Perruquet, James v. Briley, Kenneth R. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2981
JAMES PERRUQUET,
Petitioner-Appellant,
v.
KENNETH R. BRILEY,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 01 C 1406—Michael M. Mihm, Judge.
____________
ARGUED JANUARY 9, 2004—DECIDED NOVEMBER 17, 2004
____________
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Petitioner James Perruquet
stabbed Christopher Hudson to death during a struggle in
1995, and an Illinois jury later found Perruquet guilty of
first-degree murder. Perruquet now seeks a writ of habeas
corpus, asserting in relevant part that the state trial court
deprived him of due process when it refused to admit evidence
and instruct the jury on self-defense. The district court
concluded that Perruquet had not adequately made out a
due process claim and that, even if he had, the claim was
without merit. We conclude that Perruquet procedurally
defaulted the due process claim by not fairly presenting it to
the Illinois courts.
2 No. 02-2981
I.
Perruquet and Hudson both lived in a trailer park near
Goodfield, Illinois, a small town in the central part of the
state. Hudson had become friends with Perruquet’s wife,
Tammy Perruquet (“Tammy”), and this was the source of
some tension between the Perruquets. On the evening of
April 14, 1995, after Tammy returned home from a walk, she
and Perruquet began to argue. Perruquet, thinking that
Tammy had been out with Hudson, accused her of having an
affair with him. The argument continued on and off over the
course of the evening, escalating in volume. Hudson, evi-
dently aware of the fighting and concerned that Perruquet
might be hurting Tammy, called their trailer repeatedly,
leaving voice messages when they did not pick up the phone.
When he called for the third time, Perruquet answered and
argued with him. Subsequently, Perruquet left the trailer
and went to sit in his car. While he was gone, Hudson called
again and Tammy spoke with him. During their conversa-
tion, Tammy heard something “bang” against the trailer. She
hung up the phone and went to investigate the noise. She
opened the trailer to find Perruquet standing there. He had
heard Tammy speaking to Hudson and was enraged;
Perruquet said that he had heard Tammy tell Hudson she
loved him. The two began to argue again, violently. Perruquet
grabbed Tammy and pushed her down on a couch. Tammy
was screaming, and Perruquet was attempting to stifle her
screams by placing his hand over her mouth.
Hudson’s apparent effort to intervene at this point cost
him his life. While Tammy and Perruquet were arguing,
Hudson knocked on the door of their trailer. Perruquet opened
the door slightly and told Hudson that the matter was none
of his business. Perruquet attempted to close the door, but
Hudson persisted in attempting to gain entry. Ultimately,
Perruquet lunged out the door at Hudson and the two men
fell to the ground. Witnesses saw Perruquet, who landed on
top of Hudson, making motions with his arm; in fact,
No. 02-2981 3
Perruquet was stabbing Hudson. Hudson died as a result of
internal bleeding from several wounds to his chest area.
Perruquet subsequently returned to his trailer and, accord-
ing to a number of witnesses, said to Tammy, “Look what
you made me do” or words to that effect.
Before police arrived, Perruquet left the scene and spent
the night in a motel. He was apprehended the following day.
A medical examination of Perruquet conducted on the even-
ing of his apprehension revealed two small puncture wounds
on Perruquet’s abdomen which required no treatment other
than cleansing.
At trial, Perruquet sought to show that he had killed
Hudson in self-defense. He testified that Hudson had yelled
at him earlier that day that he would “tear [Perruquet’s]
head off,” “kick [his] ass,” and (ultimately) “kill [him]”.
Perruquet also wanted to elicit testimony from two other
witnesses who had heard Hudson say that he would kill
Perruquet and also to establish that Hudson had a criminal
record that included a conviction for domestic battery. The
trial court sustained the State’s objection and barred this
line of testimony; it also declined to instruct the jury on self-
defense. The court reasoned that in order for Perruquet to
assert self-defense, he would have to admit that he had
stabbed Hudson; but Perruquet had not done this. Although
Perruquet had acknowledged the physical altercation with
Hudson in his trial testimony, he had not admitted that he
stabbed Hudson. Perruquet had testified that when he
attempted to shut the trailer door on Hudson, a tug of war
had ensued. Perruquet said that he felt a “sting” in his side.
Thinking that Hudson had stabbed him, he went “flying” out
the door at Hudson. They landed hard on the concrete out-
side the trailer, and Perruquet feared that he might have
broken Hudson’s neck. Perruquet denied having picked up
a knife before fighting with Hudson. He could offer no ex-
planation for how Hudson received the fatal stab wounds.
4 No. 02-2981
Indeed, he testified that he did not even realize that Hudson
had been stabbed until the owner of the trailer park so in-
formed him later.
The jury convicted Perruquet of first-degree murder, and
the trial court ordered him imprisoned for his natural life.
Perruquet appealed to the Illinois Appellate Court, which
affirmed his conviction. That court sustained the trial court’s
refusal to admit evidence and instruct Perruquet’s jury on
self-defense:
Defendant denied having a knife and stated he did not
know how Hudson got stabbed. The only injury he be-
lieved Hudson may have suffered was a broken neck. He
testified that he first learned of the stabbing during a
telephone call he made after he left the scene. Since
defendant did not admit stabbing Hudson, he was not
entitled to claim that his use of force was justified by
Hudson’s own acts. Thus, the trial court did not err in
refusing to admit evidence of prior threats from Hudson
or evidence of Hudson’s criminal history, nor did it err
in refusing to instruct the jury on self-defense.
People v. Perruquet, No. 4-96-0255, 711 N.E.2d 832, Order at
20 (Ill. App. Ct. Jul. 22, 1997) (unpublished). Notably, the
court’s decision on this issue was based solely on state law;
the court did not consider whether the decision to preclude
Perruquet from pursuing a theory of self-defense deprived
him of due process. See id. at 19-20. Perruquet petitioned for
leave to appeal to the Illinois Supreme Court, arguing inter
alia that the trial court had improperly precluded him from
asserting self-defense. That court denied his petition.
