In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-2166 

JOSEPH C. BOOKER, 

Petitioner-Appellant, 

v.

TYRONE BAKER, Warden, 

Respondent-Appellee. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 1:10-cv-03995 — Charles P. Kocoras, Judge. 

____________________ 

ARGUED APRIL 4, 2023 — DECIDED JULY 26, 2023 

____________________ 

Before EASTERBROOK, WOOD, and HAMILTON, Circuit 

Judges. 

WOOD, Circuit Judge. Joseph Booker was found guilty by 

an Illinois court of first-degree murder, for which he received 

a sentence of 55 years in prison. After unsuccessfully challenging his conviction on direct review, he tried a petition for 

postconviction relief. At the latter stage, he was represented 

by Illinois Assistant Appellate Defender Byron Reyna. Booker 

wanted Reyna to argue that his trial counsel was 
2 No. 21-2166 

constitutionally ineffective, but Reyna declined to do so. Not 

satisfied, Booker filed a pro se supplemental brief raising the 

ineffective assistance of trial counsel claim. The Illinois Appellate Court rejected Booker’s pro se brief because of the state’s 

rule against hybrid representation.

In the end, Booker failed to secure postconviction relief. 

His next step was to file a federal habeas corpus petition under 28 U.S.C. § 2254, in which he contended (among other 

things) that his trial counsel was ineffective. The district court 

declined to disturb the state court’s ruling because the claim 

was procedurally defaulted. Booker’s attempt to raise his 

Sixth Amendment argument in his pro se brief fell afoul of the 

state’s general rule against hybrid representation, and so the 

claim was never properly before the state courts. We affirm.

I 

In 2002 Booker was indicted for the murder of Charles 

Riles. Represented by attorney Robert Kuzas, Booker claimed 

innocence at trial, but the jury found him guilty of first-degree 

murder. The Illinois circuit court sentenced him to 55 years in 

prison, and the conviction and sentence were affirmed on direct appeal.

Booker then filed a pro se postconviction petition in state 

circuit court. Two of his arguments there are of concern to us: 

first, an actual-innocence claim; and second, an assertion that 

Kuzas provided constitutionally ineffective assistance of 

counsel at trial. The circuit court summarily dismissed this

petition, but the state appellate court reversed and remanded, 

reasoning that Booker’s actual-innocence claim potentially 

had merit. On remand, Booker (still proceeding pro se) reasserted his ineffective assistance of counsel claim.
No. 21-2166 3

Although Booker properly had raised the ineffectiveness

claim both in his initial petition and on remand, the circuit 

court mistakenly held on remand that Booker had “waived 

any allegations regarding incompetency of counsel.” But it 

then went on to state that “even if there wasn’t waiver, looking at the individual allegations and applying Strickland [v. 

Washington, 466 U.S. 668 (1984)] to [the] allegations of incompetency of counsel, defendant’s arguments fail[.]” Booker 

moved to reconsider the dismissal, but the court denied the 

motion on the merits because he failed to show either deficient performance or prejudice. The court then held an evidentiary hearing and dismissed Booker’s actual innocence 

claim. 

Booker appealed, this time represented by Illinois Assistant Appellate Defender Byron Reyna. Reyna informed 

Booker in a letter that Reyna intended to focus on only two 

issues: actual innocence and improper destruction of evidence. Booker pushed back hard, telling Reyna that he 

wanted to raise thirteen issues, including Kuzas’s ineffective 

assistance at trial. Booker explicitly stated, “I do not wish to 

waive any of my issues, I do not wish to have any of my issues 

procedurally defaulted and barred from federal review.” 

Reyna responded, “Even if I do not raise those claims on appeal, you may still be able to preserve them for federal review.” Reyna cited two unpublished decisions from the 

Northern District of Illinois, which held that a defendant’s attempt to file a pro se supplemental brief in Illinois courts sufficiently preserved an ineffective assistance claim for federal 

review. “[I]f the federal court declines to follow the abovecited cases and finds that your ineffective assistance claims 

are procedurally defaulted,” Reyna continued, “you could try 
4 No. 21-2166 

to use your actual innocence as a ‘gateway’ to overcoming forfeiture and raising ineffective assistance claims.” 

