Ill. CONCLUSION
For the foregoing reasons, Hudson’s Amended Petition for Writ of Habeas Corpus —
Person in State Custody, filed pursuant to 28 U.S.C. § 2254 is denied.

IT IS SO ORDERED.

ENTER:

CHARLES RONALD NORGLE, Joige
United States District Court

Dated: September 9, 2008

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(1) 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

(2) 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). A state court’s decision is contrary to clearly established Supreme Court
precedent “if the state court arrives at a conclusion opposite to that reached by [the Supreme]
Court on a question of law” or “if the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to
{it].” Owens y. Frank, 394 F.3d 490, 496 (7th Cir, 2005) (quoting Williams v. Taylor, 529 U.S.
362, 405 (2000)). A state court’s decision is an unreasonable application of cleatly established
Supreme Court law if the state court “identifies the correct governing legal rule from this Court’s
cases but unreasonably applies it to the facts of the particular prisoner’s case” or “if the state
court either unreasonably extends a legal principle from our precedent to a new context where it
should not apply or unreasonably refuses to extend that principle to a new context where it
should apply.” Williams, 529 U.S, at 407; see also Owens, 394 F.3d at 496, In order for a state

court decision to be considered “unreasonable” under this standard it must be more than

incorrect, it must lie “well outside the boundaries of permissible differences of opinion.”

Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see also Schultz v. Page, 313 F.3d 1010,

1015 (7th Cir. 2002) (“The state court decision is reasonable if it is minimally consistent with the
facts and circumstances of the case”).
Before reviewing the Illinois courts’ decisions, however, the court must determine

whether Hudson fairly presented his federal claims to the state courts. Section 2254 requires a



In addition, Hudson has not specifically identified any of the “extremely prejudicial

statements” the trial court allegedly made or concealed. The court will not engage in speculation
as to which particular statements Hudson objects, See FTC v. World Media Brokers, 415 F.3d
758, 766 (7th Cir. 2005). Even if the court were to determine that this issue was not procedurally
defaulted, the court would not consider the merits of this argument. Hudson's second claim for
relief under § 2254 is denied,

3. Ineffective Assistance of Appellate Counsel

Hudson's third claim in support of his § 2254 Petition is that his counsel on direct appeal
was constitutionally ineffective for failing to raise certain issues. In order to establish that his
counsel was ineffective, Hudson must “show that [his] counsel’s performance was deficient, and
that the deficiency prejudiced [his] defense.” See Wiggins v. Smith, 539 U.S. 510, 521 (2003)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). An attomey’s performance is
deficient if it falls “below an objective standard of reasonableness.” Wiggins, 539 U.S. at 521
(quoting Strickland, 466 U.S. at 688). Prejudice is established by showing that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Benefiel v. Davis, 357 F.3d 655, 662 (7th Cir. 2004) (quoting
Strickland, 466 U.S. at 694). An ineffective assistance of counsel claim may be brought in a §
2254 motion, regardless of whether the claim was raised on appeal. See Massaro v. United
States, 538 U.S. 500, 504 (2003).

When a court reviews an ineffective assistance of counsel claim, the court’s review is
“highly deferential” to the attorney, “with the underlying assumption that ‘counsel’s conduct falls

within the wide range of reasonable professional assistance.’” United States v. Holman, 314

10


U.S. 722, 729 (1991). For example, waiver under state law is an independent and adequate state
law ground for dismissal that can preclude federal habeas relief. Thus, when a state court

determines that a habeas petitioner waives a claim in state court, that waiver is an independent

and adequate state law determination that bars federal habeas relief, See Harris v, Reed, 489

U.S. 255, 258 (1989) (citing Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977)); see also Wright
vy, Walls, 288 F.3d 937, 947 (7th Cir. 2002) (waiver is an independent and adequate state ground
in Illinois); Patrasso v. Nelson, 121 F.3d 297, 301-02 (7th Cir, 1997) (comparing waiver and res
judicata under Illinois law, and the consequences of each on subsequent federal habeas review).
However, for waiver to bar federal habeas review, the last state court to consider the question
must have “actually relied on procedural default as the basis for its decision.” Braun v. Powell,
227 F.3d 908, 912 (7th Cir. 2000). If that is not so, the merits of the issue are preserved for
federal habeas review. See id.

