1

 Unless rebutted by clear and convincing evidence, findings of fact made by the state

courts in this case are presumed to be correct. See Foster v. Schomig, 223 F.3d 626, 631 (7th

Cir.2000).

-1-

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DARNELL PALACIO )

)

Petitioner, )

) No. 02-cv-7225

v. )

) HONORABLE DAVID H. COAR

 WARDEN JERRY L. STERNES )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

Before this Court is the 28 U.S.C. §2254 petition for habeas relief filed by Darnell Palacio

(“Palacio” or “Petitioner”). For the reasons stated below, this petition is DENIED. All other

motions are MOOT and TERMINATED. This case is CLOSED.

Background1

On November 4, 1981, following a bench trial, Palacio was convicted of two counts of

first degree murder and aggravated battery. He was sentenced to life imprisonment. With the aid

of counsel, he filed an appeal in the Illinois Appellate Court. In his appeal, he argued that he was

denied a right to a speedy trial. On August 1, 1983, the Illinois Appellate Court affirmed the trial

court’s decision. Palacio did not file a petition for leave to appeal in the Illinois Supreme Court.

Sometime in December 1991, Palacio filed a petition for post-conviction relief. He

alleged that his trial counsel was ineffective for failing to fully investigate his claims of duress
2

 On June 30, 2000, this Court dismissed the habeas petition that Palacio had

prematurely filed on June 8, 1999. 

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and emotional instability. The State filed a motion to dismiss on the grounds that the petition

was untimely. The trial court granted the State’s motion to dismiss. Palacio appealed. His

appointed appellate counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481

U.S. 551 (1987). On August 15, 1996, the Illinois Appellate Court denied the motion to

withdraw. The State then confessed error, and the Illinois Appellate Court remanded the case to

the circuit court for further consideration.

On November 12, 1998, Palacio filed an amended petition for post-conviction relief. In

that petition, he claimed he received ineffective assistance of counsel. He claimed his trial

counsel failed to call witnesses to refute the state’s expert witness testimony on his sanity at the

time of the crime, failed to see that the report offered by the expert did not meet the requirements

of the law, and failed to see that the report did not give a diagnosis or a prognosis as to how the

expert came to his opinion. The appointed counsel in that case filed a certificate pursuant to

Illinois Supreme Court rule 651(c) and informed the trial court that she would stand on the pro se

petition.2

The trial court denied Palacio’s petition, and he appealed to the Illinois Appellate Court. 

The state appellate defender filed a motion to withdraw as counsel pursuant to Finley, 481 U.S.

551. Palacio filed a response opposing the withdrawal. In that response, he outlined how his

trial counsel had been ineffective and added that his appellate counsel on direct appeal was also

ineffective. On December 3, 2001, the Illinois Appellate Court granted the motion of appellate

counsel for leave to withdraw and affirmed the dismissal order of the Circuit Court of Cook
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County. Palacio then filed a petition for leave to appeal in the Illinois Supreme Court, claiming

that his trial counsel was ineffective for failing to conduct an adequate investigation and failing

to call key witnesses to establish an insanity defense. The Illinois Supreme Court denied leave to

appeal on April 3, 2002. 

In addition to that petition, Palacio had filed a motion for relief from judgment on

December 4, 2000. In that motion, he alleged that his sentence was unconstitutional under

Apprendi v. New Jersey, 530 U.S. 466 (2000), because the trial court had based his life sentence

on a finding that his crime was brutal and heinous. The trial court treated the motion as a

successive post-conviction petition and denied it on December 19, 2000. Palacio filed an appeal. 

The state appellate defender filed a motion to withdraw pursuant to Finley, 481 U.S. 551. 

Palacio was advised that he could respond to the motion; he opted not to do so. On June 17,

2002, the appellate court granted the Finley motion. Palacio did not file a petition for leave to

appeal to the Illinois Supreme Court. 

On May 28, 2002, Palacio filed a third post-conviction petition in Cook County Circuit

Court. That petition raised the same issues that had been previously raised. On October 3, 2002,

Palacio filed the petition for habeas corpus that is currently before this Court. 

