Terrell v. Godinez
| Citation | 16 F.3d 1225 |
| Decision Date | 15 February 1994 |
| Docket Number | No. 93-1794,93-1794 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within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. Jimmie TERRELL, Petitioner-Appellant, v. Salvador A. GODINEZ, and Roland W. Burris, Respondents-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Before ESCHBACH, FLAUM and RIPPLE, Circuit Judges.
Petitioner Jimmie Terrell, a prisoner in Illinois, appeals from a district court order denying his petition for habeas corpus, 28 U.S.C. Sec. 2254. Terrell raises 20 separate grounds for relief in his habeas petition. For the reasons stated in the attached Memorandum Opinion and Order, the decision of the district court is AFFIRMED.
v.
Salvador Godinez, Warden, and Roland Burris, Attorney
General of the State of Illinois, Respondents.
Docketed Feb. 26, 1993.
MEMORANDUM OPINION AND ORDERFollowing a jury trial, Jimmie Terrell was found guilty of six counts of murder. The six victims died in an apartment building fire caused by arson. Terrell allegedly had two accomplices in the setting of the fire. One of the alleged accomplices, Faye Byas, testified against Terrell at the trial. The jury did not impose the death penalty and the judge sentenced Terrell to six concurrent terms of natural life imprisonment. Presently pending is Terrell's petition for writ of habeas corpus and respondents' motion to dismiss the petition.
Terrell's petition contains 20 claims for relief. They are summarized as follows:
(1) The prosecution suppressed exculpatory evidence concerning statements of Terrell's alleged accomplices.
(2) Trial counsel was ineffective in (a) failing to adequately investigate; (b) failing to advise Terrell as to the witnesses counsel would call; (c) failing to cross-examine Byas adequately; (d) failing to raise the issue of discriminatory preemptory challenges; and (e) failing to support objections with adequate arguments.
(3) The prosecution's use of peremptory challenges to exclude blacks from the jury.
(4) The cumulative effect of the prosecutorial misconduct alleged in the other claims.
(5) Denial of due process and equal protection. (The specific wrongdoing is not identified.)
(6) The evidence does not exclude every reasonable hypothesis consistent with innocence.
(7) Ineffective assistance of appellate counsel in failing to raise claims 1 through 6, 12, and 13.
(8) Insufficiency of the evidence to support guilt beyond a reasonable doubt.
(9) Disparity of Byas's sentence and Terrell's sentence.
(10) Improper sentence of six concurrent terms.
(11) Error in giving accountability instructions and refusing Terrell's proposed instruction regarding leniency given to Byas.
(12) Inflammatory remarks of prosecution in opening and closing statements.
(13) Trial court error in (a) failing to permit certain cross-examination of prosecution witness Larry Thomas and (b) accepting Byas's testimony as a basis for conviction.
(14) The prosecution withheld exculpatory evidence regarding promises to Byas and notes of interviews with Byas.
(15) Certain evidence should not have been admitted because of failure to give Miranda warnings.
(16) Ineffective assistance of post-conviction counsel.
(17) Terrell was sentenced under an incorrect statutory provision.
(18) Violation of the Eighth and Fourteenth Amendments by imposing a natural life sentence without consideration of mitigating factors.
(19) Cumulative effects of trial court's erroneous evidentiary rulings.
(20) Ineffective assistance of trial counsel in failing to interview or present Terrell's family members' testimony.
On direct appeal to the Illinois Appellate Court, Terrell was represented by Chester Blair, who had also represented him at the trial. In that appeal, Terrell raised claims 8, 9, 11, 17, and 18. 1 The Appellate Court affirmed. People v. Terrell, 111 Ill.App.3d 1161, 455 N.E.2d 573 (1st Dist. Dec. 28, 1982) (unpublished order) ("Terrell I "). Still represented by the same counsel, Terrell petitioned for leave to appeal to the Illinois Supreme Court. In that petition, he raised claims 9, 11, 17, and 18. The petition for leave to appeal was denied. People v. Terrell, --- Ill.2d ----, --- N.E.2d ---- (19__) ("Terrell II ").
