application of Supreme Court precedent “must have been more than incorrect or erroneous.”
See Wiggins v. Smith, --- U.S. ---, 123 S.Ct. 2527, 2535, --- L.Ed.2d --- (2003) (citations
omitted). The state court’s application is unreasonable if the court’s decision was “objectively”
unreasonable, Jd. See also Lockyer v, Andrade, --- U.S. ---, 123 S.Ct. 1166, 1174, 155 L.Ed.2d
144 (2003). In order to be considered unreasonable under this standard, a state court’s decision
must lie “well outside the boundaries of permissible differences of opinion.” See Hardaway v.
Young, 302 F.3d 757, 762 (7 Cir. 2002); see also Schultz v. Page, 313 F.3d 1010, 1015 (7" Cir,
2002) (reasonable state court decision must be minimally consistent with facts and circumstances
of the case).

Federal habeas courts presume that the state court’s findings of fact are correct unless the
habeas petitioner rebuts that presumption with clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1) Collier v. Davis, 301 F.3d 843, 848 (7 Cir. 2002). Petitioner does not challenge
the statement of facts set forth in the Illinois Appellate Court’s opinions on both direct and post-
conviction appeal, thus the Court presumes the facts are correct and adopts the appellate court’s
factual findings.

Construing his pro se amended habeas petition liberally, see Anderson v. Hardman, 241
F.3d 544, 545-46 (7" Cir. 2001), Petitioner asserts the following claims: (1) he was denied his
Sixth Amendment right to counsel when his trial counsel failed to interview and call Vivian
Clifton and Jackie Stanley as witnesses at trial; (2) he was denied effective assistance of trial
counsel who failed to move to suppress Petitioner’s statement; and (3) he was denied effective

assistance of appellate counsel on direct appeal when counsel failed to raise the claim of


1167 (7" Cir. 2002). The Seventh Circuit has noted that “{iJt is not necessary, however, that
appellate counsel raise every non-frivolous issue under the sun.” Id. (citations and quotations
omitted). See also Howard v.. Gramley, 225 F.3d 784, 791 (7" Cir.2000) (“[A]ppellate lawyers
are clearly not incompetent when they refuse to follow a ‘kitchen sink’ approach to the issues on
appeals”), Furthermore, “a petitioner demonstrates the requisite prejudice only when appellate
counsel fails to raise an issue that may have resulted in a reversal of the conviction, or an order
for a new trial.” Jd. (citations and quotations omitted).

Petitioner and the public defender handling his appeal corresponded regarding the issue
of ineffective assistance of trial counsel. The public defender informed Petitioner that “I have
received your letter dated October 11 in which you say that you want to raise ineffective
assistance of counsel and excessive sentence. As for ineffective assistance, I do not see any basis
in the record for making the argument. If you are aware of facts which do not appear in the
record and which support your contention, they can be raised in a post-conviction petition. I
have read the record and do not see any other trial issues.” (R. 12-1, Ex. E, p.4). Petitioner has
failed to contradict the public defender’s strategic position. It is clear from the record that the
public defender read the record and determined that an ineffective assistance of trial counsel
claim did not have merit. Petitioner has not shown that his claim was “obvious” to the public
defender. He further has not demonstrated that this issue may have resulted in a reversal of his

conviction, or an order for a new trial. Accordingly, his claim fails on the merits.


law if state court decision rests on a state procedural ground that is independent of the federal
question and adequate to support the judgment); Lee v. Davis, 328 F.3d 896, 899-900 (7" Cir.
2003) (same). Under Illinois law, waiver is an independent and adequate state court ground.
Wright v. Walls, 288 F.3d 937, 947 (7 Cir. 2002).

