UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ALPHONSO SAVAGE, )

Petitioner, )

) 12 C 1802

v. )

) Judge Joan H. Lefkow

BRADLEY ROBERT, )

Respondent. )

OPINION AND ORDER

Pro se petitioner Alfonso Savage (prisoner number R14393), who is currently

incarcerated in the Centralia Correctional Center, is serving a 20-year sentence for felony

murder. He has petitioned this court for a writ of habeas corpus under 28 U.S.C. § 2254. For the

following reasons, the petition is denied.

BACKGROUND

The court will presume that the state court’s factual determinations are correct for the

purposes of habeas review as Savage neither contests them nor points to clear and convincing

evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th

Cir. 2002). The court thus adopts the state court’s recitation of the facts, and begins by

summarizing this case’s protracted procedural posture and facts relevant to the petition.

A. State Direct Proceedings

1. Savage’s Trial

During a jury trial in the Circuit Court of Cook County, the state contended that on

November 8, 1999, Quincy Birts and his girlfriend, Diane Gordon, returned to their apartment on

Chicago’s South Side. A white Jeep Cherokee was parked in their parking space. As they

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approached the apartment, a masked man accosted Birts, and another masked man with a gun

forced Gordon into the Jeep. The assailant robbed Gordon and allowed her to leave the Jeep

approximately eight blocks from the apartment. Gordon called her landlord, who had witnessed

the initial attack, and the landlord called the police. Gordon also flagged down police officers on

the street, who drove her back to her apartment building.

As the sound of gunshots rang out from the second floor, additional plainclothes officers

arrived on the scene and approached the apartment’s door. The officers announced themselves

and Birts opened the door holding a gun. An officer fatally shot Birts after he failed to heed the

officers’ command to drop his gun and, instead, moved towards the officers with his gun raised. 

Another officer heard noises coming from the apartment’s back porch. Police found

Savage leaning against a rail near the bottom of the back stairs with his hands in the pockets of

his black leather jacket. After repeatedly commanding Savage to show his hands, Savage

withdrew his hands from his pockets and credit cards and a license fell to the ground. Savage

told the officers that he had been shot so the officers helped him remove his jacket and

discovered jewelry inside. The officers took Savage to the hospital and upon arrival, searched

Savage’s clothing. They found a Mitsubishi car key, a watch, a gold chain and cross, and $51;

Gordon later identified these items as belonging to her and Birts.

Savage testified in his own defense. According to Savage, on the date of the incident, he

was walking to the liquor store with two women when he was attacked and forced up the stairs

of a two-flat into an apartment. A man robbed and beat him, hit him with a gun, and shot him as

he fled from the apartment. As Savage tried to exit the building via the back stairs, he

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encountered police officers who directed him to an ambulance. Savage suffered a bullet graze

wound, two gunshot wounds, and numerous wounds on his head requiring staples and stitches.

The parties agreed that the pattern instructions did not adequately address the felony

murder charge. After considering counsel’s submissions, the trial court gave the following

instruction for felony murder: “A person commits the offense of first degree murder when he

commits the offense of robbery and during the commission of the offense of robbery he sets in

motion a chain of events which cause [sic] the death of an individual.” People v. Savage, No. 1-

02-2596, at 11 (Ill. App. Ct. May 14, 2004) (unpublished order). The jury found Savage guilty

of the felony of robbing Birts and thus found him guilty of felony murder based on Birts’s death. 

In connection with Gordon’s abduction immediately before Birts’s death, the jury acquitted

Savage of armed robbery based on an accountability theory. The trial court sentenced Savage to

a 20-year term of imprisonment.

