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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ARYULES BIVENS, )

)

Petitioner, ) Case No. 00-CV-7327

v. )

)

DONALD HULICK, Warden, ) Judge Joan B. Gottschall

)

Defendant. )

MEMORANDUM OPINION AND ORDER

On December 11, 2002, Aryules Bivens petitioned this court for a writ of habeas corpus

challenging his 1985 convictions for escape and armed robbery. These convictions stem from

Bivens’s participation in a successful escape from the maximum security division of the Cook

County jail on March 23, 1984. As grounds for habeas relief, Bivens asserts that 1) his trial

counsel was ineffective for failing to call exculpatory witnesses to testify that petitioner was

forced to participate in the escape; 2) the state postconviction trial and appellate courts

improperly relied on the doctrine of waiver in disposing of petitioner’s ineffective assistance of

counsel claims; 3) he was denied a fair trial because the trial court declined to instruct the jury

on the defense of necessity; 4) his successive postconviction petition raised sufficient allegations

to merit an evidentiary hearing; and 5) his postconviction trial counsel was ineffective for failing

to obtain affidavits and other necessary documentation to support the claims raised on state

postconviction review. For the reasons discussed below, Bivens’s petition is denied.
1

Unless otherwise noted, the factual summary below is based on People v. Bivens, 156

Ill.App.3d 222, 509 N.E.2d 640 (Ill.App.Ct. 1987), in which the Illinois Appellate Court upheld

the convictions Bivens challenges here. The Appellate Court’s factual determinations in that

case are presumed to be correct for the purpose of this petition. See Miller-El v. Cockrell, 537

U.S. 322, 324 (2003). 

2

Hill turned himself in to a television news reporter. Reginald Mahaffey was

apprehended while still within the jail complex. It is not clear from the available portions of the

record where and when the remaining escapees were recaptured. 

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I. BACKGROUND1

On the night of March 23, 1984, Bivens and five other inmates–Reginald Mahaffey, Jerry

Mahaffey, Brian Daniels, Raymond Greer, and Gregory Hill–successfully escaped from the

maximum security division of the Cook County jail. Armed with at least two firearms, the

escapees forced the Sheriff’s officers on duty to give them their uniforms, badges, and personal

property. The inmates then proceeded through tunnels out of the maximum security division and

into another section of the jail, then dispersed. Bivens and Hill, posing as officers, proceeded

through two other security checkpoints and out of the jail complex, where they commandeered a

neighborhood resident’s car, which was double parked nearby. With one of the car’s occupants,

who believed Bivens and Hill to be police officers, in the back seat, Bivens and Hill fled to

Chicago’s south side, where first Hill then Bivens exited the car. Bivens was found in hiding

and arrested four days later. All of the other escapees were ultimately apprehended as well,2

 and

all but Bivens pled guilty to the escape.

At trial, Bivens testified in his own defense, claiming that he was forced to cooperate

with the escape because he had knowledge of the jail’s tunnel system. In particular, Bivens

testified that Reginald Mahaffey approached Bivens with a gun and said, “You are coming with

us. You are going to show us the way out.” Bivens claims that he was not armed at any point

during the escape. Bivens further testified that the Mahaffey brothers, guns in hand, ordered

Officer Riley, one of the guards on duty, to disrobe, and that they ordered Bivens to don Riley’s
3

Bivens stated in his 1998 PLA that he was alone with Riley at this point, citing to his

own trial testimony. See Exh. O to Respondent’s Amended Answer, at 10-11. 

4

The facts and quotations in this paragraph are taken from Bivens’s PLA See Exh. O to

Respondent’s Amended Answer, 6-8.

5

The Appellate Court stated that thirty-four witnesses testified at the trial. The available

materials account for at least twenty-three State witnesses. It is not clear from the record

whether the defense presented any witnesses other than defendant. 

6

Bivens was also convicted on multiple other counts not at issue here, one of which was

reversed on appeal.

