822 F.2d 684 (7th Cir. 1987), 86-2032, Harris v. Reed

Docket Nº:86-2032.
Citation:822 F.2d 684
Party Name:Warren Lee HARRIS, Petitioner-Appellant, v. Marvin REED, et al., Respondents-Appellees.
Case Date:June 12, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 684

822 F.2d 684 (7th Cir. 1987)

Warren Lee HARRIS, Petitioner-Appellant,

v.

Marvin REED, et al., Respondents-Appellees.

No. 86-2032.

United States Court of Appeals, Seventh Circuit

June 12, 1987

Argued Feb. 9, 1987.

Rehearing and Rehearing En Banc Denied July 20, 1987.

Page 685

E. King Poor, Winston & Strawn, Chicago, Ill., for petitioner-appellant.

Jack Donatelli, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before BAUER, Chief Judge, CUDAHY, and POSNER, Circuit Judges.

BAUER, Chief Judge.

Warren Lee Harris was convicted of murder in 1977 and received an indeterminate sentence of 50-100 years in prison. His conviction was upheld on appeal against a challenge to the sufficiency of the evidence. Harris filed both state and federal petitions for post-conviction relief. In his state petition for post-conviction relief, Harris alleged ineffective assistance of trial counsel. This issue had not been raised on direct appeal. Harris' state petition for post-conviction relief was denied. The Illinois Appellate Court affirmed the dismissal of Harris' petition, although it is unclear whether the dismissal was based on waiver or the weakness of Harris' claim on the merits.

In his federal petition for a writ of habeas corpus in the United States District Court, Harris again claimed ineffective assistance of trial counsel. Although the state urged that Harris' failure to present the claim on direct appeal precluded the federal court from addressing the claim, the court found that the state appellate court had excused the procedural default by addressing the merits in denying Harris' petition for post-conviction relief. United States ex rel. Harris v. Reed, 608 F.Supp. 1369 (N.D.Ill.1985). The district court then dismissed Harris' claim on its merits. We affirm the dismissal of Harris' petition without reaching its merits, since we conclude that the state court did not excuse the procedural default at issue.

I.

Harris was convicted of shooting Ernest "Pete" Howard on the west side of Chicago in 1977. Howard died before identifying his assailants. Harris was connected to the crime by the testimony of Antonio Slater who was driving down the block near the site of the murder. Slater testified that he heard a shot, saw Harris jump into

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a car and drive away past him. At trial, Harris was represented by Assistant Public Defenders Todd Musberger and Kathryn Kuhlen. In the opening statement, the defense promised to show that two witnesses had identified a man named McWhorter leaving the scene of the...

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