Lewis, Peter v. Sternes, Jerry

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4013
PETER LEWIS,
Petitioner-Appellant,
v.
JERRY STERNES,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 2905—Matthew F. Kennelly, Judge.
____________
ARGUED MAY 18, 2004—DECIDED DECEMBER 6, 2004
____________
Before FLAUM, Chief Judge, and KANNE and ROVNER,
Circuit Judges.
ROVNER, Circuit Judge. Peter Lewis filed a petition for a
writ of habeas corpus contending that his Illinois conviction
for residential burglary should be vacated based on several
alleged constitutional violations. The district court dis-
missed his petition, concluding that Lewis had procedurally
defaulted each of his constitutional claims and that federal
review of these claims was therefore barred. We agree and
affirm.
2 No. 03-4013
I.
According to the State’s evidence, Lewis burglarized the
Hyde Park residence of three University of Chicago students
in the early morning hours of November 18, 1995. Lewis
fled after two of the apartment’s inhabitants saw him and
screamed. Armed with their description of the burglar, po-
lice apprehended Lewis approximately 30 minutes later.
Lewis was taken back to the apartment, where both of the
victims identified him as the burglar. That “show-up” iden-
tification apparently was based to some degree on the cloth-
ing that Lewis was wearing and a perceived match between
Lewis’s jeans and a stray button that was found in the
burglarized apartment.
A jury subsequently convicted Lewis of residential bur-
glary, and the trial judge ordered him to serve a prison term
of 20 years. Lewis took an appeal to the Illinois Appellate
Court, raising a single issue having to do with the trial
court’s handling of jury voir dire after one of the prospective
jurors disclosed that she had expressed an opinion about
the case to other members of the venire. R. 8 Exs. A-C.
Finding no merit in that issue, the appellate court affirmed
Lewis’s conviction. People v. Lewis, No. 1-97-3014, Order
(Ill. App. Ct. Dec. 10, 1998); R. 8 Ex. D. The Illinois Supreme
Court denied his pro se petition for leave to appeal.
On September 29, 1999, Lewis filed a pro se petition for
post-conviction relief, asserting principally that his counsel
at trial and on direct appeal had been constitutionally
ineffective in a variety of respects. R. 8 Ex. G. In addition,
Lewis alleged that authorities in advance of trial had im-
properly destroyed the clothes he was wearing at the time
of his arrest, depriving him of evidence that would have
helped to establish his innocence. Id. at C14-15 ¶ 8. Among
the claims of ineffectiveness were four claims that Lewis
later would assert in his habeas petition: (a) his trial coun-
sel failed to subpoena and examine the clothing that he
No. 03-4013 3
wore at the time of his arrest, before that clothing was
destroyed (id. at C13-14 ¶ 6); (b) counsel did not seek to
exclude evidence of the victims’ pre-trial identification of
him as the burglar (id. at C12 ¶¶ 3, 4); (c) counsel failed to
object to the destruction of his clothing (id. at C13-14 ¶ 6);
and (d) counsel neglected to call certain exculpatory wit-
nesses to testify on his behalf (id. at C11 ¶ 1, C12 ¶ 2, C14
¶ 7). On November 12, 1999, the trial court summarily
dismissed the petition as “frivolous and patently without
merit.” R. 8 Ex. H at A3. In its oral ruling, the court spe-
cifically addressed only one of the claims that Lewis had
made in his petition. This was a claim that Lewis’s trial
counsel was ineffective for failing to call a Chicago police
detective to testify that the victims had been unable to
identify Lewis at the show-up some 30 minutes after the
burglary took place. Lewis contended that a police report,
which he had attached to his post-conviction petition,
confirmed that the victims had been unable to identify him.
The trial court disagreed:
He is just wrong. That is not what it states in this re-
port at all. If I take what [Lewis] states [in his petition]
as true, maybe it would be grounds for a hearing. [But]
[h]e has included in support of that something that
contradicts this. And as I say, I recall the trial in any
event. So the petition is meritless and will be dismissed.
R. 8 Ex. H at A3-4.
On November 16, 1999, four days after the trial court dis-
missed Lewis’s original post-conviction petition and almost
certainly before Lewis received notice of that ruling, Lewis
(again pro se) submitted a motion to amend his post-con-
viction petition. R. 8 Ex. I. In that motion, Lewis sought
leave to raise a number of new claims that he had not as-
serted in the original petition. Among these claims was the
contention that Lewis’s appellate counsel was ineffective for
failing to contend on direct appeal that the jury selection
4 No. 03-4013
process had deprived Lewis of his rights under Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). R. 8 Ex. I at
C34 ¶ 4(d). Because the motion to amend was filed after the
trial court had already dismissed Lewis’s original post-
conviction petition, it was treated as a successive post-con-
viction petition, and consistent with that treatment we shall
refer to it as such. The trial court summarily dismissed the
successive petition on December 14, 1999. R. 8 Ex. J.
