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Case: 1:12-cv-07682 Document #: 43 Filed: 09/19/13 Page 1 of 12 PageID #:1975

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION













v.




Petitioner,




United States of America ex rel.


Lee Smith,
















Rick Harrington, Warden,

Menard Correctional Center,










Respondent.



















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No. 12 C 7682


Judge Thomas M. Durkin



MEMORANDUM OPINION AND ORDER

Petitioner Lee Smith, a state prisoner serving prison terms for two counts of

criminal sexual assault, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

R. 1, 11, 13, 14. Respondent Rick Harrington1 answered the petition, arguing that

the petition should be denied because the claims raised in it are procedurally

defaulted. R. 30. The petition is denied, and the Court declines to issue a certificate

of appealability.






1 Smith initially named as respondent Donald Gaetz, the warden of Pinckneyville
Correctional Center, where Smith was incarcerated when he filed his § 2254
petition. See Rule 2(a) of the Rules Governing Section 2254 Cases. Rick Harrington
is now the warden of Menard Correctional Center where Smith currently resides.
Accordingly, Warden Harrington is substituted as the proper respondent. See
Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (“[T]he proper respondent is the
warden of the facility where the prisoner is being held.”); see also Bridges v.
Chambers, 425 F.3d 1048, 1049 (7th Cir. 2005).





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Procedural History



The following evidence was presented at Smith’s bench trial.2 In August

2008, Smith was dating Yvonne Smith (the two had been dating for five years and

were of no relation), the mother of T.S., who at the time was 17 years old. R. 30,

Exh. N at 110, 112; see also id. at 212, 227. On the day in question, Smith learned

that T.S. had sexual intercourse with a boy from the neighborhood and came home

from work to speak with her. Id. at 117, 156. When Smith arrived home, he took

T.S. upstairs to the bedroom that he and Yvonne shared, closed the door, and

pushed T.S. onto the bed. Id. at 120-22. T.S. tried to escape, but Smith refused to let

her leave. Id. at 121-22, 155-56. He then pulled off her pants and underwear, and

twice inserted his fingers inside her vagina to see if she had sperm inside her. Id. at

121-24, 126-28, 161. Smith then licked her vagina for about 30 minutes and then

“finger[ed]” her. Id. at 127-30, 162. Afterwards, Smith told T.S. that he was going to

take her to the police station; he then grabbed her by the hair, dragged her down

the stairs, and pulled her by her shirt out of the house and into his van. Id. at 134-

37, 228, 233.



At this point, the police arrived, and the responding officer observed Smith

holding T.S. by her left arm and T.S. trying to pull away from him. Id. at 139, 208.

T.S. told police that Smith had molested her. Id. at 139, 209. While the responding

officer was speaking with T.S., Smith blurted out, “I’m not going to lie. I did check

2 28 U.S.C. § 2254(e)(1) cloaks the state court’s factual findings in a presumption of
correctness. That presumption may be rebutted only by clear and convincing
evidence. Id. Smith has failed to bring forth such evidence. Accordingly, the state
court’s factual findings are presumed correct.




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her to see if she had sex tonight.” Id. at 209. When the officer asked Smith to

explain that comment, Smith responded that “he was checking her to see if she had

sex, that he pulled her clothes off, and [that he] stuck his hand down her vagina.”

Id. at 211. T.S. was transported to the hospital, and Smith was taken into custody.

Id.



At the police station, Smith told the officer that when he confronted T.S., she

denied having sexual intercourse, and they began to argue. Id. at 212. He again

admitted to pulling off T.S.’s clothes and putting his hand in her vagina. Id. at 212-

13. Smith also admitted that it was possible that his fingers had penetrated her

vagina because T.S. was struggling with him at the time. Id. at 215. Smith

explained that he had a “very keen sense of smell,” that he had a “unique ability to

smell and determine if a woman [had] recently had sex,” and that his sense of smell

was better if his mouth was open and his tongue out. Id. at 213, 217. Smith told

police that when T.S. was on the bed, he put his face on her thigh close to her

vagina and smelled her vagina to discern whether T.S. had in fact had sex earlier

that night. Id. at 213-14. Smith acknowledged that at this time, his tongue was out,

but he was not sure whether during the struggle his tongue had touched T.S.’s

vagina. Id. at 214. Smith admitted, however, that such contact was possible. Id.

DNA testing revealed Smith’s DNA on the outside of T.S.’s vagina. See id. at 100;

Exh. O at 283, 291, 295.



