We are also constrained by our limited authority to review state court rulings on evidentiary
issues. The admissibility of evidence in a state court proceeding is an issue of state law and it is not this
Court’s place to determine whether or not the trial court correctly applied state law. Stomner v. Kolb,
903 F.2d 1123, 1128 (7th Cir. 1990). Even ifa violation of state evidentiary law did occur, the Seventh
Circuit has ruled that such questions are rarely an adequate basis for habeas relief. Howard v. O'Sullivan,
185 F.3d 721, 724 (7th Cir. 1999), It is not the role of a district court in a habeas proceeding to correct
state court errors, “[uJnless the claimed error amounted to a fundamental defect so great that it inherently
resulted in a complete miscarriage of justice.” Searcy v. Greer, 768 F.2d 906, 910 (7th Cir. 1985) (citing
Cramer v. Fahner, 683 F.2d 1376, 1385 (7th Cir. 1982)).

In Benford’s state court trial, the prosecution submitted the victim impact statements as
aggravating evidence during the sentencing phase. The trial judge took a recess specifically to review
these statements, Upon returning from the recess, the judge proclaimed the sentence. Explaining his
decision, the judge noted that he had read and considered all twelve of the statements. But, in addition
to the statements, he mentioned ten other factors which contributed to his deliberations. In his
deliberations, the judge said he mainly considered the heinous nature of the crime, Benford’s refusal to
accept responsibility for the crime, and Benford’s prior criminal record. Thus, we find that the trial
judge most likely would have handed down the same sentence even if he had not considered the
improper impact statements.

Considering the lack of precedent, the absence of guiding principles, and the circumstances of
Benford’s trial, we find that the admission of multiple victim impact statements and statements by non-
victims did not constitute an error sufficient to create a “miscarriage of justice” and render Benford’s

trial fundamentally unfair.

13



her direct appeal or post-conviction petition. These claims are dismissed as a result of procedural
default.*

Til. HABEAS CLAIMS

A. Ineffective Assistance of Counsel: Claim One

Benford asserts that she was denied effective assistance of counsel because her trial lawyer failed
to introduce witnesses to testify about her long-term relationship with the victim. In essence, she argues
that if the jury had known about the positive aspects of their relationship, it would have been more
inclined to find Benford guilty of reckless homicide rather than first degree murder. Benford alleges that
her defense counsel refused to present these witnesses because he was uncomfortable with the fact that
Benford was a lesbian and was involved in a homosexual relationship with the victim. We find that this
claim lacks merit.

To obtain relief based on an ineffective assistance of counsel claim, a petitioner must show that:
1) counsel’s performance fell below an objective standard of reasonableness; and 2) that the deficient
performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To
demonstrate prejudice, a “defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Jd. at694. An
attorney’s decision whether or not to place a witness on the stand during a trial is generally considered
a tactical decision and is thus entitled to great deference. Jd. If we accept Benford’s allegation that her
attorney’s decision not to present testimony about her relationship with the victim was motivated by
improper animus toward her sexual preference, her counsel’s performance would indeed fall below an

objective standard of reasonableness.

However, as we will discuss below, there are also substantive reasons why these claims should
be dismissed.



AO 450(Rev. 5/85)Judgment in a Civil Case

' United States District Court

Northern District of Illinois
Eastern Division

Willette Benford JUDGMENT IN A CIVIL CASE
v. Case Number: 03 C 2643
Lynn Cahill-Masching

ict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendere i

O Dedision I y Court. This action came to trial or hearing befor rt. The issues
have been tried or heard and a decision has been rendered. .

IT IS HEREBY ORDERED AND ADJUDGED that We deny Willette Benford’s petition for a
writ of habeas corpus.

