Gullens v. Jeffreys

Filing 26

MEMORANDUM AND ORDER. For the reasons stated in the attached Order, Petitioner Delargo L. Gullens' Petition (Doc. 1, Doc. 17) under 28 U.S.C.§ 2254 is DENIED. This cause of action is DISMISSED with prejudice. The Court DECLINES to issue a certificate of appealability. The Clerk of Court should enter judgment accordingly. Signed by Judge David W. Dugan on 9/7/2021. (arm)

Case 3:20-cv-00470-DWD Document 26 Filed 09/07/21 Page 1 of 27 Page ID #1662

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DELARGO L. GULLENS,
Petitioner,
vs.
TERRY GRISSOM, 1
Respondent.

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Case No. 20-cv-470-DWD

MEMORANDUM AND ORDER
DUGAN, District Judge:
Petitioner Delargo L. Gullens, currently incarcerated at Vienna Correctional
Center, is serving a thirty-year sentence for two drug-related offenses (Doc. 25-1, p. 1;
Doc. 25-8, pp. 102-103). He has petitioned this Court for a writ of habeas corpus under
28 U.S.C. § 2254. For the reasons discussed below, the Court will deny his petition.
Background
For the purposes of habeas review, the Court presumes that the state courts' factual
determinations are correct unless Petitioner rebuts this presumption by clear and
convincing evidence, which Petitioner has not done. See 28 U.S.C. § 2254(e)(1); Todd v.
Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The following summary of the facts is derived
from the state court opinions and is supplemented where appropriate from the state court

1The

Clerk is DIRECTED to substitute Terry Grissom, current Warden of Vienna Correctional Center, as
the Respondent in this action, and terminate Rob Jeffreys, pursuant to information provided in
See Federal Rule of Civil Procedure
25(d); Bridges v. Chambers
custodian).

1

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record. See People v. Gullens, 2015 IL App (4th) 130357-U (Mar. 2, 2015) (Doc. 25-1)
People v. Gullens, 2019 IL App (4th)

petition). 2
I.

Trial, Conviction, and Sentencing
State presented testimony from several law-enforcement

officials, and two individuals: Oliva Hester and Jeffrey Harris (Doc. 25-1, pp. 1-2). The
testimony revealed that on August 30, 2012, law-enforcement agents executed a search
warrant on the residential trailer home owned by Olivia Hester (Doc. 25-1). When police

(Id.). Upon entering by force, police arrested three adults later identified as Petitioner,
Jeffrey Harris, and Kayla Freeman (Id.). Police seized 212 plastic bags holding a fine white
powder from the kitchen countertop; the parties later stipulated that this was 15.7 grams
of heroin (Id.).
Olivia Hester, the owner of the trailer home, testified that she lived in the trailer
with Jeffrey Harris and his girlfriend, Kayla Freeman (Doc. 25-1, p. 2). Hester met
Petitioner in May 2012 and began selling Pe

Id.). In
Id.). The heroin was not

2

Relevant portions of the state court record are attached as Doc. 25.

2

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there (Id.). At various times during August 2012, Hester heard Petitioner and Harris
talking about heroin and observed them handling small plastic bags of heroin in her
home (Id.).
Jeffrey Harris, who was arrested with Petitioner on August 30, 2012, testified that
he was introduced to Petitioner in June 2012 by
2). In July 2012, Harris moved in

Id.). Harris initially sold cocaine

that Keith provided, but later sold heroin that Petitioner supplied (Id.). Harris stored the

rent in exchange for her allowing Harris to reside in her home (Id.). Harris kept one third
of the heroin-sale proceeds and gave Petitioner the remainder (Id.). According to Harris,
on August 30, 2012, he and his girlfriend, Freem
home, where Harris observed 20 bags of heroin on the kitchen countertop (Id.). Harris
and Freeman went into a bedroom located

Id.) After

hearing a bang on the front door, Harris exited the bedroom and saw Petitioner sitting at

Id.
under arrest (Id.). Harris stated that his involvement with Petitioner was to sell drugs,
and that Keith and Petition

Id.).

following exchange took place:
[GOLDBERG]: Did you see the police when they came in the house?
[HARRIS]: Yeah.
3

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[GOLDBERG]: And did you ever see them find a bag that you say my client
mysteriously took out of a car?
[HARRIS]: First of all, I never said [defendant] had a bag.
[THE STATE]: Objection.
THE COURT: Hold on. Watch your questions. You are asking questions
assuming facts not in evidence, and even the witness figured it out.
[GOLDBERG]: I was just getting dizzy. [Harris] keeps moving around.
THE COURT: Now that remark is stricken; and that is completely
improper, counsel.
[HARRIS]: Come on, man.
[GOLDBERG]: * * * Did you have occasion on August 31st, 2012, at 5:35
hours to have an audio-videotaped interview on that day?
***
[HARRIS]: Yeah.
[GOLDBERG]: Did you have occasion to tell the officer that my client took
a bag from that house, out of the car into the house?

