Williams v. Butler

Filing 105

ORDER denying 91 Motion for Hearing; denying 91 Motion to Expand the Record. Signed by Magistrate Judge Clifford J. Proud on 10/24/2016. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BOBBY O. WILLIAMS,
vs.

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Petitioner,

JEFF HUTCHINSON,
Respondent.

Case No. 15-cv-457-DRH-CJP

ORDER
PROUD, Magistrate Judge:
This matter is before the Court on petitioner’s Amended Motion Requesting
an Evidentiary Hearing on Claims A and B (1)-(2) and Motion to Expand the
Record Regarding Claims B (1)-(2). (Doc. 91).
Williams first suggests that respondent waived any objection to an
evidentiary hearing because he requested a hearing in his amended petition but
respondent did not object in her response. He is incorrect. Whether to hold an
evidentiary hearing is a substantive issue for determination by the Court, and is
not an issue that can be waived by respondent.
Petitioner argues that Cullen v. Pinholster, 131 S. Ct. 1388, 1398-1399
(2011) does not preclude an evidentiary hearing on the first and second grounds
asserted for habeas relief for several reasons.

First, he argues that Cullen

restricts the habeas court to the evidence that was before the state court only
where habeas review is under 28 U.S.C. §2254(d)(1). Petitioner suggests that his
claims were not adjudicated on the merits by the state courts. He is incorrect.

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The Illinois Supreme Court adjudicated the first ground (admissibility of the
statement of Gerald Simpson) in its opinion on Williams’ first appeal, Doc. 33,
Ex. 1, p. 1.

To the extent that the second ground (ineffective assistance of

counsel) was raised in state court, it was adjudicated by the Appellate Court on
appeal from the dismissal of the postconviction petition, Doc. 33, Ex. 6, p. 109.
Further, respondent argues that the second ground, alleging ineffective assistance
of trial and appellate counsel, is procedurally defaulted because it was not raised
for one full round of state court consideration. A procedurally defaulted claim
cannot be considered on habeas review. Therefore, until the Court determines
whether the second ground is procedurally defaulted, an evidentiary hearing will
not be scheduled in connection with that claim.
Williams also argues that, if this Court were to determine that the state
court’s decision was an unreasonable application of clearly established federal
law, he would then be entitled to an evidentiary hearing.

That argument is

premature, as this Court has made no such determination.
Lastly, petitioner argues that he has also requested review under
§2254(d)(2). However, he has not demonstrated that the state court’s decision
“was based on an unreasonable determination of the fact” as required by that
section.

Review under §2254(d)(2) is not, as petitioner appears to believe,

available on demand.
Petitioner also seeks to “expand the record” by submitting additional
evidence regarding his ineffective assistance of counsel claim. However, again,

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respondent asserts that claim is procedurally defaulted.
Petitioner’s Amended Motion Requesting an Evidentiary Hearing on Claims
A and B (1)-(2) and Motion to Expand the Record Regarding Claims B (1)-(2)
(Doc. 91) is DENIED in all respects.
IT IS SO ORDERED.
DATE: October 24, 2016.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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