Michael W. Dobbins, Clerk of Court

oes Lugo, Beputy Chey”



claims that, although the judge did not actually give her a sentence outside of the statutory maximum,
the sentence still violated Apprendi because the option of the extended term influenced the judge’s
decision to assign a sentence near the upper end of the statutory range. We disagree. The Supreme
Court itself noted in Apprendi that nothing in that decision prevented judges from using their discretion
to sentence defendants within statutory limits. Apprendi, 530 U.S. at 481. Furthermore, the Seventh

Circuit has ruled that Apprendi only applies when the actual sentence imposed exceeds the statutory

maximum. United States v. Johnson, 335 F.3d 5' 80, ¢ th Cir, 2003). We therefore decline to reverse
the trial court’s sentencing decision and dismiss claim four.
2. Claim Five —

Inher fifth claim, Benford argues that she was denied her due process right to a fair trial because
the jury was allowed to view a highly inflammatory autopsy photograph of the victim’s nude body,
which depicted a laceration in the pubic area that was not explained by the medical examiner’s
testimony. Benford did not raise this claim before the Illinois Supreme Court in her direct appeal nor
in her petition for post-conviction relief, and therefore failed to exhaust her state remedies. O'Sullivan,
526 U.S. at 845, In its answer, the state pled that Benford had procedurally defaulted on this claim. We
agree with this conclusion.

This Court could still consider the merits of Benford’s procedurally defaulted claim on two
possible grounds, First, review is possible if she has shown cause for the default and that actual
prejudice resulted. See Wainwright v. Sykes, 433 U.S. 72, 85 (1977); see also Farrell v. Lane, 939 F.2d
409, 411 (7th Cir. 1991). Second, review is possible if a lack thereof would result in a “fundamental
miscarriage of justice." See Schlup v. Delo, 513 U.S. 298, 314-15 (1995). To show cause under the first
exception, Benford must prove that an objective factor external to the defense obstructed her efforts to

present all federal claims in state court. See Murray v. Carrier, 477 U.S. 478, 488-89 (1986). Benford


Supreme Court. See People v, Benford, No. 90947 (Ill. Feb. 21, 2001). Specifically, she alleged that
the dismissal of her post-conviction petition violated the Illinois Post-Conviction Hearing Act. 725 Ill.
Comp. Stat. 5/122-4 through 122-6 (1998). Even though Benford recast this claim in terms of a
constitutional violation for the purposes of her habeas petition, she avoided a procedural default because
the substance of the claim was presented to the state supreme court, as is required by Duncan v. Henry,
513 U.S. 364, 367 (1995). The State, however, challenges this claim as non-cognizable because it
involves a question of state law and therefore is not open for consideration in a federal habeas
proceeding. We agree with this assessment.

Although presented as denial of right to appeal, the claim actually challenges the manner in
which an Illinois court applied a state law, in this case the Illinois Post-Conviction Hearing Act. Habeas
relief can only be granted for violations of federal law. Claims that a state court erred in applying its
own law are not cognizable on habeas review. Jones v. Theiret, 846 F.2d 457, 459 (7th Cir. 1988). To
raise a cognizable claim, a petitioner must allege an independent constitutional violation. See
Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996). Likewise, alleged errors in state collateral
proceedings cannot form the basis for habeas relief unless those proceedings violate an independent
constitutional right. See id.

However, there is no independent constitutional right to an appeal. Abney v. U.S.,431 US 651,
656 (1977). The states are not constitutionally required to provide appellate review to any defendant.
Griffin v. Illinois, 351 U.S. 12, 18 (1956). But once a state has established an appellate process, it cannot
deny access to the process in a discriminatory manner. Jd. To successfully assert that the appellate court
denied her right to appeal in this case, Benford would have to establish that the court acted in a way that
denied either her right to due process or equal protection under the law. Jd. A petitioner can only raise

such a claim if she can prove that the court treated her differently than other similarly situated



