of a §2254 petition. Rule 11 of the Rules Governing §2254 Cases requires
that, when entering a final order adverse to the petitioner, the district court must
issue or deny a certificate of appealability.

Here, the Court has denied a

certificate. In order to appeal the dismissal or denial of his petition, petitioner
must obtain a certificate of appealability from the court of appeals.
Petitioner cannot appeal from this Court’s denial of a certificate of
appealability. Further, a motion to reconsider the denial does not extend the time
for appeal. See, Rule 11(a).
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Federal Rule of Civil Procedure 59(e) must be filed no later than
28 days after the entry of the judgment—a deadline that cannot be extended. A
proper and timely Rule 59(e) motion may toll the thirty day appeal deadline.
Other motions, including a Rule 60 motion for relief from a final judgment, order,
or proceeding, do not toll the deadline for an appeal.