Perruquet later sought post-conviction relief from the trial
court on a variety of claims, most of which the court sum-
marily dismissed without a hearing. The court did conduct
an evidentiary hearing on Perruquet’s claim that his trial
counsel had not provided him with effective assistance of
counsel in helping him to decide how the jury would be in-
No. 02-2981 5
structed on the charges, but the court ultimately ruled
against Perruquet on this claim. People v. Perruquet, No. 95
CF 44, Order (Cir. Ct. 11th Judicial Cir. Jan. 18, 2000). That
was the sole issue that Perruquet appealed to the Illinois
Appellate Court (R. 13 Ex. F), which affirmed the denial of
post-conviction relief. People v. Perruquet, No. 4-00-0159,
779 N.E.2d 530, Order (Ill. App. Ct. Nov. 8, 2000) (unpub-
lished). The Illinois Supreme Court denied him leave to
appeal on that same issue.
Perruquet subsequently filed his pro se petition for a writ
of habeas corpus in the Central District of Illinois. Among
other claims, Perruquet asserted that the state trial court
had deprived him of his Fourteen Amendment due process
right to a fair trial when the court excluded the evidence
through which he sought to establish that he had killed
Hudson in self-defense and refused to instruct the jury on
self-defense. R. 7 at 6a-6d.
The district court concluded that Perruquet’s due process
claim was either non-cognizable on habeas review or with-
out merit. As the court recognized, a state trial court’s deci-
sion not to admit evidence and its refusal to give a parti-
cular jury instruction generally do not implicate federal
constitutional rights. R. 16 at 8 (citing Dressler v. McCaughtry,
238 F.3d 908, 914 (7th Cir. 2001)); see Estelle v. McGuire,
502 U.S. 62, 71-72, 112 S. Ct. 475, 482 (1991) (citing Marshall
v. Lonberger, 459 U.S. 422, 438 n.6, 103 S. Ct. 843, 853 n.6
(1983)). Due process does entitle a defendant to a fair trial;
but only if the state court committed an error so serious as
to render it likely that an innocent person was convicted
can the error be described as a deprivation of due process.
Anderson v. Sternes, 243 F.3d 1049, 1053 (7th Cir. 2001);
Howard v. O’Sullivan, 185 F.3d 721, 723-24 (7th Cir. 1999).
Perruquet did broadly assert that the trial court’s errors in
precluding his claim of self-defense were sufficiently grave
as to constitute a due process violation. See R. 7 at 6d. But,
in the court’s view, Perruquet had done little more than
6 No. 02-2981
“repackage[ ]” his state law claims as a federal due process
claim, R. 16 at 8-9 (citing Carson v. Director of Iowa Dep’t
of Correctional Servs., 150 F.3d 973, 975 (8th Cir. 1998)),
“parrot[ing]” the pertinent criteria without actually under-
taking to show how the adverse rulings had resulted in a
trial that was so fundamentally unfair as to create the
likelihood that he was convicted in error, R. 16 at 9; see
Anderson, 243 F.3d at 1053; Howard, 185 F.3d at 723-24.
“Given the substantial evidence of his guilt, the Court can-
not find that this even comes close to meeting his burden
of proving that the exclusion of the self-defense theory may
well have caused the conviction of an innocent person.” R.
16 at 9. Alternatively, assuming that Perruquet had made
out a cognizable due process claim, the court found no basis
for granting him relief in view of the deference owed to the
state courts’ determinations of law and fact under 28
U.S.C. § 2254(d)(1) and (2). R. 16 at 9-10.
II.
Our review begins with the principal ground on which the
district court disposed of Perruquet’s due process claim. As
the district court recognized, errors of state law in and of
themselves are not cognizable on habeas review. E.g.,
Estelle v. McGuire, supra, 502 U.S. at 67-68, 112 S. Ct. at
480. The remedial power of a federal habeas court is lim-
ited to violations of the petitioner’s federal rights, so only
if a state court’s errors have deprived the petitioner of a
right under federal law can the federal court intervene. Id.
at 67-68, 112 S. Ct. at 480. To say that a petitioner’s claim
is not cognizable on habeas review is thus another way of
saying that his claim “presents no federal issue at all.”
Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991).
Perruquet’s claim is founded on two separate but related
decisions by the Illinois trial court: the exclusion of evi-
dence that Hudson had threatened to kill Perruquet and
No. 02-2981 7
that Hudson had a history of violence, and the refusal to
instruct the jury on self-defense. Because a state trial
court’s evidentiary rulings and jury instructions turn on
state law, these are matters that are usually beyond the
scope of federal habeas review. McGuire, 502 U.S. at 71-72,
112 S. Ct. at 481-82; see also, e.g., Dressler v. McCaughtry,
238 F.3d 908, 914 (7th Cir. 2001). However, a state defen-
dant does have a Fourteenth Amendment due process right
to a fundamentally fair trial. California v. Trombetta, 467
U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984); see also, e.g.,
Anderson v. Sternes, supra, 243 F.3d at 1053; Dressler, 238
F.3d at 914. Perruquet asserts that the trial court’s rulings
deprived him of this right.1 Nonetheless, the State contended,
and the district court agreed, that Perruquet’s habeas
petition did not, beyond citing his Fourteenth Amendment
right to due process, establish how the trial court’s rulings
were so grave as to have deprived him of that right. For
that reason, the court did not reach the merits of this
1
Perruquet’s petition also asserted that these rulings deprived
him of a constitutional right to have the jury instructed on a de-
fense (of self-defense) that was supported by the evidence, citing
the Fifth and Sixth Amendments in addition to the Fourteenth. R.
7 at 6d. At one time, our cases did recognize a defendant’s right,
grounded in the Fifth and Sixth Amendments, to a jury instruc-
tion “on any defense which provides a legal defense to the charge
against him and which has some foundation in the evidence, even
though the evidence may be weak, insufficient, inconsistent, or of
doubtful credibility.” Whipple v. Duckworth, 957 F.2d 418, 423
(7th Cir. 1992) (internal quotation marks and citations omitted);
see also Everette v. Roth, 37 F.3d 257, 261 (7th Cir. 1994). How-
ever, our opinion in Eaglin v. Welborn, 57 F.3d 496, 500-02 (7th
Cir. 1995) (en banc), overruled Whipple on this point. The right to
have a jury instructed on self-defense, if it is a right secured by
the constitution, is one inherent in the broader right to a fun-
damentally fair trial guaranteed by the due process clause of the
Fourteenth Amendment. See id. at 501; see also Trombetta, 467
U.S. at 485, 104 S. Ct. 2532.
