Stokes v. Butler

Filing 31

ORDER DENYING 1 Petition for habeas relief under 28 U.S.C. sec. 2254. The cause of action is dismissed with prejudice and the Court declines a certificate of appealability. The Clerk of Court is DIRECTED to enter judgment in favor of respondent. Signed by Judge David R. Herndon on 1/11/2018. (ceh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

MARCELL STOKES
Petitioner,
vs.

Civil No. 15-cv-00967-DRH-CJP

KIMBERLY BUTLER
Respondent.
MEMORANDUM and ORDER

Marcell Stokes (Petitioner), proceeding pro se, filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254 in this Court. (Doc. 1). He challenges his
1998 conviction in Cook County, Illinois for first-degree murder and attempted
armed robbery.

Id. at 1.

Petitioner contends he is entitled to habeas relief

because the trial judge did not properly conduct a Batson hearing on remand; the
jury should have been instructed to consider a lesser-included offense; and his
post-conviction counsel was ineffective. Id. at p. 6. For the following reasons,
Petitioner’s writ of habeas corpus under § 2254 is denied.
Background
The State of Illinois (the State) indicted and charged Petitioner with firstdegree murder and attempted armed robbery in connection with a fatal shooting
in September 1998. (Doc. 12, Ex. 1, p. 2).
Petitioner proceeded to a jury trial in March 2004. Id. During voir dire,
the State used its peremptory challenges to strike the only two African American
members of the venire. (Doc. 12, Ex. 2, p. 41). Petitioner orally objected, arguing
1 of 11

the strikes violated Batson v. Kentucky, 476 U.S. 79, 90 (1986). Id. The trial
court denied the motion, finding Petitioner failed to make a prima facie showing
of a Batson violation. Id.
The court later questioned potential juror Katherine Minogue, whose father
was a police officer. Id. Ms. Minogue admitted she would give more weight to a
police officer’s testimony than to an ordinary citizen’s testimony. Id. She further
admitted “deep down inside [she would] be a little biased” in favor of law
enforcement. Id. Another potential juror, David Street, stated his cousins were
police officers and he would give more weight to an officer’s testimony. Id. Mr.
Street, however, said he would try to follow the law and judge the testimony
equally. Id. Defense counsel attempted to ask Mr. Street follow-up questions but
the prosecution objected to the questioning and the court sustained the
objections. Id. at pp. 41-42. Petitioner’s counsel motioned to strike Ms. Minogue
and Mr. Street for cause, but the court denied the motions. Id. at p. 42. Counsel
exercised his final peremptory challenge to exclude Ms. Minogue, and Mr. Street
served on the jury. Id. The jury ultimately convicted Petitioner and the court
sentenced him to thirty-five years’ imprisonment. Id. at p. 44.
Petitioner filed a direct appeal in the Appellate Court of Illinois, arguing the
State violated Batson; trial counsel was ineffective during jury-selection for failing
to request an extra peremptory challenge and permitting Mr. Street to sit on the
jury; and the prosecutor’s closing argument denied Petitioner a fair and impartial
trial under the Sixth Amendment. (Doc. 12, Ex. 1, p. 1). The appellate court

2 of 11

found Petitioner established a prima facie case under Batson and remanded the
case for further proceedings consistent with its ruling. Id. at p. 21. The court
declined to address Petitioner’s remaining arguments. Id.
On remand, the trial court conducted a colloquy prior to the Batson
hearing. (Doc. 12, Ex. 2, p. 44). Petitioner requested the court appoint him a
different attorney, but the court refused. Id. at pp. 44-46. Petitioner told the
judge, “That ain’t my motherfucking attorney.
motherfucking attorney.

Look, you going to give me a

You ain’t about to make me go through no

motherfucking attorney like that.” Id. at p. 46. As the sheriff escorted Petitioner
from the courtroom, Petitioner said, “Yo’ bitch ass – fuck you, bitch. Yo’ momma
a ho. I should bite your punk ass. You stupid bitch.” Id.
Petitioner returned to the courtroom later that day and apologized to the
court. He stated he did not take his bipolar medication and was “really cranky.”
Id. Petitioner’s counsel told the judge Petitioner seemed “to know what he [was]
talking about.” Petitioner cited Batson, so counselor believed he was “alert and
all of that.” Id. Counsel also opined Petitioner understood what was “going on.”
Id. at p. 47. The court proceeded to conduct the hearing and found no Batson
violation. Id.
Petitioner appealed, arguing the trial court should have held a fitness
hearing prior to the Batson hearing; trial counsel was ineffective for permitting
Mr. Street to serve on the jury; the trial court erred when it limited defense
counsel’s examination of Mr. Street; the trial court improperly refused an

3 of 11

instruction on the credibility of police officers; and the prosecutor’s closing
argument violated Petitioner’s Sixth Amendment right to a fair and impartial trial.
Id. at pp. 40-41.
The appellate court held the trial court did not abuse its discretion when it
failed to conduct a fitness hearing sua sponte prior to the Batson hearing, id. at
p. 49; trial counsel was not ineffective for permitting Mr. Street to serve on the
jury, id. at p. 50; and the trial court did not err in refusing a proffered jury
instruction, id. at p. 52. The appellate court found the trial court did err when it
denied counsel the opportunity to question Mr. Street regarding his potential bias.
Id. at p. 51. However, the “overwhelming evidence against defendant” rendered
the error harmless.

