NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 25, 2011
Decided June 7, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 10‐1363
ARYULES BIVENS, Appeal from the United States District
Petitioner‐Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 1:00‐cv‐07327
DAVE REDNOUR,
Respondent‐Appellee. Joan B. Gottschall,
Judge.
O R D E R
Illinois prisoner Aryules Bivens was convicted of escaping from jail. He petitioned
the district court for a writ of habeas corpus under
28 U.S.C. § 2254, claiming that his trial
counsel provided ineffective assistance. The district court denied his petition. Because
Bivens’ claim is procedurally defaulted and lacks merit, we affirm.
In 1984 Bivens was serving a life sentence for murder and armed robbery and
awaiting trial on another armed robbery charge when he and five other inmates—Brian
Daniels, Raymond Greer, Gregory Hill, Jerry Mahaffey, and Reginald Mahaffey—attempted
to escape from Cook County Jail. The six inmates ordered jail officers at gunpoint to remove
their uniforms, which the inmates donned as they tried to make their way to the outside.
No. 10‐1363 Page 2
Bivens and Hill succeeded, using officers’ identification to pass through two security gates.
Freedom was short‐lived, however—Bivens was caught four days later. In 1985 an Illinois
jury convicted him of intentionally escaping from a penal institution as a felon (along with
10 counts of armed robbery not at issue here).
Bivens testified at trial and, as an affirmative defense, raised the theory of
“compulsion,” contending that he had no choice but to participate in the escape. He said
that the other inmates coerced his participation in the early stages of the escape because of
his familiarity with the jail’s underground tunnels. As the attempt unfolded, he said, he
decided to escape rather than surrender because he feared retaliation from the officers. The
jury rejected those arguments, however, and Bivens ultimately received a seven‐year prison
term for his escape, consecutive to his existing life sentence.
He then filed a post‐conviction petition, claiming among other things that his trial
counsel was ineffective for failing to investigate and call four of the inmates as witnesses;
their testimony, he argued, would have corroborated his testimony on the issue of
compulsion and put reasonable doubt in the jurors’ minds. The trial court denied the
petition, the Illinois Appellate Court affirmed, and the Illinois Supreme Court denied
Bivens’ petition for leave to appeal.
In 2000 Bivens petitioned the district court for a writ of habeas corpus, claiming that
he was innocent and that his trial counsel was ineffective for failing to investigate or present
exculpatory testimony from the other inmates who tried to escape. He asserted in an
affidavit that he escaped unwillingly, under threat from the other inmates at gunpoint, and
denied having a weapon during the escape or forcing officers to remove their uniforms.
Bivens also attached an affidavit from Daniels, who said that he and Hill planned the
escape, that Bivens was forced to take part but played no role in the planning, and that
he—Daniels—forced Bivens at gunpoint to don an officer’s uniform. Bivens later provided
an affidavit from Greer, who also said that Bivens was forced at gunpoint to participate, and
said that Bivens did not threaten or harm any members of the jail staff. The district court
appointed counsel for Bivens and later granted him leave to conduct discovery to obtain
evidence to support his petition.
During discovery the parties learned that the state trial court had lost the transcript
of Bivens’ 1985 jury trial. The state managed, through stenographer’s notes, to reconstruct
transcripts for three days of the five‐day trial and for Bivens’ sentencing. The district court
ordered the state to produce a narrative summary of the missing days—comprising the
defense’s case‐in‐chief, jury instructions, and closing arguments—but the state was unable
to do so; the trial judge, the prosecution, and defense attorneys all were unable to recall or
No. 10‐1363 Page 3
locate notes of the defense witnesses’ testimony 22 years earlier. With no apparent
alternatives, the court elected to proceed with the incomplete trial record.
In December 2008 the district court denied Bivens’ petition, concluding that he had
procedurally defaulted his ineffective‐assistance claim by not raising it in the Illinois courts
on direct appeal. The court also found that the uncorroborated affidavits of Daniels and
Greer were not reliable evidence of actual innocence to excuse Bivens’ default, and that
Bivens had not argued that his default should be excused for cause and prejudice.
In January 2009 Bivens filed a pro se motion to reconsider—after which his
appointed counsel withdrew as his attorney—arguing that he had shown actual innocence
to excuse any procedural default, and that the depositions of Daniels and Greer supported
his innocence. He also asserted that his earlier filings raised a cause‐and‐prejudice
argument. And Bivens sought a certificate of appealability, arguing that it was improper for
the district court to deny his petition when the state was unable to provide a complete trial
record.
In September 2009 the district court denied Bivens’ motion to reconsider, but for
reasons different than those in its December 2008 ruling. The court found that Bivens had
not procedurally defaulted ineffective‐assistance his claim, but ruled that he could not
establish prejudice under Strickland v. Washington,
466 U.S. 668 (1984), because Daniels’ and
Greer’s accounts of the escape were “inconsistent in numerous respects, both major and
minor,” and Hill’s testimony that Bivens was not forced to participate in the escape and
helped to plan it “would have torpedoed [Bivens’] defense entirely.” The court concluded
that the evidence was “simply insufficient to tip the scales in a way that undermines
confidence in the outcome of the trial.” In denying the motion to reconsider, the court also
granted a certificate of appealability as to whether it “appropriately denied relief under
Strickland,” given the incomplete record of Bivens’ trial. In response to another request from
Bivens for a certificate of appealability, the court later amended the certificate to include his
ineffective‐assistance claim.
We dismissed Bivens’ untimely appeal from the denial of his motion to reconsider
but construed his January 2009 request for a certificate of appealability as a timely notice of
appeal. Bivens v. Gaetz, No. 09‐3827 (7th Cir. Jan. 20, 2010). This appeal followed, and we
appointed counsel to represent Bivens.
