established Federal law... .” 28 U.S.C. § 2254(d). Nor was the Illinois Appellate Court’s
decision “based on an unreasonable determination of the facts in light of the evidence presented
in the State court proceedings.” Jd. As the Illinois Appellate Court noted, the hearing was
merely a resentencing on fifty-four of fifty-six counts, with “similar, if not identical, sentencing
guidelines as the two counts vacated by this court.” (R. 12, Resp’t’s Ex. H, Rule 23 Order No. 1-
98-0828 at 3.) Moreover, Guyton’s argument that counsel’s performance was deficient by not
presenting mitigation evidence ignores the fact that the State did not offer anything in
aggravation. Cf United States ex rel. Clemons v. Walls, No. 01 C 4597, 2002 WL 832577, at *9-
11 (NLD. Il. May 2, 2002) (holding that counsel’s “failure to exert any efforts on Petitioner’s
behalf” constituted ineffective assistance of counsel at sentencing); United States ex rel. Madej v.
Gilmore, No. 98 C 1866, 2002 WL 370222, at *6 (N.D. Ill. Mar. 8, 2002) (same). Thus, while
we agree with Guyton that Mr. Zaslavsky should have made “some token effort” on behalf of his
client, (see R. 21-1, Pet’r’s Resp. at 28), we conclude that — under these specific circumstances
involving merely a resentencing on fifty-four of fifty-six counts with nearly identical sentencing
guidelines — the Illinois Appellate Court’s decision rejecting Guyton’s claim of ineffective

assistance of counsel at resentencing was not unreasonable. Consequently, Guyton is not entitled

the remaining 54 counts upon which defendant may be sentenced, several are considered Class X
felonies which have substantially similar, if not identical, sentencing guidelines as the two counts
vacated by this court. Clearly, the sentence was well within the statutory guidelines for the
crimes committed.

Additionally, defendant alleges that he was prejudiced by counsel’s substandard
performance but he does not indicate how that prejudice manifested itself. He does not point
specifically to even one alternative possibility to the outcome of this sentencing hearing nor does
he indicate what evidence should have been presented which counsel failed through his
inadequate performance to tender. Consequently, we reject defendant’s argument that he was
denied his right to effective assistance of counsel.

(R. 12, Resp’t’s Ex. H, Rule 23 Order No. 1-98-0828 at 3-4.)

19


ineffective assistance claims submitted by Petitioner herein on its merits . . . [because] [alll of
these claims . . . are but facets of the single claim, and Petitioner has alleged at least one aspect of
the ineffective assistance by Zaslavsky at every state court proceeding.” (R. 21-1, Pet.’s Resp. at
9, 32 (citing Williams v. Washington, 59 F.3d 673, 682 (7" Cir. 1995) (stating that “a petitioner
may demonstrate that the cumulative effect of counsel’s individual acts or omissions was
substantial enough to meet Strickland’ s test”).) Guyton also asserts that “arguable factual
commonality’ exists among all of the ineffective assistance of counsel claims presented by
Petitioner in the state courts and in his current Petition and that these claims must be considered
in their totality.”"? (id. at 9 (citing Kenley v. Armontrout, 937 F.2d 1298, 1303 (8" Cir. 1991).)
Moreover, Guyton contends that there was adequate cause to excuse his failure to raise the
majority of his claims in state court, as well as adequate prejudice resulting from the procedural
default. Finally, Guyton urges this Court to consider the merits of his claims on the “independent
basis . . . [that] to ignore Petitioner’s claims on the grounds of procedural default would render a
grave injustice against Petitioner.” (Jd. at 10 (citing Schlup v. Delo, 513 U.S. at 320-23).)

The Supreme Court has stated that the procedural default doctrine and its attendant

” With respect to Guyton’s contentions that each of his ineffective assistance of counsel
claims “are but facets of the single claim,” and that “arguable factual commonality” exists among
those claims, the Court disagrees. We simply cannot conclude that each of Guyton’s fourteen
factually and legally distinct ineffective assistance of trial counsel claims — all procedurally
defaulted as described above — are facets of one claim, are factually common or that the
cumulative effect of the claims is substantial enough to meet Stricklana’s test. See Chambers,
264 F.3d at 737-38 (holding that “[t]he petitioner must have placed both the operative facts and
the controlling legal principles before the state courts,” and concluding that “{mlere similarity of
claims is insufficient to,exhaust”). See also supra note 6. Contra Anderson v. Groose, 106 F.3d
242, 245 (8 Cir. 1997) (recognizing that related claims containing an “arguable factual
commonality” may be reviewed) (citing Kenley v. Armontrout, 937 F.2d 1298, 1302-03 (8" Cir.
1991).

13


mandate and the applicable statute when it failed to conduct a sentencing hearing and failed to
consider a presentence investigation report before sentencing Guyton; and (3) the mittimus must
be amended to reflect the correct amount of credit for time served. Also, on June 9, 1998,
Guyton filed a pro se post-conviction petition and raised the following issues: (1) illegal arrest
and gathering of evidence; (2) ineffective assistance of counsel at pre-trial, trial and post-trial
stages; (3) and the State’s introduction of perjured testimony. On August 19, 1998, Guyton’s
post-conviction petition was dismissed because it was untimely filed and patently without merit.

