Momient-El v. DeTella

• Citation: 118 F.3d 535
• Decision Date: 01 July 1997
• Docket Number: No. 96-2050,MOMIENT-E,P,96-2050
• Parties: Leeetitioner-Appellee, v. George E. DeTELLA, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 535

118 F.3d 535

Lee MOMIENT-EL, Petitioner-Appellee, v. George E. DeTELLA, Respondent-Appellant.

No. 96-2050.

United States Court of Appeals,

Seventh Circuit.

Argued April 25, 1997.

Decided July 1, 1997.

Douglas P. Roller (argued), Roller & Associates, Chicago, IL, for Petitioner-Appellee.

Michael M. Glick (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellant.

Before POSNER, Chief Judge, CUMMINGS and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Respondent George E. DeTella, Warden of Stateville Correctional Center, appeals from the judgment of the district court granting petitioner Lee Momient-El's petition for a writ of habeas corpus under 28 U.S.C. § 2254 and ordering the state of Illinois to resentence petitioner. Momient-El was convicted in 1977 by a jury of attempted murder and aggravated battery for shooting a Chicago police officer, and was sentenced on the attempted murder conviction to 50 to 100 years of imprisonment. Petitioner raised several claims in his habeas petition, two of which form the basis of the state's appeal. He maintained that trial counsel's failure to advise him of the consequences of his election between alternative sentencing codes constituted ineffective assistance of counsel in violation of the Sixth Amendment and that appellate counsel was likewise ineffective in failing to raise this issue on appeal. ¹ In order to address the merits of petitioner's sixth amendment claims, it was necessary for the district court first to conclude that these claims had been fairly presented to the Illinois courts. Because we cannot agree with district court that the Illinois courts had a full and fair opportunity to address these claims on either direct appeal or in the state post-conviction proceedings, we conclude that the district court erred in reaching the merits of these claims. We therefore reverse.

I.

On October 14, 1977, Officer Eddie Jackson, along with three other officers, had been assigned to an undercover detail involving the arrest of prostitutes. Officer Jackson, driving an unmarked car containing two other officers and two alleged prostitutes, had just made an arrest and was proceeding to a new location to arrest a third alleged prostitute when he came into contact with Momient-El.

Officer Jackson was stopped at the intersection of Elm and LaSalle streets in Chicago when a gray Lincoln Continental, driven by Momient-El, swerved at the intersection and came to a stop north of the intersection in the middle of LaSalle Street. Turning the corner onto LaSalle, Officer Jackson drove to a spot between the Continental and a parked car. Momient-El lowered the electric passenger side window and yelled, "You almost hit me." Officer Jackson responded, "Well, what are you going to do about it." Momient-El, leaning over the front seat of his car, shouted "This," raised his hand with a .357 revolver, and shot Officer Jackson in the head. The bullet caused substantial brain damage, leaving Officer Jackson paralyzed on his right side and blind in his right eye.

Because Momient-El shot Officer Jackson prior to the effective date of a then newly enacted sentencing code, he was given the choice of being sentenced under either the new code in effect at the time of sentencing, Ill.Rev.Stat.1977, ch. 38, pars. 8-4(c)(1), 1005-5-3, 1005-8-1 (b)(2), 1005-8-2, or under the provisions that were in effect at the time of trial, Ill.Rev.Stat.1975, ch. 38, pars. 8-4(c)(1), 1005-8-1(b)(2). To aid him in making this election, Momient-El requested that the judge inform him what sentence the judge would impose under each code. The court declined to do so. At sentencing, Momient-El's counsel protested to the court that, after having read both statutes, he could not "make a recommendation to [his] client or even outline all the parameters for him." Counsel stated, "I can read him the statutes under the old and under the new but I don't think I can fulfill my obligation and I can't take such an awful responsibility to tell him what to do." The sentencing judge responded that he was familiar with counsel's reputation and that he was confident that counsel could advise his client of the relevant considerations. The court then proceeded to outline for counsel the basic structure of the two sentencing codes: that the new system is more determinate in that a prisoner knows in advance how many years he will serve and how much "good-time" credit he can earn, and that the old system, in comparison, is less determinate because discretion is placed in a parole board. Momient-El then elected to be sentenced under the old sentencing code, pursuant to which the court imposed a sentence of 50 to 100 years.