Under Illinois law, a defendant must raise claims of ineffective assistance of counsel on
direct appeal where the evidence needed to resolve those claims is present in the record. People
y. Ivy, 313 Ill App.3d 1011, 246 Ill.Dec. 603, 730 N.E.2d 628, 635 (Ill. App. Ct. 2000). Further,
a petitioner waives issues on post conviction review that he could have raised on direct appeal,
but failed to do so. People v. Mack, 167 Ill.2d 525, 531, 658 N.E.2d 437, 440 (Ill. 1995).
Because Petitioner failed to raise his ineffective assistance of trial counsel claims on direct
appeal, the Illinois post conviction court concluded that the ineffective assistance of counsel
issues were “barred from consideration under the doctrine of waiver.” Given that the Illinois
appellate court relied on the independent and adequate state court ground of waiver, Petitioner’s
ineffective assistance of trial counsel claims are procedurally barred.

B Failure to Move to Suppress Statement

Petitioner also bases his ineffective assistance of trial counsel claim on the ground that
trial counsel neglected to move to suppress Petitioner’s statement. Petitioner, however, did not
raise this argument in any of his prior appeals. He did not provide the state courts with a fair
opportunity to address the claim, thus he cannot raise it for the first time here. See O'Sullivan,
526 U.S. at 844-45, 119 S.Ct. at 1732; see also Kurzawa v. Jordan, 146 F.3d 435, 441 (7" Cir.
2002) (“If a petitioner fails to raise an issue in state court proceedings, he cannot raise it for the

first time in a federal habeas corpus petition.”).


ineffective assistance of trial counsel. Respondent admits that Petitioner has exhausted his state
court remedies on these claims.
ANALYSIS

I. Ineffective Assistance of Trial Counsel

Petitioner raises two ineffective assistance of trial counsel claims. He contends that his
trial counsel was ineffective for failing to call certain witnesses at trial and for failing to move to
suppress Petitioner’s statement to the police.

A. Failure to Call Certain Witnesses At Trial

Petitioner contends that he was denied effective assistance of trial counsel when his
counsel failed to call Vivian Clifton and Jackie Stanley as witnesses at trial. Petitioner argues
that Clifton and Stanley would have corroborated his self-defense theory. The State argues that
Petitioner has procedurally defaulted both of these ineffective assistance claims because the
Appellate Court addressing Petitioner’s post-conviction petitioner concluded that he waived
them.

A petitioner’s failure to present a constitutional claim to the highest state court to which
he may appeal it in the manner required by state law results in a procedural default preventing a
federal court from deciding the claim on collateral review. See O'Sullivan v. Boerckel, 526 U.S.
838, 845, 119 S.Ct. 1728, 1732, 114 L.Ed.2d 67 (1999) (petitioner must give state court full and
fair opportunity to resolve federal constitutional claims before federal habeas court can review
them). Procedural default also occurs where the state court rejects a petitioner’s claim based on
an independent and adequate state procedural ground. See Harris v. Reed, 489 U.S. 255, 263,

109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) (federal courts cannot review questions of federal



appellate counsel also failed to state the gist of a cognizable claim warranting the relief
requested.” (R-12-1, Ex. H, p.3).

The Illinois Post-Conviction Hearing Act provides that a petition for post-conviction
relief “shall have attached thereto affidavits, records, or other evidence supporting its allegations
or shall state why the same are not attached.” 725 ILCS 5/122-2. Further, a petitioner’s
substantial showing of a constitutional violation “must be based on factual allegations, not
conclusory statements.” People v. Jackson, 213 Ill.App.3d 806, 811, 572 N.E.2d 475, 479 (Ill.
App. Ct. 1991). Here, Petitioner failed to provide supporting evidence and factual allegations as
Tequired by the Act. Instead, he only made conclusory allegations as determined by the appellate
court. The appellate court based its denial of Petitioner’s post-conviction petition on an
independent and adequate state ground — failure to go beyond mere conclusory statements and to
provide supporting evidence. Accordingly, Petitioner has procedurally defaulted this claim. See
McIntyre v. Barnett, No. 98 C 5061, 2000 WL 875733, at *3 (N.D.IIl. June 27, 2000).

