In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2166
JOSEPH C. BOOKER,
Petitioner-Appellant,
v.
TYRONE BAKER, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division
No. 1:10-cv-03995 — Charles P. Kocoras, Judge.
____________________
ARGUED APRIL 4, 2023 — DECIDED JULY 26, 2023
____________________
Before EASTERBROOK, WOOD, and HAMILTON, Circuit
Judges.
WOOD, Circuit Judge. Joseph Booker was found guilty by
an Illinois court of first-degree murder, for which he received
a sentence of 55 years in prison. After unsuccessfully chal-
lenging his conviction on direct review, he tried a petition for
postconviction relief. At the latter stage, he was represented
by Illinois Assistant Appellate Defender Byron Reyna. Booker
wanted Reyna to argue that his trial counsel was
2 No. 21-2166
constitutionally ineffective, but Reyna declined to do so. Not
satisfied, Booker filed a pro se supplemental brief raising the
ineffective assistance of trial counsel claim. The Illinois Appel-
late Court rejected Booker’s pro se brief because of the state’s
rule against hybrid representation.
In the end, Booker failed to secure postconviction relief.
His next step was to file a federal habeas corpus petition un-
der
28 U.S.C. § 2254, in which he contended (among other
things) that his trial counsel was ineffective. The district court
declined to disturb the state court’s ruling because the claim
was procedurally defaulted. Booker’s attempt to raise his
Sixth Amendment argument in his pro se brief fell afoul of the
state’s general rule against hybrid representation, and so the
claim was never properly before the state courts. We affirm.
I
In 2002 Booker was indicted for the murder of Charles
Riles. Represented by attorney Robert Kuzas, Booker claimed
innocence at trial, but the jury found him guilty of first-degree
murder. The Illinois circuit court sentenced him to 55 years in
prison, and the conviction and sentence were affirmed on di-
rect appeal.
Booker then filed a pro se postconviction petition in state
circuit court. Two of his arguments there are of concern to us:
first, an actual-innocence claim; and second, an assertion that
Kuzas provided constitutionally ineffective assistance of
counsel at trial. The circuit court summarily dismissed this
petition, but the state appellate court reversed and remanded,
reasoning that Booker’s actual-innocence claim potentially
had merit. On remand, Booker (still proceeding pro se) reas-
serted his ineffective assistance of counsel claim.
No. 21-2166 3
Although Booker properly had raised the ineffectiveness
claim both in his initial petition and on remand, the circuit
court mistakenly held on remand that Booker had “waived
any allegations regarding incompetency of counsel.” But it
then went on to state that “even if there wasn’t waiver, look-
ing at the individual allegations and applying Strickland [v.
Washington,
466 U.S. 668 (1984)] to [the] allegations of incom-
petency of counsel, defendant’s arguments fail[.]” Booker
moved to reconsider the dismissal, but the court denied the
motion on the merits because he failed to show either defi-
cient performance or prejudice. The court then held an evi-
dentiary hearing and dismissed Booker’s actual innocence
claim.
Booker appealed, this time represented by Illinois Assis-
tant Appellate Defender Byron Reyna. Reyna informed
Booker in a letter that Reyna intended to focus on only two
issues: actual innocence and improper destruction of evi-
dence. Booker pushed back hard, telling Reyna that he
wanted to raise thirteen issues, including Kuzas’s ineffective
assistance at trial. Booker explicitly stated, “I do not wish to
waive any of my issues, I do not wish to have any of my issues
procedurally defaulted and barred from federal review.”
Reyna responded, “Even if I do not raise those claims on ap-
peal, you may still be able to preserve them for federal re-
view.” Reyna cited two unpublished decisions from the
Northern District of Illinois, which held that a defendant’s at-
tempt to file a pro se supplemental brief in Illinois courts suf-
ficiently preserved an ineffective assistance claim for federal
review. “[I]f the federal court declines to follow the above-
cited cases and finds that your ineffective assistance claims
are procedurally defaulted,” Reyna continued, “you could try
4 No. 21-2166
to use your actual innocence as a ‘gateway’ to overcoming for-
feiture and raising ineffective assistance claims.”