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uniform. Bivens stated that he was then alone with Riley for a brief period,3

 during which time 

he put on Riley’s uniform, badge, and wristwatch and took Riley’s wallet. Bivens claims to

have told Riley during this time, “Nobody is going to hurt you. I don’t even want to be in this

myself,” to which Riley replied, “Well, man, you know if you don’t go, we are going to kick ass

after this anyway.” Bivens testified that this statement, together with Bivens’s previous

observation of the rough manner in which the guards sometimes treated inmates, caused him to

fear reprisal from the jail guards if he did not proceed with the escape.

Officer Riley testified that Bivens had indeed told him, “we don’t want to hurt you,”4

 but

otherwise denied the exchange Bivens described. Riley also testified that Bivens was holding

“what appeared to be a weapon” at some point during the escape. Officer Langdon, another

guard on duty at the time, testified that Bivens had pointed a gun at him and forced him into the

day room area of the maximum security division, where someone ordered Langdon to remove

his uniform.

In total, approximately thirty witnesses testified for the State about various aspects of the

escape.5

 None of the other escapees testified for either the State or the defense. 

At the close of the trial, Bivens requested jury instructions on the defenses of both

compulsion and necessity, but he received only the compulsion instruction. The jury convicted

Bivens of one count of escape and five counts of armed robbery.6

 Bivens appealed his
7

Bivens raised two other claims not relevant here.

8

The petition was first erroneously denied summarily, and on appeal was remanded to the

trial court, where it was rejected on the merits.

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conviction and sentence, claiming that the trial court erred in refusing to instruct the jury on the

defense of necessity.7 The Illinois Appellate Court upheld the escape and armed robber

conviction in People v. Bivens, 156 Ill.App.3d 222, 509 N.E.2d 640 (Ill.App.Ct. 1987). Bivens

filed a petition for leave to appeal (PLA) in the Illinois Supreme Court, which was denied.

In a postconviction petition filed December 24, 1991, Bivens asserted, for the first time,

that his trial counsel had been ineffective for failing to investigate and call as witnesses escapees

Greer, Hill, Daniels, and Jerry Mahaffey. This claim and others Bivens raised in a

supplementary postconviction petition were denied.8

 Bivens appealed, raising the previously

presented claims along with the additional claim that postconviction trial counsel was ineffective

for failing to append affidavits to the petition, amend it, or adequately investigate the

postconviction claims. The Illinois Appellate Court affirmed the denial, and the Illinois

Supreme Court denied Bivens’s PLA. 

While his PLA on the denial of his postconviction petition was pending before the

Illinois Supreme Court, Bivens filed a successive postconviction petition, again asserting a claim

of ineffective assistance of trial counsel. In support of his successive petition, Bivens attached

an affidavit from Brian Daniels, dated May 20, 1987, in which Daniels averred that he and

Gregory Hill had planned the escape and forced Bivens and other inmates to participate. 

Specifically, the Daniels affidavit states, inter alia: “The affiant on March 23, 1984 along with

Gregory Hill forced several detainees to take involvement in the escape, which included Aryules

Bivens,” and “The affiant at gun-point forced several Cook County Officers to disrobe and

forced Aryules Bivens at gun-point to put on the uniform of Officer Riley.” Bivens’s successive

postconviction petition was denied, and the denial was affirmed on appeal. Bivens’s PLA to the
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Illinois Supreme Court was also denied.

Having thus exhausted his state court remedies, Bivens sought habeas relief in this court. 

II. ANALYSIS 

The disposition of Bivens’s habeas petition has been a long time in coming. As

discussed at length in the court’s previous orders, the resolution of Bivens’s claims has been

delayed by several factors, including Bivens’s desire to conduct additional discovery based on

evidence he adduced after his conviction, followed by a protracted dispute stemming from the

State’s inability to produce relevant portions of the trial record or a reasonable substitute

therefor. See, e.g., Bivens v. Briley, No. 00 C 7327, 2004 WL 1718437 (N.D. Ill., July 27, 2004)

(order granting additional discovery based on new evidence); Bivens v. Battaglia, No. 00 C 7327

(N.D. Ill., Jan. 17, 2007) (order acknowledging Respondent’s inability to provide full trial

transcript and ordering Respondent to produce narrative summary of evidence presented); Bivens

v. Hulick, No. 00 C 7327 (N.D. Ill., Aug. 15, 2008) (order acknowledging Respondent’s inability

to produce narrative summary and granting opportunity for additional briefing). To understand

the significance of the new evidence, and to appreciate why the incompleteness of the

evidentiary record has been particularly problematic in this case, a short discussion of the nature

of Bivens’s claims and the law applicable to proof of those claims is required.

