Mason v. Gramley

• Decision Date: 01 December 1993
• Docket Number: No. 92-2789,92-2789
• Parties: Charles MASON, Petitioner-Appellant, v. Richard B. GRAMLEY, Warden, Pontiac Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1345

9 F.3d 1345

Charles MASON, Petitioner-Appellant, v. Richard B. GRAMLEY, Warden, Pontiac Correctional Center Respondent-Appellee.

No. 92-2789.

United States Court of Appeals Seventh Circuit.

Submitted July 21, 1993.

Decided Dec. 1, 1993.

Charles Mason, pro se.

Bradley P. Halloran, Office of the Atty. Gen., Chicago, IL, for respondent-appellee.

Before MANION and ROVNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ILANA DIAMOND ROVNER, Circuit Judge.

A jury found Charles Mason guilty of first degree murder and attempted first degree murder, and an Illinois trial court then sentenced Mason to eighty years in prison on the first degree murder conviction and to a concurrent thirty-year term on the attempted first degree murder conviction. The Illinois Appellate Court affirmed Mason's convictions, and the Illinois Supreme Court denied Mason's petition for leave to appeal. Mason then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court denied the petition, and we affirm.

I.

Mason was convicted of murdering David Reid and of attempting to murder Bernard Carpenter. Mason admitted that he shot Carpenter and Reid from the back seat of Carpenter's car, but he maintained that he had done so in self-defense. Two bystanders found Reid slouched in the front seat of the car with his right hand touching the floor, whereas Carpenter was found on the ground outside the car. Reid subsequently was pronounced dead from two gunshot wounds to the head. Carpenter survived, however, and he testified at Mason's trial. Carpenter related that he had been driving Mason to a particular location and that after pulling over to drop Mason off, he felt a sudden shocking sensation and went numb. He testified that there had been little or no conversation in the car between him, Carpenter, and Mason prior to the shootings.

Mason told a different story, testifying at trial that he had shot Carpenter and Reid in self-defense. Apparently, Reid and Carpenter had been involved in the sale of cocaine from Mason's home in the summer of 1988. Mason testified that an argument had developed in the car because Reid had accused Mason of "wanting to take over [Reid's] turf." Mason said that Reid had threatened to kill him and that in doing so, Reid had reached his right hand to the side of his seat, causing Mason to believe that he might be reaching for a weapon. Mason responded by shooting Reid twice in the head. At the same time, Mason saw Carpenter reach for something, and he thus shot Carpenter as well.

II.

Mason raises four claims in his habeas petition, but his primary argument is that the Illinois murder statute, 720 ILCS Secs. 5/9-1 & 5/9-2, is unconstitutional and that the instructions provided to the jury in accordance with that statute misstate the burdens of proving second degree murder. Mason raises other claims, but as we discuss below, he has procedurally defaulted them by failing to advance the claims in his petition for leave to appeal to the Illinois Supreme Court. We accordingly need not address them here.

Before Mason may bring his constitutional claims in a federal habeas petition, he must exhaust his state remedies. 28 U.S.C. Sec. 2254; Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989). Respondent concedes that Mason has done so here. Although Mason could have pursued a collateral remedy in state court, he was not required to do so. We have previously held " 'that a petition for a writ of habeas corpus should be dismissed for failure to exhaust [the Illinois post-conviction] remedy only if there is direct precedent indicating that under the particular circumstances of a prisoner's case the waiver [and res judicata] doctrine[s] will be relaxed.' " Gornick v. Greer, 819 F.2d 160, 161 (7th Cir.1987) (quoting Perry v. Fairman, 702 F.2d 119, 121 (7th Cir.1983)) (internal quotation omitted). There is no such precedent here.

