Rodriguez, Juan v. McAdory, Eugene ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3307
JUAN RODRIGUEZ,
Petitioner-Appellant,
v.
EUGENE MCADORY,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 6743—John W. Darrah, Judge.
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ARGUED OCTOBER 31, 2002—DECIDED FEBRUARY 6, 2003
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Before RIPPLE, MANION and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. After a jury trial in Illinois state
court, Juan Rodriguez was convicted of first degree mur-
der and sentenced to eighty years in prison. In this action,
brought under 28 U.S.C. § 2254, Mr. Rodriguez appeals
the district court’s holding that he procedurally defaulted
his Sixth Amendment Confrontation Clause claim. For the
reasons set forth in the following opinion, we affirm the
judgment of the district court.
2 No. 01-3307
I
BACKGROUND
A. Factual Background and State Court Proceedings
Mr. Rodriguez was convicted of murdering a three-year-
old girl, Marion Knee, the daughter of his girlfriend,
Rhonda Knee. In the course of the investigation of the
girl’s death, the police informed Mr. Rodriguez that Ms.
Knee’s son, Gregory Knee, age 4, had told the officers
that he had seen Mr. Rodriguez beat Marion and bang her
head against the floor. Mr. Rodriguez then made state-
ments to the police in which he admitted that he had hit
Marion in the stomach twice, after which she collapsed.
1
She subsequently died.
At his state trial for the murder of Marion, one of Mr.
Rodriguez’s main contentions was that he had confessed
merely to exculpate Ms. Knee. It was Ms. Knee, he con-
tended, who actually had delivered the fatal blows. During
the course of the trial, the state trial court allowed Detec-
tive George Winistorfer to testify that he had informed
Mr. Rodriguez that Gregory had told the detective that,
on the morning in question, Gregory had seen Mr. Rodri-
guez hitting the girl and banging her head into the floor.
1
In his written statement, Mr. Rodriguez admitted to hitting
Marion twice. In his oral statements, as testified to by the po-
lice and the Assistant State’s Attorney, Mr. Rodriguez said he
struck the child twice and then “she took a small step back and
then stood there like she couldn’t catch her breath and she
made no sounds. And then [a] few seconds later she fell to the
floor,” R.21, Ex.C at 18, and “after hitting her twice in the
stomach with the heel of his palm that she gasped, could not
catch her breath, her eyes rolled back in her head and that she
then collapsed on the floor,” id. at 20.
No. 01-3307 3
See R.21, Ex.A at 4. Gregory did not testify. In arguing for
the admission of the Detective’s summation of Gregory’s
account, the State contended that the statement was not
hearsay because it was not offered for its truth, but rather
to show that Mr. Rodriguez had confessed when con-
fronted with an eyewitness statement. The state trial court
did not give the jury a limiting instruction. No other
eyewitness accounts appear to have been given in the
course of the trial.
Mr. Rodriguez was convicted of first degree murder and
sentenced to an eighty-year term in prison. He then ap-
pealed the conviction and sentence to the Illinois Appel-
late Court. Before that court, he conceded that he had
“waived appellate review” of both his Sixth Amendment
Confrontation Clause and his state law hearsay claims “by
failing to include them in a post-trial motion.” R.21, Ex.A
at 7-8. Mr. Rodriguez argued that, despite this failure to
preserve properly these contentions, the state appellate
court could review them for plain error.
In its opinion, the state appellate court, reviewing the
facts and state hearsay law, concluded that admitting the
summary of Gregory Knee’s statement through the tes-
timony of the Detective was error because “[t]he substance
of that conversation,” as opposed to the fact that an incrim-
inating eyewitness statement was made, “was rank hear-
say.” Id. at 9. Because no limiting instruction had been
given, “regardless of the purpose for which the State of-
fered it, nothing prevented the jury from using that state-
ment as substantive evidence.” Id. The state appellate
court then determined that, “even assuming that this
error in admitting Gregory’s hearsay statement were prop-
erly preserved, any such error would have been harmless
given the overwhelming evidence of the defendant’s guilt
of first degree murder.” Id. at 10. The court then reviewed
4 No. 01-3307
the confessions made by Mr. Rodriguez and noted that
they accurately corroborated the medical evidence. The
Illinois court concluded that, when the error is harmless,
as it was in this case, plain error cannot be invoked; the
issue therefore was waived by Mr. Rodriguez’s fail-
2
ure to raise it in a post-trial motion.
