G. FOR PURPOSES OF HABEAS REVIEW A POST CONVICTION
EVIDENTIARY HEARING IS NON-COGNIZABLE

In claim eight of Luczak’s habeas corpus petition he alleges that he was denied
due process because he was denied an evidentiary hearing on the issues he raised in his
post conviction petition. A state court is not required nor obliged to either provide a post
conviction hearing or provide counsel under the United States Constitution.
Pennsylvania v. Finley, 481 U.S. 551, 556, 107 S.Ct. 1990, 95 L.Ed.2d 539(1987) See
US. v. MacCollom, 426 U.S. 317, 323, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976).

Under the Illinois Post Conviction Hearing Act, prior to a hearing, a court may
summarily dismiss the petition if the trial court determines that the petition is “frivolous
or ... patently without merit.” 725 Ill.Comp.Stat. 5/122-2 (2000). The United States
Supreme Court, on several occasions has recognized that this “process of winnowing out
weaker arguments on appeal and focusing on those more likely to prevail...[is} the
hallmark of effective appellate advocacy.” Jones v. Barnes, 463 U.S. 745, 751-752, 103
8.Ct. 3308, 77 L.Ed.2d 987 (1983) See Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct.
2661, 91 L.Ed.2d 434 (1986). The court in Boerckel also held that “discretionary review
tules not only provide an effective tool for apportioning limited resources, but also foster
more useful and effective advocacy.” O'Sullivan v. Boerckel at 858, 119 S.Ct.
1728(1999).

The Illinois Appellate court was not constitutionally required to provide an
evidentiary hearing for the claims Luczak raised in his post conviction petition. Luczak’s
habeas corpus claim does not raise a constitutional question because it alleges that
Illinois’ post conviction proceedings are inherently unconstitutional. Following the

holding in Pierson, Luczak’s claim of “error or defects in the state post-conviction

19


Scillia, 193 F.3d 913, 916 (7th Cir. 1999).

For Luczak to be considered to have fully and fairly litigated his claims in the
state courts he “must have placed both the operative facts and the controlling legal
principals before the state courts.” Chambers v. McCaughtry, 264 F.3d 732, 738 (7th
Cir. 2001). See Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001); Wilson v.
Briley, 243 F.3d 325, 327 (7th Cir. 2001). The court in O'Leary set forth four applicable
factors clarifying the fully and fairly litigated requirement. The court stated:

If the petitioner’s argument to the state court did not:

(1) rely on pertinent federal cases employing constitutional

analysis; (2) rely on state cases applying constitutional

analysis to a similar factual situation; (3) assert the claim in

terms so particular as to call to mind a specific constitutional

tight; or (4) allege a pattern of facts that is well within the

mainstream of constitutional litigation, then this court will

not consider the state courts to have had a fair opportunity to

consider the claim.
Verdin v. O'Leary, 972 F.2d 1467, 1473-1474(7th Cir. 1992). See Bocian v. Godinez,
101 F.3d 465, 469 (7th Cir. 1996); Griffin v. McCaughtry, 986 F.Supp. 570,
573(E.D.Wis. 1997). The court in McCaughtry further clarified that “[a] mere ‘passing
reference’ to a constitutional issue certainly does not suffice [for federal review.]”
Chambers v. McCaughitry at 738, 264 F.3d 732(2001) Citing to Fortini v. Murphy, 257
F.3d 39, 44 (1st Cir. 2001). In Wilks, the court noted that mere “variations in the same
claim rather than a different legal theory will not preclude exhaustion.” Wilks v. Israel,
627 F.2d 32, 38 (7th Cir. 1980). See Chambers v. McCaughtry, 264 F.3d 732(2001).

Luczak failed to give the State courts the first opportunity to fully and fairly

litigate habeas claims one, three, four, five, six, and seven. Luczak failed to articulate

those claims in a specific fact pattern within the “mainstream of constitutional litigation.”

13



Supreme Court on November 23, 1999. Luczak raised one issue; that his sixth and
fourteenth amendments were violated because the trial court erred by admitting evidence
of a prior conviction for aggravated sexual criminal assault. The United States Supreme
Court denied his petition on February 22, 2000. People v. Luczak, 528 U.S. 1164, 120
S.Ct. 1182, 145 L.Ed.2d 1088(2000).