Standard of Review

Federal courts may not grant a writ of habeas corpus to a prisoner held under a state court

judgment unless custody of the prisoner violates the Constitution, laws, or treaties of the United

States. 28 U.S.C. § 2254(a); Mahaffey v. Schomig, 294 F.3d 907, 914 (7th Cir.2002). Moreover,

before a federal court will grant a habeas petition, the petitioner must both exhaust state remedies

and comply with state rules regarding procedural default. Mahaffey, 294 F.3d at 914-915. 
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Petitioners exhaust all of their state court remedies when: (1) they present them to the highest

court of the state; or (2) no state remedies remain available to the petitioner at the time that the

petition is filed. See Farrell v. Lane, 939 F.2d 409, 410 (7th Cir.1991).

Procedural default occurs either when (1) a petitioner fails to raise an issue on direct

appeal or post-conviction review, see Farrell, 939 F.2d at 410; or (2) the state court clearly relies

on a state procedural bar as an independent basis for its denial of relief. See Caldwell v.

Mississippi, 472 U.S. 320, 327 (1985). In order to avoid procedural default, a petitioner must

fairly present the claim “at each and every level in the state court system...” See Lewis v. Sternes,

390 F.3d 1019, 1025 (7th Cir.2004) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 844-845

(1999)). As the Seventh Circuit has noted, “A habeas petitioner who has exhausted his state

court remedies without properly asserting his federal claim at each level of state court review has

procedurally defaulted that claim.” Lewis, 390 F.3d at 1026 (internal citations omitted)

(emphasis added).

If a petitioner has procedurally defaulted a claim, this Court can only grant relief if (1)

there is adequate cause for his failure to raise the claim in state court and prejudice resulting from

the default or (2) default would result in a “fundamental miscarriage of justice.” See Coleman v.

Thompson, 501 U.S. 722, 750 (1991).

Even where a federal court reaches the merits of a petitioner's claim, relief is only

warranted in certain circumstances. To prevail, a habeas corpus petitioner must show that

adjudication of the case resulted in a decision that was:(1) contrary to, or (2) an unreasonable

application of clearly established federal law as determined by the United States Supreme Court;

or, (3) based on an unreasonable interpretation of the facts in light of the evidence presented in
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the state-court proceedings. 28 U.S.C. § 2254(d). The first ground pertains to pure questions of

law. See Lindh v. Murphy, 96 F.3d 856, 868-69 (7th Cir.1996), rev'd on other grounds, 521 U.S.

320 (1997). The second ground pertains to mixed questions of law and fact. Id. at 870. To

warrant relief, the state-court error must be “grave enough to be called ‘unreasonable.’” Id. A

state-court conclusion will stand if it is “one of several equally plausible outcomes.” Hall v.

Washington, 106 F.3d 742, 749 (7th Cir.1997). A state court's application of Supreme Court

precedent is reasonable if it is “at least minimally consistent with the facts and circumstances of

the case.” Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir.1997). Finally, the third ground

contemplates relief only where the facts are, by “clear and convincing evidence,” demonstrably

wrong. See 28 U.S.C. § 2254(e)(1). State court factual determinations are presumed to be

correct, although a petitioner may rebut that presumption with clear and convincing evidence. 

Mahaffey, 294 F.3d at 915; 28 U.S.C. §2254(e)(1).

Analysis

Palacio raises three claims in his habeas petition. First, he claims his trial counsel was

ineffective. Second, he claims that his appellate counsel on direct appeal was ineffective. Third,

he argues that his sentence is unconstitutional, pursuant to Apprendi, 530 U.S. 466. Both sides

agree that Palacio has satisfied the exhaustion requirement with respect to all three claims.

Ineffective Assistance of Trial Counsel

Respondent claims that Palacio procedurally defaulted his ineffective assistance of trial

counsel claim because he did not raise it before the appellate court. Respondent’s

characterization is inaccurate. Palacio did brief the issue of ineffective assistance of trial counsel

in his response to his post-conviction appellate counsel’s Finley motion. In the Finley motion,
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his post-conviction appellate counsel noted that Palacio argued in his pro se post-conviction

petition that he had been denied effective assistance of trial counsel. That argument

notwithstanding, counsel stated that “there are no viable issues raised in the instant petition.” 

Palacio responded to the Finley motion by filing a brief that explained how his appellate

counsel was ineffective for failing to raise the issue of ineffectiveness of trial counsel. Palacio

explained exactly how his trial counsel had been ineffective and cited precedent that he felt

supported his position. He also argued that at the very least he was entitled to hearing on the

issue of whether trial counsel’s acts contributed to his alleged inability to understand his rights as

communicated to him by the trial court. 

