United States ex rel. Franklin v. Gilmore (993 F. Supp. 1162, 1998)

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

William Franklin (“Franklin”) has filed a 28 U.S.C. § 2254 (“Section 2254”) petition for writ of habeas corpus (“Petition”). Franklin challenges his conviction for murder and the ensuing verdict sentencing him to death. For the reasons stated in this memorandum opinion and order, Franklin’s Petition is denied and this action is dismissed.

Facts

' Section 2254(d) makes the state court’s findings of fact presumptively correct in any federal habeas proceeding. In this instance the factual background stated in the Illinois Supreme Court’s opinion on direct review (“Franklin I," 135 Ill.2d 78, 88-93, 142 Ill.Dec. 152, 552 N.E.2d 743, 748-50 (1990)) fairly reflects the record. This opinion therefore adopts and repeats that version ' verbatim:

The following evidence was adduced at the guilt phase of the defendants’ trial. The body of Elgin Evans, Jr., was discovered in the vicinity of the Ford Motor Company plant in Chicago Heights, Illinois, on February 6,1980. Dr. Tae An, the pathologist assigned to the case, testified that Evans was shot once in the right side of his head and once in the left side of his chest, and that the cause of his death was multiple gunshot wounds.

Mose Evans, the victim’s grandfather, testified that at approximately 8 a.m. on February 6, 1980, he saw his grandson enter a dirty grey or blue four-door automobile near the intersection of 16th and Hanover Streets in Chicago Heights. He testified that he recognized the defendant in the neighborhood three or four times prior to February 6, 1980. Evans stated that on January 27, 1982, two police officers questioned him and showed him an array of photographs from which he identified the defendant as the driver of the car. On cross-examination, Evans admitted that he had seen the driver for “[n]o more than a second.” Evans emphasized that he saw the front of the driver’s face, but at a preliminary hearing he testified that he saw only the back of the driver’s head and the side of his face.

Ulric “Buddy” Williams testified that at approximately 9 a.m. on February 6, 1980, a man named Marion Holmes called and asked him to “jump” his car. Williams went to Holmes’ residence and worked on the car. A short while later the defendant arrived in a grey, four-door Ford LTD. Williams identified the defendant as the driver of the car. The defendant got out of the ear, informed Williams that Elgin Evans was in the passenger’s seat, and went inside to speak with Holmes.

Williams stated that the defendant and Holmes returned a few minutes later and told him that they were going to “take a ride” in the defendant’s car. Williams drove, Holmes sat in the passenger’s seat and the defendant and Evans sat in the back seat. Williams testified that he had never met Evans, but approximately one week earlier he, the defendant and Holmes looked for Evans, because Evans allegedly set up a robbery of a gambling operation. Williams testified that Evans was under the impression that the defendant was going to supply him with cocaine to sell. Williams further testified that both he and Evans thought that the purpose of the trip was to find a place to dispose of stolen auto parts.

Williams testified that Holmes directed him to an area near the Ford Motor Company plant in Chicago Heights. Holmes then told Williams, ‘We don’t need you for this,” and the defendant told Evans, “Elgin, give us a hand with this.” Williams stated that he still was under the impression that they were disposing of stolen auto parts, and that he was acting as a lookout. He stated that the defendant, Holmes and Evans exited and went to the trunk of the car. Williams testified that in the rearview mirror he saw the defendant pull a “small pistol” from his-jacket and shoot Evans in the head; he then saw the defendant bend over Evans and heard another gunshot.

Williams stated that the defendant and Holmes returned to the car and Holmes told him where to drive. As they were driving, the defendant wiped off the pistol and threw it into the “Calumet Sag Channel.” Williams drove to the defendant’s house, then to Holmes’ house, and he did not see either one of them afterwards. In November 1981, Williams was taken into custody in Lake' County, Indiana. Williams learned that Holmes was also in custody at the same facility and heard that Holmes planned to kill him. Williams then told the authorities of the Evans murder. Williams spoke with Agents James Collier and Tom Pritchett of the Illinois Department of Law Enforcement on five or six occasions between November 1981 and January 1982.

Williams agreed to plead guilty to an armed robbery charge, to testify truthfully against the defendant in the instant case, and to testify truthfully against Holmes in two cases. In return, the State agreed to recommend a six-year sentence on the armed robbery plea and to arrange to have Williams’ family relocated. After serving three years’ imprisonment on the armed robbery sentence, Williams was paroled and relocated with his family.

Williams testified that the State made no promises of leniency with respect to Evans’ murder. He stated that he was charged for that murder, but after a preliminary hearing the circuit court found that there was no probable cause to charge him for that offense.

