prison.
DISCUSSION

It is undisputed that Clerk exhausted his state remedies. Clerk raises three grounds for
habeas relief. The state contends Clerk’s claims are either procedurally defaulted, or should be
denied on the merits. These arguments are addressed in turn.

I. Standard of Review

A federal court will not grant habeas corpus relief on any claim adjudicated on the merits by
a state court unless: (1) the state court applied a Supreme Court doctrine unreasonably to the facts
of the case; or (2) the state court's decision relied on an unreasonable reading of the facts in light of
the evidence presented. 28 U.S.C. § 2254(d). For relief based on an unreasonable application of
Supreme Court doctrine, the state court's decision must be both incorrect and unreasonable.
Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000).

IL. Right to Counsel and an Impartial Jury

Clerk contends his Sixth Amendment rights to counsel and an impartial jury were violated
because his counsel was restricted from asking certain questions during voir dire. The state argues
that this claim is procedurally defaulted because Clerk did not raise this issue in his petition for leave
to appeal to the Supreme Court of Illinois.

“Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust
his remedies in state court.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the
exhaustion requirement, a state prisoner must give the state courts one full and fair opportunity to
adjudicate his federal constitutional claims. Even though the Ilinois Supreme Court’s review is

discretionary, it is part of the state’s appellate review process. Accordingly, a state prisoner must


in bringing his constitutional claims before the state courts. Because Clerk cannot establish good
cause, discussion of the prejudice requirement is unnecessary.

Nor does Clerk contend that failure to review his habeas claims would result ina fundamental
miscarriage of justice. A miscarriage of justice occurs where “a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” Jd. at 495-96. To meet this standard,
Clerk must show that it is more likely than not that no reasonable juror would have convicted him.
Rodriquez, 193 F.3d at 917. Clerk does not point to any evidence showing he is actually innocent,
Moreover, “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” based
upon the testimony of the two victims, Cotton and Banks, who coherently and consistently testified
that Clerk was one of the assailants, Jackson v. Virginia, 443 U.S. 307, 319 (1979). Therefore, no
fundamental miscarriage of ‘justice results from application of the procedural default rule. Clerk has
failed to meet his burden of persuading the court that it should hear his defaulted claims.

CONCLUSION

The petition for a writ of habeas corpus is denied.

October 9, 2001 ENTER:

S ie B. Conlon
United States District Judge


heard noises at the back door. Cotton took his gun and approached the back door. The door opened,
and the two men who had sold Cotton the television set entered the house. One of the men hit
Banks, knocking her into the refrigerator. The men disarmed Cotton and tied Banks and Cotton with
cords. Banks testified that Clerk covered her with a blanket and when she removed it, he punched
her in the eye. The men kicked Cotton and poured hot tap water over the couple. The men
proceeded to rob the couple and burglarize the house. In January 1991, Banks and Cotton went to
the Aurora police station and identified Clerk as one of the assailants from a photographic array.
Cotton stated that he was afraid to identify Clerk because he was not sure if Clerk was in custody.

For the defense, Michael Gonzales, a friend of Clerk’s, testified that he went to Clerk’s
apartment on December 21, 1990, around 6 p.m. Clerk lived with his girlfriend, Sharon Beasley
(they later married), and her four children. Gonzales’ girlfriend, Keela Moore, was also present.
Gonzales spent the night at Clerk’s apartment and left only once, around 3:30 a.m., to accompany
Beasley to get alcohol. Gonzales testified that Clerk only left the apartment once that night, between
8:00 - 8:30 p.m., to purchase some Christmas ornaments. On cross-examination, the prosecutor
asked Gonzales whether five other specifically named individuals were present at the apartment that
night. Gonzales stated they were not. Despite his awareness of the charges Clerk was facing,
Gonzales did not come forward with this information until 7:00 p.m. the night before he testified.

Keela Moore also testified that Clerk only left the apartment between 8:00 - 8:30 p.m. The
prosecutor asked Moore whether the same five specific individuals were present at Clerk’s
apartment. Moore stated they were not present. Moore initially did not come forward because she
did not want to get involved.

