In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2713
JESSE S MITH,
Petitioner-Appellant,
v.
D ONALD G AETZ, W ARDEN,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 5450—John W. Darrah, Judge.
A RGUED D ECEMBER 8, 2008—D ECIDED M AY 4, 2009
Before E ASTERBROOK, Chief Judge, and B AUER and
S YKES, Circuit Judges.
B AUER, Circuit Judge. Jesse Smith was convicted of first
degree murder and three counts of attempted murder
on August 31, 1992, following a bench trial in the
Circuit Court of Cook County. His conviction was
affirmed on direct appeal. Believing that his trial and
appellate counsel rendered ineffective assistance, Smith
has been pursuing a writ of habeas corpus under 28 U.S.C.
§ 2254. The district court denied his petition as procedur-
2 No. 07-2713
ally defaulted, but certified for appeal the issues of his
trial and appellate counsel’s alleged ineffectiveness. For
the following reasons, we affirm the denial of Smith’s
habeas petition.
I. BACKGROUND
We have reviewed this case before. See Smith v. Battaglia,
415 F.3d 649 (7th Cir. 2005). Much of the lengthy and
somewhat convoluted procedural history that we
detailed in that opinion remains relevant to this review
and thus, we borrow heavily from it here.
Smith found himself in Illinois’s Stateville Correc-
tional Center for his part in a shooting incident in
February 1991. Three assailants, including Smith,
fatally shot Charlotte Wilson and wounded Jerome
Wilson and two onlookers. Smith and a co-defendant
went to trial in a joint bench trial in August 1992. Smith
was represented by Attorney Lawrence Vance. Vance
began by telling the judge that the evidence would
show that Smith was home on the evening in question
with his female partner, who would be a witness in
the case. This was the only defense Vance ever men-
tioned, but mysteriously, at the trial he did not call
Smith’s partner, Carol Brown, as an alibi witness, even
though she was in the courtroom and ready to
testify that Smith had been with her at all relevant
times. Jerome Wilson did testify, and he identified
Smith as one of the shooters. (Years later, in April 1999,
Wilson recanted this testimony in a sworn affidavit,
in which he averred that he “did see the person who
No. 07-2713 3
shot Charlotte Wilson and myself on the night of
February 1, 1991, and it absolutely was not Jesse
Smith.” Later, it seems, Wilson recanted the recanta-
tion, and so it is hard to say what story Wilson would
give now.)
The court found Smith guilty of one count of first-
degree murder, for which it sentenced him to an
extended term of 80 years’ imprisonment, and three
counts of attempted first-degree murder, for which
it imposed concurrent terms of 30 years each. The judg-
ment of conviction was entered on December 14, 1992.
Smith appealed, arguing only that the evidence
did not show beyond a reasonable doubt that he was
guilty and that his sentence was excessive. He was
unsuccessful; the state appellate court rejected his
arguments, see People v. Barnes and Smith, 1994 WL
16175575 (1994), and on October 4, 1995, the Illinois
Supreme Court denied his petition for leave to appeal.
He had until January 2, 1996, to file a petition for
certiorari in the United States Supreme Court, but it
appears that he did not do so.
Smith filed his pro se petition for state post-conviction
relief, see 725 ILCS 5/122-1, on January 12, 1996, ten
days after the time for seeking certiorari had expired. In
it, he claimed, among other things, that he had been
denied his Sixth Amendment right to the effective
assistance of both trial and appellate counsel (different
lawyers) with regard to his alibi defense. In
March 1996, the state circuit court dismissed the
petition. It first found that the petition was untimely
4 No. 07-2713
under 725 ILCS 5/122-1(c). . . . It went on, however, to
hold in the alternative that Smith had waived his
claim of ineffective assistance of trial counsel because
his appellate counsel failed to raise the point on
appeal. It said nothing specific about appellate coun-
sel’s possible ineffectiveness for this oversight, but
it finally examined the merits of the Sixth Amend-
ment claims and held that neither one of Smith’s
lawyers had performed inadequately.
After Smith appealed the circuit court’s order, his
appointed counsel moved to withdraw, citing Pennsyl-
vania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed.2d
539 (1987). Smith objected, arguing that the circuit
court had erred by finding that his lawyers were not
ineffective. The appellate court granted counsel’s
motion, stating in relevant part:
“The scope of post-conviction review is limited
by the doctrines of res judicata and waiver
which affect all claims actually presented in the
direct appeal as well as those which could have
been, but were not. Defendant’s assertions of
ineffective assistance of trial counsel and the trial
court’s prejudice are foreclosed under these princi-
ples, and defendant’s remaining allegations were
either refuted by the record or insufficient to
require further proceedings under the Act. In
addition, defendant’s petition may be considered
untimely under the amended statute, and the
shortcomings of his post-conviction appellate
counsel do not present a basis for granting the
relief sought.”
