In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-3881

VOLNEY MCGHEE,

Petitioner-Appellant,

v.

CAMERON WATSON, Warden,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 13 C 706 — John Robert Blakey, Judge.

____________________

ARGUED SEPTEMBER 7, 2017 — DECIDED AUGUST 17, 2018

____________________

Before WOOD, Chief Judge, and BAUER and SYKES, Circuit 

Judges.

SYKES, Circuit Judge. In 2002 an Illinois jury convicted 

Volney McGhee of murder and attempted murder after he 

shot two men outside a Chicago gas station. McGhee’s 

defense attorney asked the trial judge to poll the jury after 

the guilty verdict was read. The judge said, “[a]ll right,” but 

inexplicably did not conduct the poll. Instead, he simply 

thanked the jurors and dismissed them. That was error: In 
2 No. 15-3881

Illinois a criminal defendant “has the absolute right to poll 

the jury after it returns its verdict.” People v. McGhee, 

964 N.E.2d 715, 719 (Ill. App. Ct. 2012). Yet defense counsel 

did not object when the judge moved directly to his closing 

remarks without conducting the poll. Nor did he raise the 

issue in a posttrial motion. McGhee’s appellate lawyer

likewise failed to challenge the error on direct review. 

McGhee’s conviction was affirmed on appeal and in state 

collateral review. He then sought habeas relief under 

28 U.S.C. § 2254. The district judge denied the petition. On 

appeal McGhee raises three claims under Strickland v. 

Washington, 466 U.S. 668 (1984), related to the judge’s failure 

to poll the jury: (1) his trial counsel was ineffective for failing 

to object to the judge’s jury-polling error; (2) his appellate 

counsel was ineffective for failing to raise the judge’s error 

on appeal; and (3) his appellate counsel was ineffective for 

failing to challenge trial counsel’s failure to preserve the 

polling error. 

McGhee’s first two claims are waived because he did not 

present them in his § 2254 petition. The third is procedurally 

defaulted. McGhee failed to present it through one complete 

round of state-court review, and the ineffective assistance of 

postconviction counsel is not cause to excuse a defaulted

claim that appellate counsel was constitutionally ineffective.

Davila v. Davis, 137 S. Ct. 2058, 2063 (2017). We therefore 

affirm the judgment.

I. Background

In March 1999 Melvin Thornton and Michael Hopson 

were shot outside a gas station in Chicago. Thornton died 

from his wounds but Hopson survived. He and another 
No. 15-3881 3

eyewitness later identified McGhee as the shooter and 

McGhee’s red Oldsmobile as the getaway car. Hopson also 

reported that McGhee used a .40-caliber pistol to shoot him 

and Thornton. A forensic expert confirmed that a bullet and 

five casings recovered at the scene were .40 caliber and the 

casings were fired from the same weapon.

McGhee was charged with the murder of Thornton and 

the attempted murder of Hopson. A jury found him guilty 

on both counts. After the clerk read the verdict, McGhee’s 

counsel stated: “I want them polled, Judge.” The judge 

responded, “[a]ll right,” but then simply thanked the jurors 

and dismissed them without conducting the poll. McGhee’s 

counsel neither objected nor raised the mistake in a posttrial 

motion. The judge imposed concurrent prison sentences of 

30 and 40 years.

On direct appeal McGhee raised several claims, but he 

did not challenge the judge’s polling error. The state appellate court affirmed, and McGhee petitioned the Illinois 

Supreme Court for leave to appeal. Again he did not raise 

the jury-polling issue. The state supreme court denied the 

petition, and the U.S. Supreme Court denied McGhee’s 

subsequent petition for certiorari.

McGhee then filed a pro se postconviction petition in 

state court, which he later amended with the aid of counsel. 

The amended petition raised several issues, including the

three claims he raises in this appeal: (1) trial counsel was 

constitutionally ineffective for failing to object to the judge’s 

polling error; (2) appellate counsel was ineffective for failing 

to raise the judge’s error on direct appeal; and (3) appellate 

counsel was ineffective for failing to challenge trial counsel’s 
4 No. 15-3881

ineffectiveness for failing to preserve the error. The judge

dismissed the petition without an evidentiary hearing.