8 No. 02-2981
claim; it held simply that Perruquet had not said enough in
support of that claim to bring the claim within the limited
power of a federal habeas court.
However, we believe that Perruquet’s petition draws
enough of a connection between his right to due process
and the trial court’s (alleged) evidentiary and instructional
errors to render his claim cognizable on habeas review. The
petition, along with the supporting memorandum that
Perruquet filed, does more than merely cite his constitu-
tional right to a fair trial. Perruquet has articulated the
theory of self-defense that he wished to pursue; he has
described the evidence (both excluded and admitted) that
supported that theory; and he has argued that preventing
him from pursuing the theory of self-defense likely resulted
in the conviction of an innocent person. R. 6a-6d; R. 15 at 8-9.
Whatever gaps there may be in his petition and supporting
memorandum, the basic rationale of Perruquet’s due pro-
cess argument is readily discernible. As Perruquet was
without counsel in the district court, his habeas petition is
entitled to a liberal construction, e.g., Jackson v. Duckworth,
112 F.3d 878, 881 (7th Cir. 1997) (citing Haines v. Kerner,
404 U.S. 519, 520-21, 92 S. Ct. 594, 595-96 (1972)), and
given such a construction, his petition contains enough
detail to describe a claim that is within the power of a
federal court to address.
By saying that Perruquet’s claim is cognizable, we are not
saying that it is necessarily meritorious. In that regard,
one must draw a distinction between claims that are cog-
nizable in habeas proceedings and errors that are cogniza-
ble. Perruquet’s claim is that his Fourteenth Amendment
right to due process has been violated. That claim, if borne
out by the facts, would be one as to which a federal court
could grant him relief. Whether the errors that the trial
court allegedly committed (if they were errors at all) indeed
were of constitutional magnitude or were merely state-law
errors could only be assessed based on a closer inspection
No. 02-2981 9
of the underlying facts. Neither the State’s answer nor the
district court’s opinion undertook such an examination.
Ultimately, on closer inspection, the facts might reveal that
even if the trial court did err as Perruquet alleges, the
errors were not so grave as to have deprived him of due
process—that they were, ultimately, errors of state law,
and so beyond the power of a federal habeas court to ad-
dress. But here the parties and the court proceeded no
further than the face of Perruquet’s petition, and that
petition, as we have explained, adequately sketches out a
claim that Perruquet was deprived of due process. As such,
it presents a cognizable claim. See, e.g., Buggs v. United
States, 153 F.3d 439, 444-45 (7th Cir. 1998) (finding that
petitioner seeking relief under 28 U.S.C. § 2255 had suffi-
ciently made out a due process claim cognizable on collat-
eral review, but going on to conclude that he had failed “to
make a substantial showing that he was denied a constitu-
tional right,” as required for certificate of appealability
under 28 U.S.C. § 2253(c)(2)); Blake v. United States, 841
F.2d 203 (7th Cir. 1988) (finding that pro se petitioner under
28 U.S.C. § 2255 had sufficiently made out due process
claim cognizable on collateral review, but going on to find
that no violation of due process had occurred).
As an alternate basis for disposing of the claim, the dis-
trict court indicated that Perruquet had not shown that the
state-court rulings on this claim were either contrary to, or
reflected an unreasonable application of, clearly estab-
lished federal law as determined by the United States
Supreme Court. R. 16 at 9; see 28 U.S.C. § 2254(d). But the
state courts never passed judgment on Perruquet’s due pro-
cess claim; their rulings on the subject of the self-defense
theory were based solely on state law and contain no hint
of constitutional analysis. Thus, Perruquet cannot be faulted
for the failure to articulate why the state courts’ adjudica-
tion of his claim was irreconcilable with federal law—there
was no state-court ruling for him to critique.
10 No. 02-2981
The conspicuous absence of any state-court decision on
Perruquet’s due process claim does beg an explanation,
however, and that explanation in turn will dictate how we
shall proceed to address the claim. The State contends that
the lack of a state-court ruling is explained by Perruquet’s
failure to invoke the United States constitution while he
was pursuing his state-court remedies. That failure, as the
State sees it, bars us from reaching the merits of
Perruquet’s claim. Perruquet, on the other hand, contends
that he did present the due process claim to the state courts
and that they simply failed to address that claim. As a re-
sult, Perruquet reasons, this court may not only reach the
merits of that claim, but should do so without the usual
degree of deference that we would accord to the state court’s
rationale pursuant to section 2254(d)(1). See Newell v.
Hanks, 335 F.3d 629, 631-32 (7th Cir. 2003); Aleman v.
Sternes, 320 F.3d 687, 690 (7th Cir.), cert. denied, 539 U.S.
960, 123 S. Ct. 2653 (2003).
Before seeking a writ of habeas corpus in federal court,
a petitioner must first exhaust the remedies available to
him in state court. 28 U.S.C. § 2254(b)(1)(A). Exhaustion
serves an interest in federal-state comity by giving state
courts the first opportunity to address and correct potential
violations of a prisoner’s federal rights. Picard v. Connor,
404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971); see also
O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S. Ct.
1728, 1732 (1999). For that opportunity to be meaningful,
the petitioner must fairly present to each appropriate state
court his constitutional claims before seeking relief in
federal court. Baldwin v. Reese, 124 S. Ct. 1347, 1349
(2004); Boerckel, 526 U.S. at 845, 119 S. Ct. at 1732-33;
Picard, 404 U.S. at 275, 92 S. Ct. at 512; Momient-El v.
DeTella, 118 F.3d 535, 538 (7th Cir. 1997).
If the exhaustion doctrine is to prevent unnecessary
conflict between courts equally bound to guard and pro-
tect rights secured by the Constitution, it is not suffi-
cient merely that the federal habeas applicant has been
No. 02-2981 11
through the state courts. The rule would serve no
purpose if it could be satisfied by raising one claim in
the state courts and another in the federal courts. Only
if the state courts have had the first opportunity to
hear the claim sought to be vindicated in a federal
habeas proceeding does it make sense to speak of the
exhaustion of state remedies. Accordingly, we have re-
quired a state prisoner to present the state courts with
the same claim he urges upon the federal courts.
