Martize R. Dellinger v. Edward R. Bowen , Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2617
M ARTIZE R. D ELLINGER ,
Petitioner-Appellant,
v.
E DWARD R. B OWEN , W ARDEN ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 1691—Matthew F. Kennelly, Judge.
____________
A RGUED D ECEMBER 7, 2001—D ECIDED A UGUST 19, 2002
____________
Before F LAUM , Chief Judge, and M ANION and D IANE P.
W OOD , Circuit Judges.
M ANION , Circuit Judge. Martize Dellinger was convicted
in Illinois state court of two counts of attempted murder,
two counts of armed violence, two counts of aggravated
battery with a firearm, and two counts of aggravated
battery. After unsuccessfully pursuing direct appeals and
post-conviction challenges within the state court system,
Dellinger filed a petition for habeas corpus relief in fed-
eral district court pursuant to 28 U.S.C. § 2254. The district
court denied his petition for habeas relief, but granted
Dellinger a certificate of appealability on several issues.

-- 1 of 17 --

2 No. 01-2617
1 Each statement was offered only against the defendant who
gave the statement.
Dellinger raises those issues on appeal to this court, and we
affirm.
I.
In August 1995, at about 2:30 a.m., Martize Dellinger,
Rhamal Powell, and Kareem Muhammad shot into a group
of people running away from them who were apparent-
ly rival gang members and their girlfriends. Dellinger,
Powell and Muhammad are all associated with the Vice
Lords street gang. Two of the women, Patricia Baker and
Cherie Morris, were shot and suffered relatively minor
injuries. At trial, both women testified that they were sitting
on Ms. Baker’s back porch with several friends when three
men approached on foot and pulled out guns. When the
women and their friends began to run, the men started
shooting. Ms. Baker was shot in the buttocks, and Ms.
Morris in the foot. Both were taken to a hospital, treated
and released around 6:00 a.m. Both women identified
Muhammad, Powell and Dellinger as the shooters.
These three men were tried in a separate, simultaneous
bench trial for attempted murder and lesser crimes. At trial,
the prosecution introduced, by stipulation, statements by
Powell and Dellinger. 1 In Dellinger’s statement, he stated
that he was 17 years old and a member of the Vice Lords
street gang. He stated that his car had been shot up by
a rival gang, and that on August 25th, he, Powell and
Muhammad went looking for the rival gang members.
Dellinger claimed that when they saw the people on the
porch, the other defendants started shooting. He stated
that “he didn’t want to shoot but he raised his gun and

-- 2 of 17 --

No. 01-2617 3
2 Aggravated battery is a lesser-included offense of armed vio-
lence. See 720 ILCS 5/33A-2; 720 ILCS 5/12-4(a).
shot two times towards where the two guys [from the
porch] had ran.” Dellinger did not call any witnesses in
his defense. In closing, Dellinger’s public defender argued
that the evidence was insufficient to prove an intent to
kill, as required for attempted murder, or to prove that he
had caused “great bodily harm,” to support the underly-
ing felony of aggravated battery (and thus, armed vio-
lence). 2
The trial judge found each of the defendants guilty and,
on October 3, 1996, he sentenced Dellinger, Powell, and
Muhammad to concurrent sentences of 19 years each on
the attempted murder and armed violence charges. The
other convictions merged in the judgment. On direct appeal
Dellinger, now represented by a different assistant pub-
lic defender, argued that the evidence was insufficient to
convict him of attempted murder, that he did not cause
“great bodily harm” as required for aggravated battery,
and that the convictions for armed violence and aggravated
battery arose from the same act as the attempted mur-
der and should be vacated under Illinois law as violat-
ing the “one act, one crime” rule. On September 30, 1997,
the Illinois Appellate Court rejected Dellinger’s argu-
ments, and affirmed his convictions. People v. Dillinger
[sic], No. 96-3640 (Ill.App.Ct. Sept. 30, 1997) (unreported
order). With respect to the sufficiency of the evidence,
the court concluded that the act of firing a gun was suffi-
cient to support a finding of an intent to kill, and that
under Illinois law a gunshot wound was “great bodily
harm” sufficient to support the underlying felony of ag-
gravated battery (and thus, armed violence). After rejecting
Dellinger’s “one act, one crime” argument, the Illinois Ap-