However, Benford’s claim still lacks merit because it does not fulfill the second part of the
Strickland test, that the attorney’s conduct created a reasonable probability that the outcome of the trial
would have been different. The Illinois Appellate Court considered the same question in Benford’s
petition for post-conviction relief and concluded that none of the witness testimony Benford advocated
presenting could establish her mental state on the night of the offense. Although the proposed witnesses
could have provided general testimony about Benford’s relationship with the victim, “none of the
affiants was present when the offense was committed or saw or spoke with the defendant immediately
before or after the commission of the offense. Thus, their testimony would not have directly related to
defendant’s state of mind at the time she hit the victim with her car.” People v. Benford, No. 1-99-0845
(Il App.Ct. Feb 2, 2001). The court further concluded that, although the testimony might shed some
light on Benford’s relationship with the victim, it would not be sufficient to create a different outcome
given the “overwhelming evidence” that Benford hit the victim intentionally.’ Although we are not
required to adopt the rationale of the Illinois Appellate Court, principles of comity require us to give
deference to a state court’s decision. Strickland, 466 U.S. at 698. We thus accept the state court’s
rationale and find that Benford does not state a claim for ineffective assistance of counsel.

B. Denial of Right to Appeal
1. Claim Two

Benford alleges that she was denied her right to appeal because the Hlinois Appellate Court
erroneously subjected her post-conviction petition to a higher standard than is required to survive
summary dismissal at the initial stage of post-conviction proceedings. Benford made a similar assertion

based on state law when she appealed the dismissal of her post-conviction petition to the Ilinois

5There is no need to go into this evidence in great detail. It is uncontested that Benford hit the
victim with her car at least two times. The only issue at trial was Benford’s mental state at the time.

5


on other grounds); People v. Vilces, 748 N.E.2d 1219 (Ill. App. Ct. 2001); People v. Sharpe, 749 N.E.2d
432 (Ill. App. Ct. 2001). All of these courts agree that the contested statute does not violate the Single
Subject Rule. The state courts have upheld the constitutionality of the statute and Benford fails to assert
any independent violation of her federal or constitutional rights. As with claim two, Benford does not
assert that she was treated differently than any other similarly situated defendant. Therefore, she has no
claim for a denial of right to appeal under the federal Constitution. Asa result, we find this claim to be
non-cognizable in a federal habeas proceeding.
C. Denial of Due Process
1. Claim Four

Inher fourth claim, Benford alleges that she was denied her right to due process because the trial
court relied on an unconstitutional Illinois law to determine her sentence. Benford asserts that the statute
violates the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
In Apprendi, the Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” Jd. at 490. At her sentencing hearing, the trial court expressly
found Benford eligible for an extended term under 730 Ill. Comp. Stat. 5/5-5-3.2 (b)(2). This statute
does not require that the factors allowing for an extended term be submitted to a jury and proven beyond
areasonable doubt. Indeed, at least one Illinois Appellate Court has found that section 5/5-5-3.2 (b)(2)
violates Apprendi and vacated all extended sentences handed out pursuant to that statute. See People
v. Daniels, 346 Ill. App. 3d 351 (Ill. App. Ct. 2004).

Although the trial judge found Benford eligible for an extended term of 100 years under this
statute, the judge expressly declined to give Benford an extended term. Instead, he sentenced her to fifty

years imprisonment, a sentence below the maximum term of sixty years provided by law. Benford


DS

Form (96/97)

_ nited States District Court, Northern District of Illinois
vanes Megivtate Judge Marvin Aspen an signed Judge
CASE NUMBER 03 C 2643 DATE 6/30/2004
CASE Willette Benford vs. Lynn Cahill-Masching
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
of the motion being presented.)

MOTION:

DOCKET ENTRY:

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

(2) o Brief in support of motion due

(3) Q Answer brief to motion due___. Reply to answer briefdue__.

(4) oO Ruling/Hearing on__—_sset fora

(5) Oo Status hearing[held/continued to] [set for/re-set for]on_____—setfor__—at_-

(6) Oo Pretrial conference[held/continued to} (set for/re-set for]on__——ssetfor_ at.

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

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

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QOFRCP4(m) O Local Rule 41.1 OJ FRCP41(a)(1) [ FRCP41(a){2).