No. 07-2713 5
Illinois v. Smith, No. 91 CR 1754, slip op. at 3 (Ill.
App. Ct. Nov. 14, 1996) (unpublished decision) (inter-
nal citations omitted). The Supreme Court of Illinois
granted Smith’s motion for leave to file a late appeal,
but denied the petition for leave to appeal on
October 1, 1997.
On August 28, 1998, Smith filed a pro se petition for
a writ of habeas corpus in the federal court under 28
U.S.C. § 2254, again arguing that his trial and appellate
counsel provided ineffective assistance. In an order
dated August 11, 1999, Judge Bucklo held that Smith
had raised these claims throughout his post-conviction
proceedings and appointed a lawyer to represent
him. The case was then administratively transferred
to Judge Darrah, who granted his request for an
evidentiary hearing in August 2001. At the hearing,
Carol Brown (the partner) testified that Vance,
Smith’s trial attorney, told her that she did not need
to testify even though she was present at the trial.
Vance did not testify, but the parties stipulated that
he would have said that he could not remember
why he did not call Brown as a witness.
After the hearing, the state moved to dismiss
Smith’s petition as time-barred. The district court
found that Smith’s state post-conviction petition was
indeed not properly filed because it was late, and thus
that his § 2254 petition also came too late. It dismissed
the petition in an order dated September 28, 2002.
The court later granted Smith’s request for a certi-
ficate of appealability, which included the antecedent
6 No. 07-2713
procedural question whether the state post-conviction
proceeding was untimely and the constitutional
question whether Smith received effective assistance
of trial and appellate counsel. Slack v. McDaniel, 529
U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000).
On appeal, this court reversed the district court’s dis-
missal of Smith’s habeas petition. We held that the
petition was timely because the Illinois Appellate Court’s
language concerning the timeliness of Smith’s post-convic-
tion petition was ambiguous and could not be read as
an independent ground for dismissal. We reasoned that
the time available for Smith to file his habeas petition
had tolled during the pendency of his state post-conviction
proceeding and, accordingly, his habeas petition was
not untimely.
We noted further, however, that Smith wasn’t neces-
sarily out of the woods. The State had argued that Smith
faced an additional procedural bar with respect to his
claim of ineffective assistance of trial counsel due to the
Illinois Appellate Court’s finding on post-conviction
review that he had waived that argument by failing to
raise it on direct appeal. On remand, the State advanced
this argument, contending that Smith’s claim was proce-
durally defaulted because there existed an independent
and adequate state ground barring federal habeas review.
The district court agreed and denied Smith’s habeas
petition.
Smith again sought and obtained a certificate of
appealability. This time, the issues certified for appeal were
constitutional in nature: (1) whether Smith’s trial counsel
was ineffective for failing to call an alibi witness and
No. 07-2713 7
present an alibi defense; and (2) whether Smith’s appellate
counsel was ineffective for failing to raise the issue of
trial counsel’s ineffectiveness on direct appeal.
II. DISCUSSION
Smith first contends that his Sixth Amendment right
to counsel was violated by his trial counsel’s negligent
failure to call Carol Brown to testify.
We review de novo the district court’s denial of a habeas
petition. Ben-Yisrayl v. Buss, 540 F.3d 542, 546 (7th Cir.
2008). Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), we may grant habeas relief only
if the state court’s “decision was contrary to, or involved
an unreasonable application of, Supreme Court precedent,”
or “resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 376 (2000).
As a threshold matter, we must determine whether
Smith has procedurally defaulted his claims of ineffective
assistance of trial and appellate counsel. The State asserts
that the Illinois Appellate Court’s application of the
waiver doctrine prohibits further review because state
procedural rules are independent of federal law and not
subject to a habeas challenge. The State further contends
that Smith has also procedurally defaulted his ineffective
assistance of appellate counsel claim because he failed to
raise it during one complete round of state court review.
We review de novo a district court’s determination of
8 No. 07-2713
procedural default. Lee v. Davis, 328 F.3d 896, 899 (7th Cir.
2003).
