served on. Although defense counsel argued that those
explanations were pretextual, the trial judge disagreed and
denied the Batson challenge.

Because the trial court is in the best position to evaluate
the legitimacy of such explanations in a Batson hearing, under
Illinois law “a trial court’s determination with respect to a
defendant’s Batson claim is entitled to great deference and will

be disturbed on appeal only if manifestly erroneous” (People v.

Wiley, 165 Ill.2d 259, 274, 651 N.E.2d 189, 195 (1995)). Nothing
in the record suggests that to be the case here . Again any

failure on counsel’s part to have presented the issue on appeal
cannot be faulted in Sixth Amendment terms.

3. Admissibility of Impeachment Evidence

As for the admissibility of testimony from various witnesses
offered by the prosecution to impeach Muhammad's testimony on the
stand (in which he denied, or testified that he didn’t remember,
making statements contained in the transcript of his grand jury
testimony), any decision to present the evidentiary rulings on
appeal would have faced a steep uphill climb (People v. Tligen,
145 Ill.2d 353, 364, 583 N.E.2d 515, 519 (1991) (internal
citations omitted)):

The admissibility of evidence at trial is a matter

within the sound discretion of the trial court, and

that court’s decision may not be overturned on appeal

absent a clear abuse of discretion. Such an abuse of

discretion will be found only where the trial court’s
decision is arbitrary, fanciful or unreasonable or

20


outright affirmance of the dismissal of the petition, rather than
expressly identifying a procedural ground. But the quoted
language was employed only in stating that the court “agree [d]
with counsel’s evaluation” of Harvey’s claims. And for all of
those claims except the purported ineffective assistance provided
by trial counsel, that evaluation was that they were “waived or
res judicata.” That, coupled with the fact that Illinois law
clearly treats those claims as forfeited because Harvey failed to
assert them on direct appeal, leads this Court to conclude that
this is not a case in which there is a “good reason to question
whether there is an independent and adequate state ground”
(Coleman, 501 U.S. at 739) for the Appellate Court’s decision as
to all of Harvey’s claims except ineffective assistance of trial
counsel. In sum, all but one of the claims are procedurally
defaulted and can be addressed by this Court only upon a showing
by Harvey of cause for the default and prejudice as a result of
the claimed constitutional violation.

Counsel’s Finley brief did however address the merits of the
ineffective assistance of trial counsel claim, and the Appellate
Court’s agreement with that evaluation must be viewed as being
“interwoven with the federal law” (id. at 735). Hence that claim
is therefore properly before this Court. But before this opinion
addresses that one claim in Section 2254(d) terms, it will

determine whether Harvey can escape the consequences of

14


party seeking it is deprived of his right to a fair trial”
(People v. Redd, 125 I11.2d 252, 323, 553 N.E.2d 316,348 (1990)).
That cannot be said here such that the omission of that
contention from the issues on appeal could be labeled as
objectively unreasonable.

7. Selective Prosecution

Claims of selective prosecution do implicate the equal
protection component of the Due Process Clause, but they require
“proof that the decision to prosecute was based on impermissible
considerations such as race, religion, or the desire to penalize

the exercise of constitutional rights” (United States v. Peskin,

S27 F.2d 71, 86 (7th Cir. 1975)). Nothing in the record supports
Harvey’s contention that he was prosecuted because of his
membership in the Nation of Islam, so there would have been no
legitimate basis for advancing that argument on appeal.

8. Prosecutorial Remarks

Harvey claims the trial included a number of improper
prosecutorial remarks, particularly those involving the Nation of
Islam. Illinois law (like federal law) holds “it is improper for
the prosecutor to do or say anything in argument the only effect
of which will be to inflame the passion or arouse the prejudice
of the jury against the defendant, without throwing any light on
the question for decision” (People v. Smith, 141 I11.2d 40, 60,

565 N.E.2d 900, 908 (1990)). But even “[i]mproper remarks will

24


petitioned for leave to appeal to the Illinois Supreme Court,
raising only the issue of juror coercion. That petition was
denied on January 29, 2001.

On July 28, 2001 Harvey filed a pro se petition for relief
in the Circuit Court under the Illinois Post-Conviction Hearing
Act (725 ILCS 5/122-1), advancing numerous ways in which his
constitutional rights had assertedly been violated: in addition
to (1) the evidence as to his guilt having been insufficient, the
trial judge had erroneously (2) denied trial counsel’s challenge
under Batson v. Kentucky, 476 U.S. 79 (1986) to the prosecution's
use of peremptory challenges to African-American prospective
jurors, (3) admitted testimony offered by the prosecution to
discredit Muhammad’s denial of his statements before the grand
jury, (4) denied the jury’s request for a definition of
“reasonable doubt,” (5) denied the jury’s request for transcripts
and (6) refused to investigate the disappearance of certain
jurors’ notes following the first day of testimony; (7) Harvey's
conviction was the result of selective prosecution; (8) the
prosecutor’s closing argument was prejudicial; (9) the
prosecution knowingly presented perjured testimony; and
(10) Harvey’s trial counsel was ineffective for failing to
challenge jurors who were biased against the Nation of Islam.
Finding the petition to be “frivolous and without merit,” the

trial judge denied it summarily.


trial counsel was constitutionally ineffective for failing to
challenge those jurors. That being so, the Appellate Court’s
rejection of that claim was not an unreasonable application of
Strickland. Accordingly Harvey’s ineffectiveness claim has
flunked the demanding standards set out in Section 2254(d) (1).
Conclusion

Nine of Harvey’s ten claims were procedurally defaulted in
the Illinois courts. And because Harvey is unable to satisfy
either the “cause and prejudice” or “fundamental miscarriage of
justice” exceptions to the procedural default doctrine, those
claims are barred from consideration in this Court. Finally,
Harvey has also failed to show that his remaining claim was
adjudicated by the Illinois courts in a manner that involved an
unreasonable application of clearly established federal law.