[GOLDBERG]: You told an officer that my client brought something into
that house?
***
[HARRIS]: They asked me what * * * happened that day, and I told them.
[GOLDBERG]: And you say my client brought a bag in the house?
[HARRIS]: No, I never said bag. * * * [Defendant] told me to pop the trunk;
and [defendant] got something out of the trunk. I don't know what it was.
How could I say it was a bag?
[GOLDBERG]: How could you say it was a bag to the 12 ladies and
gentlemen now if you can't say it then?
4

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THE COURT: Counsel approach.
[HARRIS]: I didn't say it was a bag.
***
(The following proceedings were had outside the hearing of the jury.)
THE COURT: [The court does not] know what the problem is, but you are
saying stuff that was not testified to. There was never any testimony that
[Harris] saw a bag being taken out of the trunk. That's about the fourth time
you've asked [Harris], and he keeps correcting you. * * * [Harris] was asked
and said I don't know what it was, but you keep asking him.
[GOLDBERG]: I thought I heard him say bag. I'll ask him.
THE COURT: Hold on. [The court does not] want one more improper
question from you or [the court] will hold you in contempt. You are doing
nothing but throwing garbage into this trial.
(The following proceedings were had in the presence and the hearing of the
jury.)
THE COURT: The objection is sustaine
(Doc. 25-1, pp. 2-3).
Following Harris' testimony, the State rested, and the jury was released for the
remainder of the day. (Doc. 25-1, p. 3). After the jury left the courtroom, Petitioner moved
for a directed finding, which the court denied

contempt during a trial. I find that this has a very oppressing feeling on the defense for
me trying to advocate for my cl

Id.). The Court responded:

[Y]ou are a much better lawyer than the questions that are coming out of
your mouth today; and you were talking about evidence, or you are asking
questions assuming facts that are not in evidence; and you did it a lot today;
and [the court knows] darn well that you know better than that. So when
you start asking questions assuming facts not in evidence, twisting
5

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evidence, twisting facts, twisting testimony, [the court is] going to get upset;
and [the court is] going to make sure that you understand what the rules
are. You crossed the line when you made that little comment about his
testimony going back and forth. You know you crossed the line then about
* * * Harris's testimony going back and forth. It's rolling all around. I can't
keep track of his testimony.
(Id.
4). The Court explained that

Id.).
The next day Petitioner presented his case, during which Harris also testified
about a telephone conversation he had with Petitioner through a third party on
September 1, 2012 (Id.
Id.). And with regard to Hester, Defendant told Harris to
Id.). Petitioner further directed Harris to tell the
police that Petitioner had no involvement with heroin, and that Petitioner was in the
Id.). As
rebuttal evidence, the Government played a recording of the entire September 1, 2012
phone conversation between Petitioner and Harris (Id.).
The jury convicted Petitioner of possession with intent to deliver a controlled
substance (15 grams or more but less than 100 grams of a substance containing heroin)
and possession of a controlled substance (15 grams or more but less than 100 grams of a
substance containing heroin) (Doc. 25-1, pp. 4-5).

6

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On January 22, 2012, Petitioner filed a motion for a new trial (Doc. 25-1, p. 5; Doc.
in part, that Petitioner was not afforded a

that it was time barred in violation of the 30-day limit mandated in 725 ILCS 5/116-1(b)
Id.; Doc. 25-7, pp. 117-125).
The trial court also addressed the merits of Pe
received a fair trial, that the court was not hostile to defendant or his attorney, and that

and impartiality that it always does while at the same time ensuring both parties followed
the proper rules of evidence and procedure in regard to th
25-1, p. 5).

On March 19, 2013, the trial co

sentenced him to 30 years in prison (Id.; Doc. 25-7, p. 126).
II.

