Chijioke Ben-Yisrayl v. Ron Neal , 857 F.3d 745 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1013
CHIJIOKE B. BEN-YISRAYL,
Petitioner-Appellant,
v.
RON NEAL,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:12-cv-661-TWP-MJD — Tanya Walton Pratt, Judge.
____________________
ARGUED APRIL 21, 2017 — DECIDED MAY 22, 2017
____________________
Before WOOD, Chief Judge, SYKES, Circuit Judge, and
COLEMAN, District Judge. ∗
SYKES, Circuit Judge. Chijioke Ben-Yisrayl is an Indiana
prisoner serving a 60-year sentence for murder. He appeals
from the district court’s denial of his petition for habeas
∗ The Honorable Sharon Johnson Coleman of the Northern District of
Illinois, sitting by designation.
2 No. 16-1013
relief under 28 U.S.C. § 2254. Although he raised multiple
claims in his petition, his sole argument on appeal is that his
resentencing counsel was constitutionally ineffective for
failing to introduce “a veritable mountain of mitigation
evidence.” But he never raised this claim in his habeas
petition, and his failure to do so is a waiver. We affirm the
judgment.
I. Background
Ben-Yisrayl is well acquainted with the judicial system.
In 1984 he was convicted in Indiana state court of capital
murder, rape, criminal confinement, and burglary. 1 The jury
was unable to reach a decision in the penalty phase of trial,
so the judge imposed a sentence of death. In case that sen-
tence did not hold up on appeal, the judge imposed an
alternative sentence of 60 years. On the remaining counts,
the judge imposed an aggregate term of 90 years.
The case bounced back and forth for many years in the
state trial and appellate courts as the death sentence and
other issues were litigated on direct review and in post-
conviction proceedings. Prosecutors eventually withdrew
their request for the death penalty and settled for the alter-
native 60-year sentence on the murder conviction.
Ben-Yisrayl won a reversal of that sentence as well. On
resentencing the trial judge reimposed the 60-year sentence,
and this time it was affirmed. Post-conviction proceedings
on other issues continued.
In the meantime, Ben-Yisrayl pursued habeas relief in
federal court under § 2254. Because he had yet to complete
1 At that time Ben-Yisrayl was known as Greagree Davis.
No. 16-1013 3
state post-conviction review, the district judge stayed the
proceedings. When the state courts finally finished with the
case, the judge lifted the stay and ordered the state to re-
spond to the petition. Indiana did so. Ben-Yisrayl failed to
file his reply within the allotted time, so the case proceeded
to decision without a reply brief from him.
The judge denied relief on all grounds without an evi-
dentiary hearing. She also denied Ben-Yisrayl’s motion to
alter or amend the judgment under Rule 59(e) of the Federal
Rules of Civil Procedure. This appeal followed.
II. Analysis
Although Ben-Yisrayl originally sought habeas relief on
six grounds, he later abandoned four of his claims and
litigated only two on the merits before the district court. He
argued that (1) the prosecution team intentionally destroyed
exculpatory evidence; and (2) his counsel at resentencing
was constitutionally ineffective for submitting a meager two-
page sentencing memorandum and for failing to challenge
the prosecution’s destruction of evidence. Notably,
Ben-Yisrayl never mentioned the sole claim he now advances
on appeal, which is an attack on his counsel’s alleged failure
to introduce a “mountain” of mitigation evidence at resen-
tencing. Indeed, a reference to mitigation evidence first pops
up in Ben-Yisrayl’s Rule 59(e) motion, and even then it
appears only in passing in a sentence about the district
court’s denial of an evidentiary hearing: “Without an eviden-
tiary hearing, [Ben-Yisrayl] cannot show what mitigation
evidence his trial lawyers failed to present or why they
failed to present it.”
4 No. 16-1013
Ben-Yisrayl’s omission of this claim from his habeas peti-
tion is a waiver. It is well settled that waiver rules apply in
the habeas context: “Claims not made in the district court in
a habeas petition are deemed waived and cannot be raised
for the first time on appeal.” Johnson v. Hulett, 574 F.3d 428,
432 (7th Cir. 2009). The fleeting reference to this claim in
Ben-Yisrayl’s Rule 59(e) motion cannot save it for appellate
review; it is equally well settled that a Rule 59(e) motion is
not an appropriate vehicle for advancing “arguments or
theories that could and should have been made before the
district court rendered a judgment.” County of McHenry v.
Ins. Co. of the W., 438 F.3d 813, 819 (7th Cir. 2006) (quoting LB
Credit Corp. v. Resolution Tr. Corp., 49 F.3d 1263, 1267 (7th Cir.
1995)).
Indiana also invokes procedural default, but we have no
need to address that argument. Waiver resolves this entire
appeal. Because Ben-Yisrayl’s habeas petition never raised a
claim based on his counsel’s failure to introduce mitigation
evidence at resentencing, the claim is waived. The judgment
of the district court is AFFIRMED.