this decision was denied by the Illinois Supreme

October 4,

2000.

Court

on

On October 2, 2001, Martin filed the instant petition for writ

of habeas
following

(1)

(5)

corpus. In his habeas petition, Martin raises the

claims for relief:

Martin was denied effective assistance of
appellate counsel when counsel refused to take
issues of merit to direct appeal;

The trial court erred in allowing the State to
disclose Shannon Carr as a witness on the eve
of trial without granting the defense a
continuance;

The trial court abused its discretion when,
during the cross-examination of Martin, it
allowed the State to ask questions about other
crimes that the State could not prove;

The trial court abused its discretion by
allowing the weapon from the August 1991
incident to go to the jury during
deliberations;

The State committed prosecutorial misconduct
when the prosecutor knowingly introduced and
argued perjured testimony at trial to
establish intent;

The State committed prosecutorial misconduct
when the prosecutor told the jury how it
should weight the evidence at trial, which had
a burden-shifting effect on the defense;

Martin was denied effective assistance of
counsel at trial; and

Martin’s fifty-year sentence was excessive.



Martin’s cross-examination; (2) the trial court abused its
discretion by allowing the weapon from the August 1991 incident to
go to the jury during deliberations; (3) the State committed
prosecutorial misconduct when the prosecutor knowingly introduced
and argued perjured testimony at trial to establish intent; (4) the
State committed prosecutorial misconduct when the prosecutor told
the jury how it should weigh the evidence; and (5) Martin was
denied ineffective assistance at trial. Martin now seeks to raise
these very issues in his present habeas petition. Although the
post-conviction court went on to state that each of these claims
could also be rejected on the merits, that court’s clear and
unambiguous finding of procedural default is sufficient to
foreclose Martin from seeking federal habeas relief on these
grounds. See Fernandez v. Sternes, 227 F.3d 977, 978 (7th Cir.
2000). Nor is there anything in the record requiring this Court to
conclude that a refusal to consider the defaulted claim would
result in a miscarriage of justice. The claims listed above are
procedurally defaulted and habeas relief cannot be granted on any
of these claims.
Merits

Martin does have one claim that is both cognizable on federal
habeas and has been properly preserved: ineffective assistance of
appellate counsel. Strickland v. Washington, 466 U.S. 668 (1984)

established the standard for ineffective assistance of counsel, and



noncognizable or procedurally defaulted and then address the merits
of Martin’s remaining claims.
Noncognizable Claims

Martin argues that his fifty-year sentence for first degree
murder is excessive in light of his lack of criminal history and
his potential for rehabilitation. In considering a petition for
habeas relief, a federal court must defer to the prerogative of the
state legislature to determine the sentences imposed for state
crimes. See Rummel v. Estelle, 445 U.S. 263, 275 (1980).
Generally, if a sentence imposed by the trial court is within the
range established by Illinois law, its severity is not sufficient
grounds for relief on federal habeas corpus. Henry v. Page, 223
F.3d 477, 482 (7th Cir. 2000).

A person convicted of first degree murder in Illinois may be
sentenced to serve twenty to sixty years in prison. 735 ILCS 5/5-
8-l{a) (1). The record indicates that the trial court did consider
Martin’s lack of adult criminal history, but still found that a
fifty year sentence was appropriate based on the seriousness of the
offense. The sentence was within the proscribed range and there is
nothing in the record to indicate.an abuse of discretion sufficient
to make Martin’s excessive sentence claim cognizable on federal
habeas. See King v. Cahill-Masching, 169 F. Supp. 2d 849, 855

(N.D. Ill. 2001).


DISCUSSION

Section 2254 of the Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) entitles a prisoner to a writ of habeas
corpus if he is being held in prison pursuant to a state court
judgment obtained in violation of, rights guaranteed by the United
States Constitution. 28 U.S.C. § 2254; Williams v. Taylor, 529
U.S. 362, 375 (2000). For any claim that was adjudicated on the
merits in state court proceedings, a federal court may not grant a
writ of habeas corpus unless the state court decision: (1) was
contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. 28 U.S.C. § 2254 (d) (1)
& (2); Ellsworth v. Levenhagen, 248 F.3d 634, 638 (7th Cir. 2001).
A federal court may not, however, address the merits of a claim
contained in a habeas corpus petition unless the petitioner can
show that he has exhausted his state remedies and avoided
procedural default. Bell v. Pierson, 267 F.3d 544, 551 (7th Cir.
2001). A petitioner exhausts.his state remedies and avoids
procedural default by presenting his claims fully and fairly to the
state courts. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).

