In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3389
RAYMOND E. KING,
Petitioner‐Appellant,
v.
RANDY PFISTER, Warden,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:11‐cv‐01155 — Sara Darrow, Judge.
____________________
ARGUED JANUARY 5, 2016 — DECIDED AUGUST 24, 2016
____________________
Before WOOD, Chief Judge, and KANNE and ROVNER, Cir‐
cuit Judges.
KANNE, Circuit Judge. In 2004, Petitioner Raymond King
was convicted by a jury of first‐degree murder. He was sen‐
tenced by the state trial court to life imprisonment. The trial
court judge that presided over King’s trial and sentencing
had represented King over fifteen years prior as an assistant
public defender.
2 No. 14‐3389
King appealed his conviction and sentence, which were
affirmed on direct appeal and denied review by the Illinois
Supreme Court. King then filed for post‐conviction relief,
which was dismissed by the trial court, affirmed on appeal,
and denied review by the Illinois Supreme Court.
Subsequently, King petitioned for a writ of habeas cor‐
pus, pursuant to 28 U.S.C. § 2254, in federal district court,
which was denied.
On appeal, King argues that his trial and appellate coun‐
sel were ineffective under Strickland. v. Washington, 466 U.S.
668 (1984), because they did not seek substitution of the trial
court judge. In doing so, he challenges the Illinois Appellate
Court’s decision in People v. King, No. 03‐08‐0875, slip op. (Ill.
App. Ct. June 21, 2010), which was the last state court to ad‐
dress his claims on the merits. We affirm.
I. BACKGROUND
On September 7, 2002, Nina Buckner was found brutally
murdered in her home. Her head had been smashed with a
hammer, and she had suffered multiple cuts and broken
bones. A blue backpack was found near Buckner’s home,
containing her purse, her identification, and a bloody ham‐
mer and knife. Forensic testing confirmed that the blood on
the hammer and knife belonged to Buckner, and the blood
was also found on King’s clothes. Buckner’s neighbors re‐
ported seeing King near Buckner’s home with a blue back‐
pack on the night of Buckner’s murder. When questioned by
police, King gave multiple, very different, versions of his ac‐
tions during the night of Buckner’s murder. King was even‐
tually charged with the first‐degree murder.
No. 14‐3389 3
A. Trial and Direct Appeal
King’s case was assigned to Judge Michael E. Brandt on
September 17, 2002. Two days later, King first appeared be‐
fore the trial court, represented by counsel.
Prior to trial, while represented by counsel, King en‐
gaged in several pro se actions. He wrote two pro se letters to
the trial court, on January 29, 2003, and April 27, 2003, com‐
plaining about the defense counsel’s unavailability to dis‐
cuss the case. Also, on October 2, 2003, King filed a pro se
motion for change of venue, arguing that the trial judge was
prejudiced because he had represented King in connection
with a prior criminal conviction. This motion was not heard
prior to trial. Finally, King wrote a pro se letter, dated No‐
vember 24, 2003, to the “Chief Judge” stating that he had
been repeatedly denied the chance to have “several motion
[sic] filed and heard.”
Following a jury trial, King was convicted of first‐degree
murder on June 1, 2004. Afterwards, King, represented by
counsel, filed a motion for a new trial. Additionally, on June
29, 2004, King filed a pro se motion for a new trial, alleging
ineffective assistance of trial counsel because of a failure to
object to evidence involving a crime that King had been
charged with but was then acquitted of at trial.
On August 12, 2004, the trial court conducted King’s sen‐
tencing hearing. The trial court began by denying the mo‐
tions for a new trial. The trial court then commented on
King’s pro se motion for change of venue, noting that it was
not timely, not supported by an affidavit, and not noticed for
hearing. The trial court declared that it “hardly” recalled
representing King in the 1986 case:
4 No. 14‐3389
[U]pon reviewing that motion [for change of ven‐
ue], after reviewing the common law record in
preparation for sentencing here, the Court went
back to [the 1986 case] and reviewed it to deter‐
mine if it refreshed my recollection on even repre‐
senting him. It hardly did. It was quite some time
ago. Like [present defense counsel], I was acting as
public defender. It looks as if I was his third public
defender in that particular case. It proceeded to tri‐
al. The defendant was acquitted of home invasion,
found guilty of armed violence. He appealed his
conviction. That was affirmed by the Appellate
Court.
