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Henry Kaczmarek v. Rednour, 7th Cir No. 09-2417, 11/17/10

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, and the claim is therefore procedurally defaulted.

Procedural default is an affirmative defense, and generally is waived if the state addresses the claim without also raising default. Illinois raised procedural default in an “untimely” manner – first asserting it in a motion for reconsideration in district court – but under the circumstances didn’t waive the defense.

In this context, waiver means the intentional relinquish- ment of a known right, not merely the failure to timely assert a right, which is properly referred to as forfeiture. Perruquet, 390 F.3d at 517; see also United States v. Wesley, 422 F.3d 509, 520 (7th Cir. 2005) (“A forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might be available in the law.”). Here, it appears that the State initially misread the state court’s decision as addressing the merits of the Apprendi claim. Only later did the State recognize that the state court’s review of the claim for plain error did not constitute a decision on the merits, but rather rested on state procedural grounds. While the State should have raised its default argument more promptly, its conduct does not evince an intent to waive the procedural default defense. Therefore, under the facts of this case, we cannot conclude that the State waived the procedural default defense.

If the petitioner can establish cause and prejudice for the default, the defaulted claim may be reviewed. Kaczmarek can’t make this showing, so his claim can’t be considered.

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