and the ‘controlling legal principles’ must be submitted.” Rodriguez v. Scillia, 193 F.3d 913, 916
(7th Cir, 1999), “Ifa prisoner fails to present his claims in a petition for discretionary review to a
state court of last resort, those claims are procedurally defaulted.” Rodriguez, 193 F.3d at 917 (citing
O'Sullivan y, Boerckel, 526 U.S, 838, 848 (1999).

ANALYSIS

Arroyo raised the issue of ineffectiveness of appellate counsel in his first pro se petition for
post-conviction relief and again in his appeals of the dismissal of his amended post-conviction
petition.

Respondent argues that this ground for relief has been procedurally defaulted because the
Tllinois Appellate Court rested its decision on an adequate and independent state ground. Coleman
v. Thompson, 501 U.S. 722, 729-32 (1991); Steward v, Gilmore, 80 F.3d 1205, 1211 (7th Cir. 1996).
Federal review is barred if “the last state court rendering a judgment in the case ‘clearly and
expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263
(1989).

In Arroyo’s appeal of the dismissal of his amended post-conviction petition, the Lllinois
Appellate Court held that the issue of ineffectivencss of appellate counsel was waived because:

{t]his argument was clearly abandoned in the trial court, and [Arroyo] is asking us to

consider an argument that was never ruled upon below. As stated above, [Arroyo]

filed two postconviction [sic] petitions, the first arguing that appellate counsel was

ineffective for failing to raise various alleged errors that occurred during defendant’s

trial, the second raising a single subject violation. The sccond petition asserts “I am

not challenging my court room [sic] proceedings, instead Lam challenging the statute

under which I was sentenced.” Further, when appointed counsel filed the amended

petition, it included only the single subject claim, Counsel filed an affidavit with the

petition in which he affirmed that he consulted with [Arroyo] to ascertain [Arroyo’s]

contentions of deprivations of constitutional rights. The only issue argued to the trial
court and ruled upon was the single subject claim. .. . The ineffectiveness of counsel

4.



perjured testimony during Arroyo’s trial. The Illinois Supreme Court denied the petition for leave
to appeal on October 3, 2001.

On October 20, 2001, Arroyo filed the instant pro se petition for writ of habeas corpus. ‘This
petition asserted a single ground for relief, “Arroyo was denied his 6th Amendment right because
his Post-Conviction Petition was dismissed because court appointed appellate counsel failed to raise
and present the issue that Mr. Arroyo’s trial counsel labored under a conflict of interest and was
under indictment and charged with presenting perjured testimony at Mr. Arroyo’s trial.” (Pet. Writ
Habeas Corpus at 5.)

LEGAL STANDARD

A federal court will not grant habeas corpus relief on any claim adjudicated on the merits by
a state court unless: (1) the state court applied a United States Supreme Court doctrine unreasonably
to the facts of the case or (2) the state court’s decision relied on an unreasonable reading of the facts
in light of the evidence presented. 28 U.S.C. § 2254(d) (2002). For relief based on an unreasonable
application of Supreme Court doctrine, the state court’s decision must be both incorrect and
unreasonable. Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000).

Petitioner must satisfy two requirements to avoid procedural default before a court may reach
the merits of his habeas corpus petition: (1) exhaustion of state remedies and (2) fair presentment
of any federal claims. Spreitzer v. Schomig, 219 F.3d 639, 644 (7th Cir. 2000)(citations omitted).
A habeas corpus petitioner exhausts all state remedies when (1) he presents his claims to the highest
court for a ruling on the merits or (2) state remedies are no longer available to the petitioner at the
time his federal habeas petition is filed. Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991)(citations

omitted). “For a constitutional claim to be fairly presented to a state court, both the operative facts

3.



issue was no longer before the circuit court when it ruled on the amended petition.

As stated by the [Illinois] supreme court in People v. Phelps, 51 Ml. 2d 35, 38 (1972),

“(while the petitioner alleged ineffectiveness of counsel in his pro se petition, the

amended petition subsequently filed by appointed counsel contained no such

allegation, and, therefore, that issue was not before the court.” The issue of appellate
counsel's ineffectiveness was not before the trial court and, consequently, it is not

before this court.

(Answer, Ex. J at 2-3.) Here, the Illinois Appellate Court “clearly and expressly” invoked the state
procedural rule of waiver as enunciated in Phelps in dismissing Arroyo’s amended post-conviction
petition. Therefore, this ground has been procedurally defaulted.

Once procedural default has been established, a petitioner may still present those claims in
federal court under § 2254(d) if he can demonstrate (1) cause for his default and (2) actual prejudice
as a result of the alleged violations of federal law. Steward, 80 F.3d at 1211-12. Arroyo can show
cause “by showing that ‘some objective factor external to the defense impeded [his] efforts to
comply with the State’s procedural rule.”” United States ex rel. Taylor v. Barnett, 109 F. Supp. 2d
911, 920 (N.D. Ill. 2000) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

Alternatively, Arroyo can present his claims if he can show that failure to consider the claim
will result in a “fundamental miscarriage of justice”. Coleman, 501 U.S. at 750. Under Sehfup v.
Delo, 513 U.S, 298, 315, 327 (1995), a fundamental miscarriage of justice has occurred when the
petitioner can show that a “constitutional violation has probably resulted in the conviction of one
who is actually innocent”, “Accordingly, without new evidence of innocence, even a meritorious
constitutional claim is not sufficient to allow a habeas court to reach the merits of a procedurally
defaulted claim.” United States ex rel. Bell v. Pierson, 267 F.3d 544, 551 (7th Cir. 2001) (citing
Schlup, 513 U.S. at 316).

