Aliwoli v. Gilmore, 96-4048

• Citation: 127 F.3d 632
• Decision Date: 17 October 1997
• Docket Number: No. 96-4048,96-4048
• Parties: Jamaljah ALIWOLI, Petitioner-Appellant, v. Jerry D. GILMORE, Warden, Pontiac Correctional Center, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 632

127 F.3d 632

Jamaljah ALIWOLI, Petitioner-Appellant, v. Jerry D. GILMORE, Warden, Pontiac Correctional Center Respondent-Appellee.

No. 96-4048.

United States Court of Appeals Seventh Circuit.

Argued Sept. 5, 1997.

Decided Oct. 17, 1997.

Lisa S. Ottenfeld (argued), Office of the Cook County Public Defender, for Petitioner-Appellant.

Robert K. Villa, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

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

BAUER, Circuit Judge.

In this case, appellant Jamaljah Aliwoli ("Aliwoli") appeals from the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His first contention is that the district court erred in applying the standards of § 2254 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132. This issue was recently decided by Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), in which the Supreme Court held that the provisions of the AEDPA do not apply retroactively but only to cases filed after its effective date (April 24, 1996). Lindh, --- U.S. at ----, 117 S.Ct. at 2068. Aliwoli's petition was filed on April 18, 1996, sneaking in just under the wire, and the district court therefore erred in applying the amended version of § 2254.

The fact that the district court applied the wrong standard in denying Aliwoli's petition does not in and of itself merit reversal; we can still review the district court's denial of the petition using the standards applicable before the AEDPA took effect to see if the district court's decision was proper. See Patrasso v. Nelson, 121 F.3d 297 (7th Cir.1997). In the present case, however, neither party addressed the contentions in Aliwoli's petition under the pre-AEDPA standard, but rather focused on the district court's application of the new habeas standards. Furthermore, as the appellee's brief correctly notes, the comments which Aliwoli claims are improper must be examined "in light of the entire record to determine if the defendant was deprived of a fair trial such that the jury reached a verdict of guilty when it otherwise might not have done so." Appellee's Brief at 23. The record on appeal in this case does not appear to contain the transcript of Aliwoli's trial, and such an examination cannot be undertaken by this court. It also does not appear that the trial transcript was filed with the district court when it decided Aliwoli's petition on the merits. Accordingly, we are unable to examine Aliwoli's claims in light of the whole record of this case, and we must vacate in part the district court's denial of Aliwoli's petition under the AEDPA's habeas standards. We remand this case to the district court, which should ensure that any necessary state materials One issue on appeal which we can address, since it is not affected by the habeas standard employed, is Aliwoli's assertion that the district court erred in finding that he had procedurally defaulted his claim regarding the prosecutor's rebuttal argument. In his petition, Aliwoli alleged that the prosecutor made improper comments to the jury during the state's rebuttal argument when he stated that:

are submitted by the parties and then undertake an examination of Aliwoli's petition using the pre-AEDPA standards for habeas petitions.

I am not going to tell you that [Aliwoli] will walk out the door at any point because I don't think you'll get that far in your deliberations.... To buy the defense of mental disorder in this case would basically say that all you have to do is commit an outrageous crime, such as the attempted murder of three Chicago police officers, find one or more psychiatrists who are willing to believe it and you are home free.

Appellant's Brief at 14. The district court noted that the Illinois Appellate Court had found this claim waived because of Aliwoli's failure to object to the statements at trial (People v. Aliwoli, 238 Ill.App.3d 602, 179 Ill.Dec.515, 520, 606 N.E.2d 347, 352 (1992)), and determined that the claim had thus been procedurally defaulted in federal court. The district court further found that Aliwoli had not argued either cause for his failure to raise this argument in state court or prejudice resulting therefrom. The district court's determinations were correct, and we affirm.

In general, federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553, 115 L.Ed.2d 640 (1991) (citations omitted); Harris v. Reed, 489 U.S. 255, 261, 109 S.Ct. 1038, 1042, 103 L.Ed.2d 308 (1989). In the habeas context, this doctrine applies to bar consideration of any of a petitioner's federal claims which a state court declined to address because the prisoner failed to meet a state procedural requirement. Coleman, 501 U.S. at 729, 111 S.Ct. at 2553. To preserve an issue for review by an Illinois appellate court, "both a trial objection and a written post-trial motion about the claim are required." Rodriguez v. Peters, 63 F.3d 546, 564 (7th Cir.1995) (citation omitted); see also People v. Reid, 136 Ill.2d 27, 143 Ill.Dec. 239, 244, 554 N.E.2d 174, 179 (1990) ("If a...