The state trial court found Smith guilty on all four counts of criminal sexual

assault. R. 30, Exh. D at 4; Exh. M at 103; Exh. O at 306. The trial court merged



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two of the sexual assault counts, and then sentenced Smith to two consecutive

prison terms of five years. Id., Exh. D at 4; see Exh. O at 325.



On direct appeal to the state appellate court, Smith argued that the trial

court violated his due process rights by failing to independently evaluate whether

he was fit to stand trial. R. 30, Exhs. A & C. The state appellate court rejected this

argument and affirmed Smith’s convictions and sentences. Id., Exh. D at 7.



Smith then petitioned for rehearing and retrial in the state supreme court.

Id., Exh. E. The state supreme court construed this petition as a petition for leave to

appeal (“PLA”). Id., Exh. F. Smith alleged in his PLA that the State had failed to

prove him guilty beyond a reasonable doubt and that the prosecution and police had

tampered with evidence. Id. The state supreme court denied Smith’s PLA and the

motion for leave to file a motion to reconsider that followed. Id., Exhs. G, H, & I.

The motion for leave additionally raised the claims that: (1) Smith’s arrest was

illegal; (2) the prosecution and police tampered with witnesses and evidence; (3) the

testifying officers committed perjury; (4) trial counsel was ineffective for failing to

present evidence of his innocence and the prosecution’s misconduct; and (5)

appellate counsel was ineffective for failing to raise these arguments on direct

appeal. Id., Exh. H. Smith did not petition for a writ of certiorari in the United

States Supreme Court. R. 1 at 2.



While his direct appeal was pending, Smith began sending correspondence to

the state trial court. The court construed this correspondence as an attempt by

Smith to pursue state postconviction relief. R. 30, Exh. J at 13; Exh. K; see also Exh.



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L. From these letters the following claims can be gleaned: (1) Smith is actually

innocent; (2) trial counsel, the prosecution, the police, and possibly the trial judge

were involved in a conspiracy to convict Smith; (3) various witnesses committed

perjury; and (4) the trial court imposed an improper sentence. Id., Exh. K. The state

trial court, after construing Smith’s letters as a postconviction petition, denied

relief, id., Exh. L, and Smith declined to appeal the trial court’s judgment, R. 1 at

3.3

This Court received Smith’s § 2254 petition on September 25, 2012. R. 1. In

that petition, Smith alleged that: (1) trial counsel was ineffective for failing to (a)

object to certain statements made by the prosecution in closing arguments; (b)

challenge the legality of his arrest and the validity of the DNA testing; (c) object to

the admission of the victim’s clothing into evidence; and (d) challenge the sufficiency

of the evidence to sustain his convictions; (2) appellate counsel on direct appeal was

ineffective for failing to raise the claims that: (a) Smith’s arrest was illegal; (b) the

DNA testing was fraudulent; and (c) the arresting officer gave false reports and

suppressed evidence; (3) Smith’s arrest was illegal; and (4) the prosecution “denied

[his] rights” by not allowing the trial judge to view video recordings of him and the

victim, which, according to Smith would have demonstrated that the DNA testing


3 A review of Smith’s state court records demonstrates that following the dismissal
of his postconviction petition, he continued to send correspondence to the trial court
and file pro se pleadings, including another postconviction petition and a petition
for relief from judgment pursuant to 735 ILCS 5/2-1401. R. 30, Exh. J at 13-27. The
records demonstrate that the state trial court denied Smith relief, id., and counsel
for the Warden has confirmed that Smith failed to appeal any of the court’s rulings
denying relief, R. 30 at 5. Indeed, counsel for the Warden has confirmed that Smith
has not pursued any appellate relief other than his direct appeal. Id.



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was false and his arrest illegal. R. 1 at 5, 8-15. Smith filed an amended petition and

a second amended petition, R. 11, 14, and a “Motion for Habeas Relief,” which raises

an additional challenge to the sufficiency of the evidence to sustain his convictions,

R. 13.

Analysis

I.



Smith Claims Are Procedurally Defaulted, And There Are No
Grounds To Excuse His Defaults.

The Warden argues that the claims that Smith raises in his § 2254 petition

are procedurally defaulted and that there are no grounds to excuse the default of

those claims.4 A claim is procedurally defaulted if it was not fairly and properly

presented in state court through one complete round of the State’s established

appeals process. See O’Sullivan v. Boerckel, 526 U.S. 838, 845-48 (1999); Malone v.