Harvey’s Petition for federal habeas relief must be and is hereby

Milton I. Shadur
Senior United States District Judge

denied.

Date: March 21, 2005

35


where no reasonable man would take the view adopted by
the trial court.

That hill clearly could not have been surmounted here.

On direct examination by the prosecution, Muhammad was asked
about a conversation he had with Assistant States Attorneys
Bernard Murray (“Murray”), Michael Rogers (“Rogers”) and Laura
Forester (“Forester”) earlier that same day. Muhammad testified
that he did not make statements incriminating Harvey during that
conversation (Ex. H 225-30). To rebut that denial, the
prosecution called Forester to the stand, and she testified that
earlier in the day Muhammad did indeed make various statements
incriminating Harvey in Jones’s murder (Ex. I 34-38).

Harvey also complains about the testimony of Assistant
States Attorney John Lyke (“Lyke”) (Ex. I 49-93), who testified as
to his interview of Muhammad only regarding the circumstances of
that interview and the circumstances surrounding Muhammad’s grand
jury testimony--not to any statements that Muhammad actually
made. Detective Dennis Keane (“Keane”) (Ex. H 19-44), whose
testimony Harvey also mentions as part of this claim, was called
to the stand before Muhammad and testified about the initial
investigation of Jones’ murder.

Under Illinois law a party may impeach the testimony of its
own witness (Ill. $.Ct. Rule 238) and may do that through the use
of prior inconsistent statements where the witness’ testimony is

detrimental to the position of that party (People v. Weaver, 92

21


But that after-the-fact assertion (even assuming its accuracy
arguendo) was not part of the trial record and hence-~-by
definition--could not have been presented on direct appeal, the
only context in which the issue arises here.
Prejudice?

In sum, it cannot be said that appellate counsel’s
noninclusion of any of the nine defaulted claims was objectively
unreasonable. Because counsel’s performance was thus not

deficient in Strickland terms, this opinion need not address the

second prong of the Strickland test: whether any assertedly

deficient performance impermissibly prejudiced the appeal.

Harvey’s inability to satisfy the two-part Strickland standard,

and thus to establish “cause” for purposes of Coleman’s “cause
and prejudice” exception to the doctrine of procedural default,
also obviates the need to address the “prejudice” prong of that
inquiry.

Fundamental Miscarriage of Justice

All that remains as to those nine claims, then, is to
consider briefly whether Harvey can satisfy Coleman’s other
exception, under which the failure to address a procedurally
defaulted claim would result in a “fundamental miscarriage of

justice” (Coleman, 501 U.S. at 750). Gomez v. Jaimet, 350 F.3d

673, 679 (7th Cir. 2003), citing and quoting Schlup v. Delo, 513

U.S. 298 (1995), has explained the limited nature of that

27


judge’s determination will not be disturbed on review” (People v.
Kliner, 185 111.2d 81, 163, 705 N.E.2d 850, 891 (1998)). Given
that highly deferential standard of review, the issue was not
“clearly stronger” than those actually raised by appellate
counsel, so that its omission from the appeal was not
constitutionally suspect.

6. Failure To Investigate Disappearance of Juror’s Notes

When on the second day of testimony the trial judge was
unable to locate the notes a number of jurors had taken the day
before, defense counsel moved for a mistrial. Harvey now argues
that the disappearance of those notes and the trial court’s
failure to investigate “evinces an obvious prejudice by the trial
judge against Petitioner where the judge previously upheld the
prosecution’s exclusion of a female African American from the
jury simply because it was alleged that she was not paying
attention.” Because any claimed failure to “investigate the
disappearance” of those notes does not of itself implicate any
federal rights, for present purposes the claim must be viewed as
one challenging the trial court’s refusal to grant a mistrial as
an infringement of Harvey’s Sixth Amendment right to trial by a
fair and impartial jury.

Whether to grant a mistrial is in the sound discretion of
the trial court, to be exercised generally “only as the result of

some occurrence at trial of such character and magnitude that the

23


of which has been presented here:

1. whether the jury’s guilty verdict was the product
of duress and coercion, violating Harvey’s Sixth Amendment
right to an impartial jury; and

2. whether trial counsel was ineffective for failing
to move for a mistrial upon receipt of the note from juror
Anita Hooper during deliberations.

To succeed on his present claim of ineffective assistance, Harvey
must show that those two issues were pursued to the exclusion of
issues that were both “obvious and clearly stronger.” That calls
for a seriatim consideration of the failure to raise each now-
defaulted federal claim.

1. Sufficiency of the Evidence

Appellate counsel did not advance a general claim under
Jackson v. Virginia, 443 U.S. 307, 318 (1979) that the record
evidence could not reasonably support a finding of guilt beyond a
reasonable doubt. But the barrier raised by Jackson is so high
that counsel cannot be faulted for not having done so.*

Like federal courts, Illinois courts that address

3 Habeas jurisprudence does not call for an evidentiary

hearing to inquire into a lawyer’s thought processes in shaping
an appellate presentation. But all judges know--and all good
lawyers should know--that presenting dead-bang losers as part of
a submission to a court can often dilute the impact of whatever
legitimate issues ought to be proffered for consideration (see,
e.g., Mason v. Hanks, 97 F.3d 887, 893 (7° Cir. 1996) and cases
cited there). No habeas court may properly fail to take into
account the possibility of such appropriate strategic judgments.