2. Savage’s Direct Appeal

Savage raised the following issues on appeal: (1) the State failed to prove him guilty

beyond a reasonable doubt because Birts’s death was not a reasonably foreseeable consequence

of the robbery and Birts’s act of threatening the officers with his gun was an intervening cause;

(2) the trial court erred in giving a non-Illinois Pattern Jury Instruction on felony murder; (3) the

trial court erred when it prohibited him from presenting prior consistent statements he made to

the police on the night of the murder; and (4) portions of the State’s closing argument denied

him a fair trial. On May 14, 2004, the Illinois Appellate Court affirmed. Savage filed a petition

for rehearing on June 4, 2004, which was denied on June 23, 2004.

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Savage filed a petition for leave to appeal (“PLA”) with the Illinois Supreme Court

arguing that his conviction and the non-IPI jury instructions given at trial both incorrectly relied

on “but for” causation (i.e., did Savage “set[] in motion a chain of events” leading to Birts’s

death). People v. Savage, No. 1-02-2596, at 11. According to Savage, the lower courts should

have also considered whether Birts’s death met the foreseeability requirements for proximate

cause. See PLA, People v. Savage, No. 98797 (Ill.) (Dkt. 15-4, Ex. J).1 On October 6, 2004, the

Illinois Supreme Court denied the PLA. On April 19, 2005, Savage filed a motion to reconsider

the denial of his PLA. On May 12, 2005, the Illinois Supreme Court granted the motion, vacated

the denial of the PLA, and took the PLA back under advisement. Without further briefing, the

court denied the PLA on September 27, 2006.

B. Savage’s State Post-Conviction Proceedings

Meanwhile, on April 5, 2005, Savage filed a pro se post-conviction petition pursuant to

725 ILL. COMP. STAT. § 5/122-1, et seq. In his petition, Savage argued:

1. Trial counsel was ineffective for failing to inform him of his right to request a

lesser included offense jury instruction about the predicate offense of robbery;

2. Trial counsel was ineffective for failing to present an “overt withdrawal” and

“termination of the felony” defense because after fighting with Birts, he “verbally

and physically acknowledged defeat discontinuing any form of struggle or act of

aggression” and left Birts “restored to his sense of safety” and willing to open the

door to his apartment when the plainclothes officers arrived;

1

 In his answer, the respondent contends that Savage raised a single issue in his PLA: “the

non-IPI jury instructions given at trial stated the incorrect standard for felony murder under Illinois law,

as set forth in People v. Lowery, 687 N.E.2d 973 (Ill. 1997).” Answer at 5. The court believes that this

reading of the PLA is too circumscribed. It is true that in his PLA, Savage challenged the jury

instructions. However, he did so as part of a broader challenge to the trial court’s use of “but for”

causation. PLA, People v. Savage, Dkt. 15-4, Ex. J at 12 (“Because the lower courts are exhibiting

confusion over whether felony murder requires more than simple ‘but for’ causation, and because the

facts of this case do not meet the foreseeability requirements of proximate cause, this Court should grant

leave to appeal in order to clarify the essential elements of this serious offense.”). 

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3. The prosecution’s failure to disclose that State witness Diane Gordon had

criminal charges pending against her at the time of her testimony, its decision to

delay filing an arrest warrant against Gordon until after she testified, and its

failure to disclose that Gordon had a prior conviction for credit card fraud

violated his Fourteenth Amendment due process rights;

4. The prosecution failed to disclose its agreement to seek leniency in sentencing for

Gordon’s pending criminal cases in return for her testimony at his trial; and

5. His due process rights were violated when the prosecution impeached him “by

omission” as part of its rebuttal case by calling a police officer to testify about

notes summarizing another officer’s interview of him but refusing to admit the

notes into evidence.2 

The trial court summarily dismissed the petition. Savage appealed, arguing: (1) the trial

court failed to consider his claims adequately because its order discussed facts and witnesses

from another case; (2) he was entitled to a second-stage proceeding because the trial court did

not examine his petition within 90 days after filing, in violation of Illinois law; and (3) the trial

court’s treatment of his petition demonstrated that it should be remanded for proceedings before

a different judge. People v. Savage, No. 1-05-4055 (Ill. App. Ct.) (Dkt. 15-4, Ex. P) (Savage’s

opening appellate brief).3 The Illinois Appellate Court remanded for second stage postconviction proceedings. People v. Savage, No. 1-05-4055 (Ill. App. Ct. May 11, 2007)

(unpublished order). 

