Accordingly, Petitioner procedurally defaulted this claim, barring it from federal review.
Rodriguez, 63 F.3d at 555, see alsa Lee v. Davis, 328 F.3d 896, 899 (7th Cir. 2003),

In addition, Petitioner procedurally defaulted his second claim regarding the trial court’s
refusal to ask certain voir dire questions by not raising this claim to the Illinois Supreme Court,
Although Petitioner initially raised this issue with the appellate court, he failed to raise the claim
again in his petition for leave to appeal to the Illinois Supreme Court. Accordingly, the
Petitioner has procedurally defaulted this claim as well. O ‘Sullivan v. Boerckel, 526 U.S. at 848,
119 S.Ct. at 1734; Moff v. Boyles, 288 F.3d at 982

B. Petitioner Has Not Demonstrated Cause or Prejudice

The Court will review previously waived issues only in “extraordinary instances when a
constitutional violation probably has caused the conviction of one innocent of the crime.”
Rodriguez, 63 F.3d at 555 (quoting MeCleskey v. Zant, 499 U.S. 467, 494, 111 8.Ct, 1454, 1470,
113 L.Ed.2d 517 (1991), Thus Petitioner can overcome procedural default either by
demonstrating cause for the default and actual prejudice as a result of the alleged violation of
federal law, or by showing that failure to consider the claims will result in a “fundamental
miscarriage of justice.” Coleman v. Thompson, 50) U.S. 722, 750, 111 8.Ct, 2546, 2565, 115
L,Ed.2d 640 (1991). Petitioner fails to demonstrate cause or prejudice and does not argue that he
is actually innocent or that federal review of his claims is necessary to prevent a fundamental

miscarriage of justice. Accordingly, procedural default bars both claims and the habeas petition

is denied



2254(a) (West 1996). Before considering a habeas petition on its merits, a federal court must
conclude that the petitioner exhausted all available state remedies and raised all claims during
state court proceedings. Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995); Verdin v,
O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992), “State courts must have a fair opportunity to
consider the petitioner’s constitutional claims before the federal courts may address those
claims.” Rodriguez, 63 F.3d at 555 (quoting Jones v. Washington, 15 3d 671, 674 (7th Cir,
1994)). Consequently, if a petitioner neglects to properly present a claim to the state’s highest
court, the claim is procedurally defaulted and barred from district court consideration, O'Sullivan
v. Boerckel, 526 U.S, 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (7th Cir, 1999); Moffat v.
Boyles, 288 F.3d 978, 982 (7th Cir, 2002)

A. Petitioner Procedurally Defaulted His Claims

On direct appeal, Petitioner argued that the trial court erred in (1) denying a peremptory
challenge during jury selection, (2) refusing to ask supplemental voir dire questions, (3)
preventing petitioner from presenting evidence of police bias, and (4) improperly considering a
statutory factor in aggravation during sentencing. Petitioner did not argue, however, that the use
of a confidential police informant violated his constitutional right to confront witnesses against
him, nor did Petitioner raise this issue in his petition for leave to appeal to the Mlinois Supreme
Court. Under Mlinois law, failure to raise an issue on direct appeal results in waiver that bars the
issue from subsequent proceedings. Rodriguez v. McAdory, 318 F.3d 733, 735 (7th Cir. 2003);
Mahaffey v. Schomig, 294 F.3d 907, 914 (7th Cir. 2002) (citing People v. Whitehead, 169 U1.2d
355, 371, 662, N.E.2d 1304, 215 Ill. Dec, 164:(1996), partial overruling on other grounds

recognized by People v. Page, 193 1.24 120/249 Il.Dec, 874, 737 N.E.2d 264 (2000)).


CONCLUSION
For the reasons stated above, Petitioner Rivera’s petition for a writ of habeas corpus is

denied.

Dated: July 28, 2003

AMY J, ST.
US, District Gout Judge

un



: a
Minute Qrder Fat (016797)

iY)

United States District Court, Northern District of Illinois

Name of Assigned Judge Amy J. St. Eve Sitting Judge if Other
‘or Magistrate Judge a than Assigned Judge
CASE NUMBER 00 C 7938 DATE 7/28/2003
CASE Rivera vs. Battles
TITLE
Un the following box (a) indicate the party filing the motion, c.g., plaintift, defendant, ard party plaintitt, and (b) state brictly the nature
MOTION: of the motion heing presented. ]

DOCKET ENTRY:

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

(2) o Brief in support of motion due

(3) Oo Answer brief to motion due_____. Reply to answer briefdue___.