60) en [Other docket entry] Enter Memorandum Opinion and Order: We deny Willette Benford’s petition

for a writ of habeas corpus. The status hearing set for 7/8/04 is stricken.

a1) @ [For further detail see order attached to the original minute order.]
No notices required, advised ia open court. Document
No notices required. vumber of rice Number
ov | Notices mailed by judge's staff. JUL 0 2 2004
Notified counsel by telephone. dnedocheed
Docketing to mail notices. C)
Mail AO 450 form. ¢ a
ae 14N09 poy : 7
Copy to judge/magistrate judge. ie SIO"S9~ «non
courtroom "¢ 9 1 . date mailed notice
ot espa KY I~ Tar tong a
initials
“7 Dyrpirng geceived in -
103 Passes one nin nie



in a federal habeas proceeding. In this instance, we disagree with the state’s assertion. The sixth claim
in Benford’s habeas petition is labeled as deprivation of due process, even though it originated from a
violation of an Illinois statute. A habeas petition which includes a claim previously reviewed solely in
the context of state law can be ruled on by a federal court if the claim is written “in terms so particular
as to call to mind a specific constitutional right.” Kurzawa v. Jordan, 146 F.3d 435, 441 (7th Cir.
1998). More to the point, the United States Supreme Court has suggested that the introduction of victim
impact statements during the sentencing phase of a trial can constitute a violation of a defendant’s due
process rights, independent of state law. Payne v. Tennessee, 501 U.S. 808, 825 (1991)(O’Connor, J.,
concurring). We find the claim to be cognizable under 28 U.S.C § 2254. Thus, we move on to the
merits of the claim.

Benford asserts that the trial court did not comply with the Illinois Rights of Crime Victims and
Witnesses Act, 725 Ill. Comp. Stat. 120/1-9 (1994), when it considered twelve victim impact statements
during her sentencing. The Act allows the prosecution to submit a single victim impact statement during
the sentencing phase of a criminal trial. 725 Ill. Comp. Stat. 120/6(a). In murder cases, only the victim’s
immediate family members (parent, children, or siblings) are allowed to present such statements to the
court. 725 Ill. Comp. Stat. 120/5(a). Petitioner asserts that the prosecution violated Iinois law by
presenting multiple statements, including statements from ten parties who were not immediate family
members. On appeal, the Illinois Appellate Court agreed with this assertion, but ruled that it could not
grant the petitioner relief due to a provision of the Act, which reads: “Nothing in this Act shall create
a basis for vacating a conviction or a ground for appellate relief in any criminal case.” 725 Ill. Comp.
Stat. 120/9. Despite this provision, Benford now argues that the state’s violation of Illinois law was

egregious enough to constitute a denial of her federal due process rights.

11


asserts no external factor which prevented her from bringing this claim before the Ilinois Supreme Court
in either her direct appeal or petition for post-conviction relief. Indeed, Benford included a similar claim
in her direct appeal to the Illinois Appellate Court, but neglected to include it in her petition for leave
to appeal to the Hlinois Supreme Court.

Nor is Benford’s claim saved by the “miscarriage of justice” exception. To establish that such
an error has occurred, the petitioner must demonstrate that a constitutional violation resulted in the
conviction of one who is actually innocent. To accomplish this, the petitioner must present clear and
convincing evidence that, but for the alleged error, no reasonable juror would have convicted her. See
Dellinger v. Bowen, 31 F.3d 758, 767 (7th Cir. 2002). Benford cannot meet this burden. Her guilt is
not in question. Numerous witnesses saw Benford run over the decedent with her car. There is no
indication that seeing the autopsy photo affected the decision of any of the jurors. Although Benford
may believe that the photograph was unduly prejudicial, she cannot credibly conclude that had it not
been introduced into evidence, she would have been found innocent. Absent such a miscarriage of
justice, we cannot excuse Benford’s failure to present this claim to the Illinois Supreme Court. This
claim is procedurally defaulted and we are barred from ruling on its merits.

3. Claim Six

In Benford’s sixth claim, she asserts the state violated her due process rights by introducing
twelve victim impact statements during the sentencing phase of her trial in violation of Illinois law.
Benford requests a new sentencing hearing to remedy this violation. We find that this claim does not
have merit.