On March 27, 2000, Luczak filed a pro se post conviction petition. Luczak raised
eight issues: (1) that his appellate counsel was ineffective because his counsel failed to
review the total disclosure of the record and failed to raise all meritorious claims on
direct appeal that appeared on record; (2) that his fifth and fourteenth amendments were
violated because the trial court erred in admitting evidence of a prior conviction for
aggravated criminal sexual assault; (3) that his fourth and fourteenth amendments were
violated by the trial court’s denial of his motion to quash arrest; (4) that his fifth and
fourteenth amendments were violated by the trial court’s denial of his motion to suppress
his oral confession; (5) that his fifth and fourteenth amendments were violated when the
trial Judge denied admitting a supplemental police report as substantive evidence; (6) that
his sixth and fourteenth amendments were violated when the trial Judge abused his
discretion in that the judge had a conversation with a juror outside the presence of
Luczak; (7) that his sixth and fourteenth amendments were violated because the trial
Judge denied Luczak adequate access to legal materials and a private investigator; (8)
that his sixth and fourteenth amendments were violated because the trial Judge abused his
discretion in denying Luczak’s petition for a new trial when the State failed to prove
Luczak’s guilt beyond a reasonable doubt. Luczak’s post conviction was

denied on April 6, 2000.


proceedings do not raise constitutional questions cognizable in habeas corpus
proceedings.” Zamora v. Pierson at 837, 158 F.Supp.2d 830(2001). Luczak’s claim that
he was denied due process because the Appellate court erred in denying him a post
conviction evidentiary hearing for the issues raised in his post conviction petition is
barred from review in this court.

H. FOR PURPOSES OF HABEAS REVIEW A FINLEY MOTION IS NON-
COGNIZABLE

In claim nine of Luczak’s habeas corpus petition he alleges that he was denied
due process when the appellate court granted his appointed post conviction appellate
counsel’s petition to withdraw pursuant to Pennsylvania v. Finley, The Supreme Court in
Finley, held that a state court is not constitutionally required to provide counsel during
the discretionary appellate review process. Pennsylvania v, Finley, 481 U.S. 551, 107
S.Ct. 1990, 95 L.Ed.2d 539(1987).

In Wainwright v. Torna, the court held that a criminal defendant does not have a
federal constitutional right to counsel to pursue discretionary state appeals. Wainwright
v. Torna, 455 U.S. 586, 587, 102 S.Ct. 1300; 71 L.Ed.2d 475(1982); Anderson v. Cowen,
227 F.3d 893, 899-900(7th Cir. 2000). As a criminal defendant in the Ilinois criminal
justice system, Luczak does not have a constitutional right to post conviction appellate
counsel because the review of a post conviction appeal is discretionary. 725
Ill.Comp.Stat. 5/122-2(2000). Therefore, Luczak cannot claim that a constitutional
violation occurred when the Appellate court granted his appointed counsel’s motion to
withdraw pursuant to Pennsylvania v. Finley, Under 28 U.S.C. §2254, Luczak’s habeas
claims are limited to where "[a specific] error results in a denial of a specific

constitutional right.” United States ex. rel McDaniel v. Cooper, unpublished order,

20


as a result of those errors. Therefore, the claim of ineffective assistance of appellate
counsel failed to meet the standard established in Strickland v. Washington, 104 S.Ct.
2052(1984),

Claims eight and nine are non-cognizable for habeas review because the
allegations are not “contrary to clearly established federal law.” 28 U.S.C.A. §2254, For
purposes under 28 U.S.C. §2254, Petitioner Luczak’s habeas corpus petition is denied.
This case is hereby terminated and all other pending motions stricken as moot (##16-1,
20-1, 21-1 and 22-1). Luczak’s Response to Respondent’s answer was comprehensive
and well written. Obviously, he has had the support of counsel at the jail house. Farmer

v. Haas, 990 F. 2d 319, 322 (7" Cir. 1993). This is a final and appealable order.

SO ORDERED: ENTERED: 3/. 244/23

RONALD A. GUZMAN
United States Judge

Page 22


outcome of the trial. The Appellate court would not have overturned Luczak’s
conviction for criminal sexual assault. Luczak has clearly failed to identify any specific
acts or omissions committed by his appellate counsel that would have prejudiced the
outcome of his trial.
F,. EXCEPTIONS TO PROCEDURAL DEFAULT

Even though Luczak has procedurally defaulted on claims one, three, four, five,
six, and seven, if he can show cause for the default and actual prejudice, or demonstrate
that a failure to consider the claim will result in a fundamental miscarriage of justice,
then habeas review may still be available. Resnover v. Pearson at1468, 965 F.2d
1453(1992). See Coleman v. Thompson at 750, 11 S.Ct. 2546(1991); Anderson v. Cowen
227 F.3d 899-900(7th Cir. 2000).

