Clemons v. Pfister

• Decision Date: 09 January 2017
• Docket Number: No. 14-3797,14-3797
• Citation: 845 F.3d 816
• Parties: Rodney CLEMONS, Petitioner-Appellant, v. Randy PFISTER, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

845 F.3d 816

Rodney CLEMONS, Petitioner-Appellant,

v.Randy PFISTER, Warden, Respondent-Appellee.

No. 14-3797

United States Court of Appeals, Seventh Circuit.

Argued January 11, 2016

Decided January 9, 2017

Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Petitioner–Appellant.

Matthew P. Becker, Attorney, Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent–Appellee.

Before Easterbrook, Williams, and Sykes, Circuit Judges.

Sykes, Circuit Judge.

In 2005 an Illinois jury convicted Rodney Clemons of murdering Doris Smith, his former girlfriend and mother of his infant son. After an unsuccessful appeal and postconviction proceedings in state court, Clemons sought federal habeas review under 28 U.S.C. § 2254. He raised several claims, but only one is relevant here. Clemons argues that his trial attorney was constitutionally ineffective in violation of the rule of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to call an alibi witness. The Illinois Appellate Court declined to consider this claim because Clemons raised it only in a pro se reply brief, which the court refused to accept because he was represented by counsel. The district judge concluded that the claim was procedurally defaulted. But she also addressed the merits of the Strickland claim and denied it.

We affirm on the first ground. Procedural default precludes federal merits review of Clemons's Strickland claim.

I. Background

Doris Smith was shot and killed near her Chicago home in the early morning hours of August 26, 2011. Her attacker chased her down an alley and onto the street, firing shots as she fled begging for her life and screaming for help. Two shots hit their mark. Smith died of gunshot wounds

to the hip and upper back.

Rodney Clemons was Smith's on-again/off-again boyfriend and the father of her infant son. Several eyewitnesses identified him as the shooter, and Chicago police arrested him later that day. After lineups and some additional investigation, Cook County prosecutors charged Clemons with Smith's murder and a related count of using a firearm to commit that crime. A jury convicted him as charged, and the trial judge sentenced him to 45 years in prison.

After an unsuccessful direct appeal, Clemons filed a pro se postconviction petition in the trial court. He raised several claims, including an argument that his trial counsel was constitutionally ineffective in violation of Strickland for failing to call Andre Smith as an alibi witness. Clemons submitted an affidavit from Smith, his friend and would-be alibi witness, together with his postconviction petition.¹ But the affidavit was difficult to read and ended abruptly in the middle of the page as if a piece of paper covered the bottom half of the page while it was being photocopied.

The trial judge rejected Clemons's various claims for relief. Regarding the Strickland claim about the omitted alibi witness, the judge held that Clemons had failed to make the required factual showing because he did not submit appropriate affidavits from potential witnesses and "failed to explain the significance of their testimony."

Clemons moved for reconsideration, reiterating his claim about the overlooked alibi witness. This time he attached a clearly legible version of Smith's affidavit. The judge construed this filing as an improper successive petition for postconviction relief and denied it. An exception exists under Illinois law if the prisoner can demonstrate cause for his failure to bring the claim in his first petition and resulting prejudice. Clemons demonstrated neither, so the exception did not apply.

Clemons was represented by counsel on his appeal from the denial of his postconviction petition. His attorney briefed a single claim regarding an evidentiary error. Clemons filed a pro se motion to supplement his counsel's brief; the motion sought to add, among other things, the Strickland claim regarding trial counsel's failure to call Smith as an alibi witness. Clemons also moved for leave to file a pro se reply brief raising that claim, tendering a proposed pro se brief with the motion. The court issued an order saying it would take the pro se motions with the merits of the appeal.

In due course the court issued a reasoned merits order addressing only the arguments raised in Clemons's counseled briefs and affirming the denial of postconviction relief. No mention was made of Clemons's motions. Before the final mandate issued, the court issued a confusing order saying that Clemons's motion to file a pro se supplemental brief was denied but his motion for leave to file a pro se reply brief "is allowed." The court later issued a clarifying order explaining that the motion to file a pro se reply brief was denied, not "allowed" as the earlier order had stated. This order clearly explained that the court had considered only Clemons's counseled briefs in rendering its opinion. The Illinois Supreme Court denied leave to appeal.

The case then moved to federal court. Clemons's petition for habeas review under § 2254 raised several issues, including the Strickland claim regarding his trial counsel's failure to call Smith, the alibi witness. The district judge held that Clemons had procedurally defaulted this claim by failing to submit appropriate affidavits in support of it with his state postconviction petition. The judge also held, however, that the claim "would ... fail on the merits because Clemons cannot meet either of the Strickland requirements." The judge rejected all other grounds for relief and denied the petition in its entirety.

We granted a certificate of appealability limited to the Strickland claim regarding the omitted alibi witness.

II. Discussion

We review a ruling on procedural default de novo. Thomas v. Williams , 822 F.3d 378, 384 (7th Cir. 2016). Procedural default can occur in several ways, "but two are paradigmatic." Richardson v. Lemke , 745 F.3d 258, 268 (7th Cir. 2014). A state prisoner can procedurally default a federal claim if he fails to "fairly present" it "throughout at least one complete round of state-court review, whether on direct appeal of his conviction or in post-conviction proceedings." Id. Procedural default can also occur if the state court rejects a federal claim based on a state procedural rule "that is both independent of the federal question and adequate to support the judgment." Id . (quotation marks omitted); see also Thomas , 822 F.3d at 384.

This case involves the second form of procedural default. The state trial and appellate courts relied on two distinct and different procedural grounds in declining to reach the merits of Clemons's alibi-witness claim. The trial judge said that Clemons had failed to comply with the procedural rule requiring the submission of supporting affidavits with his petition for postconviction relief. The appellate court, on the other hand, refused to address the claim because it was raised only in Clemons's pro se reply brief, which the court declined to accept because he was represented by counsel.

The district judge held that the trial court's reliance on the Illinois affidavit rule was an independent and adequate state ground sufficient to support a finding of procedural default. The record is hazy on this point. Clemons in fact did submit an affidavit from Smith with his postconviction petition. True, it was difficult to read and incomplete (apparently owing to a photocopying error), but Clemons cured that defect by submitting a complete and legible copy of the affidavit with his motion for reconsideration.

We don't need to sort this out here. Illinois doesn't rely on the trial judge's application of the affidavit rule. Instead, it focuses exclusively on the state appellate court's enforcement of its rule...