Williams testified that he had three prior felony convictions: in July 1980, he pled guilty to possession of a stolen motor vehicle and was sentenced to two years’ probation; in August 1980, he was convicted of possession of a controlled substance and was sentenced to 18 months’ imprisonment; and in June 1981, he was convicted of mail fraud, fined and placed on work release.

Agent James Collier of the Illinois Department of Law Enforcement testified that he and Agent Tom Pritchett met with Williams on several occasions between November 1981 and January 1982. Collier also testified that he conducted a photo lineup at Mose Evans’ home in January 1982, and Evans identified the defendant as the driver of the ear that his grandson entered in February 1980.

The defense rested without presenting any evidence. A jury found the defendant guilty of the murder of Elgin Evans, Jr. Following the conviction, the State requested a hearing to determine whether the death penalty should be imposed. After the first stage of the sentencing hearing, the same jury found that the defendant was at least 18 years of age at the time of the offense (Ill.Rev.Stat.1979, eh. 38, par. 9-l(b)), and that there was one statutory aggravating factor in existence rendering the defendant eligible for the death penalty (Ill.Rev.Stat.1979, ch. 38, par. 9-l(b)(3)(the defendant was convicted of murdering two or more individuals)). At the second stage of the sentencing hearing, the State presented the following evidence in aggravation. In December 1982, the defendant was convicted and sentenced to a ,term of 100 to 300 years’ imprisonment for the 1976 murder of James Roland. Terrence Burns, an assistant State’s Attorney involved in that case, recounted the evidence adduced at the trial. Seven color photographs of Roland were also introduced into evidence.

The State presented additional evidence in aggravation. In June 1965, the defendant pled guilty to possession of a narcotic drug and was sentenced to three years’ probation. In October 1965, the defendant pled guilty to bank robbery and was sentenced to 15 years’ imprisonment, but was released after serving five years’ imprisonment. Finally, the evidence adduced during the guilt phase of the defendant’s trial was introduced into evidence by way of stipulation.

The defendant presented the following evidence in mitigation. Seven of his children testified that the defendant has been a positive influence in their lives. All seven had completed high school, several had attended college, and all seven were employed.

After considering all of the evidence in aggravation and mitigation, the jury found that there were no mitigating factors sufficient to preclude the imposition of the death penalty.

Holmes was tried separately and convicted of first-degree murder for his role in Evans’ death, largely on the basis of Williams’ testimony. On direct appeal, however, the Illinois Appellate Court (People v. Holmes, 238 Ill.App.3d 480, 179 Ill.Dec. 607, 606 N.E.2d 439 (1st Dist.1992), leave to appeal denied, 149 Ill.2d 655, 183 Ill.Dec. 866, 612 N.E.2d 518 (1993)) concluded that the prosecution had violated Holmes’ right to a fair trial by misleading the jury about Williams’ involvement in the murder. As a result the Appellate Court granted Holmes a new trial.

Procedural History

After his trial Franklin first appealed directly to the Illinois Supreme Court, which affirmed both his conviction and death sentence in Franklin I. Franklin’s petition for rehearing from that unanimous opinion was denied, as was his ensuing petition to the United States Supreme Court for a writ of certiorari (Franklin v. Illinois, 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 182 (1990)).

Next Franklin sought relief under the Illinois Post-Conviction Hearing Act (725 ILCS 5/122-1 through 5/122-7), represented by his present counsel (who had not handled the trial or the direct appeals). After an evidentiary hearing as to one of Franklin’s post-conviction claims, the original trial judge dismissed all 15 of those claims on May 4,1993, followed by the denial of his petition for reconsideration. ■ On June 22, 1995 the Illinois Supreme Court affirmed the judgment of the Circuit Court denying the post-conviction claims (“Franklin II,” 167 Ill.2d 1, 212 Ill.Dec. 153, 656 N.E.2d 750 (1995)), rejecting all eight of Franklin’s claims over the dissent of Justice McMorrow as to one claim. Something over three months later that court denied Franklin’s petition for rehearing. Finally, the United States Supreme Court denied Franklin’s petition for a writ of certiorari (Franklin v. Illinois, 517 U.S. 1122, 116 S.Ct. 1357, 134 L.Ed.2d 524 (1996)).

On August 26, 1996 Franklin filed his Petition seeking federal habeas relief from this Court- under Section 2254. He advances six constitutional bases as the predicates for his claims of unlawful detention:

1. Franklin’s due process right to receive a fair trial was violated when the prosecution misled the jury about the extent of Williams’ involvement in the murder of Evans.

