Fry v. Duckworth, No. 96-1972

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore POSNER, Chief Judge, and MANION, and DIANE P. WOOD
Citation105 F.3d 660
PartiesNOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. James Earl FRY, Petitioner-Appellant, v. Jack DUCKWORTH, Respondent-Appellee.
Docket NumberNo. 96-1972
Decision Date25 November 1996

Page 660

105 F.3d 660
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
James Earl FRY, Petitioner-Appellant,
v.
Jack DUCKWORTH, Respondent-Appellee.
No. 96-1972.
United States Court of Appeals, Seventh Circuit.
Submitted Nov. 25, 1996. *
Decided Dec. 11, 1996.

Before POSNER, Chief Judge, and MANION, and DIANE P. WOOD, Circuit Judges.

ORDER

James Earl Fry, a pro se litigant, appeals from the district court's denial of his petition for a writ of habeas corpus, 28 U.S.C. § 2254. The district court concluded that Fry procedurally defaulted all the claims he raised in his petition. We affirm.

Procedural History

In 1991, Fry was convicted of Theft and Burglary. 1 He was also found to be a Habitual Offender and sentenced accordingly. Fry appealed his conviction to the Indiana Court of Appeals, claiming there was insufficient evidence to sustain his conviction. The appeals court affirmed his conviction. Fry did not appeal this decision to the Indiana Supreme Court.

Fry has since filed two petitions for post-conviction relief in the Indiana courts. In the first, Fry claimed that his right to compulsory process was denied because the State failed to produce his mugshot, an essential piece of exculpatory evidence, 2 and that his appellate counsel was ineffective because she did not raise this issue on direct appeal. The post-conviction court denied Fry's petition. 3 First, it found that Fry had waived the compulsory process claim because he failed to raise it on direct appeal. Second, it found that Fry's appellate counsel was not ineffective and, thus, the waiver was not excused. Fry did not appeal the denial of his first petition. Fry's second petition for post-conviction relief raised a claim concerning his sentence. 4

Fry raised four claims to the district court in his petition for writ of habeas corpus: the compulsory process claim described above; a claim based on the right to cross examine witnesses, also based on the missing mugshot; an ineffective assistance of trial counsel claim; and a due process claim again based on the State's failure to produce the mugshot. The district court found each claim procedurally defaulted: the compulsory process claim because the Indiana post-conviction court found it to be waived and Fry did not appeal that decision; and the other claims because they were never raised in any state court proceeding. 5

On appeal, Fry raises the same four claims with one minor variation: he argues that not only was his trial counsel ineffective, but that his appellate counsel was ineffective as well. 6 He also argues that his procedural defaults should be excused because he has demonstrated both cause and prejudice for his default and that a failure to consider his claims will result in a fundamental miscarriage of justice.

Analysis

Forfeiture of a claim under § 2254 "is a question of a state's internal law: failure to present a claim at the time, and in the way, required by the state is an independent state ground of decision, barring review in a federal court." Hogan v. McBride, 74 F.3d 144, 146 (7th Cir.1996) (citing Coleman v. Thompson, 501 U.S. 722, 729-44 (1991)). Under Indiana law, all claims that were available on direct appeal or at the filing of a post-conviction petition but were not raised in those proceedings are considered forfeited in subsequent proceedings. Ind. Post-Conviction R. 1, § 8; see also Tillman v. State, 511 N.E.2d 447, 448 (Ind.1987); Gosnell v. State, 483 N.E.2d 445, 447 (Ind.1985); Kirk v. State, 632 N.E.2d 776, 779 (Ind.Ct.App.1994).

Under Indiana law, Fry forfeited all four claims raised in the district court. As the Indiana Court of Appeals held, Fry forfeited his compulsory process claim by failing to raise it during his direct appeal even though it was available at that time. He forfeited the Confrontation Clause, ineffective assistance of trial counsel, and due process claims by failing to raise them in any state court proceeding, although these claims were also available to him at the time of his direct appeal and during his post-conviction proceedings. In addition to Fry's procedural defaults in the Indiana state courts, Fry forfeited his ineffective assistance of appellate counsel claim by failing to raise it in the district court. See Weber v. Murphy, 15 F.3d 691, 695 (7th Cir.), cert. denied, 114 S.Ct. 1865 (1994).

Fry could obtain federal review of his procedurally defaulted claims if he could show either cause for the default and actual prejudice resulting from the default, see Murray v. Carrier, 477 U.S. 478, 485 (1986) (discussing Wainwright v. Sykes, 433 U.S. 72 (1977)), or that federal review of his claims is necessary to prevent a fundamental miscarriage of justice, see id. at 496 ("[I]n an extraordinary case, where a constitutional violation has probably resulted in a conviction of one who is...

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1 practice notes
  • Johnson v. Pfister, Case No. 15-cv-6078
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • May 9, 2017
    ...of a spoliation jury instruction constitutes ineffective assistance. In fact, there is case law to the contrary. See Fry v. Duckworth, 105 F.3d 660 (7th Cir. 1996) (Table) (applying Youngblood and affirming denial of habeas relief for claims ofPage 37 ineffective assistance of appellate cou......
1 cases
  • Johnson v. Pfister, Case No. 15-cv-6078
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • May 9, 2017
    ...of a spoliation jury instruction constitutes ineffective assistance. In fact, there is case law to the contrary. See Fry v. Duckworth, 105 F.3d 660 (7th Cir. 1996) (Table) (applying Youngblood and affirming denial of habeas relief for claims ofPage 37 ineffective assistance of appellate cou......

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