Lorenzo Wilson v. Kenneth R. Briley,/

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1277
LORENZO WILSON,
Petitioner-Appellant,
v.
Kenneth R. Briley,/*
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division
No. 97 C 7335--George W. Lindberg, Judge.
Argued October 27, 2000--Decided March 5, 2001
Before EASTERBROOK, KANNE, and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. In his petition for a
writ of habeas corpus, Lorenzo Wilson asserted
that the state court which sentenced him to a
term of life imprisonment for murder violated his
constitutional rights to trial by jury, due
process, and to be free from double jeopardy when
it found that he set out for the scene of the
crime with the intent to murder two men. The
district court dismissed the petition, finding
that Wilson procedurally defaulted this claim. We
agree and affirm.
I.
Wilson shot two men to death in 1981. He
contended that he did so in self-defense, but the
State of Illinois tried him on multiple counts of
attempted murder, murder, and armed violence,
alleging that Wilson deliberately killed the men
because they had put out a "hit" on him. A jury
found him guilty of murder with respect to one of
his victims and voluntary manslaughter with
respect to the other. At sentencing, the trial
judge found that Wilson had "deliberately" set
out to kill both men. That finding increased the
maximum prison term on the murder conviction from
forty years to life. See Ill. Rev. Stat. ch. 38,
para. 1005-8-1(a)(1)(a), (b) (1981), now codified

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at 730 ILCS 5/5-8-1(a)(1)(a), (b). The judge
ordered Wilson to serve consecutive terms of
natural life on the murder conviction and
fourteen years on the voluntary manslaughter
conviction. The Illinois Appellate Court reduced
the term for manslaughter to seven years, but
otherwise affirmed Wilson’s convictions and
sentence. People v. Wilson, 485 N.E.2d 1264 (Ill.
App. 1985). The Illinois Supreme Court denied him
leave to appeal. Wilson later sought post-
conviction relief, but his petition was denied
without an evidentiary hearing.
II.
A habeas petitioner may not resort to federal
court without first giving the state courts a
fair opportunity to address his claims and to
correct any error of constitutional magnitude. 28
U.S.C. sec. 2254(b), (c); O’Sullivan v. Boerckel,
526 U.S. 838, 844-45, 119 S. Ct. 1728, 1732
(1999). To satisfy that requirement, he must
present both the operative facts and the legal
principles that control each claim to the state
judiciary; otherwise, he will forfeit federal
review of the claim. Rodriguez v. Scillia, 193
F.3d 913, 916 (7th Cir. 1999); Bocian v. Godinez,
101 F.3d 465, 469 (7th Cir. 1996). In the absence
of a state rule that specifically governs the
presentment of a constitutional claim, four
factors (derived from a waiver analysis) bear
upon whether the petitioner has fairly presented
the claim in state court: (1) whether the
petitioner relied on federal cases that engage in
constitutional analysis; (2) whether the
petitioner relied on state cases which apply a
constitutional analysis to similar facts; (3)
whether the petitioner framed the claim in terms
so particular as to call to mind a specific
constitutional right; and (4) whether the
petitioner alleged a pattern of facts that is
well within the mainstream of constitutional
litigation. Sullivan v. Fairman, 731 F.2d 450,
454 (7th Cir. 1984), citing Daye v. Attorney
General of New York, 696 F.2d 186, 194 (2d Cir.
1982) (en banc), cert. denied, 464 U.S. 1048, 104
S. Ct. 723 (1984); see also, e.g., Kurzawa v.
Jordan, 146 F.3d 435, 441 (7th Cir. 1998);
Moleterno v. Nelson, 114 F.3d 629, 634 (7th Cir.
1997); Verdin v. O’Leary, 972 F.2d 1467, 1473-74
(7th Cir. 1992).
If none of the four factors is present and the
state has not otherwise signaled its satisfaction
with the presentment of the federal claim, "then
this court will not consider the state courts to
have had a fair opportunity to consider the
claim." See Verdin, 972 F.2d at 1474. On the
other hand, "the presence of any one of these
factors, particularly (1) and (2), does not

