“actual innocence,” a petitioner must present clear and convincing evidence that, but for the
alleged error, no reasonable juror would have convicted him. Jd. Leaks’ petition, as well as all
of his state court pleadings, do not contain any substantiated allegations of actual innocence, and
the court is not required to accept Leaks’ statement — which contradicts all of the other evidence
presented at trial — to the effect that he wasn’t at the scene and didn’t commit the offense. Thus,
the fundamental miscarriage of justice exception does not apply.

WI. Conclusion

For the above reasons, Leaks’ § 2254 petition [1-1] is denied.

i

Blanche M. Manning
United States District Court Judge

DATE: £-2/-03

O2ev9501-hab

-13-



This § 2254 petition followed, Leaks contends that: (1) trial counsel was ineffective; (2)
the State used perjured testimony to obtain a conviction; (3) the State failed to prove that he was
guilty beyond a reasonable doubt; (4) the trial court abused its discretion when it allowed the
State to use stipulations at trial, refused to allow him to present a post-trial motion, denied post-
conviction relief without first holding an evidentiary hearing, denied his motion to reconsider
based on newly discovered evidence, and excluded a motion for a new trial from the record.

II. Discussion

A. Threshold Matters

The court will begin by summarizing the rules governing exhaustion and procedural
default and by recapping the standard of review that guides this court in resolving Leaks’ § 2254
petition.

1, Exhaustion and Procedural Default

Before this court may reach the merits of Leaks’ federal habeas claims, it must consider
whether he has exhausted his state remedies and avoided procedural default under Illinois law.
See Mahaffey v. Schomig, 294 F.3d 907, 914-15 (7th Cir.2002).

a. Exhaustion of State Court Remedies

To exhaust state court remedies, a petitioner must give the state courts an opportunity to
act on each of his claims before he presents them to a federal court. See O'Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). State remedies are exhausted when they are presented to the state’s
highest court for a ruling on the merits or when no means of pursuing review remain available,
Boerckel, 526 U.S. at 844-45, 847; 28 U.S.C. § 2254(c). Here, the respondent does not dispute
that Leaks has exhausted his state court remedies. This is correct, as Leaks filed a PLA in both

his direct and collateral appeals.


In addition, with respect to the evidentiary rulings, a federal court may grant relief under
§ 2254 only if they prevented a defendant from receiving a fundamentally fair trial. U.S. ex rel.
Drain v. Washington, 52 F. Supp. 2d 856, 866 (N.D. Ill. 1999). In determining whether the
exclusion of evidence denied a defendant’s right to a “fundamentally fair trial,” the court must
examine whether the “proffered evidence was relevant, material, and essential to the defense, and
whether the exclusion of that evidence was arbitrary. See id.; see also Lange v. Young, 869 F.2d
1008, 1011 (7th Cir.1989).

The use of stipulations does not rise to this level as Leaks does not claim, and it does not
appear, that the stipulated evidence was inadmissible. The denial of a motion for leave to present
a post-trial motion is not an evidentiary ruling or an issue of federal law. The state court found
that Leaks received a full copy of the record and that it also had a full copy of the record, so his
claim that a motion was missing from the record is incorrect and certainly not a federal issue in
any event. The trial court was not required to hold an evidentiary hearing before it denied post-
conviction relief, and this decision did not prevent Leaks from receiving a fair decision on the
merits. Finally, the denial of Leaks’ motion to reconsider based on newly discovered evidence is
not an evidentiary ruling; the court considered the new evidence and rejected it. Thus, the court
finds that the challenged rulings either rely on issues of state law or do not rise to the level of a
federal due process violation because they did not prevent Leaks from receiving a fundamentally
fair trial.

4. The State’s Alleged Failure to Prove Leaks Guilty Beyond a
Reasonable Doubt

Andrich and Mendez’ testimony unequivocally placed Leaks at the scene and in the

middle of the events resulting in Rodriguez’ death. Moreover, Andrich testified that Rodriguez



conclusion opposite to that reached by the Court on a question of law” or “if the state court
confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to ours.” See id. at 405.

