Petitioner also argues that counsel would not permit him to testify at trial despite his
desire to do so. Petitioner did not notify the court, however, that he wished to testify even when
the defense rested without having called him as a witness. Petitioner also fails to state how his
testimony would have changed the outcome of the case. Without establishing a basis for how his
testimony would have changed the result, Petitioner has failed to establish how counsel’s actions
were prejudicial.

Finally, we granted Petitioner leave to file additional habeas claims on July 19, 2002.
These additional claims were the same allegations of ineffective assistance of counsel as those
described above. We hold that there is no reasonable probability that, but for counsel’s alleged
errors, the results of Petitioner's trial would have been different. We hold that the Illinois
Appellate Court properly applied federal law in determining that Petitioner’s claims fail to
establish sufficient prejudice under the second prong of Strickland.

B. Fifth Amendment Right to Testify

Petitioner’s third claim in his habeas petition is that he was denied his Fifth Amendment
right to testify as a witness on his own behalf when trial counsel told him he could not testify. A
criminal defendant has a constitutional right to testify on his own behalf under the Fifth
Amendment’s Due Process Clause. Rock y. Arkansas, 483 U.S. 44, 49-53 (1987); Morgan v.
Krenke, 232 F.3d 562, 569 (7th Cir.2000). For purposes of state criminal proceedings, like this
one, the right to testify arises out of the Fourteenth Amendment’s Due Process Clause. U.S.
Const. Amend. XIV (“[nJo State shall... deprive any person of life, liberty, or property, without

due process of law.”). The right to take the stand on one’s own behalf is personal to the

13



Petitioner appealed the dismissal of his post-conviction petition to the Mlinois Appellate
Court, which determined that the Circuit Court had acted properly in dismissing his post-
conviction petition because he had {ailed to make a substantial showing that he was denied a
constitutional right at trial. People v. Thompson, 797 N.E.2d 245 (1st Dist. 2001). Petitioner
sought leave to appeal the dismissal of his post-conviction petition to the Illinois Supreme Court
making the same claims he had in his original post-conviction petition, but with the additional
claim that the trial court erred in not granting his motion for a reduction of first- to second-degree
murder based upon mitigating factors. The I!linois Supreme Court denied his petition on
February 6, 2002. People v. Thompson, 766 N.E.2d 244 (2002).

Petitioner filed this instant petition for a writ of habeas corpus on April 9, 2002, alleging
that: (1) he was denied his Sixth Amendment right to effective assistance of counsel as a result of
(a) counsel's failure {0 move to quash his arrest statements, (b) counsel’s failure to allow him to
testify, and (c) other errors; (2) the trial court erred in not granting his motion for reduction of his
first-degree murder conviction based on mitigating factors; (3) he was denied his Fifth
Amendment right to testify when counsel told him he could not testify; (4) the trial court abused
its discretion when it failed to grant him a reduction of his first-degree murder conviction; and
(5) he was denied ineffective assistance of counsel due to counsel’s failure to call key witnesses,
including his stepmother.

On July 19, 2002, this Court granted Petitioner leave to file an amendment to his habeas
pelition, in which he asscrts essentially the same allegations of ineffective assistance of counsel,

including: (1) counsel’s failure to interview or call as a witness his mother, Darlene Henderson;

(2) counsel’s failure to obtain psychological testing to evaluate Petitioner’s mental state; (3)



demonstrate that it is more likely than not that no reasonable jury would have convicted him in
the absence of the alleged defect in the state court proceedings. Schlup v. Delo, 513 U.S, 298,
327 (1995).

In this case, Petitioner fails to satisfy the miscarriage of justice requirement. The
evidence presented at trial established that Petitioner fatally shot his father and Rouse from close
range. Petitioncr confessed to the murders and told authorities where he had disposed of the gun.
Police recovered the gun from the location he specified. Petitioner also confessed the murders to
his aunt. ‘Ihe strong evidence supporting Petitioner’s guilt establishes that there has been no
miscarriage of justice. Accordingly, part of claim one and claims two and four are barred from
federal habeas review.