Following a jury trial, Clerk was convicted of home invasion and: sentenced to forty years in



give the Illinois Supreme Court the Opportunity to resolve any constitutional infirmities in order to
satisfy the exhaustion requirement. Id. at 844-46. Because Clerk did not present his right to counsel
and an impartial jury claims to the Illinois Supreme Court, he has not satisfied the exhaustion
requirement. Thus, his claim is procedurally defaulted.

Il. Right to Fair Trial

Clerk contends he was denied the right to a fair trial in violation of the Sixth and Fourteenth
Amendments because the state Prosecutor was allowed to cross-examine his alibi witnesses (Michael
Gonzales and Keela Moore) about five individuals not called or referred to by the defense in their
case in chief. The state contends this claim should be denied on the merits. However, the court need
not reach the merits of this claim because it is procedurally defaulted.

To meet the exhaustion requirement, a petitioner must fully and fairly present each claim to
the state courts. Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999). “Fair presentment requires
the petitioner to give the state courts a meaningful opportunity to pass upon the substance of the
claims later presented in federal court.” Jd. In order to fairly present a constitutional claim, the
petitioner must have submitted both the operative facts and the controlling legal principles to the
State courts. Id. “A petitioner may reformulate his claims somewhat, so long as the substance of his
arguments remains the same .... However, a petitioner’s reformulation of his claim should not place
the claim ina si ignificantly different legal posture by making the claim stronger or more substantial.”
Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001).

In presenting his claim to the state courts, Clerk did not rely on any federal or state case law
employing federal law or federal constitutional law. Nor did Clerk refer to the United States

Constitution, the Sixth Amendment, or the Fourteenth Amendment. Thus, it is not surprising that


7
Minute Order Form (

United States District Court, Northern District of Illinois

Name of Assigned Ju it it Other
oe Magistrate Judge Suzanne B. Conlon “han iaigned Judge
CASE NUMBER 01 € 5075 DATE 10/9/2001
CASE UNITED STATES OF AMERICA, EX REL. DEMETRIUS CLERK vs. GUY D.
TITLE PIERCE

of the motion being presented]

[in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION:

DOCKET ENTRY:

() q Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

(3) 0 Answer brief to motion due___. Reply to answer briefdue___.

(4 o Ruling/Hearing on set for__ at

(5) im] Status hearing[held/continued to] {set for/re-set for]on__set for at.

(6) i) Pretrial conference[held/continued to] [set for/re-set for]on__setfor__—at__—

(7) QO Trial[set for/re-set for]on___at

(8) a] [Bench/Jury trial] [Hearing] held/continued to___—_at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) O General Rule21 COPRCP41(a)(1) [ FRCP41(a)(2).

do) olf [Other docket entry] The petition for a writ of habeas corpus [1-1] is denied. ENTER

MEMORANDUM OPINION AND ORDER.

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

Sespuns 2-Osalr

No notices required, advised in open court.

No notices required. . ;
DCT Jbeaggion

Y | Notices mailed by judge’s staff,

Notified counsel by telephone. date docketeg-7y

Docketing to mail notices.

Y | Mail AO 450 form.

Copy to judge/magistrate judge.

date mailed notice
courtroom

SB deputy’s

ae cB
initials

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



the appellate court did not address Clerk’s present constitutional claims. Instead, the appellate court
based its ruling on Illinois law governing discovery and discovery sanctions, and held that the
improper questioning did not constitute reversible error. The legal posture of Clerk’s claim before
this court is substantially different than it was before the state courts. Accordingly, Clerk’s claim
is procedurally defaulted because he did not fully and fairly present his constitutional claim to the
state courts.
IV. Evidence Failed to Prove Guilt Beyond a Reasonable Doubt

Clerk’s final claim is that he was not proven guilty beyond a reasonable doubt, in violation
of the Fourteenth Amendment. This claim is proceduraily defaulted. Clerk did not argue that the
evidence failed to prove guilt beyond a reasonable doubt before the state appellate and supreme
courts.’ Accordingly, his claim is procedurally defaulted. See Rodriguez, 193 F.3d at 917,
V. Cause and Prejudice or Miscarriage of Justice

A federal court cannot hear defaulted claims unless the petitioner shows: ( 1) good cause for

the procedural default and actual prejudice from his failure to raise his claims; or (2) that failure to

review the claims would result in a fundamental miscarriage of justice. McCleese y. Unit tes,

75 F.3d 1174, 1177 (7th Cir. 1996); Milone v. Camp, 22 F.3d 693, 700 (7th Cir. 1994) (the b

of persuasion on petitioner is difficult).