Walls, 538 F.3d 744, 753 (7th Cir. 2008) (to preserve claim for federal habeas

review, habeas petitioner must “assert his federal claim through one complete

round of state-court review, either on direct appeal of his conviction or in

postconviction proceedings”) (internal quotation marks omitted); Guest v. McCann,

474 F.3d 926, 930 (7th Cir. 2007) (completing one round of the State’s appellate

review process in Illinois means that habeas petitioner “must have . . . appealed to

the Illinois Appellate Court and presented the claim in a petition for leave to appeal

to the Illinois Supreme Court”).


4 The Warden concedes that Smith’s claims are timely and that they are not barred
by non-retroactivity principles. R. 30 at 6.




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None of Smith’s current habeas claims were preserved in one complete round

of his direct appeal proceedings or his postconviction proceedings. In his direct

appeal, Smith argued that the trial court violated due process by failing to make an

independent evaluation of his fitness to stand trial. See R. 30, Exhs. A, B, & C.

Rather than appealing the state appellate court’s judgment denying that specific

claim, Smith chose to raise a number of new claims for the first time in his ensuing

PLA to the state supreme court. Id., Exh. E. Accordingly, Smith did not raise any of

his habeas claims through one complete round of his direct appeal proceedings.

The same holds true for Smith’s postconviction round. Smith, through his

correspondence to the state trial court, filed a postconviction petition, and even if he

raised his current habeas claims in that petition, he defaulted those claims by

failing to appeal the dismissal of his claims to the state appellate court and the

state court supreme court in a postconviction appeal. Because Smith has exhausted

his state court remedies without properly asserting his federal habeas claims at

each level of state court review—either on direct appeal or in his postconviction

proceedings—his claims are procedurally defaulted. See Malone, 538 F.3d at 753.

Smith’s claims are procedurally defaulted on federal habeas review unless he

can show cause and prejudice to excuse the default, or demonstrate that he is

actually innocent, so that the failure to consider the defaulted claim will result in a

fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750

(1991); Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir. 2009); see also House v. Bell,

547 U.S. 518, 536 (2006); Schlup v. Delo, 513 U.S. 298, 321 (1995). Smith cannot



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demonstrate either. To demonstrate “cause,” a habeas petitioner must show that

“some objective factor external to the defense impeded [his] efforts” to pursue his

claim in state court. Murray v. Carrier, 477 U.S. 478, 488 (1986); Smith v. McKee,

598 F.3d 374, 383 (7th Cir. 2010). And to satisfy the “prejudice” component, the

petitioner “must ‘shoulder the burden of showing . . . that the errors at his trial . . .

worked to his actual and substantial disadvantage, infecting his entire trial with

error of constitutional dimensions.’” Ouska v. Cahill-Masching, 246 F.3d 1036, 1050

(7th Cir. 2001) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis

omitted).



Smith notes briefly in his “Petition To Ask For Understanding Of Laws” that

his counsel on direct appeal was ineffective for failing to raise claims regarding his

“wrongful arrest, denial of an investigation, suppression of vital evidence, entering

of false DNA facts, and ineffective counseling.” R. 41 at 4-5. To the extent that

Smith argues that his direct appeal counsel’s ineffective assistance acts as cause to

excuse the default of his current habeas claims, that argument fails because Smith

failed to preserve his ineffective assistance of direct appeal counsel claim through

one complete round of state court review. See Edwards v. Carpenter, 529 U.S. 446,

451-52 (2000); Smith v. Gaetz, 565 F.3d 346, 352 (7th Cir. 2009) (“[T]he assertion of

ineffective assistance as a cause to excuse procedural default in a § 2254 petition, is,

itself, a constitutional claim that must have been raised before the state court or be

procedurally defaulted.”) (internal quotations marks omitted).



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Smith offers two reasons for his failure to appeal the dismissal of his

postconviction petition and pursue his claims through one complete round of state

postconviction review. According to Smith, he did not appeal the dismissal to the

state appellate court because the “[p]etition was sent back saying [it was] not filed,”

and he failed to appeal to the state supreme court because he “fe[lt] that the Courts

of Illinois are refusing to change the ruling of Judge Amy Bertiani [the trial judge],

because she is a female and they [are] ignoring the fact that [his] constitutional

rights were violated.” R. 1 at 5; R. 11 at 5; R. 14 at 5. Even if the Court were to

credit Smith’s allegation that his petition was returned to him (he does not further

elaborate on what the contents of the petition were), Smith does not explain what, if

any, further efforts he made regarding this petition. Nor does Smith’s explanation

of why he did not pursue an appeal regarding the dismissal of his postconviction

petition or the alleged failure of the state appellate court to consider his petition to

the state supreme court ultimately demonstrate how “some objective factor external

to [his] defense” impeded his ability to pursue relief in the state supreme court.