Direct Appeal

Petitioner appealed his conviction and sentence and raised one issue on direct

counsel (Doc. 25-9, pp. 1, 2). 3 In his brief, Petitioner acknowledged that his posttrial
motion first raising this issue was not timely filed, resulting in the forfeiture of the
argument (Doc. 25-1, p. 5). However, he asked the Appellate Court to consider the claim
under the plain-error doctrine, which the Appellate Court did (Doc. 25-1, p. 5). The
Petitioner also filed a pro se Motion for Relief during the briefing on his direct appeal (Doc. 25-1, p. 5). In
this motion, Petitioner argued his sentence was void because the trial court lacked subject-matter
jurisdiction (Id.). However, at oral arguments, Petitioner abandoned this argument on direct appeal (Id.).
3

7

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the evidence presented in this case was

found beyond a reasonable doubt that on August 30, 2012, defendant (1)
possessed 15.7 grams of heroin and (2) was in charge of a distribution
scheme in which he solicited the services of (a) Harris to sell the heroin and
(b) Hester to provide a base of operations from which he could package and
store the heroin. Indeed, the jury could have also reasonably inferred
own words during his September 2012
conversation with Harris, in which defendant pressured Harris to (1) accept

(Doc. 25-1, p. 6). The Appellate Court then concluded that the record in the case
confirmed that Petitioner received a fair trial and that the trial court did not harbor a
hostile attitude toward Petitioner or his trial attorney (Id.). The Appellate Court further

attorney occurred outside of

Id.).

affirming his conviction (Doc. 25-5). The PLA raised one point for reversal:
The Appellate Court erred in not considering petitioner's argument that a
reasonable person could infer from the trial judge's comments toward the
petitioner's attorney on November 26th and 27th, 2012, that she had
communicated with other people about the petitioner's attorney, at a
minimum, without the presence of either the petitioner or his attorney,
thereby creating the appearance of ex parte communications, the appearance
of impropriety, and, consequently, the need for a new trial.
(Doc. 25-5, p. 2). On September 30, 2015, the I
PLA (Doc. 25-2).
8

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III.

State Postconviction Proceedings

In March 2016, Petitioner filed a pro se postconviction petition (Doc. 25-3, p. 1). The
trial court advanced the postconviction petition to a second stage, and counsel was
appointed (Id.
(1) ineffective assistance of counsel and (2) actual innocence based on new evidence (Id.).
Petitioner argued that his trial counsel was ineffective because his attorney: (a) was rude
to the court, (b) failed to visit him while in custody, (c) failed to show him discovery prior
to trial, (d) mispronounced his name during trial, and (e) mispronounced the name of a
city during trial (Doc. 25-3, p. 5).
The trial court conducted evidentiary hearings in September 2017 and May 2018
(Doc. 25-3, pp. 1-2). At these evidentiary hearings, Olivia Hester testified that she had
oc. 25-3, p. 2). Specifically, Hester testified
that Petitioner was not involved with any drug activity, and that Harris was the person
selling heroin out of her trailer (Id.). Hester also testified that an individual named
Richard Felton was at her trailer in August
Id.). Hester also testified that she had been
pressured to implicate Petitioner by Randy Yedlinak, the original prosecutor in

(Id.). Finally, Hester claimed that Harris threatened her before trial and coerced her into
testifying against Petitioner (Id.). On cross-examination, Hester conceded that Petitioner

9

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(Id.). Hester also stated that she had sold heroin in August 2012 and had given a recorded
statement to the police that was consistent with her testimony at trial (Id.).
Richard Felton, Randy Yedinak, and Jeff Hamilton also testified (Id.). Felton was
serving a 75-year consecutive prison sentence for attempted murder and home invasion
(Id.). Felton testified that he packaged and sold the heroin that the police found in
Id.).