IL Merits of the Claims Properly Presented

Section 2254 governs the consideration of any claim adjudicated by a state court on its
merits, Under that statute, we may grant habeas relief only if the state court’s adjudication of the
claim “was contrary to, or involved an unreasonable application of, clearly established Federal
law as determined by the Supreme Court of the United States.” 28 U.S.C, § 2254(d)(1). Under
subsection (d)(2), habeas relief is possible if the state court adjudication “resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence presented”
in the state court.

In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court attempted to clarify the
applicable standard of review within the meaning of section 2254. The Court noted that the

statute does not explicitly prescribe a recognizable standard of review for applying either of the

statutory clauses, /d, at 385. Recognizing the need for further clarification and direction to



McGowan v. Miller, 109 F.3d 1168, 1172 (7th Cir. 1997) (quoting Duncan v. Henry, 513 U.S.
364, 365 (1995)).

A petitioner may exhaust his state court remedies “by either (a) providing the highest
court in the state a fair opportunity to consider the constitutional issue, or (b) having no further
available means for pursuing a review of one’s conviction in state court.” Wallace v. Duckworth,
778 F.2d 1215, 1219 (7th Cir. 1985). In this case, exhaustion is not an issue. Respondent
concedes that Petitioner has exhausted his state court remedies for purposes of federal habeas
review because he has no further avenues in state court through which to challenge his
convictions. We now turn lo the issue of procedural default.

Ty Procedural Default

The procedural default hurdle forbids federal courts from addressing claims that were not
fairly presented to the state court. Jones v. Washington, 15 F.3d 671, 675 (7th Cir.1994).
Procedural default occurs when the petitioner fails to present a claim to the state court at the
time, and in the way, required by the state. Hogan v. McBride, 74 F.3d 144, 146 (7th Cir.1996).
In Illinois, a habeas petitioner is required to raise all arguments before the Illinois Supreme
Court, even though that court has discretionary control over its docket. O'Sullivan v. Boerckel,
526 U.S. 838, 843 (1999). In order to preserve claims for federal habeas review, a petitioner
must provide the state courts “one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established appellate review process.” Jd. at 845. In

THinois, one complete round is finished once a petitioner has presented the habeas claims,

whether on direct appeal or on post-conviction appeal, at each stage of the appellate process, up



counsel’s statement that he could not afford a psychological evaluation, even though counsel

knew the Stale would pay for the test; and (4) counsel's failure to allow Petitioner to testify on

his own behalf to establish that he acted under extreme mental or emotional disturbance.
DISCUSSION

Federal courts may issue a wrii of habeas corpus if a petitioner demonstrates that he is “in
[state] custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a); Moffat v. Gilmore, 113 F.3d 698, 702 (7th Cir. 1997); see also Del Vecchio v.
Illinois Dept. of Corrections, 31 F.3d 1363, 1370 (7th Cir. 1994) (en banc) (“[F]edcral courts can
grant habeas relief only when there is a violation of federal statutory or constitutional law.”). The
federal courts may not grant habeas relief under Section 2254 unless the state court’s judgment
“(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).

Before a federal court may review the merits of a habeas petition, a petitioner must: (1)
exhaust all remedies available in state court; and (2) fairly present any federal claims in state
court first, or risk procedural default. See Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir.
2001) (“Failure to exhaust available state court remedies constitutes a procedural defaull.”); see
also Bocian v, Godinez, 10\ F.3d 465, 468 (7th Cir. 1996). “The habeas petitioner must present
his federal constitutional claims initially to the state courts in order to give the state ‘the

opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.”



