Harris, Terry L. v. McAdory, Eugene ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1620
TERRY L. HARRIS,
Petitioner-Appellant,
v.
EUGENE MCADORY, WARDEN,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 7026—Rebecca R. Pallmeyer, Judge.
____________
ARGUED MAY 12, 2003—DECIDED JULY 1, 2003
____________
Before BAUER, KANNE, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. An Illinois jury found Terry
Harris guilty of murdering Emma Hopkins. He was sen-
tenced to life imprisonment. Harris sought federal habeas
relief, claiming ineffective assistance of counsel. The dis-
trict court denied the petition for a writ of habeas corpus,
finding that Harris had procedurally defaulted the claim.
For the reasons stated herein, we affirm.
BACKGROUND
On the evening of October 28, 1984, Terry Harris in-
vited co-worker Emma Hopkins to accompany him to a
2 No. 02-1620
forest preserve. They talked in Hopkins’ car until the forest
preserve closed, at which time they drove to a factory
parking lot. After engaging in sexual intercourse, Harris
attempted to place a gun into the glove compartment of
Hopkins’ car. The gun discharged after Hopkins grabbed
the firearm. The bullet went through the floorboard of
the car, injuring neither occupant. Harris, enraged at
Hopkins, strangled her to death, then removed her body
and hid it inside a factory vat.
The following day, the police took Harris into custody
and obtained a confession. Harris also made a formal
statement to an Assistant State’s Attorney. In the state-
ment, later introduced at trial, Harris admitted that he
grabbed the victim by her throat and strangled her to
death.
Harris, the only witness called by defense counsel,
admitted killing Hopkins, stating that he lost control
when the gun fired and was afraid that it would dis-
charge again. Harris stated that he grabbed the victim by
the throat, and using two hands, strangled her, and dis-
posed the body inside a factory vat.
The jury found Harris guilty of murder, aggravated
criminal sexual assault, and aggravated kidnaping. At
the sentencing hearing, Harris’ evidence in mitigation
consisted of the testimony of his mother, Agnes Badgett,
and his sister, Helen Brown. The two women described
Harris’ upbringing and related their favorable impressions
of him. Harris also testified at the hearing, apologizing
for Hopkins’ death. He contended that he committed the
killing unintentionally and that he was guilty only of
manslaughter.
The trial judge sentenced Harris to death. The Illinois
Supreme Court vacated the sentence after finding the
prosecution improperly introduced victim-impact testi-
mony. People v. Harris, 547 N.E.2d 1241 (Ill. 1989). After
No. 02-1620 3
a new sentencing hearing, Harris was sentenced to life
imprisonment. Harris then filed a post-conviction petition
claiming prosecutorial misconduct, trial court error, and
ineffective assistance of counsel. Unsuccessful in state
court with his post-conviction petition, Harris filed a
petition for a writ of habeas corpus in federal court.
In the meantime, Harris had obtained the services of
a neuropsychologist. The neuropsychologist determined
that Harris had an IQ of 76, putting him on the border
of mental retardation. Harris was also evaluated as read-
ing at a fourth grade level and suffering from organic
brain (frontal lobe) damage. In light of this evaluation,
Harris contended counsel’s failure to develop and intro-
duce evidence of these mental disabilities at the sentenc-
ing hearing constituted ineffective assistance of counsel.
The district court denied the petition because this inef-
fective assistance claim had not been included in Harris’
state post-conviction petition and Harris had not proven
sufficient cause to excuse that omission.
ANALYSIS
A. Sufficient Cause
In reviewing the district court’s decision to deny relief,
we review issues of law de novo and issues of fact for
clear error. Dellinger v. Bowen, 301 F.3d 758, 763 (7th Cir.