Booker could have discharged Reyna as counsel and pro-
ceeded pro se to raise his preferred claims. But emboldened by
Reyna’s legal advice, he chose to try his luck instead. He sent
Reyna a motion for leave to file a pro se supplemental brief, in
which he argued (along with the rest of his numerous claims)
that Kuzas had been ineffective at trial. In the motion, Booker
acknowledged that “generally, Illinois courts do not allow hy-
brid representation.” As planned, Reyna first filed a brief on
Booker’s behalf raising the actual innocence and improper de-
struction of evidence points. Reyna then forwarded Booker’s
pro se motion and brief to the Illinois Appellate Court, as re-
quired by state court rules. The appellate court denied the mo-
tion for leave to file, explaining that it was doing so “because
of representation by counsel.” It then affirmed the trial court’s
judgment.
To exhaust the state postconviction proceedings, Reyna
filed a petition for leave to appeal with the Illinois Supreme
Court. And Booker, intent on having his preferred claims
heard somewhere, filed a pro se supplemental petition for
leave to appeal; in it, he raised Kuzas’s ineffective assistance
once more. Like the appellate court, the state supreme court
declined to accept the pro se filing because Booker already had
“legal representation in this Court [and could not] personally
file any documents in this case … . [T]he Supreme Court has
held that a defendant has no right to both self-representation
and the assistance of counsel.” The court denied the petition
filed by Reyna.
Booker then filed a pro se petition in the federal district
court for habeas corpus relief pursuant to
28 U.S.C. § 2254. In
No. 21-2166 5
it, he asserted actual innocence and ineffective assistance of
trial counsel (along with other claims). The district court held
that the ineffective-assistance claim was procedurally de-
faulted, reasoning that Illinois courts did not violate any fed-
eral rule when they denied his attempt to raise the issue in a
pro se supplemental brief. The court cited Clemons v. Pfister,
845 F.3d 816 (7th Cir. 2017), where we held that Illinois’s rule
against hybrid representation is an adequate and independ-
ent procedural ground to bar federal review. The court also
held that Booker’s default could not be excused on actual in-
nocence grounds.
After Booker filed a notice of appeal, we appointed coun-
sel to represent him, issued a certificate of appealability, and
instructed the parties to address the ineffective assistance of
trial counsel claim, first from the standpoint of procedural de-
fault and then on the merits.
II
We begin with procedural default—a question that we re-
view de novo. Lee v. Davis,
328 F.3d 896, 899 (7th Cir. 2003). If
the district court correctly found that Booker has defaulted his
ineffective-assistance argument, the appeal is over; if not, we
would proceed to the merits.
A
In Illinois, “a defendant does not have the right to both
self-representation and the assistance of counsel[.]” People v.
Barrow,
255 Ill. Dec. 410, 431 (2001) (citing People v. McDonald,
168 Ill. Dec. 125, 131 (1995)). Based on this procedural rule
against hybrid representation, the Illinois courts here rejected
Booker’s attempt to raise Kuzas’s alleged ineffective assis-
tance at trial in Booker’s pro se supplemental brief. Only
6 No. 21-2166
Reyna, Booker’s lawyer, could represent Booker in the appel-
late court, and Reyna’s evaluation of the claim caused him to
decide not to pursue it. Procedural default “can … occur if the
state court rejects a federal claim based on a state procedural
rule ‘that is both independent of the federal question and ad-
equate to support the judgment.’” Clemons,
845 F.3d at 819
(quoting Richardson v. Lemke,
745 F.3d 258, 268 (7th Cir. 2014)).
Booker’s theory on appeal is that the rule against hybrid rep-
resentation is not adequate to support the state court’s judg-
ment because Illinois courts have not applied it consistently.
Adequate state rules can support procedural default if
they are “firmly established and regularly followed.” Beard v.
Kindler,
558 U.S. 53, 60 (2009) (quoting Lee v. Kemna,
534 U.S.
362, 375 (2002)). In contrast, state procedural rules do not pre-
clude federal review “when ‘discretion has been exercised to
impose novel and unforeseeable requirements without fair or
substantial support in prior state law.’” Walker v. Martin,
562
U.S. 307, 320 (2011) (quoting 16B Charles Alan Wright, Arthur
R. Miller & Edward H. Cooper, Federal Practice and Proce-
dure § 4026 (2d ed. 1996)). For example, procedural rules are
not adequate if they are not applied in a “consistent and prin-
cipled way,” Page v. Frank,
343 F.3d 901, 909 (7th Cir. 2003)
(quoting Braun v. Powell,
227 F.3d 908, 912 (7th Cir. 2000)), or
if they are applied in “unexpected[] or freakish[]” ways that
discriminate against claims advancing federal rights, Prihoda
v. McCaughtry,
910 F.2d 1379, 1383 (7th Cir. 1990).
Booker’s position that Illinois’s rule against hybrid repre-
sentation falls on the “novel and unforeseeable” side of the
line falls flat in light of our decision in Clemons v. Pfister,
supra.
