fair presentment of an issue to the state courts as a pre-condition to federal habeas relief is a
manifestation, the Supreme Court has emphasized, of its concern for federal-state comity. ‘[I}t
would be unseemly in our dual system of government for the federal courts to upset a state-court
conviction without affording to the state courts the opportunity to correct a constitutional
violation.” Verdin v. O'Leary, 972 F.2d 1467, 1473 (7th Cir. 1992) (quoting Duckworth v.
Serrano, 454 U.S. 1, 4 (1981)). Thus we cannot simply overlook Barnes’ failure to make any
federal constitutional claims to the state courts on the assumption that the making of such claims
would not have affected the outcome of his appeal. And even if we could surmise from the
Appellate Court’s ruling that it would have affirmed Bares’ conviction even if he had made his
constitutional claims in that court, Barnes was also required to present his constitutional claim to
the Illinois Supreme Court in his petition for leave to appeal. O'Sullivan v. Boerckel, 526 U.S.
838 (1999). We have no basis to assume that Barnes’ constitutional claims, which the Illinois
Supreme Court never heard about, would have made no difference in that court’s decision
whether to hear his case. And Barnes has provided no legally cognizable “cause” to excuse his
failure to include his constitutional claims in his petition for leave to appeal. For all of these
reasons, this Court is precluded from considering Barnes’ claim on the merits.
Conclusion
For the reasons stated above, the Court dismisses Barnes’ petition for habeas corpus. The

Clerk is directed to enter judgment dismissing the petition.

A uguinrtle

MATTHEW & KENNELL
United States District Judg;

Date: March 15, 2002


[i]f there was an error of Illinois law, it was for the Illinois courts to correct; it is
not the province of a federal court on habeas review to decide issues of state law.
A federal court can grant a writ of habeas corpus only if the petitioner’s custody
violates the Constitution or laws of the United States. Only if claimed errors of
state law so prejudiced the petitioner as to deny him a fundamentally fair trial
would the Constitution be implicated. Though that may be the gist of petitioner’s
claim in his habeas corpus petition, in order for this Court to be able to address
such a claim, petitioner would have had to present it to the state court in federal
constitutional terms.

Accordingly, the Court proposes to dismiss the petition without ordering a
response unless the petitioner can show that the petition raises, a federal claim,
and just as importantly, that it was preserved by presentation to the Ilinois
courts.

Order of Feb. 4, 2002 (emphasis added).

Barnes has made a submission in response to the February 4 order. He appears to argue
that this trial was in fact fundamentally unfair, in violation of his federal constitutional rights, as
a result of the state courts’ determination of various state law issues. Barnes appears to concede,
however, that he did not assert any sort of a federal claim in state court. He nonetheless argues
that the Court should excuse this default and consider his habeas corpus petition on the merits,

for the following reason:

In order for this court to reject the Petitioner’s claim to the Writ of Habeas
Corpus, it would have to reason that the Illinois Appellate court would have ruled
differently had the petitioner couched his appeal in terms of due process and equal
protection, rather than the claim that the trial and appellate courts violated every
precedent in state and federal law by refusing to honor its duty to decide questions
of law and issue instructions that are essential to the trial. This would be placing
form over substance. The Petitioner gave the State courts a fair opportunity to act
on his claims of neglect of duty, refusal to decide essential questions of law,
allowing a jury to decide question of law and failure to instruct the jury as to the
law.

Petitioner’s Memorandum, p. 11.

Barnes’ argument is without merit. As the Seventh Circuit has stated, “(t]he necessity of


Minute Order Form (06197),

<S As United States District Court, Northern District of Illinois

i Sitting Judge if Oth
vane Magistrate udge Matthew F. Kennelly than Assigned Judge
CASE NUMBER 02 C 723 DATE 3/15/2002
CASE Barnes vs. Jaimet, et al
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:

ql) Qo Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

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

(4) oO Ruling/Hearing on ____—ssetfor_ at

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

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

(7) ob Trial[set for/re-set for}on_____at

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

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

OOFRCP4(m) (General Rule 21 CO FRCP41(a)(1) COFRCP41(a)(2).

ao) wf [Other docket entry] Enter Memorandum Opinion and Order. The reasons set forth on the attached
order, the Court dismisses Barnes’ petition for habeas corpus. Judgment is entered dismissing the
petition.

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

No notices required, advised in open court.
No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone,

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

OR

umber of notices

Lunes

MAR 18 2002

date docketed
C. deputy infiats

date mailed notice

Lied

OE Ne

Date/time received in
central Cbr's Omice.

iid

‘mailing deputy initials



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

EASTERN DIVISION
JASON BARNES, )
Petitioner, }
YS. } Case No. 02 C 723
DANNY D. JAIMET and JAMES RYAN, }
Respondents. } MAR 1 8 2002

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:

Petitioner Jason Barnes was convicted by a DuPage County jury of aggravated battery and
unlawful restraint. In June 1997, defendant’s girlfriend, Cindy Milam, was arrested for domestic
battery after an altercation with Barnes. She was released on bond, but an order of protection
was entered barring her from having contact with Barnes. About two weeks later, Milam called
Barnes and asked her to meet him at a tavern to discuss a bill for repairing damage to her car.
When Barnes did not come, she went to his home and entered after she found the front door
open. Milam confronted Bames about the repair bill. She claimed that Barnes grabbed her,
threw her to the floor, and sat on her so that she could not move, and then tied her hands together
with a rope and hit her in the face. Milam eventually freed herself and ran to a neighbor’s home.
She was taken to a hospital, where she was treated for multiple contusions on her face and a
laceration which completely severed her upper lip, as well as a comminuted fracture of her nasal
bone.

Barnes was arrested. He told the police, and testified at trial, that he had awakened to


learn that Milam was in his house without permission and was attempting to take a number of his
possessions. He tried to restrain her from leaving, she struck him, and a struggle ensued. Barnes
testified that Milam kicked him in the groin and pulled his hair, and that he hit her in the face
because he was afraid of further harm. He said that he had tied Milam’s hands to keep her from
leaving, presumably so that he could call the police. He then ran to a neighbor’s house, saw a
police officer who was there for an unrelated reason, and reported a breaking and entering.

After hearing the testimony of Milam and Barnes, as well as several police officers, a jury
convicted Barnes of aggravated battery and unlawful restraint. He was sentenced to three years
in prison. His conviction and sentence were affirmed on appeal in an unpublished order. People
v. Barnes, No. 2-99-660 (Ill. App. Apr. 20, 2001).

Barnes has filed a petition for habeas corpus pursuant to 28 U.S.C. §2254 in which he
alleges that he was denied a fair trial, that he was not proven guilty beyond a reasonable doubt,
that the charge of unlawful restraint should not have been submitted to the jury, and that his
rights to due process and equal protection were violated by the trial judge’s refusal to instruct the
jury on the issue of whether he had legal authority to restrain Milam because her presence in his
house violated the order of protection.

Barnes attached to his petition a copy of his petition for leave to appeal to the Illinois
Supreme Court, which had raised only state-law issues — that the lower courts had erred in
treating the question of his authority to restrain Milam as an issue of fact for the jury, and in
holding that the jury could find that Barnes had waived the protection of the court order by
initially acquiescing in Milam’s presence in his home. See Petition for Habeas Corpus, Ex. D.

We therefore entered an order on February 4, 2002, stating that