Volney McGhee v. Cameron Watson ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3881
VOLNEY MCGHEE,
Petitioner-Appellant,
v.
CAMERON WATSON, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 706 — John Robert Blakey, Judge.
____________________
ARGUED SEPTEMBER 7, 2017 — DECIDED AUGUST 17, 2018
____________________
Before WOOD, Chief Judge, and BAUER and SYKES, Circuit
Judges.
SYKES, Circuit Judge. In 2002 an Illinois jury convicted
Volney McGhee of murder and attempted murder after he
shot two men outside a Chicago gas station. McGhee’s
defense attorney asked the trial judge to poll the jury after
the guilty verdict was read. The judge said, “[a]ll right,” but
inexplicably did not conduct the poll. Instead, he simply
thanked the jurors and dismissed them. That was error: In
2 No. 15-3881
Illinois a criminal defendant “has the absolute right to poll
the jury after it returns its verdict.” People v. McGhee,
964 N.E.2d 715, 719 (Ill. App. Ct. 2012). Yet defense counsel
did not object when the judge moved directly to his closing
remarks without conducting the poll. Nor did he raise the
issue in a posttrial motion. McGhee’s appellate lawyer
likewise failed to challenge the error on direct review.
McGhee’s conviction was affirmed on appeal and in state
collateral review. He then sought habeas relief under
28 U.S.C. § 2254. The district judge denied the petition. On
appeal McGhee raises three claims under Strickland v.
Washington, 466 U.S. 668 (1984), related to the judge’s failure
to poll the jury: (1) his trial counsel was ineffective for failing
to object to the judge’s jury-polling error; (2) his appellate
counsel was ineffective for failing to raise the judge’s error
on appeal; and (3) his appellate counsel was ineffective for
failing to challenge trial counsel’s failure to preserve the
polling error.
McGhee’s first two claims are waived because he did not
present them in his § 2254 petition. The third is procedurally
defaulted. McGhee failed to present it through one complete
round of state-court review, and the ineffective assistance of
postconviction counsel is not cause to excuse a defaulted
claim that appellate counsel was constitutionally ineffective.
Davila v. Davis, 137 S. Ct. 2058, 2063 (2017). We therefore
affirm the judgment.
I. Background
In March 1999 Melvin Thornton and Michael Hopson
were shot outside a gas station in Chicago. Thornton died
from his wounds but Hopson survived. He and another
No. 15-3881 3
eyewitness later identified McGhee as the shooter and
McGhee’s red Oldsmobile as the getaway car. Hopson also
reported that McGhee used a .40-caliber pistol to shoot him
and Thornton. A forensic expert confirmed that a bullet and
five casings recovered at the scene were .40 caliber and the
casings were fired from the same weapon.
McGhee was charged with the murder of Thornton and
the attempted murder of Hopson. A jury found him guilty
on both counts. After the clerk read the verdict, McGhee’s
counsel stated: “I want them polled, Judge.” The judge
responded, “[a]ll right,” but then simply thanked the jurors
and dismissed them without conducting the poll. McGhee’s
counsel neither objected nor raised the mistake in a posttrial
motion. The judge imposed concurrent prison sentences of
30 and 40 years.
On direct appeal McGhee raised several claims, but he
did not challenge the judge’s polling error. The state appel-
late court affirmed, and McGhee petitioned the Illinois
Supreme Court for leave to appeal. Again he did not raise
the jury-polling issue. The state supreme court denied the
petition, and the U.S. Supreme Court denied McGhee’s
subsequent petition for certiorari.
McGhee then filed a pro se postconviction petition in
state court, which he later amended with the aid of counsel.
The amended petition raised several issues, including the
three claims he raises in this appeal: (1) trial counsel was
constitutionally ineffective for failing to object to the judge’s
polling error; (2) appellate counsel was ineffective for failing
to raise the judge’s error on direct appeal; and (3) appellate
counsel was ineffective for failing to challenge trial counsel’s
4 No. 15-3881
ineffectiveness for failing to preserve the error. The judge
dismissed the petition without an evidentiary hearing.