With respect to the “unreasonable application” prong under § 2254(d)(1), a habeas
petitioner must demonstrate that although the state court identified the correct legal rule, it
unreasonably applied the controlling law to the facts of the case. See id. at 407. A state court’s
application of Supreme Court precedent is unreasonable if the court’s decision was “objectively”
unreasonable. See Lockyer v. Andrade, 123 S.Ct. 1166, 1174 (2003) (unreasonable application
more than incorrect or erroneous). In order to be considered unreasonable under this standard, a
state court’s decision must lie “well outside the boundaries of permissible differences of
opinion.” See Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see also Searcy v. Jaimet,
332 F.3d 1081, 1089 (7th Cir. 2003) (decision need not be well reasoned or fully reasoned and is
Teasonable if one of several equally plausible outcomes); Schultz v. Page, 313 F.3d 1010, 1015
(7th Cir. 2002) (reasonable state court decision must be minimally consistent with facts and
circumstances of the case).

B. Leaks’ Claims

1. Ineffective Assistance

In his § 2254 petition, Leaks asserts that his trial counsel was ineffective because he: (1)
failed to object to stipulations offered by the State; (2) failed to call witnesses to testify, including
Carter; (3) failed to file a motion to quash his arrest and to suppress his identification; (4) failed
to file a motion to suppress Leaks’ statements; (5) presented a mere-presence theory without
evidence to support it; (6) failed to stipulate regarding inconsistent statements; and (7) failed to

call a pathologist.


b. Procedural Default

Procedural default occurs when a petitioner fails to comply with state procedural rules.
Mahaffey, 294 F.3d at 915. This occurs when the petitioner fails to pursue all appeals required
by state law, Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991), or fails to fully and fairly
present his federal claims to the state court, Boerckel, 526 U.S. at 844. It also occurs when the
state court did not address a federal claim because the petitioner failed to satisfy an independent
and adequate state procedural requirement, Stewart v. Smith, 536 U.S. 856 (2002). If an Illinois
appellate court finds that a claim is waived, that holding constitutes an independent and adequate
state ground. Rodriquez v. McAdory, 318 F.3d 733, 735 (7th Cir.2003).

Nevertheless, this court may still reach the merits of a procedurally defaulted claim if the
petitioner establishes either cause for his failure to follow a rule of state procedure and actual
prejudice, or that the default will result in a fundamental miscarriage of justice. Edwards v.
Carpenter, 529 U.S. 446, 451 (2000). To establish a fundamental miscarriage of justice, the
petitioner must present new and convincing evidence of his innocence by showing that it is more
likely than not that no reasonable juror would convict him in light of the new evidence. Schlup v.
Delo, 513 U.S. 298, 324 (1995).

2. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a habeas
petitioner is not entitled to a writ of habeas corpus unless the challenged state court decision is
either “contrary to” or “an unreasonable application of” clearly established federal law as
determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1); Williams v. Taylor,
529 U.S. 362, 404-05 (2000). In Williams, the Supreme Court explained that a state court’s

decision is “contrary to” clearly established Supreme Court law “if the state court arrives at a

-5-


and his PLA. Thus, all of the remaining ineffective assistance arguments raised in Leaks’ § 2254
petition are procedurally defaulted. See Boerckel, 526 U.S. at 844.

It is important to note, however, that the second and third arguments were not raised at
the intermediate appellate level. Instead, both of these claims were raised for the first time in
Leaks’ PLA. Thus, Leaks did not fully and fairly present these claims. Castille v. Peoples, 489
U.S. at 349. This means that this court cannot review them on the merits. For these reasons, all
of Leaks’ ineffective assistance claims are beyond the province of federal habeas review.

2 Perjured Testimony

Leaks contends that the State used perjured testimony to obtain a conviction. This claim

did not appear in either of his PLAs so it is defaulted. See Boerckel, 526 U.S. at 844.
3. State Law Claims

Leaks next asserts that the trial court abused its discretion when it allowed the State to use
stipulations at trial, refused to allow him to present a post-trial motion, denied post-conviction
relief without first holding an evidentiary hearing, denied his motion to reconsider based on
newly discovered evidence, and excluded a motion for a new trial from the record. These
arguments all rest on a claimed violation of state law.

This is problematic because “it is elementary that the... court, under § 2254, must focus
on alleged violations of the federal constitution, laws and treaties,” as “§ 2254 cannot be invoked
simply to require state officials to comply with state law or to review alleged violations of state
law.” Biskup v. McCaughitry, 20 F.3d 245, 247 (7th Cir.1994); 28 U.S.C. § 2254(a) (habeas
relief is only available if a petitioner establishes that “he is in custody in violation of the
Constitution or laws or treaties of the United States”). Moreover, Leaks does not rely on federal

law in his § 2254 petition and did not rely on federal law in the state court proceedings.