On remand, the court appointed counsel, who filed a supplemental post-conviction

petition incorporating all of the claims from Savage’s original pro se petition and elaborating

2

 In various parts of the record, Savage argues that the State called a single officer or two officers

to testify about the notes. As it does not affect the outcome, the court will refer to a single officer for the

sake of consistency.

3

 The court notes that although the respondent correctly cited to Savage’s appellate brief, his

summary of Savage’s arguments on appeal does not track the arguments listed in the appellate brief. See

Answer at 6 (Dkt. 14).

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upon Savage’s claim that the State withheld evidence about Diane Gordon that would have been

favorable to the defense. Savage also filed a supplemental pro se petition repeating his original

claims and adding two new claims of ineffective assistance. Specifically, Savage argued his trial

counsel was ineffective for (1) failing to cross-examine witnesses about music playing in the

apartment immediately prior to Birts’s death; and (2) failing to file pre-trial motions to suppress

evidence and quash his arrest since no physical evidence linked him to the gun found in the

apartment and he was attempting to flee from the apartment after being robbed and beaten. 

The circuit court again dismissed the petition. Savage appealed, arguing that trial

counsel was ineffective for (1) failing to request a jury instruction for the lesser-included offense

of robbery; and (2) failing to file a pretrial motion to suppress evidence and quash his arrest. On

December 2, 2010, the Illinois Appellate Court affirmed. People v. Savage, No. 1-09-2821 (Ill.

App. Ct. Dec. 2, 2010) (unpublished order). Savage filed a PLA challenging the Illinois

Appellate Court’s rejection of his ineffective assistance claim based on trial counsel’s failure to

request a lesser included offense jury instruction based on its holding that his post-conviction

petition was procedurally deficient because it relied exclusively on his own affidavit. The

Illinois Supreme Court denied the PLA on March 30, 2011.

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C. Savage’s § 2254 Petition

On March 12, 2012, the court received Savage’s petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. In his petition, Savage argues:4

 

A. The trial court erred in issuing non-IPI jury instructions regarding felony murder,

thereby

1. impermissibly broadening the scope of the felony murder doctrine (Claim

A1);

2. eliminating the elements of proximate cause and intervening cause from

the jury instructions (Claim A2);

B. Trial counsel was constitutionally ineffective for failing to 

1. inform him of his right to a lesser included offense instruction (Claim B1);

2. present an overt withdrawal and termination of the felony defense (Claim

B2);

3. file pretrial motions to suppress evidence and/or quash arrest (Claim B3);

C. His right to a fair trial was violated when the prosecutor

1. confused the jury by choosing to pursue an armed robbery charge related

to Diane Gordon instead of prosecuting him for the robbery charge

underlying the felony murder charge for Quincy Birts’s death (Claim C1);

2. failed to disclose that Gordon had multiple prior criminal convictions for

credit card fraud, had violated conditions of probation in a prior case, was

a defendant in multiple pending criminal cases, and was subject to an 

arrest warrant on the day of her testimony (Claim C2);

3. failed to disclose that Gordon was allegedly granted leniency in exchange

for her testimony (Claim C3); and

4

 To promote clarity, the court has used the respondent’s numbering system for Savage’s claims.

The court notes that this numbering system does not track the organization used by Savage in his § 2254

petition. See Savage’s § 2254 Petition (Dkt. 1 at PageID# 7-10). 

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D. The trial court allowed him to be “impeached by omission” by allowing the State

to call a police officer to testify about notes summarizing another officer’s

interview of him but refusing to admit the notes into evidence (Claim D).