Guyton appealed the dismissal of his post-conviction petition to the Illinois Appellate
Court. He argued that the trial court erred when it summarily dismissed his pro se post-
conviction petition because it raised a meritorious constitutional claim. In the petition, Guyton
maintained that he.was, denied the effective assistance of counsel where his counsel waived DNA
testing without Guyton’s consent and that such tests would have exonerated him. Therefore,
Guyton contended, the dismissal of the petition must be reversed and the case remanded. On
May 3, 1999, the Illinois Appellate Court consolidated Guyton’s appeals and on November 29,
1999, the appellate court affirmed and remanded with directions to correct the mittimus to reflect
credit for time served between the date of arrest and the date of sentencing. People v. Guyton,
No. 1-98-0828.3

On March 21, 2000, Guyton filed a petition for leave to appeal from the appellate court’s

3 On December 16, 1999, the consolidation of Guyton’s cases was vacated. On December
20, 1999, in Guyton’s second direct appeal, the appellate court again affirmed and remanded with
directions to correct the mittimus to reflect credit for time served between the date of arrest and
the date of sentencing. People v. Guyton, No. 1-98-0828. On December 30, 1999, the appellate
court affirmed the dismissal of Guyton’s post-conviction petition. People v. Guyton, No. 1-98-
3626.


to relief on this claim.
CONCLUSION

Unfortunately for Petitioner Bruce Guyton, because of the complex and difficult
procedural rules adopted by the federal courts in habeas corpus proceedings, we are unable to
reach the merits of the majority of his claims. This is especially troubling to the Court in the
instant case, where Guyton’s counsel, Mr. Zaslavsky, waived DNA testing which could have
established Guyton’s innocence. Nevertheless, we are constrained by the AEDPA and we cannot
find that Guyton has made a sufficient showing of cause and prejudice or that he has established
that his case falls within the rare and extraordinary fundamental miscarriage of justice exception.
See Schlup, 513 U.S. at 321. Furthermore, while we believe that the performance of Guyton’s
counsel was “less than stellar,” we are forced to conclude that it was “sufficient to ensure a fair
adjudication of [Guyton’s] guilt and sentence.” See, e.g., Todd v. Schomig, 283 F.3d 842, 850-51
(7" Cir. 2002).

Accordingly, for the foregoing reasons, Bruce Guyton’s petition for a writ of habeas
corpus is denied. (R. 1-1.) The Clerk of the Court is instructed to enter judgment, pursuant to

Federal Rule of Civil Procedure 58, in favor of Respondent Walls and against Petitioner Guyton.

ENTERED: LEE 4 4

Judge Ruben Castillo
United States District Court

Dated: May 16, 2002

20


analysis of Guyton’s only properly preserved claim.
IL. Ineffective Assistanee of Counsel at Resentencing

Guyton claims that his counsel, Mr. Zaslavsky, failed to offer any meaningful
representation at his resentencing hearing. On April 22, 1997, the Illinois Appellate Court
affirmed in part the.decision of the trial court, which sentenced Guyton to two consecutive forty-
five year terms of imprisonment for aggravated criminal assault pursuant to 720 ILCS 5/12-14(c),
but vacated the two convictions on which Guyton was sentenced and remanded the case to the
trial court for the limited purpose of conducting a new sentencing hearing on the remaining
merged counts. People v. Guyton, No. 1-95-2541. On January 21, 1998, the trial court again
sentenced Guyton to two consecutive terms of forty-five years imprisonment pursuant to 720
ILCS 5/12-14(a).'"? Guyton argues that “[b]efore the court proceeded to re-impose exactly the
exact same sentence on Petitioner, defense counsel did not request a presentence investigation
report, did not offer any mitigating evidence and did not propose any sentencing alternative.
Such conduct rendered the sentencing hearing meaningless and resulted in a breakdown of the
adversarial process at Petitioner’s resentencing.” (R. 21-1, Pet.’s Resp. at 23-24.)

The seminal case for assessing claims of ineffective assistance of counsel is Strickland v.

3 720 ILCS 5/12-14(a) is the general subsection involving criminal sexual assault with
aggravating circumstances. Section 5/12-14(c) is the specific subsection involving “an act of
sexual penetration with.a victim who was a severely or profoundly mentally retarded person at
the time the act was committed.” 720 ILCS 5/12-14(c) The Illinois Appellate Court vacated
counts one and four of Guyton’s conviction, which involved alleged violations of 720 ILCS 12-
14(c), because “no evidence was entered at trial by the State to demonstrate that M.M. was
institutionalized, severely or profoundly mentally retarded.” (R. 12, Resp’t’s Ex. B, Rule 23
Order No. 1-95-2541 at 4.)

17


forth the applicable legal standards for habeas corpus review, we now proceed to our analysis of
Guyton’s claims.
ANALYSIS

I. Procedurally Defaulted Claims

Initially, many of Guyton’s claims are procedurally defaulted for purposes of federal
habeas review because they were not fully and adequately presented to the state courts. See
O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); Chambers v. McCaughtry, 264 F.3d 732, 737-
38 (7" Cir. 2001). Guyton’s procedurally defaulted claims include the following issues which
were never presented to the state courts: (1) ineffective assistance of trial counsel for failure to
investigate false and perjured testimony of state witnesses; (2) that the Chicago Police
Department entered Guyton’s house without a warrant; (3) that the Chicago Police Department
illegally gathered evidence; (4) that the State introduced and manipulated evidence of an
unknown origin; (5) that his sentence was a violation of the “one act-one crime” rule; and (6) that
he was improperly sentenced to two consecutive forty-five year terms in violation of Apprendi?