Id.

Similarly, the appellate court determined that the

prosecution’s remarks during closing arguments “could be considered improper,”
but, “given the evidence,” the remark did not affect the verdict. Id. at p. 54. The
appellate court affirmed Petitioner’s conviction. Id. at p. 55.
Petitioner filed a petition for leave to appeal (PLA) to the Supreme Court of
Illinois, arguing his trial counsel was ineffective for permitting Mr. Street to serve
on the jury and the trial court erred by limiting counsel’s questions to Mr. Street.
(Doc. 12, Ex. 3, pp. 23-43). The Supreme Court of Illinois denied the petition.
Id. at p. 63.
Petitioner then filed a State post-conviction petition, arguing the following:
(1) The trial court erred in giving a certain jury instruction; (2) he was not
advised of his Miranda rights; (3) he was not given a prompt probable
cause hearing before he was transferred to adult court; (4) failure to prove

4 of 11

guilty beyond a reasonable doubt; and, (5) ineffective assistance of appellate
counsel.
Id. at p. 110. The circuit court denied the petition, opining Petitioner’s claims
were “frivolous and patently without merit.” Id. at p. 120. Petitioner appealed to
the appellate court, arguing that his conviction should be vacated and he was
entitled to a retrial or resentencing due to the unconstitutionality of the automatic
transfer provision of the Juvenile Court Act (705 ILCS 405/5-130) and the truthin-sentencing provisions of the Unified Code of Corrections (730 ILCS 5/3-63(a)(2)(i)). Id. at pp. 64-65. The appellate court affirmed the dismissal. Id.
Petitioner filed a PLA, asserting the same arguments regarding the transfer
provision of the Juvenile Court Act and the truth-in-sentencing provisions of the
Unified Code of Corrections. Id. at pp. 167-79. The Supreme Court of Illinois
denied the PLA on April 29, 2015. Id. at 180.
Petitioner filed the instant petition under 28 U.S.C. § 2254 in August 2015.
(Doc. 1).
Analysis
28 U.S.C. § 2254 permits persons in custody pursuant to a state court
judgment to bring a petition for a writ of habeas corpus “on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a).
Petitioner, here, asserts three grounds for habeas relief: (1) the trial judge
did not properly conduct a Batson hearing on remand; (2) the jury should have

5 of 11

been instructed to consider a lesser-included offense; and (3) his post-conviction
counsel was ineffective.
1. Non-Cognizable Claim
Respondent first asserts the Court must dismiss Petitioner’s claim for
ineffective assistance of post-conviction counsel because it is not cognizable under
§ 2254. Pursuant to 28 U.S.C. § 2254(i), “[t]he ineffectiveness or incompetence of
counsel during Federal or State collateral post-conviction proceedings shall not be
a ground for relief in a proceeding arising under section 2254.” Moreover, there
is no constitutional right to post-conviction counsel. Kitchen v. United States,
227 F.3d 1014, 1018 (7th Cir. 2000).

Accordingly, the Court DISMISSES

Petitioner’s third claim (ineffective assistance of post-conviction counsel) with
prejudice because it is not a basis for habeas relief.
2. Procedural Default
Respondent maintains Petitioner’s remaining claims are procedurally
defaulted. Before a federal court can entertain a petition brought under § 2254,
principles of comity mandate a petitioner give the State a fair opportunity to
address his constitutional claims by “invoking one complete round of the State’s
established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). Under Illinois’ two-tiered appeals process, a petitioner must present his
claims to an intermediate appellate court and to the Illinois Supreme Court, or
throughout State post-conviction proceedings.

6 of 11

Id. at 843-46.

Otherwise, his

claims are procedurally defaulted and he cannot later raise them in a § 2254
petition. Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013).
Here, Petitioner appealed the trial court’s decision following the Batson
hearing but did not set forth any of the arguments contained in the instant
petition.

He argued, in part, that the court should have conducted a fitness

hearing sua sponte prior to the Batson hearing. Here, he asserts the trial court
improperly applied Batson to his case.