A federal court may nonetheless address the merits of a procedurally defaulted claim if
the petitioner can establish cause and prejudice that would excuse it or, alternatively, establish
that he fits within the miscarriage of justice exception to the cause and prejudice rule. Coleman
v. Thompson, 501 U.S. 722, 750-51 (1991), Wainwright v. Sykes, 433 U.S. 72 (1977). Beginning
with the cause and prejudice standard, the Supreme Court has interpreted “cause” under (his test
to be something external to the petitioner which is both beyond his control and which cannot be
fairly attributed to him. Murray v. Carrier, 477 U.S. 478, 488 (1986). In order to establish
prejudice, the petitioner “must show not merely that the errors at . , . trial created a possibility of
prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire
trial with error of constitutional dimensions.” /d, at 494.

Petitioner has failed to establish cause and prejudice in these claims. He has failed to
show any cause for his failure to raise these issues on appeal to the Illinois Supreme Court, such
as interference by officials or the unavailability of the factual or legal basis of the claim.
Morcover, Petitioner has failed to cstablish prejudice because he has not shown that the alleged
errors infected the entire trial with constitutional error.

Although Petitioner has failed to establish cause and prejudice to excuse his procedural
default, he can still overcome this forfeiture by showing that he fits within the “miscarriage of
justice” exception. This exception is limited to those extraordinary cases in which a petitioner is
actually innocent of the crime for which he is imprisoned. Bell v, Plerson, 267 F.3d 544, 551
(7th Cir.2001). Therefore, it requires a colorable claim of actual innocence, as opposed to legal

innocence, coupled with an allegation of a constitutional claim. See Sawyer v. Whitley, 505 U.S.

333, 339-40 (1992). The miscarriage of justice exception applies only if the petitioner can



Minute Order Tarm (0047) * ‘

United States District Court, Northern District of Minois

Na f Assigned Judge Sittin, ye if
nor Magistrate Judge Wayne R. Andersen chan Assigned Judge
CASE NUMBER 2C 2601 DATE 6/17/2004
CASE U.S.A. ex rel Dennis Thompson, Jr. vs. Kenneth R. Briley
TITLE

[In the following box (a) indicate the party filing the mation, e.g., plaintiff. defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented,

MOTION:

DOCKET ENTRY:

qd) a] Filed motion of [ use listing in “Motion” box above.)

(2) Oo Brief in support of motion duc

(3) Oo Answer brief to motiondyue__, Reply to answer brief due__

(4) Oo Ruling/Hearing on setfor_ at.

(5) oO Status hearing(beld/continucd to] [set for/re-set for]on__—_setfor_ at

(6) qa Pretrial conference[held/continucd to] [set for/re-set for]on____setfor at
(7) oO Trial[set for/re-sct for]on__ ss al_

(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]

COFRCP4(¢m) OLocal Rule 41.1 OERCP41(a)(1) CFRCP41(a)(2)

(10) [Other docket entry] Enter MEMORANDUM, OPINION AND ORDER: For all of the foregoing
reasons, we deny [1-1] the Section 2254 petition for a writ of habeas corpus brought by Petitioner Dennis
Thompson, Jr.

(11) [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required,

umber of cigs
Notices mailed by judge's staff. ;
JUN 24 2004
Notified counsel by telephone, date docketes
U7 | Docketing to mail notices, XM
Mail AO 450 form, ¥, deputy initits

Lume. sun Sh

Copy to judgo/magistrate judge.

daze mailed notice

courtroom OL: j aan
TSA deputy’s Pahoe Lp iwi tue

Ase initials

Date/time geceived in

cent yOMRide ‘outing deputy ines
¢= eben /



the alleged deficiencies.” /d. Rather, “[i)f it is easier to dispose of an ineffective assistance of
counsel claim based on the ground of lack of sufficient prejudice, which . . . will often be so, that
course should be followed,” Jd.