At the outset, the state suggests that we may not have jurisdiction over the district
court’s denial of Bivens’ motion to reconsider—and thus might not be able to consider the
discovery evidence provided to the district court before its decision—because we dismissed
Bivens’ appeal from that denial. But we treated Bivens’ first request for a certificate of
No. 10‐1363 Page 4
appealability as a notice of appeal, see Bell v. Mizell,
931 F.2d 444, 444‐45 (7th Cir. 1991),
which did not become effective until the district court disposed of Bivens’ pending motion
to reconsider, see FED. R. APP. P. 4(a)(4); United States v. Powers,
168 F.3d 943, 947‐48 (7th Cir.
1999). Therefore we may consider the district court’s denial of Bivens’ motion to reconsider.
The state also challenges the district court’s determination that Bivens’ ineffective‐
assistance claim was not procedurally defaulted, arguing that the Illinois Appellate Court
rejected the claim on procedural grounds when it denied his post‐conviction petition.1 If a
state court rejects a prisoner’s federal claim on adequate and independent state procedural
grounds, then the claim is procedurally defaulted, and a federal court must normally refrain
from addressing it when reviewing the prisoner’s petition for habeas corpus. See Coleman v.
Thompson,
501 U.S. 722, 729‐30 (1991); Gray v. Hardy,
598 F.3d 324, 327‐28 (7th Cir. 2010). A
petitioner’s failure to comply with a state procedural rule gives a state court an adequate
basis for rejecting a claim if doing so is an established, regularly‐followed practice. See Ford
v. Georgia,
498 U.S. 411, 423‐24 (1991); Johnson v. Thurmer,
624 F.3d 786, 789 (7th Cir. 2010).
And a procedural rule provides an independent basis for rejecting a claim if the state court
expressly relies on the rule. See Harris v. Reed,
489 U.S. 255, 260‐65 (1989); Johnson,
624 F.3d
at 789.
The state is correct in this case, because the Illinois Appellate Court did rely
expressly on a procedural rule to deny Bivens’ post‐conviction petition, leaving his claim
defaulted. The appellate court agreed with both of the state’s arguments. The appellate
court first agreed with the state’s waiver argument: “Because petitioner did not raise the
issue of ineffective assistance of trial counsel on direct appeal, he has waived this issue for
review.” Bivens’ failure to comply with a state procedural requirement was an adequate
and independent basis for the court’s rejection of his claim. See Smith v. Gaetz,
565 F.3d 346,
351 (7th Cir. 2009). The appellate court then agreed, alternatively, that Bivens was not
entitled to relief on the merits. Citing Strickland, the appellate court explained that decisions
involving trial strategy generally do not support claims of ineffective assistance.
Furthermore, the court noted, Bivens did not attach any supporting evidence to his petition,
1
Bivens argues that the state may not raise the issue of procedural default on appeal.
The state could have raised the issue, he says, only in an appeal of the district court’s order
denying his motion to reconsider. Bivens cites United States v. Am. Ry. Express Co.,
265 U.S. 425,
435 (1924), which says that “a party who does not appeal from a final decree of the trial court
cannot be heard in opposition thereto when the case is brought there by the appeal of the
adverse party.” But it is well‐established—indeed, recognized in Am. Ry. Express itself—that
an appellee need not cross‐appeal to put forth in support of the judgment an argument that the
court below rejected. See, e.g., id.; Truhlar v. U.S. Postal Serv.,
600 F.3d 888, 892 (7th Cir. 2010).
No. 10‐1363 Page 5
even though state law required him to do so, see 725 ILCS 5/122‐2, and thus could not show
that he was denied effective assistance of trial counsel.
Because the Illinois Appellate Court analyzed his claim on its merits, Bivens argues
that it did not expressly rely on procedural rules. The appellate court’s Strickland analysis,
he says, was “central” to its decision. But that argument ignores the appellate court’s earlier
conclusion that Bivens waived his claim. The court’s merits disposition was only an
alternative holding; we still honor the adequate and independent determination regarding
waiver, which leaves Bivens’ claim procedurally defaulted. See Harris,
489 U.S. at 264 n.10;
Moore v. Bryant,
295 F.3d 771, 775 (7th Cir. 2002).
We could excuse Bivens’ procedural default and consider his claim if he could show
cause for the default and prejudice resulting from it, or if he could show that the claimed
constitutional violation probably resulted in his conviction despite his actual innocence. See
Schlup v. Delo,
513 U.S. 298, 326‐27 (1995); Coleman,
501 U.S. at 750; Smith v. McKee,
598 F.3d
374, 387 (7th Cir. 2010). But Bivens does not contend that his default should be excused, and
thus has waived any such argument. See United States v. Clinton,
591 F.3d 968, 971 (7th Cir.
2010); O’Neal v. City of Chicago,
588 F.3d 406, 409 (7th Cir. 2009).
Even if we could somehow overlook his procedural default, Bivens would not
prevail on the merits. Under Strickland, Bivens had the burden of rebutting the “strong
presumption” that his counsel provided sound representation.
466 U.S. at 689‐90. But
because he provided the appellate court with no evidence to support his claim and
overcome that presumption, we would not conclude—with or without the existence of a
complete transcript of his trial—that the Illinois Appellate Court’s decision was contrary to
Strickland or an unreasonable application of it. See
28 U.S.C. § 2254(d)(1); Harrington v.
Richter,
131 S. Ct. 770, 786‐87 (2011).
We AFFIRM the judgment of the district court.