Picard, 404 U.S. at 275-76, 92 S. Ct. at 512 (internal quo-
tation marks and citations omitted). Presenting the “same
claim” in state court that he later seeks to make in federal
court means that the petitioner must alert the state courts
that he is relying on a provision of the federal constitution
for relief. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S. Ct.
887, 888 (1995) (per curiam); see also Reese, 124 S. Ct. at
1349.
Where state remedies remain available to a habeas
petitioner who has not fairly presented his constitutional
claim to the state courts, the exhaustion doctrine precludes
a federal court from granting him relief on that claim: al-
though a federal court now has the option of denying the
claim on its merits, 28 U.S.C. § 2254(b)(2), it must other-
wise dismiss his habeas petition without prejudice so that
the petitioner may return to state court in order to litigate
the claim. Castille v. Peoples, 489 U.S. 346, 349, 109 S. Ct.
1056, 1059 (1989); Rose v. Lundy, 455 U.S. 509, 522, 102 S.
Ct. 1198, 1205 (1982); see 28 U.S.C. § 2254(b)(1)(A). However,
where, as in this case, the petitioner has already pursued
his state-court remedies and there is no longer any state
corrective process available to him, it is not the exhaustion
doctrine that stands in the path to habeas relief , see 28 U.S.C.
§ 2254(b)(1)(B)(i), but rather the separate but related doc-
trine of procedural default. The procedural default doctrine,
which like the exhaustion doctrine is grounded in principles
of comity, federalism, and judicial efficiency, see Dretke v.
12 No. 02-2981
Haley, 124 S. Ct. 1847, 1851-52 (2004), normally will pre-
clude a federal court from reaching the merits of a habeas
claim when either (1) that claim was presented to the state
courts and the state-court ruling against the petitioner
rests on adequate and independent state-law procedural
grounds, or (2) the claim was not presented to the state
courts and it is clear that those courts would now hold the
claim procedurally barred. See Coleman v. Thompson, 501
U.S. 722, 735 & n.1, 111 S. Ct. 2546, 2557 & n.1 (1991); Harris
v. Reed, 489 U.S. 255, 263 & n.9, 109 S. Ct. 1038, 1043 &
n.9 (1989); Conner v. McBride, 375 F.3d 643, 648 (7th Cir.
2004). Thus, when the habeas petitioner has failed to fairly
present to the state courts the claim on which he seeks
relief in federal court and the opportunity to raise that
claim in state court has passed, the petitioner has proce-
durally defaulted that claim. Boerckel, 526 U.S. at 853-54,
119 S. Ct. at 1736; see also, e.g., Momient-El, 118 F.3d at
541.
The procedural default doctrine does not impose an ab-
solute bar to federal relief, however. “[I]t provides only a
strong prudential reason, grounded in ‘considerations of
comity and concerns for the orderly administration of jus-
tice,’ not to pass upon a defaulted constitutional claim pre-
sented for federal habeas review.” Haley, 124 S. Ct. at 1852(quoting Francis v. Henderson, 425 U.S. 536, 539, 96 S. Ct.
1708, 1710 (1976)). The doctrine is therefore subject to
equitable exceptions. Id. A procedural default will bar a
federal court from granting relief on a habeas claim unless
the petitioner demonstrates cause for the default and pre-
judice resulting therefrom, Wainwright v. Sykes, 433 U.S.
72, 87-88, 97 S. Ct. 2497, 2506-07 (1977), or, alternatively,
he convinces the court that a miscarriage of justice would
result if his claim were not entertained on the merits,
Murray v. Carrier, 477 U.S. 478, 495-96, 106 S. Ct. 2639,
2649 (1986). See also Edwards v. Carpenter, 529 U.S. 446,
451, 120 S. Ct. 1587, 1591 (2000); Boerckel, 526 U.S. at 854,
No. 02-2981 13
119 S. Ct. at 1737; Coleman, 501 U.S. at 750, 111 S. Ct. at
2565. To establish cause for his default, a petitioner ordi-
narily must show that some external impediment blocked
him from asserting his federal claim in state court. Carrier,
477 U.S. at 488, 492, 106 S. Ct. at 2645, 2648. To establish
prejudice, he “must shoulder the burden of showing, not
merely that the errors at his trial created a possibility of
prejudice, but that they worked to his actual and substan-
tial disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v. Frady, 456 U.S.
152, 170, 102 S. Ct. 1584, 1596 (1982) (emphasis in orig-
inal). If the petitioner cannot show cause and prejudice but
instead seeks to overcome his procedural default by estab-
lishing the prospect of a miscarriage of justice, then he
must demonstrate that he is actually innocent of the crime
for which he was convicted—that is, he must convince the
court that no reasonable juror would have found him guilty
but for the error(s) allegedly committed by the state court.
Schlup v. Delo, 513 U.S. 298, 327-29, 115 S. Ct. 851, 867-68
(1995).
The State, as we have noted, contends that Perruquet did
not fairly present his due process claim to the Illinois
courts and, consequently, committed a procedural default
that bars federal review of that claim. Perruquet has two
responses. He asserts first that the State waived this pur-
ported default because it never argued below that he had
failed to fairly present his due process claim to the state
courts, see R. 12 at 5-7; by contrast, the State did contend
that federal review was foreclosed as to two of his other
claims due to procedural defaults, see R. 12 at 8-10. Alter-
natively, Perruquet contends that he did alert the state
courts that he was relying on the federal constitution and
thus he did fairly present the due process claim to the state
courts.
A petitioner’s procedural default does not deprive the
federal court of jurisdiction over his habeas petition; rather,
14 No. 02-2981
it is an affirmative defense that the State is obligated to
raise and preserve, and consequently one that it can waive.
Trest v. Cain, 522 U.S. 87, 89, 118 S. Ct. 478, 480 (1997).
As with any other right or defense, the State will waive
procedural default by intentionally relinquishing its right
to assert that defense. See, e.g., Piggie v. Cotton, 342 F.3d
660, 666 (7th Cir. 2003) (“waiver is the intentional relin-
quishment of a known right”) (citing United States v. Rand
Motors, 305 F.3d 770, 773 (7th Cir. 2002)), cert. denied, 124
S. Ct. 1049 (2004). Such a waiver may be explicit or implicit.
See, e.g., Buggs v. United States, supra, 153 F.3d at 444(quoting Kurzawa v. Jordan, 146 F.3d 435, 439-40 (7th Cir.