Booker could have discharged Reyna as counsel and proceeded pro se to raise his preferred claims. But emboldened by 

Reyna’s legal advice, he chose to try his luck instead. He sent 

Reyna a motion for leave to file a pro se supplemental brief, in 

which he argued (along with the rest of his numerous claims)

that Kuzas had been ineffective at trial. In the motion, Booker

acknowledged that “generally, Illinois courts do not allow hybrid representation.” As planned, Reyna first filed a brief on 

Booker’s behalfraising the actual innocence and improper destruction of evidence points. Reyna then forwarded Booker’s 

pro se motion and brief to the Illinois Appellate Court, as required by state court rules. The appellate court denied the motion for leave to file, explaining that it was doing so “because 

of representation by counsel.” It then affirmed the trial court’s 

judgment. 

To exhaust the state postconviction proceedings, Reyna 

filed a petition for leave to appeal with the Illinois Supreme 

Court. And Booker, intent on having his preferred claims 

heard somewhere, filed a pro se supplemental petition for 

leave to appeal; in it, he raised Kuzas’s ineffective assistance 

once more. Like the appellate court, the state supreme court

declined to accept the pro se filing because Booker already had 

“legal representation in this Court [and could not] personally 

file any documents in this case ... . [T]he Supreme Court has 

held that a defendant has no right to both self-representation 

and the assistance of counsel.” The court denied the petition

filed by Reyna.

Booker then filed a pro se petition in the federal district 

court for habeas corpus relief pursuant to 28 U.S.C. § 2254. In 
No. 21-2166 5

it, he asserted actual innocence and ineffective assistance of 

trial counsel (along with other claims). The district court held 

that the ineffective-assistance claim was procedurally defaulted, reasoning that Illinois courts did not violate any federal rule when they denied his attempt to raise the issue in a 

pro se supplemental brief. The court cited Clemons v. Pfister, 

845 F.3d 816 (7th Cir. 2017), where we held that Illinois’s rule

against hybrid representation is an adequate and independent procedural ground to bar federal review. The court also

held that Booker’s default could not be excused on actual innocence grounds. 

After Booker filed a notice of appeal, we appointed counsel to represent him, issued a certificate of appealability, and 

instructed the parties to address the ineffective assistance of 

trial counsel claim, first from the standpoint of procedural default and then on the merits. 

II

We begin with procedural default—a question that we review de novo. Lee v. Davis, 328 F.3d 896, 899 (7th Cir. 2003). If 

the district court correctly found that Booker has defaulted his 

ineffective-assistance argument, the appeal is over; if not, we 

would proceed to the merits.

A 

In Illinois, “a defendant does not have the right to both 

self-representation and the assistance of counsel[.]” People v. 

Barrow, 255 Ill. Dec. 410, 431 (2001) (citing People v. McDonald, 

168 Ill. Dec. 125, 131 (1995)). Based on this procedural rule

against hybrid representation, the Illinois courts here rejected 

Booker’s attempt to raise Kuzas’s alleged ineffective assistance at trial in Booker’s pro se supplemental brief. Only 
6 No. 21-2166 

Reyna, Booker’s lawyer, could represent Booker in the appellate court, and Reyna’s evaluation of the claim caused him to 

decide not to pursue it. Procedural default “can ... occur if the 

state court rejects a federal claim based on a state procedural 

rule ‘that is both independent of the federal question and adequate to support the judgment.’” Clemons, 845 F.3d at 819 

(quoting Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014)). 

Booker’s theory on appeal is that the rule against hybrid representation is not adequate to support the state court’s judgment because Illinois courts have not applied it consistently.

Adequate state rules can support procedural default if 

they are “firmly established and regularly followed.” Beard v. 

Kindler, 558 U.S. 53, 60 (2009) (quoting Lee v. Kemna, 534 U.S. 

362, 375 (2002)). In contrast, state procedural rules do not preclude federal review “when ‘discretion has been exercised to 

impose novel and unforeseeable requirements without fair or 

substantial support in prior state law.’” Walker v. Martin, 562 

U.S. 307, 320 (2011) (quoting 16B Charles Alan Wright, Arthur 

R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4026 (2d ed. 1996)). For example, procedural rules are 

not adequate if they are not applied in a “consistent and principled way,” Page v. Frank, 343 F.3d 901, 909 (7th Cir. 2003) 

(quoting Braun v. Powell, 227 F.3d 908, 912 (7th Cir. 2000)), or 

if they are applied in “unexpected[] or freakish[]” ways that 

discriminate against claims advancing federal rights, Prihoda 

v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir. 1990). 