In the first claim of his habeas petition, Petitioner asserts that he was denied his Sixth
Amendment right lo effective assistance of counsel as a result of his lawyer's failure to move the
trial court to quash and suppress his arrest statements. The Illinois Appellate Court held that the
decision to file a motion to quash or suppress is onc of trial strategy and is left to the trial
counsel’s discretion. People v. Thompson, 1-95-2040, at 5. The court noted that Petitioner’s
motion likely would have been denied by the trial court because Petitioncr’s incriminating arrest
statements were validly obtained (id. at 6), and the police had probable cause to arrest Petitioner
based on his staternent that he had been at his father’s home earlier that evening. Further, the
background questions asked by Officer Dodaro were found not to have violated his Miranda
rights. Jd. (citing People v, Dalton, 91 Ill,2d 22, 26 (1982). Citing the standards enunciated in
Strickland, the Illinois Appellate Court held that the defendant could not overcome the strong
presumption that counsel’s decision was within the “range of competence demanded of
attorneys in criminal cases.’” People v, Thompson, No. 1-95-2040, at 5-6 (quoting Strickland,
466 U.S. at 687).

Based on the foregoing analysis, this Court agrees with the Illinois Appellate Court’s
application of federal law. Counsel’s decision not to file a motion to suppress Petitioner’s arrest
statements was trial strategy subject to counsel’s discretion. Jd. Even if counsel had succeeded
in quashing Petitioner’s arrest statements, there still was overwhelming evidence of Petitioner’s

guilt and the results of the proceeding likely would not have been different. Petitioncr’s claim

1



lower courts, the Court concluded that the “[the statute] plainly sought to ensure a level of
deference to the determinations of state courts, as long as those decisions do not conflict with
federal law or apply federal law in an unreasonable way.” Id. at 376. Additionally, the Court
determined that, in passing the statute, “Congress wished to curb delays, to prevent retrials on
federal habeas petitions and to give effect to state convictions to the extent possible under the
law. When federal courts are able to fulfill these goals within the bounds of the law, [the statute]
instructs them to do so.” /d. Therefore, this Court is directed to apply a deferential review of
state court decisions unless it determines that the state court violated federal law.

A Ineffective Assistance of Counsel

Petitioner argues that he was denied his Sixth Amendment right to effective assistance of
counsel. The standard for reviewing a claim of ineffective assistance of counsel was set forth by
the Supreme Court in Strickland v. Washington, 466 U.S, 668 (1984). Strickland applies a two-
prong analysis for determining ineffectiveness of counsel: (1) showing that counsel’s
performance was deficient; and (2) showing that the deficient performance prejudiced the
defendant. Jd. at 678. In order to prevail on his claim of ineffectiveness under the first prong of
the Strickland test, Petitioner must show that his counsels performance fell below an objective
standard of reasonableness. Jd. In reviewing the challenged conduct, “a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. To satisfy the second prong of the Strickland test, Petitioner must show that
there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the
proceeding would have been different. Jd, This Court “need not determine whether counsel’s

performance was deficicnt before examining the prejudice suffered by the defendant as a result of

10



through and including the Illinois Supreme Court. See id. at 847-48; White v. Godinez, 192 F.3d
607, 608 (7th Cir.1999),

In this case, Petitioner has procedurally defaulted on three claims — his first, second and
fourth claims. As part of Petitioner’s first claim, he argues that his trial counsel was ineffective
for failing to object to Rouse’s dying declaration that Petitioner shot her as inadmissible hearsay
evidence, This issue was not presented to the Illinois Supreme Court after the Illinois Appellate
Court denied the claim on direct appeal. People v. Thompson, No. 1-95-2040, at 7. In addition,
Petitioner withdrew this claim from consideration in the post-conviction context. People v.
Thompson, No. 1-99-2686, al 4. Because Petitioner failed to raise this claim consistently through
one complete round of the state’s appellate review process, the claim is procedurally defaulted.

In his second claim, Petitioner argues the trial court erred in not granting his motion to
reduce his first-degree convictions to second degree based on the existence of mitigating
evidence. This claim also is procedurally defaulted because, while he raised it on direct appeal
to the Illinois Appellate Court, he failed to raise the issuc on appeal to the Illinois Supreme
Court.

Finally, in Petitioner’s fourth claim, he argues the trial court abused its discretion in not
granting the first- to second-degree reduction. While he raised this claim in his petition for post-
conviction relicf in the Circuit Court of Cook County and on appeal to the Illinois Appellate
Court, this claim is defaulted because he failed to raise it on appcal to the Illinois Supreme Court.
The Illinois courts were not afforded “one complete round” to resolve these issues. Therefore,

these claims are procedurally defaulted.