(Sent. Tr. 14–15, Aug. 12, 2004.) Next, after reading the factu‐
al background from the appellate opinion affirming King’s
conviction, the court observed:
Similarities are chilling. Of course, the facts therein
even independently if one did not delve into the
particular facts of [the 1986 case] … the Court has
outlined, the prior convictions in this case, the ne‐
cessity to deter others, and the necessity to protect
the public from Mr. King is clear.
(Id. at 18.) Ultimately, the trial court sentenced King to life
imprisonment.
King appealed, represented by appointed counsel. On di‐
rect appeal, King did not raise a claim of ineffective assis‐
tance of trial counsel for not filing a motion to substitute the
trial court. The Illinois Appellate Court affirmed his convic‐
tion and sentence. King filed a pro se petition for leave to ap‐
peal to the Illinois Supreme Court, which was denied.
No. 14‐3389 5
B. Post‐Conviction Proceedings
On March 28, 2007, King filed a pro se post‐conviction pe‐
tition, 725 ILCS 5/122‐1 et seq., alleging that his trial counsel
and appellate counsel provided ineffective assistance by fail‐
ing to “litigate a claim” to substitute the trial judge. In re‐
sponse, the State moved to dismiss the post‐conviction peti‐
tion, and the trial court granted the State’s motion on Octo‐
ber 24, 2008.
King appealed, represented by the state appellate de‐
fender’s office. On appeal, King renewed his argument that
his trial and appellate counsel provided ineffective assis‐
tance by failing to “litigate a claim” to substitute the trial
judge.
On June 2, 2010, the Illinois Appellate Court affirmed the
trial court’s dismissal of King’s post‐conviction petition in
People v. King, No. 03‐08‐0875. The appellate court began by
reciting Strickland’s two‐pronged standard of performance
and prejudice. Turning to the prejudice prong, the appellate
court held that under Illinois law, to warrant substitution of
a judge for cause, the defendant must demonstrate “that the
judge assigned to his case harbors actual prejudice,” which
requires establishing “animosity, hostility, ill will, or distrust
towards this [particular] defendant.” People v. King, No. 03‐
08‐0875, at 5 (alteration in original and internal quotation
marks omitted). Then, the appellate court summarized
King’s allegations—that during the trial judge’s previous
representation of King, he had failed to call certain witnesses
or raise certain objections, he had ignored King, and he did
not have a good attorney/client relationship with King. Id. In
conclusion, the appellate court held that King could not es‐
tablish “animosity, hostility, ill will, or distrust” because his
6 No. 14‐3389
allegations were “merely conclusory and lack[ed] any factu‐
al basis.” Id.
Afterwards, King filed a pro se petition for leave to ap‐
peal, again renewing his claim that trial and appellate coun‐
sel were ineffective for failing to pursue substitution of the
trial judge. The Illinois Supreme Court denied review on
September 13, 2010.
C. Federal Habeas Proceedings
On March 16, 2011, King petitioned the district court for
a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the
Northern District of Illinois. The case was then properly
transferred to the Central District of Illinois. In his petition,
King asserted numerous claims of ineffective assistance by
his trial counsel, his appellate counsel, and his post‐
conviction trial counsel.
On September 29, 2014, the district court denied King’s
§ 2254 petition. The district court began by finding that King
had procedurally defaulted all of his claims, except Claim 2,
which alleged “that his trial counsel was ineffective because
he failed to file a motion under Illinois law to substitute the
trial judge for bias and his appellate counsel failed to make
this argument on appeal.” (R. 23 at 11.) Next, the district
court found that the Illinois Appellate Court’s decision in
People v. King was not contrary to Supreme Court precedent
because King “does not point to any other specific ruling nor
does he allege that the Illinois courts overlooked any evi‐
dence of prejudice or misunderstood his arguments.” (Id. at
16–17.) Finally, the district court rejected King’s attempt to
characterize his ineffective assistance claim as based on fed‐
eral due process, finding that this claim was “procedurally
No. 14‐3389 7
defaulted.” (Id. at 17–19.) Accordingly, the district court cer‐
tified only Claim 2 for appeal. King appealed.
II. ANALYSIS
We review de novo the district court’s denial of a habeas
petition. Dansberry v. Pfister, 801 F.3d 863, 866 (7th Cir. 2015).
