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Clemons v. Pfister

United States Court of Appeals, Seventh Circuit

January 9, 2017

Rodney Clemons, Petitioner-Appellant,
v.
Randy Pfister, Warden, Respondent-Appellee.

          Argued January 11, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12-cv-860 - Sharon Johnson Coleman, Judge.

          Before Easterbrook, Williams, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         In 2005 an Illinois jury convicted Rodney demons of murdering Doris Smith, his former girlfriend and mother of his infant son. After an unsuccessful appeal and postconviction proceedings in state court, demons sought federal habeas review under 28 U.S.C. § 2254. He raised several claims, but only one is relevant here, demons argues that his trial attorney was constitutionally ineffective in violation of the rule of Strickland v. Washington, 466 U.S. 668 (1984), for failing to call an alibi witness. The Illinois Appellate Court declined to consider this claim because demons raised it only in a pro se reply brief, which the court refused to accept because he was represented by counsel. The district judge concluded that the claim was procedurally defaulted. But she also addressed the merits of the Strickland claim and denied it.

         We affirm on the first ground. Procedural default precludes federal merits review of Clemons's Strickland claim.

         I. Background

         Doris Smith was shot and killed near her Chicago home in the early morning hours of August 26, 2011. Her attacker chased her down an alley and onto the street, firing shots as she fled begging for her life and screaming for help. Two shots hit their mark. Smith died of gunshot wounds to the hip and upper back.

         Rodney demons was Smith's on-again/off-again boyfriend and the father of her infant son. Several eyewitnesses identified him as the shooter, and Chicago police arrested him later that day. After lineups and some additional investigation, Cook County prosecutors charged demons with Smith's murder and a related count of using a firearm to commit that crime. A jury convicted him as charged, and the trial judge sentenced him to 45 years in prison.

         After an unsuccessful direct appeal, demons filed a pro se postconviction petition in the trial court. He raised several claims, including an argument that his trial counsel was constitutionally ineffective in violation of Strickland for failing to call Andre Smith as an alibi witness, demons submitted an affidavit from Smith, his friend and would-be alibi witness, together with his postconviction petition.[1] But the affidavit was difficult to read and ended abruptly in the middle of the page as if a piece of paper covered the bottom half of the page while it was being photocopied.

         The trial judge rejected Clemons's various claims for relief. Regarding the Strickland claim about the omitted alibi witness, the judge held that demons had failed to make the required factual showing because he did not submit appropriate affidavits from potential witnesses and "failed to explain the significance of their testimony."

         Clemons moved for reconsideration, reiterating his claim about the overlooked alibi witness. This time he attached a clearly legible version of Smith's affidavit. The judge construed this filing as an improper successive petition for postconviction relief and denied it. An exception exists under Illinois law if the prisoner can demonstrate cause for his failure to bring the claim in his first petition and resulting prejudice, demons demonstrated neither, so the exception did not apply.

         Clemons was represented by counsel on his appeal from the denial of his postconviction petition. His attorney briefed a single claim regarding an evidentiary error, demons filed a pro se motion to supplement his counsel's brief; the motion sought to add, among other things, the Strickland claim regarding trial counsel's failure to call Smith as an alibi witness, demons also moved for leave to file a pro se reply brief raising that claim, tendering a proposed pro se brief with the motion. The court issued an order saying it would take the pro se motions with the merits of the appeal.

         In due course the court issued a reasoned merits order addressing only the arguments raised in Clemons's counseled briefs and affirming the denial of postconviction relief. No mention was made of Clemons's motions. Before the final mandate issued, the court issued a confusing order saying that Clemons's motion to file a pro se supplemental brief was denied but his motion for leave to file a pro se reply brief "is allowed." The court later issued a clarifying order explaining that the motion to file a pro se reply brief was denied, not "allowed" as the earlier order had stated. This order clearly ...


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