Even where state remedies have been exhausted, however, the futility of bringing constitutional claims in a collateral state proceeding will not excuse a procedural default. Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982). The failure to present constitutional claims before the highest state court will result in a procedural default of those claims unless the petitioner can show cause and prejudice. Nutall v. Greer, 764 F.2d 462, 465 (7th Cir.1985); see also Wainwright v. Sykes, 433 U.S. 72, 86-91, 97 S.Ct. 2497, 2506-09, 53 L.Ed.2d 594 (1977); Henderson v. Cohn, 919 F.2d 1270, 1272 (7th Cir.1990); United States ex rel. Bonner v. DeRobertis, 798 F.2d 1062, 1065-66 (7th Cir.1986).

Respondent points out that Mason raised only one constitutional claim in his petition for leave to appeal to the Illinois Supreme Court--that the Illinois murder statute was unconstitutional. Mason did not raise an ineffective assistance of counsel claim in his petition for leave to appeal, and although he briefly raised two jury instruction issues, he described them as prejudicial trial errors rather than as constitutional violations. Merely presenting facts to the state court that would support a federal constitutional claim is not the same as presenting the constitutional argument itself. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982). "It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Id. (citation omitted). Rather, the issue must have been presented in such a way that the state court would have a " 'fair opportunity' to apply controlling legal principles to the facts bearing on [the petitioner's] constitutional claim." Id. Thus, the claims not raised before the Illinois Supreme Court are procedurally defaulted unless Mason can show cause and prejudice. He has not attempted to do so here.

Instead, Mason contends that by raising all of his claims before the Illinois Appellate Court, he provided the state courts with the necessary opportunity to review those claims. Yet our cases clearly hold that Mason also was required to present his claims to the Illinois Supreme Court in his petition for leave to appeal. See, e.g., DeRobertis, 798 F.2d at 1065-66; Nutall, 764 F.2d at 465. Mason's failure to do so resulted in a procedural default of those claims, precluding us from considering them on habeas.

We may of course consider the one constitutional claim not defaulted--that the new Illinois murder statute and the jury instructions given pursuant to that statute violated Mason's due process rights. ¹ The State charged Mason with first degree murder under 720 ILCS Sec. 5/9-1. ² Mason admitted at trial that he shot Reid and Carpenter, but he presented evidence that he believed he was acting in self-defense. He thus maintains that he was guilty only of second degree murder under 720 ILCS Sec. 5/9-2, which provides:

(a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9-1 of this Code and either of the following mitigating factors are present:

(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed; or

(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.

The statute requires the defendant to prove by a preponderance of the evidence that one of the mitigating factors existed. Id. at Sec. 5/9-2(c). Yet, "the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder and, when appropriately raised, the absence of circumstances at the time of the killing that would justify or exonerate the killing...." Id. Mason maintains that this statutory scheme is unconstitutional because it assigns to a defendant, rather than to the State, the burden of proving the existence of a mitigating factor.

Due process requires that the State prove beyond a reasonable doubt "every fact necessary to constitute the crime with which [the defendant was] charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); see also McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 2415, 91 L.Ed.2d 67 (1986). A defendant's due process rights are violated when the burden shifts to the defendant to disprove an element of the offense. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); see also Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281 (1977). Mason contends that Illinois' practice of assigning a defendant the burden of proving a mitigating factor violates due process as it alleviates the State's burden to prove all elements of first degree murder beyond a reasonable doubt. ³ The Illinois courts have consistently rejected this argument (see People v. Young, 248 Ill.App.3d 491, 188 Ill.Dec. 456, 471, 618 N.E.2d 1026, 1041-42 (1993) (collecting cases)), and we too find the murder statute consistent with due process.

The United States Supreme Court has developed a significant body of case law defining the standards for shifting the burdens of proof in criminal cases. For example, in considering a New York statute on which the current Illinois statute was modeled, the Court determined that if the mitigating factor is an affirmative defense, rather than an element of the underlying offense, it does not offend due process to require that the defendant prove the mitigating factor by a preponderance of the evidence. Patterson, 432 U.S. at 210, 97 S.Ct. at 2327. Although the prosecution m...