Benford filed a similar claim, based solely on the violation of state law, in her first petition for
leave to appeal to the Illinois Supreme Court. Like claims two and three, the state classified this claim

as non-cognizable because it involves a question of state law and therefore is not open for consideration

10



defendants. See M.L.B. v. S.L.J., 519 U.S. 102, 102-03 (1996)(ruling that petitioner could not be denied
opportunity to appeal simply because she was unable to pay for reproduction of documents required by
the appellate court). Such treatment would be discriminatory and, if proven, amount to a denial of equal
protection sufficient to constitute a habeas claim.

Benford does not allege that the appellate court treated her differently than any other petitioner.
She simply asserts that she did not like the way in which the Illinois Appellate Court applied the
summary dismissal standard established by state law to her petition for post-conviction relief. The
applicable statute provides that if the court “determines that the petition is frivolous or is patently
without merit, it shall dismiss the petition in a written order, specifying the findings of fact and
conclusions of law it made in reaching its decision.” 725 Ill. Comp. Stat. 5/122-2.1(a)(2). The Hlinois
Appellate Court applied this standard and dismissed the claim only after a thorough review of Benford’s
assertions, There is nothing in the appellate court’s decision, or in Benford’s allegations, which would
suggest that her due process or equal protection rights were violated. For these reasons, we find this
claim to be non-cognizable.

2. Claim Three

In her third claim, Benford asserts that she was denied her right to appeal because the Ilinois
Jaw which allowed her petition to be summarily dismissed violates the [linois state constitution,
specifically its Single Subject Rule. In response, the state asserts that this claim is non-cognizable. We
agree with this assessment and dismiss the claim accordingly.

Itis not within the purview ofa federal habeas proceeding to question whether an Illinois statute
violates the Illinois Constitution. The Ilinois statute Benford challenges as unconstitutional, 725 ILCS
5/122-2.1(a)(2), has been evaluated and upheld by a number of Illinois Appellate Courts. See, e.g.,

People v. Douglas, 768 N.E.2d 766 (Ill. App. Ct. 2002); People v. Lee, 762 N.E.2d 18 (2001) (reversed


sentencing hearing because the trial court improperly considered twelve victim impact statements in
violation of state law. Finally, Benford claims that the trial court violated her right to due process by
summarily dismissing her post-conviction petition upon a finding that her ineffective assistance of
counsel claim was barred by res judicata.
DIS J

I. STANDARD OF REVIEW

Petitions for habeas corpus relief may be filed in a district court under 28 U.S.C. § 2254, as
amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), on the grounds that a
person in state custody was convicted in violation of the Constitution, laws, or treaties of the United
States. Federal habeas relief is granted to a petitioner who can establish that the state court's
adjudication of her claim was "contrary to or involved an unreasonable application of clearly
established federal law." 28 U.S.C. § 2254(d)(1). Relief may also be granted where the state court's
decision "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)(2).

II. PROCEDURAL DEFAULT

Before a court can review the merits ofa habeas petition, the petitioner must have exhausted all
available state remedies. If a habeas petitioner wishes to raise a federal claim, details regarding the
substance of the federal claim must have been presented to the state courts before bringing the issue to
federal court. Duncan v. Henry, 513 U.S. 364, 367 (1995); Picard v. Connor, 404 U.S. 270, 278 (1971).
A state prisoner must “give the state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the state’s established appellate review process.” O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). We find that Benford did not exhaust all state remedies with regard

to claims five and seven because she failed to present those claims to the Illinois Supreme Court in either


5) Statements Referring to Another Murder

A more complex issue is whether the admission of statements referring to a previous crime
constituted a depravation of Benford’s due process rights. In People v. Hope, the Illinois Supreme Court
tuled that the admission of impact statements written by victims of an unrelated crime constituted a
violation of fundamental faimess. 702 N.E.2d 1282, 1289 (Ill. 1998). However, the Seventh Circuit has
tuled that the improper introduction of evidence of other crimes, regardless of source, will not support
a petition for habeas corpus without proof that the trial was rendered fundamentally unfair by this
evidence. Searcy, 768 F.2d at 910.

