Supreme Court has held that “the Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364 (1970), A state court conviction will
withstand a due process attack on sufficiency of the evidence grounds if the federal habeas
corpus court determines, “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The standard of
review recognizes the trier of fact’s responsibility to resolve reasonably conflicts in testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jd. at
318.

The court is not at liberty to “make its own subjective determination of guilt or
innocence.” Jd. at 319 n.13, The habeas court does not substitute its judgment for that of the
finder of fact. United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995). The reviewing
court also does not reweigh the evidence or redetermine the credibility of the witnesses whose
demeanor has been observed by the finder of fact. See Marshall v. Lonberger, 459 U.S. 422,

434 (1983); Kines v. Godinez, 7 F.3d 674, 678 (7th Cir. 1993). Determination of the credibility
of a witness is within the sole province of the finder of fact and is not subject to review. United
States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

A federal court exercising habeas jurisdiction must accord a “presumption of
correctness” to factual determinations of state courts so long as the factual findings are fairly
supported by the record. Sumner v. Mata, 449 U.S, 539, 547 (1981). Since the sufficiency of
evidence is a mixed question of law and fact, “a writ of habeas corpus may be issued for
evidence insufficiency only if the state courts have unreasonably applied the Jackson standard.”

13


at first, walked away with complainant following and offering to perform fellatio. Finding
complainant attractive, he asked complainant where she wanted to go. She led Karras into a
gangway where she produced a broken cigarette and paper. Karras gave her one-half of his
cocaine which she mixed with the cigarette tobacco. They each smoked and complainant asked
Karras if he was “ready.” She pulled down her pants while he lowered his pants. When Karras
could not attain an erection, complainant manually stimulated him. She then tumed away from
Karras and using her hands to brace herself against the building wall, she then backed against
him pinning him against the wrought iron fence in the gangway in such a way that he could not
even stand straight up. She then gyrated against him until he ejaculated. Complainant then
retrieved her clothes, stating, “it was getting good.” Karras got his clothing and, as he did so, he
heard change fall from his pocket. He managed to recover fifty cents before he left the gangway.
Karras denied that the gangway shown in police photographs was the one where the sexual

encounter occurred.

PROCEDURAL HISTORY

After a bench trial, the Honorable Bertina Lampkin found Karras guilty on February 5,
1998, of aggravated criminal sexual assault, criminal sexual assault, attempted robbery, and
unlawful restraint. On May 24, 1999, Karras was sentenced to respective concurrent terms of
fifteen years and three years in prison. Karras filed a pro se motion for new trial, which the court
denied. Karras filed a motion to reconsider his sentence, which was denied on June 7, 1999. He
then appealed to the Illinois Appellate Court and raised two issues. First, he claimed that he was

not found guilty beyond a reasonable doubt because his testimony was more credible than the


CONCLUSION
For the reasons stated above, the Court hereby grants respondent’s motion to

dismiss the petition for a writ of habeas corpus. This case is hereby terminated.

SO ORDERED ENTERED: 9/ / i/o Y

HON. RONALD A>
United States Judge

17


was never informed that the consolidation of his direct appeal and post-conviction appeal
required him to consolidate both of his petitions for leave to appeal. However, Petitioner did
know that the cases were consolidated on appeal, as he admits this in his petition for leave to
appeal. He claims that he could not have addressed this issue in the first petition for leave to
appeal because his counsel’s motion to withdraw was pending. Petitioner’s rationale does not
establish cause to excuse the default. As mentioned above, sufficient cause to excuse default is
an “objective factor external to the defense” which precludes the petitioner from pursuing his
claims in state court. Murray, 477 U.S. at 488. Ignorance of the law is not an “objective factor
external to the defense” that excuses a petitioner from neglecting to include his claims in his first
petition for leave to appeal. /d. The “failure to act or think like a lawyer” is not considered
cause for neglecting to assert a claim. Henderson v. Cohn, 919 F.2d 1270, 1272 (7th Cir. 1990).