Lewis separately appealed the dismissals of both his orig-
inal and successive post-conviction petitions. The appeals
were not consolidated, and they proceeded on separate but
parallel tracks through the Illinois Appellate Court. The
Cook County Public Defender’s Office was appointed to
represent Lewis in both appeals.
In the first appeal (No. 1-99-4205), from the summary dis-
missal of Lewis’s original post-conviction petition, Lewis,
through his appointed counsel, pursued only one of the
claims asserted in that petition. The appeal focused on the
same claim that the trial court had remarked upon in dis-
missing the petition—the claim that Lewis’s trial counsel
had improperly failed to call a police officer to testify that
the victims had been unable to identify him at the show-up.
Lewis’s counsel contended that because this claim pre-
sented the “gist” of a potentially meritorious constitutional
argument, the trial court should have appointed counsel
and conducted further proceedings rather than summarily
dismissing this claim along with the others raised in the
post-conviction petition. R. 8 Ex. K.
On March 22, 2001, the appellate court affirmed the dis-
missal of this claim. Like the trial court, the appellate court
reasoned that the police report attached to Lewis’s post-con-
viction petition undermined his allegation that the victims
of the burglary had been unable to identify him at the
show-up. Consequently, there was no reason to believe that
the police detective who witnessed the show-up would have
No. 03-4013 5
provided testimony that was helpful to Lewis. People v.
Lewis, No. 1-99-4205, Order (Ill. App. Ct. Mar. 22, 2001); R.
8 Ex. M-1.
In the second appeal (No. 1-00-0128), from the summary
dismissal of Lewis’s successive post-conviction petition, the
Cook County public defender sought the appellate court’s
leave to withdraw as Lewis’s counsel pursuant to
Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990 (1987).
R. 8 Ex. N. In the defender’s view, Lewis had no meritorious
argument to make in support of reversing the dismissal of
his successive petition. Among other things, the defender
noted that the Illinois post-conviction hearing act contem-
plated the filing of a single petition for relief by the petitioner.
Id. at 3. Counsel also pointed out that if Lewis prevailed in
the first appeal, from the dismissal of his original petition,
he would be given the opportunity to amend that petition.
Id. at 4.
Lewis filed a brief in opposition to his counsel’s Finley
motion. In that brief, Lewis listed a host of claims that, in
his view, were meritorious and that he believed the appel-
late court ought to address. Among those claims were several
that Lewis had set forth in his original post-conviction
petition, including his claim that the prosecution had im-
properly destroyed exculpatory evidence (the clothing he
was wearing at the time of his arrest) (R. 8 Ex. O at 21-24),
and his claims of attorney ineffectiveness based on his trial
counsel’s failure to examine his clothing before it was de-
stroyed and counsel’s failure to contact (and call to testify)
certain witnesses who allegedly would have given exculpa-
tory testimony (id. at 1-5, 12-15, 16-20).
In an order issued on February 22, 2001, the Illinois
Appellate Court granted the Cook County public defender
leave to withdraw as Lewis’s counsel and affirmed the dis-
missal of Lewis’s successive petition. People v. Lewis, No. 1-
00-0128, Order (Ill. App. Ct. Feb. 22, 2001); R. 8 Ex. M-2.
6 No. 03-4013
We have carefully reviewed the record in this case,
the aforesaid brief [in support of the public defender’s
motion to withdraw], and defendant’s response in com-
pliance with the mandate of the Finley decision and
find no issues of arguable merit. Therefore, the motion
of the public defender for leave to withdraw as counsel
is allowed.
The judgment of the Circuit Court of Cook County is
affirmed.
Order at 2; R. 8 Ex. M-2 at 2.
Lewis subsequently obtained leave from the Illinois
Supreme Court to file a late petition for leave to appeal. R. 8
Ex. Q. That petition, along with a subsequent motion to
amend the petition, contained only the number of his first
appeal. R. 8 Exs. R, S. However, those documents referred
to the second appeal and the issues raised therein, and
Lewis attached to the petition itself the orders issued by the
appellate court in the second as well as the first appeal. The
order allowing Lewis to file the petition also referenced the
numbers of both appeals. See R. 8 Ex. Q. The Illinois
Supreme Court ultimately denied the petition. R. 8 Ex. T.
