Lewis v. Sternes, 03-4013.

• Citation: 390 F.3d 1019
• Decision Date: 06 December 2004
• Docket Number: No. 03-4013.,03-4013.
• Parties: Peter LEWIS, Petitioner-Appellant, v. Jerry STERNES, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

390 F.3d 1019

Peter LEWIS, Petitioner-Appellant, v. Jerry STERNES, Respondent-Appellee.

No. 03-4013.

United States Court of Appeals, Seventh Circuit.

Argued May 18, 2004.

Decided December 6, 2004.

COPYRIGHT MATERIAL OMITTED

James P. Madigan (Argued), Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Chicago, IL, for Petitioner-Appellant.

Colleen M. Griffin (Argued), Office of the Attorney General, Linda Woloshin, Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appellee.

Before FLAUM, Chief Judge, and KANNE and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Peter Lewis filed a petition for a writ of habeas Corpus contending that his Illinois conviction for residential burglary should be vacated based on several alleged constitutional violations. The district court dismissed his petition, concluding that Lewis had procedurally defaulted each of his constitutional claims and that federal review of these claims was therefore barred. We agree and affirm.

I.

According to the State's evidence, Lewis burglarized the Hyde Park residence of three University of Chicago students in the early morning hours of November 18, 1995. Lewis fled after two of the apartment's inhabitants saw him and screamed. Armed with their description of the burglar, police apprehended Lewis approximately 30 minutes later. Lewis was taken back to the apartment, where both of the victims identified him as the burglar. That "show-up" identification apparently was based to some degree on the clothing that Lewis was wearing and a perceived match between Lewis's jeans and a stray button that was found in the burglarized apartment.

A jury subsequently convicted Lewis of residential burglary, and the trial judge ordered him to serve a prison term of 20 years. Lewis took an appeal to the Illinois Appellate Court, raising a single issue having to do with the trial court's handling of jury voir dire after one of the prospective jurors disclosed that she had expressed an opinion about the case to other members of the venire. R. 8 Exs. A-C. Finding no merit in that issue, the appellate court affirmed Lewis's conviction. People v. Lewis, No. 1-97-3014, Order, 301 Ill.App.3d 1087, 253 Ill.Dec. 890, 746 N.E.2d 338 (Ill.App.Ct. Dec. 10, 1998); R. 8 Ex. D. The Illinois Supreme Court denied his pro se petition for leave to appeal.

On September 29, 1999, Lewis filed a pro se petition for post-conviction relief, asserting principally that his counsel at trial and on direct appeal had been constitutionally ineffective in a variety of respects. R. 8 Ex. G. In addition, Lewis alleged that authorities in advance of trial had improperly destroyed the clothes he was wearing at the time of his arrest, depriving him of evidence that would have helped to establish his innocence. Id. at C14-15 ¶ 8. Among the claims of ineffectiveness were four claims that Lewis later would assert in his habeas petition: (a) his trial counsel failed to subpoena and examine the clothing that he wore at the time of his arrest, before that clothing was destroyed (id. at C13-14 ¶ 6); (b) counsel did not seek to exclude evidence of the victims' pre-trial identification of him as the burglar (id. at C12 ¶¶ 3, 4); (c) counsel failed to object to the destruction of his clothing (id. at C13-14 ¶ 6); and (d) counsel neglected to call certain exculpatory witnesses to testify on his behalf (id. at C11 ¶ 1, C12 ¶ 2, C14 ¶ 7). On November 12, 1999, the trial court summarily dismissed the petition as "frivolous and patently without merit." R. 8 Ex. H at A3. In its oral ruling, the court specifically addressed only one of the claims that Lewis had made in his petition. This was a claim that Lewis's trial counsel was ineffective for failing to call a Chicago police detective to testify that the victims had been unable to identify Lewis at the show-up some 30 minutes after the burglary took place. Lewis contended that a police report, which he had attached to his post-conviction petition, confirmed that the victims had been unable to identify him. The trial court disagreed:

He is just wrong. That is not what it states in this report at all. If I take what [Lewis] states [in his petition] as true, maybe it would be grounds for a hearing. [But][h]e has included in support of that something that contradicts this. And as I say, I recall the trial in any event. So the petition is meritless and will be dismissed.