-- 3 of 17 --

4 No. 01-2617
3 At that time, the statute provided, in relevant part, “[t]he court
shall not impose consecutive sentences for offenses which were
committed as part of a single course of conduct during which
there was no substantial change in the nature of the criminal
objective, unless, one of the offenses for which defendant was
convicted was . . . a Class X or Class 1 felony and the defendant
inflicted severe bodily injury . . . in which event the court
shall enter sentences to run consecutively.” 730 ILCS 5/5-8-4(a)
(West 1997).
pellate Court further concluded that the trial court was
required to impose consecutive sentences under 730 ILCS
5/5-8-4(a). 3 The Illinois Appellate Court concluded that
“the shooting of [two] women was sufficient to establish
great bodily harm, and . . . it also was sufficient to meet the
severe bodily injury criterion set forth in [730 ILCS 5/5-8-
4(a)]. Defendant’s sentences for attempted murder and
armed violence must be served consecutively.” Dillinger
[sic], slip op. at p.8. The Appellate Court then vacated
Dellinger’s sentence and remanded the case for resentencing
in accordance with its decision.
In October 1997, Assistant Public Defender Robert Drizin
wrote Dellinger, advising him of the Appellate Court’s rul-
ing imposing consecutive sentences and informing him
that an assistant public defender would represent him on
resentencing. Furthermore, the letter informed Dellinger
that if he wanted to file a pro se petition for leave to appeal
the Illinois Appellate Court’s decision, he could do so
within 21 days of the Appellate Court’s decision. Dellinger
sought leave to appeal pro se to the Illinois Supreme Court
twice thereafter (although he did not raise the issue of
consecutive sentencing either time), but both petitions were
denied by the Illinois Supreme Court as untimely.
At resentencing, Dellinger was represented by another
assistant public defender, Susan R. Smith, but she did not

-- 4 of 17 --

No. 01-2617 5
4 In August 1998, Finegan wrote to Dellinger, then awaiting
his second direct appeal, advising him that “in your particular
case, appealing your convictions was not a smart idea since
the Appellate Court would not have known about your incor-
rect concurrent sentences if you had not appealed the convic-
tions. I do not know who wrote your appeal—perhaps the at-
torney had discussed this possible outcome with you.” He
then indicated that the only argument he could pursue on appeal
was the Truth-in-Sentencing Act issue.
challenge the court’s imposition of two consecutive 15-year
sentences, for a new total of 30 years. Dellinger then be-
gan a direct appeal of his new sentence, this time repre-
sented by Assistant Public Defender Thomas Finegan. Once
again he did not challenge the issue of consecutive sen-
tences, nor did he claim Smith had been ineffective in fail-
ing to challenge that ruling. Instead, his sole challenge
involved the constitutionality of Illinois’ “Truth-in-Sen-
tencing” statute, 730 ILCS 5/3-6-3(a)(2)(ii), which limited
good-time credit to 4.5 days for each month of sentence. 4
In January 1999, the Illinois Supreme Court declared the
statute unconstitutional, People v. Reedy, 708 N.E.2d 1114,
1122 (Ill. 1999), and in February 1999, the Illinois Appellate
Court applied this ruling to Dellinger’s case, concluding
that he was eligible for one day of good conduct credit for
each day served. People v. Dellinger, No. 1-98-0448 (Ill. App.
Ct. Feb. 22, 1999) (unpublished summary order).
In the meantime, Dellinger’s co-defendant, Powell, who
was represented by appointed counsel, had also ap-
pealed his initial convictions. On June 30, 1998, the Appel-
late Court affirmed his convictions on all counts, but, un-
like its action in Dellinger’s case, did not remand the
case for consecutive sentencing under 730 ILCS 5/5-8-4(a).

-- 5 of 17 --

6 No. 01-2617
5 According to Dellinger, Powell will be eligible for release after
8 years, whereas he is subject to confinement for at least 15 years.
People v. Powell, 701 N.E.2d 68 (Ill.App.Ct. 1998). 5 Of
course, Powell’s decision was rendered by a different panel
of judges than the one that decided Dellinger’s appeal.
Meanwhile, Dellinger filed a pro se petition for post-
conviction relief in Illinois state court, raising several issues
including the sufficiency of the evidence. However, he did
not raise the consecutive sentencing issue at this point
either, nor did he claim that Smith or Finegan were ineffec-
tive in failing to do so themselves. The Circuit Court
of Cook County denied this petition on August 14, 1998.
The record does not indicate whether he appealed that
determination.
In March 1999, Dellinger filed a pro se petition for habeas
relief in federal district court. His present counsel was
appointed for him at that time, and his attorney filed an
amended petition raising the following issues: (1) whether
his Fourteenth Amendment rights were violated when
the Illinois Appellate Court imposed consecutive sen-
tences, and whether his Sixth Amendment rights were
violated when his counsel failed to appeal that ruling, and
(2) whether there was sufficient evidence to support a
finding of guilt for his convictions. Dellinger’s counsel later
filed a supplemental petition, raising for the first time
the fact of Powell’s disparate sentencing by the Illinois
Appellate Court. Dellinger argued that the disparity
between his and Powell’s sentences violated the Equal
Protection Clause of the Fourteenth Amendment, and that
his counsel was ineffective under the Sixth Amendment
for failing to raise this issue as well.
The district court denied in its entirety the petition, as
amended and supplemented. Dellinger v. Haws, 2001 WL

