On Point: A. State

7th Circuit decision

Habeas – Procedural Default

“Adequate presentation of a claim requires a petitioner to present both the operative facts and the legal principles that control each claim to the state judiciary.” (Quoting, Stevens v. McBride, 489 F.3d 883, 894 (7th Cir. 2007).) Suh procedurally defaulted his theory of recusal based on the appearance of bias, where it was different from the theory of actual bias he presented to the state court.

7th circuit decision, habeas review of summary order of Wisconsin court of appeals, No. 2004AP2242-CR

Habeas – Procedural Bar, Sentencing Objection

Pomotor’s failure to object to information (the number of beers he allegedly consumed) in his alternative presentence report, worked a procedural default to his susbequent challenge to the sentencing court’s reliance on that information

Promotor accurately argues that a procedural defaultdoes not bar consideration of a federal claim unless the procedure is a “firmly established and regularly followed state practice.”  Smith v.

seventh circuit decision; denying rehearing and amending panel decision, Coleman v. Hardy (per curiam , 2/7/11)

Habeas – Defaulted Claim – Assertion of Innocence

Although Coleman defaulted his ineffective assistance of counsel claim by failing to raise it in state court, his allegation of actual innocence supports a “gateway” evidentiary hearing to determine whether to reach the merits of the defaulted claim.

Default may be excused if the petitioner can show 1) “cause”

seventh circuit decision

Habeas – Procedural Default

A federal claim procedurally defaulted in state court works foreclosure of federal habeas review. That the state court engaged plain error review doesn’t mean that the default was overlooked and the merits of the claim reached. Here, the Illinois court refused to reach the merits of Kaczmarek’s Apprendi claim because of his failure to object contemporaneously; the Illinois contemporaneous objection rule is firmly established and regularly followed,

7th circuit court of appeals decision, on habeas review of summary order of Wisconsin court of appeals

Habeas – Procedural Default & No-Merit Report

Johnson’s failure to assert an ineffective assistance of (trial) counsel claim in response to his appellate attorney’s no-merit report did not procedurally default that claim for purposes of subsequent collateral attack. The court follows Page v. Frank, 343 F.3d 901 (7th Cir.

Issue: Whether, in federal habeas corpus proceedings, a state law under which a prisoner may be barred from collaterally attacking his conviction when the prisoner “substantially delayed” filing his habeas petition is “inadequate” to support a procedural bar because (1) the federal court believes that the rule is vague and (2) the state failed to prove that its courts “consistently” exercised their discretion when applying the rule in other cases.

Docket: 09-996

• Opinion below (9th Circuit,

Magwood v. Patterson, USSC No. 09-158, 6/24/10

After a defendant has been resentenced in state court pursuant to relief granted on a federal habeas petition, a second federal habeas petition challenging the new sentence will be treated as a first petition (vs. a “2nd or successive” petition), even if raising grounds that could have been raised in the original petition.

We have described the phrase “second or successive” as a “term of art.” Id.,

7th circuit court of appeals decision

Issues as Defined by Certificate of Appealability

Holmes’s failure to brief on appeal the merits of his constitutional claims did not waive them, because the order granting certificate of appealability “invited the parties only to brief the [threshold] procedural issue” of whether the claims had been defaulted in state court.

Even were the government correct that the certificate of appealability is defective for failure to require the parties to brief the constitutional issues,

Question Presented:

Whether a state court sentence-reduction motion consisting of a plea for leniency constitutes an “application for State post-conviction or other collateral review,” 28 U.S.C. § 2244(d)(2), thus tolling the Anti-Terrorism and Effective Death Penalty Act’s one-year limitations period for a state prisoner to file a federal habeas corpus petition.

• Opinion below (1st Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Principal impetus for review seems to be (per usual) a split of authority,

7th Circuit court of appeals decision

Habeas – Procedural Bar
Smith defaulted one claim by failing to raise it “in a full round of appellate review” in state court (i.e., he failed to include the issue in his request for Illinois supreme court review). He is unable to overcome the resultant bar on habeas review, on a cause-and-prejudice analysis. Among other things, the claim (trial counsel was ineffective for failing to object to a witness ID instruction) would likely fail on the merits because counsel didn’t act in an objectively unreasonable manner by failing to object to a pattern instruction.