Id.). On cross-examination, Felton had difficulty describing the logistics of
his alleged heroin operation (Id.).
Yedinak and Hamilton testified that they did not pressure Hester into implicating
Petitioner (Id.). Yedinak also testified that Hester gave a recorded statement prior to trial
which was consistent with her trial testimony, and which he would have used to impeach
Hester had she changed her testimony at trial (Id.). Yedinak also stated that Hester was
Id.). Hamilton testified that he conducted

the search warrant in April 2012 (Id.). Hamilton testified that he never saw Felton at

conducting surveillance (Id.).
In June 2018, the trial court entered a writ
postconviction petition (25-3, p. 3). The trial court found that

presented at the evidentiary hearing or with the trial evidence, and that Hester was a
10

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biased witness because Petitioner is the father of her child. (Id.). The trial court further
Yedinak, or Hamilton coerced Hester into
testifying against Petitioner (Id.). The trial court also found that Felton and Petitioner
were not credible witnesses, and that Hamilt
and consistent with the trial evidence (Id.). In sum, the trial court concluded that
Petitioner failed to meet his burden on his actual innocence claim (Id.) and also rejected

[D]efendant has failed to demonstrate how the outcome would have been
any different had defense counsel used a different style during the trial or
spent more time preparing the case with defendant. Most of defendant's
complaints are speculative * * *. There is no evidence that * * * the result
would have been any different. * * * [T]he evidence against defendant was
overwhelming and very compelling with multiple eyewitness accounts. * *
* Moreover, defendant has provided only his own self-serving statements
concerning the level of preparation for the trial.
(Id.).
Petitioner appealed the denial of his postconviction petition. On appeal, Petitioner
argued that he was actually innocent, and that his trial counsel was ineffective because
he (a) was unprepared, (b) mispronounced the name of a town, (c) failed to show to a
pretrial hearing, (d) called Petitioner the wrong name in front of the jury, (e) was rude to
the Court, (f) never saw discovery prior to trial, (g) did not visit Petitioner in jail prior to
trial, and (h) failed to timely file a motion to reconsider his sentence (Doc. 25-12; Doc. 253, p. 5). On July 1, 2019, the Illinois Appellate Court for the Fourth District affirmed the

effective assistance of counsel arguments because defendant
11

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failed to demonstrate prejud
deficient performance and how the result of
25-3, p. 5).
The Appellate Court also rejected Petitioner

probably change the resu

6). The Appellate Court reasoned
d that [Petitioner]

was the father of her child after [Petitioner] was convicte

(Doc. 25-3, p. 5). The Appellate Court also

heroin after he was convicted of a different crime and sentenced to a de facto
(Id.). On September 25, 2019, the Illinois Supr
Appeal the denial of his postconviction petition (Doc. 25-4).
In April 2020, Petitioner filed a Motion for Supervisory Order with the Illinois
Supreme Court (Doc. 17). 4 The Motion alleged the following errors: (1) that his trial
counsel was ineffective for failing to object to certain evidence admitted at trial; (2) there
was insufficient evidence to convict petitioner; (3) direct appeal counsel was ineffective;

trial; and (5) his sentence is void and unconstitutional (Doc. 17-1 at p. 2). The Illinois

4

Petitioner filed a duplicate copy of this Motion and Memorandum with this Court (Doc. 17).

12

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Supreme Court denied Petitioner

See Delargo L. Gullens,

v. People State of Illinois. Supervisory Order, Ill. M.D. 014474 (Sept. 29, 2020) 5. Petitioner did
not file a petition for a writ of certiorari with the United States Supreme Court but filed
his federal habeas petition with this Court.
Legal Standard
A habeas petitioner is entitled to a writ of habeas corpus if the challenged state

established federal law as determined by the United States Supreme Court, or if the state
an unreasonable determination of the facts in light of the
evidence presented in the State court procee

the state court confronts facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at a result oppo

Williams v.

Taylor
if the state court correctly identified the legal rule but unreasonably applied the
controlling law to the facts of the case. See id. at 407.
Analysis
The only claim Petitioner asserts in his Petition (Doc. 1) is an actual innocence
claim. However, he raises five additional claims in his Motion for Supervisory Order

5This

Order is
413895a09d0c/file

available

at

https://www.illinoiscourts.gov/resources/25ec8cf3-35c1-44a4-a85e-

13

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(Doc. 17). Respondent concedes that the Petition is timely (Doc. 24, p. 9), and does not

(Doc. 24, p. 10).

However, Respondent objects to the additional claims raised in

claims raised are untimely (Doc. 24). Alternatively, Respondent argues that the claims

present these claims through one complete
review process (Doc. 24, pp. 14-15).
pro se filings
liberally. See Frazier v. Varga, 843 F.3d 258, 262-63 (7th Cir. 2016); Perruquet v. Briley, 390
F.3d 505, 512 (7th Cir. 2004) (citing Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir.
1997) (finding a cognizable claim when a pro se
describe a claim that is within the powe

The five

detail to suggest they are within the power of this Court to address. Accordingly, the
Court will construe the Motion for Supervisory Order and Memorandum (Doc. 17) as a
supplement to the Petition (Doc. 1) and will review those claims as detailed below. The

Ground 1: Petitioner is actually innocent;
Ground 2: There was insufficient evidence to convict Petitioner;
Ground 3: Trial counsel was ineffective;
l denied Petitioner a fair trial;

Ground 4
14

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Ground 5: Direct appeal counsel was ineffective; and
void and unconstitutional.