The following claims are procedurally defaulted because they were presented in Guyton’s
post-conviction petition but not appealed to the Illinois Appellate Court: (1) ineffective

assistance of counsel for failure to visit or interview Guyton before trial; (2) ineffective

° With respect to Guyton’s Apprendi claim, the Illinois Supreme Court has unanimously
held that Apprendi does not apply to consecutive sentences — such as Guyton’s ~ under 730 ILCS
5/5-8-4(a). See People v. Carney, 752 N.E.2d 1137 (Ill. 2001) (concluding that Apprendi does
not restrict the imposition of consecutive sentences as long as each individual sentence is within
the unextended statutory range); People v. Wagener, 752 N.E.2d 430 (Ill. 2001). See also James
H. Reddy, A First Response to Apprendi: 200] Illinois Supreme Court Criminal Law Survey, Ill.
B.J., May 2002, at 254 (collecting cases). Thus, even if Guyton’s Apprendi claim was not
procedurally defaulted, we would still be forced to conclude that it is without merit.

9


constitutional violations;’ (6) the trial court improperly imposed an extended sentence; (7) the
prosecutor introduced and manipulated evidence of an unknown origin; (8) the State made
erroneous and prejudicial statements; (9) the trial evidence was insufficient to establish his guilt
for the crime of aggravated criminal sexual assault; (10) violation of the “one act-one crime”
rule; (11) Guyton was improperly convicted of multiple offenses carved from the same act;
(12) the trial court.erred in summarily dismissing his post-conviction petition; and (13) his Fifth
and Fourteenth Amendment rights were violated when the trial court failed to comply with the
appellate court’s mandate and applicable statute. (See R. 1-1.) Guyton also filed a motion to
amend in which he claims that the trial court improperly imposed a sentence of two consecutive
forty-five year terms of imprisonment in violation of Apprendi.

On May 15, 2001, the Court appointed counsel to represent Guyton, (R. 14), and on
November 13, 2001, his attorneys filed a response to Respondent’s answer to his petition for a

writ of habeas corpus.’ (R. 21-1.) Further extensive briefing accounts for the unfortunately long

* The violations that Guyton claims the Chicago Police Department committed include:
(1) manufacturing and tampering with evidence gathered at Guyton’s home without a warrant;
(2) illegally arresting Guyton without a warrant; (3) entering his home without a warrant; and
(4) illegally gathering evidence. (/d., Argument 4 at 1-8.)

§ In this response, Guyton’s Court-appointed counsel addressed Guyton’s Apprendi claim
and the following ineffective assistance of trial counsel claims: (1) failure to conduct an adequate
investigation; (2) failure to adequately test the State’s case; (3) failure to object to properly
excludable evidence; (4) failure to appreciate basic legal principles; (5) inexplicable waiver of
DNA testing which could have established Guyton’s innocence; (6) failure to visit or consult
with Guyton at any time; and (7) failure to offer any meaningful representation at Guyton’s
resentencing hearing. Thus, Guyton’s counsel addressed only eight of Guyton’s original thirty
claims in his habeas petition. Nevertheless, because we find that Guyton procedurally defaulted
all of his claims — except his claim of ineffective assistance of counsel at resentencing which will
be addressed herein — and because our careful review of the record reveals that the cumulative
effect of Guyton’s trial counsel’s performance did not “so undermine[] the proper functioning of
the adversarial process that the trial court cannot be relied on as having produced a just result,”

6


decision in his second direct appeal and argued that: (1) his attorney rendered constitutionally
ineffective assistance at the sentencing proceeding; (2) the trial court failed to comply with the
appellate court’s mandate and the applicable statute; and (3) he was not awarded the proper
sentence credit and the mittimus must be amended to reflect the proper amount of time served.
On July 5, 2000, the Illinois Supreme Court denied Guyton’s petition for leave to appeal.

On July 19, 2000, Guyton also filed a petition for leave to appeal the appellate court’s
decision in his post-conviction appeal and raised the following issues: (1) his trial and appellate
attorneys rendered constitutionally ineffective assistance; (2) the State used perjured testimony;
and (3) the Chicago Police Department manufactured and tampered with evidence gathered at
Guyton’s home without a search warrant and committed an act of perjury while on the witness
stand. On September 1, 2000, the Illinois Supreme Court denied Guyton’s leave to appeal.

