915 F.2d 1128 (7th Cir. 1990), 89-2404, United States ex rel. Simmons v. Gramley

Docket Nº:89-2404.
Citation:915 F.2d 1128
Party Name:UNITED STATES of America ex rel. Nathaniel SIMMONS, Petitioner-Appellant, v. Richard GRAMLEY, et al., Respondents-Appellees.
Case Date:October 09, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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915 F.2d 1128 (7th Cir. 1990)

UNITED STATES of America ex rel. Nathaniel SIMMONS,



Richard GRAMLEY, et al., Respondents-Appellees.

No. 89-2404.

United States Court of Appeals, Seventh Circuit

October 9, 1990

Argued Jan. 26, 1990.

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[Copyrighted Material Omitted]

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Janon E. Fabiano and Anthony R. Fabiano, Rockford, Ill., for petitioner-appellant.

David E. Bindi, Asst. Atty. Gen., Office of the Atty. Gen., and Thomas L. Ciecko, Deputy Atty. Gen., Office of the Atty. Gen., Crim. Appeals Div., Chicago, Ill., for respondents-appellees.

Before CUMMINGS and MANION, Circuit Judges, and GRANT, Senior District Judge. [*]

GRANT, Senior District Judge.

Petitioner Nathaniel Simmons appeals from the district court's denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. We affirm.

I. Background

On November 20, 1979, following a jury trial in Cook County Circuit Court, Simmons was convicted of murder, aggravated battery, and armed violence. 1 There was

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no doubt that Simmons had shot both his common-law wife Ethel Purnell and her daughter Octavia; the dispositive issue at trial was the intentional nature of the shooting. During the trial two explanations by Simmons were presented to the jury. The first was offered by the state's witness, a police homicide investigator, who reported Simmons' admission that he shot Ethel in the head to teach her a lesson, and shot Ethel's daughter Octavia after telling her to sit down or to get out of the way. Octavia's testimony corroborated the confession: She testified that Simmons came out of the bedroom with a gun, stood next to her mother and shot her in the head, and then shot Octavia as she ran to the door. Simmons, testifying on his own behalf, presented the second version of the shootings at trial. He stated that the pistol he was holding accidentally discharged as he was putting it in his pocket, and the bullet hit Ethel in the head. Then, startled by Octavia's scream, he threw up his hands and the gun exploded a second time, wounding Octavia. The jury, choosing not to believe Simmons' direct testimony, found him guilty on three counts. The court sentenced Simmons to thirty years imprisonment, and advised him of his right to appeal. However, the petitioner did not appeal the conviction or sentence.

Simmons sought collateral relief in 1981 by filing a pro se petition for post-conviction relief, alleging ineffective assistance of counsel. After providing petitioner a trial transcript and a public defender, the court reviewed Simmons' application and counsel's certified statement that the post-conviction application adequately presented his claim of ineffective assistance of counsel. On July 14, 1982, the court summarily dismissed Simmons' petition for post-conviction relief. Enclosed with the Order of Dismissal were a notice of the right to appeal and Notice of Appeal forms. Simmons did not file an appeal.

Four years later, on December 4, 1986, Simmons instituted a federal habeas corpus action in the United States District Court for the Northern District of Illinois, alleging ineffective assistance of trial counsel and of post-conviction counsel. The specific deficiencies alleged were his trial counsel's failure to investigate possible defenses and to file a direct appeal, and his post-conviction counsel's failure to consult with him and to notify him of his right of direct appeal.

The district court appointed counsel for the petitioner, ordered another trial transcript, conducted six status hearings, and requested from Simmons an amplified statement of the errors alleged in his habeas petition. The petitioner filed a supplement describing the facts and circumstances that, he claimed, should have been offered at trial:

The petitioner and the person he was convicted of murdering (hereafter referred to as victim) cohabited in the same household with other persons; that Petitioner and other members of that household had been drinking for several hours, and he and others were under the influence of alcohol; that Petition [sic] was in possession of a pistol, but did not intend to fire it in the household, nor did he threaten any person present with violence; that the victim was attempting to wrest the pistol from Petitioner's possession, and in the process the pistol was accidentally fired, resulting in victim's death[.]