B. District Court Proceedings
Mr. Rodriguez brought a petition for a writ of habeas
corpus. See 28 U.S.C. § 2254. The district court deter-
mined that it could not review Mr. Rodriguez’s habeas
petition because Mr. Rodriguez had defaulted procedurally
and, in any event, had failed to present fairly the Sixth
Amendment claim to the state trial court. We granted Mr.
Rodriguez a certificate of appealability on the issue of
whether his Sixth Amendment right to confront witnesses
was violated.
2
The court relied upon People v. Zeisler, 531 N.E.2d 24, 27
(Ill. 1988), in which the Supreme Court of Illinois explained:
Under the doctrine of plain error, a reviewing court is
permitted to address an issue which has been waived where
the evidence is closely balanced or where the error is of
such a magnitude that the accused was denied a fair trial
and fundamental fairness requires that the jury be properly
instructed. (107 Ill.2d R. 451(c).)
Id. As evidenced by its conclusion that any error was harm-
less, the Illinois Appellate Court did not find the evidence here
to be closely balanced or the error to be of such magnitude
that Mr. Rodriguez was denied a fair trial. Thus the Illinois
Appellate Court held that “since the error . . . was harmless,
we must likewise conclude that the plain error doctrine cannot
be invoked.” R.21, Ex.A at 14.
No. 01-3307 5
II
DISCUSSION
Generally, a federal court cannot review on petition for
writ of habeas corpus a federal claim that was defaulted
procedurally in state court. “Under this principle, if a
state court did not reach a federal issue because it ap-
plied, evenhandedly, a state procedural rule, the matter
is closed to the federal habeas court absent a showing
of cause and prejudice.” Willis v. Aiken, 8 F.3d 556, 561 (7th
Cir. 1993).
Mr. Rodriguez concedes that he failed to raise his Sixth
Amendment or his related hearsay claims in a post-trial
motion and that, under Illinois law, he therefore waived
these issues. See R.21, Ex.A at 7-8. That waiver constitutes
a procedural default. Mr. Rodriguez does not argue
“cause and prejudice” to excuse that procedural default.
See Willis, 8 F.3d at 561.
The state court reviewed Mr. Rodriguez’s claims for plain
error. See R.21, Ex.A at 8-14. We previously have stated,
however, that a state court’s “review for plain error does
not cure a procedural default.” Thomas v. Gilmore, 144
F.3d 513, 518 (7th Cir. 1998); see Neal v. Gramley, 99 F.3d
841, 842-44 (7th Cir. 1996); Willis, 8 F.3d at 566-67; Prihoda
v. McCaughtry, 910 F.2d 1379, 1385-86 (7th Cir. 1990); see
also Brooks v. Walls, 279 F.3d 518, 523 (7th Cir. 2002) (not-
ing that “it is settled (at least in this circuit) that a plain-
error exception to a procedural rule does not compromise
that rule’s quality as an independent ground of decision”);
Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001) (stating
that “we view a state appellate court’s review for plain
error as the enforcement of a procedural default”).
In a similar vein, the Supreme Court recently has ex-
plained that, even if the state court’s review in applying
6 No. 01-3307
a procedural rule is “entangled” with the merits, that
“entanglement” is not sufficient to compromise the proce-
dural default. Carey v. Saffold, 122 S. Ct. 2134, 2141 (2002).
Rather, the state court’s holding must “depend[] on a
federal constitutional ruling” in order to open it up for
habeas review. Stewart v. Smith, 122 S. Ct. 2578, 2581 (2002);
see also Brooks v. Walls, 301 F.3d 839, 843 (7th Cir. 2002)
(hereinafter Brooks II) (noting the Supreme Court’s di-
chotomy requiring that to open up the issue for review
by the federal habeas court, the state court’s review must
“be entirely dependent on the merits (as opposed to just
‘entangled’ with the merits)”).
Although a state court’s review of whether “an error
is ‘plain’ often entails at least limited review of the mer-
its,” Brooks I, 279 F.3d at 523, that limited review is at
most “entangled” with the merits and certainly not “en-
tirely dependent on the merits,” Brooks II, 301 F.3d at 843.
Thus the state court’s plain error review of Mr. Rodri-
guez’s claims did not undo his procedural default.
Conclusion
Because Mr. Rodriguez procedurally defaulted his
claim under Illinois law and has not shown cause and
prejudice for that default, federal habeas review is barred.
Consequently, we need not and do not address the fair
presentment issue. The judgment of the district court
must be affirmed.
AFFIRMED
No. 01-3307 7
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-6-03