On November 13, 2000, Guyton petitioned this Court for a writ of habeas corpus. In his
pro se petition, Guyton raised the following issues: (1) ineffective assistance of trial counsel;*
(2) ineffective assistance of counsel at sentencing; (3) ineffective assistance of appellate counsel;

(4) the State used perjured testimony; (5) the Chicago Police Department committed multiple

‘ Guyton’s ineffective assistance of trial counsel claim has fourteen subparts: (a) failure to
conduct investigation of any kind; (b) failure to contact and interview defense witnesses;
(c) failure to investigate false and perjured testimony of state witnesses; (d) failure to adequately
test the State’s case; (e) failure to visit or interview Guyton before trial; (f) failure to pursue
impeaching testimony; (g) failure to object to statements and evidence which should have been
excluded; (h) waiving of DNA testing; (i) damaging Guyton’s right to assert an affirmative
defense; (j) lacking an understanding of basic legal principles; (k) failure to file a pre-trial motion
to challenge Guyton’s illegal arrest and to suppress all evidence illegally gathered without a
warrant; (1) failure to properly and adequately prepare for trial; (m) failure to adequately
investigate the relevant facts; and (n) failure to adequately protect Guyton by “filing a post-trial
motion detailing all the ground for a new trial, and vacation of judgment, including the
ineffective assistance of counsel.” (R. 1-1, Pet. for Writ of Habeas Corpus, Argument | at 1-21.)

5


Washington, 466 U.S. 668 (1984).'* To state a valid claim under Strickland, Guyton must
establish that: (1) his counsel’s performance was objectively unreasonable; and (2) but for his
counsel’s deficient representation, the outcome would have been different. Jd. at 687-88. “Both
components are necessary; the lack of either is fatal.” Eddmonds v. Peters, 93 F.3d 1307, 1313
(7 Cir. 1996). Moreover, there is a strong presumption that a criminal defendant’s counsel
rendered assistance falling within an objective standard of reasonableness. Mason v. Godinez, 47
F.3d 852, 855 (7" Cir. 1995).

Applying the Strickland standard, see supra note 11, to Guyton’s claim of ineffective
assistance of counsel at resentencing, we hold that the Illinois Appellate Court’s rejection of

Guyton’s claim’ was not “contrary to, or involved an unreasonable application of, clearly

' Guyton, however, urges the Court to apply the standard of ineffective assistance of
counsel set forth in United States v. Cronic, 466 U.S. 648 (1984), rather than the Strickland
standard for ineffectiveness. Cronic holds that, under certain circumstances, “if counsel entirely
fails to subject the prosecution’s case to meaningful adversarial testing,” then prejudice is
presumed. See Cronic, 466 U.S. at 659. In addressing Guyton’s claim that Mr. Zaslavsky was
ineffective at his resentencing, the Illinois Appellate Court stated that “[a]pplying Strickland to
the instant case, we reject defendant’s ineffective assistance claim because these alleged
deficiencies did not result in prejudice to defendant.” (R. 12, Resp’t’s Ex. H, Rule 23 Order No.
1-98-0828 at 3.) Similarly, we reject Guyton’s claim because Guyton was simply being
resentenced on fifty-four of fifty-six counts, “several [of which] are considered Class X felonies
which have substantially similar, if not identical, sentencing guidelines as the two counts vacated
by this [state appellate] court.” (Jd.) Moreover, Guyton’s argument that counsel’s performance
was deficient by not offering any mitigation evidence ignores the fact that the State did not offer
anything in aggravation. (See R. 21-1, Pet.’s Resp., Compendium of Excerpts, Resentencing at
1-20.) Cf Patrasso v. Nelson, 121 F.3d 297, 304-05 (7'" 1997) (finding that counsel “effectively
abandoned his client at sentencing” where “he made no effort to contradict the prosecution’s case
or to seek out mitigating factors”). Therefore, we apply the prevailing Strickland standard to
Guyton’s claim of ineffective assistance of counsel at resentencing.

'S Specifically, the Illinois Appellate Court stated that:

Applying Strickland to the instant case, we reject defendant’s ineffective assistance claim
because these alleged deficiencies did not result in prejudice to defendant. Defendant was
originally convicted.on 56 counts of an indictment; 54 of which were affirmed by this court. Of

18


HABEAS CORPUS STANDARDS

Initially, a federal court cannot address the merits of a habeas corpus petition unless the
Illinois courts have first had a full and fair opportunity to review the petitioner’s claims. See,
e.g., Farrell v. Lane, 939 F.2d 409, 410 (7" Cir. 1991). Ilinois courts have had a full and fair
opportunity to consider the claims raised in a habeas petition if: (1) the petitioner has exhausted
all available state remedies (the exhaustion doctrine); and (2) the petitioner has raised all of his
claims during the course of the state proceedings (the procedural default doctrine). See, e.g.,
Rodriguez v. Peters, 63 F.3d 546, 555 (7" Cir. 1995). If the petitioner fails to overcome these
two procedural hurdles, the habeas petition is barred. Id.

