Barksdale v. Lane

• Decision Date: 28 April 1992
• Docket Number: No. 89-3705,89-3705
• Citation: 957 F.2d 379
• Parties: James BARKSDALE, Petitioner-Appellant, v. Michael P. LANE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 379

957 F.2d 379

James BARKSDALE, Petitioner-Appellant, v. Michael P. LANE, Respondent-Appellee.

No. 89-3705.

United States Court of Appeals Seventh Circuit.

Argued June 13, 1991.

Decided Feb. 27, 1992.

Order on Denial of Rehearing

April 28, 1992.

Mark Kerber (argued), Sidley & Austin, Chicago, Ill., for petitioner-appellant.

Thomas L. Ciecko, Deputy Atty. Gen., Office of the Atty. Gen., Crim. Appeals Div., Chicago, Ill., for respondent-appellee.

Before CUMMINGS and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

RIPPLE, Circuit Judge.

In 1989, James Barksdale brought a habeas corpus petition pursuant to 28 U.S.C. § 2254 to attack collaterally his 1972 state conviction for rape, deviate sexual assault, and aggravated kidnapping. The district court dismissed Mr. Barksdale's petition on the ground of procedural default. For the reasons set forth in this opinion, we affirm.

I BACKGROUND

A. Underlying Conviction and Earlier Procedural History

We review the complex procedural history of Mr. Barksdale's case in detail because that history affects the outcome of this appeal. In 1972, Mr. Barksdale was convicted in Illinois state court of rape, deviate sexual assault, and aggravated kidnapping. An Illinois intermediate appellate court affirmed. People v. Barksdale, 24 Ill.App.3d 489, 321 N.E.2d 489 (1974). While his appeal was still pending in state court, Mr. Barksdale made his first attempt to challenge his state conviction in federal court by bringing a civil rights suit against his attorney and the judge who had presided at his trial. See Barksdale v. Ryan, 398 F.Supp. 700 (N.D.Ill.1974), aff'd, 511 F.2d 1405 (7th Cir.), cert. denied, 422 U.S. 1011, 95 S.Ct. 2637, 45 L.Ed.2d 676 (1975). The district court dismissed the suit, holding that Mr. Barksdale's suit was an impermissible attempt to "utilize federal civil rights law to bypass the procedural requirements of habeas corpus law.... Plaintiff must exhaust his state judicial remedies before receiving habeas consideration from this court." Id. at 702. Mr. Barksdale then filed the first of a series of habeas corpus petitions. In 1978, this court affirmed the denial of what apparently was his first petition. ¹ See United States ex rel. Barksdale v. Sielaff, 585 F.2d 288 (7th Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2409, 60 L.Ed.2d 1067 (1979). The court rejected Mr. Barksdale's speedy trial claim and his challenge to certain evidentiary rulings by the state trial court. Id. at 290-91, 293-94. In addition, the court held that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), required dismissal of Mr. Barksdale's claim that his arrest and the search of his car violated the Fourth Amendment because he had had a full and fair opportunity to litigate that claim in the state courts. Id. at 292-93. Mr. Barksdale again sought habeas relief in 1979, contending that he had received ineffective assistance of counsel in his appeal. The district court dismissed that petition for failure to exhaust state remedies.

In 1983, Mr. Barksdale brought two more habeas actions, both of which challenged the denial of his parole requests, rather than his underlying convictions. On April 14, 1983, the district court dismissed the first of these petitions without prejudice for failure to exhaust state remedies. ² By the time Mr. Barksdale brought his second 1983 petition, he apparently had sought the state mandamus remedy available in Illinois. However, the district court dismissed his petition on June 18, 1984, on the ground that the state case was still pending when he filed the petition. ³

Meanwhile, in January 1985, Mr. Barksdale filed a pro se post-conviction petition in state court challenging his 1972 judgment of conviction as well as a 1973 judgment of conviction for a separate incident of rape and deviate sexual assault. Regarding the former judgment, which is the only one at issue in this appeal, Mr. Barksdale apparently raised issues of ineffective assistance of trial and appellate counsel, illegal search and seizure, unduly suggestive pretrial identification, and denial of his right to a trial by a jury of his peers. People v. Barksdale, No. 1-85-1785, Order at 3 (Ill.App.Ct. Aug. 18, 1988) [172 Ill.App.3d 1165, 136 Ill.Dec. 574, 544 N.E.2d 1349 (table) ]. ⁴ The state court dismissed that petition in June 1985 as barred by the state's ten-year limitation period for filing post-conviction challenges. ⁵ That limitation period originally was only five years, but was increased to twenty years in 1965 and then decreased to ten years effective January 1, 1984. ⁶ Mr. Barksdale appealed the dismissal of his 1985 petition to state appellate court, which affirmed the dismissal in 1988. People v. Barksdale, No. 1-85-1785, Order [172 Ill.App.3d 1165, 136 Ill.Dec. 574, 544 N.E.2d 1349 (table) ] (Ill.App.Ct. Aug. 18, 1988). The Illinois Supreme Court denied leave to appeal.