As with his first claim, Petitioner has not demonstrated that he had cause for the default
and suffered prejudice as a result, or that a fundamental miscarriage of justice will result if the
claim is not considered. Accordingly, habeas relief is not proper. See Coleman, 501 U.S. at 750,
111 S.Ct. at 2564-65.

Even if the Court examined the merits of Petitioner’s claim, it still fails. In order to
succeed on a claim of ineffective assistance of counsel, a petitioner must prove both deficient
performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052
(1984). “Appellate counsel's performance is deficient if counsel fails to appeal an issue that is

both obvious and clearly stronger than one that was raised.” Winters v. Miller, 274 F.3d 1161,



‘Minute Onder Form (06/97)
4

Oe

United States District Court, Northern District of Mlinois

aengr Magrate Judge Amy J. St. Bve “than signed Sudge

CASE NUMBER 02 C 1661 DATE 9/4/2003
CASE Columbus McGee vs. Blair J. Leibach
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:

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

(2) im Brief in support of motion due

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

(4) a Ruling/Hearingon_—_ssetfor_ at

(5) Q 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

(a) ia Trial{set for/re-set for] on at

(8) a) [Bench/Jury trial] [Hearing] held/continuedto__—__—at

(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
COFRCP4(m) ClLocal Rule 41.1 OFRCP41(a)(1) CO FRCP41(a)(2).

(1o.) = [Other docket entry] Enter Memorandum Opinion and Order. Petitioner's petition for writ

of habeas corpus is denied.

(ayer

(11) ag [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.

a | Docketing to mail notices.

a | Mail AO 450 form.

gyno sorwisia’s

Copy to judge/magistrate judge. yy Waid
iy quem azsh Wd he das 60
yuty’s
initials Pree oi
central Clerk’



CONCLUSION
For all the foregoing reasons, the Court denies Petitioner’s petition for a writ of habeas
corpus,

Dated: September 4, 2003 ENTERED

Mt

AMY J, ST. (VE

10



C. Petitioner Has Failed to Demonstrate Prejudice

Because Petitioner procedurally defaulted on his ineffective assistance of counsel claims,
the Court can only grant habeas relief if he demonstrates that he had cause for the default and
suffered prejudice as a result, or that a fundamental miscarriage of justice will result if the claim
is not considered. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564-65, 115
L.Ed.2d 640 (1991). To show that a miscarriage of justice will occur if a procedural default is
not excused requires proof that “a constitutional violation has probably resulted in the conviction
of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649,
91 L.Ed.2d 397 (1980). Petitioner has not established cause for the default or that he suffered
prejudice as a result. Further, Petitioner has not shown that a failure to grant him relief would
result in a fundamental miscarriage of justice. Therefore, habeas relief is denied as to these
procedurally defaulted claims.
Il. Ineffective Assistance of Appellate Counsel

Petitioner also argues that he was denied his Sixth Amendment right to appellate counsel
on direct appeal when counsel failed to raise the claim of ineffective assistance of trial counsel.
The State contends that Petitioner procedurally defaulted this claim because Petitioner failed to
comply with the Illinois Post-Conviction Hearing Act when he presented this issue.

The state court found that Petitioner had not succeeded in proving that his appellate
counsel’s decision not to raise the issue of ineffective assistance of trial counsel was patently
erroneous. The circuit court noted that Petitioner had not provided any supporting evidence for

his claim. The appellate court noted that Petitioner’s “assertions of ineffective assistance of


and a state witness were gang members; (3) he was denied effective assistance of direct appeal
counsel for his failure to argue ineffective assistance of trial counsel; and (4) “newly discovered
evidence” warranted reconsideration of his first degree murder conviction. On April 4, 2001, the
Illinois Supreme Court denied leave to appeal.