Ground 6

procedurally defaulted, the Court will not address the timeliness of the additional claims
in this Order. Thompson v. Locke, 2015 WL 5159976, at * 3 (N.D. Ill. Sept. 1, 2015) (Declining
to engage in a timeliness analysis because peti

aims are procedurally

defaulted) (collecting cases); United States ex rel. Harris v. Yurkovich, 2012 WL 6591639, at
*4, ft. 5 (N.D. Ill. Dec. 14, 2012) (Declining to consider timeliness of petition because the
petition fails on the merits). As further detailed below, Grounds 2-6 are procedurally
defaulted, and Ground 1 is not a cognizable claim in this Court.
I.

Procedural Default

Respondent argues that Petitioner procedurally defaulted Grounds 2-6 because he
did not present them through one complete round of state court review
may not grant an application for a writ of habeas corpus from a prisoner being held in
state custody unless the petitioner has exhausted his available state remedies prior to
Gonzales v. Mize, 565 F.3d 373, 380 (7th Cir. 2009) (citing 28 U.S.C.
interests of federal-state comity by giving

Id. (citing Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007). Therefore,

Id. (citing Malone v.
15

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Walls, 538 F.3d 744 (7th Cir. 2008); see also O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999);
Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). When a petitioner has failed to present
his federal claim to the state courts and the opportunity to raise that claim has
subsequently passed, the petitioner has procedurally defaulted the claim and it is not
available for federal habeas review. Id. at 380 (citing Lewis, 390 F.3d at 1026); Perruquet v.
Briley, 390 F.3d 505, 514 (7th Cir. 2004) (Where petitioners have already pursued statecourt remedies and there is no longer any state corrective process available to him, it is
not the exhaustion that stands in the path to habeas relief but rather procedural default).
In Illinois, to fairly present a claim through one complete round of state court
review, Petitioner must have appealed the issue up to and including the filing of a PLA
to the Illinois Supreme Court. O'Sullivan

Lewis, 390 F.3d at 1025-26
and every level in the state court system,

including levels at which review is discretionary rather

Duncan v.

Hathaway, 740 F. Supp. 2d 940, 945 (N.D. Ill. 2010).
Petitioner did attempt to raise Grounds 2-6 by seeking extraordinary relief in the
Illinois Supreme Court. However, the Court has no reason to believe that the Illinois

claims, such that these claims were properly
exhausted through a full round of state-court review. See, Dupree v. Jones, 281 Fed. App'x
559, 560 (7th Cir. 2008) (citing Crump v. Lane,
prisoner who does nothing more after being turned away by the supreme court has not
pursued a full round

(emphasis in original); see also Castille v.
16

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Peoples, 489 U.S. 346, 351 (1989) (unsuccessful request for discretionary leave to file
original action in supreme court does not properly exhaust claim unless court expressly
reviews merits).
Nevertheless, the time for Petitioner to raise these claims has now passed, and
Petitioner is time barred from further pursuing the alleged constitutional errors in a state
post-conviction proceeding. See 725 ILCS 5/122-1(c); see also

, 526 U.S. at 844

(holding that repetitive petitions are not required). Thus, petitioner has cleared the first
procedural hurdle, exhaustion. However, as further detailed below, Grounds 2-6 are
procedurally defaulted because Petitioner did not properly assert his claims at each level
of state court review, or the claims were resolved on an adequate and independent statelaw basis. Gonzales, 565 F.3d at 380; Perruquet, 390 F.3d at 514.
Ground 2: Insufficient Evidence
Petitioner argues that there was insufficient evidence to implicate him at trial
because the testimony offered by Harris and Hester was impeached, uncorroborated, and
only offered after Harris and Hester signed proffered contracts with the Government
(Doc. 17-1, pp. 19-21). Petitioner also states that it was error to admit the recorded phone
call, without providing argument as to why the evidence should not have been admitted
(Doc. 17-1, pp. 20). Petitioner did not raise this specific argument on direct appeal or in
his postconviction proceedings, although this ground closely relates to his arguments
that he was denied a fair trial, which he argued on direct appeal, and is actual innocence
claim, which was adjudicated in his postconviction proceeding.