These arguments are not sufficiently

similar to save Petitioner’s claim from default. Petitioner did not challenge the
Batson ruling in his PLA to the Supreme Court of Illinois; he argued his trial
counsel was ineffective and the trial court abused its discretion during juryselection.
Petitioner also failed to present his habeas claims throughout one full
round of State post-conviction proceedings. Petitioner filed a petition in Illinois
asserting five grounds for relief.

Petitioner did not attack the Batson ruling,

whatsoever, or make any argument regarding a lesser-included offense. Petitioner
also filed an appeal from the circuit court’s dismissal of his petition, followed by a
PLA to the Supreme Court of Illinois.

None of these filings contained the

arguments at issue here either.
Petitioner has not fairly presented his arguments to the State and,
therefore, his claims are procedurally defaulted.

“Procedural default may be

excused, however, if the petitioner can show both cause for and prejudice from
the default, or can demonstrate that the district court’s failure to consider the

7 of 11

claim would result in a fundamental miscarriage of justice.” Bolton v. Akpore,
730 F.3d 685, 696 (7th Cir. 2013).
3. Cause and Prejudice
Cause for default is generally established when a petitioner can
demonstrate an “external impediment” prevented him from pursuing his claim.
Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010). Meritorious ineffective
assistance of counsel claims may serve as cause to excuse procedural default,
“[b]ut those claims must themselves be preserved.” Richardson, 745 F.3d at 272.
Here, Petitioner asserts his post-conviction counsel was ineffective. While
this claim is not a basis for relief under § 2254, it may serve as cause to excuse
default in narrow circumstances. See Davila v. Davis, 137 S. Ct. 2058, 2062
(2017).

Petitioner’s case, however, does not fall within these narrow

circumstances.

Ineffective assistance of post-conviction counsel can serve “as

cause to overcome the default of a single claim – ineffective assistance of trial
counsel – in a single context – where the State effectively requires a defendant to
bring that claim in state postconviction proceedings rather than on direct appeal.”
Id. at 2062-63.
Petitioner does not allege ineffective assistance of trial counsel in his § 2254
petition. Furthermore, it is doubtful that ineffective assistance of post-conviction
counsel constitutes cause to overcome default in Illinois because Illinois allows
petitioners to raise ineffective assistance claims on direct appeal. See O’Quinn v.

8 of 11

Atchison, 2014 WL 1365455, at *5 (S.D. Ill. Apr. 7, 2014).

Petitioner has

therefore not demonstrated cause for and prejudice from the default.
4. Miscarriage of Justice
The Court may still reach the merits of Petitioner’s claim if dismissing his
petition would result in a fundamental miscarriage of justice. In McQuiggin v.
Perkins, the United States Supreme Court held that “a credible showing of actual
innocence” may overcome procedural default because the Court’s refusal to
consider the petition would result in a “fundamental miscarriage of justice.” 569
U.S. 383, 392-94 (2013).

A showing of actual innocence is “demanding” and

“seldom met.” Id. at 386.
A credible claim of actual innocence “requires petitioner to support his
allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. 298,
324 (1995). The Schlup standard permits habeas review of untimely claims only
in the “extraordinary case” where the petitioner has demonstrated that “more
likely than not, in light of the new evidence, no reasonable juror would find him
guilty beyond a reasonable doubt—or, to remove the double negative, that more
likely than not any reasonable juror would have reasonable doubt.”
Bell, 547 U.S. 518, 538 (2006).

9 of 11

House v.

Here, petitioner does not present any new evidence or otherwise make an
argument under McQuiggin. As such, he cannot meet McQuiggin’s fundamental
miscarriage of justice standard.
5. Certificate of Appealability (“COA”)
Pursuant to Rule 11 of the Rules Governing § 2254 Cases in the United
States District Courts, this Court must “issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” The Court should issue a
certificate only where the petitioner “has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Where the Court dismisses a petition on procedural grounds without
reaching the underlying constitutional issue, the petitioner must show 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, 120 S. Ct. 1595, 1604 (2000). The petitioner must establish both
components for a COA to issue.
Here, it is clear that Petitioner’s petition is procedurally defaulted and he
has not advanced a credible claim of actual innocence within the meaning of
McQuiggin and Schlup.

No reasonable jurist would find the issue debatable.

Accordingly, the Court denies a certificate of appealability.
Conclusion

10 of 11

Marcell Stokes’ Petition for habeas relief under 28 U.S.C. § 2254 (Doc. 1)
is DENIED. The cause of action is DISMISSED WITH PREJUDICE. The Clerk
of Court shall enter judgment in favor of Respondent.

Judge Herndon
2018.01.11
06:47:37 -06'00'

IT IS SO ORDERED.

United States District Judge

11 of 11