In his petition for a writ of habeas corpus, Momient-El argued that he made the wrong choice. He maintained that his uninformed election of the older sentencing code, which was due to the ineffective assistance of his counsel, resulted in his potentially being incarcerated for a longer period than he would have been incarcerated had he been sentenced under the newer, more determinate code. He also argued that appellate counsel's failure to raise this issue as a ground for appeal constituted ineffective assistance of counsel. ² The district court agreed and granted Momient-El's petition on this ground, ordering that he be resentenced within 120 days.

Before reaching the merits of Momient-El's ineffective assistance claims, the district court rejected the government's contention that these claims had been procedurally defaulted. The district court made three alternative holdings, each of which would have independently allowed the district court to reach the merits of Momient-El's claims. The district court found that Momient-El had fairly presented his sixth amendment claim on direct appeal, and, even if this claim had not been fairly presented on direct appeal, that the claim had been presented in Momient-El's post-conviction petition. Because the Illinois Supreme Court failed to state the grounds on which it was dismissing the post-conviction petition, the district court assumed that the Illinois Supreme Court had dismissed the petition on its merits, rather than on the grounds of waiver, which would have constituted an "independent and adequate" state law ground for dismissal, barring federal habeas review. Alternatively, the district court found that, even assuming Momient-El's claim had never been fairly presented to the Illinois courts, he had demonstrated both cause and prejudice to trump any procedural default.

The state appeals, arguing that Momient-El's sixth amendment claims were never fairly presented to the Illinois courts and that the district court therefore should not have reached the merits of these claims. Specifically, the state contends that the district court erred in finding that Momient-El ineffective assistance claim was fairly presented on direct appeal and that his ineffective assistance of trial and appellate counsel claims stemming from his sentencing election were raised in his post-conviction petition. Alternatively, the state argues that Momient-El's post-conviction petition was dismissed on independent and adequate state law grounds. These claims are therefore waived unless Momient-El can show "cause and prejudice" to excuse his procedural default, which, according to the state, Momient-El cannot demonstrate. We will address each of these arguments in turn.

II.

A petitioner may seek federal habeas review only if he has exhausted all available state court remedies, and, in the course of those proceedings, fairly presented his constitutional claims to the state's courts. Farrell v. Lane, 939 F.2d 409, 410 (7th Cir.1991); Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir.1988). While the state concedes that Momient-El has exhausted all avenues of redress in the Illinois courts, it contends that Momient-El's claims were not fairly presented in the course of the state proceedings. We first address the state's contention that Momient-El did not present his sixth amendment claim to the Appellate Court of Illinois on direct appeal.

Momient-El himself acknowledges that the specific issue raised in his habeas petition--that counsel's failure to adequately advise him as to the choice between alternative sentencing codes constituted ineffective assistance of counsel in violation of the Sixth Amendment--was not raised on direct appeal. Nevertheless, he maintains that he did present a related claim on direct appeal and that this claim should have alerted the Appellate Court of Illinois to the existence of his federal constitutional claim. The claim that Momient-El did raise was that the trial court erred as a matter of state law in not disclosing what sentence it would impose under each of the alternative sentencing codes. Momient-El urges us to conclude that, despite the dissimilarity of these claims, his federal ineffective assistance of counsel claim was fairly presented on appeal.

In determining whether an issue has been fairly presented to a state court, this court has looked to whether the petitioner's argument "(1) rel[ied] on pertinent federal cases; (2) rel[ied] on state cases applying constitutional analysis to a similar factual situation; (3) assert[ed] the claim in terms so particular as to call to mind a specific constitutional right; or (4) allege[d] a pattern of facts that is well within the mainstream of constitutional litigation." Verdin v. O'Leary, 972 F.2d 1467, 1473-74 (7th Cir.1992). "[T]he presence of any one of these factors ... does not automatically avoid a waiver; the court must consider the facts of each case." ³ Id. at 1474.

When we apply the factors articulated in Verdin, Momient-El does not fare well. Not only did he not cite any pertinent federal cases or state cases applying constitutional analysis, he did not even mention the Sixth Amendment or the words "ineffective assistance" or so much as criticize counsel's...