McGhee appealed on several grounds but raised only the 

second claim regarding the polling error: he argued that 

appellate counsel was ineffective for failing to raise the trial 

judge’s error on direct review. See McGhee, 964 N.E.2d at 719.

The Illinois Appellate Court rejected the claim on the merits, 

reasoning that the unpreserved error did not satisfy Illinois’s 

plain-error doctrine. Id. The appellate court also expressly 

noted that McGhee “does not argue that his trial counsel was 

ineffective for failing to preserve the issue.” Id. at 720 n.2. 

The appellate court thus affirmed the dismissal of McGhee’s 

petition.

McGhee once again sought review in the Illinois 

Supreme Court, this time including all three postconviction 

claims related to the polling error. The court declined review. McGhee followed up with a second petition, which 

was returned to him unfiled.

McGhee then moved his case to federal court, filing a pro 

se § 2254 petition raising three grounds for relief. Only the 

third ground dealt with the jury-polling error: McGhee 

alleged that appellate counsel was ineffective for failing to 

challenge trial counsel’s ineffectiveness for failing to preserve the error. The district judge concluded that this claim 

was procedurally defaulted and the two unrelated claims 

lacked merit. He accordingly denied relief and declined to 

issue a certificate of appealability. McGhee timely appealed.

We granted a certificate of appealability on the issue of

“the denial of [McGhee’s] right to effective assistance of 

appellate counsel in not raising both the trial court’s failure 
No. 15-3881 5

to poll the jury and trial counsel’s failure to challenge that 

error.” We later amended the certificate to include “the 

performance of his trial counsel on any ground preserved in 

the state system.”

II. Discussion

On appeal McGhee raises three Strickland-based claims, 

each related to the trial judge’s failure to poll the jury. He 

argues that (1) his trial counsel was constitutionally ineffective for failing to preserve the judge’s polling error; (2) his 

appellate counsel was ineffective for failing to raise the 

judge’s error on direct appeal; and (3) his appellate counsel 

was ineffective for failing to challenge trial counsel’s ineffectiveness for failing to preserve the error.

The State argues that McGhee waived the first two claims

and we agree. To preserve these claims, McGhee first needed 

to present them to the district judge in his § 2254 petition. See

Johnson v. Hulett, 574 F.3d 428, 432 (7th Cir. 2009). He was 

not required to articulate the claims with lawyerly precision

because we construe pro se petitions “liberally.” Ambrose v. 

Roeckeman, 749 F.3d 615, 618 (7th. Cir. 2014). Even when 

liberally construed, however, McGhee’s petition did not 

present these claims for relief. 

The petition alleged only one claim related to the jurypolling error: “Appellate counsel’s performance was deficient because he did not raise the issue of trial counsel’s 

ineffectiveness in failing to preserve the polling issue for 

appeal.” McGhee never alleged that trial counsel was ineffective for failing to preserve the judge’s error or that appellate counsel was ineffective for failing to raise the judge’s 

error on direct appeal. These are separate and independent 
6 No. 15-3881

Strickland-based claims. See Lewis v. Sternes, 390 F.3d 1019, 

1026 (7th Cir. 2004) (“[A]n assertion that one’s counsel was 

ineffective for failing to pursue particular constitutional 

issues is a claim separate and independent of those issues.”). 

McGhee’s failure to raise them in his § 2254 petition is a 

waiver.

McGhee responds that he alleged facts related to both

claims and that should be sufficient to preserve them. We 

disagree. The petition recites that McGhee’s state-court

petition for collateral relief alleged that the “trial court erred 

in not polling the jury,” that “appellate counsel was ineffective for not raising the issue,” and that “trial counsel was 

ineffective for not preserving the error for review.” Read in 

context, however, these statements merely describe

McGhee’s state-court petition in an effort to show that his

third ground for § 2254 relief—the claim his habeas petition 

actually raised—was adequately presented in state court. The

statements are not distinct claims for relief.

