The Illinois Appellate Court rejected Plaintiff's appeal on February 14, 2001. On June 6, 2001,
the Illinois Supreme Court denied Petitioner’s request for leave to appeal.' Shortly thereafter, he
sought federal habeas relief.
Il. STANDARD FOR HABEAS PETITIONS

Petitions seeking federal habeas relief are governed by the familiar, and restrictive,
standards of the Antiterrorism and Effective Death Penalty Act (AEDPA). “A federal court may
only grant relief under AEDPA if the decision of the state court ‘was contrary to, or involved an
unreasonable application of, clearly establish Federal law, as determined by the Supreme Court
of the United States.” A.M. v. Butler, 360 F.3d 787 (7th Cir. 2004). In 2000, the Supreme
Court explained that a state court decision is “contrary to” Supreme Court precedent if the “state
court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of
law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court
precedent” and arrives at an opposite result. See Williams v. Taylor, 529 U.S. 369, 405, 407
(2000). An unreasonable application of Supreme Court precedent occurs when “the state court
unreasonably applies it to the facts of the particular state prisoner’s case” or “unreasonably
extends a legal principle ... to a new context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply.” Id. To be unreasonable, the
decision of the state court must not be simply incorrect or erroneous, it must have been

“objectively unrtasonable.” Wiggins v. Smith, --- U.S. ----, 123 §.Ct. 2527 (2003).

‘Petitioner also filed or attempted to file two additional pro se actions in the state courts.
One was styled as a Motion for a Supervisor Order on Non-waivable Fitness Issue filed in the
Illinois Supreme Court; it was denied on February 1, 2000. The other was styled as a “Motion
for leave to file a petitoin for a writ of habeas corpus” filed with the Illinois Supreme Court.
Leave to file was denied on June 1, 2001.



beyond the original trial record. The alleged failure to investigate would require an inquiry into
the evidence and witnesses that the attorney allegedly should have investigated, as well as a
factual inquiry into whether the attorney did investigate those issues. Neither of those failures
would be apparent from the original trial court record. With the fitness issue, trial counsel’s
failure to request a hearing on petitioner’s fitness to stand trial would be apparent from the
record, but what would not be apparent are the facts underlying Petitioner’s allegation that he
was unfit to stand trial. Consequently, the Illinois appellate courts would be unable to determine
whether trial counsel’s failure constituted deficient performance or whether that deficient
performance was prejudicial. Since both of these allegations require factual development beyond
the original trial record, they would not be subject to the Illinois waiver rule.

The direct appeal waiver rule is not the only procedural pitfall that can swallow
ineffective assistance of counsel claims. Any non-waived claims must also be presented to the
state courts in post-conviction in the manner that the state regulations require. Unfortunately for
Petitioner, Respondent is correct that the state post-conviction courts held that he did not
properly present four of his five claims of ineffectiveness. Where a state court clearly and
expressly relies on its procedural default rules as the basis for denying a petitioner relief, the
federal courts are bound to respect those rulings. Harris v. Reed, 489 U.S. 255, 263 (1989).

The state courts rejected four of Petitioner’s five allegations of trial and appellate
counsel’s ineffectiveness because they were not presented in his first post-conviction petition.
See Resp. Ans. Ex. V, at 3 (rejecting failures relating to jury instructions, investigation of
witnesses, and raising Fourth Amendment violation for failure to present in first post-conviction

petition); Resp. Ans. Ex. DD, at 9 (rejecting failures relating to the fitness hearing for failure to


Illinois appellate court applied this standard to Gilyard’s sufficiency of the evidence claim on the
issue of intent and it reached the following conclusion:

the evidence established that there was a struggle between the victim and

defendant and that the victim suffered a gunshot, a blunt trauma to the forehead,

several abrasions, numerous lacerations, defense wounds on her fingers, and a

stab wound during the altercation. Additionally, one of the knives recovered at the

scene had its tip broken. The nature and extent of the victim's injuries, coupled

with the fact defendant kicked in the door, would clearly permit a rational trier of

fact to conclude that defendant intentionally injured the victim.
People v. Gilyard, 602 N.E.2d 1335, 1345 (Il. App. Ct. 1992).
This Court finds the state court conclusion is consistent with—and a reasonable application
of—federal law. Consequently, the Court denies Gilyard’s claim that the evidence at his trial
was constitutionally insufficient to prove him guilty.