-8-


mm

Minute Order Form (06/97)
United States District Court, Northern District of Illinois
ser Magistrate Judge | __Blanche M. Manning “than Atcigned Judge
CASE NUMBER 02 C9501 DATE August 21, 2003
CASE U.S. ex rel. Leaks v. Pierce
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintifY, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(69) ao 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 briefdue__.

(4) Oo Ruling/Hearingon___setfor__—_at

(5) 0 Status hearing[held/continued to] [set for/re-set for]on___—_—s set for___—_at

(6) Oo Pretrial conference{held/continued to] [set for/re-set for]on___—_setfor_—— saat.
(7) oO Trial[set for/re-set for] on___at

(8) oO [Bench/Jury trial] [Hearing] held/continued to __—at

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

OOFRCP4(m) OGenerai Rule 21 OOFRCP41(a)(1) [I FRCP41(a)(2).

(10) M@ [Other docket entry] After careful consideration of the entire record, Leaks’ § 2254 petition [1-1] is
denied in its entirety. The clerk is directed to enter a Rule 58 judgment and to terminate this case. Enter
Memorandum and Order.

(11) a [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required. umber of notices
ao | Notices mailed by judge’s staff.
Notified counsel by telephone. AUG 27 2003
Docketing to mai! roies. dunog Agisia's'n
Vv | Mail AO 450 form. 3 . dolbetify dently initiale
Copy to judge/magistrate judge. 82:8 HY Lz onW eo
courtroom SNIL3N300 Yo4 Ga ste mailed noice
RTS deputy’s 2-03
initials
Dateltime received in ; ;
central Clerk’s Office mailing depury iile



This court concludes that this decision is not contrary to or an unreasonable application of
clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). Jackson v. Virginia,
443 U.S. 307 (1979), contains the relevant standard for direct appellate review. In Jackson, the
Supreme Court held that a conviction must stand if “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.” 443 U.S. at 319. Although the Illinois Appellate Court
did not cite to Jackson v. Virginia, it cited to an Minois Supreme Court case that uses the Jackson
standard, and then applied this rule to assess whether sufficient evidence supported Leaks’
conviction. This is enough to satisfy the AEDPA. See Early v. Packer, 537 U.S. 3, —, 123 S.Ct.
362, 365 (2002) (state courts not required to cite Supreme Court cases as long as reasoning or
result of the court’s decision does not contradict Supreme Court precedent).

This court would also be hard-pressed to conclude that the appellate court’s decision is
not minimally consistent with the facts and circumstances of this case, and thus, an unreasonable
application of Supreme Court precedent. The Illinois Appellate Court reviewed the testimony of
Mendez and Andrich, who both testified that Leaks was in the car with Carter. After Carter tried
to shoot Mendez and successfully shot Rodriguez, Leaks slid over to the driver’s side and drove
alongside Rodriquez’s car. He yelled out to Carter, telling him to “shoot her” and to “hurry up”
and “do it.”

Leaks admitted that he was at the scene and, in fact, objected to his counsel’s use of a
“mere presence” theory at trial because it was not supported by sufficient evidence (the court is
compelled to note that it is difficult to imagine what else counsel could have done to defend his
client given the overwhelming testimony placing Leaks at the scene). Mendez and Andrich

identified Leaks repeatedly. While no physical evidence places Leaks at the scene, ample

-ll-


gave him a “rock” but no evidence showed that either Andrich or Mendez were under the
influence of drugs. In addition, Leaks admitted that he was in the car and then drove it away
after Rodriguez was shot. Finally, Andrich and Mendez identified Leaks in a photo array three
days after the shooting and also identified him in a subsequent line-up and at trial. Citing People
v, Slim, 127 Ill.2d 302, 307 (1989), the Illinois Appellate Court found that this evidence, when
viewed in the light most favorable to the State, was enough to establish Leaks’ guilt.

Leaks argues that Mendez and Andrich were under the influence of narcotics at the time
of the offense and that “[t]heir perjured testimony was the only evidence the State had to offer
which contributed to defendant’s conviction.” He also contends that there was no physical
evidence placing him at the scene.

As noted above, § 2254 relief is only appropriate if the state court’s decision was contrary
to, or involved an unreasonable application of clearly established federal law, as determined by
the Supreme Court of the United States, or was based on an unreasonable determination of the
facts in light of the evidence. 28 U.S.C. §§ 2254(d)(1) & (2). Thus, the question is not whether
the state court proceedings could have ended differently if the court were to adopt Leaks’ view of
the facts. Instead, it is whether the state court’s decision is subject to attack under 28 U.S.C. §
2254(d)(1) or (2).