Petitioner further alleges in his reply brief that refusal to hear his claims in his second
petition for leave to appeal would result in a fundamental miscarriage of justice. However,
Petitioner does not explain this assertion. He does not show that it is more likely than not that no
reasonable juror would have convicted him in light of new evidence, he merely states this as the
requirement of the standard. He likewise does not introduce any new reliable evidence to show a
fundamental miscarriage of justice. Petitioner has waived his claim of alleged ineffective
assistance of trial counsel by not presenting this claim in his petition for leave to appeal to the
Illinois Supreme Court and by not showing cause or prejudice or a fundamental miscarriage of
justice; therefore, this Court is barred from considering this claim.

Petitioner’s claim of prosecutorial misconduct was not raised at any level of the Illinois
state courts. In his reply brief, Petitioner contends that this issue was raised in his petition for

post-conviction relief. However, the only issue Petitioner raised in his post-conviction petition

9


believable. The Supreme Court denied Karras’ petition.
On October 25, 2002, Karras filed the instant habeas corpus petition. In his petition,
Karras claims ineffective assistance of trial counsel, trial court bias, prosecutorial misconduct,

and that the state failed to prove guilt beyond a reasonable doubt.

DISCUSSION

The review of Karras’ petition for writ of habeas corpus is governed by 28 U.S.C. § 2254
(“section 2254”) as amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). A federal habeas court’s role in reviewing state prisoner applications was modified
by AEDPA to prevent “retrials” and to ensure that state court convictions are given effect to the
extent possible under the law. Williams v. Taylor, 529 U.S. 362, 403-04 (2000). Federal courts
may grant a writ of habeas corpus if a person is held in custody under a state court judgment in
violation of the United States Constitution. Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir.

1996).

1. Procedural Default

Before the Court addresses the merits of the claims raised, it must first determine whether
Karras’ claims are properly before the Court. A habeas petitioner must exhaust all remedies
available in state court and avoid procedural default. Bocian v. Godinez, 101 F.3d 465, 468 (7th
Cir, 1996), A petitioner’s failure to exhaust all state remedies bars consideration of the petition.
Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995). Failure to raise all claims during the
course of the state court proceedings bars consideration of those claims not raised. Jd.

Each claim must be fully and fairly presented to the state courts, giving those courts the

6


complainant’s. Second, he contended that the trial court was biased against him because it acted
as a prosecutor, restricted the defense’s cross-examination, and incorrectly remembered
testimony. While his direct appeal was pending, Karras filed a pro se post-conviction petition,
which alleged that he was denied effective assistance of counsel. Karras claimed, among other
things, that the claimant’s blood was not tested, certain witnesses were not called, arguments
were not presented on the cross-examination of the claimant, and counsel did not discuss trial
strategy with him. The trial court denied this motion on June 2, 2000.

Karras’ public defender filed a motion to withdraw as appointed counsel on appeal
pursuant to Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), because he found no meritorious
appellate issues. Karras responded to the Finley motion by asking the appellate court to deny the
public defender’s motion to withdraw. Karras claimed that his constitutional rights to due
process, effective assistance of counsel, and equal protection would be violated by granting the
motion to withdraw.

The Appellate Court consolidated Karras’ direct appeal and his appeal from the denial of
his post-conviction petition. The Appellate Court affirmed the trial court’s decision and granted
the public defender’s motion for leave to withdraw as counsel. The Appellate Court agreed that
Karras was found guilty beyond a reasonable doubt and determined that the trial court was not
biased. In granting the motion for leave to withdraw, the Appellate Court agreed with the public
defender that there were no arguable bases for relief.

Karras then filed a petition for late leave to appeal with the Illinois Supreme Court
claiming that his constitutional rights to due process and equal protection were violated by the
trial court’s bias. Karras contends that the trial court showed bias by ignoring the rules
concerning impeachment of a witness and by finding the complainant’s testimony more

5


in original); see Ouska v. Cahill-Masching, 246 F.3d 1036, 1050 (7th Cir. 2001).