18


procedural obstacles must then satisfy Section 2254's stringent
standards for granting habeas relief on claims that state courts
have considered and rejected on their merits. Here is section
2254(d):
An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of 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.
Because Respondent has argued that Harvey procedurally defaulted
all of his claims, this opinion turns to that subject.
Procedural Default
Procedural default occurs either (1) when a state court has
declined to address a prisoner's federal claims because the
prisoner failed to meet an adequate and independent state
procedural requirement or (2) when a claim that could have been

but was not brought before a state court can no longer be

asserted in that forum (Coleman, 501 U.S. at 729-32; Conner v.

McBride, 375 F.3d 643, 648 (7th Cir. 2004)). Only the first
alternative is at issue here, given the identity of claims raised

in Harvey’s unsuccessful state post-conviction petition and in

10


The Court: I just want to ask each of you, the
remaining three persons, can you be fair
to Mr. Muhammad, sitting over here?
A: Yes, Yes, Yes.
Although different responses on voir dire may be
contradictory and hence ambiguous, if a prospective juror then
provides a categorical affirmative answer to the question whether
he can be fair (as Devlin, like Martin, ultimately did), the
presumption that the trial judge “is best situated to determine
competency to serve impartially” should not be disturbed (Patton,
467 at 1039). So the acceptance of Devlin’s assurance was not
unreasonable in light of the record.
Though Harvey also asserts that the presence of Margaret
Kelly (“Kelly”) on the jury prejudiced him, her voir dire
responses revealed no bias against the Nation of Islam. Instead
her answers to questions from Assistant States Attorney Murray
revealed a possible bias against gang members (Ex. G 17a):
Murray: Also, we’1ll have gang members testify.
We ask you to do the same thing with
their testimony: Give them no greater
nor less weight than any other witness.
Could the two of you do that?

Kelly: I don’t know. I don’t believe in gangs.

Murray: I imagine if we asked everybody in this
room, the would say that. What we'd ask
you to do it look at the witness on the
stand, and don’t give them any greater
weight because they are a gang member,

and don’t give their testimony an less
weight because they are a gang member.

33


unreasonable” (Williams, 529 U.S. at 409)--it would not be enough
that the court’s legal determination was incorrect (id. at 410-
11). In this instance, because the Appellate Court’s statement
of its conclusion omitted the analysis leading to that legal
determination, this Court must engage in its own independent
analysis of the ineffectiveness claim. And only if that
evaluation were to reveal that the Appellate Court reached the
incorrect result would it be necessary to consider whether the
ultimate determination was also objectively unreasonable.

On then to a look at whether Harvey’s ineffectiveness claim
has substantive merit. Once again that implicates the two-part
Strickland analysis of (1) assertedly deficient performance and
(2) claimed prejudice to the defendant. Because “(t]he object of
an ineffectiveness claim is not to grade counsel’s performance,”
(466 U.S. 697), Strickland, id. teaches:

If it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be

followed.

And sure enough, that approach is fatal to Harvey’s claim of his
trial counsei’s ineffectiveness.

In that respect Harvey challenges only his counsel’s failure
to strike three assertedly biased jurors. To show prejudice from
such a failure, Harvey must show that the jurors were actually
biased against him (Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir.

1995), citing Smith v. Phillips, 455 U.S. 209, 215 (1981);

30


denied by the Illinois Supreme Court on February 5, 2003.

Timeliness of the Petition

Because Harvey’s Petition was filed considerably more than a
year after his conviction became final, this Court must make a
threshold determination as to whether it was timely. Section
2244(d) (1) (A), which applies here, requires that such a petition
be filed within one year after “the date on which the judgment
became final by the conclusion of direct review or the expiration
of the time for seeking such review.” Because Anderson v.
Litscher, 281 F.3d 672, 674-75 (7th Cir. 2002) teaches that the
“time for seeking such review” includes the 90 day period during
which a defendant may file a petition for certiorari in the
United States Supreme Court, Section 2244(d) (1)’s one year period
began to run on April 30, 2001 (90 days after the Illinois
Supreme Court’s January 29, 2001 entry of judgment rejecting the
direct appeal). That being so, Harvey’s May 28, 2003 Petition
was obviously untimely unless the limitations period had been
tolled by operation of Section 2244(d) (2), under which “time
during which a properly filed application for State post-—
conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted....”

As stated earlier, Harvey’s petition for state post-
conviction relief was filed on July 28, 2001. That petition came

just within the six month limitations period imposed by the


After filing a notice of appeal on Harvey’s behalf from that
denial of post-conviction relief, his appointed appellate counsel

moved to withdraw pursuant to Pennsylvania v. Finley, 481 U.S.

551 (1987). Counsel's Finley brief explained that there were no
viable issues for appeal, concluding (1) that Harvey’s claims of
substantive error were forfeited because they could have been

raised on direct appeal but were not and (2) that his ineffective

assistance claim did not meet the requirements of Strickland v.