McGhee appealed on several grounds but raised only the
second claim regarding the polling error: he argued that
appellate counsel was ineffective for failing to raise the trial
judge’s error on direct review. See McGhee, 964 N.E.2d at 719.
The Illinois Appellate Court rejected the claim on the merits,
reasoning that the unpreserved error did not satisfy Illinois’s
plain-error doctrine. Id. The appellate court also expressly
noted that McGhee “does not argue that his trial counsel was
ineffective for failing to preserve the issue.” Id. at 720 n.2.
The appellate court thus affirmed the dismissal of McGhee’s
petition.
McGhee once again sought review in the Illinois
Supreme Court, this time including all three postconviction
claims related to the polling error. The court declined re-
view. McGhee followed up with a second petition, which
was returned to him unfiled.
McGhee then moved his case to federal court, filing a pro
se § 2254 petition raising three grounds for relief. Only the
third ground dealt with the jury-polling error: McGhee
alleged that appellate counsel was ineffective for failing to
challenge trial counsel’s ineffectiveness for failing to pre-
serve the error. The district judge concluded that this claim
was procedurally defaulted and the two unrelated claims
lacked merit. He accordingly denied relief and declined to
issue a certificate of appealability. McGhee timely appealed.
We granted a certificate of appealability on the issue of
“the denial of [McGhee’s] right to effective assistance of
appellate counsel in not raising both the trial court’s failure
No. 15-3881 5
to poll the jury and trial counsel’s failure to challenge that
error.” We later amended the certificate to include “the
performance of his trial counsel on any ground preserved in
the state system.”
II. Discussion
On appeal McGhee raises three Strickland-based claims,
each related to the trial judge’s failure to poll the jury. He
argues that (1) his trial counsel was constitutionally ineffec-
tive for failing to preserve the judge’s polling error; (2) his
appellate counsel was ineffective for failing to raise the
judge’s error on direct appeal; and (3) his appellate counsel
was ineffective for failing to challenge trial counsel’s ineffec-
tiveness for failing to preserve the error.
The State argues that McGhee waived the first two claims
and we agree. To preserve these claims, McGhee first needed
to present them to the district judge in his § 2254 petition. See
Johnson v. Hulett, 574 F.3d 428, 432 (7th Cir. 2009). He was
not required to articulate the claims with lawyerly precision
because we construe pro se petitions “liberally.” Ambrose v.
Roeckeman, 749 F.3d 615, 618 (7th. Cir. 2014). Even when
liberally construed, however, McGhee’s petition did not
present these claims for relief.
The petition alleged only one claim related to the jury-
polling error: “Appellate counsel’s performance was defi-
cient because he did not raise the issue of trial counsel’s
ineffectiveness in failing to preserve the polling issue for
appeal.” McGhee never alleged that trial counsel was inef-
fective for failing to preserve the judge’s error or that appel-
late counsel was ineffective for failing to raise the judge’s
error on direct appeal. These are separate and independent
6 No. 15-3881
Strickland-based claims. See Lewis v. Sternes, 390 F.3d 1019,
1026 (7th Cir. 2004) (“[A]n assertion that one’s counsel was
ineffective for failing to pursue particular constitutional
issues is a claim separate and independent of those issues.”).
McGhee’s failure to raise them in his § 2254 petition is a
waiver.
McGhee responds that he alleged facts related to both
claims and that should be sufficient to preserve them. We
disagree. The petition recites that McGhee’s state-court
petition for collateral relief alleged that the “trial court erred
in not polling the jury,” that “appellate counsel was ineffec-
tive for not raising the issue,” and that “trial counsel was
ineffective for not preserving the error for review.” Read in
context, however, these statements merely describe
McGhee’s state-court petition in an effort to show that his
third ground for § 2254 relief—the claim his habeas petition
actually raised—was adequately presented in state court. The
statements are not distinct claims for relief.