A fundamental miscarriage of justice occurs when a constitutional violation has probably
led to the conviction of an individual who is actually innocent. Thomas v. McCaughtry, 201
F.3d 995, 999 (7th Cir. 2000). Without new evidence of innocence, even a meritorious
constitutional claim is not enough, in and of itself, to permit a federal court to reach the merits of
a procedurally defaulted claim. Schlup v. Delo, 513 U.S. 298, 316 (1995). To be credible, such
a claim requires petitioner to support his allegations by introducing new reliable evidence
“whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence” which was not presented at trial. Jd. The requisite probability is established
by showing that “‘it is more likely than not that no reasonable juror would have convicted him in
light of newly discovered evidence of innocence.” /d. at 327 (internal quotations omitted). This
probability determination is a mixed question of law and fact. United States ex rel. Bell v.
Pierson, 267 F.3d 544, 552 (7th Cir. 2001).

The State contends that a number of Karras’ claims are procedurally defaulted.
Petitioner’s claim of ineffective assistance of trial counsel was raised in his petition for post-
conviction relief. However, Petitioner failed to raised this issue in his petition for leave to
appeal to the Supreme Court. As stated above, in order to preserve properly issues of review and
avoid procedural default, a petitioner must give the state courts the opportunity to resolve
constitutional issues by “invoking one complete round of the State’s established review process.”
O'Sullivan, 526 U.S. at 845. This has been applied to petitioners who fail to raise issues before
the Illinois Supreme Court during the post-conviction process. White v. Godinez, 192 F.3d 607,
608 (7th Cir. 1999). In his reply brief, Petitioner asserts that this claim is not procedurally
defaulted because he raised it in a second petition for leave to appeal. Petitioner claims that he

8


Minute Order Form (06/97)

: oly United States District Court, Northern District of Ilinois_, & yy Hl

name he Judge Ronald A. Guzman Sitting Judge if Other

or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C7715 DATE 3/19/2004
CASE USA ex rel MARK S. KARRAS, SR. vs. BLAIR LEIBACH, Warden
TITLE

{In the followingbox (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.}

MOTION:

DOCKET ENTRY:

qd) o Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

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

(4) a Ruling/Hearing ons setfor__—sat_

(5) Oo Status hearing[held/continued to] [set for/re-set for]on__——set fora

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on___——ssetfor_ at.
(7) Oo Trial[set for/re-set for]on at

(8) a [Bench/Jury trial] [Hearing] held/continued toa.

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

CIFRCP4(m) ClLocal Rule 41.1 CFRCP41(a)(1) C1 FRCP41(a)(2).

(10) Mi (Otherdocketentry) ENTER MEMORANDUM OPINION AND ORDER: the Court hereby grants
respondent’s motion to dismiss the petition for a writ of habeas corpus. This case is hereby terminated.

al af {For further detail see order attached to the original minute order.]

Document
Number

No notices required, advised in open court.

No notices required, number of notices

Notices mailed by judge's staff. gn 4
: y Jee MAR 2% 2004
Notified counsel by telephone.

date dogkoted

AA
ing/depuy iitals

MAR 2 © 2004

date mailed notice

wv | Docketing to mail notices.

VY | Mail Ao 450 form.

Copy to judge/magistrate judge. ane]

courtroom . wot
TBK deputy’s sed DER aoe
initials —

Date/time received in 7 7
central Clerk’s Office mailing deputy initials

pose

Loewe FE



defense’s cross examination, and incorrectly remembering the testimony.

I. Merits of Petition

A federal habeas corpus review of the state court’s determinations is limited. Under 28
US.C. § 2254, a petitioner must demonstrate that the claim was adjudicated on the merits in
state court and “(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(d)(1), (2).