Washington, 466 U.S. 668 (1984). Harvey filed a pro se response
to counsel’s Finley motion, raising the same claims that he had
set out in his post-conviction petition. In an unpublished
September 26, 2002 order in its Case No. 1-01-4029, the Appellate
Court (1) stated that it had “carefully reviewed the record” and
“agree[d] with counsel's evaluation,” (2) granted counsel’s
motion to withdraw and (3) affirmed the Circuit Court’s denial of
the post-conviction petition.

Harvey then sought leave to appeal that ruling to the
Illinois Supreme Court. His pro se brief raised all of the
issues included in his original post-conviction petition and
additionally asserted that his post-conviction appellate counsel
had failed to comply with Illinois Supreme Court Rule 651(c) in
withdrawing from the case, thereby violating Harvey’s rights to
due process and equal protection in the post-conviction

proceeding. Harvey's petition for leave to appeal was summarily


suf ficiency-of-the-evidence claims under Jackson have made clear
that “a reviewing court will not substitute its judgment for that
of the trier of fact on issues of the weight of evidence or the
credibility of witnesses” (People v. Cooper, 194 I1l.2d 419, 431,
743 N.E.2d 32, 40 (2000))- Credibility judgments played a
central role in Harvey’s trial, with the jury hearing statements
implicating Harvey in Jones’ murder from various sources: both
the grand jury testimony of Rush and Muhammad and the in-court
testimony of Harris and (to a lesser extent) his wife Angelique.
Because the jury obviously chose to credit those statements, and
because Illinois law effectively insulates that choice from
appellate review, counsel’s decision to forgo the issue on appeal
was not objectively unreasonable.

2. Use of Peremptory Challenges

After Harvey’s trial counsel had raised a Batson challenge
to the prosecution’s use of peremptory strikes to remove two
African-American women from the jury panel, the trial judge
ordered the prosecution to provide a race-neutral reason for the
strikes (Ex. G 158-62). In response the prosecutor explained
(1) that the first potential juror had appeared to nod when
defense counsel was speaking and that she lived near a mosque and
(2) that the second potential juror appeared hesitant when asked
if she could accept the testimony of gang members and also

appeared confused when asked how many juries she had previously

19


(Baldwin v. Reese, 541 U.S. 27, 124 S.Ct 1347, 1349 (2004)
(internal quotation marks omitted); see also Section 2254 (b) (1)).
But “where, as in this case, the petitioner has already pursued
his state-court remedies and there is no longer any state
corrective process available to him, it is not the exhaustion
doctrine that stands in the path to habeas relief,...but rather
the separate but related doctrine of procedural default”
(Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004)). That
doctrine, “grounded in considerations of comity and concerns for
the orderly administration of justice” (Dretke v. Haley, 541 U.S.
386, 124 S.Ct. 1847, 1852 (2004) (internal quotation marks
omitted)), provides a strong prudential reason for federal courts
to avoid addressing a defaulted federal constitutional claim on
habeas review.

Once barred on procedural default grounds, a claim will not
be cognizable in a federal habeas proceeding unless the

petitioner can clear one of two hurdles established by Coleman v.

Thompson, 501 U.S. 722, 750 (1991):

We now make it explicit: In all cases in which a state
prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is
barred unless the prisoner can demonstrate cause for
the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that
the failure to consider the claims will result ina
fundamental miscarriage of justice.

Any claims that manage to survive those threshold and intricate


not merit reversal unless they result in substantial prejudice to
the defendant, considering the context of the language used, its
relationship to the evidence, and its effect on the defendant’s
rights to a fair and impartial trial” (id.).

Harvey first complains that the prosecutor’s opening
statements disparaged the Nation of Islam by implying that
members of the group had unlawfully impeded the investigation of
Jones’ murder. When viewed in the context of the prosecution's
theory of the case, however, those statements had the valid
purpose of explaining the discrepancies in Rush's and Muhammad’ s
testimony.

Next Harvey complains of “inculcating and incendiary
remarks” made by the prosecutor during closing argument. For
example, Assistant States Attorney Rogers said this:

Jasiri Lane and Joseph Butler give minimum information

after they get caught in a lie and they run away and

hide. Yes, they do come into the police department

later after conferring with their fellow bow tie

wearers.

After counsel objected to that characterization of members of the
Nation of Islam, Rogers explained, “t do not attack the Nation of
Islam, I attack some of the members of that group” (Ex. J-105).

While the pejorative reference to members of the Nation of
Islam as “bow tie wearers” was certainly inappropriate, it could
not have served as a basis for reversal on appeal absent a

showing of substantial prejudice. Under that demanding standard,

25


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

UNITED STATES OF AMERICA ex rel.
TYRONE HARVEY #K55075,

)

)

)

Petitioner, )
v. } No. 03 € 3855
NEDRA CHANDLER, }
Respondent. }

MEMORANDUM ORDER

On May 28, 2003 Tyrone Harvey (“Harvey”) filed a Petition
for Writ of Habeas Corpus (“Petition”) under 28 U.S.C. §2254' to
challenge his August 22, 1998 state court conviction of first-
degree murder, on which he is serving a 40-year sentence. In
compliance with Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts (“Section 2254 Rules”), this
Court promptly reviewed the Petition and its attachments.

Because the Petition posed issues that could not be
evaluated from that filing alone, this Court’s threshold review
prompted the issuance of a June 11, 2003 memorandum order that
directed then Warden Jerry Sternes (for convenience the term
Respondent” refers both to him and to present Warden Nedra

Chandler) to file a responsive pleading as called for by Section

2254 Rule 4. With that filing now in hand, it is clear that the

> All further references to Title 28's provisions will
simply take the form of “Section --.” All “ex.” references are
to volumes of the trial transcript, which is itself Ex. 0 to
Respondent's submission.


that claim. For those purposes the relevant decision is that of
the Illinois Appellate Court that granted appointed counsel’s
motion to withdraw and affirmed the Circuit Court’s summary
denial of Harvey’s post-conviction petition.