Terrell then filed a pro se post-conviction petition. Counsel was appointed to represent Terrell, but she did not amend the petition. In the post-conviction petition ("Terrell III "), Terrell apparently raised claims 1, 2, 7, 8, 12, 13(a), 14, 15, and 20. 2 The petition was denied and Terrell appealed. Terrell was represented by different counsel on appeal, Dennis Doherty. In that appeal, it was argued that post-conviction counsel had provided ineffective assistance. The state argued that all issues raised in the petition were waived or, alternatively, that post-conviction counsel had not been ineffective. The Illinois Appellate Court affirmed the denial of post-conviction relief. People v. Terrell, 176 Ill.App.3d 1169, 549 N.E.2d 358 (1st Dist. Dec. 30, 1988) (unpublished order) ("Terrell IV "). The court held that the pro se petition had been sufficiently clear, there was nothing to show that any amendments to the petition would have been successful, and that the post-conviction representation was not ineffective. The merits of the claims, other than ineffective assistance of post-conviction counsel, were not addressed in Terrell's brief and were not addressed by the court. Proceeding pro se, Terrell petitioned for leave to appeal. He conclusorily stated that trial counsel provided ineffective assistance and that the evidence was insufficient to prove him guilty beyond a reasonable doubt; 3 he did not make any reference to ineffective assistance of post-conviction counsel. Leave to appeal was denied. People v. Terrell, 125 Ill.2d 573, 537 N.E.2d 817 (April 5, 1989) ("Terrell V ").
In September 1990, Terrell filed a second pro se post-conviction petition. In that petition, he raises all the claims contained in his federal habeas corpus petition. The trial court denied the petition without a hearing. ("Terrell VI "). The public defender represented Terrell on appeal, but moved to withdraw on the ground that he found no arguable basis for collateral relief. 4 See generally Anders v. California, 386 U.S. 738 (1967). The Illinois Appellate Court granted the motion and affirmed, stating it also found "no issues of arguable merit." People v. Terrell, --- Ill.App.3d ----, --- N.E.2d ---- (1st Dist. Sept. 10, 1991) (unpublished order) ("Terrell VII "). Leave to appeal was denied. People v. Terrell, 143 Ill.2d 646, 587 N.E.2d 1023 (Feb. 5, 1992) ("Terrell VIII "). Nothing is provided regarding this petition for leave to appeal; it is assumed Terrell raised the same issues that were raised in the Appellate Court.
Respondents argue that most of the claims raised in the present petition have been waived. A petitioner who fails to seek review of a claim in the state's highest court generally waives the opportunity to raise that claim in a federal habeas corpus petition. Nutall v. Greer, 764 F.2d 462 (7th Cir.1985). Other than the "extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent," Murray v. Carrier, 477 U.S. 478, 496 (1986), a petitioner must show cause and prejudice for failing to raise a claim before the state's highest court. Coleman v. Thompson, 111 S.Ct. 2546, 2565 (1991). Ineffective assistance of counsel at trial or ineffective assistance of appellate counsel on an appeal of right to the Illinois Appellate Court can constitute cause for failing to raise a claim. See Freeman v. Lane, 962 F.2d 1252, 1258-59 (7th Cir.1992). Ineffective assistance on a discretionary appeal to the Illinois Supreme Court or in a post-conviction proceeding, both of which are proceedings where there is no constitutional right to counsel, cannot constitute cause. See Coleman, 111 S.Ct. at 2566-68; Lane v. Richards, 957 F.2d 363, 365 (7th Cir.), cert. denied, 113 S.Ct. 127 (1992); Morrison v. Duckworth, 898 F.2d 1298, 1300-01 (7th Cir.1990); United States ex rel. Johnson v. People of Illinois, 779 F.Supp. 81, 83-85 (N.D.Ill.1991). Also, ineffective assistance of counsel cannot support cause unless such a claim was first adequately presented to the state's highest court. Morrison, 898 F.2d at 1300.
Claims 9, 11, 17, and 18 are not waived because they were raised on direct appeal to the Illinois Appellate Court and the Illinois Supreme Court. 5
Claims 6 and 8 are waived because they could have been raised on direct appeal, as they were in the direct appeal to the Illinois Appellate Court. Appellate counsel preserved these claims for appeal by raising them in the Appellate Court. Appellate counsel's failure to raise the issues in the petition to the Illinois Supreme Court cannot constitute cause because Terrell had no constitutional right to the assistance of counsel on that appeal. See Coleman, supra; Johnson, supra. Compare, Freeman, supra.
Respondents essentially ignore any effect that the post-conviction petitions may have had in preserving claims for federal habeas corpus review. They ignore whether the ineffective assistance of trial counsel claims are the type that could only have been raised in a post-conviction proceeding. See Cruz v. Warden of Dwight Correctional Center, 907 F.2d 665, 670 (7th Cir.1990) (). Respondents argue that Terrell raises ineffective assistance of appellate counsel for the first time in the...
To continue reading
Request your trial