The “contrary to” provision pertains to questions of law which the court reviews de novo.
Schaff v. Snyder, 190 F.3d $13, 522 (7th Cir. 1999), The “unreasonable application” provision
applies to mixed questions of law and fact, to which the federal court grants deference to
reasonable state court decisions. Jd. at 522-23. Under section 2254(d)(2), the “unreasonable
determination of the facts” provision relates to pure questions of fact. Hall v. Washington, 106
F.3d 742, 752 (7th Cir. 1997). Moreover, section 2254 instructs the reviewing federal habeas
court to presume that the state court’s factual determinations are correct unless petitioner can
rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(c)(1); Schaff, 190
F.3d at 521.

Under the “contrary to” clause, a federal court is “free to express independent opinion”
on whether a state court has deviated from the constitution on a legal question in contravention
of United State Supreme Court precedent. Lindh v. Murphy, 96 F.3d 856, 861 (7th Cir. 1996)
(en banc), rev’d on other grounds, 521 U.S. 320 (1997). This has been interpreted to mean that a

11


was ineffective assistance of trial counsel. Again, Petitioner contends that this issue was raised
in his second petition for leave to appeal. As discussed above, Petitioner’s mistaken belief about
consolidating his petitions for leave to appeal is not sufficient to show cause and excuse his
default. Petitioner’s failure to raise this claim at any level of the Illinois state courts clearly
results in the claim being procedurally defaulted, and this Court will not consider this claim.

Petitioner’s next claim, that the state failed to prove his guilt beyond a reasonable doubt,
was raised in the Appellate Court in his direct appeal. The State contends that this claim is
procedurally defaulted because it was not raised in his petition for leave to appeal. However,
upon closer scrutiny of his petition for leave to appeal, it appears that this claim was raised.
Although this issue was not in Petitioner’s heading, it was raised within the petition. In the
petition, Petitioner claims that the trial court erred in finding the complainant’s version of the
incident more credible than his because, according to Petitioner, the complainant was impeached
on the witness stand. Within this argument, Petitioner discusses the requirement that the state
prove guilt beyond a reasonable doubt to avoid violating the Due Process Clause of the
Fourteenth Amendment. His main contention is that the trial court was wrong to believe the
complainant’s testimony over his. Petitioner appears to be faulting both the trial court judge and
the state in failing to prove guilt beyond a reasonable doubt. Petitioner is blurring the line
between the trial court and the prosecution. Because he is proceeding as a pro se litigant, the
Court will give Petitioner the benefit of the doubt and find that his claim that the State failed to
prove guilt beyond a reasonable doubt is not procedurally defaulted.

Petitioner’s claim that the trial court was biased against him is not procedurally defaulted
because it was raised on appeal and in his petition for leave to appeal to the Supreme Court.
Petitioner asserts that the trial court acted improperly in acting as a prosecutor, restricting the

10


first opportunity to consider the claim. Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999).
“A petitioner presents his claims fully “by pursuing all available avenues of relief provided by
the state before turning to the federal courts.’” Jd. (quoting Kurzawa v. Jordan, 146 F.3d 435,
440 (7th Cir. 1998)). The Supreme Court explained 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.” O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). In Illinois, “one complete round” is finished once the petitioner has presented his claims
either on direct appeal or on post-conviction review at each stage of the appellate process, up
through and including the Illinois Supreme Court. Jd. at 847-48.

A procedural default occurs when: (1) the petition fails to raise an issue on direct or
post-conviction review, or (2) the state court has disposed of the claim on an independent and
adequate state law grounds. See Rodriguez, 63 F.3d at 555; see also Coleman v. Thompson, 501
USS. 722, 729 (1991). Procedural default may be excused if the petitioner can show good cause
for the default and actual prejudice resulting therefrom, or demonstrate that the failure to
consider the respective claim will result in a fundamental miscarriage of justice. Coleman, 501
USS. at 750.

