Boerckel v. O'Sullivan

• Decision Date: 20 March 1998
• Docket Number: No. 96-4068,96-4068
• Parties: Darren E. BOERCKEL, Petitioner-Appellant, v. William D. O'SULLIVAN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1194

135 F.3d 1194

Darren E. BOERCKEL, Petitioner-Appellant, v. William D. O'SULLIVAN, Respondent-Appellee.

No. 96-4068.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 20, 1997.

Decided Feb. 9, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied March 20, 1998.

David B. Mote (argued), Richard H. Parsons, Office of the Federal Public Defender, Springfield, IL, for Petitioner-Appellant.

Catherine Glenn (argued), Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appellee.

Before BAUER, FLAUM, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

This is a case about comity. Boerckel raises claims in his petition for habeas corpus that he raised in his direct appeal to the Appellate Court of Illinois but that he did not include in his petition for leave to appeal to the Illinois Supreme Court. The district court dismissed these claims as procedurally barred. Between the district court's order and oral argument, this Court revised its approach to this issue in Hogan v. McBride, 74 F.3d 144 (7th Cir.), modified on reh'g denied, 79 F.3d 578 (7th Cir.1996), and Gomez v. Acevedo, 106 F.3d 192 (7th Cir.), vacated on other grounds, --- U.S. ----, 118 S.Ct. 37, 139 L.Ed.2d 6 (1997). After considering this subsequent change in our view, we reverse and remand.

I. HISTORY

In 1976, law enforcement authorities in Montgomery County, Illinois questioned several young men about an incident of rape, burglary, and aggravated battery involving an 87-year-old woman. One of those young men was the petitioner, Darren Boerckel. At the time, Boerckel was a 17-year-old boy with an IQ of approximately 70 and a longstanding reading defect. See People v. Boerckel, 68 Ill.App.3d 103, 24 Ill.Dec. 674, 677, 385 N.E.2d 815, 821, 824 (1979).

After Boerckel received his Miranda warnings, the police questioned him for two hours. Promising to take him to see his girlfriend when they were finished, the police obtained a signed confession. One of the officers wrote the confession using the same or similar words to those of Boerckel because Boerckel indicated that he did not write very well. See id., 24 Ill.Dec. at 678, 385 N.E.2d at 819. Boerckel was subsequently charged with rape, burglary, and aggravated battery. See id. at 676, 385 N.E.2d at 817.

Before trial, Boerckel's attorney unsuccessfully attempted to suppress the confession. At trial, prosecutors presented the confession and the fact that Boerckel has the same blood type as the rapist as evidence. A jury convicted Boerckel on all three charges. See id. at 677, 385 N.Ed.2d at 818.

Boerckel appealed his conviction to the Appellate Court of Illinois. He argued that the trial court erred in denying his motion to suppress because the confession was fruit of an illegal arrest, he did not receive his Miranda warnings properly, and he confessed involuntarily. Boerckel also claimed that the court erred in admitting certain evidence, denying his motion for discovery, denying his motion for a directed verdict since there was insufficient evidence to sustain a conviction, and denying his motion for mistrial because of prosecutorial misconduct. That court affirmed the conviction in a split decision. See id. at 683, 385 N.E.2d at 824.

Boerckel then filed a petition for leave to appeal to the Illinois Supreme Court, raising only three issues. He questioned whether he was under arrest before he gave incriminating statements, whether prosecutorial misconduct denied him a fair trial, and whether he was improperly denied discovery. The petition was denied. The United States Supreme Court also denied his petition for certiorari. See Boerckel v. Illinois, 447 U.S. 911, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980).