The standard of review for claims that survive the exhaustion and procedural default
analysis is strict. Under the AEDPA, a federal court may not grant a prisoner’s habeas corpus
petition unless the state court’s adjudication of the claim either “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 “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). See also Spreitzer v. Peters, 114 F.3d 1435, 1442 (7"
Cir. 1997) (holding that a state court has reasonably applied Supreme Court caselaw if its
application is “at least minimally consistent with the facts and circumstances of the case”); Hall
v. Washington, 106 F.3d 742, 748-49 (7" Cir. 1997) (stating that, under this limited analysis, the

state court’s decision must stand “if it is one of several equally plausible outcomes”). Having set

rel. Smith v. Washington, 992 F. Supp. 964, 968-69 (N.D. Ill. 1998) (holding that the petitioner
was not entitled to an evidentiary hearing).


a

Fed
mute Grder Form (06/97)

oA) States District Court, Northern District of Mlinois

; Sitti |

we oan gs FBS Ruben Castillo thanssiened Judge

CASE NUMBER? 00 C 7185 DATE 5/16/2002
CASE USA ex rel. Bruce Guyton vs. Jonathan R. Walls
TITLE

[In the following box (a) indicate the patty filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state bricfly the nature

of the motion being presented.]

i033)

MOTION:

DOCKET ENTRY:

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

(2) oO Brief in support of motion due

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

(4) a Ruling/Hearingon___ssetfor_ at

(5) oO Status hearing[held/continued to] [set for/re-set for] on___—set for__—_at

(6) 0 Pretrial conference[held/continued to] [set for/re-set for]on__setfor_ at

(”) Oo Trialfset for/re-set for]on___—_at

(8) qa [Bench/Jury trial] [Hearing] held/continuedto__at

(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (General Rule2i CIFRCP41(a)\(1) [I FRCP41(a)(2).

(lo) «ol (Other docket entry] Enter Memorandum Opinion and Order. Petitioner’s petition for a writ of

habeas corpus is denied. Judgment is hereby entered in favor of the respondent and against the petitioner.

This case is hereby dismissed with prejudice.

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

No notices required, advised in open court,

No notices required .
number of notices

Document
Number.

Notices mailed by judge’s staff.

MAY 1 7 2002

Notified counsel by telephone, date docketed

Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

date mailed notice

courtroom
RO deputy’s
initials

» Date/time received j tin
central Clétk’s Qhtice ailing depo



the petitioner’s writ of habeas corpus. In the instant case, however, the circumstantial evidence
conclusively established that Guyton committed the crime of aggravated criminal sexual assault
of his niece, M.M. Moreover, unlike in Watkins — where the exculpatory DNA evidence was
presented to and rejected by the State courts — all we have here is Guyton’s scant assertion that,
had his counsel not waived DNA testing, he would have been proven innocent of the crime. As
the Illinois Appellate Court explained:
Initially we note that trial counsel did in fact concur with the testing of the blood and
semen by electrophoresis. While the test actually conducted was a phosphoglucomutase
or “PGM” test, there is nothing to indicate that defense counsel’s consent to the faster
electrophoresis test was somehow deficient. Trial counsel’s ensuring that defendant
receives a speedy trial is not ineffective assistance of counsel. Moreover, the result of the
DNA test could have inculpated rather than exculpated defendant. Again, defendant’s
argument is based upon nothing more than self-serving conjecture. Accordingly, we fail
to see how there exists a probability sufficient to undermine confidence in the outcome of
the case.
(R. 12, Resp’t’s Ex. B, Rule 23 Order No. 1-95-2541 at 7.) Although we cannot reach the merits
of this procedurally defaulted claim, we observe that counsel’s choice ~ to either let the State’s
proof remain overwhelmingly circumstantial or risk a DNA test whose results might have
provided strong direct evidence of Guyton’s guilt — is easily understood as a strategic one, in
which counsel elected not to risk bolstering the State’s case. Therefore, while Guyton now
argues that the DNA test would have established his innocence and, thus, that his case implicates
a fundamental miscartiage of justice, we disagree as explained below. See infra pp. 15-17.
The following claim is procedurally defaulted because it was not raised in Guyton’s first
direct appeal petition for leave to appeal but was only raised for the first time in his post-

conviction discretionary appeal: ineffective assistance for failure to pursue impeaching

testimony. The following claim is procedurally defaulted because it was only raised in Guyton’s

ll


assistance of counsel for damaging Guyton’s right to assert an affirmative defense; (3) ineffective
assistance of counsel for failure to file a pretrial motion to challenge Guyton’s illegal arrest and
to suppress all evidence illegally gathered without a warrant; (4) ineffective assistance of counsel
for failure to properly and adequately prepare for trial; (5) ineffective assistance of counsel for
failure to adequately investigate the relevant facts; (6) ineffective assistance of counsel for failure
to adequately protect Guyton by “filing a post-trial motion detailing the grounds for a new trial
and vacation of judgment, including the ineffective assistance of counsel”; and (7) that the
Chicago Police Department illegally arrested Guyton without a warrant.

The following claims are procedurally defaulted because they were raised in Guyton’s
direct appeal but were not presented to the Illinois Supreme Court because the Illinois Supreme
Court denied Guyton’s motion for leave to file a late petition for leave to appeal: (1) ineffective
assistance of counsel for lacking an understanding of basic legal principles; (2) that the trial court
improperly imposed an extended term sentence; (3) that the State made erroneous and prejudicial
statements; (4) that the State did not prove Guyton guilty beyond a reasonable doubt; and (5) that
Guyton was improperly convicted of multiple offenses carved from the same act.