Following two rounds of briefings, during which each party submitted to the court three lengthy memoranda, the district court denied Simmons' petition on April 4, 1989, without a hearing.

On appeal, Simmons again asserts a violation of his constitutional right to effective assistance of counsel and challenges the district court's right to deny his habeas petition without an evidentiary hearing.

II. Analysis

The state's initial argument (one raised in, but not discussed by, the district court) is that petitioner's application should be dismissed because he procedurally defaulted. 2 Before a federal court can address

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the constitutional claims brought in a federal habeas corpus petition, the state courts must have had a full and fair opportunity to review them. See Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Morrison v. Duckworth, 898 F.2d 1298, 1300 (7th Cir.1990). The first duty of a district court, therefore, is to examine the procedural status of the cause of action:

Before considering a petition for habeas corpus on its merits, a district court must make two inquiries--whether the petitioner exhausted all available state remedies and whether the petitioner raised all his claims during the course of the state proceedings. If the answer to either of these inquiries is "no," the petition is barred either for failure to exhaust state remedies or for a procedural default.

Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1648, 104 L.Ed.2d 163 (1989).

Claims are exhausted when they have been presented to the highest state court for a ruling on the merits of the claims, or when state remedies no longer remain available to the petitioner. Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 1570 n. 28, 71 L.Ed.2d 783 (1982). In this case, neither a direct appeal nor an appeal of the post-conviction petition dismissal was taken. However, since the time period within which the petitioner could have filed appeals has lapsed, his state remedies are no longer available. Thus, it is undisputed that the exhaustion requirement was fulfilled as to those state remedies by Simmons' failure to appeal his claims timely. Id.

Claims not raised on appeal in the state courts are procedurally defaulted. In deference to state procedural rules and state court reviews, federal courts will consider the merits of a habeas corpus petition only after the prisoner has presented his federal claim to the state courts for direct and post-conviction review.

Given the stringency with which this Court adheres to procedural default rules, it is of great importance to the prisoner that all his substantial claims be presented fully and professionally in his first state collateral proceeding.

Murray v. Giarratano, --- U.S. ----, 109 S.Ct. 2765, 2779-80, 106 L.Ed.2d 1 (1989). Under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), a federal claim not presented to the state courts is procedurally barred in federal court and must be dismissed unless the prisoner can show both adequate cause to excuse his failure to raise the claim in state court and actual prejudice resulting from the procedural default. Id. at 87, 97 S.Ct. at 2506. See also United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982); Rosenwald v. United States, 898 F.2d 585, 587 (7th Cir.1990); Buelow v. Dickey, 847 F.2d 420, 425 (7th Cir.1988), cert. denied sub nom. Buelow v. Bablitch, 489 U.S. 1032, 109 S.Ct. 1168, 103 L.Ed.2d 227 (1989).

Ineffective assistance of counsel, if proven, can be considered cause for a procedural default. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). The Supreme Court states clearly what proof is required:

So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, ... we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.

Id. at 488, 106 S.Ct. at 2645. Thus, to establish cause, Simmons must demonstrate that his counsel rendered ineffective assistance of counsel as defined by the Supreme Court in Strickland v. Washington. See Madyun v. Young, 852 F.2d 1029, 1033 (7th Cir.1988).

A. Ineffective assistance of trial counsel

Simmons claims that his trial attorney's failure to investigate defenses and to file

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an appeal amounts to ineffective assistance of counsel. 3

The sixth amendment guarantees a criminal defendant the right to effective assistance of counsel. A defendant's claim that his counsel rendered constitutionally ineffective assistance is evaluated by the principles set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As its general guideline for review, the Court provides:

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.

The defendant pressing a sixth amendment claim has the heavy burden of affirmatively establishing that counsel's performance was constitutionally deficient and that the deficiency prejudiced the outcome of the trial. Harris v. Reed, 894 F.2d 871, 877 (7th Cir.1990), citing Sullivan v. Fairman, 819 F.2d 1382, 1390 (7th...

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