17

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However, in order to fairly present a claim to the state courts, Petitioner must
make clear to the state courts that he is seeking review of a constitutional claim. See
Malone v. Walls
necessary to support the federal claim were before the state courts, or that a somewhat
Anderson v. Harless, 459 U.S. 4, 7 (1982). Instead,

standards and cases and detailing specific facts. Malone, 538 F.3d at 754; see also White v.
Gaetz, 588 F.3d 1135, 1139 (7th Cir.2009). That was not the case here.
Petitioner did not raise a sufficiency of the evidence claim on direct appeal or in

claim to the Illinois courts. Although the Illinois Appellate Court made statements

indeed sufficient, see Doc. 25-1, p. 6, these statements
error analysis. The Seventh

ned that where a state court

reviews the claim for plain error as the result of a state procedural bar such as the Illinois
Gray
v. Hardy, 598 F.3d 324, 329 (7th Cir. 2010). Therefore, Petitioner did not fairly present,
and it is clear the Illinois courts did not understand, that Petitioner was presenting a
sufficiency of the evidence claim (or any other state, federal, or constitutional claim) for

18

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review apart from his fair trial and actual innocence claims. As such, Ground 2 is
procedurally defaulted.
Ground 3: Trial Counsel was Ineffective
Petitioner argues that his trial counsel
failed to object to improper, inadmissible, irrelevant, excludable, and prejudicial
17-1, p. 3). Petitioner did
not raise these arguments on direct appeal or in his postconviction proceedings. 6 In his
Motion for Supervisory Order (Doc. 17-1) Petitioner states that his direct appeal counsel
failed to raise these issues on appeal, and that he tried to raise these issues in his
postconviction proceeding but his postconviction counsel chose to present different
issues instead (Doc. 17-1, p. 3). The Court finds that Petitioner has procedurally defaulted
his ineffective assistance claim based on these alleged errors. See Snow v. Pfister, 880 F.3d
857, 865 (7th Cir. 2018) (Claims of ineffective assistance are procedurally defaulted where

appeal).

Petitioner argues that the exchange between his trial counsel and the circuit court
(see supra, pp. 4-7) denied him a fair trial. Specifically, Petitioner contends that the trial

Petitioner did assert some other ineffective assistance claims during his postconviction proceedings.
Specifically, Petitioner argued that his trial counsel: (a) was rude to the court, (b) failed to visit him while
in custody, (c) failed to show him discovery prior to trial, (d) mispronounced his name during trial, and (e)
mispronounced the name of a city during trial (Doc. 25-3, p. 5). However, Petitioner did not assert these
issues in his habeas petition, and those
6

19

Case 3:20-cv-00470-DWD Document 26 Filed 09/07/21 Page 20 of 27 Page ID #1681

. 17-1, p. 24). Petitioner raised part of this argument in
a post-trial motion and on direct appeal. Specifically, Petitioner argued that the trial

rejected this argument because it was late, before finding on the merits that Petitioner
received a fair trial (Doc. 25-1, p. 5) 7. The Appellate Court agreed, and further found that

ce (Doc. 25-1, p. 6).
If a state court declines to review a claim because the petitioner failed to satisfy a
state procedural rule, the claim is procedurally defaulted and barred from federal habeas
review if the default constitutes an independent and adequate state ground. Perry v.
McCaughtry, 308 F.3d 682, 688, 690-691 (7th Cir. 2002); Braun v. Powell, 227 F.3d 908, 912
(7th Cir. 2000); Pisciotti v. Washington, 143 F.3d 296, 300 (7th Cir. 1998). Further, where
the state court issues an alternative ruling, relying on both procedural and substantive
grounds, the procedural ground bars federal habeas review. Moore v. Bryant, 295 F.3d
771, 776 (7th Cir. 2002); see Harris v. Reed

adequate state ground that is firmly established and regularly followed. See Smith v.
McKee, 598 F.3d 374, 383 (7th Cir. 2010); Brooks v. Walls, 279 F.3d 518, 523-24 (7th Cir. 2002).
As such, this claim is procedurally defaulted, even though the state courts issued an

he had forfeited this argument because his posttrial

7

motion was not timely filed (See Doc. 25-1, p. 5).