R. 8 Ex. H at A3-4.

On November 16, 1999, four days after the trial court dismissed Lewis's original post-conviction petition and almost certainly before Lewis received notice of that ruling, Lewis (again pro se) submitted a motion to amend his post-conviction petition. R. 8 Ex. I. In that motion, Lewis sought leave to raise a number of new claims that he had not asserted in the original petition. Among these claims was the contention that Lewis's appellate counsel was ineffective for failing to contend on direct appeal that the jury selection process had deprived Lewis of his rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). R. 8 Ex. I at C34 ¶ 4(d). Because the motion to amend was filed after the trial court had already dismissed Lewis's original post-conviction petition, it was treated as a successive post-conviction petition, and consistent with that treatment we shall refer to it as such. The trial court summarily dismissed the successive petition on December 14, 1999. R. 8 Ex. J.

Lewis separately appealed the dismissals of both his original and successive post-conviction petitions. The appeals were not consolidated, and they proceeded on separate but parallel tracks through the Illinois Appellate Court. The Cook County Public Defender's Office was appointed to represent Lewis in both appeals.

In the first appeal (No. 1-99-4205), from the summary dismissal of Lewis's original post-conviction petition, Lewis, through his appointed counsel, pursued only one of the claims asserted in that petition. The appeal focused on the same claim that the trial court had remarked upon in dismissing the petition — the claim that Lewis's trial counsel had improperly failed to call a police officer to testify that the victims had been unable to identify him at the show-up. Lewis's counsel contended that because this claim presented the "gist" of a potentially meritorious constitutional argument, the trial court should have appointed counsel and conducted further proceedings rather than summarily dismissing this claim along with the others raised in the post-conviction petition. R. 8 Ex. K.

On March 22, 2001, the appellate court affirmed the dismissal of this claim. Like the trial court, the appellate court reasoned that the police report attached to Lewis's post-conviction petition undermined his allegation that the victims of the burglary had been unable to identify him at the show-up. Consequently, there was no reason to believe that the police detective who witnessed the show-up would have provided testimony that was helpful to Lewis. People v. Lewis, No. 1-99-4205, Order, 319 Ill.App.3d 1114, 274 Ill.Dec. 646, 791 N.E.2d 738 (Ill.App.Ct. Mar. 22, 2001); R. 8 Ex. M-1.

In the second appeal (No. 1-00-0128), from the summary dismissal of Lewis's successive post-conviction petition, the Cook County public defender sought the appellate court's leave to withdraw as Lewis's counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). R. 8 Ex. N. In the defender's view, Lewis had no meritorious argument to make in support of reversing the dismissal of his successive petition. Among other things, the defender noted that the Illinois post-conviction hearing act contemplated the filing of a single petition for relief by the petitioner. Id. at 3. Counsel also pointed out that if Lewis prevailed in the first appeal, from the dismissal of his original petition, he would be given the opportunity to amend that petition. Id. at 4.

Lewis filed a brief in opposition to his counsel's Finley motion. In that brief, Lewis listed a host of claims that, in his view, were meritorious and that he believed the appellate court ought to address. Among those claims were several that Lewis had set forth in his original post-conviction petition, including his claim that the prosecution had improperly destroyed exculpatory evidence (the clothing he was wearing at the time of his arrest) (R. 8 Ex. O at 21-24), and his claims of attorney ineffectiveness based on his trial counsel's failure to examine his clothing before it was destroyed and counsel's failure to contact (and call to testify) certain witnesses who allegedly would have given exculpatory testimony (id. at 1-5, 12-15, 16-20).

In an order issued on February 22, 2001, the Illinois Appellate Court granted the Cook County public defender leave to withdraw as Lewis's counsel and affirmed the dismissal of Lewis's successive petition. People v. Lewis, No. 1-00-0128, Order, 318 Ill.App.3d 1226, 273 Ill.Dec. 763, 789 N.E.2d 937 (Ill.App.Ct. Feb. 22, 2001); R. 8 Ex. M-2.

We have carefully reviewed the record in this case, the aforesaid brief [in support of the public defender's motion to withdraw], and defendant's response in compliance with the mandate of the Finley decision and find no issues of arguable merit. Therefore, the motion of the public defender for leave to withdraw as counsel is allowed.

The judgment of the Circuit Court of Cook County is affirmed.

Order at 2; R. 8 Ex. M-2 at 2.

Lewis subsequently obtained leave from the Illinois Supreme Court to file a late petition for leave to appeal. R. 8 Ex. Q. That petition, along with a subsequent motion to amend the petition, contained only the number of his first appeal. R. 8 Exs. R, S. However, those documents referred to the second appeal and the issues raised therein, and Lewis attached to the petition itself the orders issued by the appellate court in the second as well as the first appeal....