Although Palacio was inartful in his pleading–he incorrectly captioned his argument as

dealing with appellate counsel when in fact almost all of his submission dealt with the

ineffectiveness of trial counsel–he did fairly present his claim of ineffective assistance of trial

counsel. Palacio’s discussion of trial counsel’s failings, complete with citation to precedent, is

sufficient to satisfy the fair presentment requirement. See Wilkinson v. Cowan (suggesting that

presenting an issue in a brief responding to a Finley petition is sufficient to satisfy presentment

requirement when issue has already been presented in post-conviction petition). Palacio later

raised the ineffective assistance of trial counsel argument before the Illinois Supreme Court.

As noted earlier, however, a failure to present a claim to the state’s courts is not the only

way that a petitioner can procedurally default. Procedural default also occurs if the state courts

reject a petitioner’s claim based on an independent and adequate state procedural ground. See,

e.g., Coleman v. Thompson, 501 U.S. 722, 729 (1991); Harris v. Reed, 489 U.S. 255, 263-64

(1989)(determining that if a state court decision rests on a state procedural ground that is
-7-

adequate to support the judgment and independent of the federal question, a federal court may

not review any questions of federal law); Lee v. Davis, 328 F.3d 896, 899-900 (7th Cir. 2003). 

The Illinois Appellate Court determined that Palacio’s “unsupported conclusory allegation

regarding trial counsel’s representation did not warrant an evidentiary hearing” in line with People

v. Jackson, 572 N.E.2d 475 (1991). In Jackson, the Illinois Appellate Court noted that it was the

petitioner’s burden to support allegations of constitutional violations with affidavits, records, or other

evidence containing specific facts. Petitioners who failed to do so, the appellate court concluded,

were not entitled to a post-conviction hearing under the Illinois Post-Conviction Hearing Act, 725

ILCS 5/112-2. See Jackson, 572 N.E.2d at 479 (citations omitted). The Jackson Court then

concluded that “[i]n the absence of affidavits supporting the somewhat conclusory allegations

contained in defendant’s amended petition for post-conviction relief, we cannot say that the trial

court abused its discretion in determining that the petition should be dismissed without an

evidentiary hearing.” Id. 

Palacio, like the litigant in Jackson, failed to provide supporting evidence such that he

satisfied the requirements of the Illinois Post-Conviction Hearing Act. The Illinois Appellate Court

noted the failure when it concluded that his unsupported conclusory allegations did not warrant a

hearing under Jackson. In doing so, the appellate court relied on an independent and adequate state

ground–the failure to go beyond conclusory statements and provide supporting evidence.

Accordingly, Palacio has procedurally defaulted this claim. See McGee v. Leibach, No. 02-C1661,

2003 WL 22089734, at *4 (N.D.Ill. Sept. 5, 2003)(finding petitioner had procedurally defaulted

claim when 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
-8-

provide supporting evidence.”); McIntyre v. Barnett, no. 98-C5061, 2000 WL 875733, at *3 (N.D.Ill.

June 27, 2000)(same). 

Given the procedural default, this Court may only grant habeas relief if it determines that

Palacio has 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. See Coleman v.

Thompson, 501 U.S. 722, 750 (1991). Construing his filings liberally, this Court concludes that

Palacio believes the fact that his trial counsel was ineffective should provide cause. Palacio relies

on Edwards v. Carpenter, 529 U.S. 446 (2000), a case where the Supreme Court held that an

ineffective assistance of counsel claim asserted as a cause for the procedural default of another claim

could be procedurally defaulted. The key problem with Palacio’s reliance on Edwards is that his

case is factually quite different. By the time Palacio filed his post-conviction petition and defaulted

on the ineffective assistance of counsel claim, his trial counsel was no longer involved in the case.

It was Palacio who opted to file the post-conviction petition without adding any supporting evidence.

Consequently Palacio, and not trial counsel, is responsible for the procedural default. The fact that

trial counsel may have been ineffective does not provide cause for the procedural default that

occurred after trial counsel was no longer involved in the case. See Barnett, 2000 WL 875733 at *3.