A. Ineffective Assistance of Trial Counsel and Actual Innocence

Bivens’s claim of ineffective assistance of trial counsel has driven the course of the over

eight years of proceedings in this court. Although this claim is at the root of Bivens’s request

for relief, Bivens concedes that he did not raise it on direct appeal to the Illinois Appellate Court,

and he does not contest respondent’s assertion that that claim is procedurally defaulted. 

Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a federal court

may not grant a state prisoner habeas relief unless the prisoner has exhausted his or her state

court remedies. 28 U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999). 
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Accordingly, federal courts sitting on habeas review may entertain the merits only of federal

claims that were fairly presented in the state courts throughout “one complete round of the

State’s established appellate review process.” Boerckel, at 845. All other claims are

procedurally defaulted, and “a federal court will not entertain a procedurally defaulted

constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to

excuse the default.” Dretke v. Haley, 541 U.S. 386, 388 (2004).

Bivens does not argue that his failure to raise ineffective assistance of trial counsel on

direct appeal is excused by cause and prejudice. Rather, he contends that his procedural default

must be overlooked because his case falls within “the narrow class of cases...implicating a

fundamental miscarriage of justice,” Schlup v. Delo, 513 U.S. 298, 314-25 (1995) (ellipses in

original), because new evidence shows that he is actually innocent of the crimes for which he

was convicted. “[I]n an extraordinary case, where a constitutional violation has probably

resulted in the conviction of one who is actually innocent, a federal habeas court may grant the

writ even in the absence of a showing of cause for the procedural default.” Murray v. Carrier,

477 U.S. 478, 496, 106 S.Ct. 2639 (1986). 

Actual innocence, however, is not itself an independent constitutional claim capable of

supporting a claim for habeas relief. Schlup, at 315. Instead, it is a “gateway” claim, which, if

proven, allows a habeas petitioner to have an otherwise barred constitutional claim adjudicated

on the merits. Id. The key to the gate, however, is difficult to come by. As Bivens

acknowledges, before the court may entertain the merits of his substantive claim, he must prove

actual innocence by showing that “no reasonable juror would have convicted him in the light of

the new evidence.” Schlup, at 327. 

The very formulation of the actual innocence standard reveals how exacting it is. The

Supreme Court underscored this in House v. Bell, 547 U.S. 518, 538 (2006) (“it bears repeating

that the Schlup standard is demanding and permits review only in the ‘extraordinary’ case”)
9

Bivens also cites the court’s opinion in Bivens v. Briley, 2004 WL 1718437 at *3 (July

29, 2004) in support of his claim of reliability. As the court clarified in its subsequent order of

August 21, 2008, the court’s earlier remarks regarding the affidavits were made in the context of

a discovery dispute, where the issue was whether Bivens was entitled to additional discovery

based upon the affidavits. As should have been apparent, and as was certainly made clear

subsequently, the court did not intend at that time make any finding as to the merits, including

the issue of the ultimate reliability of the affidavits.

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(quoting Schlup at 327). The House court emphasized, in particular, that the new evidence must

be “reliable,” 547 U.S. at 536, a point the Seventh Circuit illustrated in another case involving an

underlying ineffective assistance of counsel claim: “to demonstrate innocence so convincingly

that no reasonable jury could convict, a prisoner must have documentary, biological (DNA), or

other powerful evidence: perhaps some non-relative who placed him out of the city, with credit

card slips, photographs, and phone logs to back up the claim.” Hayes v. Battaglia, 403 F.3d 935,

938 (7th Cir. 2005) (citing Schlup, at 324). Nevertheless, the new evidence need not conclusively

exonerate the petitioner, and the Schlup standard may be met even where “some aspects of the

State’s evidence...still support an inference of guilt.” House, at 553-54. The court must consider

“all the evidence, old and new” and make “a probabilistic determination about what reasonable,

properly instructed jurors would do.” House, at 538 (internal quotations omitted). 