Luczak is required to establish a causal claim “as an independent {constitutional}
claim before it may be used to establish cause for a procedural default.” Murray v.
Carrier at 489, 106 S.Ct. 2639(1986) See Momient-El v. DeTella, 118 F.3d 535, 538
(1997). To demonstrate prejudice, the petitioner must show “not merely that the errors of
his trial created a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Lemons v. O’Sullivan_54, F.3d 357, 362, cert. denied, 516 U.S. 993, 116
S.Ct, 528, 133 L.Ed.2d 434 (7th Cir. 1995) Citing to: United States v. Frady, 456 U.S.
152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816(1982).

Luczak failed to demonstrate that any independent constitutional violation
occurred which caused him to default on his claim of due process violations. Luczak

makes a speculative allegation that due to the errors of his appellate counsel, his claims

17


n, 28, 102 S.Ct. 1558, 71 L.Ed.2d 783(1982). This requirement is “grounded in
principles of comity; in a federal system, the States should have the first opportunity to
address and correct alleged violations of [a] state prisoner’s federal rights.” Coleman v.
Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640(1991); rehearing denied
501 U.S. 1277, 112 S.Ct. 2546, 115 L.Ed.2d 1109 (1991).

Luczak is no longer eligible for the relief he seeks from the Illinois state-court
system because he has filed claims in the Illinois trial courts, Illinois appellate court, and
the Illinois State Supreme court in a timely manner. Luczak has no other available state-
court remedies. Therefore Luczak has exhausted his state-court remedies and this court
may properly review his habeas corpus petition.

C. PROCEDURAL DEFAULT

Even though Luczak has exhausted his state court remedies, Luczak is also
required to raise his claims through “one complete round” of the appellate process or risk
procedural default. O'Sullivan y. Boerckel at 845, 119 S.Ct. 1728(1999). In recognizing
Illinois’ established two-tiered discretionary appellate review process, the United States
Supreme Court in Boerckel, held that “state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process” or the petitioner risks procedural default.
Id,

Procedural default “occurs when a claim could have been but was not presented
to the state court and cannot, at the time the federal court reviews the habeas petition, be
presented to the state court.” Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992);

cert. denied 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 685 (1993). Like the exhaustion



brief; (4) that the trial court erred in refusing to admit a supplemental police report as
substantive evidence; (5) that the trial court erred in denying Luczak’s motion to suppress
his oral confession; (6) that the trial court erred in denying Luczak’s motion to quash
arrest; (7) that the trial court erred in holding Luezak, a pro se litigant, to the same
standards as a licensed attomey, denying him effective access to the law library at Cook
County Jail, and failing to appoint Luczak standby counsel; (8) that the trial court erred
in denying Luczak’s motion for a new trial because the State failed to prove Luczak’s
guilt beyond a reasonable doubt. The Illinois State Supreme Court denied Luczak’s
petition for leave to appeal in an unpublished order on October 3, 2001. Luczak then
filed this pro se writ of habeas corpus in the United States District Court for the Northern
District of Illinois on January 14, 2002.
DISCUSSION

Luczak raises nine claims: (1) He was denied a fair trial because his prior
conviction of aggravated criminal sexual assault was wrongfully admitted into evidence
during his trial; (2) he received ineffective assistance of appellate counsel because his
counsel failed to review all meritorious claims and failed to review the entire record prior
to filing his appellate brief; (3) he was denied due process because during the pre-trial
motion to suppress statements, after the State established a prima facie case, the trial
court erred in shifting the burden to the petitioner to prove that he did not waive his
Miranda rights; (4) he was denied due process because at a pre-trial motion to quash
arrest the State did not present enough evidence which would have established that the
police officers had probable cause at the time of his arrest; (5) he was denied due process

because the trial Judge did not allow a supplemental police report to be admitted to the



On April 5, 2001, Luczak’s appointed attorney for his post conviction appeal filed
a motion to withdraw as counsel pursuant to Pennsylvania v. Finley. Luczak filed a
Tesponse to the motion to withdraw on May 22, 2001. Luczak raised seven issues in his
response: (1) that the trial court erred in summarily dismissing Luczak’s post conviction
petition without an evidentiary hearing; (2) that his appellate counsel was ineffective
because the counselor failed to raise Miranda issues; (3) that the trial court erred in
refusing to admit supplemental police reports as substantive evidence; (4) that the State
failed to prove beyond a reasonable doubt that Luczak knowingly, intelligently, and
voluntarily waived his Miranda warnings; (5) that the trial court erred in the denying his
motion to quash arrest and in denying his motion to suppress statements; (6) that the trial
court erred in holding Luczak, a pro se litigant, to the same standards as a licensed
attorney; (7) the trial court erred in denying Luczak the right to effective access to the
Cook County Jail Law Library while he was being held in custody. On June 25, 2001, in
an unpublished order, the Appellate Court found no issues of arguable merits, granted the
appointed attorney's motion to withdraw as counsel pursuant to Pennsylvania v. Finley,
and affirmed the judgment of the circuit court.