The Ilinois courts also examined the evidence closely on the issue of Petitioner’s sanity.
At trial, the Petitioner presented expert testimony from two witnesses that Petitioner suffered
from schizophrenia on the date of the offense. The state presented expert testimony from one
witness that Petitioner was suffering from drug and alcohol abuse and a personality disorder at
the time of the offense. In the face of this conflicting testimony, the state court held that the trier
of fact had a reasonable basis to conclude that Petitioner was sane at the time of the offense.
(Resp. Ans., Ex. D at 25-27) This Court finds that the state court conclusion is consistent with
and a reasonable application of federal law. The Court must also deny Gilyard’s claim that the
jury’s finding that he was sane was based on insufficient evidence.

B. Petitioner’s Ineffectiveness Allegations (Grounds 2, 3, and 6)

Petitioner asserts that his attorneys failed to provide him with effective assistance of

counsel at his trial and on his direct appeal in violation of his rights under the Sixth and


Gilyard’s habeas petition raises six grounds for relief: (1) the State did not prove him
guilty beyond a reasonable doubt at trial; (2) trial and appellate counsel were ineffective when
they failed to address jury instructions on second-degree murder and self-defense; (3) trial and
appellate counsel were ineffective in failing to request a fitness hearing at his trial; (4) the jury
erroneously determined that Petitioner was sane at the time of the offense; (5) the conviction for
felony-murder predicated on home invasion is void because the underlying felony statute is
unconstitutionally vague and overbroad; and (6) trial counsel was constitutionally ineffective by :
a) failing to get his confession suppressed; b) failing to properly investigate and call witnesses in
Petitioner’s defense; and c) failing to raise a constitutional issue regarding suppression of
Petitioner’s confession.

A. Petitioner’s Sufficiency of the Evidence Challenge (Grounds 1 & 4)

The first and fourth alleged constitutional violations in Gilyard’s habeas petition are both
sufficiency of the evidence challenges. In ground one, Gilyard asserts that the evidence
presented at his state court trial was insufficient as a matter of law to prove that he had the
requisite intent to harm the victim, who was his wife. In ground four, Gilyard asserts that the
jury’s finding that he was sane was based on insufficient evidence. In order to obtain relief on
this claim, the Petitioner must show that the Illinois Appellate Court’s decision affirming the
judgment on these bases involved an incorrect or unreasonable application of federal law.

In order to prove that the evidence was constitutionally insufficient to sustain the
conviction, the Petitioner must demonstrate that, “viewing the evidence in the light most
favorable to the prosecution, [no] 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



Parker, 801 N.E.2d 162, 169 (Ill. App. Ct. 2003). Additionally, a claim that appellate counsel
was ineffective for failing to raise ineffectiveness of trial counsel abrogates the waiver rule. See
People v. Williams, — N.E. 2d —, 2004 WL 539210, at *1 (Ill. App. Ct., Mar. 18, 2004).

Gilyard’s ineffectiveness allegations, then, should be divided into those claims which had
a factual predicate apparent in the state court record and those claims which did not. The
following three allegations of trial counsel’s ineffectiveness could have been apparent from the
original state court trial record: (1) failure to seek jury instructions on second-degree murder and
self-defense; (2) failure to file a suppression motion for Gilyard’s inculpatory statement; and (3)
failure to raise a Fourth Amendment argument. All of those failures should have been apparent
in the trial court record and none of the allegations in Gilyard’s habeas petition would require
development outside of that record. Consequently, those three allegations could be the proper
subject of Illinois’ waiver rule provided that they were not raised on direct appeal and that there
is no allegation that appellate counsel was ineffective in failing to raise them. The Court notes
that the Illinois courts did not apply the waiver rule to Petitioner’s claim that counsel was
ineffective for failing to get his statement suppressed.? See Resp. Ans. Ex. P at 2~4. The federal
courts have no vested interest in applying a state’s procedural rules where the state itself does not
apply them.

Plaintiffs’ other two allegations of trial counsel’s ineffectiveness are that trial counsel
failed to properly investigate or call witnesses and that trial counsel failed to request a hearing on

petitioner’s fitness to stand trial. Both of these allegations would require factual development

?The state courts’ treatment of the other two potentially waived claims will be addressed
below.


Minute Order Form (06/97)

MY

United States District Court, Northern District of Iinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge David H. Coar than Assigned Judge
CASE NUMBER 01 C 6550 DATE 4/30/2004
CASE Gilyard vs. Sternes
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

qd) oO Filed motion of { use listing in “Motion” box above.]

(2) aq Brief in support of motion due

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

(4) Oo Ruling/Hearing on. set for at

(5) oO Status hearing[held/continued to] [set for/re-set for] on set for at

(6) Qo Pretrial conference[held/continued to] [set for/re-set for] on set for at .