Appointed counsel’s Finley brief before the Illinois
Appellate Court concluded that there were no meritorious issues
for appeal. In that respect counsel first explained that all of
Harvey's claims of substantive error could have been raised on
direct appeal and that those issues “therefore would be waived or
res judicata” in post-conviction proceedings. Next counsel
stated that Harvey’s ineffective assistance of trial counsel
claim did not meet the familiar Strickland standard. In his pro
se response Harvey repeated all of his claims and disagreed with
counsel’s assessment of their merit. When the Appellate Court
then granted counsel’s motion to withdraw and affirmed the denial
of the petition, its order stated:

We have carefully reviewed the record in this case, the

(Einley] brief and petitioner’s pro se response in

compliance with the mandate of Finley and agree with

counsel’s evaluation. Therefore, the motion of the

public defender for leave to withdraw as counsel is

allowed and the judgment of the circuit court of Cook

County is affirmed.

Wilkinson v. Cowan, 231 F.3d 347, 351 (7th Cir. 2000) has
held that when as here the Illinois Appellate Court affirms the

dismissal of a post-conviction petition and grants a Finley

motion, its decision need not identify or discuss a particular

12


his Petition here. Hence federal habeas review is precluded only
if the last state court rendering a judgment did so based on an
adequate and independent state procedural requirement rather than

on federal law (Harris v. Reed, 489 U.S. 255, 262 (1989)).

As already stated, Harvey first raised all of his present
claims in his post-conviction petition under 725 ILCS 5/122-1.
But Illinois law imposes narrow limits on such review (People v.
West, 187 Ill.2d 418, 425, 719 N.E.2d 664, 669-70 (1999)
(internal citations omitted)):

The scope of the proceeding is limited to

constitutional matters that neither have been, nor

could not have been, previously adjudicated. Any

issues which could have been raised on direct appeal,

put were not, are procedurally defaulted, and any

issues which have been previously decided by a

reviewing court are barred by the doctrine of res

judicata.

Here all of Harvey’s claims could indeed have been raised on
direct appeal, so they are potentially subject to procedural
default under Illinois law. But such a procedural default bars
federal habeas review only if the last state court to address the

claim “actually relied on that default as an independent basis

for its decision” (United States ex rel. Hampton v. Leibach, 347

F.3d 219, 242 (7th Cir. 2003), citing Harris, 489 U.S. at 261-
62). If by contrast the state court’s resolution of a claim
“fairly appears to rest primarily on federal law, or to be
interwoven with the federal law” (Coleman, 501 U.S. at 735

(internal quotation marks omitted)), a federal court may address

11


Martin: I believe so, yes.

Hill-McClain: I need to know. Can you?

Martin: Yes.
Despite any possible uncertainty as to meaning that could have
stemmed from her use of “I believe so,” Martin’s final answer
clearly contained an “unwavering affirmation[ ] of impartiality”

(Thompson v. Altheimer & Gray, 248 F.3d 621, 627 (7th Cir. 2001))

sufficient to render reasonable the trial court’s finding that
Martin was unbiased.

Potential juror Peter Devlin (“Devlin”) initially expressed
uncertainty in response to questions from Assistant States
Attorney Rogers regarding his impartiality (Ex. G 45-46):

Rogers: Do you have any feelings for or against
the Nation of Islam that would prevent
you [from] being a fair and impartial
juror in this case, if you were to find
he was a member of that?

Devlin: I’m afraid I’d have to answer that
question yes. I hate to, but I’m
afraid, in all honesty I have to.

Rogers: Well, sir, let me ask you this question.
If the only evidence in this case is
that he’s a member of the Nation of
Islam and nothing else, would you feel
compelled to have to find this defendant
guilty of first degree murder?

Devlin: No.

But Devlin also later asserted that he could be impartial in

response to a direct question from the court to him and to two of

the other members of the venire (Ex. G 62):

32


accord, Hughes v. United States, 258 F.3d 453, 458 (6th Cir.

2001)). But the question of a juror’s bias “is plainly one of
historical fact: did a juror swear that he could set aside any
opinion he might hold and decide the case on the evidence, and
should the juror’s protestation of impartiality have been

believed” (Patton v. Yount, 467 U.S. 1025, 1036 (1984)). Because

the trial court’s refusal to strike a prospective juror for cause
necessarily implicates a finding of that person’s impartiality,
that finding (like all trial court factual findings on habeas
review) is entitled to a presumption of correctness to the extent
that it is reasonably based on the record {Ellsworth v.
Levenhagen, 248 F.3d 634, 638 (7th Cir. 2001)).

Here is the exchange on voir dire between Harvey’s trial
counsel Joan Hill-McClain (“Hill-McClain”) and prospective juror
Marilyn Martin (“Martin”) (Ex. G 79):

Hill-McClain: And what is it that you know about the
Nation of Islam?

Martin: Primarily what I hear of the Reverend
Louis Farrakhan, and what I believe is
some radical thinking, particularly in
terms of white people.

Hill-McClain: Can you sit in judgment of a member of
the nation of Islam?