Luezak filed his second pro se petition for leave to appeal to the Illinois State
Supreme Court on August 6, 2001. Luczak raised eight issues: (1) that the trial court
erred in summarily dismissing Luczak’s post conviction petition without an evidentiary
hearing; (2) that the Appellate court erred in dismissing Luczak’s post conviction appeal
based upon his appointed counsel's motion to withdraw pursuant to Pennsylvania v.
Finley; (3) that his appellate counsel was ineffective because the counselor failed to raise

all meritorious claims and failed to review the entire record before filing the appellate



alleging due process violations should not be defaulted. This court has determined that
Luczak’s claim of ineffective assistance of appellate counsel cannot act as the “cause” for
the defaults.

This court applied Luczak’s alleged violation of his sixth amendment right to
effective assistance of counsel to the standard established in Strickland v. Washington.
After the application of the Strickland standard, this court concluded that Luczak’s
appellate counsel was not ineffective. There was no substantial evidence presented that
supported the allegation that counsel did not review the entire record before filing the
brief, nor would any of the alleged errors prejudice the outcome of the trial court. Thus,
Luczak’s claim of ineffective assistance of counsel is not an independent constitutional
violation. Luczak failed at his attempt to have the ineffective assistance of appellate
counsel claim act as the “causal claim” that would have allowed defaulted claims to be
reviewed in this court.

Luezak also failed to demonstrate that without review of the alleged due process
violations a fundamental miscarriage of justice would result. The fundamental
miscarriage of justice exception applies “[i]n an extraordinary case, where a
constitutional violation has probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant a writ even in the absence of a showing of
cause and [prejudice] for procedural default.” Murray v. Carrier at 496, 106 S.Ct.
2639(1986). See Lemons v. O'Sullivan at 361, 54 F.3d 357(1995). Luczak’s petition
never proclaims that he is actually innocent of the crime, Luczak only alleges trial errors,
which denied him the right to due process. Therefore, the fundamental miscarriage of

justice exception does not apply to this habeas corpus petition.

18


“The ‘unreasonable application’ clause of 28 U.S.C. §2254(d)(1) governs alleged
errors in the state court’s application of Supreme Court precedent to the facts of the
case.” United States ex rel. Jones v. Chrans, 187 F.Supp. 2d 993, 1000 (N.D.IIL. 2002).
See Boss v. Pierce, 263 F.3d 734, 739 (7th Cir. 2001); see also Williams v. Taylor, 529
US. 362, 120 S.Ct. 1495, 1520-21, 146 L.Ed.2d 389 (2000). Only when the application
of constitutional Jaw is unreasonably erroneous may this court grant habeas relief.
Williams v. Taylor at 1520-21, 120 S.Ct. 1495(2000). See Washington v. Smith, 219 F.3d
620, 628 & n.5 (7th Cir. 2000) See also United States ex rel. Jones v. Chrans, 187
F.Supp.2d 993(N.D.IIl. 2002).

Under 28 U.S.C. §2254(d)(2), “state court factual findings that are reasonably
based on the record are presumed correct, and the petitioner has the burden of rebutting
that presumption by clear and convincing evidence.” Todd v. Schomig, 283 F.3d 842,
846(7th Cir. 2002) See 28 U.S.C. §2254(e)(1); See also Cossel v. Miller, 229 F.3d 649,
651 (7th Cir. 2000). This court will grant relief based upon the habeas petition only if the
petitioner offers substantial evidence that the state court factual findings were incorrect.
Rodriguez v. Peters, 63 F.3d 546, 554 (7th Cir. 1995).