(7) ao Trial{set for/re-set for] on at

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

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

OFRCP4(m) OLocal Rule 41.1 CFRCP41(a)(1) CIFRCP41(a)(2).

(io) =f {Other docket entry] For the reasons set forth in the attached memorandum, the petition for habeas
corpus relief is denied in its entirety. Any and all other pending motions are moot and terminated. This
case is closed.

(ll) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document
. . Number
No notices required,
Notices mailed by judge’s staff.
Notified counsel by telephone.
Jv Docketing to mail notices.
7 | Mail AO 450 form.
Copy to judge/magistrate judge.
courtroom
jar(le) deputy’s
initials
Date/time received in
central Clerk's Office

ere

Fi vat and



file an original action in the Supreme Court of Illinois seeking a determination that the statute
was unconstitutional. The Illinois Supreme Court denied him leave to file such a motion.
Because Petitioner failed to raise this issue during his state direct and post-conviction appeals, it
cannot be the proper subject for relief on a federal habeas petition.
CONCLUSION
For the reasons set forth above, this Court denies the petition for habeas corpus in its

entirety.

Enter:

David H. Coar
United States District Judge

Dated: April 30, 2004

11


present in first post-conviction petition). The fifth claim, relating to counsel’s failure to get his
confession suppressed, was raised in petitioner’s first post-conviction petition and it was denied
on the merits. See Resp. Ex. P at 2-4. Petitioner has not demonstrated cause and prejudice
sufficient to overcome these procedural defaults.

This Court rejects Respondent’s request for it to apply the state court direct appeal waiver
tule to this claim. As noted above, the federal courts apply state procedural rules to federal claims
out of respect for the integrity of the state court process. Where the state courts choose not to
apply their procedural rules, there is absolutely no rationale for the federal court to subsequently
apply those rules to foreclose the possibility of relief.

Although this claim has been properly preserved for review, Petitioner cannot obtain
relief on counsel’s alleged failure. In order to obtain relief, Petitioner must show that the state
court ruling was contrary to or an unreasonable application of federal law. In order for defense
counsel’s performance to violate the Sixth Amendment, it must have been below the reasonable
standards of competence for the profession and prejudicial to the defendant. See Strickland v.
Washington, 467 U.S. 1267 (1984). The state court held that because the prosecution did not use
these statements in Petitioner’s trial, he could not show that counsel’s alleged failure was
unconstitutionally prejudicial. This Court cannot find this holding to be contrary to or an
unreasonable application of federal law.

Cc Petitioner’s Constitutional Challenge to the State Statute (Ground 5)

Petitioner’s final remaining allegation in his habeas petition is that the state statute is
unconstitutionally vague and overbroad as applied to the facts of his case. Petitioner failed to

raise this claim on direct appeal or in any of his post-conviction filings. Petitioner attempted to

10


Fourteenth Amendments. Specifically, he asserts that trial counsel was ineffective for failing to:
(1) obtain jury instructions for second-degree murder and self-defense; (2) seek a hearing to
determine whether Gilyard was fit to stand trial; (3) move to suppress Gilyard’s inculpatory
statement; (4) investigate properly and call defense witnesses; and (5) raise a Fourth Amendment
argument when the police allegedly failed to honor Gilyard’s right to silence. Gilyard also
asserts that his appellate counsel on direct appeal was ineffective for failing to raise on appeal:
(1) the jury instruction issue regarding second-degree murder and self-defense; (2) the issue
relating to Gilyard’s fitness to stand trial; (3) trial counsel’s failure to move to suppress Gilyard’s
inculpatory statement; (4) trial counsel’s failure to investigate properly and call defense
witnesses; and (5) trial counsel’s failure to raise a Fourth Amendment argument when the police
allegedly failed to honor Gilyard’s right to silence.

Before addressing the merits of any of these issues, the Court must confront Respondent’s
assertions of procedural default. Respondent asserts that all of Petitioner’s ineffectiveness claims
were procedurally defaulted in the state courts.

Respondent first asserts that each of Gilyard’s claims of ineffectiveness of trial counsel
are waived because he failed to raise the claims on direct appeal. (Answer at 10.) Illinois
requires ineffectiveness claims that have a clear factual predicate in the trial court record to be
presented to the appellate court on direct appeal or be waived. See People v. Cleveland, 796
N.E.2d 201, 203 (Ill. App. Ct. 2003). “The waiver rule does not apply to claims that depend on
evidence outside the record.” Id. Where a “defendant’s ineffective assistance of counsel claim
requires consideration of matters beyond the record on direct appeal, it is more appropriate that

the defendant’s contentions be addressed in a proceeding for post-conviction relief.” People v.



