Jenkins v. Gramley

• Decision Date: 25 October 1993
• Docket Number: No. 93-1228,93-1228
• Citation: 8 F.3d 505
• Parties: Darnell JENKINS, Petitioner-Appellant, v. Richard GRAMLEY, Warden, Pontiac Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 505

8 F.3d 505

Darnell JENKINS, Petitioner-Appellant, v. Richard GRAMLEY, Warden, Pontiac Correctional Center Respondent-Appellee.

No. 93-1228.

United States Court of Appeals Seventh Circuit.

Argued Sept. 29, 1993.

Decided Oct. 25, 1993.

John H. Maville, Belvidere, IL (argued), for petitioner-appellant.

Martha E. Gillis, Office of Atty. Gen., Chicago, IL (argued), for respondent-appellee.

Before FLAUM, EASTERBROOK and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Darnell Jenkins is serving a term of 30 years' imprisonment for the robbery and murder of Joshua Beasley in 1980. The jury concluded that Jenkins and Arthur Martin set upon Beasley, robbed him, and then bashed him on the head with a pipe because he had denied having any money. Leaving a trail of blood, Beasley crawled back to his apartment, where he died of a heart attack. At trial a physician testified that, although a healthy person probably would have survived the blows, Beasley, with a history of cardiac problems, could not. Jenkins fired his retained trial lawyer, and an appellate defender represented him on appeal. The appellate court affirmed, People v. Martin, 112 Ill.App.3d 486, 68 Ill.Dec. 151, 445 N.E.2d 795 (1st Dist.1983), although it vacated as redundant two sentences that ran concurrently with the murder conviction. Among the claims the appellate court considered and rejected: that Jenkins' lawyer had furnished ineffective assistance at trial.

Jenkins sought review by the Supreme Court of Illinois, omitting any ineffective-assistance argument--deliberately, he says, in order to set up a petition for post-conviction relief. The state's highest court denied the petition for leave to appeal. Represented by the public defender's office, Jenkins pursued a petition for collateral relief in the state's court of first instance. That court dismissed the petition on the merits. Instead of taking an appeal, Jenkins sought a writ of habeas corpus in federal court under 28 U.S.C. § 2254. Again he lost, this time on dual grounds: forfeiture by neglecting to present the claim to all levels of the state judiciary, and the merits.

The district court concluded that Jenkins defaulted his claim of ineffective assistance by failing to present it to the Supreme Court of Illinois. See Simmons v. Gramley, 915 F.2d 1128 (7th Cir.1990); Nutall v. Greer, 764 F.2d 462 (7th Cir.1985). This would indeed be fatal, except that the state court considered a collateral attack on the merits. Illinois permits prisoners to present ineffective-assistance claims collaterally, despite failure to pursue them on direct review, when they depend on facts outside the original record. Perry v. Fairman, 702 F.2d 119 (7th Cir.1983) (collecting Illinois cases). Cf. Guinan v. United States, 6 F.3d 468 (7th Cir.1993). Procedural default in cases under § 2254 depends on state law. Although some language in Nutall and other cases from this circuit implies that failure to pursue a claim through all levels of the state judiciary is a federal bar to review, the Supreme Court's more recent decisions show that state law alone is the basis of forfeiture in cases under § 2254. A default supplies an independent and adequate state ground for the judgment, so that questions of federal law no longer affect the outcome. Coleman v. Thompson, --- U.S. ----, ---- ----, 111 S.Ct. 2546, 2563-66, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). This implies that when the final state court to consider a case acts on the merits of the federal question, without simultaneously asserting an independent state ground of decision, Harris, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10, the federal issue remains (potentially) dispositive and is open to review under § 2254. See Ylst v. Nunnemaker, --- U.S. ----, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). The state court to which Jenkins presented his post-conviction petition rejected his ineffective-assistance claim without giving forfeiture as a ground. His failure to present the claim to the Supreme Court of Illinois on direct appeal accordingly does not affect his petition under § 2254.

Jenkins' failure to appeal from the order denying his petition for post-conviction relief is a different matter entirely. Illinois treats a failure to appeal as a procedural default barring further review. "It is clear that a defendant's failure to appeal the dismissal of a post-conviction petition, coupled with the doctrines of res judicata and waiver, ordinarily bars further consideration of all claims which could have been raised." People v. Core, 48 Ill.2d 544, 272 N.E.2d 12, 13-14 (1971). See also Zellers v. Duckworth, 763 F.2d 250, 252 (7th Cir.1985); Williams v. Duckworth, 724 F.2d 1439, 1442 (7th Cir.1984). "Ordinarily" implies that there are exceptions, but Core tells us that the circumstances of Jenkins' case are not among them. Like Jenkins, Core was pursuing a post-conviction claim that trial counsel had been ineffective; like Jenkins, Core justified his failure to appeal by pointing to shortcomings of his post-conviction counsel. The Supreme Court of Illinois concluded that such circumstances do not justify relief from the default. And after Coleman, which overruled Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), see --- U.S. at ----, 111 S.Ct. at 2565, no independent federal doctrine permits the district court to disregard a prisoner's failure to take an appeal under circumstances in which state law requires an appeal. Coleman, like today's case, involved a failure to pursue appellate review after the trial court denied a petition for post-conviction relief.

Perhaps one might distinguish Coleman on the ground that Coleman took an untimely appeal from the post-conviction decision, giving the state's court an opportunity to provide an independent state ground for its decision: it dismissed the appeal for want of jurisdiction. By contrast, the argument would run, the final decision on Jenkins' case addressed the merits. Because no state court asserted a procedural ground for the decision, federal review remains available. As Justice O'Connor concluded in Harris, however, a defendant who neglects to present his claims to the state court at all, and thereby denies it the opportunity to assert a forfeiture rule, has surrendered them just as surely as if he presents them in a procedurally defective manner. 489 U.S. at 269-70, 109 S.Ct. at 1046-47 (concurring opinion). We have followed Justice O'Connor's views. "A person who never presents a claim to state court cannot demand that the state court give a reason, rooted in state law, for not considering that claim. When a state would treat complete failure to present a claim as forfeiture, ... the federal court may enforce the state's bar on collateral review." Reese v. Peters, 926 F.2d 668, 671 (7th Cir.1991) (emphasis in...