Martin: I believe so, yes.
Hill-McClain: And can you put aside the biases that
you think is [sic] espoused by Minister

Farrakhan in order to judge Mr. Tyrone
Muhammad?

31


version of 725 ILCS 5/122 in effect at the time. That “properly
filed” petition stopped 2244(d) (1) (A)’s one year clock after
almost three months had elapsed after the April 30 deadline for
seeking certiorari. Harvey’s state post-conviction petition
remained “pending” until the Illinois Supreme Court ultimately
denied leave to appeal its dismissal on February 5, 2003 (see

Fernandez v. Sternes, 227 F.3d 977, 980 (7 Cir. 2000), at which

time the clock started again. Harvey filed the current Petition
just under three months later, making it timely under the one-
year limitation period prescribed by Section 2244 (d) (1) (A) as
expanded by Section 2244 (d) (2).

Harvey’s Federal Claims

In this action Harvey advances ten claims of error as to his
conviction and sentence, contending that those errors violated
his rights to a fair trial, due process of law and equal
protection of the laws as guaranteed by the Fifth, Sixth and
Fourteenth Amendments. Those claims echo the ten grounds that
Harvey had asserted in his pro se post-conviction petition in the
state court.

Procedural Framework

Before any federal court can address the merits of a Section
2254 petition, the petitioner must exhaust his state court
remedies, “thereby giving the State the opportunity to pass upon

and correct alleged violations of its prisoners’ federal rights”


T11.2d 545, 563, 442 N.E.2d 255, 262 (1982)). Because Muhammad's
testimony on the stand had that effect (he denied making
statements that the prosecution contended he had made), the trial
judge’s admission of his prior inconsistent statements through
Forester is surely not “arbitrary, fanciful or unreasonable”
impeachment. Nor does the admission of Lyke’s and Keane’s
testimony pose any problems of admissibility. All of that being
so, the issue is not “obvious and clearly stronger” in comparison
with the issues that were raised on appeal.

4. Refusal To Clarify “Reasonable Doubt” Instruction

So too the trial court’s refusal to grant the jury’s request
for a definition of “reasonable doubt” could not be labeled as
unreasonable, for Illinois law does not allow a judge to provide
such an instruction (People v. Speight, 153 I11.2d 365, 374, 606
N.E.2d 1174, 1177 (1992)). Once more the appellate counsel is
not open to criticism in constitutional terms (or any other, for
that mater).

5. Refusal To Provide Jury with Transcripts

As for the trial judge’s refusal to provide the jury with
the transcripts of grand jury and trial testimony on appeal, it
is well-established under Illinois law that “[t]he decision
whether to grant or deny a jury’s request for transcripts of
testimony rests within the sound discretion of the trial court

and, unless there is an abuse of that discretion, the trial

22


exception:

The fundamental-miscarriage-of-justice exception

applies only in the “extremely rare” and “extraordinary

case” where the petitioner is actually innocent of the

crime for which he is imprisoned. To support a

colorable claim of actual innocence the petitioner must

come forward with “new reliable evidence--whether it be

exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence--that was not
presented at trial.” The petitioner must also

establish that “it was more likely than not that no

reasonable juror would have convicted him in light of

the new evidence.”

Because Harvey has offered no such evidence, he cannot
qualify for that exception to the procedural default doctrine.
So this opinion comes at last to the only door that remains
potentially open to Harvey on federal habeas: the assertedly
ineffective assistance of his trial counsel.

Ineffective Assistance of Trial Counsel

As stated earlier, the fact that the appellate rejection of
Harvey’s ineffective-assistance-of-counsel claim can be viewed as
a merits determination brings that claim properly before this
Court. That requires analysis of the claim under the criterion
set out in Section 2254(d) (1): whether the Appellate Court’s
adjudication of the claim “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.”

Williams v. Taylor, 529 U.S. 362, 404-05 (2000) teaches that

the “contrary to” and “unreasonable application of” phrases in

28


judge called the jury into the courtroom and instructed the

jurors, pursuant to the command of Allen v. United States, 164

U.S. 492, 501-02 (1896), that it was their duty to “consult with
one another and communicate with a view to reaching an agreement
if [they could] do so without violence to individual judgment”
(Ex. J 136).

After the jury again retired to deliberate, the court
received this note from juror Anita Hooper (“Hooper”):

I Anita Hooper [am] one of the Jurors. Your Honor I

have found myself unable to come to and [sic] unanimous

decision with the other jurors. Everyone has become

hostile because of my lack of evidence proven to me. I

don’t want to be the reason for the other jurors having

to stay here. I can stay if you would like me to but

please allow the other people [to] go. I’ve tried to

see their way but then what would I be if I can’t stand

on my belief for lack of evidence.
But shortly thereafter the jury notified the court that it had
reached a verdict. Harvey was found guilty of first-degree
murder, and when polled individually each juror--including
Hooper--voiced his or her assent to that guilty verdict.

Procedural History

After he was sentenced Harvey appealed to the Illinois
Appellate Court for the First District, raising two issues: (1)
whether the jury verdict was the result of duress and coercion
and (2) whether trial counsel was ineffective for failing to move

for a mistrial when the judge received the note from juror

Hooper. After the Appellate Court affirmed his conviction Harvey


procedural default as to the rest of his federal claims through
either of the Coleman-identified routes.
Cause and Prejudice

Coleman’s first potential exception to a procedural bar
rests on a showing of cause for the default and prejudice
stemming from the constitutional violation. To establish cause,
a petitioner must ordinarily demonstrate that some external
impediment blocked the assertion of his federal claim in the
state court (Murray v. Carrier, 477 U.S. 478, 488 (1986)).