Having exhausted his state court remedies, Lewis filed a
pro se petition for a writ of habeas corpus in the district
court. R. 1. In that petition (as fleshed out by the memoran-
dum that he subsequently filed in reply to the State’s an-
swer), Lewis asserted four basic claims: (1) that suggestive
procedures tainted the identifications of the burglary victims;
(2) that the State had improperly destroyed exculpatory
evidence (the clothing Lewis wore at the time of his arrest)
in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194 (1963); (3) that the State’s exercise of peremptory
challenges in jury selection violated Batson, and that the
trial court had erred in not answering certain factual ques-
tions about the case that the jury posed to the court during
No. 03-4013 7
its deliberations; and (4) that he was denied the effective
assistance of trial counsel in various respects.1 Lewis’s
claims of attorney ineffectiveness (collectively, Claim 4)
were based on four asserted omissions by his trial counsel:
(a) the failure to examine the clothing evidence before the
State improperly destroyed it, which examination, accord-
ing to Lewis, would have shown that the button found in
the burglarized apartment did not match the jeans Lewis
was wearing; (b) the failure to seek suppression of the vic-
tims’ pre-trial identification of him as the burglar; (c) the
failure to object to, and seek appropriate sanctions for, the
State’s destruction of the clothing; and (d) the failure to call
certain witnesses who (allegedly) would have provided
exculpatory testimony.
The district court ultimately dismissed Lewis’s petition in
its entirety on the ground that he had procedurally de-
faulted each of his claims. In the first of two opinions, the
court found that Lewis had failed to properly assert Claims
1, 2, or 3 either on direct appeal from his conviction or in
the post-conviction proceedings and had therefore defaulted
those claims; moreover, he had not established cause for the
default or resulting prejudice that would permit the court to
overlook the default. Lewis v. Sternes, No. 02 C 2905, 2002
WL 31687607, at *4-*5, *6 (N.D. Ill. Dec. 2, 2002). As for
the four grounds of attorney ineffectiveness alleged in
Claim 4, the State in its answer had asserted that two of
these four grounds likewise had been procedurally defaulted.
The court agreed as to one of these grounds—Claim 4(b),
based on his trial counsel’s failure to move to suppress the
victim identifications—and ordered the State to supplement
1
We have listed and numbered Lewis’s claims consistent with the
manner and order in which the district court numbered and
addressed the claims. Lewis’s habeas petition itself sets the claims
forth in a somewhat different order.
8 No. 03-4013
its answer by responding to the merits of the remaining
three grounds. Id. at *5-*6, *7. Instead, the State, after first
allowing the deadline for its supplemental answer to pass
and then belatedly securing an extension of time (over Lewis’s
objection), filed a supplemental memorandum urging the
court to dismiss the three remaining claims of ineffective-
ness, contending that Lewis had procedurally defaulted all
of them. R. 27. The district court ordered this memorandum
stricken, finding that the State had failed to comply with its
order to supplement its answer and respond to the merits
of these claims. R. 29. The court did permit the State to
assert its belated procedural default arguments in addition
to addressing the merits of these claims, although the court
reserved the right to determine whether the State had
waived the procedural default arguments by not raising
them in its original answer. Id. The State complied by filing
a supplemental memorandum that both answered the three
remaining claims of ineffectiveness and posited reasons why,
in its view, Lewis had procedurally defaulted those claims.
R. 30.
After reviewing the State’s supplemental memorandum,
the court agreed that Lewis had procedurally defaulted the
remaining instances of alleged ineffectiveness—Claims 4(a),
4(c), and 4(d). Lewis v. Sternes, No. 02 C 2905, 2003
WL 22250020 (N.D. Ill. Oct. 1, 2003). It reasoned that
although Lewis had, for the most part, asserted the claims
in his original petition for post-conviction relief,2 he had not
2
The court pointed out, however, that Lewis had not raised one
aspect of Claim 4(d) in either of his two post-conviction petitions.
This was the contention that his trial counsel was ineffective for
failing to summon to testify a friend of the burglary victims who
was present in their apartment both when the burglary occurred
and when police brought Lewis back to the apartment for the vic-
tims to identify. According to Lewis, that individual would have
(continued...)
No. 03-4013 9
properly raised them in his appeal from the dismissal of
that petition. Id. at *6. The court rejected Lewis’s assertion
that the State had waived these procedural defaults by not
raising them in its original answer to the habeas petition.
The court indicated that it was “unwilling” to find such a
waiver in view of the fact that federal review of Lewis’s
claims had not proceeded beyond the initial stage and the
rules governing habeas corpus proceedings contemplated
amendment of pleadings as appropriate. Id.
The district court later agreed to certify for appeal the
question whether it is proper to permit the State to belat-
edly assert instances of procedural default not raised in its
original answer. It also certified for appeal the question
whether Lewis’s habeas claims were, indeed, procedurally
defaulted. Lewis v. Sternes, No. 02 C 2905, 2003 WL
22682319 (N.D. Ill. Nov. 13, 2003).
II.
The district court’s determination that Lewis procedurally
defaulted each of the claims asserted in his habeas petition
was a legal determination. E.g., Abela v. Martin, 380 F.3d
915, 922 (6th Cir. 2004); Villot v. Varner, 373 F.3d 327, 331
(3d Cir. 2004). Our review of the lower court’s decision is
therefore de novo. Page v. Frank, 343 F.3d 901, 905 (7th
Cir. 2003); Braun v. Powell, 227 F.3d 908, 911-12 (7th Cir.