On February 20, 2002, Petitioner sought a writ of habeas corpus in the Southern District
of Illinois. On February 25, 2001, Judge Reagan transferred the case to the Northern District of
Illinois and the case was assigned to Judge Bucklo. On August 30, 2002, the case was reassigned
to this Court.

LEGAL STANDARD

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a habeas
petitioner is not entitled to a writ of habeas corpus unless the challenged state court decision is
either “contrary to” or “an unreasonable application of” clearly established federal law as
determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1); Williams v. Taylor,
529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L-Ed.2d 389 (2000). A state court’s decision is
“contrary to” clearly established Supreme Court law “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 ours.” See id. at 405, 120 §.Ct. at 1519. See also Price v. Vincent,
--- US. ---, 123 §.Ct. 1848, 1853, 155 L.Ed.2d 877 (2003).

With respect to the “unreasonable application” prong under Section 2254(d)(1), a habeas
petitioner must demonstrate that although the state court identified the correct legal rule, it

unreasonably applied the controlling law to the facts of the case. See id. at 407. A state court’s


One June 26, 1999, Petitioner filed a pro se petition for post-conviction relief. In that
petition, he raised the following issues: (1) he was denied effective assistance of trial counsel
because counsel (a) failed to interview and call Vivian Clifton and Jackie Stanley as witnesses at
trial, (b) failed to investigate the prior criminal history of the two victims, and (c) failed to raise a
claim of self-defense and request a jury instruction on self-defense; (2) the State failed to disclose
that the victims and a state witness were gang members; (3) he was denied effective assistance of
direct appeal counsel for failing to argue ineffective assistance of trial counsel; and (4) “newly
discovered evidence” warranted an evidentiary hearing. On September 24, 1999, the Circuit
Court of Cook County dismissed Petitioner’s petition for post-conviction relief. (R-12-1, Ex. E).

Petitioner then appealed to the Illinois Appellate Court, First Judicial District.
Petitioner’s counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551,
107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), on the ground that no issues of arguable merit could be
raised, and Petitioner filed a pro se response. On July 19, 2000, the Appellate Court affirmed the
dismissal of the post-conviction petition, holding that Petitioner’s claims of ineffective assistance
of trial counsel were barred by waiver and that Petitioner’s claim of ineffective assistance of
appellate counsel did not state the “gist” of a constitutional claim. (R-12-1, Ex. H)

On December 5, 2000, Petitioner sought leave to file a late petition for leave to appeal
with the Illinois Supreme Court. The court allowed the motion on January 26, 2001. (R-12-1,
Ex. J). In his appeal, Petitioner argued that (1) he was denied effective assistance of trial counsel
for (a) failure to call Vivian Clifton and Jackie Stanley as witnesses at trial, (b) failure to
investigate the criminal history of the victims, and (c) failure to raise a claim of self-defense and

request a jury instruction on self-defense; (2) the prosecution failed to disclose that the victims


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

EASTERN DIVISION
COLUMBUS MCGEE, )
) DOCKETED
Petitioner, ) SEP - 5 2003
v. ) No. 02 C 1661
)
BLAIR J. LEIBACH, Warden of )
Danville Correctional Center, )
)
Respondent. )

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Judge:

Petitioner Columbus McGee filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. For the following reasons, McGee’s petition is denied.
PROCEDURAL BACKGROUND

Petitioner was convicted of first degree murder in the Circuit Court of Cook County
following a bench trial. On January 13, 1998, the circuit court sentenced Petitioner to 55 years
imprisonment. Petitioner thereafter appealed his conviction and sentence to the Illinois
Appellate Court, First Judicial District. Petitioner raised one issue in that appeal. Namely,
Petitioner argued that the trial court improperly relied on an element of the offense as an
aggravating factor when sentencing Petitioner to 55 years in the Illinois Department of
Corrections. The Appellate Court affirmed Petitioner’s conviction and sentence. (R-12-1, Ex.

C). Petitioner did not file a leave to appeal with the Illinois Supreme Court.