B. DOCTRINE OF EXHAUSTION

For this federal court to review the claims Luczak asserts in this habeas corpus
petition, 28 U.S.C. §2254(b)(1)(A) requires that Luczak first exhaust all of his state court
remedies. Exhaustion “‘refers only to remedies still available at the time of the federal
petition,’ it requires federal courts to ask whether an applicant for federal relief could still
get the relief he seeks in the state system.” O'Sullivan v. Boerckel, 526 U.S. 838, 851,

119 S.Ct. 1728, 144 L.Ed.2d 1(1999) Quoting to Engle v. Isaac, 456 U.S. 107, 125-126,


‘Hinute Onder Fy
x4 WA United States District Court, Northern District of Ilinois
(

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CASE NUMBER 01 C 9352 DATE 3/24/2003
CASE Theodore Luczak vs. James M. Schomig
TITLE

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{ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION:

DOCKET ENTRY:

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(2) Oo Brief in support of motion due

(3) Qo Answer brief to motion due___. Reply to answer briefdue__.

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COFRCP4(m) OLocal Rule 41.1 CUFRCP41(aX1) OFRCP41(a\(2).

appealable order.

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

qo) « [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Petitioner Theodore
Luczak’s petition for writ of habeas corpus under 28 U.S.C. Section 2254 is denied. This is a final and

No notices required, advised in open court.

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n.28, 102 S.Ct. 1558(1982). .

Claim three in Luczak’s habeas corpus petition alleges he was denied due process
because during the pre-trial motion to suppress statements, after the State established a
prima facie case, the trial court erred in shifting the burden to the petitioner to prove that
he did not waive his Miranda rights. Claim four in Luczak’s habeas corpus petition
alleges that the trial court erred in denying his motion to quash arrest. In Luczak’s fifth
habeas claim, he alleges that the state court erred in denying his motion to admit a
supplemental police report as substantive evidence. Luczak objected to all three of these
habeas claims at trial, but Luczak failed to raise these issues on direct appeal.

Due to the objections made at trial, Luczak “preserved” the right to raise these
issues in his direct appeal. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522
N.E.2d 1124 (IL 1988)(Alleged errors of the trial court must be objected to at trial and
specified in a post-trial motion in order to preserve them for appeal.); People v.
Armstead, 322 Ill.App.3d 1, 748 N.E.2d 691, 254 Il.Dec. 973 (1st Dist. 2001). Luczak’s
failure to raise those issues on direct appeal barred him from raising those issues in post
conviction proceedings, preventing the issue from being raised to the Illinois State
Supreme Court. Post Conviction Hearing Act, 725 1LCS 5/122-1 et. seq. (West 1994) (in
post conviction proceeding, any issues which could have been raised on direct appeal, but
were not, are procedurally defaulted...). This “explicit finding of [Luczak’s) state law
procedural default prevents habeas review because it constitutes an ‘independent and
adequate state ground’ for the result reached.” Zamora v. Pierson, 158 F.Supp.2d 830,
837(N.D.IIl. 2001) Citing to Rivera v. Lane, 506 U.S. 920, 113 S.Ct. 335, 121 L.Ed.2d

253(1992). Luczak’s failure to raise habeas claims three, four, and five in his direct

11



requirement, the rule of procedural default is also “grounded in principles of comity; ina
federal system, the States should have the first opportunity to address and correct alleged
violations of [a] state prisoner’s federal rights.” Coleman v. Thompson at 731, 111 S.Ct.
2546(1991). Luczak has procedurally defaulted on habeas claims one, three, four, five,
six, and seven because he has failed to raise those claims in “one complete round” of
Illinois’ established appellate review process.

Claim one of Luczak’s habeas corpus petition alleges that the trial court erred in
admitting evidence of a prior criminal sexual assault conviction. Luczak raised this issue
in his direct appeal, his initial pro se petition for leave to appeal, and his pro se post
conviction appeal. Luczak failed to raise this issue in his pro se appeal of his post
conviction and in his final pro se petition for leave to appeal to the Illinois State Supreme
Court. Under the law established in Boerckel, an Illinois petitioner is required to raise
the issue to the highest State Supreme Court, even if the appellate review is discretionary.
O'Sullivan v. Boerckel 119 S.Ct. 1728(1999)

Luczak had the opportunity to raise this issue in all of his petitions but without
reason Luczak failed to raise this issue to the Illinois State Supreme Court. By failing to
raise this issue in his pro se post conviction appeal and his pro se petition for leave to
appeal, Luczak has failed to complete “one full round” of the Illinois’ appellate review
process. Thus, Luczak has procedurally defaulted on this issue and this court is barred
from further reviewing the merits of this habeas claim. Id. at 848, 119 S.Ct.
1728(1999)(Boerckel’s failure to present three of his federal habeas claims to the Illinois
Supreme Court in a timely fashion has resulted in a procedural default of those claims.)