Having failed to demonstrate cause, the Court declines to excuse Smith’s defaults.

To the extent that Smith advances a claim of actual innocence to excuse the

default of his habeas claims, he fails to provide the requisite “‘new reliable

evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence—that was not presented at trial’” necessary

to make out a claim for actual innocence. House, 547 U.S. at 537 (quoting Schlup,



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513 U.S. at 324).5 The Supreme Court recently reiterated the very high hurdle that

habeas petitioners must clear to pass through the actual innocence gateway to

excuse the procedural default of a habeas claim: “tenable actual-innocence gateway

pleas are rare,” and the standard by which actual innocence gateway pleas are

judged is “‘demanding’ and seldom met.” McQuiggin v. Perkins, 133 S. Ct. 1924,

1928 (2013) (quoting House, 547 U.S. at 538). Confirming the standard for judging

actual innocence gateway claims set forth in Schlup v. Delo, 513 U.S. 298, 329

(1995), the Court held that “a [habeas] petitioner does not meet the threshold

requirement [to clear that gateway] unless he persuades the district court in light of

the new evidence, no juror, acting reasonably, would have voted to find him guilty

beyond a reasonable doubt.” McQuiggin, 133 S. Ct. at 1928 (quoting Schlup, 513

U.S. at 329).



The Warden argues that Smith offers no new evidence in support of his

actual innocence claim, but instead rests his claim of innocence on his insistence

that the trial testimony and DNA evidence was either false or wrongly interpreted

by the state trial court. True, and when Smith’s (not new) evidence in support of his

actual innocence claim is weighed against the trial testimony of T.S. and Smith’s

admissions to police that he might have licked and digitally penetrated T.S.’s


5 Since the filing of his initial § 2254 petition, R. 1, Smith has amended that
petition twice, R. 11, 14, filed a “Motion for Writ of Habeas Corpus,” R. 13, and has
filed numerous “petitions,” “motions,” and letters. R. 17, 18, 19, 25, 27, 28, 29, 32,
35, 37, 38, 39, 40, 41, 42. To the extent these pro se filings supplement Smith’s
claim of actual innocence, the Court has considered them in deciding the merits of
that claim.




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vagina while they struggled, the Court finds that Smith evidence is not so credible,

conclusive, or “strong that a court cannot have confidence in the outcome of the

trial.” McQuiggin, 133 S. Ct. at 1936 (quoting Schlup, 513 U.S. at 316).

In sum, because Smith failed to raise his habeas claims in one complete

round of state court review, they are procedurally defaulted. Further, Smith has

failed to clear McQuiggin’s very high hurdle necessary to pass through the actual

innocence gateway and excuse the default of his claims. Smith’s defaults will

therefore be enforced.

II.



A Certificate of Appealability Is Denied.

Finally, Rule 11(a) of the Rules Governing § 2254 Cases provides that the

district court “must issue or deny a certificate of appealability when it enters a final

order adverse to the applicant.” To obtain a certificate of appealability, a habeas

petitioner must make “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2); see also Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011).

And where a petition is disposed of based on a procedural bar, without reaching the

merits of the underlying constitutional claims, a certificate of appealability should

issue only if reasonable jurists would find the adjudication of the antecedent

procedural ruling “debatable.” Slack v. McDaniel, 529 U.S. 473, 484-85 (2000); see

also Lavin, 641 F.3d at 832. Because the procedural default of Smith’s claims is not

debatable, the Court denies certification of them for appellate review. See Slack,

529 U.S. at 584 (“Where a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude



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either that the district court erred in dismissing the petition or that the petitioner

should be allowed to proceed further. In such a circumstance, no appeal would be

warranted.”).

Conclusion



For the foregoing reasons, Smith’s claims are procedurally defaulted, and

there are no grounds to excuse his defaults. Accordingly, his § 2254 petition is

denied, and the Court declines to issue a certificate of appealability. Smith’s

“Motion for Writ of Habeas Corpus,” R. 13, and “Motion for Speedy Trial,” R. 17, are

denied. Smith’s motions to “Enter Extra Fact to Habeas Corpus,” R. 25, 27, and

petition to “Enter Fact of Trial Documents,” R. 42, are granted (the Court

considered these facts and documents in deciding Smith’s § 2254 petition). And

Smith’s remaining pending motions, R. 28, 32, 37, 38, 39, are denied as moot.



















Dated: September 19, 2013

































ENTERED:


__________________________
Thomas M. Durkin
United States District Judge



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