2000).
Inherent in the habeas petitioner’s obligation to exhaust
his state court remedies before seeking relief in habeas
2
(...continued)
testified, among other things, that the victims were initially un-
able to identify him as the burglar. Because this particular sub-
part of Claim 4(d) was never presented to the Illinois trial court,
the district court found that it was procedurally defaulted for that
reason. 2003 WL 22250020, at *7.
10 No. 03-4013
corpus, see 28 U.S.C. § 2254(b)(1)(A), is the duty to fairly
present his federal claims to the state courts. Baldwin v.
Reese, 541 U.S. 27, 124 S. Ct. 1347, 1349 (2004); O’Sullivan
v. Boerckel, 526 U.S. 838, 844-45, 119 S. Ct. 1728, 1732
(1999); Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509,
512 (1971). “Only if the state courts have had the first
opportunity to hear the claim sought to be vindicated in the
federal habeas proceeding does it make sense to speak of
the exhaustion of state remedies.” Id. at 276, 92 S. Ct. at
512. Fair presentment in turn requires the petitioner to
assert his federal claim through one complete round of state-
court review, either on direct appeal of his conviction or in
post-conviction proceedings. Boerckel, 526 U.S. at 845, 119
S. Ct. at 1732-33. This means that the petitioner must raise
the issue at each and every level in the state court system,
including levels at which review is discretionary rather
than mandatory. Ibid.A habeas petitioner who has exhausted his state court
remedies without properly asserting his federal claim at
each level of state court review has procedurally defaulted
that claim. See id. at 848-49, 119 S. Ct. at 1734; see also,
e.g., Howard v. O’Sullivan, 185 F.3d 721, 725 (7th Cir. 1999);
Momient-El v. DeTella, 118 F.3d 535, 541 (7th Cir. 1997). A
procedural default will bar federal habeas relief unless the
petitioner can demonstrate both cause for and prejudice
stemming from that default, Wainwright v. Sykes, 433 U.S.
72, 86-87, 97 S. Ct. 2497, 2506 (1977), or he can establish
that the denial of relief will result in a miscarriage of jus-
tice, Murray v. Carrier, 477 U.S. 478, 495-96, 106 S. Ct.
2639, 2649 (1986). Cause for a default is ordinarily estab-
lished by showing that some type of external impediment
prevented the petitioner from presenting his federal claim
to the state courts. Id. at 488, 492, 106 S. Ct. at 2645, 2648.
Prejudice is established by showing that the violation of the
petitioner’s federal rights “worked to his actual and sub-
stantial disadvantage, infecting his entire trial with error
No. 03-4013 11
of constitutional dimensions.” United States v. Frady, 456
U.S. 152, 170, 102 S. Ct. 1584, 1596 (1982) (emphasis in
original). In order to show, alternatively, that a miscarriage
of justice would result if habeas relief is foreclosed, the
petitioner must show that he is actually innocent of the
offense for which he was convicted, i.e., that no reasonable
juror would have found him guilty of the crime but for the
error(s) he attributes to the state court. Schlup v. Delo, 513
U.S. 298, 327-29, 115 S. Ct. 851, 867-68 (1995).
Lewis procedurally defaulted Claims 1 (tainted identifica-
tions) and 3 (Batson violation). He did not pursue either of
these claims, as such, on direct appeal or in the post-con-
viction proceeding. It is true that during the post-conviction
proceeding, Lewis cited his trial and/or appellate counsel’s
failure to pursue these claims in support of his claims of
attorney ineffectiveness. However, an assertion that one’s
counsel was ineffective for failing to pursue particular con-
stitutional issues is a claim separate and independent of
those issues. A meritorious claim of attorney ineffectiveness
might amount to cause for the failure to present an issue to
a state court, but the fact that the ineffectiveness claim was
raised at some point in state court does not mean that the
state court was given the opportunity to address the
underlying issue that the attorney in question neglected to
raise. It is undisputed that Lewis did not raise Claims 1 or
3 in state court. Consequently, unless Lewis can demonstrate
one of the two bases discussed above for excusing his de-
fault (i.e., cause and prejudice, or a miscarriage of justice),
habeas relief on those claims is foreclosed to him.
As Lewis suggests and the State concedes, if his trial
and/or his appellate attorneys were ineffective for failing to
present these claims at trial and on direct appeal of his
conviction, then their sub-par representation might supply
cause for his procedural default of these claims. However,
a claim of ineffectiveness must itself have been fairly pre-
sented to the state courts before it can establish cause for
12 No. 03-4013
a procedural default of another claim. Edwards v. Carpenter,
529 U.S. 446, 452-54, 120 S. Ct. 1587, 1591-92 (2000). As we
conclude below, Lewis procedurally defaulted his ineffec-
tiveness claims in the Illinois courts. Consequently, his
attorneys’ alleged ineffectiveness cannot excuse the default
of Claims 1 and 3. Lewis alternatively has not attempted to
demonstrate the possibility that a miscarriage of justice will
occur if these claims are not heard. Accordingly, the merits
of these claims cannot be entertained on habeas review.
