infraction or (4) alleged a pattern of facts well within the mainstream of constitutional litigation.
Id.

We held that Whitfield did not meet the requirements of this test. However, we recognize
that the application of the Verdin test to this case, specifically as to elements (3) and (4), is
subject to differing interpretations. As such, we agree that jurists of reason could debate our
procedural ruling.

The next step of the COA analysis requires us to find that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right.” S/ack,
529 U.S. at 484. Having only ruled on the procedural default issue, we did not have occasion to
reach the merits of Whitfield’s claim. However, upon cursory review, it appears that jurists of
treason could differ as to the petition’s merits. Whitfield has therefore satisfied the S/acktest and
should be granted a COA to proceed on appeal.

CONCLUSION
Whitfield’s motion for issuance of a certificate of appealability as to the specific issue

defined above is granted.

It is so ordered. SIE
é Ce

MARVIN E. ASPEN
United States District Judge



‘Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Marvin Aspen Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 2936 DATE 3/18/2002
CASE USA vs. William Boyd
TITLE
{In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. ]
DOCKET ENTRY:
(i) aq Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) a Answer brief to motion due___. Reply to answer brief due
(4) o Ruling/Hearingon set for at _
(5) im) Status hearing[held/continued to] [set for/re-set for]on___ set for__._ at
(6) Qa Pretrial conference[held/continued to] [set for/re-set for]on__setfor__ ss at__
(7) oO Trial(set for/re-set for}on__—_at
(8) Q [Bench/Jury trial] [Hearing] held/continued toa
(e)) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) OGeneral Rule 21 CIFRCP41(a\(1) Oi FRCP41(a)(2).

ao [Other docket entry] Enter Memorandum Opinion and Order: Whitfield’s motion for issuance of
certificate of appealability (37-1) as to the specific issue defined is granted.

al) [For further detail see order attached to the original minute order.]
ee

No notices required, advised in open court.

No notices required.

!
(ete

number of notices

v | Notices mailed by judge’s staff,

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

3/12/2002

date mailed notice
courtroom

GL deputy’s

initials

Date/time received in’
central Clerk’s Office

mailing deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES ex rel. HEZEKIAH WHITFIELD,

)
)
Petitioner, )
v. ) Case No. 01 C 2936
)
)

WILLIAM BOYD,

POCHETED

MAR yd 200?

Respondent.

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, Chief Judge:

On December 7, 1998, Petitioner Hezekiah Whitfield was convicted of armed-robbery and
sentenced to 30 years imprisonment. His unsuccessful appeals and post-conviction petitions have
culminated thus far in his petition for writ of habeas corpus. On January 29, 2002, we dismissed
Whitfield’s petition. Whitfield v. Boyd, No. 01 ¢ 2936, 2002 WL 122513 (N.D.III.}. He has now
moved that we grant him a certificate of appealability (“COA”). We grant his motion.

A COA is required to take an appeal to the Court of Appeals from a final order in a
proceeding under 28 U.S.C. § 2254. 28 U.S.C, § 2253(c). "A certificate of appealability may issue
... only if the applicant has made a substantial showing of the denial of a constitutional right." 28
U.S.C.§ 2253(c)(2). The Supreme Court, in Slack v. McDaniel, 529 U.S. 473, 483-84 (2000),
elucidated two methods by which a district court is to evaluate a request for a COA. First, when
the district court rejected a petitioner’s constitutional claims on the merits, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court's assessment of the constitutional
claims debatable or wrong.” td. at 484. Alternatively, “when the district court denies a habeas
petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a
COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was correct in its procedural ruling.” Id.



at 484 (emphasis supplied). Pursuant to the guiding principle laid out in Ashwander v.
Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring), the Court
encouraged district courts to resolve procedural issues first, if their resolution would avoid the
need to pass upon the constitutional questions. Slack, 529 U.S. at 485

Whitfield seeks a COA as to the foliowing issue: whether his “due process right to a fair
trial was violated by the admission, despite a defense motion in limine [to exclude], of evidence
that Whitfield had committed an unrelated crime, after which, one of the arresting officers was
struck by a chair, and the admission of the photo mug-shot following his arrest for that offense,
since that evidence was irrelevant to the offense for which Whitfield was being tried.” Mot. for
COA, Whitfield, pp. 2-3.

ANALYSIS

Our dismissal of Whitfield’s habeas claim was based upon his procedural default of that
claim at the state court level. Having dismissed the claim in this procedural manner, we did not
reach the merits of his habeas petition. Thus, under the second S/ack test outlined above, a COA
will not issue unless we hold “that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” S/ack, 529 U.S. at 484
{emphasis supplied).

As to our procedural ruling, we hold that jurists of reason would find it debatable whether
we were correct in our procedural ruling. Our ruling was based upon the holding of Verdin v.
O'Leary, 972 F.2d 1467, 1473-74 (7th Cir. 1992), in which the court held that, to avoid
procedural default, a habeas petitioner must have fairly presented his federal claims to the
underlying state court for review. According to the court in Verdin, this requirement of fair
presentment is satisfied when the petitioner's argument at the state level (1) relied on pertinent
federal cases, (2) relied on state cases applying federal constitutional analysis to a similar fact

pattern, (3) asserted the claim in terms so particular as to call to mind a specific constitutional