589 F.3d 368 (7th Cir. 2009), 08-1234, Woods v. Schwartz

Docket Nº:08-1234.
Citation:589 F.3d 368
Opinion Judge:MANION, Circuit Judge.
Party Name:Forrest WOODS, Petitioner-Appellant, v. Gregory SCHWARTZ, Warden, Respondent-Appellee.
Attorney:Elizabeth C. Scott (argued), Winston & Strawn LLP, Chicago, IL, for Petitioner-Appellant. Michael M. Glick, Attorney, Eric M. Levin (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.
Judge Panel:Before POSNER, MANION, and TINDER, Circuit Judges.
Case Date:December 09, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 368

589 F.3d 368 (7th Cir. 2009)

Forrest WOODS, Petitioner-Appellant,

v.

Gregory SCHWARTZ, Warden, Respondent-Appellee.

No. 08-1234.

United States Court of Appeals, Seventh Circuit.

December 9, 2009

Argued Sept. 24, 2009.

Page 369

[Copyrighted Material Omitted]

Page 370

Elizabeth C. Scott (argued), Winston & Strawn LLP, Chicago, IL, for Petitioner-Appellant.

Michael M. Glick, Attorney, Eric M. Levin (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before POSNER, MANION, and TINDER, Circuit Judges.

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MANION, Circuit Judge.

Forrest Woods was convicted in Illinois state court of murdering Omar Wilson and sentenced to forty years' imprisonment. After unsuccessfully appealing his sentence, he filed three state-court petitions for post-conviction relief. All were denied. He then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied his petition, holding that all but one issue was procedurally barred and denying relief on the single preserved issue. On appeal, Woods challenges the denial of his petition. We affirm.

I.

On the night of July 10, 1995, Kenya Wilson walked out of a bedroom in her Hazel Crest, Illinois home and saw her brother Omar at the bottom of the stairs being restrained from behind by an unknown man, later identified as Forrest Woods. Over a span of three minutes, Omar alternated between calling for his brother Terrell Wilson and telling Kenya to go back to her bedroom. Then, without a word, Woods shot Omar in the back of the head.

At this, Kenya ran into a bathroom and shut the door. Woods chased after her and tried to gain entry but fled when Terrell came out of his room to investigate the gunshot. It was at this point that Terrell got a brief look at Woods. The police were then called, and Omar was pronounced dead at the scene.

Neither Kenya nor Terrell knew the shooter. Both described him as a black man with a light complexion, round face, and a husky or stocky build. Kenya initially estimated that he was between eighteen and twenty years old, stood between 5'7" and 5'8", and weighed 165 pounds. At the time of his arrest, Woods was seventeen, stood 5'10" and weighed approximately 225 pounds.

To identify the shooter, the police initially presented Kenya with over a thousand photos, but she did not recognize him in the initial batch. Over a week later, Officer Raymond Huggins of the Chicago Housing Authority was at the scene of a domestic disturbance. A suspect there volunteered the following nugget of information: " Did you hear about the shooting in Hazel Crest? Boy named Foo-Foo did it." Huggins was familiar with Foo-Foo: he had previously arrested Forrest Woods using that alias.

Huggins then relayed the tip to Officer Gary Gentzle, who was investigating Omar's murder, and gave Gentzle a photo of Woods. That photo was shown to Kenya, along with seven other photos; she immediately identified Woods as the shooter. The next day both she and Terrell identified Woods in a lineup. The state charged Woods with first-degree murder; he pleaded not guilty and proceeded to trial.

At the one-day bench trial, Kenya and Terrell testified to the events on the night of Omar's murder, and both again identified Woods as the shooter. The prosecution also called Officer Gentzle and Omar's mother to testify. The defense did not call any witnesses. Woods was found guilty of murdering Omar Wilson and later sentenced to forty years' imprisonment. He then filed a direct appeal challenging his sentence but not his conviction. The Illinois Appellate Court affirmed Woods' sentence, and the Illinois Supreme Court denied him leave to appeal.

