In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-1620

TERRY L. HARRIS,

Petitioner-Appellant,

v.

EUGENE MCADORY, WARDEN,

 Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 C 7026—Rebecca R. Pallmeyer, Judge.

____________

ARGUED MAY 12, 2003—DECIDED JULY 1, 2003

____________

Before BAUER, KANNE, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. An Illinois jury found Terry

Harris guilty of murdering Emma Hopkins. He was sentenced to life imprisonment. Harris sought federal habeas

relief, claiming ineffective assistance of counsel. The district court denied the petition for a writ of habeas corpus,

finding that Harris had procedurally defaulted the claim.

For the reasons stated herein, we affirm.

BACKGROUND

On the evening of October 28, 1984, Terry Harris invited co-worker Emma Hopkins to accompany him to a
2 No. 02-1620

forest preserve. They talked in Hopkins’ car until the forest

preserve closed, at which time they drove to a factory

parking lot. After engaging in sexual intercourse, Harris

attempted to place a gun into the glove compartment of

Hopkins’ car. The gun discharged after Hopkins grabbed

the firearm. The bullet went through the floorboard of

the car, injuring neither occupant. Harris, enraged at

Hopkins, strangled her to death, then removed her body

and hid it inside a factory vat.

The following day, the police took Harris into custody

and obtained a confession. Harris also made a formal

statement to an Assistant State’s Attorney. In the statement, later introduced at trial, Harris admitted that he

grabbed the victim by her throat and strangled her to

death.

Harris, the only witness called by defense counsel,

admitted killing Hopkins, stating that he lost control

when the gun fired and was afraid that it would discharge again. Harris stated that he grabbed the victim by

the throat, and using two hands, strangled her, and disposed the body inside a factory vat.

The jury found Harris guilty of murder, aggravated

criminal sexual assault, and aggravated kidnaping. At

the sentencing hearing, Harris’ evidence in mitigation

consisted of the testimony of his mother, Agnes Badgett,

and his sister, Helen Brown. The two women described

Harris’ upbringing and related their favorable impressions

of him. Harris also testified at the hearing, apologizing

for Hopkins’ death. He contended that he committed the

killing unintentionally and that he was guilty only of

manslaughter.

The trial judge sentenced Harris to death. The Illinois

Supreme Court vacated the sentence after finding the

prosecution improperly introduced victim-impact testimony. People v. Harris, 547 N.E.2d 1241 (Ill. 1989). After
No. 02-1620 3

a new sentencing hearing, Harris was sentenced to life

imprisonment. Harris then filed a post-conviction petition

claiming prosecutorial misconduct, trial court error, and

ineffective assistance of counsel. Unsuccessful in state

court with his post-conviction petition, Harris filed a

petition for a writ of habeas corpus in federal court.

In the meantime, Harris had obtained the services of

a neuropsychologist. The neuropsychologist determined

that Harris had an IQ of 76, putting him on the border

of mental retardation. Harris was also evaluated as reading at a fourth grade level and suffering from organic

brain (frontal lobe) damage. In light of this evaluation,

Harris contended counsel’s failure to develop and introduce evidence of these mental disabilities at the sentencing hearing constituted ineffective assistance of counsel.

The district court denied the petition because this ineffective assistance claim had not been included in Harris’

state post-conviction petition and Harris had not proven

sufficient cause to excuse that omission.

ANALYSIS

A. Sufficient Cause

In reviewing the district court’s decision to deny relief,

we review issues of law de novo and issues of fact for

clear error. Dellinger v. Bowen, 301 F.3d 758, 763 (7th Cir.

2002). A petitioner seeking federal habeas relief must

establish that he fully and fairly presented his federal

claims to the state court. Chambers v. McCaughtry, 264

F.3d 732, 737 (7th Cir. 2001). So, a petitioner must give the

state court a meaningful opportunity to consider the

substance of the claims later presented in federal court. Id.

Failure to adhere to these guidelines constitutes a procedural default, which bars federal review unless the petitioner demonstrates cause for the default and actual

prejudice as a result of the failure, or demonstrates that
4 No. 02-1620

1 Harris’ reliance on Atkins v. Virginia, 536 U.S. 304 (2002), is

misplaced. The Court in Atkins held that the Eighth Amendment

precludes capital punishment for mentally retarded defendants.

The case sub judice is distinguishable because Harris is borderline mentally retarded, and more importantly, this is not a

capital case. A cursory glance at Atkins reveals that the Court

was addressing the issue of mental retardation solely in the

context of capital punishment.

the failure to consider the claims will result in a fundamental miscarriage of justice. Dellinger, 301 F.3d at 764.

There is no dispute that Harris defaulted his claim of

ineffective assistance of counsel. However, Harris contends, and the State denies, that sufficient cause exists to

excuse the default. Specifically, Harris argues that his

pro se status, his borderline mental retardation, and his

organic brain dysfunction constitute cause. The district

court determined that these factors did not overcome

Harris’ procedural default. We agree.

The Supreme Court has defined cause sufficient to excuse procedural default as “some objective factor external

to the defense” which precludes petitioner’s ability to

pursue his claim in state court. Murray v. Carrier, 477 U.S.

478, 488 (1986). The Court delineated that cause could

be established by showing interference by officials or that

the factual or legal basis for a claim was not reasonably

available to counsel. Id. However, it cautioned that these

examples were not exhaustive. Id.

Harris contends he established cause for three reasons: (1) his pro se status; (2) his borderline mental retardation; and (3) his organic (frontal lobe) brain dysfunction.