20

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alternative ruling relying on substantive grounds. Moore, 295 F.3d at 776; Braun, 227 F.3d
at 912; see also Gray, 598 F.3d at 329 (Where state court reviews for plain error as part of
waiver analysis, is not a decision on the merits).
Further, even if this claim was not procedurally defaulted, this Court is

esence. When considered in light of the
other evidence in the record,

t have made it more likely

than not that no reasonable juror would have found Petitioner guilty beyond a reasonable
doubt. Given the previously detailed evidence that was before the jury, this Court cannot

opinion. The state court applied the correct
standard here and its application of established precedent was reasonable. Accordingly,
Ground 4 does support habeas relief.
Ground 5: Direct Appeal Counsel was Ineffective
Petitioner did not raise Ground 5 in his direct appeal or during his postconviction
proceedings. In his Motion for Supervisory Order, Petitioner states that he tried to raise
this issue during his postconviction proceedings, but his postconviction counsel chose to
bring different issues in those proceedings instead (Doc. 17-1, p. 3).

Accordingly,

Petitioner did not fairly present Ground 5 to the Illinois Courts, and it is procedurally
defaulted. See Snow, 880 F.3d at 865.
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Case 3:20-cv-00470-DWD Document 26 Filed 09/07/21 Page 22 of 27 Page ID #1683

Ground 6: Void and Unconstitutional Sentence
Petitioner argues that his sentence is void and unconstitutional. Petitioner briefly
argued that his sentence was void for a lack of subject-matter jurisdiction in a pro se
postconviction motion filed before the oral arguments in his direct appeal (Doc. 25-1, p.
5). However, at oral arguments, Petitioner abandoned this argument on appeal, so the
appellate court did not address this issue (Id.). As with Ground 4 above, if a state court
declines to review a claim because the petitioner failed to satisfy a state procedural rule,
the claim is procedurally defaulted and barred from federal habeas review if the default
constitutes an independent and adequate state ground. Perry, 308 F.3d at 688, 690-691
(7th Cir. 2002); Braun, 227 F.3d at 912; Pisciotti, 143 F.3d at 300. Here, the Appellate Court
clearly held that Petitioner abandoned this issue. Abandonment resulting in waiver is an
independent and adequate state ground under Illinois law. See United States ex rel. Easley
v. Hinsley, 305 F.Supp.2d 867, 883 (N.D. Ill. 2004).

Therefore, Ground 6 is also

procedurally defaulted.
II.

Excuse of the Defaults

Petitioner may nonetheless pursue a procedurally defaulted claim if he can
establish cause for the default, and actual prejudice as a result of the alleged violation of
federal law, or can demonstrate that the Court's failure to consider the claim will result
in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750,
(1991); Johnson v. Loftus
objective factor external to the defense impeded [the petitioner's] efforts to comply with
Strickler v. Greene, 527 U.S. 263, 283 n.24, (1999) (internal
22

Case 3:20-cv-00470-DWD Document 26 Filed 09/07/21 Page 23 of 27 Page ID #1684

citation and markings omitted); Lewis, 390 F.3d at 1025. Prejudice exists where the
actual and
substantial disadvantage, infecting his entire trial with error of constitutional
Lewis, at 1026 (quoting United States v. Frady, 456 U.S. 152, 170, (1982)).
The fundamental miscarriage of justice exce
the constitutional violation has probably resulted in a conviction of one who is actually
Dellinger v. Bowen, 301 F.3d 758, 767 (7th Cir. 2002). This requires new, reliable
evidence of the petiti
Woods v. Schwartz, 589
F.3d 368, 377 (7th Cir. 2009) (quoting Schlup v. Delo
standard is fundamentally different, and lower, than that for a substantive innocence
claim because the procedural claim of innocence is accompanied with an assertion of
Coleman v. Hardy, 628 F.3d 314, 319 (7th Cir. 2010) (citation
and internal markings omitted).
Petitioner does not argue cause and prejudice. However, he does assert an actual
innocence claim based on the same evidence he presented during his postconviction

the heroin in this case was not his; and therefore, he is actually innocent. An actual

acting reasonably, would have voted to find [the petitioner] guilty beyond a reasonable
Woods, 589 F.3d at 377. The Court cannot say that no reasonable jury would find

