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Joseph Smith v. McKee, 7th Circuit Appeal No. 09-1744, 3/16/10

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.

Another defaulted claim (confrontation) would also likely fail on the merits: it is unclear it was hearsay at all; rather, the statements were offered to explain the officer’s course of action, not the truth of the matter asserted.

The procedural bar assumes that the state court didn’t reach the merits of the waived issue (as opposed to simply finding review to have been waived). The court quotes Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002):

If the decision of the last state court to which the petitioner presented his federal claims fairly appears to rest primarily on the resolution of those claims, or to be interwoven with those claims, and does not clearly and expressly rely on the procedural default, we may conclude that there is no independent and adequate state ground and proceed to hear the federal claims.

However, that the “state court briefly addresses the merits” while explicitly finding waiver doesn’t satisfy this test as to one claim. As the the other:

Only when the state court’s analysis of state law and federal law grounds are interwoven, to such an extent that we cannot clearly determine whether the state court opinion relies on state law grounds, do we set aside the state law grounds and address the issue. However, in this case, the state court held that the issue was procedurally defaulted. Then, in dicta, the court chose to address the validity of the claim. The dicta does not change the state court’s holding, which was solidly grounded in state law.

Habeas – Ineffective Assistance, Appellate Counsel
To succeed on a claim of ineffective assistance of appellate counsel, the habeas petitioner must show that counsel failed to raise an issue both obvious and clearly stronger than the issues counsel did raise. Smith can’t make that showing: he claims that counsel should have argued the unreliability of a witness’s in-court ID of Smith:

… However, Smith does not point to any cases where a trial court had to exclude a similar identification as unduly suggestive. It is likely that appellate counsel found this dearth of caselaw instructive in deciding not to raise this issue. This decision by counsel does not amount to ineffective assistance of appellate counsel.

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