To show cause as part of the cause-and-prejudice test, the court usually considers
whether the prisoner can show that some objective factor external to the defense impeded
defense counsel’s efforts to comply with the state’s procedural rule. Murray v. Carrier, 477
U.S. 478, 488 (1986). To establish prejudice, the court considers whether the petitioner has met
his “burden of showing, not merely that the errors at 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.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis

7


driven by a man whom she knew as Dan who delivered newspapers. She said that she was
determined to leave defendant and told him to get away from her. She believed that the driver
would possibly stop in order to get to know her if she was not with another man. Karras then
stepped away from her, telling her to meet him at a local grocery store. Complainant told the
driver of the van that she had just been robbed. She also warned a pedestrian that Karras had a
gun and had just robbed her. The van driver offered to take her home, but complainant wanted
cigarettes so they went to a gas station where the driver purchased some. Upon complainant’s
request, the driver went back to the area where she had encountered defendant. There, she saw
police who had detained Karras by the grocery store. Complainant told police that he had
robbed and raped her in a gangway. She was taken to a hospital where she was examined. She
said that she did not sustain any bruising or experience pain from being tackled or dragged by
defendant and none of her clothing was ripped.

Chicago police officer Alex Conway testified that he and his partner went to a grocery
store at 73" Street and Ridgeland Avenue just after the incident in question to investigate a
report of a suspicious man. There police saw Karras using an exterior pay telephone. While
detaining him, a van carrying complainant arrived, and she told the officers that Karras had a
gun and had just raped her. Police did not find a gun on Karras.

Karras testified that he had been at a “dope building” on East End about 10:30 p.m. on
February 17, 1997, when he saw complainant and a female companion who asked if “rocks”
were being sold. He did not buy any cocaine at that time but returned at 5 a.m. the next day and
bought some cocaine. He then encountered complainant outside the “dope building.” She asked
Karras if he had any cocaine, and when he said that he did, she replied that she had just smoked a
“primo joint” and wanted more, suggesting that she and defendant have “sex for drugs.” Karras,

3


Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir. 1997), rev'd on other grounds sub nom. Gomez v.
DeTella, 522 U.S. 801 (1997). If the state courts provided a fair process and engaged in
reasoned, good-faith decision-making when applying the Jackson test, then a federal court
cannot second-guess their determination of sufficiency of evidence. Gomez, 106 F.3d at 199; see
Jackson, 443 U.S. at 319.

The state appellate court in this case used the proper standard when evaluating
Petitioner’s claim regarding legally insufficient evidence. The court set forth the evidence
presented at trial against Petitioner.

Here, complainant testified that she had just left her sister’s residence in the early

morning hours of a winter day when she was attacked by defendant who dragged

her into a gangway and raped her. Complainant’s conduct thereafter is unusual in

that she accompanied defendant, whose anger had subsided, until secking

assistance of the van driver. Her conduct is explainable though because she

thought he had a gun, and there did not appear that assistance was readily
available at that time of day. The fact that she told the van driver and bystander

that she had been robbed without mentioning the rape could have been due to her

embarrassment. As the trial court noted, this case was decided on witness

credibility, and we do not find a basis to question that determination.
People v. Karras, Nos. 1-99-2006 & 1-00-2530, at 12-13 (1st Dist. May 14, 2001).

Therefore, the Illinois Appellate Court examined the evidence against Petitioner and
employed the proper Jackson standard in its analysis. Moreover, the court’s application of the
Jackson standard was within the bounds of reasonableness. As stated above, determination of
the credibility of a witness is within the sole province of the finder of fact and is not subject to
review. Saunders, 886 F.2d at 60. Therefore, Petitioner’s habeas claim based on legally
insufficient evidence is denied.

Petitioner’s next interrelated ground in his petition for a writ of habeas corpus is that the

trial court was biased against him. Petitioner asserts that the trial court acted improperly in

14


restricted the defense’s cross examination. Also, the record does not show that the trial
court judge incorrectly remembered any testimony during the trial.

