01-3307 Rodriguez v. McAdory

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“[T]he Supreme Court recently has explained that, even if the state court’s review in applying a procedural rule is ‘entangled’ with the merits, that ‘entanglement’ is not sufficient to compromise the procedural default. Carey v. Saffold, 122 S. Ct. 2134, 2141 (2002). Rather, the state court’s holding must ‘depend[] on a federal constitutional ruling’ in order to open it up for habeas review. Stewart v. Smith, 122 S. Ct. 2578, 2581 (2002); see also Brooks v. Walls, 301 F.3d 839, 843 (7th Cir. 2002) (hereinafter Brooks II) (noting the Supreme Court’s dichotomy requiring that to open up the issue for review by the federal habeas court, the state court’s review must ‘be entirely dependent on the merits (as opposed to just “entangled” with the merits)’).

“Although a state court’s review of whether ‘an error is “plain” often entails at least limited review of the merits,’ Brooks I, 279 F.3d at 523, that limited review is at most ‘entangled’ with the merits and certainly not ‘entirely dependent on the merits,’ Brooks II, 301 F.3d at 843. Thus the state court’s plain error review of Mr. Rodriguez’s claims did not undo his procedural default.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Darrah, J., Ripple, J.