McGhee also points out that he invoked Strickland as the
proper legal standard for ineffective-assistance-of-counsel
claims. Simply citing Strickland is not enough. McGhee had
to articulate how his counsel failed him in order to alert the
district judge and the State of the specific grounds for relief
under § 2254.
Finally, McGhee notes that the first and second claims
“were apparent from the record and his [state-court] petition
for postconviction relief.” But McGhee needed to present
them to the district judge in his § 2254 petition. Having
failed to do so, he may not raise them here. See Johnson,
574 F.3d at 433.
No. 15-3881 7
That leaves McGhee’s third claim: that his appellate
counsel was ineffective for failing to raise trial counsel’s
ineffectiveness regarding the polling error. This claim was
squarely presented in McGhee’s § 2254 petition. It neverthe-
less fails because it was procedurally defaulted. A habeas
petitioner “must assert his federal claim through one com-
plete round of state court review, either on direct review or
in post-conviction proceedings.” Bolton v. Akpore, 730 F.3d
685, 694 (7th Cir. 2013) (citing Pole v. Randolph, 570 F.3d 922,
934 (7th Cir. 2009)). McGhee failed to raise this claim either
on direct appeal or in his postconviction appeal, so the claim
is procedurally defaulted.
McGhee maintains that his postconviction appellate brief
adequately raised the claim. There he specifically raised only
appellate counsel’s failure to challenge the judge’s jury-
polling error and unrelated errors by trial counsel. He
argued that “the trial court’s failure to poll the jury upon
request was an error so fundamental it required a reversal of
[his] convictions” and cited to the record where trial counsel
failed to object to the judge’s error. Finally, in his reply brief,
McGhee faulted his appellate counsel in nonspecific, conclu-
sory terms “for not adequately challenging trial counsel’s
representation and failing to raise issues [that] would have
resulted in reversal of [his] convictions and a new trial.”
None of these statements adequately presented this claim
to the state appellate court. McGhee had to do more than
generally allege ineffective assistance of counsel or broadly
challenge the underlying jury-polling issue. Johnson, 574 F.3d
at 432 (“A bare mention of ineffective assistance is not
sufficient to avoid a procedural default … .); Pole, 570 F.3d at
937–38 (“Simply referring to the gunshot residue test, of
8 No. 15-3881
course, is not enough to preserve” the issue of counsel’s
failure to present the test.). He needed to present both the
operative facts and the legal principles that control the claim
in a manner that would sufficiently alert the state court to
the issue. Hicks v. Hepp, 871 F.3d 513, 530–31 (7th Cir. 2017);
see also Johnson, 574 F.3d at 431; Pole, 570 F.3d at 934. He did
not do so. It’s worth repeating that the state appellate court
specifically noted that McGhee “does not argue that his trial
counsel was ineffective for failing to preserve the issue.”
McGhee, 964 N.E.2d at 720 n.2. Trial counsel’s ineffectiveness
on this issue was neither a stand-alone Strickland claim nor a
factual basis for appellate counsel’s ineffectiveness.
In a last-ditch effort to save this claim, McGhee argues
that the procedural default should be excused because his
postconviction counsel was constitutionally ineffective for
failing to raise this claim. After this appeal was briefed,
however, the Supreme Court held that ineffective assistance
of postconviction counsel does not provide cause to excuse
the procedural default of claims challenging the ineffective
assistance of appellate counsel. Davila, 137 S. Ct. at 2063. In
light of Davila, McGhee’s fallback argument cannot succeed.
AFFIRMED.
No. 15-3381 9
WOOD, Chief Judge, concurring in the judgment. While I
agree with my colleagues that Volney McGhee’s petition for a
writ of habeas corpus under 28 U.S.C. § 2254 must be denied,
I reach that result for narrower reasons than they. I would rest
more heavily on procedural default than waiver, and I would
draw a distinction between the standards that apply to our
consideration of the proceedings in the state courts and those
that apply to our review of the district court. Although that
distinction does not call for a different result in the present
case, it may be important in the future.