In its decision affirming Leaks’ conviction, the Illinois Appellate Court correctly
summarized the standard of review for appeals challenging the sufficiency of the evidence.
Specifically, it evaluated the evidence in the light most favorable to the State to determine if a
rational trier of fact could have found Leaks guilty beyond a reasonable doubt. It then outlined

the evidence supporting Leaks’ conviction and found that it supported the trial court’s decision.

-10-


The respondent contends that all of these claims fail on the merits. According to the
respondent, in Leaks’s state collateral appeal, the Illinois Supreme Court allowed counsel to
withdraw under Pennsylvania v. Finley and this decision comports with Strickland. This is
incorrect on many levels. First, Leaks raised his ineffective assistance claims on direct appeal as
opposed to collaterally. Thus, the respondent is asking this court to uphold the wrong state court
decision. Second, with all due respect to counsel, it is bizarre to suggest that allowing a lawyer
to withdraw could somehow be a merits decision that is reviewable through the lens of
Strickland.

Last, but certainly not least, Leaks’ ineffective assistance claims were not properly
presented to the Illinois courts so this court cannot consider them on the merits. A petitioner
must present his claims to the Illinois courts, up to and including the Illinois Supreme Court, to
avoid procedural default. See Boerckel, 526 U.S. at 844. This means that his claims must appear
not only in his PLA but also in his filings with the state trial court and intermediate appellate
court. See Castille v. Peoples, 489 U.S. 346, 349 (1989) .

Thus, the court must match up Leaks’ ineffective assistance claims with the ineffective
assistance claims presented to the Illinois Appellate Court and the Illinois Supreme Court. If the
claims fail to appear in Leaks’ § 2254 petition and his state intermediate appeal and his PLA,
they are procedurally barred. See Castille v. Peoples, 489 U.S. at 349 (claims raised for the first
time in a discretionary appeal are barred by the full and fair presentment doctrine); Boerckel, 526
USS. at 844 (claims not raised in PLA are procedurally defaulted).

In Leaks’ PLA on direct appeal, he asserted that his trial counsel was ineffective because
he failed to: (1) impeach witnesses; (2) file a motion to suppress his statements; and (3) attack

suggestive identification. Only the second and third arguments appear in Leaks’ § 2254 petition

-7-



communicate with him and disagreed with him regarding defense strategy; (4) the State lacked
physical evidence linking him to the shooting and based its case on testimony that was
“hopelessly. [sic] contradictory, illogical. [sic] and biased, on behalf of the State”; and (5) he was
not provided with a complete trial record.

The Illinois Appellate Court affirmed the judgment of the Circuit Court and permitted
counsel to withdraw. Leaks filed a petition for leave to appeal (“PLA”) with the Illinois Supreme
Court arguing that: (1) he was denied a direct appeal as of right because the Appellate Court
tuled against him; (2) the Appellate court erroneously permitted counsel to withdraw because his
appeal raised meritorious issues; (3) trial counsel was ineffective because he failed to impeach
witnesses, file a motion to suppress (the subject of this motion is unclear), attack suggestive
identification, or seek to suppress Leaks’ statements; (4) the State did not prove him guilty
beyond a reasonable doubt; and (5) the State’s identification of him violated his rights to due
process because it was “tainted with suggestive tactics by police.” The Supreme Court denied
Leaks’ PLA.

Leaks also filed a state post-conviction petition, which was denied. Leaks appealed and
his attorney sought leave to withdraw pursuant to Pennsylvania v, Finley, 481 U.S. 551 (1987).
The Illinois Appellate Court affirmed the judgment of the Circuit Court and permitted counsel to
withdraw. Leaks filed a petition for leave to appeal (“PLA”) with the Illinois Supreme Court
arguing that: (1) the Illinois Appellate Court erroneously found that certain claims raised by
Leaks were barred because they could have been raised on direct appeal; and (2) the Illinois
Appellate Court violated his due process rights by ruling against him. The Supreme Court

denied Leaks’ PLA.


Passenger seat. Carter, who was carrying a gun, arrived on the scene and pulled up behind
Rodriguez’s car.

