Bradley, Jesse v. Chandler, Nedra

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 30, 2005*
Decided April 5, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
JESSE BRADLEY, Appeal from the United
Petitioner-Appellant, States District Court for the
Northern District of Illinois,
No. 04-3882 v. Eastern Division.
NEDRA CHANDLER, Warden, No. 99 C 1785
Respondent-Appellee. Joan B. Gottschall, Judge.
Order
Following his conviction for murder, Jesse Bradley raised a single contention on
direct appeal: that his trial lawyer had furnished ineffective assistance of counsel.**
The state’s appellate court rejected that contention, and Bradley did not petition for
review by the Supreme Court of Illinois. He did, however, file a collateral attack,
once again contending that trial counsel had been constitutionally deficient. After
that contention was rejected on the ground that the first decision was conclusive,
* After an examination of the briefs and the record, we have concluded that oral argument is un-
necessary, and the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a); Cir. R.
34(f).
** The judgment of conviction and all opinions of the state judiciary give Bradley’s first name as
“Jessie.” Bradley himself spells his first name “Jesse,” and we use that spelling.
No. 04-3882 Page 2
Bradley filed a petition in federal court under 28 U.S.C. §2254. The district judge
denied the petition on the merits, concluding that counsel’s choices were defensible.
The first question on Bradley’s appeal is whether his constitutional arguments
have been preserved for decision. We hold that they have not. Bradley presents two
challenges to trial counsel’s conduct. Each has been defaulted, though for different
reasons.
Bradley first contends that counsel failed to call his mother as an alibi witness.
This was one of the supposed deficiencies that was raised on direct appeal. To pre-
serve this contention for federal review, he had to present it to the Supreme Court
of Illinois as well as to the state’s intermediate appellate court. See O’Sullivan v.
Boerckel, 526 U.S. 838 (1999). Because Bradley did not seek review by the state’s
highest court, he has defaulted this claim.
His second complaint about counsel’s performance—that counsel withdrew a mo-
tion to suppress the results of a lineup—was not presented on direct appeal at all.
Normally objections to trial counsel’s performance may be reserved for collateral re-
view. But Illinois follows the rule that, if a claim of ineffective assistance is made, it
must be complete; the defendant may not allege some shortcomings on direct appeal
and then trot out a different batch on collateral review. See People v. Emerson, 153
Ill. 2d 100, 107, 606 N.E.2d 1123, 1126 (1992). (The federal system follows the same
approach. See, e.g., Davis v. United States, 417 U.S. 333, 342 (1974); United States
v. Taglia, 922 F.2d 413, 418 (7th Cir. 1991).)
Thus by withholding the lineup argument on direct appeal, when other chal-
lenges to counsel’s efforts were presented, Bradley forfeited the point. He does not
contend that this line of argument was unavailable at the time of direct appeal; it
was simply not made. (Bradley well knew that the motion had been withdrawn, and
in open court he assured the judge that the withdrawal was with his consent for
tactical reasons.) And because the point was not made at all on direct appeal, it
likewise was not presented to the Supreme Court of Illinois when it could and
should have been. The state’s default rule is an independent and adequate state
ground that forecloses federal collateral review.
The default cannot be evaded by contending that appellate counsel was ineffec-
tive in his turn; that would eviscerate O’Sullivan by negating the requirement of
full presentation to the state judiciary. Bradley does not contend that he asked
counsel to file a petition for review by the Supreme Court of Illinois and that he re-
fused or failed to carry through; for all this record shows, the decision not to seek
further review was mutual. An attack on the omission of the lineup argument from
the direct appeal would be especially weak given Bradley’s consent to the motion’s
withdrawal. What real error was there to argue about? Even now Bradley does not
contend that his consent had been induced by poor advice; instead he ignores his
role in that decision. Moreover, the adequacy of counsel’s performance cannot be
evaluated by looking at a single potential contention. What good arguments were
available but omitted on the direct appeal? Bradley does not suggest any.
AFFIRMED