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automatically avoid a waiver." Id.
Moleterno, 114 F.3d at 634 (emphasis in
original).
Consideration of these factors leads us to
conclude that Wilson did not fairly present the
substance of his federal claim to the state
courts. In his brief to the Illinois Appellate
Court, Wilson did not cite any federal cases in
challenging his sentence. He relied exclusively
upon Illinois cases, none of which employed a
federal constitutional analysis. Nor did Wilson
frame his claim in terms so particular as to call
to mind any of the three constitutional rights he
relies upon now. Wilson argues simply that his
claim, as articulated to the state appellate
court, alleged a pattern of facts that falls
within the mainstream of constitutional
litigation. But Wilson’s argument, which
acknowledged the "sound discretion" of the
sentencing court, was cast in terms of a
challenge to the court’s reliance upon "improper
factors." R. 36 Ex. A at 37. At its most
specific, the argument contended that the "trial
court erred" when it "contradicted the verdict of
the jury" by finding that Wilson had deliberately
set out to kill two individuals. Id. at 38. The
facts cited in this argument are certainly
consistent with the federal claim that Wilson
makes in his habeas petition, but that alone does
not enable us to say that the claim, as asserted
in state court, falls within the mainstream of
constitutional litigation--if it were, the fair
presentment requirement would be meaningless. See
Verdin, 972 F.2d at 1475. A given set of facts
can be said to fit within the mainstream of
constitutional litigation only when the fact
pattern is so "commonly thought to involve
constitutional constraints," id. at 1475 (quoting
Daye, 696 F.2d at 193), that the constitutional
basis of the claim is undeniably "obvious," id.
By no stretch of the imagination is that the case
here. Reduced to its essentials, the claim Wilson
made to the Illinois appellate court was that the
sentencing judge abused his discretion. "Abuse of
discretion" and "improper factors" are not terms
that Illinois lawyers and judges, by quirk of
local legal idiom, use to articulate
constitutional arguments. See id. at 1473,
quoting Nadworny v. Fair, 872 F.2d 1093, 1098 (1st
Cir. 1989), cert. denied, 507 U.S. 963, 113 S.
Ct. 1392 (1993). To the contrary, abuse-of-
discretion arguments are ubiquitous, and most
often they have little or nothing to do with
constitutional safeguards. The particular facts
that Wilson cited in support of his claim
certainly do not have such a patent connection to
the constitutional provisions he cites in his
habeas petition that the state court should have

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been alerted to the federal basis for the claim.
Indeed, the fact that Wilson relied upon state
cases which engaged in a non-constitutional
analysis based solely on state law principles
belies the notion that the Illinois appellate
court should have understood that Wilson was
invoking his rights under the U.S. constitution.
See Anderson v. Harless, 459 U.S. 4, 7 & n.3, 103
S. Ct. 276, 277-78 & n.3 (1982); Picard v.
Connor, 404 U.S. 270, 276-78, 92 S. Ct. 509, 513
(1971); Verdin, 972 F.2d at 1475-76.
Wilson’s petition for leave to appeal to the
Illinois Supreme Court framed his claim with a
greater degree of particularity. See R. 36 Ex. B
at 11-12. Yet, even if we assume that the
petition was sufficient to alert the State’s
highest court to the constitutional nature of his
claim, it was too late to preserve the claim for
habeas review. Presenting a federal claim for the
first time in a petition for discretionary review
by a state’s highest court will not satisfy the
fair presentment requirement. Castille v.
Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056, 1060
(1989); Steward v. Gilmore, 80 F.3d 1205, 1212
(7th Cir. 1996); Verdin, 972 F.2d at 1479 n.13.
Because Wilson did not alert the Illinois
courts to the constitutional nature of his claim,
we will not entertain the merits of the claim. A
procedural default can be overlooked when the
petitioner demonstrates cause for the default and
consequent prejudice, or when he shows that a
fundamental miscarriage of justice will occur
unless the federal court hears his claim. See
Coleman v. Thompson, 501 U.S. 722, 750, 111 S.
Ct. 2546, 2565 (1991); see also, e.g., Anderson
v. Cowan, 227 F.3d 893, 899-90 (7th Cir. 2000).
Wilson has not attempted to make either type of
showing, however.
III.
Because Wilson did not fairly present his
constitutional claim to the Illinois state
courts, the district court properly dismissed his
habeas corpus petition.
AFFIRMED
/* Kenneth R. Briley has replaced James H. Page as
the warden of the correctional facility where the
petitioner-appellant is incarcerated. We have
therefore substituted Warden Briley as the
appropriate respondent-appellee pursuant to Fed.
R. App. P. 43(c)(2).

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