1998)). Nothing in the record before us suggests that the
State explicitly waived a procedural default defense in this
case, cf. Henderson v. Thieret, 859 F.2d 492, 497-98 (7th
Cir. 1988) (indicating that State explicitly waived proce-
dural default by expressly declining to raise it even at the
district court’s invitation), so the waiver, if any, was im-
plicit. We note that the procedural default at issue here
arises from Perruquet’s purported failure to fairly present
his due process claim to the Illinois courts, an obligation
inherent in his duty to properly exhaust his state-court
remedies. Picard, 404 U.S. at 275-76, 92 S. Ct. at 512; see
also Boerckel, 526 U.S. at 848, 119 S. Ct. at 1734. And 28
U.S.C. § 2254(b)(3), added to the habeas statute by the
Antiterrorism and Effective Death Penalty Act of 1996, pro-
vides that “[a] State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance on the
requirement unless the State, through counsel, expressly
waives the requirement.” Some courts have construed
section 2254(b)(3)’s express-waiver requirement to apply to
procedural default defenses arising from the petitioner’s
failure to properly exhaust his remedies in state court while
those remedies remained open to him. See Nelson v. Schofeld,
371 F.3d 768, 770 n.4 (11th Cir. 2004), cert. denied, 2004
WL 2201374 (U.S. Nov. 1, 2004); Gonzales v. McCune, 279
F.3d 922, 924 (10th Cir. 2002) (en banc); Hale v. Gibson,
No. 02-2981 15
227 F.3d 1298, 1327-28 & n.12 (10th Cir. 2000); see also
Franklin v. Johnson, 290 F.3d 1223, 1238-39 (9th Cir. 2002)
(O’Scannlain, J., concurring in part & concurring in the
judgment). Other courts, noting the distinctions between
the exhaustion and procedural default doctrines, have con-
cluded that section 2254(b)(3) applies only when the State’s
defense can accurately be labeled one of exhaustion rather
than procedural default, i.e., where the state courts remain
open to the petitioner and he can still exhaust his state
remedies. Id. at 1230-32 (majority opinion); see also
Jackson v. Johnson, 194 F.3d 641, 652 n.35 (5th Cir. 1999);
but see Franklin, 290 F.3d at 1238-39 (concurrence) (point-
ing out that the procedural default asserted in Jackson was
not based on the failure to exhaust). We need not consider
which of these two conflicting lines of authority is correct,
for as we conclude below, assuming that the State can
implicitly waive a procedural default defense based on the
petitioner’s failure to properly exhaust his state-court
remedies, it has not done so here.
The State implicitly waives a defense when its response
to the petitioner’s claim is inconsistent with an intent to
preserve that defense. Cf. United States v. Johnson, 223
F.3d 665, 669 (7th Cir. 2000) (defendant implicitly waived
his right of self-representation when “[t]he only plausible
inference from the defendant’s conduct” was that he had
deliberately relinquished that right). Thus, for example,
where the State has responded to one habeas claim on its
merits while asserting that another is procedurally barred,
it has implicitly waived any contention that the first claim
is also procedurally defaulted. See Henderson v. Thieret,
859 F.2d at 497-98; see also, e.g., Buggs, 153 F.3d at 444;
Bonner v. DeRobertis, 798 F.2d 1062, 1066 & n.3 (7th Cir.
1986).
In the district court, the State asserted a procedural de-
fault defense as to some of Perruquet’s claims but not as to
his due process claim. See R. 12 at 7-10. Its failure to in-
16 No. 02-2981
voke procedural default as to the latter claim thus lends
some support to Perruquet’s argument that the State has
waived the defense. See Henderson, 859 F.2d at 497-98. On
the other hand, the State did not address the underlying
merits of Perruquet’s due process claim. It did not, in other
words, undertake to defend the propriety of the trial court’s
decision to exclude evidence and a jury instruction on self-
defense or to counter Perruquet’s contention that these rul-
ings deprived him of his right to due process. Instead, the
State argued only that Perruquet had failed to state a claim
that was cognizable on federal habeas review because he
had not articulated why the trial court’s rulings resulted in
a fundamentally unfair trial. R. 12 at 6-7. The district court
agreed with that contention; but for the reasons we have al-
ready set forth, we believe that the district court erred in
disposing of Perruquet’s claim on this basis. But whether
the State’s cognizability argument was right or wrong,
what matters vis-à-vis the waiver question is that the State
did not engage Perruquet on the merits of his due process
claim. The State could have argued in the alternative that
Perruquet had procedurally defaulted the claim by failing
to present it to the Illinois courts.2 But under the circum
2
The State suggests that it was deprived of the opportunity to
raise the question of fair presentment in the district court, be-
cause in his habeas petition Perruquet failed to articulate why the
state-court rulings on the subject of self-defense amounted to a
deprivation of his federal constitutional rights. Thus, as we have
previously discussed, the State argued to the district court, and
that court agreed, that Perruquet had not set forth a cognizable
constitutional claim. R. 12 at 5-7; R. 16 at 8-9. Even assuming
that Perruquet did not sufficiently substantiate his due process
claim, however, the face of Perruquet’s habeas petition nonethe-
less makes clear that he was invoking the federal constitution’s
guarantee of due process. R. 7 at 6d. Consequently, the State was
on notice that Perruquet was at least attempting to make out a
(continued...)
No. 02-2981 17
stances, we do not think its failure to do so signals an
intent to forgo such a defense. Logically, the argument that
the State did make came first in order of priority (the
petition failed to state a cognizable federal claim); the
procedural default argument springs from a contrary
premise (the petition did state a cognizable federal claim,
but one that was never presented to the state courts) that
the district court never embraced.
What we have, then, is a simple failure of the State to
assert a procedural default when it answered Perruquet’s
habeas petition. The State’s silence on the subject of pro-
cedural default is normally not enough, standing alone, to
demonstrate the intent to relinquish the defense that is the
essence of true waiver. See, e.g., Kurzawa, 146 F.3d at 440;
see also United States v. Rhodes, 330 F.3d 949, 952-53 (7th
Cir. 2003); United States v. Lemmons, 282 F.3d 920, 923
n.3 (7th Cir. 2002).