To that end Harvey asserts that his failure to raise the
procedurally defaulted claims on direct appeal was the fault of
his appellate counsel. Ineffective assistance of counsel in
violation of the Sixth Amendment may indeed constitute cause for
excusing a procedural default (id.). But because the exhaustion
doctrine requires “that a claim of ineffective assistance be
presented to the state courts as an independent claim before it
may be used to establish cause for a procedural defauit” (id. at
489), “an ineffective-assistance-of-counsel claim asserted as
cause for the procedural default of another claim can itself be

procedurally defaulted” (Edwards v. Carpenter, 529 U.S. 446, 453

(2000)). And as Lee v. Davis, 328 F.3d 896, 901 (7th Cir. 2003)
has observed, “[t]he result is a tangled web of defaults excused
by causes that may themselves be defaulted and require a showing

of cause and prejudice.”

15


(Freeman v. Lane, 962 F.2d 1252, 1257 (7th Cir. 1992)). As to
the first of those criteria, this Court is required “to compare
the issue that was not raised in relation to the issues that were
raised; if the issue that was not raised is both obvious and
clearly stronger than the issues raised, the appellate counsel’s
failure to raise the neglected issue is objectively deficient”
(Lee, 328 F.3d at 900-01 (internal quotation marks and citations
omitted)). And prejudice--the second criterion--is in turn
established if there is “a reasonable probability that the issue
not raised would have altered the outcome of the appeal had it
been raised” (id. at 901).

In all events it must be remembered that federal judicial

scrutiny of counsel’s performance is highly deferential: a
court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional

assistance” (Strickland, 466 U.S. at 689). Mason v. Hanks, 97

Mason V. Aanks

F.3d 887, 893 (7th Cir. 1996) (internal quotation marks and
citations omitted) is exemplary of the strength of that
presumption:

Effective advocacy does not require the appellate

attorney to raise every non-frivolous issue under the

sun, of course....Genuinely strategic decisions that

were arguably appropriate at the time, but with the

benefit of hindsight, appear less than brilliant will

not be second-guessed.

It will be recalled from the Procedural History section that

Harvey’s counsel on direct appeal raised just two issues, neither

17


Muhammad (“Muhammad”)* (Ex. H 181-267), two Nation of Islam
members who had made statements before a grand jury in 1997 that
implicated Harvey in the murder. At trial, however, each of them
either denied or testified that he didn’t remember making those
statements.

But the key to the prosecution’s case was the testimony of
Darvon Harris (“Harris”) (Ex. I 191-251), a member of the Vice
Lords and friend of Jones who testified that immediately after
the shooting he saw Harvey run from the housing project with a
gun in his hand. By contrast, Harris’ wife Angelique testified
for the defense (Ex. J 12-29), stating that while she saw Harvey
and another individual running from the building, Harvey was not
holding a weapon.

After the jury retired to deliberate, the court received
four written questions. Three questions asked for transcripts of
trial or grand jury testimony, and the other asked for an
explanation of “reasonable doubt.” To each of those questions
the trial judge responded:

You have received all of the evidence and instructions

in this case. Please continue to deliberate until you

have reached a verdict.

Two other notes received by the court during deliberations

indicated the jurors were sharply divided. In response the trial

2 At the time of Jones’ death in 1994, Muhammad was known
as Jasiri Lane, but he changed his name legally some time before
Harvey’s trial (Bx. H 182).


the issue of improper prosecutorial remarks was neither obvious
nor clearly stronger than the issues that appellate counsel did
raise.

9. Use of Assertedly Perjured Testimony

Last among the asserted shortcomings of appellate counsel
was the prosecution’s purported knowing use of perjured
testimony, a claim as to which the burden of proof lies with the
defendant (People v. Bassett, 56 I11.2d 285, 293, 307 N.E.2d 359
364 (1974)). But none of Harvey’s contentions in that regard
survive scrutiny either.

First he claims that the introduction of the grand jury
testimony of Rush and Muhammad fits that description because that
testimony was coerced. Because nothing in the record besides
Rush’s and Muhammad’s bootstrapping statements could have
supported such a claim, counsel could not be labeled as
ineffective for failing to tender the argument on appeal.

Harvey also claims that Assistant States Attorney Lyke and
Detective Keane perjured themselves regarding their difficulty in
locating the individual then known as “Tyrone 4X” (Harvey
himself) because, as he states in an affidavit attached to the
Petition:

If the police had really wanted to locate me it would

have been easy for them to do so because at the time of

the murder I (along with my then wife) then resided in

the Rockwell Gardens Housing Project where the incident

occurred, and, Chicago Housing Authority records will
confirm this.

26


Petition is amenable to disposition on the papers, without the
need for an evidentiary hearing (see Section 2254 Rule 8(a))-
For the reasons stated in this memorandum opinion and order, the
Petition is denied.

Harvey’s Trial

Under Section 2254 (e) (1) all state courts’ findings of fact
are presumptively correct in any federal habeas proceeding. In
that respect this opinion reproduces verbatim the recitation of
facts from the Illinois Appellate Court’s unpublished
September 22, 2000 order in its Case No. 1-98-4412, which denied
relief on direct review of Harvey’s conviction:

On October 18, 1994, Robert Jones was fatally shot in the

head at the Rockwell Gardens housing project, located at

2514 West Van Buren Street in Chicago. Defendant, who held

a supervisory position with the service which provided

security at this housing project, entered the building and

spoke with Jones. A security guard heard three gunshots,
found Jones’ body near the elevator lobby and saw defendant
leave. Jones’ friends saw defendant leave the building
carrying a gun just after the shots were fired.