The murder alluded to in the three statements that Benford challenges does not appear in her
criminal record and is not mentioned anywhere else in the trial record. Accordingly, we apply the
standard used by the Seventh Circuit to determine whether the admission of false or unreliable evidence
during the sentencing phase of a trial violates fundamental fairness. First, the petitioner must show that
the evidence in question was false or unreliable. Lechner v. Frank, 341 F.3d 635, 639 (7th Cir. 2003).
Second, the petitioner must demonstrate that the judge gave “explicit attention” to and “found[ed]” the
sentence “at least in part” on the inaccurate information. Id. (quoting Tucker v. United States, 404 U.S.
at 443, 447 (1972)). Benford’s claim fails to meet the second part of this standard.

In U.S. ex rel. Welch, the Seventh Circuit found a petitioner’s due process rights had been
violated because the trial judge based his sentencing decision on the incorrect belief that the petitioner
had a prior conviction for armed robbery. 738 F.2d 863, 869 (7th Cir. 1984). The trial judge in Welch
specifically mentioned this erroneous belief as a “significant factor” in his sentencing decision. Jd. at
866. In contrast, the Seventh Circuit found no such indication of fundamental unfairness in Lechner v.
Frank, even though the trial judge in that case incorrectly believed that the petitioner had been

previously convicted for four other crimes. 341 F.3d at 639. In reality, the petitioner had been arrested

14


Mlinois Appellate Court has already overruled the circuit court in Benford’s favor, we may not address
the issue in the context of a habeas corpus petition.

CONCLUSION
la

*s petition for writ of habeas corpus. It is

2)

MARVIN E. ASPEN-
United States District Judge

For the foregoing reasons, we deny Willette Bey

so ordered.

Dated bholoy.
aa

16


improperly admitted in the sentencing phase of her trial.? The Illinois Supreme Court denied her petition
for leave to appeal on October 6, 1998.

Benford then filed a pro se petition for post-conviction relief. The trial court summarily
dismissed the petition. Benford appealed the dismissal to the Illinois Appellate Court, which affirmed.
She then filed a petition for leave to appeal to the Illinois Supreme Court, raising three arguments. First,
she argued that the appellate court applied the wrong standard of review when it affirmed the dismissal
of her ineffective assistance of counsel claims. Second, Benford claimed her sentence was
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). And third, she asserted the statute
that allowed the trial court to summarily dismiss her post-conviction Petition violated the Single Subject
Rule of the Illinois Constitution. The Ilinois Supreme Court denied Benford leave to appeal.

Benford filed the present habeas petition in which she raises seven arguments. First, Benford
alleges denial of effective assistance of counsel because her trial attorney failed to present evidence
concerning her relationship with the victim. Second, Benford claims that she was denied her right to
appeal when the Illinois Appellate Court subjected her pro se Post-conviction petition to a higher
standard than is required to survive summary dismissal. Third, Benford argues that she was unfairly
denied her right to appeal because the Post-Conviction Hearing Act, which allows for the dismissal of
post-conviction petitions prior to the appointment of counsel, violates the Single Subject Rule of the
Mllinois Constitution. Fourth, Benford claims the trial court violated her due process rights when itrelied
on an unconstitutional statute to find her eligible for an extended sentence. Benford’s fifth claim is that
she was denied her due process right to a fair trial when the jury was allowed to view an inflammatory

autopsy photograph of the victim’s nude body. Sixth, Benford argues that she is entitled to a new

3Petitioner included other claims in her various appeals and post-conviction petitions. Only those
germane to the petition before this Court are detailed here.

2


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
WILLETTE BENFORD, )
)
Petitioner, ) .
H Pre
) Ob pire ED
v. ) No. 03 CV 264914 4
) 20
LYNN CAHILL-MASCHING, ) 4
)
)
Respondent. )

(8) 8) IN &
MARVIN E. ASPEN, District Judge:

Petitioner Willette Benford is currently incarcerated at the Dwight Correctional Center in
Dwight, Illinois, where she is in custody of Respondent Warden Alyssa B. Williams.' Currently before
us is Benford’s petition for writ of habeas corpus. For the following reasons, we deny Benford’s
petition,

BACKGROUND’

On October 11, 1995, after a jury trial, the Circuit Court of Cook County, Illinois entered a
conviction against Willette Benford for first-degree murder and sentenced her to fifty years
imprisonment. She appealed to the Hlinois Appellate Court, which affirmed her conviction on March
23, 1998. Benford then petitioned the Illinois Supreme Court for leave to appeal. She argued the

appellate court erred when it failed to consider her claim that twelve victim impact statements were

'gince the filing of this action, Alyssa B, Williams has replaced Lynn Cahill-Masching as the
Warden of the Dwight Correctional Center. Williams is the proper respondent in this habeas action.

