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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
United States of America ex rel.
Rick Harrington, Warden,
Menard Correctional Center,
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
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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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.
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
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,
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
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
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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.
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
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
Thomas M. Durkin
United States District Judge