ANALYSIS

Multiple procedural doctrines limit a federal court’s power to reach the merits of claims

raised in habeas petitions filed pursuant to 28 U.S.C. § 2254. For the following reasons, Savage

is not entitled to habeas relief as: (1) Claims B2, B3, C1, C2, C3, and D are barred by the

doctrine of procedural default; (2) Claims A1 and A2 are barred by the doctrine of full and fair

presentment; (3) Claim B1 is barred by the independent and adequate state ground doctrine; and

(4) none of the exceptions to procedural default is applicable.

A. Procedural Default — Claims B2, B3, C1, C2, C3, and D

A petitioner must present his claims to all levels of the Illinois courts to avoid procedural

default. See O’Sullivan v. Boerckel, 526 U.S. 838, 844–45, 119 S.Ct. 1728, 144 L.Ed.2d 1

(1999). Thus, the court must determine if Savage presented the claims in his federal habeas

petition to the state trial court, the Illinois Appellate Court, and the Illinois Supreme Court. See

Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed. 2d 380 (1989) (failure to

present claim to state intermediate court means it is procedurally barred); O’Sullivan, 526 U.S. at

844 (failure to present claim to state’s highest court means it is procedurally barred); see also

Lewis v. Sternes, 390 F.3d 1019, 1025–26 (7th Cir. 2004) (a petitioner must “assert his federal

claim through one complete round of state-court review, either on direct appeal of his conviction

or in post-conviction proceedings. . . . This means that the petitioner must raise the issue at each

and every level in the state court system, including levels at which review is discretionary rather

than mandatory.”).

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As illustrated by the following chart, Claims B2, B3, C1, C2, C3, and D are procedurally

defaulted based on Savage’s failure to present these claims through one complete round of state

court review:

Claim # Claim Presented to State

Court

Omitted From State

Court Filings

B2 Ineffective assistance

of trial counsel:

failure to present an

overt withdrawal and

termination of the

felony defense

Appears at trial and

appellate levels in

post-conviction

proceedings

Not included in postconviction PLA

B3 Ineffective assistance

of trial counsel:

failure to file pretrial

motions to suppress

evidence and/or

quash arrest 

Appears at trial and

appellate level in

post-conviction

proceedings

Not included in postconviction PLA

C1 Prosecutorial

misconduct: 

confused the jury by

pursuing an armed

robbery charge for

Gordon instead of 

prosecuting him for

the robbery

underlying the felony

murder charge for

Birts’s death 

n/a Not presented to state

court

C2 Prosecutorial

misconduct: failure

to disclose

information about

Gordon’s criminal

history 

Appears at trial and

appellate levels in

post-conviction

proceedings

Not included in postconviction PLA

C3 Prosecutorial

misconduct: failure

to disclose that

Appears at trial and

appellate levels in

post-conviction

Not included in postconviction PLA

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Gordon was

allegedly granted

leniency in exchange

for her testimony 

proceedings

D “Impeachment by

omission”

Appears at trial and

appellate levels in

direct proceedings

Not included in

direct appeal PLA

B. Full and Fair Presentment – Claims A1 and A2

The court next considers Savage’s claim that the trial court’s use of non-IPI jury

instructions about felony murder impermissibly broadened the scope of the felony murder

doctrine (Claim A1) and eliminated the elements of proximate cause and intervening cause from

the jury instructions (Claim A2). The respondent contends that Savage did not properly exhaust

these claims because he did not fully and fairly present them to the state courts. 

Under the doctrine of full and fair presentment, a habeas petitioner must allow the state

courts to consider his federal constitutional arguments in the first instance. Duncan v. Henry,

513 U.S. 364, 365–66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (citing Picard v. Connor, 404

U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). Thus, a petitioner must alert the state

courts that his claims are based on the United States Constitution. See id.; see also Anderson v.

Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed. 2d 3 (1982) (“It is not enough that all the facts

necessary to support the federal claim were before the state courts or that a somewhat similar

state-law claim was made.”) (internal citations omitted). 