Booker’s position that Illinois’s rule against hybrid representation falls on the “novel and unforeseeable” side of the 

line falls flat in light of our decision in Clemons v. Pfister, supra. 

There, the defendant attempted to raise an ineffective-assistance claim in a pro se reply brief in state postconviction 
No. 21-2166 7

proceedings. The Illinois courts, however, declined to accept 

the filing because he was represented by counsel. The federal 

district court then rejected the defendant’s habeas corpus petition because he had procedurally defaulted his claim. We affirmed, holding in no uncertain terms that “the state appellate 

court applied its general rule that hybrid representation is disfavored ... . That was an independent and adequate state 

ground of decision [that] precludes federal habeas review of 

Clemons’s Strickland claim.” Clemons, 845 F.3d at 820. Booker 

attempts to distinguish Clemons on the ground that we did not 

address whether Illinois courts apply the rule consistently. 

But our holding was not so narrow; our conclusion that the 

“general rule” was an adequate ground implies that it was 

consistently applied. See id.

In any case, we are not in the business of “[s]earching for 

‘regularity’ in the state’s employment of excuses and exceptions[, which] would embroil the federal court deeply in questions of state law and procedure.” See Prihoda, 910 F.2d at 

1384. Instead, Booker faced the daunting task of showing that 

Illinois courts have “regularly dis regarded [sic] [the procedural rule,] or [that it has] been manufactured for the occasion

... .” Id. He has not done so. 

Booker points to a few cases where Illinois courts exercised their discretion to allow some defendants to file pro se

briefs while represented. But a discretionary rule can nonetheless furnish an adequate ground and “ought not be disregarded automatically upon showing of seeming inconsistencies.” Walker, 562 U.S. at 320. “Discretion enables a court to 

home in on case-specific considerations and to avoid the 

harsh results that sometimes attend consistent application of 

an unyielding rule.” Id. (citing Prihoda, 910 F.2d at 1385). That 
8 No. 21-2166 

Illinois courts have not applied the rule in a “draconian” fashion does not mean that it is not “solidly established.” See Prihoda, 910 F.2d at 1384–85. 

Booker also cites cases involving two well-established exceptions to the general rule against hybrid representation: (1) 

capital cases where a “defendant’s life is at stake,” People v. 

Gacy, 125 Ill. Dec. 770, 776 (1988); and (2) post-trial claims of 

ineffective assistance of trial counsel, “which allow[] a criminal defendant acting pro se to bring his trial counsel’s ineffectiveness to the attention of the trial court either orally or in 

writing,” Crutchfield v. Dennison, 910 F.3d 968, 977 (7th Cir. 

2018) (citing People v. Ayres, 417 Ill. Dec. 580, 584 (2017)). Consistently applied exceptions, however, do not render the general rule “inadequate.” 

B 

Booker next argues that, even if his claim is procedurally 

defaulted, the default should be excused. We may excuse procedural default if a petitioner “can show ‘cause’ to excuse his 

failure to comply with the state procedural rule and ‘actual 

prejudice resulting from the alleged constitutional violation.’” Davila v. Davis, 582 U.S. 521, 528 (2017) (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977) and Coleman v. Thompson, 

501 U.S. 722, 750 (1991)). We need not decide whether Booker 

suffered actual prejudice because he failed to show cause to 

excuse his default.

“‘Cause’ is an objective factor external to the defense that 

impeded the presentation of the claim to the state courts.” 

Crutchfield, 910 F.3d at 973 (citing Davila, 582 U.S. at 528). “A 

factor is ‘external to the defense’ only if it ‘cannot fairly be attributed to’ the prisoner.” Id. (quoting Coleman, 501 U.S. at 
No. 21-2166 9

753). Booker contends that his first opportunity to argue ineffective assistance of trial counsel (i.e., Kuzas) was on appeal in 

state postconviction proceedings. Because Booker wanted to 

preserve that claim for federal habeas corpus review, he argues that Reyna should have told him that “his best option 

was to discharge appointed counsel and proceed pro se.” 