A federal court may not grant habeas relief on a defaulted claim unless the petitioner can
demonstrate cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claim will result in a fundamental
miscarriage of justice. See Edwards v. Carpenter, 529 U.S. 446, 450-52 (2000); Coleman, 501
U.S. at 750; Anderson v. Cowen, 227 F.3d 893, 899 (7th Cir. 2000), With the above principles
in mind, the court examines Hudson’s Petition.

B. Hudson’s Claims for Relief under § 2254

Hudson makes the following claims in his Amended Petition. (1) The trial court

unconstitutionally prohibited him from presenting certain evidence. (2) The trial court displayed

bias against him by making prejudicial statements to the jury and altering trial transcripts. (3)



habeas petitioner to exhaust the remedies available in state court prior to pursuing federal habeas

relief. See 28 U.S.C. § 2254(b)(1)(A), Any claim not presented to the state’s highest court is

deemed procedurally defaulted. See O’Sullivan v, Boerckel, 526 U.S. 838, 844-45 (1999)

(indicating that “a petition for discretionary review in Illinois’ Supreme Court is a normal,
simple, and established part of the State’s appellate review process”).

In addition to exhausting the remedies available in state court, a habeas petitioner is
procedurally barred from raising claims in a federal habeas court that he did not raise in the state
court proceedings, See O’Sullivan, 526 U.S. at 848 (holding that a petitioner’s failure to present
three claims to the Illinois Supreme Court for discretionary review resulted in a procedural
default of those claims). Fair presentment of a constitutional claim requires a habeas petitioner
to present both the operative facts and the controlling legal principles to the state court before
bringing the claims to a federal habeas court. Cf, Rodriguez v. Scillia, 193 F.3d 913, 916 (7th
Cir, 1999) (discussing exhaustion of claim) (citing Picard v. Connor, 404 U.S. 270, 277 (1971)).
Thus, a habeas petitioner procedurally defaults, or waives, any claim raised for the first time in
federal court.

Also, federal habeas courts cannot review claims that the state court has disposed of on
state law grounds. See Stewart v. Smith, 536 U.S. 846, 860 (2002); see also Lambrix v.
Singletary, 520 U.S. $18, 523-24 (1997) (noting that where “‘the state law determination is
sufficient to sustain the decree, any opinion , . . on the federal question would be purely
advisory.”) (citing Herb v. Pitcaim, 324 U.S. 117, 125-26 (1945)). Put another way, federal
habeas relief is not available if the state court decision rests on state law that “is independent of

the federal question and adequate to support the judgment.” See Coleman v, Thompson, 501



Hudson has not shown cause or actual prejudice to overcome this procedural default. See

Edwards, 529 U.S. at 450-52,

The court notes that the question of whether the introduction of this evidence was proper
under Illinois law is not cognizable in a federal habeas petition. It is well-established that

“federal habeas corpus relief does not lie for errors of state law.’” Estelle v. McGuire, 502 U.S.

62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); Escobar v. O'Leary, 943 F.2d
711, 720 (7th Cir. 1991) (“Violations of state evidentiary rules may not be questioned in a federal
habeas proceeding unless they render the trial so fundamentally unfair as to constitute a denial of
federal constitutional rights.”). To the extent that Hudson may be challenging the state court’s
interpretation of Illinois evidentiary law, this claim is therefore meritless. Hudson’s first claim
for relief under § 2254 is denied.

2. Trial Court Bias

Hudson next claims that the trial court made “extremely prejudicial statements” against
him in front of the jury during trial, and, during post-conviction proceedings, removed these
statements from the record. Am’d Pet., at 5. Hudson failed to raise this issue on direct appeal,
but he then raised it in his first post-conviction proceeding. The Appellate Court that examined
Hudson’s first post-conviction petition found that, based on state law grounds, Hudson had
forfeited this issue. This court therefore determines that Hudson’s trial court bias claims are
procedurally barred on habeas review. See Wright, 288 F.3d at 947 (holding that waiver is an
independent and adequate state law ground in Illinois). Hudson has not shown cause or actual

prejudice to overcome this procedural default. See Edwards, 529 U.S. at 450-52.