The following claim is procedurally defaulted because it was not raised in Guyton’s first
direct appeal petition for leave to appeal nor was it raised in his appeal from the dismissal of his
post-conviction petition: ineffective assistance of counsel for waiving DNA testing. It is most
troubling to the Court that we cannot reach the merits of this claim because it is procedurally
defaulted. In Watkins v. Miller, 92 F, Supp. 2d 824, 833-40 (S.D. Ind. 2000), the court held that
the results of DNA testing — presented to the state courts in petitioner’s post-conviction petition —

proved that the petitioner was innocent of the crime. Consequently, the Warkins Court granted

10


delay in our ruling in this case.” Today, regrettably for Guyton, we hold that because Guyton has
procedurally defaulted all of his ineffective assistance of trial counsel claims — as well as the
majority of his other claims — and that he has not made a sufficient showing of cause and
prejudice, see Murray v. Carrier, 477 U.S. 478, 488 (1986), nor shown that his case falls within
the “rare and extraordinary” fundamental miscarriage of justice exception, see Schlup v. Delo,
513 U.S. 298, 320-23, we cannot reach the merits of these claims. Moreover, we conclude that
Guyton’s counsel at sentencing — while probably deficient — did not violate the standards for
effective counsel as set forth in Strickland v. Washington, 466 U.S. 668 (1984), and that
Guyton’s Apprendi claim is both procedurally defaulted and meritless. Therefore, we must deny

Guyton’s petition for a writ of habeas corpus as set forth herein.*

see United States ex rel. Kleba v. McGinnis, 796 F.2d 947, 958 (7" Cir. 1986) (citing Crisp v.
Duckworth, 743 F.2d 580, 583 (7" Cir. 1984) (quoting Strickland v. Washington, 466 U.S. 668,
686 (1984))), we need not address each and every one of Guyton’s claims.

’ For example, Guyton filed pro se documents entitled, “motion by petitioner for each and
every creditable argument to be heard before this honorable court,” (R. 26-1), “ineffective
assistance of counsel by petitioner,” (R. 27), and “exhibits by petitioner,” (R. 28). On December
7, 2001, we stated that Respondent could respond to Guyton’s pro se documents because Guyton
apparently did not properly serve Respondent. (R. 29.) Respondent has chosen not to discuss
Guyton’s pro se documents. (R. 32-1, Resp’t’s Reply at 4.)

5 Guyton asserts — citing cases from the Eighth and Eleventh Circuits decided prior to and
superseded by the enactment of the AEDPA -— that he “is entitled, at a minimum, to an
evidentiary hearing on his claim of ineffective assistance of counsel.” (R. 21-1, Pet.’s Resp. at
33.) Section 2254(e) states that an evidentiary hearing shall only be granted when “the applicant
shows that .. . the claim relies on . . . a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously unavailable; or... a factual
predicate that could not have been previously discovered through the exercise of due diligence;
and ... the facts underlying the claim would be sufficient to establish by clear and convincing
evidence that but for the constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2)(A)-(B). Because the Court
finds that Guyton has not met any of the requirements of § 2254(e)(2), we cannot grant him an
evidentiary hearing on his ineffective assistance of counsel claims. See, e.g., United States ex

7


in violation of 720 ILCS 5/12-14(a)(2) and (c), six counts of criminal sexual abuse in violation of
720 ILCS 5/12-15(a)(2), and ten counts of aggravated criminal sexual abuse in violation of 720
ILCS 5/12-16(c)(1) and (d). Guyton was sentenced to two consecutive forty-five year terms of
imprisonment for aggravated criminal assault pursuant to 720 ILCS 5/12-14(c). The remaining
counts were merged into that judgment of conviction.
Guyton appealed his conviction to the Illinois Appellate Court, arguing that: (1) the

State failed to prove him guilty beyond a reasonable doubt; (2) the State failed to prove that
Guyton committed the offense of aggravated criminal sexual assault under 720 ILCS 5/12-14(c)
where no evidence was presented that M.M. was an “institutionalized severely or profoundly
mentally retarded person;” (3) he was improperly convicted of multiple offenses carved from the
same act; (4) the trial court improperly imposed an extended sentence; (5) he should be granted a
new trial because the State’s erroneous and prejudicial statements contributed to his conviction;
and (6) his attorney rendered constitutionally ineffective assistance. On April 22, 1997, the
Illinois Appellate Court affirmed the decision in part but vacated the two convictions on which
Guyton was sentenced and remanded the case to the trial court with directions to conduct a new
sentencing hearing on the remaining merged counts. People v. Guyton, No. 1-95-2541. On
August 22, 1997, Guyton filed a motion to file a late petition for leave to appeal, which was
denied by the Hlinois Supreme Court on December 10, 1997.

On January 21, 1998, the trial court again sentenced Guyton to two consecutive terms of
forty-five years imprisonment pursuant to 720 ILCS 5/12-14(a). Guyton appealed to the Illinois
Appellate Court and argued that: (1) his attorney rendered constitutionally ineffective assistance

at the sentencing proceeding; (2) the trial court failed to comply with the appellate court’s


