Franklin v. Gilmore

• Decision Date: 18 August 1999
• Docket Number: No. 98-2338,98-2338
• Citation: 188 F.3d 877
• Parties: (7th Cir. 1999) William Franklin, Petitioner-Appellant, v. Jerry D. Gilmore, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 877

188 F.3d 877 (7th Cir. 1999)

William Franklin, Petitioner-Appellant, v. Jerry D. Gilmore, Respondent-Appellee.

No. 98-2338

United States Court of Appeals, Seventh Circuit

Argued November 20, 1998

Decided August 18, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 C 5038--Milton I. Shadur, Judge. [Copyrighted Material Omitted] Before Bauer, Easterbrook, and Kanne, Circuit Judges.

Bauer, Circuit Judge.

An Illinois jury convicted William Franklin for the murder of Elgin Evans. That same jury found Franklin eligible for the death penalty and sentenced him to death after concluding that there were no mitigating factors sufficient to preclude a sentence of death. Franklin unsuccessfully challenged that conviction on appeal to the Illinois Supreme Court. He then filed a petition for collateral relief under the Illinois Post Conviction Hearing Act, 725 ILCS 5/122-1 et seq., which he also pursued at the trial court and the Illinois Supreme Court. After those efforts bore no fruit, Franklin turned to the federal district court for relief. The district court denied his petition for a writ of habeas corpus, and now Franklin is before us. We affirm the district court's decision to deny the writ.

I. Background

On February 6, 1980, the body of Elgin Evans, Jr. ("Evans" or the "victim") was discovered in the vicinity of the Ford Motor Company plant in Chicago Heights, Illinois. Evans had been shot once in the right side of his head and once in the left side of his chest. A pathologist testifying at Franklin's trial concluded that the cause of Evans' death was multiple gunshot wounds.

Mose Evans ("Mose"), the victim's grandfather, testified at trial that on the morning of February 6, 1980, he saw Evans enter a dirty grey or blue four-door automobile near the intersection of 16th and Hanover Streets in Chicago Heights. He also testified that on January 27, 1982, two police officers questioned him and showed him an array of photographs from which he identified Franklin as the driver of the car he saw his grandson enter on February 6. On cross-examination, Mose stated that he saw the front of the driver's face, but cautioned that it was for "[n]o more than a second." At a preliminary hearing, however, Mose stated that he saw only the side of the driver's face and the back of his head.

Ulric Williams testified that on the morning of February 6, 1980, he was at the home of Marion Holmes when Franklin drove up in a grey four-door Ford LTD. Franklin got out of the car and told Williams, who was working on Holmes' car, that Evans was in the front passenger seat of his car. Williams had never met Evans. Franklin then went into Holmes' house to speak with Holmes while Williams remained outside. Franklin and Holmes emerged from the house a few minutes later and told Williams that they all were going for a ride in Franklin's car. Williams drove Franklin's car, Holmes sat next to Williams, and Franklin sat in the backseat with Evans.

Holmes directed Williams to drive to an area near the Ford Motor Company plant in Chicago Heights. Holmes instructed Williams to stop the car and told him to stay in the car because "[w]e don't need you for this." Franklin and Holmes got out of the car and then asked Evans to give them a hand with some objects that were located in the trunk of the car. Williams believed that the three men were going to dispose of some stolen auto parts and that he was to act as a lookout.

While the three men were standing at the rear of the car, Williams looked into the rearview mirror and saw Franklin pull a small pistol from his jacket and shoot Evans in the head. Williams saw Franklin bend over Evans; Williams then heard another gunshot. Franklin and Holmes returned to the car and instructed Williams to drive away. Upon approaching the Calumet Sag Channel, Franklin told Williams to stop the car. Franklin wiped off the pistol and threw it into the channel. The three men then went to their respective homes.

In November 1981, Williams was taken into custody in Lake County, Indiana. While there, Williams learned that Holmes was in the same facility and that Holmes was planning to kill him. Williams then told the authorities about the Evans murder. Williams spoke with agents James Collier and Tom Pritchett of the Illinois Department of Law Enforcement five or six times between November 1981 and January 1982.