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

EASTERN DIVISION
GREGORY HUDSON, }
)
Petitioner, ) 03 C 8699

)
v. )

} Hon. Charles R. Norgle
ALAN UCHTMAN, )
)
Respondent. }

OPINION AND ORDER

CHARLES R. NORGLE, District Judge

Before the court is Petitioner Gregory Hudson’s Amended Petition for Writ of Habeas
Corpus — Person in State Custody, filed pursuant to 28 U.S.C. § 2254, Petitioner challenges his
conviction and sentence for the crime of Armed Violence. For the following reasons, the Petition
is denied,

I. BACKGROUND

Petitioner Gregory Hudson (“Hudson”) is currently incarcerated at the Menard
Correctional Center in Menard, Illinois, where he is serving a fifty year term of imprisonment.
Hudson is in the custody of Respondent Alan Uchtman, the current warden of the Menard
Correctional Center.

In July 1994, Hudson stood trial on two counts of murder in the Cook County Criminal
Courts Building at 26th Street and California Avenue in Chicago, Illinois. Hudson could have
received the death penalty-had he been convicted, but he insisted on representing himself at trial.

The Circuit Court appointed an Assistant Cook County Public Defender to act as standby counsel


his sentence was unconstitutionally enhanced; actual innocence; and whether the State proved all

the elements of the crime for which he was convicted. Appellate counsel’s performance was
objectively unreasonable in this case only if counsel failed to raise issues that were “both obvious

and clearly stronger than the one[s] that [were] raised.” Winters, 274 F.3d at 1167. After

examining the record in this case, the court cannot determine that the issues counsel did not raise
were obviously and clearly stronger that the issues counsel did raise. See id, Hudson’s third
claim for relief under § 2254 is therefore denied.

4. No Meaningful State Court Review of Hudson’s Claims

In his final claim, Hudson simply repeats and elaborates upon many of the arguments and
assertions he made at earlier stages of this protracted litigation. He then opines that because the
Illinois state court system provided him with no relief, his claims must not have been
meaningfully reviewed. The record indicates that the Illinois state court system afforded Hudson
the following opportunities to present his case: a jury trial in which he was repeatedly offered
appointed counsel, a direct appeal to the Illinois Appellate Court which issued a detailed eleven
page opinion affirming his conviction and sentence in this relatively simple case, a PLA to the
Illinois Supreme Court on direct appeal, three separate post-conviction petitions, two of which he
appealed to the Illinois Appellate Court, and one PLA to the Illinois Supreme Court regarding a
post-conviction petition. In addition, Hudson was afforded the opportunity to file a reply brief in
one of his post-trial conviction proceedings after the Illinois Supreme Court vacated an Appellate
Court opinion. There is no serious argument to be made that Hudson's case has not been

afforded meaningful state court review. At any rate, the State has already conceded that Hudson

12


F.3d 837, 840 (7th Cir. 2002) (quoting Strickland, 466 U.S. at 689). There is therefore a strong
presumption that Hudson's attorney performed reasonably. See Strickland, 466 U.S. at 690; see
also Cooper v. United States, 378 F.3d 638, 641 (7th Cir. 2004). To succeed in his claim,
Hudson must show “errors so serious that counsel was not functioning as ‘counsel’ guaranteed
[to him] by the Sixth Amendment....” See Holman, 314 F.3d at 839 (quoting Strickland, 466
U.S. at 687).

“The Sixth Amendment right of effective assistance of counsel applies to a criminal
defendant's trial, sentencing, and the first appeal of right.” Jones v. Welborn, 877 F. Supp. 1214,
1219 (S.D. Ill. 1994) (citing Pennsylvania y. Finley, 481 U.S. $51 (1987)). The familiar
Strickland standard therefore applies to defense counsel’s performance both at trial, and on direct
appeal. See Lee v. Davis, 328 F.3d 896, 900 (7th Cir. 2003); Winters v. Miller, 274 F.3d 1161,
1167 (7th Cir. 2001). Appellate counsel’s performance is objectively unreasonable “if counsel
fails to appeal an issue that is both obvious and clearly stronger than the one that was raised.”
Winters, 274 F.3d at 1167. Prejudice is established where failing to raise such an issue “‘may
have resulted in a reversal of the conviction, or an order for a new trial.”” Id. (quoting Mason v.