Arroyo has not demonstrated any objective factor external to the defense that impeded his

5.



1°" Minute Orde Form (06/97)

ee

United States District Court, Northern District of [linois

Name of Assigned Judge John W, Darrah Sleting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 01 C 8328 DATE 10/2/2002
CASE USA ex rel. LUIS ARROYO vs. JOHN C. BATTLES
TITLE
[In the following box (a) indicate the party Filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state brictly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
ql) oO Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion duc
(3) Oo Answer brief to motion due . Reply to answer brief due
(4) o Ruling/Hearing on set for at
(5) ia Status hearing[held/continued to] [set for/re-sct for] on set for at
(6) o Pretrial conference[held/continued to] [sct for/re-set for] on setfor at
(2) o Trial[set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continued toa
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) OC Local Rule 41.1 O FRCP41(a)(1) 0 FRCP41(a)(2).
(10) MH  (Otherdocketentry) Status hearing held. Enter Memorandum Opinion And Order. Luis Arroyo’s
petition for Writ of Habeas Corpus is denied.
gl) @ [For further detail sce order attached to the original minute order.]

No notices required, advised in open court.

No notices required

umber of notices

OCT 93 ANN?

date vockeied.

6.¥:

duckoting deputy initivls

Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices,

Mail AO 450 form.

KIS

Copy to judge/magistrate judge.

die mailed novice

courtroom
deputy’s
initials

LG

Date/time received in
central Clerk's Office,

sailing deputy initials



efforts to present the defaulted ground for relief in his amended post-conviction petition. Moreover,
Arroyo has not presented any new evidence that would suggest that he is innocent. Therefore,
Arroyo has not made a showing sufficient to survive a procedural default. Therefore, Arroyo’s
Petition for Writ of Habeas Corpus is denied.

CONCLUSION

For the reasons stated herein, Luis Arroyo's Petition for Writ of Habeas Corpus is denied.

( John y Darrah, Judge
States District Court

IT IS SO ORDERED,

Date: C bh 222

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

EASTERN DIVISION DOCKETED

UNITED STATES OF AMERICA, 9CT 03 2092

)
ex rel. LUIS ARROYO, )
) Case No. 01 C 8328
Petitioner, )
) Honorable John W. Darrah
ve )
)
JOHN C. BATTLES, Warden, )
)
Respondent. )
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on prisoner Luis Arroyo’s (“Arroyo”) Petition for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 against John C. Battles, Warden of Illinois River
Correctional Center in Canton, Illinois, where Arroyo is in custody. For the following reasons,
Arroyo’s petition is denied.
BACKGROUND
Following a bench trial, Arroyo was convicted of possession ofa controlled substance within
1,000 feet of a school, pursuant to 720 Ill. Comp. Stat. 570/401(c)(2), and sentenced to 12 years’
imprisonment on March 31, 1995.
Arroyo then appealed to the Illinois Appellate Court, arguing that his sentence was excessive
when he had a limited criminal history, was non-violent, and possessed strong rehabilitative

potential. On June 29, 1998, The Illinois Appellate Court affirmed, finding that Arroyo’s sentence

was not excessive. Arroyo then filed a petition for leave to appeal to the Illinois Supreme Court,

arguing that the Illinois Appellate Court incorrectly found that his sentence was not excessive where



it failed to take into account his rehabilitative potential and that his appellate counsel failed to let the
appellate court know that Arroyo was serving a total of eighteen years’ imprisonment. The Illinois
Supreme Court denied the petition on February 3, 1999.

On July 27, 1999, Arroyo filed a pro se petition for post-conviction relief, arguing that
appellate counsel was ineffective for failing to raise the issues of ineffective assistance of trial
counsel, the trial court’s error in not entering a judgment of acquittal at the close of the state’s case,
and that Arroyo was not proven guilty beyond a reasonable doubt. On January 31, 2000, Arroyo
filed a second pro se petition for post-conviction relief, challenging his conviction under the single
subject rule of the Illinois Constitution. On February 17, 2000, counsel was appointed to represent
Arroyo. Appointed counsel filed an amended petition for post-conviction relief, challenging
Arroyo’s conviction under the single subject rule. On May 26, 2000, the trial court denied Arroyo’s
amended petition for post-conviction relief, finding that there was no violation of the single subject
rule.

Arroyo appealed the denial of his amended petition for post-conviction relief to the Minois
Appellate Court, arguing that he was denied effective assistance of appellate counsel on direct appeal
when appellate counsel failed to present the issue that Arroyo’s trial counsel was indicted and
charged with presenting perjured testimony. On May 17, 2001, the Illinois Appellate Court affirmed
the dismissal, holding that Arroyo had waived this issue because he had not raised it in his amended
petition for post-conviction relief.

Arroyo then filed a petition for leave to appeal to the Illinois Supreme Court, arguing that his
petition for post-conviction relief was improperly dismissed where appellate counsel failed to state

the ground that his trial counsel was ineffective due to a conflict of interest and the presentation of

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