Carter got out of his car and walked towards Rodriguez. He threatened to kill Mendez
and pulled the trigger. Luckily for Mendez, the gun did not fire. Carter then shot Rodriguez in
the head and took the bag of drugs. Leaks slid over to the driver’s side and drove alongside
Rodriquez’s car. Leaks yelled out to Carter, telling him to “shoot her” and to “hurry up” and “do
it.” After Carter got back into the car, Leaks drove away.

Mendez also testified to substantially the same version of events. She did not, however,
see what was in the bag that Rodriguez removed from his car. She also thought that Carter
wanted to steal her purse or jewelry when he began to threaten the occupants of Rodriguez’s car.
The State stipulated that Leaks admitted he was in the car and that he drove it away after
Rodriguez was shot. Defense counsel stipulated that neither Andrich nor Mendez mentioned that
Leaks said anything on the day of the shooting. Andrich and Mendez identified Leaks in a photo
array three days after the shooting and also identified him in a subsequent line-up and at trial.
The court found that Leaks was guilty of all charges based on a theory of accountability.

On direct appeal, Leaks’ counsel sought leave to withdraw pursuant to Anders v.
California, 386 U.S. 738 (1967). Leaks raised five arguments in response: (1) the assistant
public defender who represented him at trial was biased because Leaks had filed complaints
against other assistant public defenders with the Attorney Registration and Disciplinary
Commission; (2) the testimony of the State’s witnesses was “embellished” to support a finding of
accountability because the witnesses were under the influence of drugs at the time of the offense

and one witness lied on the stand; (3) trial counsel was ineffective because he failed to

-2-



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

EASTERN DIVISION D O CKETED

UNITED STATES OF AMERICA ) AUG 27 2003
ex rel. KERMIT LEAKS, )
Petitioner, )
)

v. ) 02 C 9501
)
GUY PIERCE, )
Respondent. )
MEMORANDUM AND ORDER

Following a bench trial in the Circuit Court of Cook County, petitioner Kermit Leaks was
convicted of first degree murder, attempted first degree murder, and armed robbery under an
accountability theory. He was subsequently sentenced to concurrent terms of 22 years of
imprisonment. He unsuccessfully pursued a direct appeal and sought collateral relief from the
Mlinois courts. This petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 followed.
For the following reasons, Leaks’ petition is denied.

I. Background

The court will presume that the state court’s factual determinations are correct for the
purposes of habeas review as Leaks has not provided clear and convincing evidence to the
contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir.2002). The
court thus adopts the state court’s recitation of the facts.

At trial, Danny Andrich testified that, on October 13, 1996, Jose Rodriguez drove
Andrich and his girlfriend, Gloria Mendez, to a location in Chicago. Rodriguez removed a bag
of drugs from a hidden location in the vehicle, gave Andrich a “rock,” and took a “wicky stick”

for himself. On that same date, Danny Carter was out driving his car, with Leaks in the


evidence supports a conclusion that he was, in fact, there and a participant in the unfortunate
events that transpired. This is especially true given that the court must view the evidence in the
light more favorable to the State. These facts are consistent with a finding of guilt. Accordingly,
Leaks is not entitled to relief under § 2254 because the state court’s decision is a reasonable
application of the controlling law to the facts of this case.

5. Exceptions to Procedural Default

As noted above, a federal court may not grant relief on a procedurally defaulted claim
unless the petitioner can establish cause for the default and actual prejudice as a result of the
alleged violation of federal law or demonstrate that the court’s failure to consider the claim will
result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. at 750.
Although Leaks does not contend that cause and prejudice or the fundamental miscarriage of
justice exceptions excuse his default, the court will nevertheless consider whether they can give
him any succor.

Cause exists where “some objective factor external to the defense impeded (the
petitioner’s] efforts to comply with the State’s procedural rule.” Strickler v. Greene, 527 U.S.
263, 282 (1999). Here, Leaks simply did not present his claims properly to the Illinois courts.
Nothing in the record before the court indicates that an objective factor prevented him from
doing so. Thus, cause does not excuse his default. Moreover, an allegation of ineffective
assistance of counsel is not, by itself, enough to establish prejudice. See Pitsonbarger v.
Gramley, 141 F.3d 728, 737 (7th Cir.1998). Thus, neither cause nor prejudice exists.

The fundamental miscarriage of justice exception is also inapplicable because “this relief
is limited to situations where the constitutional violation has probably resulted in a conviction of

one who is actually innocent.” Dellinger v. Bowen, 301 F.3d 758, 767 (7th Cir. 2002). To show

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