On September 26, 1994, Boerckel filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Central District of Illinois. The court appointed counsel on January 31, 1995, and an amended petition was filed on March 15, 1995. The amended petition raised the following issues: 1) whether Boerckel knowingly and intelligently waived his Miranda rights; 2) whether his confession was involuntary; 3) whether the evidence against him was insufficient to support a guilty verdict; 4) whether his confession was the fruit of an illegal arrest; 5) whether he received ineffective assistance of both trial and appellate counsel; and 6) whether the prosecution violated his right of discovery under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The district court entered an order on November 15, 1995 dismissing the fourth ground of the petition on the merits as barred by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). The court also held that Boerckel procedurally defaulted on the fifth ground since it was never raised on direct appeal to any state court but that the sixth ground was properly presented and should be addressed on the merits. Finally, the court determined that Boerckel had procedurally defaulted on the first, second, and third grounds under Nutall v. Greer, 764 F.2d 462 (7th Cir.1985), because these grounds were not included in the petition for leave to appeal to the Illinois Supreme Court. These grounds were procedurally barred because the time period in which Boerckel could have raised them to the Illinois Supreme Court had passed.

After these initial rulings, the court requested additional briefing. Specifically, the district court asked Boerckel to address the issue of cause for or prejudice from his procedural defaults on the first, second, third, and fifth grounds. The court also directed the State to respond to the merits of Boerckel's petition, which it had not done in its initial response. Boerckel did not articulate any cause for his procedural defaults. Instead, he argued that the court may hear his claims under the actual innocence or fundamental miscarriage of justice exception to the rule of procedural default.

On July 24, 1996, the court set the matter for hearing. At the hearing, Boerckel presented witnesses who testified that, in the years since his conviction, two men have made statements that they committed the rape for which Boerckel was convicted.

On October 28, 1996, the district court found that the recent amendments to 28 U.S.C. § 2254 prohibited an evidentiary hearing ¹ and that the court must ignore the evidence presented at the trial. The court added, however, that even if it believed the witnesses, it would only establish that others were present, not that Boerckel was not present. The district court further found that Boerckel had procedurally defaulted on his first, second, third, and fifth grounds for habeas corpus relief and that he failed to show cause for the default.

Boerckel appealed to this Court.

II. ANALYSIS

The sole issue in this appeal is whether, by failing to raise claims in his petition for leave to appeal to the Illinois Supreme Court, Boerckel procedurally defaulted on his claims that 1) he did not knowingly and intelligently waive his Miranda rights, 2) his confession was involuntary, and 3) the evidence against him was insufficient to support a guilty verdict.

A.

Before a federal court may address the merits of a § 2254 habeas petition, a petitioner must provide the state courts with a full and fair opportunity to review his claims. See Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971); Farrell v. Lane, 939 F.2d 409, 410 (7th Cir.1991). In particular, a petitioner must exhaust his state remedies, see 28 U.S.C. § 2254(b), (c), and avoid procedurally defaulting his claims during the state court proceedings, see United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir.1990). The doctrines of exhaustion and procedural default both "involve situations in which a failure to present a claim in the state courts bars the granting of federal habeas corpus relief in the federal courts." See James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 23.1 n.9 (1988 & supp.1993). The doctrines, however, are distinct and have different ramifications.

1.

The exhaustion doctrine is an ordering device. In Ex Parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), the Supreme Court held that federal courts should not, for reasons of comity and deference to state courts, entertain a claim in a habeas corpus petition until after the state courts have had an opportunity to hear the matter. See id. at 252-53, 6 S.Ct. at 741. Subsequently incorporated into the habeas statute, the doctrine states that individuals in state government custody may bring a habeas corpus petition only if they have exhausted the remedies available in state court or "there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights" of that individual. 28 U.S.C. § 2254(b). "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).

Read narrowly, this language appears to prevent federal courts from concluding that a petitioner has exhausted his remedies if there exists any possibility of further state court review. The Supreme Court has expressly rejected this interpretation. See Brown v. Allen, 344 U.S. 443, 447, 448-49 n. 3, 73 S.Ct. 397, 403 n. 3, 97 L.Ed. 469 (1953) (holding that the exhaustion doctrine does not require habeas petitioners to seek state collateral relief based upon the same evidence and issues once the state courts have already ruled on the claim on direct review). Instead, federal court review is delayed until the state has had a chance to correct any errors in its law or procedures. See, e.g., Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408-09, 30 L.Ed.2d 418 (1971...