Granted, there are any number of decisions from this
court indicating that the State waives the procedural de-
fault defense by not asserting it in the district court. E.g.,
Cossel v. Miller, 229 F.3d 649, 653 (7th Cir. 2000); Hernandez
v. Cowan, 200 F.3d 995, 997 (7th Cir. 2000); see also
Karazanos v. Madison Two Assocs., 147 F.3d 624, 629 (7th
Cir. 1998) (“Arguments not made in the district court are
waived on appeal, as we have said on countless occasions.”).
To the extent that these opinions rely solely on the failure
to raise the defense in the district court, without evidence
of the State’s intent to relinquish the defense, they are best
understood as saying that the State has forfeited the de-
2
(...continued)
federal claim with respect to the self-defense theory. Indeed, the
State’s answer acknowledges as much. R. 12 at 6. Under those
circumstances, the State was not deprived of the opportunity to
raise the issue of fair presentment.
18 No. 02-2981
fense. See United States v. Olano, 507 U.S. 725, 733, 113 S.
Ct. 1770, 1777 (1993) (distinguishing waiver from forfei-
ture); United States v. Richardson, 238 F.3d 837, 841 (7th
Cir. 2001) (noting that “forfeiture” is term better used to
describe inadvertent, rather than intentional, failure to raise
issue, so as to distinguish it from “classic or ‘real’ waiver”);
Johnson, 223 F.3d at 668 (same). Forfeiture occurs when a
party fails to timely assert a defense or an argument. E.g.,
United States v. Jacques, 345 F.3d 960, 962 (7th Cir. 2003).
At the same time, there are precedents from this circuit
and others that recognize a federal appellate court’s discre-
tion to address a procedural default even when the State
has raised it for the first time on appeal. See Brewer v.
Aiken, 935 F.2d 850, 860 (7th Cir. 1991) (citing, inter alia,
Burgin v. Broglin, 900 F.2d 990, 997 (7th Cir. 1990)); see
also, e.g., Szuchon v. Lehman, 273 F.3d 299, 321 & n.13 (3d
Cir. 2001) (reaching procedural default even after conclud-
ing that “the Commonwealth may well have waived its pro-
cedural-default defense”); King v. Kemna, 266 F.3d 816, 821-
22 (8th Cir. 2001) (en banc). Indeed, although the Supreme
Court has not yet reached the question, see Trest v. Cain,
supra, 522 U.S. at 90, 118 S. Ct. at 480, there is a related
line of cases at the circuit level acknowledging that federal
courts generally have the discretion to raise the subject of
procedural default sua sponte. Kurzawa, 146 F.3d at 440(“If the State does not explicitly or implicitly forego the [pro-
cedural default] defense, we may make sua sponte inquiry
into whether a procedural default is manifest ‘and decide
whether comity and judicial efficiency make it appropriate
to consider the merits’ of the petitioner’s arguments”)
(quoting Galowski v. Murphy, 891 F.2d 629, 634-35 n.11
(7th Cir. 1989)); Henderson v. Thieret, supra, 859 F.2d at
498; see also King, 266 F.3d at 822, and Boyd v. Thompson,
147 F.3d 1124, 1128 (9th Cir. 1998) (collecting cases); cf.
Granberry v. Greer, 481 U.S. 129, 133-34, 107 S. Ct. 1671,
1674-75 (1987) (appellate court, in exercise of discretion,
No. 02-2981 19
may sua sponte raise petitioner’s failure to exhaust state-
court remedies). These cases reason that in view of the
interests in comity, federalism, and judicial efficiency im-
plicated by a habeas petitioner’s failure to properly present
his constitutional claim to the state courts before seeking
habeas relief in federal court, it can be appropriate for a
federal court to overlook the State’s failure to timely assert
(or to assert at all) the petitioner’s procedural default. See
Kurzawa, 146 F.3d at 440; Boyd, 147 F.3d at 1127-28; see
also Granberry, 481 U.S. at 133-34, 107 S. Ct. at 1674-75.
Under the circumstances presented in this case, we be-
lieve it is appropriate to reach the State’s procedural
default defense notwithstanding its failure to assert that
defense in the district court. First, as our ensuing discus-
sion will reveal, the procedural default in this case is clear:
Perruquet failed to raise his due process claim at any level
of state-court review. Second, because no Illinois court was
ever given the opportunity to pass on the merits of
Perruquet’s constitutional claim, comity and federalism
principles weigh strongly against permitting Perruquet to
assert the claim in federal court. Third, if we were to reach
the merits of Perruquet’s constitutional claim, we necessarily
would have to do so de novo, as there is no state-court decision
we can look to for an evaluation of this claim. See Newell v.
Hanks, supra, 335 F.3d at 631-32; Aleman v. Sternes,
supra, 320 F.3d at 690. This would be inconsistent with the
high level of deference to state-court decisions that Con-
gress mandated when it passed the Antiterrorism and
Effective Death Penalty Act of 1996. See, e.g., McFowler v.
Jaimet, 349 F.3d 436, 455 (7th Cir. 2003). It would also
amount to a windfall for Perruquet, who would win plenary
review of a claim that he never presented to the Illinois
courts, whereas habeas petitioners who properly present their
claims to state courts first are entitled only to the extremely
narrow review mandated by section 2254(d). Fourth and
finally, Perruquet’s claim would call upon us to reconcile a
20 No. 02-2981
State’s prerogative to define the elements of crimes and
affirmative defenses, see Eaglin v. Welborn, 57 F.3d 496,
501 (7th Cir. 1995) (en banc), with a defendant’s right to
present a complete defense to the charges against him, see
California v. Trombetta, supra, 467 U.S. at 485, 104 S. Ct.
at 2532; Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.
Ct. 1038, 1045 (1973); see also Montana v. Egelhoff, 518 U.S.