“cause and prejudice” standard are “grounded in concerns of comity and federalism.” Coleman
vy. Thompson, 501 U.S.,722, 732 (1991) (holding that “a habeas petitioner who has failed to meet
the State’s procedural requirements for presenting his federal claims has deprived the state courts
of an opportunity to address those claims in the first instance”). The doctrines apply alike
whether the default in question occurred at trial, on appeal or on state collateral attack. See
Murray, 477 U.S. at 490-92. As a result, federal courts require a prisoner to demonstrate cause
for his state court default of any federal claim ~ and prejudice therefrom — before the federal
habeas court will consider the merits of that claim. Coleman, 501 U.S. at 750. The one
exception to that rule is where the habeas petitioner can demonstrate a sufficient probability that
the federal court’s failure to review his federal claim will result in a fundamental miscarriage of
justice. Id. See also Schlup, 513 U.S. at 321 (holding that “[t]o ensure that the fundamental
miscarriage of justice exception would remain ‘rare’ and would only be applied in the
‘extraordinary case,’ while at the same time ensuring that the exception would extend relief to
those who were truly deserving, this Court explicitly tied the miscarriage of justice exception to
the petitioner’s intiocence”). Finally, the Supreme Court has emphasized that “[t]o hold, as we
do, that an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of
another claim can itself be procedurally defaulted is not to say that that procedural default may
not itself be excused if the prisoner can satisfy the cause-and-prejudice standard with respect to
that claim.” Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (emphasis in original).

First, because Guyton never presented his ineffective assistance of counsel as cause for a
procedural default claim as an independent claim to the state courts either on direct appeal or in

post-conviction proceedings, he may not now use this claim to establish cause for a procedural

14


Court’s mandate in Schlup. See id. at 327 (stating that “[t]o establish the requisite probability
[that a constitutional violation has probably resulted in the conviction of one who is actually
innocent], the petitioner must show that it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence”).

Though we would like to reach the merits of Guyton’s claims, specifically his claim of
ineffective assistance of trial counsel for waiving DNA testing, we cannot do so because this is
not the “truly extraordinary” case where the habeas petitioner, Guyton, can show that “a
constitutional violation has probably resulted in the conviction of one who is actually innocent.”
Id. at 327, Rather, all Guyton can allege — like so many other habeas petitioners before him — is
that “no reasonable trier of fact would have convicted him had the proper genetic evidence and
witness testimony not been kept out of evidence by Zaslavsky’s errors.” (R. 33-1, Pet’r’s Reply
at 2.) Cf Watkins, 92 F. Supp. 2d at 833-40 (holding that petitioner’s case implicated a
fundamental miscarriage of justice where the State courts considered and rejected the results of
DNA testing which proved that petitioner was innocent of the crime). This bare assertion —
totally dependent on the probability that test results would have been favorable — is simply not
enough to satisfy the Schlup Court’s “new evidence” and “actual innocence” requirements, when
it is weighed against all of the evidence and witness testimony in the record which
circumstantially established beyond a reasonable doubt that Guyton committed aggravated
criminal sexual assault of his niece, M.M. See, e.g., Jackson v, Va., 443 U.S. 307, 319 (1979).
Therefore, we conclude that Guyton has procedurally defaulted all of the above claims, that he
has not established adequate cause and actual prejudice and that his case is not so “extraordinary”

as to implicate the fundamental miscarriage of justice exception. We now proceed to our

16


3626 (Ill. App. Ct. Dec. 30, 1999).

On July 16, 1993, M.M., a severely mentally and physically handicapped fourteen year-
old girl suffering from cerebral palsy, was left by her mother in her uncle, Bruce Guyton’s,
apartment. In the early hours of July 17, 1993, M.M.’s family left Guyton’s apartment, leaving
him alone with M.M. At the time of the family’s departure, there was nothing unusual about
M.M.’s diaper or the manner in which it was fastened to her. Approximately forty to ninety
minutes later, M.M.’s mother and stepfather returned home and knocked on the back door of
Guyton’s apartment to retrieve M.M. After a delay, Guyton answered the door wearing shorts
with an open zipper and allegedly protested his innocence to a crime that had yet to be
discovered. After gaining entry to the apartment, M.M.’s mother and stepfather found M.M.
lying on the bedroom floor, her diaper in disarray and blood on her vagina and legs. Subsequent
examinations and tests revealed the rupturing of M.M.’s vagina and anus as well as the presence
of semen.' The testimony of Guyton’s family members indicated that he was alone with M.M. at
the time of the sexual assault.” Both the front and back doors of the apartment were locked and
there was no evidence of a forced entry.

The trial court found Guyton guilty of twenty-four counts of criminal sexual assault in

violation of 720 ILCS 5/12-13(a)(1) and (a)(2), six counts of aggravated criminal sexual assault

' Cecilia Doyle, Criminalist II for the Chicago Police Department, performed a genetic
marker test — the phosphoglucomutase or “PGM” test — on a pair of boxer shorts and a pair of
blue pants, The PGM test did not provide a conclusive physical link between Guyton and the
sexual assault. Both the boxer shorts and the pants tested positive for the presence of blood, but
neither yielded any PGM activity. Finally, a pair of blue shorts also tested positive for blood, but
that sample was too small to test.

? Indeed, the Illinois Appellate Court found that “[b]y his own admission, defendant was
alone with M.M. in the apartment.” (R. 12, Resp’t’s Ex. B, Rule 23 Order No. 1-95-2541 at 3.)