Claim 2 (the Brady claim) stands on a somewhat different
footing. Lewis’s original post-conviction petition did contain
an argument that the State improperly destroyed the
clothing that he wore at the time of his arrest and that the
destroyed clothing might have established his innocence. R.
8 Ex. G at C14-15. This argument fell within a section of the
post-conviction petition that Lewis entitled “Ineffective
Assistance of Trial Counsel” (id. at C-11); and consistent
with that heading, most of the arguments in that section
were focused on steps that his trial attorney had failed to
take and arguments that he had failed to advance. In con-
trast to those other arguments, however, this particular
contention did not advance a theory as to why Lewis’s at-
torney was ineffective for failing to raise this issue; it simply
suggested that the evidence was improperly destroyed. As
the State concedes (State Br. at 29), given a liberal con-
struction, the post-conviction petition could be interpreted
to be making a Brady claim proper, as opposed to a claim
that Lewis’s attorney was ineffective for failing to make
such a claim. As Lewis prepared the petition without the
assistance of counsel, we owe it a generous interpretation.
Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595-96
(1972).
However, after raising Claim 2 in his post-conviction
petition, Lewis failed to pursue that claim through one com-
plete round of review in the Illinois courts. He did even-
No. 03-4013 13
tually raise the claim with the appellate court, but in the
wrong appellate proceeding. The problem here emanates
from the fact that there were two separate appeals in the
post-conviction process, the first arising from the summary
dismissal of Lewis’s original post-conviction petition, and a
second appeal arising from the dismissal of his successive
post-conviction petition. Lewis did not raise Claim 2 in the
appeal challenging the dismissal of his original post-convic-
tion petition, where the claim had been raised. Lewis was
represented by counsel in that appeal, and his attorney chose
to raise only a single issue having nothing whatsoever to do
with the Brady claim. Only in the second appeal, from the
denial of his successive petition, did Lewis mention the
Brady claim. Recall that in that appeal, Lewis’s appointed
counsel moved to withdraw from representing him pursuant
to Pennsylvania v. Finley, asserting that Lewis had no
meritorious grounds for appeal. In response to his attorney’s
motion, Lewis filed a brief contending that he did have
meritorious grounds for appeal, including his claim that the
State had improperly destroyed evidence. R. 8 Ex. O at 21-
24. But this claim was plainly beyond the scope of the
second appeal: Lewis had not raised the Brady claim in the
successive petition, and the scope of the second appeal was
limited to whether or not the trial court had properly dis-
posed of that petition, as opposed to his original petition.
Lewis was obliged to raise the Brady claim in the first
appeal, dealing with the dismissal of his original post-convic-
tion petition. Having failed to do so, he procedurally de-
faulted the claim.
Lewis suggests that it is unduly formalistic and unfair to
him to compartmentalize the two appeals in this way.
Among other things, he notes that the two appeals were
pending before the appellate court at the same time, the
appellate court took note of the fact that there were two
appeals (see People v. Lewis, supra, No. 1-00-0128, Order at
1; R. 8 Ex. M-2 at 1), and, finally, when the appellate court
14 No. 03-4013
affirmed the dismissal of Lewis’s successive post-conviction
petition, the court noted that it did so after reviewing both
Lewis’s brief as well as the entire record below (Lewis, No.
1-00-0128, Order at 2; R. 8 Ex. M-2 at 2).
We disagree. Although the two appeals certainly were
related in the sense that they arose from a single post-
conviction proceeding in the trial court, and although they
proceeded on parallel tracks through the appellate court,
they nonetheless remained distinct: they were filed separ-
ately based on two different orders of the trial court, they
were briefed separately (in the first instance, by a public
defender on Lewis’s behalf, and in the second instance, by
Lewis himself when his appointed counsel sought the
court’s permission to withdraw), and they were decided by
separate orders. The appeals were never formally or func-
tionally consolidated in such a way that the parties were
invited or permitted to effectively merge the two appeals in
their briefing. On the contrary, the documents filed by the
parties reflect their understanding that the two appeals
were distinct. See R. 8 Ex. K at 3 (Lewis’s opening brief in
first appeal) (“The supplemental post-conviction petition
filed on November 16, 1999, and denied on December 14,
1999, is not part of this appeal.”); R. 8 Ex. N at 3 (Finley
motion) (noting that Lewis had filed two separate appeals);
id., attachment (Lewis’s second pro se notice of appeal)
(noting that the order appealed from was the order of
December 14, 1999, described as “Post Conviction Petition
Amended Order”).
