Caldwell v. Warden

Filing 17

ORDER DISMISSING CASE: The Court DENIES and DISMISSES with prejudice petitioner's 1 § 2254 habeas petition. The Court further DENIES petitioner a Certificate of Appealability. The Clerk shall enter judgment accordingly. Signed by Judge David R. Herndon on 9/16/16. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CORVELL CALDWELL,
Petitioner,
Civil No. 14-cv-112-DRH-CJP

vs.

JASON C. GARNETT,
Respondent.

MEMORANDUM and ORDER

HERNDON, District Judge:
In 2010, a jury in McLean County, Illinois, convicted Corvell Caldwell of
one count of criminal sexual assault.

He was sentenced to 14 years

imprisonment. Caldwell filed a petition for habeas relief pursuant to 28 U.S.C.
§2254, Doc. 1. 1 As construed on preliminary review, Doc. 6, the petition raises
the following grounds:
1.

The state’s closing and rebuttal arguments improperly shifted the
burden of proof from the state to petitioner, thereby denying him a
fair trial in violation of the Fourteenth Amendment.

2.

The evidence was insufficient to convict petitioner, violating the
Fourteenth Amendment’s Due Process Clause.

Respondent argues that both grounds are procedurally defaulted.
Relevant Facts and Procedural History
1.

Facts
The state court’s factual findings are presumed to be correct unless

Petitioner prepared his petition using a form for a petition under 28 U.S.C. §2241. However, on
preliminary review, the petition was re-characterized as a petition under Section 2254. See, Doc.
6, pp. 2-3.

1

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rebutted by clear and convincing evidence, which petitioner has not done. 28
U.S.C. §2254(e).
According to the description by the Illinois Appellate Court, Fourth District,
in its Rule 23 Order affirming on direct appeal, the victim, Brian S., was a student
at Illinois State University. Brian went out drinking with friends in several bars in
downtown Bloomington, Illinois, on the evening of the crime.
separated from his friends and began walking home.

Brian became

Petitioner, who did not

know Brian, offered him a ride back to campus. Instead of taking him back to
campus, petitioner convinced Brian to go to a strip club, where Brian drank a
shot of whiskey. The two men got back in the car, and Brian passed out. When
he awoke, he was still in the passenger’s seat.

Petitioner was outside the

passenger side door, performing oral sex on Brian. Petitioner also testified. He
admitted giving Brian a ride and going to the strip club. He testified that, while he
was driving back to Bloomington from the club, the victim placed petitioner’s
hand on his crotch. Petitioner denied placing his mouth on the victim’s penis.
See, People v. Caldwell, Order on Direct Appeal, Doc. 15, Ex. 1. 2
2.

State Court Proceedings
Petitioner filed a post-trial motion in which he raised, among other points,

a claim that the state filed to prove him guilty beyond a reasonable doubt. Doc.
15, Ex. 7, p. 69.

For clarity of reference, the Court uses the exhibit and page numbers assigned by the CM/ECF
system.

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Caldwell raised two claims on direct appeal: (1) the state’s closing and
rebuttal arguments improperly shifted the burden of proof to petitioner; and (2) a
$5.00 State Police OP Assistance fee was improperly imposed. See, Defendant’s
Brief on Direct Appeal, Doc. 15, Ex. 2.
Caldwell filed a pro se petition for leave to appeal to the Supreme Court of
Illinois asking the Supreme Court “to review all points of the Appellate Court.”
Doc. 15, Ex. 6. The Supreme Court denied leave to appeal on May 29, 2013.
Doc. 15, Ex. 5.
Petitioner did not file a state postconviction petition. His federal habeas
petition was filed approximately eight months after the Supreme Court of Illinois
denied his petition for leave to appeal.
Law Applicable to §2254 Petition
1.

Substantive Law
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,

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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.

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).
2.

Timeliness, Exhaustion and Procedural Default
Respondent concedes that the petition was timely filed and that petitioner

has exhausted state remedies. Doc. 14, p. 3.
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. Bolton v. Akpore, 730 F.3d 685, 694-696 (7th Cir. 2013).

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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 (1999);
see also 28 U.S.C. §2254(c).

Under the Illinois two-tiered appeals process,

petitioners such as Caldwell 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 1732-1733.
Analysis
1.

Ground One
Petitioner’s first ground is defaulted because it was disposed of by the

Appellate Court on the independent and adequate ground of waiver.

The

Appellate court noted that petitioner acknowledged that he had not objected at
trial that the state’s argument improperly shifted the burden of proof to him, and
had not raised the issue in his posttrial motion. The Appellate Court cited People

v. Enoch, 522 N.E.2d 1124, 1130 (Ill. 1988) for the point that “the presence of
both a trial objection and a written posttrial motion raising the issue are
necessary to preserve an issue for appeal.” Doc. 15, Ex. 1, p. 9.
“When a state court resolves a federal claim by relying on a state law
ground that is both independent of the federal question and adequate to support
the judgment, federal habeas review of the claim is foreclosed.” Richardson v.

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Lemke, 745 F.3d 258, 268 (7th Cir. 2014), quoting Kaczmarek v. Rednour, 627
F.3d 586, 591 (7th Cir. 2010). The Seventh Circuit has held that the Illinois
waiver rule applied by the state court here is an independent and adequate state
rule. See, Smith v. McKee, 598 F.3d 374, 386 (7th Cir. 2010); Richardson v.

Lemke, 745 F.3d 258, 271-72 (7th Cir. 2014). Therefore, petitioner’s first ground
cannot be considered here.
2.

Ground Two
The second ground (sufficiency of the evidence) is procedurally defaulted

because it was not raised for one full round of state court review. Sufficiency of
the evidence was raised in the posttrial motion, but it was not raised on direct
appeal. Therefore, the argument cannot be considered here. Bolton v. Akpore,
730 F.3d 685, 694 (7th Cir. 2013).
3.

Cause and Prejudice; Actual Innocence
Procedural default can be overcome by a showing of cause and prejudice.

Petitioner must establish cause for his default and prejudice, or that failure to
consider the claim would likely result in a miscarriage of justice. Coleman v.

Thompson, 111 S. Ct. 2546, 2565 (1991).
Caldwell 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).

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Lastly, petitioner 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
rulings on procedural default were correct.
certificate of appealability.

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Accordingly, the Court denies a

Conclusion
Corvell Caldwell’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 in favor of respondent.
IT IS SO ORDERED.
Signed this 16th day of September, 2016.

Digitally signed by
Judge David R. Herndon
Date: 2016.09.16
14:04:13 -05'00'
United States District Judge

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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.

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