2002). A petitioner seeking federal habeas relief must
establish that he fully and fairly presented his federal
claims to the state court. Chambers v. McCaughtry, 264
F.3d 732, 737 (7th Cir. 2001). So, a petitioner must give the
state court a meaningful opportunity to consider the
substance of the claims later presented in federal court. Id.Failure to adhere to these guidelines constitutes a proce-
dural default, which bars federal review unless the peti-
tioner demonstrates cause for the default and actual
prejudice as a result of the failure, or demonstrates that
4 No. 02-1620
the failure to consider the claims will result in a fundamen-
tal miscarriage of justice. Dellinger, 301 F.3d at 764.
There is no dispute that Harris defaulted his claim of
ineffective assistance of counsel. However, Harris con-
tends, and the State denies, that sufficient cause exists to
excuse the default. Specifically, Harris argues that his
pro se status, his borderline mental retardation, and his
organic brain dysfunction constitute cause. The district
court determined that these factors did not overcome
Harris’ procedural default. We agree.
The Supreme Court has defined cause sufficient to ex-
cuse procedural default as “some objective factor external
to the defense” which precludes petitioner’s ability to
pursue his claim in state court. Murray v. Carrier, 477 U.S.
478, 488 (1986). The Court delineated that cause could
be established by showing interference by officials or that
the factual or legal basis for a claim was not reasonably
available to counsel. Id. However, it cautioned that these
examples were not exhaustive. Id.Harris contends he established cause for three rea-
sons: (1) his pro se status; (2) his borderline mental retarda-
tion; and (3) his organic (frontal lobe) brain dysfunction.
Harris cites no case law to support his argument.1 The first
element, his pro se status, need not detain us long. Harris
fails to acknowledge Barksdale v. Lane, 957 F.2d 379(7th Cir. 1992). In Barksdale, we held that a habeas peti-
1
Harris’ reliance on Atkins v. Virginia, 536 U.S. 304 (2002), is
misplaced. The Court in Atkins held that the Eighth Amendment
precludes capital punishment for mentally retarded defendants.
The case sub judice is distinguishable because Harris is border-
line mentally retarded, and more importantly, this is not a
capital case. A cursory glance at Atkins reveals that the Court
was addressing the issue of mental retardation solely in the
context of capital punishment.
No. 02-1620 5
tioner’s pro se status does not constitute adequate
grounds for cause. Id. at 385-86. As there is no constitu-
tional right to an attorney in state post-conviction pro-
ceedings, see Coleman v. Thompson, 501 U.S. 722, 752
(1991), we decline to depart from our holding in Barksdale.
Harris’ second factor proffered as a basis for cause is
his borderline mental retardation. He avers that the
factual and legal basis for his ineffective assistance claim
was unavailable to him in light of his mental deficiencies.
The neuropsychologist determined that Harris has an IQ
of 76, putting him on the cusp of mental retardation. The
neuropsychologist also found that Harris reads at a
fourth grade level.
We have never considered whether mental illness can
constitute cause for default. However, Cawley v. Detella, 71
F.3d 691 (7th Cir. 1995), is instructive on this question. In
Cawley, we held that the petitioner’s depression did not
constitute cause because it failed “to qualify as an ex-
ternal impediment.” Id. at 696. We are also guided by
other circuits that have considered the issue. In Hull v.
Freeman, 991 F.2d 86 (3d Cir. 1993), the Third Circuit
determined that petitioner’s borderline mental retarda-
tion did not establish cause because it was not “external” to
his defense within the meaning of Murray v. Carrier. Id.
at 91. The Ninth Circuit, in Tacho v. Martinez, 862 F.2d
1376, 1381 (9th Cir. 1988), held that petitioner’s diagnosis
as a “borderline mental defective” was insufficient to
establish cause. See also Cornman v. Armontrout, 959
F.2d 727, 729 (8th Cir. 1992) (finding petitioner’s below-
average intelligence insufficient to establish cause). Fur-
thermore, it is well established in this Circuit that cir-
cumstances such as youth, lack of education, and illiteracy
are not external impediments within the context of ex-
cusing procedural default. See, e.g., Dellinger v. Bowen,
301 F.3d 758, 763 (7th Cir. 2002) (petitioner’s youth and
lack of education did not constitute cause); Henderson
6 No. 02-1620
v. Cohn, 919 F.2d 1270, 1272-73 (7th Cir. 1990) (petitioner’s
illiteracy and limited education insufficient to establish
cause).