In short, Lewis could not properly raise Claim 2 in the
second appeal from the denial of his successive petition as
it was beyond the limited scope of that appeal; he defaulted
that claim when his attorney failed to raise that Brady
claim in the first appeal, from the denial of his original
post-conviction petition. Lewis has not established any
basis for excusing this default. Therefore, as with Claims 1
and 3, habeas relief on Claim 2 is foreclosed.
No. 03-4013 15
We turn now to the attorney ineffectiveness claims.
Claims 4(a)-(d) all were set forth in Lewis’s original post-
conviction petition. The pertinent question, however, is
whether Lewis properly appealed the summary dismissal of
these claims. At this juncture, Lewis is not pursuing relief
on Claim 4(b), leaving us to consider Claims 4(a), 4(c), and
4(d). We agree with the district court that Lewis procedur-
ally defaulted each of these claims.
Before going further, we pause to consider whether, as
Lewis asserts, the district court improperly allowed the
State to raise in an untimely manner several instances of
procedural default. As we noted earlier, in its original an-
swer to Lewis’s habeas petition, the State only contended
that two of the four ineffectiveness claims, Claims 4(a) and
4(b), had been procedurally defaulted. The district court
agreed as to Claim 4(b), but disagreed as to Claim 4(a). It
then ordered the State to file an answer responding to the
merits of Claims 4(a), 4(c), and 4(d). Instead, the State, after
first missing the deadline for that answer and then securing
an extension of time from the court, filed a supplemental
memorandum asserting a new theory as to why Claim 4(a)
had been procedurally defaulted and contending for the first
time that Claims 4(c) and 4(d) also had been defaulted. The
district court ordered that memorandum stricken, reasoning
that it did not address the merits of these claims, as the
court had directed. However, the court allowed the State to
file a new supplemental answer in which it both responded
to the merits of the claims and asserted the new procedural
default arguments. Ultimately, the court found these
procedural default arguments to be well taken, rejecting
Lewis’s contention that the State had waived these argu-
ments by not asserting them in its original answer to the
petition.
The district court acted well within its authority to rec-
ognize procedural default arguments not raised in the State’s
16 No. 03-4013
original answer.3 As Lewis rightly points out, a petitioner’s
procedural default does not implicate the jurisdiction of a
federal habeas court. Rather, it is an affirmative defense,
and like other defenses it is one that the State can waive.
Trest v. Cain, 522 U.S. 87, 89, 118 S. Ct. 478, 480 (1997). But
waiver in the true sense occurs when a party intentionally
relinquishes a known right. E.g., Perruquet v. Briley, No.
02-2981, 2004 WL 2600589, at *7 (7th Cir. Nov. 17, 2004).
One might infer that the State has implicitly waived a pro-
cedural default defense when it has asserted that defense
as to some of the petitioner’s claims but not as to the par-
ticular claim in question. See id. at *8 (coll. cases). That is
not what occurred here. Although the State failed to set
forth in its original answer the procedural defaults that it
asserted in its supplemental answer, neither did it respond
to the merits of Claims 4(a), 4(c), or 4(d). On the contrary,
in its original answer, the State did not recognize that
Lewis had asserted the instances of alleged ineffectiveness
underlying Claims 4(c) and (d) in his pro se petition, and
consequently the State did not respond to those claims at
all. As to these two claims, then, the State’s supplemental
answer, which contended that Lewis had procedurally de-
faulted these claims, was its first answer. As for Claim 4(a),
the State did assert in its original answer that Lewis had
committed a default. However, its theory as to why Lewis
had committed a default (that Lewis had failed to assert the
claim in a petition for leave to appeal to the Illinois Su-
preme Court) was one that the district court rejected in its
3
Insofar as Lewis is complaining about the district court’s wil-
lingness to extend the deadline by which the State was to file its
supplemental answer, the court did not abuse its discretion. See
Fed. R. Civ. P. 6(b)(2) (authorizing court to enlarge time after ex-
piration of original deadline); § 2254 Rule 11 (making Federal
Rules of Civil Procedure applicable to proceedings under § 2254);
see also Lemons v. O’Sullivan, 54 F.3d 357, 364-65 (7th Cir. 1995);
Bleitner v. Welborn, 15 F.3d 652, 654 (7th Cir. 1994).
No. 03-4013 17
first opinion. In its supplemental answer, the State then
advanced a different theory of default—that Lewis had not
properly pursued an appeal of Claim 4(a) in the Illinois
Appellate Court. In sum, although the State did not raise
these default theories in as timely manner as it might (and
should) have done, the State’s conduct does not evince an
intent to waive the procedural default defense. See id. In
the absence of a waiver, the decision whether to allow the
State to interpose the defense somewhat belatedly was one
committed to the district court’s sound discretion. See id. at
*9 (noting that federal courts have discretion to reach
procedural default defense that State raises belatedly and
even to raise the subject of procedural default sua sponte).