Factors relevant to whether a habeas petitioner has fairly presented a claim to the state

courts include whether his state court filings (1) relied on federal cases that engage in

constitutional analysis; (2) relied on state cases that apply a constitutional analysis to similar

facts; (3) asserted a claim in terms that call to mind a specific constitutional right; or (4) alleged

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a pattern of facts “well within the mainstream of constitutional litigation.” Moleterno v. Nelson,

114 F.3d 629, 634 (7th Cir. 1997). If none of these factors is present and the state challenges

exhaustion, a claim will be defaulted under the full and fair presentment doctrine. “On the other

hand, the presence of any one of these factors, particularly (1) and (2), does not automatically

avoid a waiver.” Id. (internal quotations omitted).

Here, even if it is assumed that the jury instruction claims in Savage’s § 2254 petition are

based on the federal constitution, they are barred by the doctrine of full and fair presentment

because Savage relied on state law and did not “raise the red flag of constitutional breach” in

state court. See Verdin v. O’Leary, 972 F.2d 1467, 1474–75 (7th Cir. 1992) (quoting Dougan v.

Ponte, 727 F.2d 199, 201 (1st Cir. 1984)). Specifically, in Savage’s PLA in his direct appeal, he

argued that:

[A]s trial and appellate courts are confronted with issues of causation in felony

murder cases, they are ignoring the holding of [People v. Lowery, 178 Ill.2d 462, 687

N.E.2d 973 (Ill. 1997)] and applying a “but for” causation analysis, which

inappropriately excludes consideration of foreseeability. Given the lower courts’

refusal to follow the dictates of Lowery, this Court must grant review in order to

clarify the definition of “proximate cause” within the context of Illinois’ proximate

cause theory of felony murder. 

Dkt. 15-4, Ex. J at 3 (Savage’s PLA on direct appeal).

Savage’s PLA focused on the Illinois Supreme Court’s decision in Lowery, which relied

on state cases and statutes and thus did not apply a federal constitutional analysis. See Lowery,

687 N.E.2d at 976–977. In his PLA, Savage also cited the Seventh Circuit’s decision in Boim v.

Quranic Literacy Institute, 291 F.3d 1000, 1012 (7th Cir. 2002), to support his argument that

“[t]he notion that foreseeability is inherent in the definition of ‘proximate cause’ is widely

recognized.” Dkt. 15-4, Ex. J at 14. In Boim, the Seventh Circuit considered whether the

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parents of a boy killed in a terrorist attack in Israel could state a claim under a federal statute, 18

U.S.C. § 2333, against organizations that funded the terrorists. The Boim decision does not

address the federal constitutional rights of individuals charged with felony murder. 

Finally, Savage directed the Illinois Supreme Court’s attention to the defendant’s brief in

People v. Lavelle Hudson, 1-030953, 98 CR 22339, as an example of another defendant

convicted of felony murder who argued that the trial court erred in giving non-IP instructions

that did not contain language about foreseeability. Dkt. 15-4, Ex. J at 14. This citation also does

not invoke a federal constitutional right. Accordingly, Savage did not present his jury

instruction claims (Claims A1 and A2) in federal constitutional terms through one complete

round of state court review. This means they are procedurally defaulted for failure to exhaust

under the doctrine of full and fair presentment.

C. Independent and Adequate State Ground – Claim B1

In Claim B1, Savage asserts that his trial counsel was constitutionally ineffective because

he failed to inform him of his right to an instruction for the lesser included offense of robbery. 

