Draffen v. Robert

Filing 17

ORDER DISMISSING CASE: The Court DENIES and DISMISSES petitioner's § 2254 habeas petition with prejudice and DENIES petitioner's 16 MOTION for Judgment on the Pleadings. The Court further DENIES petitioner a Certificate of Appealability. The Clerk shall enter judgment accordingly. Signed by Judge David R. Herndon on 12/11/14. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH LESLIE DRAFFEN,
Petitioner,
vs.

BRAD J. ROBERT,
Respondent.

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Civil No. 13-cv-1149-DRH-CJP

MEMORANDUM and ORDER
HERNDON, District Judge:
In 2007, a jury in Massac County, Illinois, convicted petitioner Joseph
Leslie Draffen of home invasion, residential burglary and aggravated battery. He
was sentenced to sixteen years imprisonment.
After filing a direct appeal and a petition for nunc pro tunc judgment in
state court, Draffen filed a petition for habeas relief under 28 U.S.C. §2254 (Doc.
1), raising the following ground:
Requiring petitioner to serve 85% of his sentence in the absence
of a finding by the trial judge that he caused great bodily harm to
the victim violates Illinois law as well as the 5th, 6th and 14th
Amendments to the United States Constitution.
I.

Relevant Facts

This summary of the relevant facts is derived from the Appellate Court’s
Rule 23 Order

affirming the denial of petitioner’s petition for nunc pro tunc

judgment. A copy of the Rule 23 Order is attached to Doc. 11 as Exhibit 9. The
state court’s factual findings are presumed to be correct unless rebutted by clear
and convincing evidence, which petitioner has not done. 28 U.S.C. §2254(e).
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The facts underlying petitioner’s conviction are not relevant here.

The

relevant facts are that, at sentencing, the trial judge orally sentenced petitioner to
sixteen years, but did not make a finding that the victim suffered great bodily
harm and did not state that Draffen would be required to serve 85% of his
sentence. However, the written sentencing order included a provision requiring
petitioner to serve 85% of his sentence. See, Ex. 9, p. 2.
The victim, an 83-year-old man, suffered a head injury which required
hospitalization. Doc. 11, Ex. 1, pp. 1 & 4. In its Rule 23 Order affirming the
denial of the petition for nunc pro tunc judgment, the Illinois Appellate Court,
Fifth District, stated that the victim did, in fact, suffer great bodily harm during
the home invasion.

Ex. 9, p. 2.

Petitioner does not dispute that the victim

suffered great bodily harm.
II.

State Court Proceedings

Petitioner filed a direct appeal which did not raise an issue relating to his
sentence. See, Petitioner’s Brief on Direct Appeal, Doc. 11, Ex. 2.
In April, 2010, while his direct appeal was still pending, petitioner, through
counsel, filed a petition for nunc pro tunc judgment in which he argued that the
written order requiring him to serve 85% of his sentence was a clerical error
because the judge did not make a finding that the victim suffered serious bodily
harm. See, Petition for Nunc pro Tunc Judgment Doc. 1, Ex. 1, pp. 53-55, and
Petitioner’s Brief on Appeal from Denial of Petition for Nunc pro Tunc Judgment,
Doc. 11, Ex. 6,

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After his appeal was rejected, petitioner filed a Petition for Leave to Appeal
which raised the above point. Doc. 11, Ex. 10. The Supreme Court denied the
PLA. Doc. 11, Ex. 11.
Petitioner later filed a state postconviction petition, which was pending at
the time he filed his habeas petition. However, he states that the postconviction
petition has no relevance to his habeas petition. See. Doc. 1, pp. 9-10.
III.

Law Applicable to §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).
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.

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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.

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). The unreasonable application standard
is “a difficult standard to meet.” 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 outside the boundaries of
permissible differences of opinion.” Id., at 662 (internal citation omitted).
IV.

