1996)); (2) when a state court rejects a petitioner’s claim pursuant to an adequate and independent
state procedural or substantive ground (Coleman, 501 U.S. at 729-30); and (3) if the petitioner
completely failed to assert the claim in the state court (Moleterno v. Nelson, 114 F.3d 629, 634 (7th
Cir. 1997)). Failing to appeal an issue to the state court that was first asserted in a post-conviction
petition also constitutes procedural default.

A petitioner may be excused from a procedural default if he can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law or a failure to review
the claim will result in a fundamental miscarriage of justice. Schaff v. Snyder, 190 F.3d 513, 526
(7th Cir. 1999). Cause sufficient to excuse a procedural default is defined as “some objective factor
extemal to the defense” which precludes the petitioner’s ability to pursue his or her claims in state
court. Murray v. Carrier, 477 U.S. 478, 488 (1986) (Murray). Ordinarily, this requires a showing
of some external impediment preventing counsel from constructing or raising the claim. Murray,
477 US. at 488.

To demonstrate a fundamental miscarriage of justice, the petitioner must show that “a
constitutional violation has probably resulted in the conviction of one who is actually innocent.”
Schlup v. Delo, 513 U.S. 298, 327 (1995) (Schlup), quoting Murray, 477 U.S. at 496.

Respondent argues that claims 2, 3, 5, 6, and 7 of Blackwell’s petition are procedurally
barred because he did not raise any of these claims in the state courts. Respondent also argues that
claims 1 and 4 of Blackwell’s petition are procedurally barred because, while Blackwell did present
these claims in his post-conviction petition, he did not present these claims to the appellate court in
an appeal of the dismissal of his post-conviction petition. See Jenkins v. Gramley, 8 F.3d 505,

507-08 (7th Cir. 1992) (failing to appeal an issue to the state court that was first asserted in a post-



denied the post-conviction petition.

Blackwell appealed the denial of his post-conviction petition to the Illinois Appellate Court,
Second Judicial Circuit. Blackwell raised one issue on appeal: whether the proportionate penalties
clause of the Illinois constitution is violated by 730 ILCS 5/5-5-3(c)(8), which subjects defendants
convicted of Class 2 felonies to the same Class X sentence as those convicted of Class 1 felonies.

The appellate court noted that the trial court improperly dismissed some of Blackwell’s
claims. Because the partial dismissal did not harm Blackwell, aremand for further proceedings was
not required. The appellate court also found that Blackwell waived these issues and, alternatively,
that the claims Jacked merit. The appellate court also rejected Blackwell’s proportionate penalties
clause argument and affirmed the trial court.

Blackwell filed a petition for leave to appeal with the Illinois Supreme Court, raising the
single issue of the proportionate penalties clause discussed above. In October 2002, the Illinois
Supreme Court denied the petition. Subsequently, Blackwell filed the present petition.

A federal court will not grant habeas corpus relief on any claim adjudicated on the merits by
a state court unless the state court’s decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States” or “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 habeas corpus petition must survive
procedural default before a federal court may address the merits of the petition. Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991) (Coleman).

Generally, there are three ways a procedural default occurs: (1) where the petitioner fails to

raise a federal constitutional issue in the state courts (Bocian v. Godinez, 101 F.3d 465, 469 (7th Cir.



conviction petition also constitutes procedural default).

Blackwell does not dispute that he did not raise his claims in state court. Instead, Blackwell
argues that he should be excused from procedural default because proven ineffective assistance of
counsel may be considered cause for a procedural default. See Farrell v. Lane, 939 F.2d 409, 411
(7th Cir. 1991) (Farrell).

Ineffective assistance of counsel, if proven, may be considered cause for a procedural default.
Farrell, 939 F.2d at 411. However, before a petitioner can use ineffective assistance of counsel as
cause for a procedural default, he must first present this claim as an independent claim to the state
courts either on direct appeal or in a post-conviction proceeding. See Lemons v. O’Sullivan, 54 F.3d
357, 360 (7th Cir. 1995) (Lemons). Furthermore, “a defendant who neglects to raise a claim of
inadequate representation on direct appeal may not later assert that claim in a petition for post-
conviction relief ... [unless] the basis for the claim does not appear in the record.” United States v.
DeRobertis, 754 F.2d 764, 766 (7th Cir. 1985).

In the instant case, Blackwell did not present any ineffective assistance of counsel issues in
his direct appeals to the state courts. The only ineffective assistance of counsel issue he raised in his
post-conviction petition was regarding trial counsel’s failure to object to the admission of video
evidence. Accordingly, this is the only ineffective assistance of counsel claim that Blackwell can
assert as cause for his procedural default. See Lemons, 54 F.3d at 360. However, the lack of
objection during trial is based on information contained in the record. Accordingly, Blackwell has
waived this claim of ineffective assistance of counsel; and it cannot represent cause to excuse
procedural default. See Farrell, 939 F.2d at 411.