Woods then filed the first of three post-conviction petitions in Illinois state court. The first petition raised three issues. Pertinent here was Woods' claim that his trial counsel rendered constitutionally ineffective assistance by failing to call his brother,

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Harold Woods, as an alibi witness. Attached to the petition was an affidavit from Harold prepared four years after the shooting, stating, " I don't recall [Woods] leaving the house anytime that night." The trial court dismissed the petition, concluding the claims should have been presented on direct appeal and were thus waived. The appellate court, however, held that Woods' claim of ineffective assistance of counsel was not waived and addressed it on the merits under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It found that Harold's affidavit was inconclusive, and based on the eyewitness testimony at trial, it concluded that had Harold testified it " would not likely have changed the outcome of the trial" and denied the petition. The Illinois Supreme Court denied Woods' petition for leave to appeal.

Woods then filed a second petition for post-conviction relief, claiming that his trial counsel was ineffective for failing to call his mother and brother-in-law as alibi witnesses. Attached to the petition were their affidavits attesting to Woods' presence at home on the night of the murder. The trial court dismissed the petition, and the appellate court affirmed, holding that the claim and the affidavits should have been submitted in Woods' initial post-conviction petition and were thus waived. It also held that Woods could not establish cause and prejudice to escape the procedural bar of waiver. The Illinois Supreme Court again denied Woods' petition for leave to appeal.

Undeterred, Woods filed a third petition for post-conviction relief. In it, he raised three claims with twelve distinct sub-claims. The trial court dismissed the petition as " frivolous and patently without merit." On appeal, Woods' appointed counsel filed a motion to withdraw under Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). In the motion, counsel recited the procedural history of Woods' case and stated

Woods has shown no objective factor why he could not have raised these claims in his original post-conviction petition, and therefore he may not seek relief in a successive petition.

With the exception of Finley, the motion did not cite any federal law. Woods then filed two objections restating the bases for the claims in his third petition; however, he did not address the procedural bar of waiver that his counsel had cited. But he did note, without anything more, that the failure to entertain his petition would result in a miscarriage of justice. The appellate court granted the motion to withdraw and affirmed the trial court's dismissal of the petition. In their respective orders, neither the trial court nor the appellate court cited or discussed federal law. And for the fourth time, the Illinois Supreme Court denied Woods' petition for leave to appeal.

Woods then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Northern District of Illinois. In his petition, he raised seventeen claims. The district court found that Woods had procedurally defaulted all but one of those claims and that he could not escape the procedural bar under any of the applicable exceptions. Concerning the merits of his preserved claim of ineffective assistance of counsel for failing to call Harold Woods to testify, the district court found that in denying that claim the Illinois Appellate Court did not unreasonably apply Strickland's standard for ineffective assistance of counsel and denied Woods' petition.

Woods then moved for a certificate of appealability, which the district court denied. This court, however, granted him one on the following issues: whether

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Woods' trial counsel was ineffective for failing to challenge Kenya Wilson's ability to view the crime; whether Woods' appellate counsel was ineffective for raising only a forfeited issue; and whether Woods' trial counsel was ineffective for failing to identify and call alibi witnesses. This appeal followed.

II.

A.

The first two claims Woods raises on appeal are that his appellate counsel was ineffective for raising only a forfeited issue and that his trial counsel was ineffective for failing to challenge Kenya Wilson's ability to view the crime. The district court found that both claims were procedurally defaulted and we review that determination de novo. Smith v. Gaetz, 565 F.3d 346, 352 (7th Cir.2009).

Before seeking habeas relief, a petitioner must fairly present his federal claims at each level of the state's courts for their review. 28 U.S.C. § 2254(b)(1)(A); Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). The natural corollary of this requirement is that when a petitioner has exhausted his state court remedies and failed to properly assert his federal claims at each level of review those claims are procedurally defaulted. Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir.2004). And when a state court resolves a federal claim by resting its decision on a state law ground independent of the federal question and adequate to support the judgment, we will not review the question of federal law. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Any such ruling on the federal claims would be advisory, given the fact that on remand the state court would still deny petitioner relief on the independent and adequate state law ground. Id. at 729, 111 S.Ct. 2546 (" Because this Court has no power to review a state law determination that is sufficient to support the judgment, resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory." ).

Thus, when a state refuses to adjudicate a petitioner's federal claims because they were not raised in accord with the state's procedural rules, that will normally qualify as an independent and adequate state ground for denying federal review. Cone v. Bell, 556 U.S. __, 129 S.Ct....

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