(4) a Ruling/Hearingon set fora

(5) Oo Status hearing{held/continucd to] [sct for/re-sct for] on _setfor oo at_ >.

(6) o Pretrial conference|held/continued to] [sct for/re-set for]on_ set for at.

(7) Oo Trial[set for/re-set for]on___— at

(8) QO [Bench/Jury trial] [Hearing] held/continuedto__—_at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) O Local Rule 41.1 OFRCP41(a)(1) [1 FRCP41(a)(2).

(io) [Other docket enny] Enter Memorandum Opinion and Order. Petitioner’s petition for habeas corpus

1s denied as his claims are procedurally defaulted.

yt

(11)

[For further detail see order attached to the original minute order.|

No notices required, advised in open court.

No notices required.
rea umber of notices

Natices mailed by judge's staff.

Natified counsel by telephone.

wv | Dacketing to mail natices.

| Mail 40 450 form.

CIA DMP AT ATE

Copy to judge/magistrate judge.

courtroom n ,
1 deputy's

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mailing deputy initials



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

UNITED STATES OF AMERICA,

ex rel. JOSE RIVERA, JUL 29 2003

Petitioner,

v. No. 00 C 7938

JOHN C. BATTLES, Warden,
Illinois River Correctional Center,

we SSS eS SS

Respondent,

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge:

Petitioner Jose Rivera, currently incarcerated at the Illinois River Correctional Center in
Canton, Ilinois, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.A. §
2254 (West 1996). Respondent John C, Battles, conceding that Petitioner can no longer pursue
his habeas claims in state court and has therefore exhausted his state remedies, filed an answer
on the pleadings. For the reasons set forth below, Petitioner’s claims are procedurally defaulted
and the Court denies the petition.

PROCEDURAL BACKGROUND

In March of 1997, a jury convicted Petitioner Rivera of possession of a controlled
substance (cocaine) with intent to deliver pursuant to 720 IL1.. Comp. S1AT. 570/401 (1992), The
Cook County Circuit Court thereafter sentenced Petitioner to a 15 year term of imprisonment.
Petitioner appealed this conviction, arguing that the trial court erred by (1) denying a peremptory
challenge following a reverse Batson motion during jury selection, (2) refusing to ask certain

supplemental voir dire questions, (3) preventing petitioner from presenting evidence of police



bias, and (4) improperly considering a statutory factor in aggravation during sentencing. The
Illinois Appellate Court affirmed Petitioner’s conviction on September 22, 1999.

On October 5, 1999, Petitioner filed a petition for rehearing with the appellate court,
arguing (1) that the appellate court erred in finding that the trial court treated the State’s “reverse
Batson motion” as a claim of racial discrimination where the record indicates that the trial court
considered the motion on the basis of race and gender, and (2) that the trial court improperly
applied the analysis set forth in Batson v, Kentucky, 476 U.S. 79, 106 S.Ct, 1712, 90 L-Ed.2d 69
(1986). The appellate court denied Petitioner’s rehearing request on October 14, 1999

Petitioner then filed a petition for leave to appeal to the Illinois Supreme Court on
November 17, 1999. Ln his petition, Rivera only argued that the appellate court erred by limiting
its consideration of the Batson motion to the claim of racial discrimination where the record
indicated that the trial court reviewed the motion for both race and gender discrimination. On
February 2, 2000, the Ilinois Supreme Court denied Petitioner’s request for leave to appeal.

On December 19, 2000, Petitioner filed this petition for a writ of habeas corpus in the
Northern District of lilinois. Petitioner raises two claims pursuant to 28 U.S.C. § 2254: (1) that
his constitutional right to duc process under the fourteenth amendment was denied because he
did not have the opportunity to confront an anonymous police informant witness who provided
information against him, and (2) the trial court violated his constitutional right to a fair and
impartial jury under the sixth and fourteenth amendments when it refused to ask certain
questions during voir dire.

ANALYSIS
A federal court may grant a writ of habeas corpus to a state prisoner only if he or she is

being held in violation of the Constitution, lays, or treaties of the United States. 28 U.S.C.A. §