In view of the important interests in comity, federalism,
and judicial efficiency implicated by a habeas petitioner’s
procedural default, and considering that the proceeding in
the district court was not far advanced when the State
awoke to its additional theories of procedural default, the
district court did not abuse its discretion here in electing to
entertain those theories. We therefore proceed to consider
whether, as the State contends and as the district court
found, Lewis procedurally defaulted Claims 4(a), 4(c), and
4(d).
As with Claim 2, the procedural missteps with respect to
these claims stem from the dual appeals that Lewis took
from the trial court’s dismissal of his original and succes-
sive post-conviction petitions. Because Claims 4(a), (c), and
(d) were asserted in Lewis’s original post-conviction peti-
tion, he was obligated to raise them on appeal from the dis-
missal of that petition. He did not do so, however: his
attorney pursued only a sub-part of Claim 4(d) that is no
longer pertinent (Lewis no longer pursues it). Lewis never
attempted to appeal Claim 4(c) at all. He did attempt to
assert Claim 4(a) and the remaining (and relevant) portion
of Claim 4(d) in the second appeal, from the denial of his
successive petition, in the brief he filed in response to his
18 No. 03-4013
attorney’s motion to withdraw. But as we have explained
with respect to Claim 2, the second appeal was not the
appropriate forum for Lewis to raise claims asserted in his
original post-conviction petition. Lewis’s decision, through
his counsel, not to assert Claims 4(a), 4(c), or 4(d) in the
first appeal constituted a procedural default that bars
federal habeas relief as to these claims.4
Lewis contends that this default is immaterial as to
Claims 4(a) and 4(d), because in disposing of the second
appeal, the Illinois Appellate Court implicitly reached the
merits of Claims 4(a) and 4(d) rather than disposing of those
claims on the independent, procedural basis that those claims
were beyond the scope of that appeal. See, e.g., Hampton v.
Leibach, 347 F.3d 219, 242 (7th Cir. 2003) (“A petitioner’s
procedural default will bar federal habeas review only if the
state court actually relied on that default as an independent
basis for its decision.”) (citing Harris v. Reed, 489 U.S. 255,
261-62, 109 S. Ct. 1038, 1042 (1989)). Lewis points out that
after considering his appointed counsel’s motion to with-
draw pursuant to Finley along with his own brief in re-
sponse (which cited Claims 4(a) and 4(d) as meritorious
grounds for appeal), the appellate court elected to not only
grant the withdrawal motion but also to summarily affirm
the judgment. In Wilkinson v. Cowan, 231 F.3d 347, 352
(7th Cir. 2000), we held that when the Illinois Appellate
Court, in response to a Finley motion, had not only granted
an attorney’s motion to withdraw but also summarily
affirmed the dismissal of the petitioner’s post-conviction
4
The parties go on to consider whether the single petition for
leave to appeal that Lewis subsequently filed with the Illinois
Supreme Court (together with the motion to amend that petition)
could properly have embraced both of the appeals, as was
apparently Lewis’s intent. We need not reach that question, as
Lewis plainly had committed a default as to his ineffectiveness
claims before he reached the Illinois Supreme Court.
No. 03-4013 19
petition, the court had rendered a merits judgment as to
each of the claims asserted in that petition. Relying on
Wilkinson, Lewis posits that when the appellate court
summarily affirmed the dismissal of his successive post-
conviction petition, it necessarily considered each of the
claims he had raised in the pro se brief he filed in opposi-
tion to his lawyer’s Finley motion, including Claims 4(a)
and 4(d), and rejected those claims on their merits. Any
procedural misstep thus was overlooked, as Lewis sees
things, and the door remained open to relief in habeas
corpus on these two claims.
But Lewis construes our holding in Wilkinson far too
broadly. The precise question that we addressed in that
case was whether a habeas petitioner could be charged with
a procedural default in the Illinois Appellate Court when,
in the face of his counsel’s motion to withdraw under Finley,
the petitioner had neither responded to the motion by
identifying meritorious issues that the court should address
nor filed an appellate brief of his own pursuing such issues.
The State argued that in failing to take either step, the
petitioner had effectively abandoned all of the issues that
he had raised in the trial court. We rejected that assertion.
Because the appellate court had not invited the petitioner
to respond to his attorney’s motion to withdraw or to file a
merits brief in his attorney’s stead, nor had it warned him
that he might forfeit the claims he had raised in the trial
court by failing to take either step, we did not believe that
he could be charged with a procedural default. Id. at 350-52.
At the same time, because the appellate court had elected
to summarily affirm the trial court upon review of the
record rather than dismissing the appeal as frivolous, we
concluded that the appellate court’s disposition was prop-
erly construed as one based on the merits of the petitioner’s
claims rather than one based on any procedural misstep
(e.g., failing to file a pro se brief) that he might have commit-
ted. Id. at 352. Notably, because the petitioner in Wilkinson
20 No. 03-4013
had not filed a brief in the state court appeal, our opinion
said nothing about whether a summary affirmance can be
construed as reaching the merits of any and all issues that
might have been raised in a brief, even if they were beyond
the scope of the appeal. At most, Wilkinson stands for the
proposition that when a state appellate court elects to
summarily affirm the judgment below without having
invited the appellant to identify the issues he wishes to
pursue on appeal, we will construe the affirmance to have
reached the merits of each issue that the petitioner properly
raised in the court below.