“It has long been the rule that attorney error is an objective 

external factor providing cause for excusing a procedural default only if that error amounted to a deprivation of the constitutional right to counsel.” Davila, 582 U.S. at 528. Here, 

Booker in substance is raising a claim of ineffective assistance 

of postconviction counsel (i.e., Reyna), which he would like to 

use as cause to excuse his procedural default.

Booker’s frustration with Reyna’s performance was warranted. Reyna relied on two unpublished district court opinions to advise Booker that “[he] may still be able to preserve 

[his claims] for federal review.” Reyna rendered that advice 

before we issued Clemons, and so, at a stretch, it was not obviously wrong. But he failed to explain that Booker’s chances of 

succeeding were exceedingly small. Had he added this point, 

Booker would have been able to make a fully informed decision. Nonetheless, we express no opinion on whether this 

would qualify as ineffective assistance under the Sixth 

Amendment because, even assuming Reyna erred, Booker 

had no constitutional right to postconviction counsel in the 

first place. “Because there is no Sixth Amendment right to 

counsel on collateral review, attorney error in postconviction 

proceedings is not cause to excuse a procedural default.” 

Crutchfield, 910 F.3d at 973 (citing Davila, 582 U.S. at 528). 

We recognize that the Supreme Court carved out a limited 

exception to this rule in Martinez v. Ryan, 566 U.S. 1 (2012), 
10 No. 21-2166 

which held that “where state law requires prisoners to raise 

Strickland claims on collateral review, a procedural default at 

that stage will not preclude a federal court from hearing the 

claim if ‘there was no counsel or counsel in that proceeding 

was ineffective.’” Crutchfield, 910 F.3d at 974 (citing Martinez, 

566 U.S. at 17). Later, “in Trevino v. Thaler[, 569 U.S. 413 

(2013)], the Court extended the Martinez exception to § 2254 

proceedings in states that do not forbid prisoners from presenting Strickland claims on direct review but ‘as a matter of 

procedural design and systemic operation, den[y] a meaningful opportunity to do so.’” Crutchfield, 910 F.3d at 974 (second 

alteration in original) (quoting Trevino, 569 U.S. at 429). 

Booker contends that the Martinez-Trevino exception applies here. He asserts that his first realistic opportunity to 

raise the ineffectiveness of his trial counsel was on state postconviction appeal; Reyna’s failure to advise him properly at 

that stage was thus a violation of his Sixth Amendment rights. 

But we held in Crutchfield v. Dennison that the Martinez-Trevino exception is not available in Illinois: 

[Illinois] permits Strickland claims on direct review, and 

the Illinois Supreme Court has neither directed criminal 

appellants to save all such claims for collateral review nor 

warned against raising them on direct appeal. Moreover, 

Illinois defendants may expand the record on direct appeal by raising a Strickland claim in a posttrial motion and 

developing the factual record at an evidentiary hearing.

Id. at 976. Crutchfield thus forecloses Booker’s attempt to rely 

on the Martinez-Trevino exception.

Even if the exception did apply in Illinois to some unusual 

and unforeseen circumstances, it would not be available here. 
No. 21-2166 11

Booker’s first practicable opportunity to raise the claim was 

not on postconviction appeal (when Reyna represented him). 

Rather, Booker properly alleged that his trial counsel was ineffective in his pro se postconviction petition in the circuit 

court. That court rejected the claim three times—first summarily, then on remand, and finally in a motion for reconsideration. Booker makes much of the fact that the circuit court 

incorrectly held (on remand) that he had waived the claim. 

True enough. But the court went on to state that “even if there 

wasn’t waiver, ... defendant’s arguments fail.” The court 

again addressed the merits of the claim when it denied 

Booker’s motion for reconsideration. Because Booker took advantage of his first opportunity to raise the claim in postconviction proceedings, Reyna’s alleged ineffective assistance 

would not have violated his Sixth Amendment rights.

* * * 

Ultimately, Booker must bear the consequences of his decision. Even if Reyna’s advice was not entirely accurate regarding his chances of success, Booker had proceeded pro se

in the past and knew that he could do so again. As we explained in Clemons, Booker

could dispense with his counseled briefs and represent 

himself to ensure that his preferred arguments were 

raised, or he could roll the dice and hope that the court 

would make an exception to the rule against hybrid 

representation and accept his pro se supplemental 

brief. There was nothing unusual or unfair about putting him to this choice.

See 845 F.3d at 820. 

We AFFIRM the district court’s judgment.