(a) failed to move to quash and suppress his arrest statements and (b) failed to object to
inadmissible hearsay evidence; and (3) the trial court erred in failing to reducc his conviction
from first- to second-degree murder due to the existence of mitigating factors. On July 21, 1997,
the Appellate Court affirmed his conviction and sentence. People v. Thompson, 713 N.E.2d 832
(Ist Dist. 1997).

On August 22, 1997, Petitioner filed for leave to appeal to the Illinois Supreme Court,
asserting that the Appellate Court erred in holding that: (1) Petitioner’s Miranda rights were not
violated when police questioned him before placing him under arrest; and (2) Petitioner’s Sixth
Amendment right to effective assistance of counsel was not violated when counsel failed to move
to quash and suppress his arrest statements. The Illinois Supreme Court denied the petition on
December 3, 1997. People v. Thompson, 689 N.E.2d 1145 (1997).

On May 21, 1998, Petitioner filed for post-conviction relief in the Circuit Court of Cook
County under 725 ILCS 5/122-1 (West 1998), asserting that: (1) his Miranda rights were violaled
when he was interrogated prior to being placed under arrest; (2) bis Filth Amendment right to
testify was violated when his attorney told him he could not testify; and (3) his Sixth Amendment
Tight to effective assistance of counsel was violated because his counsel (a) failed to move to
quash his arrest and failed to move to suppress his incriminating statements, (b) failed to allow
Petitioner to testify despite his desire to testify, (c) failed to object to inadmissible hearsay, (d)
failed to obtain a psychological evaluation, (e) failed to call witnesses at trial and at the
sentencing hearing who he knew existed and were willing to testify, and (f) forced Petitioner to

waive his right to a jury trial. The Circuit Court of Cook County granted the State’s motion to

dismiss the post-conviction petition on May 21, 1999 without an evidentiary hearing.



defendant, which means that it can only be waived by the defendant himself, and not by his

counsel. Jones v, Barnes, 463 U.S, 745, 751 (1983).

Federal courts have held, however, that a defendant’s silence at trial effectively waives
his right to testify on his own behalf. United States v. Edwards, 897 F.2d 445, 446 (9th Cir.
1990). When a defendant’s atlorney makes a tactical decision not to have his client testify and
the court was not alerted to the defendant's desire to testify, “[t]o hold that a defendant may abide
by his lawyct’s advice and not take the stand and then invalidate the trial because he so acted is
not fair to the government.” /d. (quoting United States v. Martinez, 883 ¥'.2d 750, 761 (9th Cir.
1989)).

In this case, Petitioner failed to notify the trial court of his desire to testify. As the Ilinois
Appellate Court held, Petitioner’s waiver of his right to testify is presumed because of his failure
to nolify the court. People v. Thompson, No. 1-99-2686, at 16. Equally important, Petitioner
fails to statc in his habeas petition how his testimony would have changed the outcome of the
case. ‘Therefore, we deny Petitioner’s request for habeas relief on this ground.

CONCLUSION

For all of the foregoing reasons, we deny the § 2254 petition for a writ of habeas corpus
brought by Petitioner Dennis Thompson, Jr.

It is so ordered.

bd. - (ie

Wayne R. Andersen
United States District Judge

Dated: Quan [14 2004

14


home in Dolton, llinois with a loaded gun and fatally shot his father in the head from behind and
at close range as the deceased was bent over and looking in the refrigerator. He then shot Rousc,
who survived long enough to call Dolton police and inform them that Petitioner had shot her and
Thompson, Sr. The trial evidence established that Petitioner was upset because his father had
beaten his stepmother on the previous night.