Bivens offers two new items of evidence to support his claim of actual innocence: the

Daniels affidavit, first submitted in support of his successive postconviction petition, and a

similar affidavit signed by Ray Greer, another escapee, on October 1, 2002. Bivens argues that

these affidavits are reliable because they are eyewitness accounts of the events leading to the

escape and because they are largely consistent with each other.9 Bivens also contends that the

affidavits are not controverted by any evidence in the available trial record and that the affidavits

support Bivens’s defenses of compulsion and necessity. Accordingly, Bivens argues, no

reasonable juror could fail to have a reasonable doubt as to Bivens’s guilt.

Respondent urges the court to reject Bivens’s actual innocence claim because: 1) the
10Because these grounds are sufficient to deny Bivens’s motion, the court expresses no

opinion on respondent’s second point.

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affidavits cannot be considered “reliable” evidence; 2) “factual” rather than “legal” innocence is

required to satisfy the Schlup standard; and 3) the available evidence suffices to show that

Bivens falls far short of the standard articulated in Schlup and House in any event. The court

agrees with respondent’s first and third points.10

The Daniels and Greer affidavits, standing alone, simply do not constitute reliable

evidence of Bivens’s actual innocence. Setting aside the fact that the affidavits were signed

roughly thirteen and eighteen years after the events in question, by individuals who, presumably,

had little to lose for acknowledging their involvement in a crime to which they had already pled

guilty, see United States v. Benavente Gomez, 921 F.2d 378, 383 (1st Cir. 1990) (“attempts by

one defendant to take full responsibility after trial and conviction are common and are viewed

with skepticism”), the affidavits have not been corroborated by any additional evidence that

might have surfaced after July of 2004, when the court granted Bivens leave to take additional

discovery. In that order, the court allowed Bivens to compel the production of: 1) investigatory

reports relating to the escape; 2) disciplinary and parole records concerning the other detainees

who participated in the escape; 3) the written confession of Raymond Greer; and 4) a taped

television interview of Raymond Greer. The order also granted Bivens leave to take the

depositions of Daniels, Greer, Hill, and Gary Ravitz, Bivens’s trial counsel, as well as to inspect

the State’s trial files. Despite this broad grant of additional discovery, Bivens has not come

forward with a single piece of evidence to corroborate the Daniels and Greer affidavits.

Moreover, even setting aside the inherent unreliability of the affidavits, the substance of

the Daniels affidavit conflicts in important respects with Bivens’s testimony at trial. The Daniels

affidavit states that Daniels himself “forced Aryules Bivens at gun-point to put on the uniform of

Officer Riley.” Yet, at trial, Bivens stated that although he saw Daniels with a gun at one point,
11See Exh. O to Respondent’s Amended Answer, at 10-11. 

12In Bivens’s brief in support of his direct appeal, Bivens acknowledged, “there was

testimony that at one point, Aryules Bivens was seen holding a pistol.” See Exh. B to

Respondent’s Amended Answer, at 5. In addition, the transcript of Alejandro Rubio’s testimony

is in the record (Rubio was the backseat passenger in the car Bivens and Hill used to escape),

and reflects that although Rubio did not see Bivens with a weapon, Bivens stated that he had a

gun. See Exh. Z to Respondent’s Amended Answer, at 202.

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the gun was trained on Officer Langdon. Bivens testified that Daniels then “passed the gun” to

Jerry Mahaffey, and that “the Mahaffeys had the two guns” while ordering Bivens to put on

Officer Riley’s uniform.11 Similarly, Bivens stated that after he had donned Riley’s uniform

and taken Riley’s personal belongings, Reginald Mahaffey returned to the area and pointed his

gun at Bivens. Bivens did not testify, nor does the available evidence suggest, that Daniels held

a gun to Bivens at any point. The Greer affidavit, for its part, is unspecific as to which of the

escapees actually threatened Bivens, stating merely that Bivens was not armed, and that he was

forced at gunpoint to participate in the escape. 