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, a federal court may issue a writ of habe‐
as corpus only if the decision of the last state court to exam‐
ine the merits of the petitionerʹs claim: (1) “was contrary to,
or involved an unreasonable application of, clearly estab‐
lished Federal law, as determined by the Supreme Court of
the United States,” or (2) “was based on an unreasonable de‐
termination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). This court’s
review of a state‐court decision under § 2254(d) is “highly
deferential” under a standard that is “difficult to meet.” Cul‐
len v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation
marks omitted); see also Makiel v. Butler, 782 F.3d 882, 896
(7th Cir. 2015).
On appeal, King argues that the Illinois Appellate
Court’s decision in People v. King was “contrary to or in‐
volved an unreasonable application of” the Supreme Court’s
decision in Strickland. Under Strickland, to show ineffective
assistance, in violation of the Sixth Amendment, a defendant
must prove (1) that his counsel’s performance “fell below an
objective standard of reasonableness” and (2) that he suf‐
fered prejudice such that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. at 687–88,
694.
8 No. 14‐3389
Moreover, the Supreme Court has held that, for a habeas
petitioner advancing a claim of ineffective assistance that
was decided on the merits in state court, “relief may be
granted only if the state‐court decision unreasonably applied
the more general standard for ineffective‐assistance‐of‐
counsel claims established by Strickland,” and this is a “dou‐
bly deferential” standard of review. Knowles v. Mirzayance,
556 U.S. 111, 122–23 (2009).
We begin with King’s claim of ineffective assistance for
failing to seek substitution of the trial court under state law,
which was addressed in People v. King, and then we turn to
his ineffective assistance claim for failing to seek substitution
of the trial court based on federal due process.
A. Ineffective Assistance Claims based on State Law
As an initial matter, King attempts to dispute the factual
findings underlying the appellate court’s decision in People v.
King, asserting that he and the trial court had a “poor attor‐
ney‐client relationship.” (Appellant Br. 3, 13–14.) The appel‐
late court had deemed these assertions “unsubstantiated,”
and King does not present any additional evidence to sup‐
port them. Therefore, we easily conclude that King does not
provide “clear and convincing” evidence of an unreasonable
determination of the facts to rebut the appellate court’s fac‐
tual findings. Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (quoting
§ 2254(e)(1)).
Nor can King show that the appellate court unreasonably
applied “clearly established” federal law because the appel‐
late court’s decision was based on a resolution of state law,
not federal law. It is well‐established that on habeas review,
a federal court cannot disagree with a state court’s resolution
No. 14‐3389 9
of an issue of state law. See, e.g., Bradshaw v. Richey, 546 U.S.
74, 76 (2005); Estelle v. McGuire, 502 U.S. 62 , 67–68 (1991).
In Miller v. Zatecky, 820 F.3d 275, 277 (7th Cir. 2016), this
court affirmed the denial of a § 2254 petition filed by a de‐
fendant convicted of child molestation who received a 120‐
year aggregate sentence in state court. In Miller, the defend‐
ant raised a collateral challenge in state court that his direct
appellate counsel was ineffective for failing to contest the
length of his sentence. In response, the state appellate court
held that the defendant could not demonstrate prejudice
under Strickland because if the appellate counsel had raised
this sentence‐length challenge, the “chance of success was
zero” under the state‐law standard. Id. at 276. On habeas re‐
view, this court held that the state appellate court’s decision
“was not based on federal law at all. … It rests on a conclu‐
sion that, as a matter of state law, it would have been futile to
contest the sentence’s length on appeal.” Id. at 277. And be‐
cause “[a] federal court cannot disagree with a state court’s
resolution of an issue of state law,” the Miller court affirmed
the denial of the defendant’s § 2254 petition. Id.
The same principle that governed Miller controls the pre‐
sent case. In People v. King, the appellate court held that King
could not demonstrate prejudice under Strickland because if
his trial or appellate counsel had litigated his “unsubstanti‐
ated allegations” under 725 ILCS 5/114‐5(d), the challenge
would have been unsuccessful under the Illinois substantive
standard, which required that “the judge assigned to his case
harbors actual prejudice” such that there was “animosity,
hostility, ill will, or distrust towards this [specific] defend‐
ant.” No. 03‐08‐0875 at 5 (citing People v. Patterson, 735
N.E.2d 616, 638 (Ill. 2000)). In other words, the appellate
10 No. 14‐3389
court’s decision “rests on a conclusion that, as a matter of
state law, it would have been futile” for King’s trial or appel‐
late counsel to raise such a claim. Miller, 820 F.3d at 277. And
similar to Miller, we cannot disturb the appellate court’s de‐
cision because a “federal court cannot disagree with a state
court’s resolution of an issue of state law” in the context of
habeas review. Id. At best, King can contend that the appel‐
late court misinterpreted or misapplied Illinois state law.