Once police learned that Rouse had identified Petitioner as the shooter, Officer William
Dodaro determined Petitioner’s identity and address. When he arrived at Petitioner’s home,
Officer Dodaro observed a man and a woman standing on the sidewalk. ‘The man matched the
suspect’s description, and Officer Dodaro asked if he was Dennis Paul Thompson, Jr. Petitioner
answered in the affirmative, and upon being asked if he had been at his father’s home earlier in
the evening, Petitioner responded “yes.” He was then arrested and given Miranda wamings, after
which he confessed to the shootings and told authorities where he disposed of the gun. The
police recovered the gun from the location Petitioner specified. Petitioner also told his aunt,
Patricia Posey, that he had killed his father. Although Petitioner was eligible for the death
penalty under 730 ILCS 5/5-8-1 (West 1998), the trial judge sentenced him to a term of natural
life imprisonment,

PROCEDURAL HISTORY

A detailed explanation of the procedural history is appropriate in light of Respondent’s
assertion that Petitioner is procedurally defaulted from raising several claims in his habeas
petition. On September 17, 1996, Petitioner appealed his convictions to the Illinois Appellate

Court, asserting that: (1) he had been denied his Fifth Amendment right to testify at trial; (2) he

had been denied his Sixth Amendment right to effective assistance of counsel because counsel



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

EASTERN DIVISION
JUN 2 4 2004
UNITED STATES OF AMERICA cx rel.
DENNIS THOMPSON JR.,
Petitioner
No. 02 C 2601
v. Judge Wayne R, Andersen

KENNETH R. BRILEY

wwe eee ve S

Respondent,

MEMORANDUM, OPINION AND ORDER

This casc is before the Court on the petition of Dennis Thompson, Jr, for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we deny the petition for habeas
corpus.

BACKGROUND

Petitioner Dennis Thompson, Jr. does not challenge the statement of facts set forth in the
order of the Illinois Appellate Court affirming his convictions for first-degree murder. People v.
Thompson, 713 N.E.2d 832 (1st Dist. 1997). For purposes of federal habeas review, “a
determination of a factual issue made by a State court shall be presumed to be correct,” 28
U.S.C. § 2254(e). Accordingly, we adopt the facts as our own,

In the Circuit Court of Cook County, Petitioner was convicted of two counts of first-
degree murder for the deaths of Dennis Thompson, Sr., Petitioner’s father, and Don Renee

Rouse, a female acquaintance of Thompson, Sr. Petitioner’s bench trial took place in May 1995.

The evidence presented at trial established that on March 26, 1994, Petitioner went to his father’s



that he was denied his right to effective assistance of counsel as a result of counsel’s failure to
move to quash and suppress his arrest statements fails both prongs of the Strickland test.

Petitioner also argues in his first claim that counsel was ineffective in other respects. He
argues that, had counsel presented testimony by a qualified mental health expert that he was
operating under extreme emotional distress, depriving him of the ability to present “competent
and mitigating evidence,” the outcome of the trial would have been different. This claim lacks
merit due to the overwhelming evidence presented against Petitioner at trial. Any testimony
offered by a mental health expert as to Petitioner’s emotional distress was unlikely to have
changed the outcome of the trial. Given that the trial judge was lenient in granting him life
imprisonment instead of death, it is also unlikely that expert testimony would have affected his
sentence.

Another argument made by Petitioner was that counsel deprived him of an opportunity at
sentencing to present mitigating evidence by failing to call several witnesses to testify, including
his mother. In the fifth claim in his habeas petition, Petitioncr makes the same argument that he
was denied his right to effective assistance of counsel due to counscl’s failure to call his
stepmother to testify at sentencing. These claims lack metit because the judge, who had already
heard testimony at trial of Thompson Sr.’s long history of physical and verbal abuse toward
Petitioner and other family members, granted Petitioner lenicncy by sentencing him to life
imprisonment instead of death. We agree with the finding of the Illinois Appellate Court:
“Defendant [has failed] to show how additional testimony would have affected his trial or his
sentencing hearing except for the conclusory claim that it would have constituted mitigating

evidence.” People v. Thompson, No. 1-99-2686, at 14.

12