In sum, not only do the Daniels and Greer affidavits conspicuously lack the hallmarks of

reliability, the veracity (or, at least, the accuracy) of the Daniels affidavit is also suspect in light

of inconsistencies between the affidavit and Bivens’s trial testimony, while the Greer affidavit is

generally unpersuasive for its complete lack of detail. The affidavits alone simply cannot,

viewed in light of the whole of the evidence available, “demonstrate innocence so convincingly

that no reasonable jury could convict.” Hayes, 403 F.3d at 938. 

The jury heard the State’s evidence, which included testimony that Bivens was armed at

different points during the escape.12 The jury also heard Bivens testify that, sometime shortly

after leaving the armed Mahaffey brothers in a different area of the jail complex, he proceeded

past two security checkpoints accompanied only by Hill, who Bivens does not contend was

armed or threatened him at any point in the escape. The jury also heard Bivens testify that he

was forced to participate in the escape, and was instructed on the defense of compulsion. The
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jury concluded that Bivens was guilty. While the Daniels and Greer affidavits do lend some

support Bivens’s trial testimony, they are marginally reliable, questionably accurate, and overall

fail to persuade the court that no reasonable juror would have convicted Bivens in their light. 

Accordingly, Bivens has not made a showing of actual innocence sufficient to overcome

the procedural bar of his ineffective assistance of trial counsel claim. 

B. Bivens’s Remaining Substantive Claims

Bivens’s remaining claims for habeas relief can be disposed of without extended

discussion. In fact, Bivens does not even address any of the substantive arguments–save

one–that respondent raises in its amended answer. Nevertheless, for the sake of completeness,

the court will briefly address each asserted ground.

1. The State Postconviction Trial and Appellate Courts Improperly Relied on the

Doctrine of Waiver in Disposing of Petitioner’s Ineffective Assistance of Counsel Claims

Respondent argues that this claim presents no constitutional issue but merely challenges

the state appellate courts’ application of state rules of procedure and therefore is not cognizable

on federal habeas review. Bivens does not reply to this argument, perhaps because in the context

of his actual innocence claim, he concedes the basis on which the appellate court held the claim

to be waived: that Bivens did not raise it on direct appeal. In any event, respondent accurately

characterizes the first of two alternative bases for the appellate court’s holding, see People v.

Bivens, No. 1-96-0815, at 4 (Ill.App.Ct. April 3, 1998) (Rule 23 Order) (Exh. N to Resp. Am.

Ans.), and is correct as a matter of law. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116

L.Ed.2d 385 (1991) (“We have stated many times that ‘federal habeas corpus relief does not lie

for errors of state law.’”) (internal citations omitted). Bivens is not entitled to habeas relief

based on this claim. 
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2. Bivens Was Denied a Fair Trial Because the Trial Court Declined to Instruct the Jury

on the Defense of Necessity

Respondent asserts that this claim is procedurally defaulted because although Bivens

presented it in his opening brief on direct appeal, he did not present it in his PLA requesting

review of the appellate court’s decision rejecting the claim. See PLA, People v. Bivens No.

85873 (Exh. O to Resp. Am. Ans.); O’Sullivan v. Boerckel, 526 U.S. 838 at 845-846 (1999) 

(Illinois state prisoners must present claims to Illinois Supreme Court before filing federal

habeas claims). Respondent acknowledges that Bivens did raise the claim in the PLA he filed

seeking review of his second postconviction petition, see PLA, People v. Bivens No. 88413

(Exh. W to Resp. Am. Ans.), but asserts that that presentment is insufficient under Boerckel

because Bivens did not raise the claim in the second postconviction petition, raising it for the

first time on appeal.

This is the only substantive claim (other than ineffective assistance of trial counsel) that

Bivens addresses in his reply brief. Inexplicably, however, Bivens does not address respondent’s

argument that the claim is procedurally barred. Equally surprising is respondent’s failure to

assert what appears to be a more straightforward basis for barring Bivens’s claim: his failure to

present the claim in the state courts in constitutional terms. Regardless of whether Bivens’s

patchwork presentment “adds up,” so to speak, to “one complete round of the State’s established

appellate review process,” as required under Boerckel, 526 U.S. at 845 (likely it does not, but

respondent cites no federal cases on point, other than Boerckel itself, which does not speak to

this particular scenario), it is clear that Bivens failed to alert the state courts that his claim

contained a constitutional dimension, and that alone precludes federal habeas review.