2. In refusing to allow Franklin to estop the prosecution from relitigating issues decided in the prior case involving Holmes (to which it will be recalled that Franklin was - not a party), the Illinois Supreme Court violated Franklin’s double jeopardy rights under the Fifth Amendment.

3. Franklin was denied effective assistance of counsel at trial because his lawyer did not impeach Williams effectively, did not tender an instruction to the jury that Williams was an accomplice in the murder and did not object to improper closing arguments by the prosecution.

4. Franklin was denied his rights under the Eighth and Fourteenth Amendments when the trial judge failed to tell the jury at the sentencing hearing that a natural life sentence was the only alternative to the death sentence and when the prosecution therefore misled the jury about Franklin’s potential for future dangerousness.

5. At the sentencing stage the trial judge inaccurately and incorrectly instructed the jury that its verdict, whether for or against a death sentence, had to be unanimous, in violation of Franklin’s rights under the Eighth and Fourteenth Amendments.

6. Franklin was denied effective assistance of counsel at his sentencing hearing because his attorney did not adequately investigate and prepare evidence in mitigation, did not object to improper arguments by the prosecution and did not tender a jury instruction that the only alternative to the death sentence was natural life without possibility of parole.

Procedural Framework

Before any federal court can address the merits of a Section 2254 petition, the petitioner must have both exhausted his state remedies and avoided any procedural defaults (Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir.1996)). Claims are exhausted “by either (a) providing the highest court in the state a fair opportunity to consider the constitutional issue, or (b) having no further available means for pursuing review of one’s conviction in state court” (Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir.1985) (per curiam)). Because it is clear from the procedural history here that Franklin satisfies the second of those alternatives, this opinion turns to the separate doctrine of procedural default.

While “failure to exhaust ... refers only to issues that have not been presented to the state court but still may be presented” (Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir.1992)), procedural default occurs either (1) when a state court has declined to address a prisoner’s federal claims because the prisoner failed to meet an independent and adequate state procedural requirement (Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)) or (2) when a claim could have been but was not brought before a state court and can no longer be asserted in that forum (Resnover, 965 F.2d at 1458).

Once barred on procedural default grounds, a claim will not be cognizable in a federal habeas proceeding unless the petitioner can clear one of two hurdles established by Coleman, 501 U.S. at 750:

We now make it explicit:- In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is b.arred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Thus it is necessary at the outset to determine which if any of Franklin’s claims are procedurally defaulted and whether Franklin may avoid the procedural bar to any such claims by demonstrating either cause and prejudice or a fundamental miscarriage of justice.

Any claims that manage to survive the intricate procedural obstacles that may preclude relief as a threshold matter must then satisfy Section 2254’s stringent standard for granting habeas claims that the state courts considered and rejected on their merits. Section 2254(d)(1) reads:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Franklin has not challenged any determination of the facts as made by the Illinois courts. Instead he claims that he is the victim of numerous unreasonable applications of law. Section 2254(d) provides only limited review of state decisions in that regard, for its “ ‘unreasonableness’ standard allows the state court’s decision' to stand if it is one of several equally plausible outcomes” (Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir.1997)).

. ■' Due Process Claim

Franklin’s central plea for habeas relief contends that the prosecution violated his due process rights by misleading the jury about Williams’ real involvement in the Evans murder. Franklin did not advance that due process claim on direct appeal, instead raising the issue for the first time in his post-conviction review petition. That delay proved costly, for it led the Illinois Supreme Court to rule that Franklin had waived the claim for failure to bring it on direct review (Franklin II, 167 Ill.2d at 15, 212 Ill.Dec. 153, 656 N.E.2d at 756). After further deciding that “the doctrine of fundamental fairness does not support relaxation of the waiver rule” for Franklin, the Supreme Court denied Franklin’s due process claim without reaching its merits (id.).

Franklin nonetheless asserts that he is not bound by the procedural bar identified in Coleman. That bar applies only to'issues decided pursuant to independent and adequate state grounds of decision (Coleman, 501 U.S. at 750). Here there is no question that waiver generally constitutes an independent and adequate state law ground for Coleman purposes (Aliwoli v. Gilmore, 127 F.3d 632, 634 (7th Cir.1997)), but Franklin challenges the adequacy of Franklin II’s application of Illinois waiver law to his claim.