Williams agreed to plead guilty to an armed robbery charge, to testify truthfully against both Franklin and Holmes regarding the murder of Evans, and to testify against Holmes in another matter. In return, the state agreed to recommend a six-year sentence on the armed robbery charge and to arrange to have Williams' family relocated. After serving three years of imprisonment on the armed robbery sentence, Williams was paroled and relocated with his family.

Williams testified that the state made no promises of leniency with respect to Evans' murder. He testified that he was charged for that murder, but that after the preliminary hearing, the circuit court found that there was no probable cause to charge him. Williams also testified that he had three prior felony convictions.

Agent Collier testified that he and Agent Pritchett met with Williams on several occasions between November 1981 and January 1982. Agent Collier also testified that he conducted a photo lineup at Mose's home in January 1982, and that Mose identified Franklin as the driver of the car that his grandson entered on the morning of February 6, 1980.

Following the state's case-in-chief, Franklin rested without presenting any evidence. The jury found Franklin guilty of the murder of Evans. Following the conviction, the state requested a hearing to determine whether the death penalty should be imposed. At the sentencing hearing, the same jury found the existence of significant aggravating factors that made Franklin eligible for the death penalty. For example, the state showed that in December 1982, Franklin was convicted and sentenced to a term of 100 to 300 years of imprisonment for the 1976 murder of James Roland. Next, the state presented evidence that in 1965, Franklin pled guilty to the possession of a narcotic drug and was sentenced to three years of probation. Finally, the state presented evidence that, in 1965, Franklin pled guilty to a bank robbery and was sentenced to 15 years of imprisonment, but was released after serving only five years.

In mitigation, Franklin had seven of his children testify that they had completed high school, were employed, and that Franklin had been a positive role model in their lives. After considering all the evidence submitted as aggravating and mitigating factors, the jury found that there were no mitigating factors sufficient to preclude the imposition of the death penalty.

Franklin appealed his conviction and sentence directly to the Illinois Supreme Court, which affirmed both the conviction and the sentence. See People v. Franklin, 552 N.E.2d 743 (Ill. 1990) ("Franklin I"). Franklin's petition for rehearing was denied, as was his ensuing petition to the United States Supreme Court for a writ of certiorari. Franklin sought collateral relief under the Illinois Post Conviction Hearing Act, 725 ILCS 5/122-1 et seq., but the circuit court and the Illinois Supreme Court denied his request for relief. See People v. Franklin, 656 N.E.2d 750 (Ill. 1995) ("Franklin II"). The federal district court similarly denied his petition for a writ of habeas corpus, and now Franklin is before us. On appeal to this Court, Franklin argues that: (1) the district court improperly refused to adjudicate the merits of his due process claims on the grounds that they had been procedurally defaulted; (2) he was denied effective assistance of counsel in the state trial court proceedings; and (3) the state court trial judge inaccurately instructed the jury at sentencing, in violation of his Eighth and Fourteenth Amendment rights.

II. Discussion

A. Procedural Default

A petitioner may seek federal habeas corpus relief only if he has exhausted all available state court remedies and, in doing so, has fairly presented his constitutional claims to the state's courts. Momient-El v. DeTella, 118 F.3d 535, 538 (7th Cir. 1997). State law controls whether a claim is forfeited for the purposes of habeas relief. Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996). In other words, whether the petitioner has procedurally forfeited any of his habeas claims depends on whether he has failed to present a claim at the time and in the way required by state law. Id.

We will not review a question of federal law decided by a state court if that decision rests on state law grounds that are independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546 (1991). The independent and adequate state ground doctrine applies to "bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Id. at 729-30. That is because "[f]ederal habeas relief is available only when a petitioner has given the state courts a full and fair opportunity to review a claim, when there is cause and prejudice for the failure to raise the claim in state court, or when the default would lead to a fundamental miscarriage of justice." Patrasso v. Nelson, 121 F.3d 297, 301 (7th Cir. 1997) (internal citations and quotations omitted). State court decisions are not adequate to bar federal habeas review unless they rest upon firmly established and regularly followed state practice. James v. Kentucky, 466 U.S. 341, 348-51, 104 S. Ct. 1830 (1984). Additionally, the state rule at issue "must have been 'firmly established and regularly followed' by the time as of which it is to be applied." Ford v. Georgia, 498 U.S. 411, 424, 111 S. Ct. 850 (1991) (internal...