See Coleman v. Thompson at 731-732, 11 S.Ct. 2546(1991); Engle v. Isaac at 125-126,

10



jury as substantive evidence; (6) he was denied due process because the statutes
governing pro se litigants were violated because he was never appointed standby counsel
nor did the Judge grant an order for petitioner to be allowed extended time in the Cook
County Jail Law Library; (7) he was denied due process because during the State’s
opening arguments, the State included inaccurate information that was contrary to the
evidence presented at trial; (8)he was denied due process because the trial court
dismissed his post conviction petition without an evidentiary hearing; (9) he was denied
effective assistance of counsel for post conviction appeal when the Appellate court
granted his appointed counsel’s motion to withdraw as counsel pursuant to Pennsylvania
v. Finley.
A. STANDARD OF REVIEW
After the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), the
law of habeas corpus requires that the federal courts review state court holdings with
deference to state-court fact findings and is limited to ensuring that the state courts
comply with “clearly established federal law.” The habeas corpus statute specifically
states:
(d) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of

the a State court shall not be granted with respect

to any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of

the claim-- (1) resulted in a decision that 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.


N.D.Iil. Sept. 23, 1998, No. 97 C 3221. Luczak was not denied a specific constitutional
right because there is no constitutional right of appointed counsel for post conviction
appellate proceedings. Therefore, a specific error did not result in the denial of a specific
constitutional violation. Thus, this claim is non-cognizable and this court is barred from
reviewing Luczak's habeas claim nine.

Luezak further alleges that the error occurs in the application of the established
federal law, which does not give an Illinois State prisoner a constitutional right to counsel
in discretionary review proceedings. If the alleged error occurs in a state collateral
proceeding, federal habeas corpus cannot serve as a remedy because the error is unrelated
to the defendant’s original reason for confinement. Jackson v. Duckworth, 112 F.3d 878,
879(7th Cir. 1997). Luczak’s habeas claims of errors in discretionary proceedings do not
specifically violate due process nor do these claims have any bearing on his conviction
for aggravated criminal sexual assault. Luczak’s claims are non-cognizable and are
therefore barred from review by this court.

CONCLUSION

Petitioner Luczak has procedurally defaulted on habeas claims one, three, four,
five and six. Luczak has failed to raise these claims in “one complete round” of Illinois’
state court system prior to raising the claims in his habeas petition. Luczak failed to
show cause for these procedure defaults and prejudice thereafter. Therefore, Luczak has
failed to give the state courts a “full and fair opportunity” to litigate the constitutional
issues raised in his habeas corpus petition.

Claim two of Luczak’s habeas petition alleges that his appellate counsel was

ineffective. With regard to the alleged attorney errors, Luczak failed to show prejudice

21


PROCEDURAL HISTORY

On July 7, 1997 Luczak, represented by an appointed public defender of Cook
County, filed his Direct Appeal in the First District of the State of Illinois. Luczak raised
one issue on direct appeal; that the trial court erred in admitting the evidence of his prior
conviction of aggravated criminal sexual assault. The First District Appellate Court
affirmed Luczak’s conviction for aggravated criminal sexual assault on June 14, 1999 in
a published opinion. People v. Luczak, 306 Ml.App.3d 319, 714 N.E.2d 995(1st Dist.
1999). The appellate court held that there were significant similarities between the two
crimes and the evidence was entered to prove a modus operendi, intent, identity, or
motive, which was in accordance with Illinois’s law regarding admissibility of other
crimes.

On July 13, 1999, Luczak filed a pro se petition for leave to appeal to the Illinois
State Supreme Court. Luczak raised four issues: (1) that the trial court and the appellate
court erred in granting the State's motion to enter evidence of a prior conviction for an
aggravated criminal sexual assault; (2) that the trial court erred when the jury was
instructed to consider the evidence of Luczak's prior conviction for aggravated criminal
sexual assault for the limited purpose of establishing Luczak’s identity and intent; (3) that
the trial court erred in admitting evidence of an alleged oral confession; and (4) that the
trial court abused it’s discretion for allowing a conversation between the judge and a
juror outside the presence of Luczak. On October 6, 1999, the Illinois State Supreme
Court denied Luczak’s petition pursuant to Illinois State Supreme Court Rule 23. People
v. Luczak, unpublished order dated October 6, 1999.

