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Habeas claims were waived due to failures to raise them at critical points in state court

Vernard Crockett v. Kim Butler, 7th Circuit Court of Appeals Case No. 14-2320, 11/17/15

Crockett procedurally defaulted his insufficient evidence and confrontation clause claims by failing to preserve the claims at various stages of his direct appeals in state court.

In his state court appeal of his murder and attempted armed robbery convictions Crockett argued there was insufficient evidence to support the robbery conviction and that his confrontation rights had been violated. The state appellate court agreed with his first argument, and reversed the robbery conviction and ordered resentencing on the murder. It rejected the confrontation claim, however. Crockett didn’t seek review of the confrontation clause decision in the state supreme court, so the case went back to the trial court for resentencing. (Slip op. at 5-6).

After resentencing, Crockett appealed again, arguing there was insufficient evidence for the murder conviction and, again, that his confrontation rights were violated. The state court held the first claim was waived because Crockett should have raised it in the first appeal; it rejected the confrontation claim again based on law of the case, as the same argument was rejected in the first appeal. (Slip op. at 6-8). Crockett then sought federal habeas relief raising those two claims. The district court found Crockett defaulted both claims and dismissed the petition. (Slip op. at 8). The court of appeals holds the dismissal was proper.

First, as to the confrontation clause claim:

During his first appeal, Crockett presented his Confrontation Clause claim to the Illinois Appellate Court but did not seek review by the Supreme Court of Illinois. Under O’Sullivan [v. Boerckel, 526 U.S. 838, 845 (1999)], that means Crockett has procedurally defaulted this claim. He also has not shown “cause and prejudice” or actual innocence to excuse his default. See Spreitzer v. Schomig, 219 F.3d 639, 647–48 (7th Cir. 2000) (discussing exceptions to procedural default).

Crockett’s second appeal could not cure his earlier default, even though he petitioned for leave to appeal to the Supreme Court of Illinois in the second appeal. When faced with the same Confrontation Clause claim a second time, the Illinois Appellate Court rejected it based not on the merits but on the law of the case doctrine: a previous decision on the merits by an appellate court is final and conclusive in a second appeal in the same case. People v. McNair, 486 N.E.2d 941, 943 (Ill. App. 1985). Accordingly, the Supreme Court of Illinois never had the chance to address the Confrontation Clause claim on the merits. The district court correctly found procedural default, and we also cannot reach the merits of this claim.

(Slip op. at 9-10).

As to the challenge to sufficiency of the evidence for the murder conviction, that claim was defaulted because the state court found, under the state’s “First Appeal Rule,” that Crockett had waived the claim in his second appeal by failing to raise it in his first appeal. Federal habeas courts may not address the merits of a claim that the state court resolved on “a state law ground that is both independent of the federal question and adequate to support the judgment,” Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir. 2010), if that state law ground is firmly established and regularly followed, Beard v. Kindler, 558 U.S. 53, 60 (2009). Crockett attempts to invoke the Kindler exception by arguing that the state court applied the First Appeal Rule in an “inappropriate and unexpected” fashion because he could not have raised his sufficiency challenge to the murder conviction in his first appeal, since the challenge depended on his first obtaining a reversal of his robbery conviction. The court disagrees:

Reversal of the attempted armed robbery conviction was a needed foundation for the [sufficiency] challenge to the murder conviction, but the Illinois court did not act unfairly by finding that Crockett still could have raised both challenges in the same appeal. Parties frequently raise contingent arguments simultaneously. In fact, Crockett actually raised a different argument in his first appeal that, like his new [sufficiency] challenge, hinged on a favorable outcome to his corpus delicti challenge to his attempted armed robbery conviction. He argued—successfully—that if the appellate court reversed his attempted armed robbery conviction, it should also remand the case for re-sentencing on the remaining murder conviction to ensure the improper robbery conviction did not influence the original sentence. There is no reason he could not have done the same with the contingent Jackson challenge he raised in the second appeal. The Illinois Appellate Court’s application of the First Appeal Rule to his case therefore was not “unexpected” or “freakish.” As an adequate and independent state law ground for the court’s decision, it bars federal review of the merits of Crockett’s [sufficiency] challenge.

(Slip op. at 12-13).

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