Furthermore, Karras’ claims for judicial bias have already been considered and
rejected by the Illinois Appellate Court. The Appellate Court having rejected these
contentions on the merits, this Court can only grant Karras’ petition if the court’s
determination was contrary to, or an unreasonable application of, Supreme Court case
law. 28 U.S.C. § 2254(d); see Dean v. Cockrell, No. 3:01-CV-1102-H, 2003 WL
21467571, at *1 (N.D. Tex. June 23, 2003), The Appellate Court found no basis to find
that the trial judge was biased against Karras based on his interpretation of the trial
court’s remarks or that the court misstated any material evidence against him. The
Appellate Court found that the trial court did not limit Karras’ ability to cross-examine
the complainant or present evidence in his defense and that the trial court even delayed
sentencing to give Karras the opportunity to present evidence to challenge the
complainant’s version of what happened. Karras has failed to show that the Appellate
Court’s decision was contrary to or an unreasonable application of United States
Supreme Court precedent. Having reviewed the trial court record and the appellate
court’s disposition of Karras’ claim regarding trial court bias, Petitioner’s habeas claim

on this ground is denied.

16


maintained that she was forced to commit the sexual act while Karras portrayed the complainant
as a cocaine addict willing to commit an act of prostitution to share his cocaine.

Complainant testified that she had just left her sister’s residence at 7132 South East End
and was walking toward a bus stop on 75th Street in order to go home where she lived with her
three children and her grandmother in the Chatham area of Chicago. She saw Karras come out
of a building at 72nd Street and East End. She testified that they exchanged greetings and as she
continued walking, she noticed the petitioner walking behind her. As she approached 73rd
Street, Karras attacked and tackled her, knocking her down into the snow and causing her
clothing to become wet on one side.

The complainant testified that Karras then pulled her into a gangway by her throat.
There, the petitioner stood behind her and forced her to stand facing the against the wall. He
asked her if she had any money and when she said she didn’t, Karras seemed angry. He told her
that he had a gun. He went through her jogging pants’ pockets and removed several items
including a pack of cigarettes, rubber bands, and some coins. Next, the complainant testified
that Karras pulled down the jogging pants and had sexual intercourse with her from behind for
several minutes. Complainant said she did not scream because she was shaking and did not
know what to do. She testified that after the rape, Karras seemed to calm down and told her that
he had children and asked complainant to be his girlfriend. They began to walk around the area.
After leaving the gangway, they saw a woman by a garage on 73rd Street and Karras said he
wanted to rob her. Complainant said that the petitioner was not restraining her, but she did not
flee, fearing defendant would shoot her if she did. Complainant denied that she was walking
arm-in-arm with defendant, that she whispered to him, or that she put her head next to his head.

As they continued to walk, complainant saw a brown van which she believed might be

2


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

EASTERN DIVISION

UNITED STATES OF AMERICA, ex rel. )
MARK S. KARRAS, SR., )

Petitioner, } 02 C7715

ve } Judge Ronald A. Guzman
BLAIR LEIBACH, Warden, ) .

Respondent. } py °

MEMORANDUM OPINION AND ORDER r AR 9 2 2004

Petitioner Mark Karras (“Karras”) is in the custody of Respondent Warden of the
Danville Correctional Center, Danville, Illinois. In 1999, Karras was convicted of the offenses
of aggravated criminal sexual assault, criminal sexual assault, attempted robbery, and unlawful
restraint. Karras was sentenced to respective concurrent terms of fifteen years and three years in
prison. After filing several post-conviction petitions, Karras now petitions this Court for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss on the
grounds that each claim is either procedurally defaulted or without merit. For the reasons stated

below, the petition for writ of habeas corpus is denied.