So understood, Wilkinson is of no help to Lewis. The
Illinois Appellate Court’s decision, following a review of the
record, to summarily affirm the dismissal of Lewis’s suc-
cessive post-conviction petition reasonably can be construed
only to reach those claims that Lewis raised in his successive
petition. See id. at 351 (summary affirmance, pursuant to
Finley, of trial court’s decision to dismiss post-conviction
petition “can only be understood as a merits-based decision
with respect to each of the claims raised in the petition”).
Neither Claim 4(a) nor Claim 4(d) was included in Lewis’s
successive petition; those claims were, as we have discussed,
set forth in the original petition that was the subject of a
separate appeal. Because those claims were not presented
to the trial court in the successive petition, the trial court’s
judgment (i.e., the dismissal of the successive petition) can-
not possibly be construed as reaching those claims, nor can
the summary affirmance of the judgment be understood to
do so. Although Lewis’s appellate brief argued these claims,
nothing in the appellate court’s summary order mentions
those claims or signals the court’s willingness to expand the
scope of the appeal to claims that the trial court had not
reached in the particular decision under review. Both the
United States Supreme Court and this court have held that
an appellant does not fully and fairly present a federal
claim to the state courts when he raises that claim for the
No. 03-4013 21
first time in a petition for rehearing before the state appel-
late court or in a petition asking the state supreme court to
grant him leave to appeal. Castille v. Peoples, 489 U.S. 346,
109 S. Ct. 1056 (1989); Everette v. Roth, 37 F.3d 257, 261
(7th Cir. 1994) (coll. cases). Consistent with those holdings,
we reject the notion that a petitioner fairly presents his
federal claim to the state courts when he raises that claim
for the first time in an appellate brief after his lawyer has
filed a motion to withdraw under Finley.
Lewis had the opportunity to fairly present Claims 4(a)
and (d) to the Illinois Appellate Court. They were among
the claims asserted in his original post-conviction petition,
and Lewis could have raised those claims in appealing the
summary dismissal of his original petition. Instead, his
lawyer chose to challenge only the dismissal of a portion of
Claim 4(d) that is irrelevant. Having failed to raise these
claims in the proper appeal, Lewis procedurally defaulted
those claims.
We reject Lewis’s contention that Massaro v. United
States, 538 U.S. 500, 123 S. Ct. 1690 (2003), permits us to
overlook the procedural defaults he committed as to his
claims of attorney ineffectiveness. Massaro holds simply
that a federal prisoner may assert an ineffectiveness claim
on collateral review under 28 U.S.C. § 2255 even if the
claim was one that he could have raised (but did not) on
direct appeal. Massaro is entirely silent on the subject of
state prisoners making ineffectiveness claims under section
2254, and it certainly does not purport to overrule ample
precedent holding that habeas petitioners must present
their claims of attorney ineffectiveness to the state courts
before seeking relief in federal court. See Duckworth v.
Serrano, 454 U.S. 1, 102 S. Ct. 18 (1981) (per curiam); see
also Stewart v. Smith, 536 U.S. 856, 861, 122 S. Ct. 2578,
2582 (2002); Edwards v. Carpenter, supra, 529 U.S. at 452-
54, 120 S. Ct. at 1591-92; Murray v. Carrier, supra, 477 U.S.
at 489, 106 S. Ct. at 2646. To construe Massaro as Lewis
22 No. 03-4013
proposes would permit a habeas petitioner to deprive the
state courts of the first opportunity to correct a constitu-
tional error and in this way undermine the interests in
comity and federalism underlying both the procedural
default doctrine as well as the statutory limitations on
habeas relief. See Sweet v. Bennett, 353 F.3d 135, 140-41 (2d
Cir. 2003); see also Gomez v. Jaimet, 350 F.3d 673, 678 (7th
Cir. 2003). In short, Massaro does not allow us to ignore
these procedural defaults.
Lewis has not demonstrated an equitable basis for ex-
cusing any of the defaults he committed as to the claims on
which he now seeks relief. Accordingly, he may not seek
federal habeas relief on these claims. The district court
properly dismissed them.
III.
Because Lewis procedurally defaulted each of the claims
he asserted in his petition for habeas corpus, and because
he has not established an equitable basis for excusing the
defaults, relief in habeas corpus is unavailable to him. We
therefore affirm the dismissal of his petition. We thank
Lewis’s attorneys for their vigorous advocacy on his behalf.
No. 03-4013 23
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-6-04