Hanks, 97 F.3d 887, 893 (7th Cir. 1996)); see also Lee, 328 F.3d at 900.

Hudson raised the following issues on direct appeal: whether he was denied a fair trial
when the trial court did not allow him standby counsel; whether at sentencing the trial court
improperly determined that his offense threatened serious physical harm; and whether the trial
court failed to consider his rehabilitative potential at sentencing. People v. Hudson, No. 95 CR
33003, slip op. at 1 (I. App. Ct. 1999). Hudson now asserts that counsel should have raised

these issues: the alleged omission of the Motion for New Trial from the appellate record; whether

ll


His appellate attorney was constitutionally ineffective. (4) The Illinois state court system failed

to provide him with a meaningful review of his claims.

In his original Petition, Hudson asserted that he was unconstitutionally deprived of the
services of standby counsel at trial. Hudson failed to include this claim in his Amended Petition,
and it is therefore forfeited. This court, in a May 20, 2005 Minute Order, reminded Hudson in
boldface of the consequences of filing an amended Petition. See Kelley v. Crosfield Catalysts,
135 F.3d 1202, 1204-05 (7th Cir. 1998) (an amended pleading generally supercedes an original
pleading). Nevertheless, with an abundance of caution, the court will address the merits of this
claim.

1. Loss of Opportunity to Present Certain Evidence

Hudson first argues that his constitutional rights were violated when the trial court
precluded him from cross-examining state’s witnesses regarding various matters, and refused to
allow him to introduce certain other evidence. Hudson first brought his evidentiary claims in his
first state post-conviction petition. The state trial court denied these claims because Hudson
failed to raise them on direct appeal. On appeal from the denial of his first post-conviction
petition, Hudson did not raise these claims. In his second post-conviction petition, Hudson again
raised these claims, but the trial court summarily dismissed this petition, and the appellate court
affirmed, holding that the second petition was an improper successive petition under Illinois law.
This court therefore determines that these claims are procedurally barred, as the Hlinois courts
have disposed of these claims on independent and adequate state law grounds. See Wright, 288

F.3d at 947 (holding that waiver is an independent and adequate state law ground in Illinois),


Hudson’s second post-conviction petition was a successive petition barred under Illinois law.
Hudson did not file a PLA, but rather sought another supervisory order from the Illinois Supreme
Court. The high court denied Hudson’s request on March 5, 2005. In March 2001, while the

appeal in his second post-conviction petition was pending, Hudson filed a third post-conviction

petition. Hudson’s third petition was merely a photocopy of his second petition, The Circuit

Court summarily dismissed Hudson’s third petition, and Hudson did not appeal. Respondent
admits that Hudson has exhausted his state court remedies,

On December 1, 2003, Hudson filed a Petition for Writ of Habeas Corpus — Person in
State Custody in the Northern District of Illinois. The district court dismissed this Petition
without prejudice on May 14, 2004, because his appeal from the denial of his second state court
post-conviction petition was still pending. The district court granted Hudson leave to refile his
federal Petition within sixty days of the termination of his state court proceedings. Hudson
timely filed the instant Amended Petition for Writ of Habeas Corpus — Person in State Custody
on June 23, 2005. The Amended Petition is fully briefed and before the court.

II. DISCUSSION

A. Standard of Decision

Hudson’s Petition is governed by 28 U.S.C. § 2254(d), as amended by the Antiterrorism
and Effective Death Penalty Act (‘AEDPA”), which sets a high hurdle for habeas relief. The
statute states:

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim -



At a January 3, 1997 hearing, the court reminded Hudson of the seriousness of the

charges against him and the potential sentence, and inquired if Hudson wished to reconsider his
waiver of counsel. Hudson replied that he understood the nature of the charges and the possible
sentence, and again requested court-appointed standby counsel. The court denied Hudson’s
renewed request for standby counsel. Hudson then reaffirmed his desire to represent himself.

Unfortunately for Hudson, there would be no repeat of the “miracle at 26th Street.” The
jury convicted him of armed violence, a Class X felony in Illinois requiring a minimum fifteen
year term of imprisonment.’ Since Hudson had been convicted of another Class X felony within
ten years of the instant offense, he became eligible for an extended prison term of thirty to sixty
years under Illinois law. The court sentenced Hudson to fifty years imprisonment.