However, this contention is meritless because this court has
expressly held that a “claim that the state court misunder‐
stood the substantive requirements of state law does not
present a claim under § 2254. A federal court may not issue
the writ on the basis of a perceived error of state law.” Bates
v. McCaughtry, 934 F.2d 99, 102 (7th Cir. 1991) (internal quo‐
tation marks omitted).
King also contends that his trial and appellate counsel
were ineffective based on 725 ILCS 5/114‐5(a), which grants
the defendant the right to an automatic substitution of the
judge if the motion is filed within 10 days after the case is
filed. The appellate court never adjudicated this theory and
therefore did not interpret state law at all. As such, we re‐
view this point de novo. See Rompilla v. Beard, 545 U.S. 374,
390 (2005). King, however, still cannot prevail. Even if King’s
counsel performed deficiently in failing to pursue automatic
substitution under Section 5/114‐5(a), nothing in this record
shows that King was prejudiced by counsel’s inattention.
King can show prejudice only if he demonstrates that the
judge who heard his case was biased. In order to do that, he
must overcome “a presumption of honesty and integrity in
those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35,
47 (1975). Nothing indicates that the trial court was biased
against King; to the contrary, the record shows that the
No. 14‐3389 11
judge had no independent recollection of him one way or
the other. Furthermore, the evidence against King was
overwhelming. Hence, King can show no prejudice from
counselʹs failure to file a motion under Section 5/114‐5(a).1
Accordingly, King’s claim of ineffective assistance based
on a failure to seek substitution of the trial court under state
law is without merit.
B. Ineffective Assistance Based on Federal Due Process
Next, to the extent that King raises a claim of ineffective
assistance by his trial and appellate counsel for failing to
raise a challenge to the trial court based on federal due pro‐
cess grounds, it is procedurally barred.
“An application for a writ of habeas corpus on behalf of a
person in custody … shall not be granted unless it appears
that … the applicant has exhausted the remedies available in
the courts of the State.” § 2254(b)(1)(A). “Inherent in the ha‐
beas petitioner’s obligation to exhaust his state court reme‐
dies before seeking relief in habeas corpus, is the duty to
fairly present his federal claims to the state courts. Lewis v.
1 Additionally, as part of his ineffective assistance claim, King references
Illinois Supreme Court Rule 63, which provides that a judge shall dis‐
qualify himself if his “impartiality might reasonably questioned.” (Ap‐
pellant Br. 23.) The appellate court also left this point unaddressed.
However, aside from mentioning the rule itself, King fails to develop any
argument that establishes it as a basis for ineffective assistance, and
therefore, we consider this point waived. Williams v. Dieball, 724 F.3d 957,
961 (7th Cir. 2013) (“even arguments that have been raised may still be
waived on appeal if they are underdeveloped, conclusory, or unsupport‐
ed by law”). And even if King had not waived this point, he cannot show
that his counsel’s failure to raise Rule 63 prejudiced him, similar to his
theory under Section 5/114‐5(a).
12 No. 14‐3389
Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004) (citation omitted).
Fair presentment requires assertion of a federal claim
through “one complete round of state‐court review,” which
means that “the petitioner must raise the issue at each and
every level in the state court system, including levels at
which review is discretionary rather than mandatory.” Id. at
1025–26 (citing O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
“A habeas petitioner who has exhausted his state court rem‐
edies without properly asserting his federal claim at each
level of state court review has procedurally defaulted that
claim.” Id. at 1026 (citing Boerckel, 526 U.S. at 838–49).
Here, King did not “fairly present” a claim of ineffective
assistance based on federal due process in a complete round
of state court review. If “liberally construe[d],” it appears
that King raised this claim in his pro se post‐conviction peti‐
tion. Ward v. Jenkins, 613 F.3d 692, 700 (7th Cir. 2010). How‐
ever, King failed to assert this claim in his post‐conviction
appellate brief, filed with representation, and his pro se peti‐
tion for leave to appeal. Therefore, he did not assert this
claim in “one complete round of state‐court review,” Lewis,
390 F.3d at 1025, and it is procedurally defaulted.
III. CONCLUSION
For the foregoing reasons, the district court’s denial of
King’s petition for a writ of habeas corpus is AFFIRMED.