We find the reasoning in these cases persuasive. These
cases highlight the emphasis placed on the “external”
nature of the impediment. Something that comes from
a source within the petitioner is unlikely to qualify as an
external impediment. The examples given by the Court
in Murray as to what constitutes an external impediment
exemplify this point. Harris’ low IQ and limited reading
ability are not factors which are “external” to his defense.
Finally, Harris’ mental disability claim is belied by his
gainful employment as a security guard at the time of
the murder, his efforts to cover up the crime, and his abil-
ity to prepare a pro se 60-page state post-conviction peti-
tion.
Harris also claims that his organic brain dysfunction
constitutes cause to excuse his procedural default. The
neuropsychologist opined that Harris suffers from
organic brain damage. He gave no predicate facts for
this opinion, which is simply asserted without more. The
district court noted that Harris’ contentions about his
brain dysfunction “are so conclusory that the court is
uncertain they are even sufficient to require a response.” In
the proceedings below, Harris stated that the neuro-
psychologist’s evaluation “provides the basis for . . . the
allegations concerning Petitioner’s mental health and
functioning.” But we have noted that a habeas peti-
tioner must “cross some threshold of plausibility before
[courts] will require the state to answer.” Dellenbach v.
Hanks, 76 F.3d 820, 822 (7th Cir. 1996).
B. Evidentiary Hearing
Harris also contends that the district court should
have granted him an evidentiary hearing to determine
No. 02-1620 7
whether his brain dysfunction excuses his procedural
default. If a petitioner has failed to develop the factual
basis of a claim in state court, a federal court cannot
grant relief unless the claim relies on a new rule of con-
stitutional law, or a factual predicate that could not have
been previously discovered through the exercise of due
diligence. 28 U.S.C. § 2254(e)(2)(A). The petitioner must
also establish that the facts underlying the claim would
be sufficient to establish by clear and convincing evi-
dence that but for constitutional error, no reasonable
factfinder would have found the petitioner guilty of the
underlying offense. 28 U.S.C. § 2254(e)(2)(B).
The district court correctly found that Harris failed
to develop the factual basis for his ineffective assistance
claim. In (Michael Wayne) Williams v. Taylor, 529 U.S. 420(2000), the Court noted that diligence requires “the pris-
oner, at a minimum, seek an evidentiary hearing in state
court in the manner prescribed by state law.” Id. at 437.
Harris did not seek an evidentiary hearing concerning
his mental status or even attempt to raise the issue.
Harris’ state post-conviction petition was a 60-page cor-
nucopia of claims, including almost two dozen allegations
of ineffective assistance, but devoid of any mention of his
mental disabilities.
Since Harris failed to develop the factual basis for his
ineffective assistance of counsel claim, he must comply
with § 2254(e)(2). As noted above, under § 2254(e)(2)(A),
Harris must show his claim relies either on a new rule
of constitutional law that was previously unavailable, or
a factual predicate that could not have been previously
discovered through the exercise of due diligence. Harris
does not rely on a new rule of constitutional law. And,
as the district court correctly noted, the factual predicate
of his claim existed before he filed his habeas petition
and Harris has made no showing that the factual pred-
icate could not have been discovered through the exer-
8 No. 02-1620
cise of reasonable diligence. For these reasons, Harris
does not satisfy the requirements of § 2254(e)(2) and
therefore the district court correctly determined Harris
was not entitled to an evidentiary hearing.
CONCLUSION
The district court’s order denying the writ of habeas
corpus is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-1-03