In order to show a miscarriage of justice will occur if a procedural default is not excused,

Palacio must show that “a constitutional violation has probably resulted in the conviction of one who

is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1980). Thus, Palacio must show “that

it is more likely than not that no reasonable juror would have convicted him.” Rodriguez v. Scillia,

193 F.3d 913, 917 (citing Schlup v. Delo, 513 U.S. 298, 329 (1995)). Palacio has not argued that

the violation probably resulted in the conviction of one who is actually innocent nor has he offered
-9-

adequate support for the proposition that he is actually innocent. Therefore, his procedural default

cannot be excused.

Ineffective Assistance of Appellate Counsel

Next, Palacio claims that he was denied effective assistance of appellate counsel on direct

appeal. With respect to this claim, the state is correct in arguing that Palacio did not fairly present

it to each level of the state court system. In order to avoid procedural default, petitioners are

required to bring their claims at every level of the state court system, including initially raising the

claim in the post-conviction petition. See Lewis, 390 F.3d at 1025. The first time Palacio mentioned

that his counsel on direct appeal had been ineffective was in his response to the appellate defender’s

Finley motion to withdraw from representation. The argument was not presented to the state trial

court as it had not been presented in Palacio’s post-conviction petition. In Lewis, the Seventh Circuit

rejected the notion that the notion that a petitioner fairly presents his federal claim to the state courts

when he raises that claim for the first time in an appellate brief after his lawyer has filed a motion

to withdraw under Finley. See Lewis, 390 F.3d at 1031. 

Palacio does not argue that he had cause for the default of his ineffective assistance of

appellate counsel claim. He also does not argue that a fundamental miscarriage of justice will result

if the claim is not considered. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). His procedural

default cannot be excused.

Apprendi Violation

Palacio’s final claim is that his sentence is unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000). This claim has been procedurally defaulted, as Petitioner did not file

a petition for leave to appeal before the Illinois Supreme Court and therefore did not raise it before
3

 Even if Petitioner had not procedurally defaulted this claim, it is clearly without merit. 

The Seventh Circuit has held that Apprendi “does not disturb sentences that became final before

January 26, 2000, the date of its release.” Curtis v. United States, 294 F.3d 841, 844 (7th Cir.

2002). Palacio's direct appeal was final on August 1, 1983, long before the January 26, 2000 cutoff date. Since Apprendi does not apply retroactively, Palacio’s Apprendi claim cannot be

considered here. See Garrott v. United States, 238 F.3d 903, 906 (7th Cir.2001); Talbott v.

Indiana, 226 F.3d 866, 868-69 (7th Cir.2000). Furthermore, aside from the time-bar, it is

unclear how Apprendi would even apply in this case given that the trial court had discretion

under state statute to sentence Palacio to life imprisonment for the crimes of which he was

convicted. See, e.g., U.S. v. Hernandez, 330 F.3d 964, 980 (7th Cir. 2003)(“The Apprendi

decision makes clear that its application does not extend to situations where a defendant's

sentence does not exceed a prescribed statutory maximum.)(citations omitted). The state trial

court reviewing Palacio’s Apprendi argument determined that his sentence was predicated on

the fact that he had been convicted beyond a reasonable doubt of a double homicide. Under

the aggravating factors set for in 720 ILCS 5/9-1(a)(b), the trial court had the discretion to

impose a natural life sentence for the double homicide. Palacio’s sentence, then, did not

exceed a prescribed statutory maximum.

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the Illinois Supreme Court. The Supreme Court was presented with a similar situation in O'Sullivan

v. Boerckel, 526 U.S. 838, 848-849 (U.S. 1999). In that case, the petitioner’s habeas petition raised

three issues that had not been included in his petition for leave to appeal to the Illinois Supreme

Court. The Supreme Court held that a prisoner who fails to present his claims in a petition for

discretionary review to a state court of last resort has not properly presented his claims to the state

courts and therefore has procedurally defaulted those claims. Palacio offers no cause for the default.

He also fails to show that a fundamental miscarriage of justice will result if the claim is not

considered. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).3 His procedural default cannot

be excused.
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Conclusion

For the foregoing reasons, Palacio’s petition is DENIED. All pending motions are MOOT

and TERMINATED. This case is CLOSED.

Enter:

/s/ David H. Coar 

David H. Coar

United States District Judge

Dated: March 31, 2006