The Court will consider first..examine those claims that are



Procedural Default

Before a federal court may consider a petitioner’s claim that
his state conviction or sentence was obtained in violation of the
Constitution, he must first have given the state courts a full and
fair opportunity to review the claim. Failure to present a claim
to the state’s highest court results in procedural default.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A procedural
default may occur: (1) when a petitioner fails to raise an issue on
direct appeal or post-conviction review, or (2) when a state court
clearly relies on a state procedural bar as an independent basis
for its denial of relief. Farrel v. Lane, 939 F.2d 409, 410 (7th
Cir. 1991). When a petition has procedurally defaulted on a claim,
a federal court will only review such defaulted claims if the
petitioner can show: (1) cause for failure to raise the claim, and
actual prejudice resulting therefrom; or (2) that refusal to
consider the defaulted claim would result in a miscarriage of
justice, meaning that the constitutional violation has “probably
resulted in the conviction of one who is actually innocent.”
Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

In this instance, the post-conviction court determined that,
under Illinois procedural rules, Martin had waived the following
issues by failing to raise them on direct appeal: (1) the trial
court abused its discretion when it allowed the state to ask

questions about other crimes that the State could not prove during


Minwte Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned J Harry D. Leinenweber Sitting Judge if Other
or Magis . than Assigned Judge
CASE NUMBER 01 C 7657 DATE 1/7/2003
CASE USA ex rel. Alfred Martin vs. Guy Pierce, Warden
TITLE
[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) stale briefly the nature
the moti esented.
MOTION: of the motion being presented.]

DOCKET ENTRY:

() a Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

(3) oO Answer brief to motion due___._ Reply to answer brief due

(4) Oo Ruling/Hearing on___ssetfor___at

(5) a Status hearing[held/continued to] [set for/re-set for]on set for at,

(6) o Pretrial conference[held/continued to] [set for/re-set for]on set for_— at.
(7) i) Trial[set for/re-set for] on at

(8) is) [Bench/Jury trial] [Hearing] held/continued to at__

(9) Oo This case is dismissed [with/without] prejudice. and without costs[by/agreement/pursuant to]

OFRCP4(m) CO Local Rule 41.1 OO FRCP4I1(a)(1) 0 FRCP41(a)(2).

(0) HH [Otherdocket entry) ENTER MEMORANDUM OPINION AND ORDER: Alfred Martin’s Petition
for Writ of Habeas Corpus is DENIED.

(li) o@f [For further detail see order attached to the original minute order.]

No notices required. advised in open court, Document

Number

No nolices required, ber of noti

JAN 0 8 2003

dye docketed

Notices mailed by

Notified counsel by welephone.

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the first degree murder conviction should be reduced to involuntary
manslaughter; and (3) Martin’s fifty-year sentence was excessive
and should be reduced. This Court has reviewed the record of the
trial proceedings and finds that the decision of Martin’s appellate
counsel to limit the direct appeal to these issues was reasonable
and does not amount to constitutionally deficient representation.
Even if appellate counsel’s failure to raise on direct appeal those
issues later raised by Martin on post-conviction could be deemed
constitutionally inadequate representation, the Court finds no
basis to believe that the result of the proceedings below would
have been different had those issues been raised. Partee, 926 F.2d

at 701.

CONCLUSION

For the reasons set forth above petition for writ of

Harry D. Leinenweber, Judge
United States District Court

habeas corpus must be DENIED.

IT IS SO ORDERED,

mass § yutee, 7 AGA3



though it is phrased in terms of ineffective assistance of trial
counsel, it can also be used as a basis for evaluating claims of
ineffective assistance of appellate counsel. Gray v. Greer, 800
F.2d 644, 646 (7th Cir. 1985). Under Strickland, ineffective
assistance of counsel is established by showing that (1) the
representation fell below the constitutionally acceptable minimum
and (2) the petitioner was prejudiced by the substandard
representation. Id. A failure to establish both defective
performance and prejudice will doom a claim of ineffective
assistance of counsel. Velarde v. United States, 972 F.2d 826, 828
(7th Cir. 1992). To establish that the appellate representation
fell below the constitutionally acceptable minimum, the petitioner
must show that appellate counsel failed to raise a significant and
obvious issue. Gray, 800 F.2d at 646. Such a failure will be
considered prejudicial if “there is a reasonable probability that,
but for [counsel’s] unprofessional errors, the result of the
proceedings would have been different.” Partee v. Lane, 926 F.2d
694, 701 (7th Cir. 1991) (citing Strickland, 466 U.S. at 687-88).
Martin argues that his counsel on direct appeal should have
raised those claims that the post-conviction court found to be
waived. Martin’s appellate counsel reviewed the record and decided
to presented three issues on direct appeal: (1) the trial court
erred in allowing the State to disclose Shannon Carr as a witness

on the eve of trial without granting the defense a continuance; (2)

- 10 -



Martin also contends that the trial court abused its
discretion when it allowed the State to disclose witness Shannon
Carr on the eve of trial and refused to grant a defense-requested
continuance. The day before the trial was to begin, the State
informed the defense that it intended to call Shannon Carr to
testify regarding a previous attack Martin committed against his
wife. The defendant requested a continuance so that it could
interview Shannon in a neutral setting. The State offered to
instead make Shannon available for an interview the next day and
the trial court denied the defense motion.

