United States ex rel. Harris v. Nelson
United States ex rel. Harris v. Nelson
Opinion of the Court
MEMORANDUM AND ORDER
This is the second petition of Michael K. Harris for habeas corpus, filed pursuant to 28 U.S.C.A. § 2254. Harris now alleges the ineffective assistance of counsel and the deni
BACKGROUND
Petitioner was convicted of murder, attempted murder, and two counts of aggravated battery by a jury of his peers and was sentenced to three consecutive prison terms of 40, 12, and 5 years and to one concurrent term of 5 years, totalling 57 years. The Illinois Appellate Court affirmed his conviction and sentence, People v. Harris, 123 Ill.App.3d 899, 79 Ill.Dec. 476, 463 N.E.2d 1030 (Ill.App. 1st Dist. 1984), and the Illinois Supreme Court denied his petition for leave to appeal. See U.S. ex rel. Harris v. Thieret, (No. 86 C 5100), 1987 WL 17833, (N.D.Ill. Sept. 28,1987).
On September 24, 1987 this court denied Harris’s first petition for habeas corpus relief. United States ex rel. Harris v. Thieret, (No. 86 C 5100), 1987 WL 17833, (N.D.Ill. Sept. 28, 1987). We dismissed his challenge relating to the jury instructions for failure to present the constitutional argument to the state courts Id. We dismissed the claim related to consecutive sentencing on the merits. Id.
Petitioner then asked the state for post-conviction relief, alleging the ineffective assistance of trial counsel. The petition was dismissed (March 23, 1992), and we assume arguendo that an appeal from the dismissal and leave to appeal to the state Supreme Court were both denied.
DISCUSSION
Our analysis begins with McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517, reh’g. denied, 501 U.S. 1224, 111 S.Ct. 2841, 115 L.Ed.2d 1010 (1991), for that case sets the analytical framework for abuse of writ cases. The McCleskey Court held that a successive habeas petition may be dismissed under the abuse doctrine even if the subsequent claim was not “deliberately abandoned” in the first petition, id. at 487, 489, 111 S.Ct. at 1466, 1467, unless the petitioner can show cause and prejudice for his failure, id. at 493, 111 S.Ct. at 1470, or that a fundamental miscarriage of justice would ensue, id. at 494, 111 S.Ct. at 1470. “Cause” is defined as “some objective factor external to the defense” which prevented the petitioner from bringing all of his claims at once. See id. at 493, 111 S.Ct. at 1470 (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)).
Two other facts persuade us that plaintiffs petition must be dismissed as an abuse of the writ. First, comity counsels in favor of this rule. Our first memorandum and order was issued nine years ago, and such a length of time makes it particularly inappropriate for a federal court to reverse a state court conviction because it leaves the state with little real opportunity to cure the defects. Second, petitioner definitely knew about his ineffective assistance of trial counsel claims at least by the end of the trial, because during sentencing he accused his attorney of forcing him to perjure himself on the stand (tr. pp. 1012, 1014-15). Thus, all the facts necessary for his ineffective assistance claims were available when he filed his first habeas petition. He could have exhausted this claim in the state post-conviction proceeding (and forced the evidentiary hearing to the surface) before filing his first habeas petition. This is precisely the position which the Rose Court anticipated, and his failure to follow the appro
Finally, since petitioner does not claim that he is actually innocent of the crimes for which he was sentenced, he does not meet the fundamental miscarriage of justice standard. See McCleskey, 499 U.S. at 495, 111 S.Ct. at 1471.
CONCLUSION
For the foregoing reasons, Harris’ petition is dismissed as an abuse of the writ.
. We make this assumption or this petition would be dismissed for procedural default. See Jenkins v. Gramley, 8 F.3d 505, 507 (7th Cir. 1993).
. Rule 9(b) of the Rules Governing § 2254 cases allow a judge to dismiss a second or successive petition "if new and different grounds are alleged, [and] the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." See also 28 U.S.C.A. § 2244(b).
.This is the same cause and prejudice analysis which applies to the procedural default cases. McCleskey, 499 U.S. at 490, 493, 494, 111 S.Ct. at 1468, 1469, 1470.
. The Supreme Court cabined the reach of the total exhaustion rule in Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 1675, 95 L.Ed.2d 119 (1987), when it held that an appellate court was not barred from reaching the merits of a habeas petition when the state failed to raise the non-exhaustion defense in the district court.
. The Court justified its holding by favoring comity over the "not unreasonable impair[ment of] the prisoner’s right to [habeas ] relief.” See Rose 455 U.S. at 522, 102 S.Ct. at 1205.
. In fact, the most important case upon which petitioner relies, Neuschafer v. Whitley, 860 F.2d 1470 (9th Cir. 1988), cert. denied sub nom., Demosthenes v. Neuschafer, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989), was overruled by McCleskey. See Player v. Bunnell, (No. 92-55822), 992 F.2d 1220, 1993 WL 131218, (9th Cir. 1993) (unpublished disposition); Coleman v. Vasquez, 771 F.Supp. 300 (N.D.Cal. 1991); Freeman v. Duckworth, (No. 94—1790) 51 F.3d 275, 1995 WL 156661 (7th Cir. 1995) (unpublished disposition). In addition, the unpublished Seventh Circuit opinion cites Jones v. Estelle and MeCorquodale v. Kemp with approval. Freeman, supra.
Reference
- Full Case Name
- UNITED STATES of America ex rel. Michael K. HARRIS v. Keith O. NELSON
- Status
- Published