At Harvey’s trial in the Circuit Court of Cook County, it
was the prosecution’s theory that Jones (a member of the Vice
Lords street gang) was killed by Harvey (a member of the Nation
of Islam) in retaliation for an attack by Vice Lords members on a

Nation of Islam member two days earlier. To that end the

prosecutor called Reginald Rush (“Rush”) (Ex. H 112-71) and Jasiri


Kelly: I’1l do my best. I don’t know.

Murray: You feel just because of their
membership in a gang, you would not
listen to what they say? You would not
believe anything they said?

Kelly: I would listen to them, definitely. I’m
not sure about their credibility.

Kelly gave a similar response to a question from Harvey’s counsel
(Ex. G 172):
Hill-McClain: Miss Kelly, you seem to be genuinely

concerned with whether or not you could
be fair and listen to the testimony of
gang members. And I want you to reflect
again and decide whether or not you can
believe that people who have been
accused of very heinous crimes come to
the stand and say something that you can
believe.

Kelly: I don’t know. I don’t know.

That testimony does call into question Kelly’s ability to
consider the testimony of gang members impartially. But the only
avowed gang member who testified in Harvey’s trial was Darvon
Harris (Ex. I 192-93), and his testimony was for the prosecution
and directly implicated Harvey in the murder. Thus Kelly’s
tendency to disbelieve gang members could only have served to
help Harvey, and he cannot be heard to argue that her presence on
the jury prejudiced him.

Harvey’s inability to demonstrate the requisite

unreasonableness in the trial court’s determination that jurors

Martin, Devlin and Kelly were impartial dooms his claim that his

34


Section 2254(d) (1) have independent meanings. In that regard, a
brief recap of the legal content of each is in order.

For purposes of Section 2254(d) (1) a state court’s judgment
is “contrary to...clearly established federal law, as determined
by the Supreme Court” if it “applies a rule that contradicts the
governing law” as decided by the Supreme Court or if it arrives
at a result different from Supreme Court precedent when
confronted with a set of materially indistinguishable facts (id.
at 405-06). In contrast, a state court judgment that “correctly
identifies the governing legal rule but applies it unreasonably
to the facts of a particular prisoner’s case” falls within the
“unreasonable application” clause (id. at 407-08).

Here counsel’s Finley brief, upon which the Tllinois
Appellate Court relied for its decision, rightly assessed
Harvey’s ineffective assistance claim in light of Strickland,
which constitutes clearly established federal law as decided by
the Supreme Court and which squarely governs all claims of the
ineffective assistance of counsel. Because the Appellate Court’s
decision thus relied on the correct legal rule, it is oniy the
“unreasonable application” clause that could potentially apply to
Harvey’s claim.

To demonstrate that a state court’s decision involved an
unreasonable application of clearly established federal law, a

prisoner must show that the court’s application was “objectively

29


federal claim for its adjudication to be considered “on the
merits.” That is, a federal court should not presume that a
decision rests upon an adequate and independent state ground
simply because that decision does not discuss the merits of a
federal claim. But Lewis v. Sternes, 390 F.3d 1019, 1031 (7th

Cir. 2004) (emphasis added) has more recently explained the

limited scope of the Wilkinson holding:

At most, Wilkinson stands for the proposition that when
a state appellate court elects to summarily affirm the
judgment below without having invited the appellant to
identify the issues he wishes to pursue on appeal, we
will construe the affirmance to have reached the merits
of each issue that the petitioner properly raised in
the court below.

the court selon

None of the issues that Harvey raised in his post-conviction

”

appeal was “properly raised in the court below,” for as already
explained those issues could and should have been raised on
direct appeal and are thus considered procedurally defaulted for
purposes of Illinois post-conviction proceedings. As to such
claims, neither the Circuit Court’s summary denial of the post-
conviction petition nor the Appellate Court’s summary affirmance

can fairly be presumed “to rest primarily on federal law, or to

be interwoven with the federal law’ (Coleman, 501 U.S. at 735).

To be sure, some factors that led the Wilkinson court to

construe the summary affirmance in that case as reaching the
merits of the petitioner’s claim are suggested by the Appellate

Court’s statement that it “carefully reviewed the record” and its

13


No problem of such entanglement exists here, though: Harvey
briefly set out his ineffectiveness claim at each level of state
post-conviction review by stating that “({a]ppellate counsel’s
failure to raise these claims on direct appeal satisfies the
cause and prejudice standard.” Because those post-conviction
proceedings offered him the first opportunity to challenge the
effectiveness of the counsel who served him on direct appeal,
that claim was properly preserved. It therefore qualifies as
cause for the procedural default of Harvey’s nine claims of
substantive error at trial.

Whether an ineffective assistance of counsel claim is
asserted as an independent basis for relief or as cause for 4

procedural default, Strickland, 466 U.S. at 687 provides the

standard by which counsel's conduct is evaluated:

First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that
the conviction...resulted from a breakdown in the
adversary process that renders the result unreliable.

At the appellate level that standard is met where a petitioner
demonstrates “(1) that his counsel’s appellate performance fell
below an objective standard of reasonableness, and (2) that

counsel's deficiencies prejudiced the result of his appeal”

16