“In general, federal courts cannot review on petition
for writ of habeas corpus questions of federal law that
have not been properly presented to the state court.” Willis
v. Aiken, 8 F.3d 556, 560-61 (7th Cir. 1993). If a state court
did not reach a federal issue because it applied a state
procedural rule, the matter is closed to the federal
habeas court unless the petitioner can show both cause
and prejudice. Id. The Illinois Appellate Court was the
last state court to consider Smith’s claim of ineffective
assistance of trial counsel; it ruled that the issue was
waived because, although available to Smith on direct
appeal, he did not raise it. Where, as here, the state court
declined to review an issue that was not properly pre-
served, “the state court decision rests upon a ground that
is both independent of the federal question and adequate
to support the judgment.” Willis, 8 F.3d at 561 (internal
quotations and citation omitted).
Smith does not make a formal cause and prejudice
argument in his briefs. However, he contends that his
appellate counsel’s failure to raise the claim of ineffec-
tiveness of trial counsel on direct appeal was itself ineffec-
tive assistance that should excuse his procedural default.
“Attorney error that constitutes ineffective assistance of
counsel is cause to set aside a procedural default.” Franklin
v. Gilmore, 188 F.3d 877, 883 (7th Cir. 1999).
There remains, however, an additional procedural
problem. “[T]he assertion of ineffective assistance as a
No. 07-2713 9
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.” Lee,
328 F.3d at 901. “The result is a tangled web of defaults
excused by causes that may themselves be defaulted and
require a showing of cause and prejudice—a result that
has an ‘attractive power for those who like difficult puz-
zles.’ ” Id. (quoting Edwards v. Carpenter, 529 U.S. 446,
458 (2000)) (Breyer, J., concurring).
For Smith’s purposes, this means that he was required
to raise the claim at each level of state court review: in
his initial post-conviction petition before the trial court,
in his appeal to the Illinois Appellate Court, and in his
Petition for Leave to Appeal (PLA) to the Illinois Supreme
Court. See Guest v. McCann, 474 F.3d 926, 930 (7th Cir.
2007). We consider here the State’s contention that
Smith failed to properly raise appellate counsel’s inef-
fectiveness in his PLA.
Smith’s PLA makes numerous references to his
counsel’s alleged shortcomings, including a charge that,
“the representation by Appellate counsel was to say the
least a farce.” However, context makes clear that these
grievances pertain solely to his post-conviction appellate
counsel and do not concern the representation he
received on direct appeal. The petition is absent any
assertion that his failure to raise the claim of ineffective-
ness of trial counsel on direct review was due to his
appellate counsel’s ineffectiveness.
Smith does not argue that his failure to raise the claim
should be excused based on cause and prejudice; he
10 No. 07-2713
merely maintains that it was in fact raised. His conten-
tion is refuted by the record and, therefore, we find that
Smith’s ineffective assistance of appellate counsel claim
is procedurally defaulted.
However, even assuming that Smith had preserved his
ineffective assistance of appellate counsel claim, he can
prevail now only if he establishes that his appellate
counsel failed to raise an issue that was both obvious
and clearly stronger than the issues he did raise. Kelly v.
United States, 29 F.3d 1107, 1112 (7th Cir. 1994). This he
cannot do.
On appeal, Smith’s appellate counsel made two argu-
ments: (1) that Smith was not proven guilty beyond a
reasonable doubt; and (2) that his sentence was exces-
sive. Raising trial counsel’s ineffectiveness would have
required meeting the rigorous standards set forth in
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under
Strickland, one must show that trial counsel’s performance
fell below an objective standard of reasonableness and
that prejudice resulted. Id. Review of trial counsel’s
performance “must be highly deferential” and “every
effort [must] be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. at 689. A petitioner
must “overcome the presumption that, under the cir-
cumstances, the challenged action might be considered
sound trial strategy.” Id. (internal quotations omitted).
Smith argues that the ineffective assistance of trial
counsel claim was clearly the strongest argument that
No. 07-2713 11
could have been raised on his behalf. But a review of
trial counsel’s performance suggests otherwise.
Considered alone, Vance’s decision not to call Brown as
an alibi witness, especially after having announced his
intentions to do so during opening arguments, appears
problematic. Yet the Strickland analysis requires that we
review counsel’s performance as a whole. Raygoza v.
Hullick, 474 F.3d 958, 963 (7th Cir. 2007). In doing so, it
must be noted that we are somewhat hindered by an
incomplete record. The record does not include a state-
ment Smith purportedly made to police that may have
conflicted with Brown’s anticipated in-court testimony
concerning Smith’s whereabouts that night. We know
only that Vance alluded to such an inconsistency during
his opening statement before stating that he believed “both
accounts” could be reconciled. We note that it is the
petitioner’s burden to furnish this court with a record
that supports his assertions. Fed. R. App. P. 10; Andrews
v. United States, 817 F.2d 1277, 1281 (7th Cir. 1987);
United States v. Saykally, 777 F.2d 1286, 1288 n.3 (7th Cir.