Savage presented this argument in his state post-conviction petition and submitted his own

affidavit in support. The trial court rejected the argument on the merits, finding that Savage

could not establish prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed. 2d 674 (1984), because the evidence presented at trial was inconsistent with the use of

Savage’s suggested instruction. Dkt. 15-5, Ex. T at C193-194. The Illinois Appellate Court

affirmed the denial of relief but declined to reach the merits of Savage’s ineffective assistance

claim. Specifically, it held that Savage’s reliance on his own affidavit failed to satisfy the

procedural requirements of the Illinois Postconviction Hearing Act, which requires petitions to

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be “supported by ‘affidavits, records, or other evidence’” unless the petitioner adequately

explains the absence of such documents. Dkt. 15-6, Ex. X at 4 (quoting 725 ILL. COMP. STAT. §

5/122-2). Under the independent and adequate state ground doctrine, this court may not

“review a question of federal law decided by a state court if the decision of that court rests on a

state law ground that is independent of the federal question and adequate to support the

judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed. 2d 640 (1991),

superseded by statute on other grounds, 28 U.S.C. § 2254(b)(2). The failure to submit affidavits

as required by the Illinois Postconviction Hearing Act is an independent and adequate state

ground for rejecting a Strickland claim. Thompkins v. Pfister, 698 F.3d 976, 986–87 (7th Cir.

2012) (the state supreme court’s reliance on Illinois’ affidavit rule when rejecting an ineffective

assistance claim was an independent and adequate ground that barred federal consideration of

that claim). 

The Illinois Appellate Court’s holding rested exclusively on the affidavit rule. Thus, an

independent and adequate state ground exists that procedurally defaults Savage’s ineffective

assistance claim based on his trial counsel’s alleged failure to inform him of his right to an

instruction for the lesser included offense of robbery (Claim B1). See id.; see also Woods v.

Schwartz, 589 F.3d 368, 375–76 (7th Cir. 2009) (state appellate court’s finding that the petitioner

waived a claim under state law was an independent and adequate ground that barred his

corresponding federal claim even though it was unclear whether the trial court had reached the

merits of the claim); United States ex rel. Davis v. Yurkovich, No. 12 C 6610, 2012 WL

6568192, at *5 (N.D. Ill. Dec. 17, 2012) (the Illinois Appellate Court’s rejection of the

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petitioner’s ineffective assistance of counsel claim based on the affidavit rule was an

independent and adequate procedural ground).

D. Exceptions to Procedural Default

A federal court may not grant relief on a procedurally defaulted claim unless the

petitioner can establish cause for the default and actual prejudice as a result of the alleged

violation of federal law or demonstrate that the court’s failure to consider the claim will result in

a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. Savage does not contend

that cause and prejudice or the fundamental miscarriage of justice exceptions excuse his default. 

Thus, he has forfeited any arguments based on these exceptions. See Crockett v. Hulick, 542

F.3d 1183, 1193 (7th Cir. 2008) (when petitioner does not assert reasons why his procedural

default should be excused, the court “cannot consider his claim”).

In any event, the exceptions do not help him. Cause exists where “some objective factor

external to the defense impeded [the petitioner’s] efforts to comply with the State’s procedural

rule.” Strickler v. Greene, 527 U.S. 263, 282 n.24, 119 S.Ct. 1936, 144 L.Ed 2d 286 (1999). 

Here, Savage failed to properly follow state procedural rules. Nothing in the record before the

court indicates that an objective factor prevented him from doing so. 

Moreover, to the extent that Savage’s petition can be read as asserting a claim that any of

the attorneys in his direct or collateral proceedings were ineffective, “a claim of attorney

ineffectiveness which is defaulted in state court cannot be the basis for cause, unless the

petitioner can establish cause and prejudice for the ineffectiveness claim as well.” Promotor v.