A state trial court’s failure to grant a continuance is not
generally cognizable on federal habeas unless it can be shown that
the error caused the trial to be fundamentally unfair, in violation
of a federal constitutional right. Searcy v. Greer, 768 F.2d 906,
912 (7th Cir. 1985). In this case the defense knew that the state
already planned to call another witness, Officer Mullins, regarding
the same events testified to by Shannon Carr and was therefore
prepared to address the subject matter of Shannon’s testimony. The
defense was also provided with an opportunity to interview Shannon
before she testified. The trial court’s decision to deny Martin’s
motion for a continuance was. not an abuse of discretion that
resulted in a fundamentally unfair trial. This claim also fails to
implicate matters cognizable on a petition for federal habeas

relief.



the police. Officer Stan Mullins responded to the call. Officer
Mullins testified that he arrested Martin and placed him in the
squad car. Officer Mullins also testified that while in the squad
car, Martin told him that he “should’ve killed the bitch.” The
jury also heard evidence regarding a September 21, 1991 incident
where Martin again entered Jacqueline’s home with the intent to
commit violence.

After hearing all the evidence, the jury found Martin guilty
of first degree murder on January 19, 1996. Martin was
subsequently sentenced to imprisonment for a term of fifty years.
Martin appealed his conviction to the Illinois Appellate Court
claiming that: (1) the trial court erred in allowing the State to
disclose Shannon Carr as a witness on the eve of trial without
granting the defense a continuance; (2) the first degree murder
conviction should be reduced to involuntary manslaughter; and (3)
Martin’s fifty-year sentence was_excessive and should be reduced.
The Illinois Appellate Court affirmed Martin’s conviction and his
petition for leave to appeal was denied by the Illinois Supreme
Court on June 3, 1998. Martin filed a petition for post-conviction
relief with the Circuit Court of Cook County on November 24, 1998
stating ten possible grounds for relief. The trial court denied
the post-conviction petition on February 3, 1999. The Illinois
Appellate Court affirmed the denial of Martin’s post-conviction

petition on March 21, 2000 and_his petition for leave to appeal



On November 8, 1993, Martin’s wife, Jacqueline, came to
Martin’s apartment to ask him for money and to find out if Martin
had purchased a coat for their daughter. When Martin refused to
give her money, Jacqueline and Martin got into an argument that
escalated into a physical altercation. Martin claimed that he held
Jacqueline tightly to keep her from kicking and swinging her arms,
and that he held her in this manner until she stopped moving.
Martin called a friend, FBI agent Ben McIntosh, and asked him to
come over right away because he and his wife had been wrestling and
she was not breathing. Martin was taken into custody that day and
subsequently charged with first degree murder.

Martin stood trial before a jury on January 16, 1996. At
trial, the jury heard the testimony of Dr. Edmond Donaghue, Chief
Medical Examiner for Cook County. Dr. Donaghue testified that, in
his judgment, Jacqueline’s death was a homicide and that she died
of strangulation due to compression of the neck and chest. Dr.
Donaghue also testified that it would take a minimum of two minutes
of pressure for someone to die from chest or neck compression.

Also testifying at trial was Jacqueline’s eleven year-old
daughter, Shannon Carr. Shannon testified that on August 22, 1991,
Martin climbed up to her bedroom.window and asked to be let in the
house. Shannon refused. Shannon. testified that she then heard the
downstairs glass door shatter. Shannon then heard her mother

screaming and saw that her face had been cut. Shannon then called



IN THE UNITED STATES DISTRICT COURT F I L ED
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION JAN - 7 2003

JUDGE HARRY D. LEINENWEBER

US. DISTRICT co
UNITED STATES OF AMERICA, 1 COURT JUDGE

ex rel. Alfred Martin,
Case No. 01 C 7657
Petitioner,
Hon. Harry D. Leinenweber
v.

GUY PIERCE, Warden, We
sas

Respondent.

al

yoo

MEMORANDUM OPINION AND ORDER

Petitioner Alfred Martin (“Martin”) was convicted by an
Illinois jury of first degree murder and sentenced to fifty years
imprisonment. After an unsuccessful direct appeal and post-
conviction petition, Martin filed a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, asserting eight grounds
for possible relief. Because..Martin has either procedurally
defaulted on his claims or fails to present any error warranting
habeas relief, the petition must be denied.

BACKGROUND

Martin does not challenge the Illinois Appellate Court’s
factual findings in his petition. Accordingly, the Court adopts
the facts set forth by the Illinois Appellate Court in People v.
Alfred Martin, No. 1-96-1128, and the following summary of the

relevant facts is drawn from that opinion.