1985). The record Smith presents here does not permit
us to fully consider the strength of the alibi and, to the
extent that the omission limits our review of counsel’s
competency, it is harmful only to Smith’s claim.
In any event, before Vance could have called Brown to
testify, he was forced to contend with the testimony of the
State’s key witness, Jerome Wilson. The shooting
involved three assailants; all three men were dressed in
black and wearing hoods. In addition to Wilson and
deceased Charlotte Wilson (Charlotte), who was fatally
12 No. 07-2713
shot, two other onlookers were wounded. Wilson was
the only witness who could identify two of the
assailants, Smith and co-defendant Barnes who were
tried together.
On direct examination, Wilson testified that he was
able to view Smith from approximately thirteen feet away
for an extended period of time in a well-lit area. Through-
out this time, his attention was focused on Smith. After
Smith shot Charlotte, Wilson spoke to him. Smith then
pulled back his hood, allowing Wilson to see his face.
Smith fired the gun at Wilson, hitting him in his left side.
Wilson was close enough in proximity to Smith to
identify the gun, describing it as a revolver with a “black
pearl handle.” Wilson then ran, but could not continue
on and fell to his knees, where he remained for approxi-
mately ten minutes. He heard more shots, looked into
a nearby breezeway, and saw co-defendant Barnes shoot-
ing a gun.
Before his in-court identification, Wilson had
identified Smith as the shooter from a photo array on the
day after the attack and again from a line-up approxi-
mately twenty-five days later.
Vance attempted to impeach Wilson’s credibility on
cross-examination. He brought out several discrepancies
regarding the distances Wilson said he ran while attempt-
ing to flee from the shooters. In addition, he confronted
Wilson with prior statements that were inconsistent with
his direct testimony. For instance, during direct examina-
tion, Wilson had provided a fairly detailed description
of the gun Smith fired. When questioned by Vance,
No. 07-2713 13
Wilson conceded that he had told police that he could not
recall what type of weapon Smith carried that night. Vance
also highlighted the apparent lack of motive for the
murder, eliciting Wilson’s acknowledgment that Smith
had “no reason to harm” the victims that night and
that there was “no apparent reason” for the shooting.
So, the trial record establishes that Vance’s attempts to
discredit the reliability of Wilson’s account of events
had yielded some gains. Calling Brown to testify would
have risked undermining those gains.
Brown’s affidavit provides scant detail concerning
Smith’s whereabouts, stating only that Smith was with her
during “the time in question.” She offered neither a
specific time frame nor a location. Although it cannot be
known precisely what Brown would have said if she had
testified, her affidavit does not suggest that she was
prepared to deliver an air-tight alibi. Moreover, as the
district court noted, any alibi Brown provided was prone
to be viewed as biased. Brown was Smith’s live-in girl-
friend and the couple had children together.
If Vance had called Brown to testify, he would have
subjected her to the crucible of cross-examination. In the
event that the State was able to tarnish Brown’s alibi
as vague, biased, or unsubstantiated, the judge might
have rejected it as unreliable. Conversely, left alone, the
absence of a clear motive for the murder combined with
the inconsistencies in Wilson’s testimony gave Vance a
reasonable doubt defense on which to stand.
It appears to us that counsel made a tactical decision. It is
not this court’s role to play Monday-morning quarter-
14 No. 07-2713
back concerning which was the better of two viable trial
strategies. After all, it is “all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable.” Strickland, 466 U.S. at 689. Rather than
ask the court to believe a seemingly flimsy alibi, Vance
elected to hold the State to its high burden of proof after
having attempted to cast some doubt on the State’s best
identification witness. In our view, Smith fails to over-
come the presumption that Vance’s omission was in fact
a strategic one. We find that Vance’s tactics fell within
the wide range of reasonable professional assistance.
Accordingly, Smith’s appellate counsel did not render
ineffective assistance by failing to raise trial counsel’s
alleged ineffectiveness, an issue that was not clearly
stronger than those issues he did raise.
Because Smith cannot show cause and prejudice, the
Illinois Appellate Court’s application of its own pro-
cedural rule (waiver) constitutes an independent and
adequate ground to support its judgment, and the
matter is closed to federal habeas review.
III. CONCLUSION
For the reasons set forth above, we A FFIRM the
district court’s denial of Smith’s habeas corpus petition.
5-4-09