Lake County dismissed the petition as frivolous and patently without merit on April 6, 1994.
Petitioner appealed to the Illinois Appellate Court. The State Appellate Defender moved to
withdraw from its representation of Petitioner pursuant to Pennsylvania v. Finley, 481 U.S. 551
(1987). On February 15, 1996, the Appellate Court granted the motion and affirmed the
dismissal of the post-conviction petition. Petitioner did not file a petition for leave to appeal to
the Illinois Supreme Court.

Petitioner sought to file subsequent post-conviction petitions in state court. The first
attempt was styled as a motion to supplement or amend his first petition and was filed on May
18, 1995. The state trial court dismissed the petition for lack of jurisdiction because the original
post-conviction petition was still pending. The appellate court affirmed the dismissal, holding
that petitioner had waived his ability to bring the claims presented in the petition by not
presenting them in the first post-conviction petition. Petitioner appealed the denial of that
petition to the Illinois Supreme Court, which denied him leave to appeal on December 6, 1996.
The second attempt was styled as a motion to amend his previous motion to supplement or
amend this first petition, and it was filed on May 14, 1996. It was dismissed on June 5, 1996 for
the same reason that the first attempt was dismissed: the trial court lacked jurisdiction to accept
amendments to petitions that were currently on appeal. Petitioner did not appeal that
determination.

On June 6, 1997, Petitioner filed a petition for relief from judgment pursuant to 735 ILCS
5/2-1401, claiming that the trial court erred in not conducting a fitness hearing at trial. The trial
court treated this as a successive post-conviction petition, and denied relief on May 21, 1999

holding that the issue had been waived by failing to raise it in his first post-conviction petition.



failed to tender a jury instruction on criminal trespass to a residence; (3) the jury determination
that he was not insane at the time of the crime was against the manifest weight of the evidence;
(4) his two convictions arose from the same physical act violating the “one act/one crime”
principle under Illinois law; and (5) his sentence was excessive. On October 20, 1992, the
Illinois Appellate Court rejected Petitioner’s claims and affirmed his conviction and sentence.
Petitioner filed a petition for leave to appeal the Illinois Supreme Court which raised the first,
second, and third issues from his previous appellate brief. The Illinois Supreme Court denied the
petition on February 3, 1993.

Meanwhile, the Supreme Court of Illinois granted Petitioner’s request for a supervisory
order relating to the home invasion sentence on July 8, 1993. On October 1, 1993, the Illinois
Appellate Court vacated his conviction for home invasion. In light of these subsequent
developments, it is unclear whether Petitioner’s conviction and sentence became final on May 4,
1993, when the time for filing a petition for certiorari to the United States Supreme Court
expired, or on October 1, 1993, when his conviction and sentence for home invasion were
vacated. As the Respondent has conceded the timeliness of the habeas petition, the actual date
the conviction and sentence became final would only be relevant to retroactivity issues which are
not presented by this petition.

On February 22, 1994, Petitioner filed a pro se petition for post-conviction relief in Lake
County Circuit Court. The petition presented the following three issues: (1) the trial court erred
in refusing to suppress Petitioner’s confession at trial; (2) Petitioner’s trial counsel was
ineffective in arguing the motion to suppress; and (3) Petitioner’s appellate counsel was

ineffective for failing to argue either of those two issues on direct appeal. The circuit court of


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

EASTERN DIVISION
MICHAEL GILYARD, )
) No. 01 C 6550
Petitioner, )
) HONORABLE DAVID H. COAR
v. )
)
JERRY L. STERNES, Warden, ) COCKE Te
) M
) Y 02 2004
Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner Michael Gilyard (“Petitioner” or “Gilyard”) filed his petition for habeas corpus
relief with this Court in August 2001, and it was received in this Court on August 22, 2001. The
petition was initially denied as time-barred, but, after Respondent conceded that the petition was
timely filed, that decision was reversed by the Seventh Circuit Court of Appeals. See Gilyard v.
Sternes, No. 02-1063, Order of Jan. 16, 2003 (7th Cir. 2003) (unpublished order). On March 11,
2003, the Respondent filed its Answer to the habeas corpus petition. For the reasons set forth
below, the petition for habeas corpus relief is denied.

I. PROCEDURAL BACKGROUND IN STATE COURT

In September 1990, following a jury trial in Lake County, Ilinois, Petitioner was
convicted of first degree murder and home invasion. He was sentenced to a term of
imprisonment of sixty (60) years. Petitioner appealed his conviction and sentence to the
Appellate Court of Illinois raising the following five issues: (1) the State failed to prove guilt

beyond a reasonable doubt; (2) he received ineffective assistance of counsel when his counsel