Based on the above, Blackwell has failed to establish cause to excuse his procedural default.



Minute Qrder Form (06/977)

United States District Court, Northern District of Illinois

Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 02 C 7395 DATE 6/19/2003
CASE USA ex. rel., VINCENT BLACKWELL vs. JOHN BATTLES
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(ld) a Filed motion of [ use listing in “Motion” box above.]
(2) Qo Brief in support of motion due.
(3) Qa Answer brief to motion due. . Reply to answer brief due.
4 Oa Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) ai Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) a Trial[set for/re-set for] on at
(8) i] [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 CFRCP41(a)(1) ( FRCP41(a)(2).
a0) off [Other docket entry] Status hearing set for 6/26/03 is stricken. Enter Memorandum Opinion And
Order. Blackwell’s Writ for Habeas Corpus is dismissed with prejudice.
(1) [For further detail see order attached to the origina! minute order.]
No notices required, advised in open court.
No notices required.
Notices mailed by judge's staff.
Notified counsel by telephone. .
UY | Docketing to mail notices,
Mail AO 450 form. iynaa i)
Copy to judge/magistrate judge. Mu
courtroom N2ZiMd Of er ey date mild notice
LG deputy’s
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central Clerk's Office nailing deputy initials



Furthermore, Blackwell does not allege, and the evidence does not establish, a fundamental
miscarriage of justice occurred. Accordingly, Blackwell’s procedural default is not excused.

For the reasons stated above, Blackwell’s Writ for Habeas Corpus is dismissed with

Lf

omy. ‘DARRAH
itéd States District Judge

prejudice.

Dated: 4, 200



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES ex, rel., )
VINCENT BLACKWELL, )
)
Petitioner, ) Dex, ETED
rv
) UN » 3 29
v. ) No. 02 C 7395 03
)
JOHN BATTLES, ) Judge John W. Darrah
)
Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner, Vincent Blackwell (“Blackwell”), seeks a writ of habeas corpus against the Illinois
River Correctional Center Warden, John Battles, pursuant to 28 U.S.C. § 2254. Before the Court
is Blackwell’s Writ of Habeas Corpus in which he raises seven grounds for relief: (1) the trial court
erred by failing to admonish Blackwell; (2) ineffective representation of trial counsel for failing to
raise the first issue on appeal; (3) the trial court abused its discretion by allowing into evidence non-
relevant videotape evidence; (4) ineffective representation of trial counsel for failing to contest the
third issue and failing to preserve that issue for appeal; (5) ineffective assistance of appellate counsel
for failing to present the third and fourth issue; (6) his sentence should be reduced because his class
of felony was never enhanced, but his sentence was enhanced; and (7) there was no statement of
enhancement of the sentence on the date of the indictment, instead, the State asked for the
enhancement after a finding of guilty.

The factual findings of a state trial or appellate court are presumed true in a federal habeas
proceeding unless the petitioner can rebut the presumption with clear and convincing evidence. 28

US.C. § 2254(e)(1). The petitioner has not challenged the appellate court’s summary of facts.


Accordingly, the following facts are drawn from the appellate court’s opinions.

In August 1997, Blackwell was charged by indictment with two counts of robbery and one
count of theft. Following a bench trial, Blackwell was found guilty of all three counts. In March
1998, the trial court sentenced Blackwell to twenty years’ imprisonment for the first count of
robbery. The trial court found that the other counts merged for the purpose of sentencing.

In April 1999, Blackwell appealed his conviction and sentence to the Illinois Appellate Court,
Second Judicial Circuit. On appeal, Blackwell argued that: (1) his conduct constituted a theft rather
than a robbery and (2) his sentence was an abuse of discretion. In September 1999, the appellate
court affirmed Blackwell’s conviction and sentence.

Subsequently, Blackwell filed a petition for leave to appeal with the Illinois Supreme Court.
Blackwell raised two issues in his petition: (1) his conduct constituted theft rather than robbery and
(2) his sentence was excessive because it failed to properly consider his rehabilitative potential. In
December 1999, the petition was denied.

In March 2000, Blackwell filed a post-conviction petition in the Circuit Court of DuPage
County. Inhis post-conviction petition, Blackwell raised three issues: (1) Public Act 80-1099, which
added the Class X recidivist provision, violated the single subject clause of the Illinois constitution;
(2) ineffective assistance of trial counsel for failing to object to the admission of videotape evidence;
and (3) the trial court failed to admonish him of the possibility of receiving a Class X sentence.

The trial court found that only Blackwell’s third issue asserted a potentially meritorious
claim. The trial court appointed counsel to pursue the third issue. Subsequently, the trial court
denied Blackwell’s request that the court reconsider its ruling on the single subject clause issue.

After an amended post-conviction was filed and hearing arguments on the third issue, the trial court