37, 56, 116 S. Ct. 2013, 2023 (1996) (plurality) (acknowl-
edging possibility that right to have jury consider evidence
of self-defense may be fundamental right). See, e.g., Taylor
v. Withrow, 288 F.3d 846, 853-54 (6th Cir. 2002) (analyzing
whether Michigan law vis-à-vis self-defense deprived
defendant of due process). For example, Perruquet repre-
sents that he cannot, in good faith, admit that he stabbed
Hudson because he does not recall doing so. Perruquet does
not believe that Illinois law insists on such an admission,
so long as he acknowledges the sequence of events (i.e., the
struggle with Hudson) that culminated in Hudson’s death
and he admits using force that he believed was necessary
to defend himself from Hudson (i.e., he lunged at Hudson
and knocked him to the ground upon feeling a sting in his
side, thinking that Hudson had stabbed him). Perruquet
Reply Br. at 9 (citing People v. Robinson, 516 N.E.2d 1292,
1304-05 (Ill. App. Ct. 1987) (evidence of self-defense admis-
sible as to struggle that ended with fatal gunshot, even if
defendant claims that gunshot itself was an accident)). If
Illinois law did demand such an admission, then by
Perruquet’s account it would place him in an impossible
situation, requiring him either to commit perjury by con-
fessing an act that he does not recall or to forfeit the claim
of self-defense altogether. Id. at 10 n.4. Wherever the
asserted defect lies (be it in the state court’s interpretation
of Illinois law or in Illinois law itself), Perruquet contends
that it deprived him of a meaningful opportunity to defend
himself against the charge. The Illinois courts, which have
a much greater familiarity than we do with Illinois law and
the requirements it imposes on claims of self-defense, are
No. 02-2981 21
better situated in the first instance to identify those re-
quirements and to consider whether they actually inter-
fered with Perruquet’s right to a fundamentally fair trial;
and conversely we would be at a disadvantage in making
that assessment without the guidance that the state courts
could offer us as to the parameters of Illinois law.
We wish to emphasize that we are electing to address the
State’s procedural default defense, notwithstanding its fail-
ure to assert the defense below, as a matter of discretion,
and that we are by no means suggesting that this court or
the district courts should routinely overlook the forfeiture
of a procedural default defense. See Trest v. Cain, supra,522 U.S. at 89, 118 U.S. at 480 (“A court of appeals is not
‘required’ to raise the issue of procedural default sua sponte.”).
We are satisfied that the circumstances here support our
decision. But the decision whether to assert an affirmative
defense like procedural default lies with the Illinois Attorney
General in the first instance, Bonner v. DeRobertis, supra,
798 F.2d at 1066 & n.3, and in the ordinary course of
events, her failure to raise the defense in a timely manner
will result in a forfeiture. That said, we proceed to consider
whether Perruquet fairly presented his due process claim
to the Illinois courts.
A petitioner fairly presents his federal claim to the state
courts when he articulates both the operative facts and the
controlling legal principles on which his claim is based.
E.g., Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004).
He need not “cit[e] ‘book and verse on the federal constitu-
tion.’ ” Picard v. Connor, supra, 404 U.S. at 278, 92 S. Ct.
at 513 (quoting Daugharty v. Gladden, 257 F.2d 750, 758
(9th Cir. 1958)). But he must, in some manner, alert the
state courts to the federal underpinnings of his claim.
Duncan v. Henry, supra, 513 U.S. at 365-66, 115 S. Ct. at
888. In deciding whether the state courts were so alerted,
we look to a number of factors, including: “ ‘(1) whether the
petitioner relied on federal cases that engage in constitu-
22 No. 02-2981
tional analysis; (2) whether the petitioner relied on state
cases which apply a constitutional analysis to similar facts;
(3) whether the petitioner framed the claim in terms so
particular as to call to mind a specific constitutional right;
and (4) whether the petitioner alleged a pattern of facts
that is well within the mainstream of constitutional litiga-
tion.’ ” Sweeney, 361 F.3d at 332 (quoting Wilson v. Briley,
243 F.3d 325, 327 (7th Cir. 2001)). “ ‘[T]he presence of any
one of these factors . . . does not automatically avoid a
waiver; the court must consider the facts of each case.’ ”
Momient-El v. DeTella, supra, 118 F.3d at 539 (quoting
Verdin v. O’Leary, 972 F.2d 1467, 1474 (7th Cir. 1992)).
A review of Perruquet’s brief on direct appeal, the Illinois
Appellate Court’s order, and Perruquet’s petition for leave
to appeal to the Illinois Supreme Court convinces us that
he did not fairly present his due process claim to the state
courts. Neither his appellate brief nor his petition for leave
to appeal on the subject of self-defense contains any men-
tion of due process, the Fourteenth Amendment, or even
the United States constitution generally. See R. 13 Ex. A at
31-36; id. Ex. C at 15-19. Perruquet cited only state cases to
the Illinois courts. None of those cases look to the federal
constitution or employ a due process analysis; all instead
apply Illinois standards for the admission of evidence and
for instructing the jury on self-defense.3 The facts as
3
Two of the state cases that Perruquet cited do mention a
defendant’s right to a “fair trial,” see People v. Crane, 585 N.E.2d
99, 102 (Ill. 1991); People v. Robinson, 516 N.E.2d 1292, 1295,
1298 (Ill. App. Ct. 1987), but those cases neither mention due
process nor rely on federal cases for their holdings, and so they
would not have alerted the Illinois courts that Perruquet was
making a claim based, at least in part, on due process.
People v. Everette, 565 N.E.2d 1295 (Ill. 1990), on which
Perruquet also relied, cites both a Supreme Court case and a
(continued...)
No. 02-2981 23
Perruquet presented them presented ordinary questions of
state law; these facts certainly were not within the main-
stream of constitutional litigation. See Sullivan v. Fairman,
731 F.2d 450, 453-55 (7th Cir. 1984).
We reject Perruquet’s suggestion that the subsequent his-
tory of one of the state cases that he cited in support of his
claim was alone sufficient to alert the Illinois courts that
he was presenting them with a federal due process claim.
People v. Everette, 565 N.E.2d 1295 (Ill. 1990), was among
the cases on which Perruquet relied in state court. That
case itself employs no due process analysis. However, the
appellant in Everette subsequently sought (and won) a writ
of habeas corpus from the federal district court. Our
3
(...continued)
federal district court case for the general proposition that a
defendant is entitled to a jury instruction on self-defense so long
as there is some evidence that would permit a reasonable jury to
find that he acted in self-defense. See id. at 1298-99, citing
Mathews v. United States, 485 U.S. 58, 64, 108 S. Ct. 883, 887
(1988), and United States ex rel. Bacon v. DeRobertis, 551 F. Supp.