2


ty

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS BOCKETER
EASTERN DIVISION be HEL
MAY 002
United States of America , 17 2002
ex rel, BRUCE GUYTON,

Petitioner,
No. 00 C 7185
v.
Judge Ruben Castillo
JONATHAN R. WALLS,

Warden, Menard Correctional Center,

wweererwerwsrwrerwe we wD

Respondent.
MEMORANDUM OPINION AND ORDER

Bruce Guyton petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, attacking his state court aggravated criminal sexual assault convictions and the resulting
sentences. In his petition, Guyton makes numerous claims including ineffective assistance of
trial, sentencing and appellate counsel, error and misconduct by the Chicago Police Department,
the State at trial and the trial court at sentencing, and a violation of Apprendi v. New Jersey, 530
U.S. 466 (2000). After painstaking review, we must deny Guyton’s petition. (R. 1-1.)

RELEVANT FACTS

When considering a habeas corpus petition, pursuant to the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), we presume that the factual determinations of the state
court are correct. 28 U.S.C. § 2254(e)(1). Guyton has the burden of rebutting that presumption
by clear and convincing evidence. Jd. See also Cossel v,. Miller, 229 F.3d 649, 651 (7" Cir.
2000). Accordingly, we adopt the facts as set forth by the Illinois Appellate Courts in People v.
Guyton, No. 1-95-2541 (Ill. App. Ct. Apr. 22, 1997); People v. Guyton, No. 1-98-0828

(consolidatéd with No. 1-98-3626) (III. App. Ct. Nov. 29, 1999); People v. Guyton, No. 1-98-

UY


post-conviction petition appeal and was not presented to the Illinois Supreme Court: that the trial
court erred in summarily dismissing Guyton’s post-conviction petition. The following claims are
procedurally defaulted because they were raised only in Guyton’s post-conviction petition and
post-conviction petition for leave to appeal but were not presented to the Illinois Appellate Court:
(1) ineffective assistance of counsel for failure to conduct an investigation; (2) ineffective
assistance of counsel for failure to object to statements and evidence; and (3) that the State used
perjured testimony. Finally, the following claims are procedurally defaulted because they were
raised only in Guyton’s post-conviction petition for leave to appeal but were not presented to the
Illinois Appellate Court: (1) ineffective assistance of counsel for failure to contact and interview
defense witnesses; (2) ineffective assistance of counsel for failure to adequately test the State’s
case; (3) ineffective assistance of appellate counsel for failure to raise all issues that Guyton
raised in his post-conviction petition;'° and (4) that the Chicago Police Department manufactured
and tampered with evidence gathered at Guyton’s house without a warrant.'!

Although Guyton does not appear to dispute that the above claims are technically
procedurally defaulted, he argues that “it would be proper for this Court to consider each of the

1° With respect to Guyton’s claim of ineffective assistance of appellate counsel, it is
unclear to the Court whether he ever presented this claim to the Illinois courts because Guyton’s

use of the phrase “original brief’ may or may not refer to his post-conviction petition.
Regardless, however, this claim is procedurally defaulted for the reasons stated above.

"| Additionally, Guyton’s claim of a violation of his Fifth and Fourteenth Amendment due
process rights when the trial court did not comply with the mandate and the applicable statutes is
noncognizable for purposes of federal habeas corpus review. See Smith v. Phillips, 455 U.S. 209,
221 (1982); Jones v. Thieret, 846 F.2d 457, 459 (7" Cir. 1988) (holding that claims that a state
court erred in applying its own laws are noncognizable in habeas corpus proceedings). Similarly,
we note that Guyton’s claim that the trial court improperly imposed an extended term sentence —
procedurally defaulted as explained above — also falls within the rubric of noncognizable claims.

12


u

default. See Edwards, 529 U.S. at 451-52 (maintaining that “ineffective assistance adequate to
establish cause for the procedural default of some other constitutional claim is itse/f an
independent constitutional claim,” and the AEDPA “require[s] that constitutional claim, like
others, to be first raised in state court”) (emphasis in original). Moreover, Guyton has not shown
that “some objective factor external to the defense impeded counsel’s efforts to comply with the
State procedural rule.” Murray, 477 U.S. at 488. As a result, Guyton has procedurally defaulted
his claims of ineffective assistance of counsel, and he has not established “cause and prejudice”
sufficient to excuse his failure to present these claims to the state courts.

Second, after careful evaluation of the relevant facts with the assistance of the parties’
extensive supplemental briefing, we conclude that Guyton’s case does not fall within the “narrow
class of cases . . . implicating a fundamental miscarriage of justice.” Schlup, 513 U.S. at 314-15.
Guyton’s claim of innocence here, like that in Schlup, does not by itself provide a basis for relief.
See id. at 315. Instead, as in Schlup, Guyton’s claim for relief “depends critically on the validity
of his Strickland ... claims.” Id. Thus, Guyton’s claim of innocence is “not itself a
constitutional claim, but instead a gateway through which a habeas petitioner must pass to have
his otherwise barred constitutional claim considered on its merits.” Jd. at 316 (holding that
without new evidence of innocence, even a meritorious constitutional claim is not sufficient to
allow a habeas court to reach the merits of a procedurally defaulted claim). Guyton is basically
presenting his defaulted ineffective assistance of counsel claims as “a fundamental miscarriage of
justice” to obtain review of the same defaulted ineffective assistance claims. While we recognize
the grave consequences of our procedural default determination and we acknowledge that

Guyton’s counsel, Mr. Zaslavsky, was far from perfect, we are constrained by the Supreme

15