B. District Court 1989 Habeas Proceedings

Mr. Barksdale then filed the federal habeas petition that is the subject of this appeal. Mr. Barksdale challenged his 1972 conviction on grounds of illegal search and seizure and ineffective assistance of appellate counsel. He also argued that retroactive application of the shortened statute of limitation, without allowing him an opportunity to show a lack of culpable negligence, was an unconstitutional deprivation of due process. The district court held that Stone v. Powell precluded it from directly considering the search and seizure issue. The district court then turned to the question of whether Mr. Barksdale's failure to bring a timely post-conviction petition in state court was a procedural default barring federal review of Mr. Barksdale's claim of ineffective assistance of counsel. The court held that there was no due process violation in retroactively applying the shorter statute of limitations. ⁷ It also held that Mr. Barksdale had procedurally defaulted his ineffective assistance of counsel claim and had not shown cause to excuse his default:

Although the federal petitions were dismissed no later than 1983, Barksdale waited until January 1985 to file his state post-conviction petition. Barksdale gives no explanation for the delay. Barksdale, therefore, has failed to show cause for not timely raising his ineffective assistance of counsel claims before the state courts. The claims are found to be waived.

Memorandum Opinion and Order, No. 89 C 4068 at 7, 1989 WL 135199 (October 31 1989). The district court therefore dismissed Mr. Barksdale's habeas petition. This appeal followed.

II ANALYSIS

A. Procedural Default ⁸

As a general rule, federal district courts may not reach the merits of a habeas petition challenging a state conviction if the "state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests on independent and adequate state procedural grounds." Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991). In this appeal, it is undisputed that the Illinois courts based their refusal to reach the merits of Mr. Barksdale's 1985 post-conviction petition on the independent state ground of his failure to file within the time period permitted by the amended version of paragraph 122-1. However, Mr. Barksdale contends that the dismissal of his state petition did "not provide an 'adequate' basis for the district court to abstain from habeas corpus review" because, at the time he filed the state petition, Illinois courts had not determined the retroactivity of the shortened statute of limitation. Appellant's Br. at 9. Only in 1986 did an Illinois court hold that the shortened period would be applied retroactively. See People v. Robinson, 140 Ill.App.3d 29, 94 Ill.Dec. 387, 487 N.E.2d 1264, 1267 (1986). That holding was adopted by the Illinois Supreme Court two years later in People v. Bates, 124 Ill.2d 81, 124 Ill.Dec. 407, 529 N.E.2d 227, 229 (1988). ⁹

Failure to comply with state procedural rules, such as the statute of limitation involved in this case, provides an adequate basis for barring federal habeas relief "only if the state court acts in a consistent and principled way. A basis of decision applied infrequently, unexpectedly, or freakishly may be inadequate, for the lack of notice and consistency may show that the state is discriminating against the federal rights asserted." Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir.1990). Mr. Barksdale contends that, in early 1985, he could not expect that the amended version of paragraph 122-1 would be applied retroactively. When Illinois earlier had changed the limitation period from five to twenty years, Illinois courts had refused to apply the expanded period retroactively. See, e.g., People v. Richeson, 50 Ill.2d 46, 277 N.E.2d 134, 136 (1971). Nonetheless, Illinois courts long have distinguished between the non-retroactivity of lengthened statutes of limitation and the retroactivity of shortened statutes of limitation. Compare id. (nonretroactivity) with Orlicki v. McCarthy, 4 Ill.2d 342, 122 N.E.2d 513 (1954) (retroactively applying shortened statute of limitation under state Dramshop Act) and Meegan v. Village of Tinley Park, 52 Ill.2d 354, 288 N.E.2d 423, 426 (1972) (retroactively applying newly enacted limitation period to bar preexisting cause of action). Thus, the Illinois Supreme Court was not announcing a new, unexpected rule when it held that the shortened limitation period in paragraph 122-1 was retroactive:

[O]ur cases, and cases from other jurisdictions, have drawn a distinction between the revival of a cause of action by extending the statute of limitations, and cutting off a cause of action by shortening the limitation period. The denial of retroactive application in the former instance does not preclude such application in the latter.

Bates, 529 N.E.2d at 229. We therefore conclude that the retroactive...