Harris cites no case law to support his argument.1

 The first

element, his pro se status, need not detain us long. Harris

fails to acknowledge Barksdale v. Lane, 957 F.2d 379

(7th Cir. 1992). In Barksdale, we held that a habeas peti-
No. 02-1620 5

tioner’s pro se status does not constitute adequate

grounds for cause. Id. at 385-86. As there is no constitutional right to an attorney in state post-conviction proceedings, see Coleman v. Thompson, 501 U.S. 722, 752

(1991), we decline to depart from our holding in Barksdale.

Harris’ second factor proffered as a basis for cause is

his borderline mental retardation. He avers that the

factual and legal basis for his ineffective assistance claim

was unavailable to him in light of his mental deficiencies.

The neuropsychologist determined that Harris has an IQ

of 76, putting him on the cusp of mental retardation. The

neuropsychologist also found that Harris reads at a

fourth grade level.

We have never considered whether mental illness can

constitute cause for default. However, Cawley v. Detella, 71

F.3d 691 (7th Cir. 1995), is instructive on this question. In

Cawley, we held that the petitioner’s depression did not

constitute cause because it failed “to qualify as an external impediment.” Id. at 696. We are also guided by

other circuits that have considered the issue. In Hull v.

Freeman, 991 F.2d 86 (3d Cir. 1993), the Third Circuit

determined that petitioner’s borderline mental retardation did not establish cause because it was not “external” to

his defense within the meaning of Murray v. Carrier. Id.

at 91. The Ninth Circuit, in Tacho v. Martinez, 862 F.2d

1376, 1381 (9th Cir. 1988), held that petitioner’s diagnosis

as a “borderline mental defective” was insufficient to

establish cause. See also Cornman v. Armontrout, 959

F.2d 727, 729 (8th Cir. 1992) (finding petitioner’s belowaverage intelligence insufficient to establish cause). Furthermore, it is well established in this Circuit that circumstances such as youth, lack of education, and illiteracy

are not external impediments within the context of excusing procedural default. See, e.g., Dellinger v. Bowen,

301 F.3d 758, 763 (7th Cir. 2002) (petitioner’s youth and

lack of education did not constitute cause); Henderson
6 No. 02-1620

v. Cohn, 919 F.2d 1270, 1272-73 (7th Cir. 1990) (petitioner’s

illiteracy and limited education insufficient to establish

cause).

We find the reasoning in these cases persuasive. These

cases highlight the emphasis placed on the “external”

nature of the impediment. Something that comes from

a source within the petitioner is unlikely to qualify as an

external impediment. The examples given by the Court

in Murray as to what constitutes an external impediment

exemplify this point. Harris’ low IQ and limited reading

ability are not factors which are “external” to his defense.

Finally, Harris’ mental disability claim is belied by his

gainful employment as a security guard at the time of

the murder, his efforts to cover up the crime, and his ability to prepare a pro se 60-page state post-conviction petition.

Harris also claims that his organic brain dysfunction

constitutes cause to excuse his procedural default. The

neuropsychologist opined that Harris suffers from

organic brain damage. He gave no predicate facts for

this opinion, which is simply asserted without more. The

district court noted that Harris’ contentions about his

brain dysfunction “are so conclusory that the court is

uncertain they are even sufficient to require a response.” In

the proceedings below, Harris stated that the neuropsychologist’s evaluation “provides the basis for . . . the

allegations concerning Petitioner’s mental health and

functioning.” But we have noted that a habeas petitioner must “cross some threshold of plausibility before

[courts] will require the state to answer.” Dellenbach v.

Hanks, 76 F.3d 820, 822 (7th Cir. 1996).

B. Evidentiary Hearing

Harris also contends that the district court should

have granted him an evidentiary hearing to determine
No. 02-1620 7

whether his brain dysfunction excuses his procedural

default. If a petitioner has failed to develop the factual

basis of a claim in state court, a federal court cannot

grant relief unless the claim relies on a new rule of constitutional law, or a factual predicate that could not have

been previously discovered through the exercise of due

diligence. 28 U.S.C. § 2254(e)(2)(A). The petitioner must

also establish that the facts underlying the claim would

be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable

factfinder would have found the petitioner guilty of the

underlying offense. 28 U.S.C. § 2254(e)(2)(B).

The district court correctly found that Harris failed

to develop the factual basis for his ineffective assistance

claim. In (Michael Wayne) Williams v. Taylor, 529 U.S. 420

(2000), the Court noted that diligence requires “the prisoner, at a minimum, seek an evidentiary hearing in state

court in the manner prescribed by state law.” Id. at 437.

Harris did not seek an evidentiary hearing concerning

his mental status or even attempt to raise the issue.

Harris’ state post-conviction petition was a 60-page cornucopia of claims, including almost two dozen allegations

of ineffective assistance, but devoid of any mention of his

mental disabilities.

Since Harris failed to develop the factual basis for his

ineffective assistance of counsel claim, he must comply

with § 2254(e)(2). As noted above, under § 2254(e)(2)(A),

Harris must show his claim relies either on a new rule

of constitutional law that was previously unavailable, or

a factual predicate that could not have been previously

discovered through the exercise of due diligence. Harris

does not rely on a new rule of constitutional law. And,

as the district court correctly noted, the factual predicate

of his claim existed before he filed his habeas petition

and Harris has made no showing that the factual predicate could not have been discovered through the exer-
8 No. 02-1620

cise of reasonable diligence. For these reasons, Harris

does not satisfy the requirements of § 2254(e)(2) and

therefore the district court correctly determined Harris

was not entitled to an evidentiary hearing.

CONCLUSION

The district court’s order denying the writ of habeas

corpus is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-1-03