Franklin argues that the Franklin II determination that he waived his due process claim relied on legal rules that were not firmly established in state practice. State court decisions are not adequate to bar federal habeas review unless they rest upon “firmly established and regularly followed state practice” (James v. Kentucky, 466 U.S. 341, 348-51, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)). In practical terms, the state rule at issue “must have been ‘firmly established and regularly followed’ by the time as of which it is to be applied” (Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)). Analysis of those standards requires close scrutiny of Franklin’s allegations and the ruling of the Illinois Supreme Court. In that regard Franklin contends that the prosecution violated his due process rights by misleading the jury in two ways.

First, he says that the prosecution implied that because murder charges against Williams had been dismissed for lack of probable cause, Williams was judicially cleared of Evans’ murder. Franklin points out that the no-probable-cause finding had been made without the benefit of a statement that Williams made to Will County police in which he potentially incriminated himself as an accomplice to the crime and contradicted his trial testimony. Because Williams could still be indicted on the basis of that statement, Franklin argues that it was improper for the prosecution to imply that Williams had been found innocent of the murder.

Second, Franklin claims that the prosecution did not disclose to the jury that Williams expected leniency for his involvement in Evans’ murder in exchange for his testimony implicating Franklin. Williams admitted at trial that he received a lighter sentence on a separate armed robbery charge in exchange for a guilty plea and an agreement to testify truthfully against Holmes and Williams. At a joint preliminary hearing for Franklin and Holmes, however, Williams also said that he hoped for leniency on the murder charge as well. Franklin argues that if the jury had known about that expectation, it could reasonably have decided that Williams had struck an additional bargain with the prosecution to ensure that he would not be charged with being an accomplice in the Evans murder.

Franklin had access to both the Will County statement and the transcript of Williams’ joint preliminary hearing testimony during trial. In fact, his attorney even attempted to question and impeach Williams with both documents, but neither document was ever made a trial exhibit, published to the jury or placed in the common law record. Franklin argued in his post-conviction appeal (and argues again before this Court) that the absence of those documents from the record before the Illinois Supreme Court prevented him from asserting his due process claim on direct appeal. Hence he contended (and still contends) that his later post-conviction proceeding was the appropriate forum in which to raise the issue.

Those arguments failed before the Illinois Supreme Court. After noting Franklin’s access to the records during the trial and his defense counsel’s attempt to question and impeach Williams with them, that Court ruled that he could have brought the claim on direct review (Franklin II, 167 Ill.2d at 15, 212 Ill.Dec. 153, 656 N.E.2d at 756). Franklin II, id. also pointed out that Holmes had raised those same issues on direct appeal in his ease, stating that Franklin could have done the same. Indeed, Holmes had also failed to enter either the transcript or the Will County'statement into evidence at trial, but he was granted leave under Illinois S.Ct.R. 329 (“Rule 329”) to supplement the record with copies of the documents.

Franklin disputes whether firmly established Illinois law at the time of his appeal allowed him to supplement the record under Rule 329. To that end he cites a number of Illinois civil cases that have interpreted Rule 329 narrowly, most relevantly Nameoki Township v. Cruse, 155 Ill.App.3d 889, 108 Ill.Dec. 503, 508 N.E.2d 1080 (5th Dist.1987). Nameoki refused to supplement the record with material that had not been filed in court or considered by the trial judge, lest such supplementation might “transmute [Rule 329] into an authorization for'trial de novo in the reviewing court” (id. at 895, 108 Ill.Dec. 503, 508 N.E.2d at 1084, quoting People v. Carroll, 49 Ill.App.3d 387, 396, 364 N.E.2d 408, 415 (1st Dist.1977)). Franklin complains that Illinois law at the time put him between the proverbial rock and hard place: Either he had to bring his due process claim on direct appeal and thus risk losing his Rule 329 motion to supplement thé record, in which case the court might decide on the claim with an incomplete record, or he had to wait to bring the claim on post-conviction review and thus risk having forfeited the claim by not raising it earlier. Franklin says that Franklin II resolved that dñemma by forcing defendants to accept the risk of losing a Rule 329 motion, but he concludes that because that rule was not firmly established before his direct appeal it was not an adequate state ground of decision.

But that contention obscures the fact that Franklin’s counsel, and not the state of the law in Illinois, were responsible for putting him in that potential quandary. Franklin’s trial counsel neglected to enter the crucial documents into the record' despite having questioned and impeached Williams with them. That omission was then compounded by the failure of Franklin’s appellate counsel to attempt to use Rule 329. In effect, Franklin is trying to excuse his lawyers’ failure to try to supplement the appellate record by focusing , on the original failure to put the documents into the record in the first place.

Franklin also overstates the state of uncertainty in Illinois law during his direct appeal. At that time Illinois courts in criminal cases had treated Rule 329 as “a very broad provision” that is “designed to facilitate the amendment of the record