Luczak then filed a pro se petition for Writ of Certiorari to the United States


Verdin v. O'Leary, 972 F.2d 1467(1992). Luczak also failed to support those allegations
by relying “on pertinent federal cases employing constitutional analysis” or by relying
“on state cases applying constitutional analysis to a similar factual situation.” Verdin v.
O'Leary atl473-1474, 972 F.2d 1467(1992). See Bocian v. Godinez at 469, 101 F.3d
465(1996); Griffin v. McCaughtry at 573, 986 F.Supp. 570(1997). Therefore, Luczak has
failed to give the Illinois State courts the first opportunity to “fully and fairly” litigate
habeas claims one, three, four, five, six, and seven. Luczak’s failure constitutes
procedural default, which, under 28 U.S.C. §2254, bars this court from reviewing the
merits of the allegations asserted in habeas claims one, three, four, five, six, and seven.
E. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

In claim two of his habeas corpus petition, Luczak alleges that he received
ineffective assistance of appellate counsel on direct review, which violated his right
guaranteed by the sixth amendment of the Constitution of the United States. Luczak
alleges that his counsel failed to raise all meritorious claims in his direct appeal and
failed to review the entire record before filing his appellate brief. “The Sixth
Amendment right to counsel is the right to effective assistance of counsel, and the
benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Strickland v. Washington at 669, 104 S.Ct.
2052(1984).

In reviewing counsel’s performance, the courts used an objective standard of
reasonableness, “with a highly deferential presumption in favor of the reasonable

exercise of professional judgment.” U.S. v. Hodges, 259 F.3d 655, 658 (7th Cir. 2001)

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The letter indicates that his counsel did file the appellate brief in a timely manner
and that she returned the record so the State could withdraw it and use it for its response
brief. Since the State had withdrawn the record, Luczak’s counsel had to order a copy of
the proceedings. This does not prove that his counsel failed to raise all meritorious
claims nor does it prove that counsel failed to review the entire record prior to the filing
of the direct appellate brief. Luczak has failed to identify any specific acts supported by
substantial evidence that his appellate counsel was ineffective and this court is therefore
barred from granting Luczak’s habeas corpus petition on this issue.

In identifying the specific acts or omissions that constitute ineffective assistance
of counsel, Luczak must also demonstrate that these acts prejudiced the outcome of the
trial court. Strickland v. Washington at 687, 104 S.Ct. 2052(1984). “Not just any
deficiency in counsel’s performance will do, however; the assistance must have been so
ineffective as to violate the Federal Constitution.” Edwards v. Carpenter, 529 U.S. 446,
451, 120 S.Ct. 1587, 146 L.Ed.2d 518(2000) See Murray v. Carrier, 477 U.S. 478, 490-
492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). “To succeed on a Sixth Amendment of
ineffective assistance of counsel, defendant must show that there is a reasonable
probability, which is a probability sufficient to undermine confidence in the outcome,
that but for counsel’s unprofessional errors, result of the proceeding would have been
different." U.S.C.A. Amend. 6. See Strickland v. Washington, 104 S.Ct. 2052(1984).

The aggravating circumstances proved at Luczak’s trial (i.e. the identification
made by the victim, the testimony of a prior victim that established intent, the oral
confession, etc...) were so overwhelming that even if Luczak’s appellate counsel did fail

to review the entire record before filing the brief, it would not have prejudiced the

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Prior to trial, Luczak motioned to quash his arrest and suppress his oral
confession. The motion to quash his arrest was denied based upon the determination that
the police officers had probable cause to arrest Luczak in the doorway of his residence.
Luczak had also been identified in a line up by the victim and her sister. The motion to
suppress the oral confession was also denied. The trial judge concluded that Luczak had
failed to present “clear and convincing” evidence that he did not knowingly, intelligently
and voluntarily waived his Miranda rights, and that the state did establish a prima facie
case that the defendant knowingly, intelligently and voluntarily waive his Miranda rights.

During trial, Luczak motioned for permission to represent himself without the help of
a licensed attorney. After the trial judge inquired to Luczak’s ability to represent
himself, pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d
562(1975), the trial judge ruled that Luczak was able and fit to represent himself during
the remainder of the trial.

Also during trial, Luczak asked the trial judge to enter an order allowing him
more time in the Law Library located in the Cook County Jail. Given that Luczak was
being held in custody at that time, thus the trial judge denied Luczak’s request stating
that this request was for the prison officials to decide, and not the court.

After the jury instructions were given, the jury foreperson requested a copy of the
supplemental police report for review in the jury deliberation room. The trial judge
denied such a request based upon the Illinois Rules of Criminal Procedure §803
governing hearsay. After deliberation, the jury announced that the state had proven
beyond a reasonable doubt that Luczak was guilty of two counts of aggravated criminal

sexual assault.