FACTUAL BACKGROUND'

At about 5 a.m. on February 18, 1997, Karras and the complainant engaged in sexual

intercourse in a gangway near 73rd Street and East End Avenue in Chicago. Complainant

‘When considering a habeas corpus petition the Court presumes that the factual
determinations of the state court are correct. 28 U.S.C. § 2254; see Biskup v. McCaughtry, 20
F.3d 245, 248 (7th Cir. 1994). Unless otherwise noted, the Court adopts the facts as set forth by
the Illinois Appellate Court in People v. Karras, No. 1-00-2530 (1st Dist. May 14, 2001).


federal habeas court may grant relief if the state court (1) arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law or (2) decides a case differently than the
Supreme Court has decided on a set of materially indistinguishable facts. Williams, 529 U.S. at
405.

Under the “unreasonable application” provision, a federal habeas court cannot express
the same type of independent opinion allowed under the “contrary to” clause. Lindh, 96 F.3d at
871. When determining whether the state court’s application of the law was “unreasonable,” the
federal courts must “‘take into account the care with which the state court considered the
subject.” Jd. If the state court offers a “responsible, thoughtful answer” after “a full opportunity
to litigate” the issue, a federal habeas court must accept that answer as “adequate to support the
judgment” even if it believes the state court decision is wrong. Jd. However, a federal court
may grant relief if the state court identifies the correct legal principle from among Supreme
Court decisions, but unreasonably applies that principle to the facts of the petitioner’s case.
Williams, 529 U.S. at 412-13. When determining an unreasonable application of clearly
established federal law, an objective standard should be employed. Id. at 409. Most
importantly, for habeas corpus review purposes, an unreasonable application of federal law is
different from an incorrect application of federal law. Id. at 410.

Two of petitioner’s claims, that the state failed to prove guilt beyond a reasonable doubt
and that the trial court was biased, are not procedurally defaulted and, thus, will be reviewed on
their merits. Because petitioner’s claim regarding proof beyond a reasonable doubt comes down
to the argument that the trial court was wrong to believe the complainant’s testimony over his,
this Court will consider the claims together.

First, petitioner asserts that he was not proven guilty beyond a reasonable doubt. The

12


acting as a prosecutor, restricting the defense’s cross examination, and incorrectly remembering
the testimony.
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant, as

any litigant, the right to a fair trial in a fair tribunal. Jn re Murchison, 349 U.S. 133, 136 (1955).
The Supreme Court’s decision in Liteky v. United States, 510 U.S. 540, 552 (1994), provides the
standard for deciding judicial bias claims and applies to habeas corpus petitions. Ortiz v.
Stewart, 149 F.3d 923, 939-40 (9th Cir. 1998). Liteky holds:

First, judicial rulings alone almost never constitute a valid basis for a bias

or partiality motion.... Second, opinions formed by the judge on the basis

of facts introduced or events occurring in the course of the current

proceedings, or of prior proceedings, do not constitute a basis for a bias or

partiality motion unless they display a deep-seated favoritism or

antagonism that would make fair judgment impossible,
Liteky, 510 U.S. at 555-56.

Furthermore, “[t]rial judges retain great discretion to impose reasonable limits on
the cross-examination of witnesses based on concerns such as harassment, prejudice,
confusion of the issues, the witness's safety, and marginal relevancy.” Norris v. Schotten,
146 F.3d 314, 329 (6th Cir. 1998) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986)). The trial judge abuses this discretion when she allows some cross-examination
of a prosecution witness but does not permit defense counsel to expose the jurors to facts
from which they could appropriately draw inferences relating to the reliability of the
witness. Norris, 146 F.3d at 330 (citing Delaware v. Fensterer, 474 U.S. 15, 19 (1985)).

After reviewing the record, it is clear that the trial court did not show bias against

Karras. Nothing in the record reveals that the trial court acted as a prosecutor in any

way. Likewise, the record does not support Petitioner’s contention that the trial court

15