There, the defendant attempted to raise an ineffective-assis-
tance claim in a pro se reply brief in state postconviction
No. 21-2166 7
proceedings. The Illinois courts, however, declined to accept
the filing because he was represented by counsel. The federal
district court then rejected the defendant’s habeas corpus pe-
tition because he had procedurally defaulted his claim. We af-
firmed, holding in no uncertain terms that “the state appellate
court applied its general rule that hybrid representation is dis-
favored … . That was an independent and adequate state
ground of decision [that] precludes federal habeas review of
Clemons’s Strickland claim.” Clemons,
845 F.3d at 820. Booker
attempts to distinguish Clemons on the ground that we did not
address whether Illinois courts apply the rule consistently.
But our holding was not so narrow; our conclusion that the
“general rule” was an adequate ground implies that it was
consistently applied. See
id.
In any case, we are not in the business of “[s]earching for
‘regularity’ in the state’s employment of excuses and excep-
tions[, which] would embroil the federal court deeply in ques-
tions of state law and procedure.” See Prihoda,
910 F.2d at
1384. Instead, Booker faced the daunting task of showing that
Illinois courts have “regularly dis regarded [sic] [the proce-
dural rule,] or [that it has] been manufactured for the occasion
… .”
Id. He has not done so.
Booker points to a few cases where Illinois courts exer-
cised their discretion to allow some defendants to file pro se
briefs while represented. But a discretionary rule can none-
theless furnish an adequate ground and “ought not be disre-
garded automatically upon showing of seeming inconsisten-
cies.” Walker,
562 U.S. at 320. “Discretion enables a court to
home in on case-specific considerations and to avoid the
harsh results that sometimes attend consistent application of
an unyielding rule.”
Id. (citing Prihoda,
910 F.2d at 1385). That
8 No. 21-2166
Illinois courts have not applied the rule in a “draconian” fash-
ion does not mean that it is not “solidly established.” See Pri-
hoda,
910 F.2d at 1384–85.
Booker also cites cases involving two well-established ex-
ceptions to the general rule against hybrid representation: (1)
capital cases where a “defendant’s life is at stake,” People v.
Gacy,
125 Ill. Dec. 770, 776 (1988); and (2) post-trial claims of
ineffective assistance of trial counsel, “which allow[] a crimi-
nal defendant acting pro se to bring his trial counsel’s ineffec-
tiveness to the attention of the trial court either orally or in
writing,” Crutchfield v. Dennison,
910 F.3d 968, 977 (7th Cir.
2018) (citing People v. Ayres,
417 Ill. Dec. 580, 584 (2017)). Con-
sistently applied exceptions, however, do not render the gen-
eral rule “inadequate.”
B
Booker next argues that, even if his claim is procedurally
defaulted, the default should be excused. We may excuse pro-
cedural default if a petitioner “can show ‘cause’ to excuse his
failure to comply with the state procedural rule and ‘actual
prejudice resulting from the alleged constitutional viola-
tion.’” Davila v. Davis,
582 U.S. 521, 528 (2017) (quoting Wain-
wright v. Sykes,
433 U.S. 72, 84 (1977) and Coleman v.
Thompson,
501 U.S. 722, 750 (1991)). We need not decide whether Booker
suffered actual prejudice because he failed to show cause to
excuse his default.
“‘Cause’ is an objective factor external to the defense that
impeded the presentation of the claim to the state courts.”
Crutchfield,
910 F.3d at 973 (citing Davila, 582 U.S. at 528). “A
factor is ‘external to the defense’ only if it ‘cannot fairly be at-
tributed to’ the prisoner.” Id. (quoting Coleman, 501 U.S. at
No. 21-2166 9
753). Booker contends that his first opportunity to argue inef-
fective assistance of trial counsel (i.e., Kuzas) was on appeal in
state postconviction proceedings. Because Booker wanted to
preserve that claim for federal habeas corpus review, he ar-
gues that Reyna should have told him that “his best option
was to discharge appointed counsel and proceed pro se.”