IN THE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
THEODORE LUCZAK, )
Petitioner, } No. 01 CV 09352
v } Judge Ronald A Guzman
JAMES M. SCHOMIG, Warden, }
Pontiac Correctional Center, )
Respondent. }

Before this court is Theodore Luczak’s (“Luczak”) petition for writ of habeas
corpus under 28 U.S.C. §2254. For the following reasons, this court denies the petition.

FACTUAL BACKGROUND

pOCheTeD
MAR 2,7 2003

When considering a habeas corpus petition we presume that the factual
determinations of the state court as true, 28 U.S.C. § 2254(e)(1). Thus, we adopt the
facts as set forth by the Illinois Appellate Court. People v. Luczak, 306 Ill. App. 3d 319,
714 N.E.2d 995, 239 Ill. Dec. 698 (1st Dist. 1999).

Following a jury trial defendant was convicted on two counts of aggravated
criminal sexual assault. Prior to trial, the State moved to introduce evidence of
defendant’s (hereinafter referred to as “defendant” or “Luczak”) prior crime, arguing that
evidence of the other crime established defendant’s criminal intent at the time of the
charged crime and Luczak’s modus operandi. Over objection, the trial court granted the
motion, and stated that the evidence of the other crime demonstrated defendant’s modus

operandi and criminal intent.


appeal has procedurally defaulted those claims from review by this court.

Luczak’s sixth habeas claim alleges that the trial judge abused his discretion
when he failed to appoint Luczak standby counsel during his trial. Luczak’s seventh
habeas claim alleges that the Assistant State’s Attorneys included information in their
opening statement that was inconsistent with evidence presented at trial. Luczak failed to
object to these alleged errors at trial, which bars him from raising these issues in his
direct appeal. People v. Ross, 329 Ill.App.3d 872, 769 N.E.2d 953, 264 Ill.Dec.116 (Ist
Dist. 2002) See People v. Enoch, 522 N.E.2d 1124(1988). Luczak failed to follow the
state rule requiring that it must be raised at trial or on direct appeal, prior to raising the
issue to the Illinois State Supreme Court. He has procedurally defaulted habeas claims
six and seven from habeas review. Engle v. Isaac, 102 S.Ct. 1558(1982).

D. FULL AND FAIR OPPORTUNITY FOR LITIGATION IN THE STATE
COURTS

Luczak has not only failed to raise claims one, three, four, five, six, and seven in
“one complete round” of the Illinois’ appellate review process, but he has also failed to
allow the state courts to fully and fairly litigate those issues, For a federal court to
review a claim raised in a habeas corpus petition, the petitioner must also allow the state
courts to have an opportunity to “fully and fairly” review the claim raised or the
petitioner risks procedural default. Momient-El v. DeTella, 118 F.3d 535, 538, cert
denied, 522 U.S. 984, 118 S.Ct. 448, 139 L.Ed.2d 384 (7th Cir. 1997). See Duncan v.
Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995). When it is decided
that the state courts have not had a full and fair opportunity to consider the constitutional
claim, then the claim is considered to be procedurally defaulted, thus barred from review

by the federal courts. O'Sullivan v. Boerckel, 119 §.Ct. 1728(1999). See Rodriguez v.

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See Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The purpose of this standard is “not to improve the quality of legal representation,
although that is a goal of considerable importance to the legal system, The goal [of this
standard] is simply to ensure that criminal defendants receive a fair trial.” Kubat v.
Thieret, 867 F.2d 351, 359(7th Cir. 1989) Quoting Strickland v, Washington at 689, 104
S.Ct. 2052(1984); Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83
(1955). The Supreme Court in Strickland established that the standard requires the
“defendant [to] bear the burden of showing: (1) that counsel’s performance was deficient;
and (2) that the deficient performance prejudiced the defense.” Kubat v. Thieret at 867,
F.2d 351(1989) See Strickland v. Washington, 466 U.S. 668, 669, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).

In alleging that his appellate counsel’s performance was deficient, Luczak is
required to “identify the acts or omissions [committed by his] counsel that are
unreasonable." U.S. v. Hodges at 658, 259 F.3d 655(2001) Citing to Strickland v.
Washington, 104 §.Ct. 2052(1984). This court must then "determine whether, in light of
all the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance.” Id. Luczak has failed to specifically identify acts
or omission that are unreasonable.

Luczak has offered no substantial evidence in support of his allegations that his
counsel was ineffective. Luczak includes a letter written to him by his appellate counsel,
but the content of the letter does not prove that counsel did not fully review the entire
record before filing the brief nor does it prove that counsel failed to raise all meritorious

claims in the appellate brief.

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