269, 273 (N.D. Ill. 1982), aff ’d, 728 F.2d 874 (7th Cir. 1984) (per
curiam). However, the analysis of Mathews was not grounded in
constitutional law; and although both the district court and this
court did engage in a constitutional analysis in Bacon, Everette did
not cite Bacon for a constitutional point nor did the Everette court
engage in any constitutional analysis. Another of Perruquet’s
authorities, People v. Buchanan, 414 N.E.2d 262, 264 (Ill. App. Ct.
1980), cites a federal case, United States v. Burks, 470 F.2d 432,
434-35 (D.C. Cir. 1972), but Burks did not reflect any constitu-
tional analysis. Robinson, supra, 516 N.E.2d at 1300, also cites a
federal district court case, Landry v. Daley, 280 F. Supp. 938 (N.D.
Ill. 1968), appeal dismissed, 393 U.S. 220, 89 S. Ct. 455 (1968),
rev’d, 401 U.S. 77, 91 S. Ct. 758 (1971), but solely for its discus-
sion of the meaning of the terms “force” and “violence”. These
citations thus would not have placed the Illinois courts on notice
that Perruquet was asserting a due process claim either.
24 No. 02-2981
opinion on appeal in that case said that “[w]hen there is
evidentiary support for a . . . theory of self-defense, failure
to instruct on self-defense violates a criminal defendant’s
Fifth and Sixth Amendment rights.” Everette v. Roth, 37
F.3d 257, 261 (7th Cir. 1994) (citing Whipple v. Duckworth,
957 F.2d 418, 423 (7th Cir. 1992)). Although that particular
proposition is no longer good law in this circuit, see Eaglin
v. Welborn, supra, 57 F.3d at 500-02 (overruling Whipple);
supra n.1, our opinion in Everette, which also references a
defendant’s right to due process, 37 F.3d at 261, signals
that state-court rulings affecting a defendant’s ability to
pursue a theory of self-defense can implicate federal
constitutional rights. A check of People v. Everette’s subse-
quent history would, of course, have disclosed our decision
in the habeas proceeding, and in Perruquet’s view, this is
enough to have alerted the state courts to the constitu-
tional foundation of his claim. However, in view of the
Supreme Court’s recent opinion Baldwin v. Reese, supra,124 S. Ct. 1347, we think it is clear that a state court need
not look beyond the appellant’s brief and the cases cited
there in order to ascertain whether the appellant is making
a federal claim. Reese held that a state appellate court is
not obligated to read the opinion of the lower court that it
is reviewing to see whether the defendant might be relying
on the federal constitution for relief, but instead may
justifiably rely solely on the contents of the defendant’s
brief. Id. at 1350-51. Whatever People v. Everette’s history
might have disclosed to an inquisitive researcher about the
potential for a federal due process claim is thus beside the
point. Perruquet did not cite our opinion in Everette to the
Illinois courts. He relied solely on the Illinois Appellate
Court’s opinion, and that opinion employed no due process
analysis.4
4
We note that Perruquet’s post-conviction petition did assert that
the trial court deprived him of due process by refusing to admit
(continued...)
No. 02-2981 25
Perruquet has not supplied us with any compelling rea-
son to reach the merits of his due process claim notwith-
standing his failure to fairly present that claim to the
Illinois courts. He has not identified any circumstance that
might amount to good cause for the procedural default, see
Carrier, 477 U.S. at 494-95, 106 S. Ct. at 2648-49 (cause
must be shown in addition to prejudice), and his arguments
as to the prejudice resulting from the default and the pros-
pect of a miscarriage of justice are confined to just a few
sentences. Perruquet Reply Br. at 5-6. It suffices for us to
note that there can be little doubt that Perruquet killed
Hudson—the physical altercation between the two men was
observed by multiple witnesses, and at this point Perruquet
himself does not deny having killed him. (Perruquet’s
counsel conceded this point at oral argument.) At the same
time, the evidence that Perruquet killed Hudson in self-de-
fense was not particularly strong: Perruquet had been
fighting with his wife when Hudson arrived at their trailer
and attempted to gain entrance; Perruquet lunged at Hudson
while the two men were engaged in a tug of war at the
trailer doorway; Perruquet appeared to be in a rage; after
killing Hudson, Perruquet was heard to say to his wife,
“Look what you made me do”; although Perruquet testified
that he lunged at Hudson after he felt a sting in his side,
he did not tell witnesses in the immediate aftermath of the
struggle that he had been hurt, he did not exhibit any signs
4
(...continued)
evidence and instruct the jury on self-defense. R. 13 Ex. E at 2
¶ 7(c). However, assuming that Perruquet remained free to assert
the constitutional ramifications of the trial court’s ruling in post-
conviction proceedings after having failed to do so on direct
review, he did not pursue this claim on appeal from the post-
conviction court’s ruling. See R. 13 Exs. F, H. Consequently, he
cannot be said to have fairly presented the constitutional claim on
post-conviction review. See Spreitzer v. Schomig, 219 F.3d 639,
645 (7th Cir. 2000); Momient-El, 118 F.3d at 540-41.
26 No. 02-2981
of injury to the desk clerk at the motel where he spent the
evening following the fight, the two puncture wounds that
medical personnel observed on his abdomen the following
day did not require so much as a Band-Aid, and Perruquet
told the emergency room doctor who examined him that he
did not know how he got the wounds; and, finally, accord-
ing to both a deputy and an investigator for the sheriff’s
department, Perruquet later explained that the reason he
went after Hudson was that he wanted to be left alone,
Hudson would not listen, and he had “just had enough.”
Perruquet himself testified that he had not taken Hudson’s
threats seriously. The likelihood that Perruquet might have
been acquitted had the evidence regarding Hudson’s
threats been admitted and the jury had been instructed on
self-defense strikes us as slim. The procedural default
therefore bars us from reaching the merits of his claim.
E.g., Wilson v. Briley, supra, 243 F.3d at 329.
III.
Because Perruquet did not fairly present his due process
claim to the Illinois courts and thereby procedurally de-
faulted that claim, and because Perruquet has not estab-
lished grounds for overlooking the default, the federal courts
may not reach the merits of this claim. We therefore AFFIRM
the district court’s decision to deny Perruquet relief on this
claim. We thank Perruquet’s appointed appellate attorneys
for their vigorous advocacy on his behalf.
No. 02-2981 27
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-17-04