Clerk does not address the procedural defaults in his petition. Good cause normally requires
a showing of an external objective impediment to the petitioner’s presentation of his claim, such as
unavailability of the factual or legal bases for a claim, or interference by state officials. Murray vy.

Carrier, 477 U.S. 478, 485-87 (1986). There is no evidence in the record that Clerk was impeded

‘Clerk did not raise this issue until his petition for post-conviction relief.

6



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

EASTERN DIVISION
UNITED STATES OF AMERICA, )
EX REL. DEMETRIUS CLERK )
) No. 015075
Plaintiff, )
) Suzanne B. Conlon, Judge
v. )
)
GUY D. PIERCE )
)
Defendant. )

DOCKETED

ocT 11 2001
MEMORANDUM OPINION AND ORDER

Petitioner Demetrius Clerk (“Clerk”) seeks a writ of habeas corpus to vacate his conviction

pursuant to 28 U.S.C. § 2254.
PROCEDURAL BACKGROUND

On August 14, 1991, Clerk was convicted of home invasion and sentenced to forty years
imprisonment in the Circuit Court of Kane County. The Appellate Court of Illinois affirmed the
conviction in an unpublished decision. People v. Clerk, No. 2-91-0936 (III. App. Ct. filed Sept. 15,
1993). On April 28, 1994, the Illinois Supreme Court denied Clerk’s petition for leave to appeal.
Clerk did not petition the United States Supreme Court for a writ of certiorari. On April 26, 1996,
Clerk filed a petition for post-conviction relief in the Circuit Court of Kane County. His petition was
denied on April 17, 1997. The Appellate Court of Illinois affirmed the denial of post-conviction
relief on April 27, 1999, and on June 4, 1999, denied Clerk’s motion for rehearing. On December

30, 1999, Clerk sought leave to file a late petition for leave to appeal to the Illinois Supreme Court;

wa

leave was denied on June 22, 2000.


Clerk filed this habeas petition on June 21, 2001, claiming he is unlawfully detained on three
grounds. First, Clerk claims he was denied a fair trial in violation of the Sixth and Fourteenth
Amendment because the state trial court allowed the prosecutor to cross-examine his alibi witnesses
regarding the whereabouts of individuals not called or mentioned by the defense at trial. Second,
he claims his Sixth Amendment right of counsel and to an impartial jury were violated because his
counsel was restricted from asking certain questions during voir dire regarding an alibi defense and
the court did not instruct the jury on the alibi defense. Third, Clerk claims his Fourteenth
Amendment right of equal protection was violated because he was not proven guilty beyond a
reasonable doubt.

STATEMENT OF FACTS

The factual findings of a state trial or appellate court are presumed true in a federal habeas
proceeding unless the petitioner rebuts the presumption with clear and convincing evidence. 28
U.S.C. § 2254(e)(1). There is no evidence before the court to rebut this presumption. Accordingly,
the following facts are drawn from the appellate court’s opinion affirming Clerk’s conviction.

On the night of December 21, 1990, Denise Banks and her boyfriend, Ray Cotton, went into
a tavern in Aurora, Illinois, where the couple had some alcoholic drinks and talked. While talking
to aman named “Roger,” the couple were approached by two black malés. Banks identified one of
the men as Clerk. The two men wanted to know if they were interested in purchasing a television
set. Cotton and Roger accompanied the two men to the parking lot to view the television set. Cotton
purchased the set for $75 cash. Banks and Cotton then left the tavern and drove to Cotton’s home.

After the couple went to bed, Banks heard noises and woke Cotton. Cotton surveyed the

house. After finding nothing suspicious, he went back to bed. Shortly thereafter, Banks and Cotton