Pollard, 628 F.3d 878, 887 (7th Cir. 2010); see also Edwards v. Carpenter, 529 U.S. 446,

450–51, 120 S.Ct. 1587, 146 L.Ed. 2d 518 (2000) (“a procedurally defaulted ineffective-

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assistance-of-counsel claim can serve as cause to excuse the procedural default of another habeas

claim only if the habeas petitioner can satisfy the ‘cause and prejudice’ standard with respect to

the ineffective-assistance claim itself.”). Savage unquestionably has defaulted any ineffective

assistance of counsel claims. Cause and prejudice do not excuse this default. Therefore, he

cannot establish cause. Because he cannot address prejudice, the court will not do so. Promotor,

628 F.3d at 887.

The court also acknowledges that the Supreme Court recently carved out a “narrow

exception” to the usual rule that ineffective assistance of counsel at initial-review collateral

proceedings does not establish cause for a petitioner’s procedural default of a claim of

ineffective assistance of trial counsel. Martinez v. Ryan, — U.S. —, 132 S. Ct. 1309, 1320, 182

L.Ed. 2d 272 (2012). Specifically, “[w]here, under state law, claims of ineffective assistance of

trial counsel must be raised in an initial-review collateral proceeding, a procedural default will

not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if,

in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding

was ineffective.” Id.

Savage raised all of his ineffective assistance of trial counsel claims in both his pro se

post-conviction petition and his counseled appeal but failed to include them in his counseled

post-conviction PLA. The Martinez exception is, therefore, inapplicable “since the procedural

defaults are based upon omissions that occurred during the appellate process for the

post-conviction petition, rather than when the post-conviction petition was initially filed in the

state court.” Weekly v. Hardy, No. 11 C 9231, 2012 WL 3916269, at *5 (N.D. Ill. Sept. 6, 2012)

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The court thus turns to the fundamental miscarriage of justice exception, which applies in

“situations where the constitutional violation has probably resulted in a conviction of one who is

actually innocent.” Dellinger v. Bowen, 301 F.3d 758, 767 (7th Cir. 2002) (citing Schlup v.

Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 867, 130 L.Ed. 2d 808 (1995)). To show “actual

innocence,” a petitioner must present clear and convincing evidence that, but for the alleged

error, no reasonable juror would have convicted him. Id. Savage’s petition, as well as the state

court pleadings submitted to the court, do not contain any substantiated allegations of actual

innocence. See United States ex rel. Bell v. Pierson, 267 F.3d 544, 553–54 (7th Cir. 2001)

(petitioner did not establish a fundamental miscarriage of justice where his self-defense claim

was contradicted by credible testimony and physical evidence presented at trial). Thus, this

exception does not apply. Savage is, therefore, not entitled to relief pursuant to § 2254. 

CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, which provides that the

district court must issue or deny a certificate of appealability when it enters “a final order

adverse to the applicant,” the court turns to whether a certificate of appealability should issue. 

Under 28 U.S.C. § 2253(c)(2): “(1) [a] certificate of appealability may be issued only if the

prisoner has at least one substantial constitutional question for appeal; (2) [t]he certificate must

identify each substantial constitutional question; (3) [i]f there is a substantial constitutional issue,

and an antecedent non-constitutional issue independently is substantial, then the certificate may

include that issue as well; (4) [a]ny substantial non-constitutional issue must be identified

specifically in the certificate; [and] (5) [i]f success on a non-constitutional issue is essential

(compliance with the statute of limitations is a good example), and there is no substantial

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argument that the district judge erred in resolving the non-constitutional question, then no

certificate of appealability should issue even if the constitutional question standing alone would

have justified an appeal.” Davis v. Borgen, 349 F.3d 1027, 1029 (7th Cir. 2003).

For the reasons stated above, the court finds that there can be no showing of a substantial

constitutional question for appeal as reasonable jurists would not find this court’s ruling

debatable. Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011) (citing Slack v. McDaniel,

529 U.S. 473, 484–85, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000)). Accordingly, the court

declines to issue a certificate of appealability.

CONCLUSION

For the foregoing reasons, Savage’s petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254 petition is denied and the court declines to certify any issues for appeal under

28 U.S.C. § 2253(c).

Enter:

Dated: April 26, 2013 ______________________________

JOAN HUMPHREY LEFKOW

United States District Judge

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Case: 1:12-cv-01802 Document #: 18 Filed: 04/26/13 Page 17 of 17 PageID #:2940