?The facts contained herein are taken from the parties’ filings. > O


As noted above, in Payne v. Tennessee, Justice O’Connor cautioned that the admission of victim
impact statements could render a trial so fundamentally unfair as to deprive the defendant of his or her
due process rights. 501 U.S. at 825. In People v. Richardson, the Illinois Supreme Court also suggested
that while the improper admission of multiple victim impact statements was not grounds for appellate
relief under Illinois state law, it could result in a fundamentally unfair trial and violate a defendant’s due
process rights. 715 N.E.2d 1104, 1106-07 (Ill. 2001). Neither the U.S. Supreme Court in Payne, nor
the Illinois Supreme Court in Richardson found that a due process violation had actually occurred, but
the door was left open for future challenges of this ilk.

Benford asserts that her due process rights were violated in two ways. First, the prosecution
submitted multiple victim impact statements, the majority of which were not written by the victim’s
immediate family. Second, three of the statements allude to another, unsubstantiated murder allegedly
committed by Benford. Benford asserts that the judge rendered the sentencing phase of her trial
fundamentally unfair when he considered multiple statements of dubious origin and content. We will
examine the two parts of this claim individually.

a) Multiple Victim Impact Statements and Statements by Non-Victims

First we will examine Benford’s claim that the admission of twelve statements, including
statements by ten parties not classified as victims, violated her right to due process. The Seventh Circuit
has never overtumed a sentence based on the admission of multiple victim impact statements or the
admission of statements from non-victims. Even Richardson, a case to which both the petitioner and
respondent cite in their memoranda, does not provide a guiding example of when a violation of the
pertinent Illinois law actually would constitute a due process violation. In Richardson, the Illinois
Supreme Court found no evidence of fundamental unfairness despite the fact that the prosecution

disregarded Illinois law by submitting multiple victim impact statements. 751 N.E.2d at 1109.

12


four times, but only convicted once. The court in Lechner found no due process violation because the
trial judge did not reference the inaccurate information when he announced the sentence. Jd. In
Benford’s trial, the judge acknowledged that he read the victim impact statements and referenced the
petitioner’s officially documented criminal history, but he did not mention the other murder alluded to
in the statements, Rather than dwelling on the victims’ statements, the judge focused on the nature of
the crime itself, a gratuitous murder which arose out ofa minor disagreement. He stated that the conduct
of the murder informed him as to the character of the petitioner more than any other piece of evidence.
The judge then proceeded to hand down a sentence below the statutory maximum. There is no
indication that the trial judge gave explicit (if any) attention to the allegations of a second murder or that
his sentencing decision was in any way founded on those allegations.

We find no indication that the admission and consideration of twelve victim impact statements,
despite their dubious authorship and content, created a level of prejudice against the petitioner which
resulted in “a complete miscarriage of justice.” The petitioner’s sixth claim is without merit.

d. Claim Seven

Finally, Benford alleges that she was denied her right to due process because the Illinois Circuit
Court erroneously ruled that her post-conviction claim of ineffective assistance of counsel was barred
as res judicata. This Court may not consider Benford’s claim for two reasons. First, the State correctly
alleges that Benford procedurally defaulted on this claim by not bringing it before the Illinois Supreme
Court in her post-conviction petition. We also cannot rule on this claim because the Illinois Appellate
Court has already recognized that the circuit court’s reliance on res judicata was improper. People v.
Benford, No. 1-99-0845 (Ill. App. Ct, Feb. 2, 2001). After deciding this, the appellate court considered

the merits of Benford’s ineffective assistance of counsel claim and found it lacking. Jd. Because the

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