McGhee also points out that he invoked Strickland as the

proper legal standard for ineffective-assistance-of-counsel 

claims. Simply citing Strickland is not enough. McGhee had 

to articulate how his counsel failed him in order to alert the 

district judge and the State of the specific grounds for relief 

under § 2254.

Finally, McGhee notes that the first and second claims 

“were apparent from the record and his [state-court] petition 

for postconviction relief.” But McGhee needed to present 

them to the district judge in his § 2254 petition. Having 

failed to do so, he may not raise them here. See Johnson, 

574 F.3d at 433.
No. 15-3881 7

That leaves McGhee’s third claim: that his appellate 

counsel was ineffective for failing to raise trial counsel’s 

ineffectiveness regarding the polling error. This claim was

squarely presented in McGhee’s § 2254 petition. It nevertheless fails because it was procedurally defaulted. A habeas 

petitioner “must assert his federal claim through one complete round of state court review, either on direct review or 

in post-conviction proceedings.” Bolton v. Akpore, 730 F.3d 

685, 694 (7th Cir. 2013) (citing Pole v. Randolph, 570 F.3d 922,

934 (7th Cir. 2009)). McGhee failed to raise this claim either 

on direct appeal or in his postconviction appeal, so the claim 

is procedurally defaulted.

McGhee maintains that his postconviction appellate brief

adequately raised the claim. There he specifically raised only 

appellate counsel’s failure to challenge the judge’s jurypolling error and unrelated errors by trial counsel. He

argued that “the trial court’s failure to poll the jury upon 

request was an error so fundamental it required a reversal of 

[his] convictions” and cited to the record where trial counsel 

failed to object to the judge’s error. Finally, in his reply brief, 

McGhee faulted his appellate counsel in nonspecific, conclusory terms “for not adequately challenging trial counsel’s 

representation and failing to raise issues [that] would have 

resulted in reversal of [his] convictions and a new trial.”

None of these statements adequately presented this claim

to the state appellate court. McGhee had to do more than

generally allege ineffective assistance of counsel or broadly 

challenge the underlying jury-polling issue. Johnson, 574 F.3d 

at 432 (“A bare mention of ineffective assistance is not 

sufficient to avoid a procedural default ... .); Pole, 570 F.3d at 

937–38 (“Simply referring to the gunshot residue test, of 
8 No. 15-3881

course, is not enough to preserve” the issue of counsel’s 

failure to present the test.). He needed to present both the 

operative facts and the legal principles that control the claim 

in a manner that would sufficiently alert the state court to 

the issue. Hicks v. Hepp, 871 F.3d 513, 530–31 (7th Cir. 2017); 

see also Johnson, 574 F.3d at 431; Pole, 570 F.3d at 934. He did 

not do so. It’s worth repeating that the state appellate court 

specifically noted that McGhee “does not argue that his trial 

counsel was ineffective for failing to preserve the issue.” 

McGhee, 964 N.E.2d at 720 n.2. Trial counsel’s ineffectiveness

on this issue was neither a stand-alone Strickland claim nor a 

factual basis for appellate counsel’s ineffectiveness.

In a last-ditch effort to save this claim, McGhee argues 

that the procedural default should be excused because his 

postconviction counsel was constitutionally ineffective for 

failing to raise this claim. After this appeal was briefed, 

however, the Supreme Court held that ineffective assistance 

of postconviction counsel does not provide cause to excuse 

the procedural default of claims challenging the ineffective 

assistance of appellate counsel. Davila, 137 S. Ct. at 2063. In 

light of Davila, McGhee’s fallback argument cannot succeed. 

AFFIRMED.
No. 15-3381 9

WOOD, Chief Judge, concurring in the judgment. While I 

agree with my colleagues that Volney McGhee’s petition for a 

writ of habeas corpus under 28 U.S.C. § 2254 must be denied, 

I reach that result for narrower reasons than they. I would rest 

more heavily on procedural default than waiver, and I would 

draw a distinction between the standards that apply to our 

consideration of the proceedings in the state courts and those 

that apply to our review of the district court. Although that 

distinction does not call for a different result in the present 

case, it may be important in the future.