Timeliness, Exhaustion and Procedural Default

Respondent concedes that the petition was timely filed and that petitioner
has exhausted state remedies. Doc. 11, p. 7. He argues that petitioner’s ground
is procedurally defaulted.
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, 526 U.S. 838, 845, 119

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S.Ct. 1728 (1999), see also 28 U.S.C. §2254(c).

Under the Illinois two-tiered

appeals process, petitioners 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.
V.

Motion for Judgment on the Pleadings

Petitioner filed a Motion for Judgment on the Pleadings at Doc. 16 in which
he argues that he is entitled to judgment as a matter of law.

The Court will

consider that motion along with the petition.
VI.

Analysis

Petitioner’s sole ground is procedurally defaulted insofar as it attempts to
set forth a federal constitutional claim.
In state court, petitioner argued only that the written judgment was
erroneous because the judge did not make a finding that the victim suffered great
bodily harm, as required by the Illinois Truth in Sentencing Act, 730 ILCS 5/5-41. He did not refer at all to the federal constitution in his petition, his brief on
appeal, or PLA. He cited only state court cases and Illinois statutes. And, the
state court cases cited by petitioner were analyzed only under Illinois state law
and did not rely on any federal constitutional analysis on the relevant point.
A habeas petitioner must “fairly present” the constitutional basis of his
argument at each step of the state process. This requirement is not met if the
petitioner’s state court pleadings fail to alert the state court “to the federal nature
of the claim.” Baldwin v. Reese, 124 S.Ct. 1347, 1349 (2004), citing Duncan v.

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Henry, 115 S. Ct. 887 (1995). Fair presentment requires “articulating the point in
such a way that a judge could grasp both its substance and its foundation in
federal law.” Lockheart v. Hulick, 443 F.3d 927, 929 (7th Cir. 2006).

Here,

petitioner presented his point as a matter of state law only. The failure to present
a federal constitutional argument in state court means that his federal
constitutional arguments are procedurally defaulted and cannot be considered
here. Bolton v. Akpore, 730 F.3d 685, 694-695 (7th Cir. 2013).
Petitioner has not demonstrated that there was cause for his procedural
default. His reply, Doc. 15, expands upon his federal constitutional arguments,
but he does not demonstrate that those arguments were actually raised in state
court or argue cause for procedural default. And, he has not raised a claim of
actual innocence sufficient to overcome his procedural default.

McQuiggin v.

Perkins, 133 S. Ct. 1924, 1931 (2013).
Petitioner’s argument that the written judgment is contrary to Illinois law
because the judge did not make a finding of serious bodily harm is not cognizable
on habeas review. 28 U.S.C. §2254 affords habeas relief only where a petitioner’s
custody violates federal law.

Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011),

citing Estelle v. McGuire, 112 S. Ct. 475, 480 (1991).

The Illinois Truth in

Sentencing Act is, obviously, a rule of state law. Claims of error in the application
of state sentencing laws are not cognizable on habeas review. Dellinger v. Brown,
301 F.3d 758, 764 (7th Cir. 2002).

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Because petitioner did not present a federal constitutional argument in
state court, and because this Court cannot consider a state law claim on habeas
review, petitioner is not entitled to habeas relief.
VII.

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.” Id.
Here, no reasonable jurist would find it debatable whether this Court’s
rulings on procedural default or on the substantive issues were correct.
Accordingly, the Court denies a certificate of appealability.
VII.

Conclusion

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Joseph Leslie Draffen’s petition for habeas relief under 28 U.S.C. §2254
(Doc. 1) is DENIED. Petitioner’s Motion for Judgment on the Pleadings (Doc.
16) is also DENIED.
This cause of action is DISMISSED WITH PREJUDICE.

The Clerk of

Court shall enter judgment accordingly.
IT IS SO ORDERED.
Signed this 11th day of December, 2014.

Digitally signed
by David R.
Herndon
Date: 2014.12.11
16:22:07 -06'00'
District Judge
United States District Court

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