Hudson’s case then slowly wound its way through the Illinois state court system. The
Illinois Appellate Court affirmed Hudson’s conviction and sentence on December 23, 1999. The
Illinois Supreme Court denied Hudson’s Petition for Leave to Appeal (“PLA”) on May 31, 2000.
The Circuit Court denied Hudson’s first state post-conviction petition as frivolous and patently
without merit on January 21, 2000. The Appellate Court affirmed on August 31, 2001. The
Illinois Supreme Court denied Hudson’s PLA on December 5, 2002. While his first post-
conviction petition was still pending, Hudson filed a second. The Circuit Court again dismissed
this petition as frivolous and patently without merit, and the Appellate Court affirmed in March
2003. The Appellate decision, however, was vacated by a supervisory order issued by the Illinois
Supreme Court, which allowed Hudson to file a reply brief. After filing his reply brief, the

Appellate Court affirmed the Circuit Court’s dismissal again in December 2004, holding that

' The State proceeded to trial only on the armed violence charge.
3


for Hudson. Throughout the trial, Hudson asserted that he had been the victim of a conspiracy to
frame him for the murders. After deliberating for ninety minutes, the jury found Hudson not
guilty on both counts. Onlookers were astounded. “This could only be a miracle at 26th Street,”
said an amazed defense attomey. Man Defends Himself in Murder Trial, Wins, CHICAGO SUN
Times, July 16, 1994, at 5.

Approximately sixteen months later, on November 2, 1995, Chicago Police Officers
chased Hudson into an apartment building at 4432 West Jackson Boulevard. The Officers
arrested Hudson, and recovered from him a loaded .38 caliber handgun, 167 tinfoil packets of
heroin, 9 packets of cocaine, and $530 in cash. Hudson was charged with armed violence,
possession of a controlled substance with intent to deliver, and unlawful possession of a weapon
by a felon.

Hudson originally retained private counsel, but the Circuit Court in Cook County, Illinois,
granted counsel’s motion to withdraw on May 24, 1996. The court gave Hudson twenty-one
days to retain a new attorney, but at Hudson’s next status hearing he informed the judge that he
wanted to represent himself. The court then informed Hudson of his rights under Illinois
Supreme Court Rule 401 concerning waiver of counsel, the nature of the charges against him,
and his potential sentence. Hudson again indicated that he wanted to represent himself. After
considering a number of factors, including Hudson’s background and education, his prior contact

* with the judicial system, and his prior acquittal of two murder charges after representing himself,
the court determined that Hudson had knowingly, intelligently, and voluntarily waived his right
to counsel. Hudson later moved the court to appoint standby counsel for him. The court denied

the motion, but indicated that Hudson could have a public defender appointed to represent him.


has exhausted his state court remedies. Hudson has therefore already met the threshold

requirement for filing a § 2254 Petition. See 28 U.S.C. § 2254 (b).

5. Denial of Standby Counsel

As the court has noted, Hudson’s original § 2254 Petition contains the claim that he was
unconstitutionally denied the services of standby counsel when he represented himself at trial. It
is well established that criminal defendants have a Constitutional right to defend themselves.
“And although he may conduct his own defense ultimately to his own detriment, his choice must
be honored out of that respect for the individual which is the lifeblood of the law.” Faretta v.
California, 422 U.S. 806, 834 (1975) (internal quotation marks and citations omitted). However,
there is no Constitutional right to “hybrid representation” in which a defendant acts as co-counsel
alongside an attorney, “We recognize, along with all other circuits that have considered the
question, that there is no Sixth Amendment right to hybrid representation; rather, whether a
defendant may act as co-counsel along with his own attorney, is a matter within the sound
discretion of the district court.” United States v. Chavin, 316 F.3d 666, 671 (7th Cir. 2002).

The trial court in this case, in its discretion, denied Hudson’s request for standby counsel.
The Illinois Appellate court affirmed the trial court’s decision to deny Hudson hybrid

representation, citing applicable federal and Illinois law. Hudson, slip op. at 3-4. This court can

find no indication in the record that the state Courts’ decisions were based on an unreasonable
application of the federal law, or on an unreasonable determination of the facts, See 28 U.S.C. §

2254(d), Hudson’s final claim for federal habeas corpus relief is therefore denied.

13