As the majority notes, McGhee is raising layered claims
about one underlying error: the state trial judge’s failure to
poll the jury after it returned its verdict. At the first layer,
McGhee asserts that his trial lawyer rendered ineffective as-
sistance of counsel, as that is understood by Strickland v. Wash-
ington, 466 U.S. 668 (1984), when he failed to object to this
omission at the crucial time. Second, he argues that his appel-
late counsel was ineffective for failing to raise the trial court’s
error in failing to poll the jury as a point on appeal. Finally
(layer three), he argues that his appellate counsel was ineffec-
tive for failing to argue that trial counsel was ineffective for
failing to complain about the missing poll. The majority con-
cludes that the first two arguments were waived and the third
was procedurally defaulted.
Claim One. My colleagues hold that McGhee failed entirely
to present in the district court his claim that trial counsel was
ineffective for failing to complain about the lack of a poll, in
which case there is a full-blown waiver of the point. I regard
this as a close question. But bearing in mind the rule that pro
se filings are “to be liberally construed,” I would not saddle
McGhee with waiver. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
10 No. 15-3881
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). This court
was willing to issue a certificate of appealability for McGhee
on all three facets of his polling claim, after all. In the same
spirit, I would approach this case from the standpoint of pro-
cedural default, based on McGhee’s failure adequately to pre-
sent this point at the state appellate level.
At the post-conviction stage in the state trial court,
McGhee clearly raised the argument that trial counsel was in-
effective for failing to challenge the court’s failure to poll the
jury. In the state appellate court, however, he confined him-
self to a complaint about his appellate counsel. Then, in his
petition for leave to appeal before the Illinois Supreme Court,
he raised all three points that are now before us. In his hand-
written petition before the federal district court in the current
proceedings, however, he was once again inconsistent. A
straightforward reading of his headings indicates that he was
complaining only about his appellate counsel’s ineffective as-
sistance for failing to raise the polling issue on appeal. Sup-
plemental Appendix (“SA”) 6. But later in the petition, he
challenges the state appellate court’s understanding that he
was not arguing about the effectiveness of his trial counsel. SA
36. McGhee contended that he did raise the claim about trial
counsel and insisted that it was not defaulted. SA 37. It is far
more likely that he failed to recognize the nuances among
these different claims and thought that he was presenting eve-
rything that he needed to both the state courts and the federal
court. Compare Malone v. Walls, 538 F.3d 744, 753–55 (7th Cir.
2008) (holding that petitioner exhausted claim of trial coun-
sel’s ineffectiveness even though he specifically asserted only
appellate counsel’s ineffectiveness). Still, McGhee’s failure to
raise this claim in his state-court appeal precludes our review.
No. 15-3881 11
Though in narrow instances procedural default can be over-
come, McGhee has failed to make the necessary showing—
that is, cause and prejudice. See Davila v. Davis, 137 S. Ct. 2058,
2062 (2017); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In this connection, I believe that it is important to distin-
guish between the clarity with which a petitioner raises his
arguments before the state courts and the standard that ap-
plies to a petition under 28 U.S.C. § 2254 in the federal district
court. The Supreme Court has held that the state courts
should not have to dig through the record to find each claim
a petitioner might be trying to press. See Baldwin v. Reese, 541
U.S. 27, 31 (2004). In deference to the state courts, federal
courts must therefore pay close attention to the “fair present-
ment” aspect of a habeas corpus petition and reject as proce-
durally defaulted any claims that are not properly presented.
If a state court has no idea that a particular claim is being
raised, it has no reason to address that claim. The same comity
concern does not apply once we reach the federal-court stage.
There, the rules governing pro se petitions come into play, and
the federal court has more leeway to structure its own pro-
ceedings.
Claim Three. My colleagues find this claim to be procedur-
ally defaulted. I agree with them on that point, and to that
extent I join the opinion.
For these reasons, I concur in the judgment of the court.