“It has long been the rule that attorney error is an objective
external factor providing cause for excusing a procedural de-
fault only if that error amounted to a deprivation of the con-
stitutional right to counsel.” Davila, 582 U.S. at 528. Here,
Booker in substance is raising a claim of ineffective assistance
of postconviction counsel (i.e., Reyna), which he would like to
use as cause to excuse his procedural default.
Booker’s frustration with Reyna’s performance was war-
ranted. Reyna relied on two unpublished district court opin-
ions to advise Booker that “[he] may still be able to preserve
[his claims] for federal review.” Reyna rendered that advice
before we issued Clemons, and so, at a stretch, it was not obvi-
ously wrong. But he failed to explain that Booker’s chances of
succeeding were exceedingly small. Had he added this point,
Booker would have been able to make a fully informed deci-
sion. Nonetheless, we express no opinion on whether this
would qualify as ineffective assistance under the Sixth
Amendment because, even assuming Reyna erred, Booker
had no constitutional right to postconviction counsel in the
first place. “Because there is no Sixth Amendment right to
counsel on collateral review, attorney error in postconviction
proceedings is not cause to excuse a procedural default.”
Crutchfield,
910 F.3d at 973 (citing Davila, 582 U.S. at 528).
We recognize that the Supreme Court carved out a limited
exception to this rule in Martinez v. Ryan,
566 U.S. 1 (2012),
10 No. 21-2166
which held that “where state law requires prisoners to raise
Strickland claims on collateral review, a procedural default at
that stage will not preclude a federal court from hearing the
claim if ‘there was no counsel or counsel in that proceeding
was ineffective.’” Crutchfield,
910 F.3d at 974 (citing Martinez,
566 U.S. at 17). Later, “in Trevino v. Thaler[,
569 U.S. 413
(2013)], the Court extended the Martinez exception to § 2254
proceedings in states that do not forbid prisoners from pre-
senting Strickland claims on direct review but ‘as a matter of
procedural design and systemic operation, den[y] a meaning-
ful opportunity to do so.’” Crutchfield,
910 F.3d at 974 (second
alteration in original) (quoting Trevino,
569 U.S. at 429).
Booker contends that the Martinez-Trevino exception ap-
plies here. He asserts that his first realistic opportunity to
raise the ineffectiveness of his trial counsel was on state post-
conviction appeal; Reyna’s failure to advise him properly at
that stage was thus a violation of his Sixth Amendment rights.
But we held in Crutchfield v. Dennison that the Martinez-Tre-
vino exception is not available in Illinois:
[Illinois] permits Strickland claims on direct review, and
the Illinois Supreme Court has neither directed criminal
appellants to save all such claims for collateral review nor
warned against raising them on direct appeal. Moreover,
Illinois defendants may expand the record on direct ap-
peal by raising a Strickland claim in a posttrial motion and
developing the factual record at an evidentiary hearing.
Id. at 976. Crutchfield thus forecloses Booker’s attempt to rely
on the Martinez-Trevino exception.
Even if the exception did apply in Illinois to some unusual
and unforeseen circumstances, it would not be available here.
No. 21-2166 11
Booker’s first practicable opportunity to raise the claim was
not on postconviction appeal (when Reyna represented him).
Rather, Booker properly alleged that his trial counsel was in-
effective in his pro se postconviction petition in the circuit
court. That court rejected the claim three times—first sum-
marily, then on remand, and finally in a motion for reconsid-
eration. Booker makes much of the fact that the circuit court
incorrectly held (on remand) that he had waived the claim.
True enough. But the court went on to state that “even if there
wasn’t waiver, … defendant’s arguments fail.” The court
again addressed the merits of the claim when it denied
Booker’s motion for reconsideration. Because Booker took ad-
vantage of his first opportunity to raise the claim in postcon-
viction proceedings, Reyna’s alleged ineffective assistance
would not have violated his Sixth Amendment rights.
* * *
Ultimately, Booker must bear the consequences of his de-
cision. Even if Reyna’s advice was not entirely accurate re-
garding his chances of success, Booker had proceeded pro se
in the past and knew that he could do so again. As we ex-
plained in Clemons, Booker
could dispense with his counseled briefs and represent
himself to ensure that his preferred arguments were
raised, or he could roll the dice and hope that the court
would make an exception to the rule against hybrid
representation and accept his pro se supplemental
brief. There was nothing unusual or unfair about put-
ting him to this choice.
See
845 F.3d at 820.
We AFFIRM the district court’s judgment.
