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01-2617 Dellinger v. Bowen

By: dmc-admin//August 26, 2002//

01-2617 Dellinger v. Bowen

By: dmc-admin//August 26, 2002//

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“[T]o the extent that Dellinger claims that his ineffective counsel is the ’cause’ for the second level of default, his claim must fail. Essentially, Dellinger’s argument is that his appellate counsel was ineffective, both for failing to challenge the imposition of consecutive sentences and for failing to challenge the effectiveness of his trial counsel on resentencing. Both may have been ineffective, but that is irrelevant for purposes of procedural default because Dellinger also pursued post-conviction relief in state court and failed to present an ineffective assistance claim (of either trial or appellant counsel) at that level. Because he represented himself in that proceeding (and thus cannot blame counsel), and because we have stated that youth and ignorance are insufficient to constitute ’cause’ for default, his failure to raise an ineffective assistance of counsel claim during the postconviction proceeding constitutes a full default. Because Dellinger is unable to show cause to excuse his default, we need not reach the issue of whether he could establish prejudice.

“Absent a showing of cause, a ‘defaulted claim is reviewable only where a refusal to consider it would result in a fundamental miscarriage of justice.’ United States ex rel. Bell v. Pierson, 267 F.3d 544, 551 (7th Cir. 2001). Dellinger suggests that the ‘fundamental miscarriage of justice’ standard applies to excuse his default. However, our case law is clear that this relief is limited to situations where the constitutional violation has probably resulted in a conviction of one who is actually innocent. See Schlup v. Delo, 513 U.S. 298, 327 (1995). To show ‘actual innocence,’ Dellinger must present clear and convincing evidence that, but for the alleged error, no reasonable juror would have convicted him. Id. While Dellinger claims innocence of ‘inflicting sentence-doubling injuries,’ this is a challenge to his sentence, not to the conviction itself. He does not claim that he is an innocent man, wrongly convicted of crimes he did not commit, as defined by Schlup. Nor could he, given his own admission at trial that he fired shots at people running away from him. Thus, there has been no ‘fundamental miscarriage of justice’ as defined by United States Supreme Court precedent.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Kennelly, J., Manion, J.

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