23

Case 3:20-cv-00470-DWD Document 26 Filed 09/07/21 Page 24 of 27 Page ID #1685

Petitioner guilty even with this testimony from Hester and Felton, particularly in light of
the other evidence in the record, includ

case. See Hayes v. Battaglia

(six additional alibi witness

affidavits not sufficient to support an actual innocence claim against six prosecution
witnesses); see also Smith v. McKee, 598 F.3d 374, 388 (7th Cir. 2010) (finding affidavits of

eyewitnesses and a self-incriminating statement); Carter v. Ryker, 2011 WL 589687, at *6
(N.D. Ill. Feb. 9, 2011) (affidavit from shooter that petitioner was not involved (among
other new evidence) was not enough for actual innocence, when petitioner presented
same defense at trial).

this new evidence. Petitioner has defaulted Claims 2-6, and they are unreviewable by this
Court.
III.

Ground 1: Actual Innocence

affidavit and the testimony from Felton and Hester presented during his state
postconviction hearings. Respondent argues that the Seventh Circuit does not recognize
claims of actual innocence based on newly discovered evidence.
Respondent argues that because the Illinois Appellate Court rejected
24

Alternatively,

Case 3:20-cv-00470-DWD Document 26 Filed 09/07/21 Page 25 of 27 Page ID #1686

innocence claim on the merits, and the United States Supreme Court has not yet decided
whether actual innocence implicates a constitutional right, the state court cannot be said
to have unreasonably applied clearly established federal law under § 2254(d)(1). Finally,
Respondent argues that Petitioner cannot meet the high standard that the Supreme Court
has suggested would apply in actual innocence cases, if such claim was recognized here.
In Herrera v. Collins, the Supreme Court held that a claim of actual innocence based

independent constitutional violation occurring in the underlying state criminal
Herrera, 506 U.S. 390, 400 (1993). Since Herrera, the Supreme Court has
actual innocence can
be the basis for federal habeas relief. McQuiggin v. Perkins
have not resolved whether a prisoner may be entitled to habeas relief based on a
Dist. Attorney's Office for Third Judicial Dist. v.
ral right exists is an open question.

Osborne

We have struggled with it over the years, in some cases assuming, arguendo, that it exists
while also noting the difficult questions such a right would pose and the high standard

However, courts in this Circuit recognize Herrera and routinely reject actual
innocence claims. See Newkirk v. Anglin, 2014 WL 2110224, at *3 (N.D. Ill. May 20,
at actual innocence is not itself a
constitutional claim, but instead a gateway through which a habeas petitioner must pass

25

Case 3:20-cv-00470-DWD Document 26 Filed 09/07/21 Page 26 of 27 Page ID #1687

quotation marks omitted)); United States ex rel. Newell v. Chandler, 2009 WL 3366971, at *2
of actual innocence, as Petitioner asserts
in ground one, is not itself a constitutional claim cognizable on habeas

Milone v.

Camp
to hold that it is unconstitutional to execute a legally and factually innocent person, while
at the same time suggesting that the petitioner's evidentiary burden in such a case would
nal citations and quotations omitted)).
Although a claim of actual innocence may sometimes excuse procedural default, as
discussed above, it does not stand as its own claim for federal habeas relief. Therefore,
claim of actual innocence.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, this Court must
en it enters a final order adverse to the
only where the peti
substantial showing of the denial of a constitution
requirement has been interpreted by the Supreme Court to mean that an applicant must

Slack v. McDaniel, 529 U.S. 473, 484 (2000); Buck
v. Davis, 137 S. Ct. 759, 773 (2017). Petitioner need not show that his appeal will succeed,
Miller-El v. Cockrell, 537 U.S. 322, 337 (2003), but he must

more than the
Id. at 338 (quoting

Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
26

Case 3:20-cv-00470-DWD Document 26 Filed 09/07/21 Page 27 of 27 Page ID #1688

For the reasons detailed above, the Court has determined that Petitioner has not
stated any grounds for habeas relief. No reasonable jurist would find it debatable whether

Accordingly, the Court DENIES a certificate of appealability.
Conclusion
Petition (Doc. 1, Doc. 17) under 28 U.S.C.
§ 2254 is DENIED. This cause of action is DISMISSED with prejudice. The Clerk of
Court shall enter judgment accordingly.
SO ORDERED.
Dated: September 7, 2021
_____________________________
DAVID W. DUGAN
United States District Judge

27