Under AEDPA, state prisoners must exhaust state remedies before seeking federal habeas

relief. 28 U.S.C. § 2254(b). Inherent in the exhaustion requirement is the petitioner’s obligation

to provide the state courts a full and fair opportunity to review all of his or her federal claims,
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Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008). To determine whether a federal habeas

petitioner fairly presented a federal claim involving constitutional issues in the state courts, the

Seventh Circuit looks at four factors: “1) whether the petitioner relied on federal cases that 

engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a

constitutional analysis to similar facts; 3) whether the petitioner framed the claim in terms so

particular as to call to mind a specific constitutional right; and 4) whether the petitioner alleged a

pattern of facts that is well within the mainstream of constitutional litigation.” Ellsworth v.

Levenhagen 248 F.3d 634 (7th Cir.2001) (citing Sullivan v. Fairman, 731 F.2d 450, 454 (7th

Cir.1984) and Verdin v. O’Leary, 972 F.2d 1467, 1476 (7th Cir.1992). It is clear that Bivens did

none of these.

In his brief before the Illinois Appellate Court on direct appeal, Bivens framed his claim

as an error of state law and relied solely on state cases, citing People v. Unger, 66 Ill.2d 333, 362

N.E.2d 319 (Ill. 1977), People v. Kalpak, 10 Ill.2d 411, 140 N.E.2d 726 (Ill. 1957), People v.

Bratcher, 63 Ill.2d 534, 349 N.E.2d 31 (Ill. 1976), and a state statute, Ill. Rev. Stat., Ch. 38 §§ 3-

2, 7-11, and 7-13 (1984). Indeed, Bivens concluded his appeals argument with the statement:

“Unger controls the disposition of this case.” See Pet.’s App. Br., Exh. B to Resp. Am. Ans., at

16. All of the cases Bivens cited in his appellate brief were resolved on state law grounds, cite

only state cases, and do not engage in any constitutional analysis. Moreover, the appellate court

disposed of Bivens’s claim on state law grounds. The first and second factors clearly cut against

a finding that Bivens presented a constitutional claim. As to the third factor, although Bivens

now alleges that the putative instructional error denied him a fair trial (presumably intended to

invoke constitutional due process), he used no such language before the appellate court, and even

if he had, “vague or cursory references to ‘due process’” without more, are insufficient to alert a

state court to the federal nature of a claim. Verdin v. O’Leary, 972 F.2d 1467, 1475 (7th Cir.

1992). As to the final factor, claims of instructional error do not typically recite a “pattern of
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facts that is well within the mainstream of constitutional litigation,” id., at 1473-74, and Bivens’s

claim is no exception. 

In sum, to the extent Bivens’s claim of instructional error rests on state law, it does not

support habeas relief. To the extent this claim now purports to assert a constitutional violation

(Bivens does cite one Supreme Court case in his reply brief in this court), that claim is

procedurally defaulted. In either event, Bivens is not entitled to habeas relief based on this

claim.

 3. Bivens’s Successive Postconviction Petition Raised Sufficient Allegations to Merit an

Evidentiary Hearing

Respondent asserts that this claim does not present a constitutional issue but rather

alleges an error of state law. Bivens offers neither evidence nor argument to the contrary, and

the court concludes that he is not entitled to habeas relief based on this claim.

4. Bivens’s Postconviction Trial Counsel was Ineffective for Failing to Obtain Affidavits

and Other Necessary Documentation to Support the Claims Raised on State Postconviction

Review.

Respondent contends, inter alia, that this claim is statutorily precluded, citing 28 U.S.C.

§ 2254(i) : “The ineffectiveness or incompetence of counsel during Federal or State collateral

post-conviction proceedings shall not be a ground for relief in a proceeding arising under section

2254.” The cited provision appears, on its face, to bar the very claim Bivens asserts, and Bivens

offers nothing to support a contrary conclusion. He is not entitled to habeas relief based on this

claim.

III. CONCLUSION

For the foregoing reasons, Bivens’s petition for a writ of habeas corpus is denied. 

ENTER:

/s/
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JOAN B. GOTTSCHALL

United States District Judge

DATED: December 29, 2008