As the majority notes, McGhee is raising layered claims 

about one underlying error: the state trial judge’s failure to 

poll the jury after it returned its verdict. At the first layer, 

McGhee asserts that his trial lawyer rendered ineffective assistance of counsel, as that is understood by Strickland v. Washington, 466 U.S. 668 (1984), when he failed to object to this 

omission at the crucial time. Second, he argues that his appellate counsel was ineffective for failing to raise the trial court’s 

error in failing to poll the jury as a point on appeal. Finally 

(layer three), he argues that his appellate counsel was ineffective for failing to argue that trial counsel was ineffective for 

failing to complain about the missing poll. The majority concludes that the first two arguments were waived and the third 

was procedurally defaulted.

Claim One. My colleagues hold that McGhee failed entirely 

to present in the district court his claim that trial counsel was 

ineffective for failing to complain about the lack of a poll, in 

which case there is a full-blown waiver of the point. I regard 

this as a close question. But bearing in mind the rule that pro 

se filings are “to be liberally construed,” I would not saddle 

McGhee with waiver. Erickson v. Pardus, 551 U.S. 89, 94 (2007) 
10 No. 15-3881

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). This court 

was willing to issue a certificate of appealability for McGhee 

on all three facets of his polling claim, after all. In the same 

spirit, I would approach this case from the standpoint of procedural default, based on McGhee’s failure adequately to present this point at the state appellate level.

At the post-conviction stage in the state trial court, 

McGhee clearly raised the argument that trial counsel was ineffective for failing to challenge the court’s failure to poll the 

jury. In the state appellate court, however, he confined himself to a complaint about his appellate counsel. Then, in his 

petition for leave to appeal before the Illinois Supreme Court, 

he raised all three points that are now before us. In his handwritten petition before the federal district court in the current 

proceedings, however, he was once again inconsistent. A 

straightforward reading of his headings indicates that he was 

complaining only about his appellate counsel’s ineffective assistance for failing to raise the polling issue on appeal. Supplemental Appendix (“SA”) 6. But later in the petition, he 

challenges the state appellate court’s understanding that he 

was not arguing about the effectiveness of his trial counsel. SA 

36. McGhee contended that he did raise the claim about trial 

counsel and insisted that it was not defaulted. SA 37. It is far 

more likely that he failed to recognize the nuances among 

these different claims and thought that he was presenting everything that he needed to both the state courts and the federal 

court. Compare Malone v. Walls, 538 F.3d 744, 753–55 (7th Cir. 

2008) (holding that petitioner exhausted claim of trial counsel’s ineffectiveness even though he specifically asserted only 

appellate counsel’s ineffectiveness). Still, McGhee’s failure to 

raise this claim in his state-court appeal precludes our review. 
No. 15-3881 11

Though in narrow instances procedural default can be overcome, McGhee has failed to make the necessary showing—

that is, cause and prejudice. See Davila v. Davis, 137 S. Ct. 2058, 

2062 (2017); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

In this connection, I believe that it is important to distinguish between the clarity with which a petitioner raises his 

arguments before the state courts and the standard that applies to a petition under 28 U.S.C. § 2254 in the federal district 

court. The Supreme Court has held that the state courts 

should not have to dig through the record to find each claim 

a petitioner might be trying to press. See Baldwin v. Reese, 541 

U.S. 27, 31 (2004). In deference to the state courts, federal 

courts must therefore pay close attention to the “fair presentment” aspect of a habeas corpus petition and reject as procedurally defaulted any claims that are not properly presented. 

If a state court has no idea that a particular claim is being 

raised, it has no reason to address that claim. The same comity 

concern does not apply once we reach the federal-court stage. 

There, the rules governing pro se petitions come into play, and 

the federal court has more leeway to structure its own proceedings.

Claim Three. My colleagues find this claim to be procedurally defaulted. I agree with them on that point, and to that 

extent I join the opinion.

For these reasons, I concur in the judgment of the court.