-- 6 of 17 --

No. 01-2617 7
184888 (N.D. Ill. Feb. 20, 2001). Dellinger moved to alter
or amend the judgment under Rule 59(e), claiming that
the district court had not specifically addressed the
equal protection arguments raised in his supplemental
petition. The district court denied Dellinger’s motion to
amend in an unpublished order, rejecting Dellinger’s
disparate sentence argument. Dellinger then filed a notice
of appeal and requested a certificate of appealability,
which the district court granted on Dellinger’s Equal
Protection and ineffective assistance of counsel claims,
as well as on the question of whether Dellinger had proce-
durally defaulted those claims. Dellinger appeals.
II.
In reviewing the district court’s decision to deny habeas
corpus relief, we review issues of law de novo and issues
of fact for clear error. See, e.g., Todd v. Schomig, 283 F.3d
842, 848 (7th Cir. 2002). A defendant may only obtain ha-
beas relief from a state court conviction where he estab-
lishes that the state court’s adjudication “(1) resulted in
a decision that was contrary to, or involved an unreason-
able application of, clearly established Federal law, as
determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based upon an un-
reasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” See 28
U.S.C. § 2254(d).
In recognition of federal-state comity, a petitioner seek-
ing federal habeas relief must establish that he presented
“fully and fairly his federal claims to the state courts . . . .”
Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001).
Fair presentment “requires the petitioner to give the
state courts a meaningful opportunity to pass upon the
substance of the claims later presented in federal court.” Id.

-- 7 of 17 --

8 No. 01-2617
(citations omitted). Failure to do so “constitutes a proce-
dural default,” id. at 737, which bars federal review un-
less the petitioner demonstrates cause for the default and
actual prejudice as a result of the failure, or demonstrates
that the failure to consider the claims will result in a funda-
mental miscarriage of justice. See Rodriguez v. Scillia, 193
F.3d 913, 917 (7th Cir.1999).
Given these principles governing a request for habeas
corpus relief, we now turn to Dellinger’s claims.
A. Due Process Claim
Dellinger first claims that he was denied due process
under the Fourteenth Amendment when he was sentenced
to consecutive sentences under Illinois law. Specifically,
Dellinger argues that the Illinois Appellate Court erred in
concluding that he had inflicted “severe bodily injury”
under 730 ILCS 5/5-8-4(a). He claims that the Illinois
Appellate Court improperly equated “severe bodily injury”
with the “great bodily harm” element of aggravated battery.
See 720 ILCS 5/12-4(a). In his request for a certificate of
appealability, Dellinger framed this argument in terms of
the Equal Protection Clause of the Fourteenth Amend-
ment, whereas in his appellate brief, he claims a violation
of the Due Process Clause. It does not matter, however,
because as we explain, we conclude that he has not pre-
sented a claim cognizable on a petition for federal habeas
relief.
Federal habeas relief is only available to a person in
custody in violation of the United States Constitution or
laws or treaties of the United States, see 28 U.S.C. § 2254(a),
and is unavailable to remedy errors of state law. See
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the
province of a federal habeas court to reexamine state-court

-- 8 of 17 --

No. 01-2617 9
6 Additionally, the State notes that the Illinois Supreme Court
rejected Dellinger’s argument, holding that consecutive sentences
do not constitute a single sentence for one offense and “the
(continued...)
determinations on state-law questions”). Thus, an error
in the interpretation of the Illinois aggravated battery
statute, or the application of state sentencing rules, does
not present a cognizable claim for federal habeas relief.
See, e.g., Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir. 1998).
Thus, to the extent that Dellinger’s arguments are based
on an incorrect application of Illinois law, the district
court correctly denied his claim under the standard set
forth by 28 U.S.C. § 2254(d).
For the first time on appeal, however, Dellinger char-
acterizes his claim as falling under the Supreme Court’s
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),
where the Court held that any fact other than a prior
conviction which increases the maximum statutory pen-
alty for a crime must be submitted to a jury, and proven
beyond a reasonable doubt. Id. at 490. Without a finding
of the infliction of severe bodily injury, Illinois law pro-
vides that a defendant must receive concurrent sen-
tences. See 730 ILCS 5/5-8-4(a). Dellinger’s indictment did
not contain the charge that he had inflicted “severe bodily
injury.” Nor did the trier of fact (the judge) make a find-
ing of “severe bodily injury.” Thus, Dellinger argues,
since he was sentenced to a greater penalty (consecutive
sentences) without the requisite charges and findings,
his Apprendi rights were violated. The State responds
that the Illinois Appellate Court properly made the requi-
site finding by equating “great bodily harm” with “severe
bodily injury,” that Dellinger waived an Apprendi claim by
failing to raise it below, and that Apprendi does not apply
retroactively. 6

-- 9 of 17 --

10 No. 01-2617
6 (...continued)
application by a judge of the factors in § 5-8-4(a) determines only
the manner in which the defendant will serve his sentences
for multiple offenses.” People v. Carney, 752 N.E.2d 1137, 1145
(Ill. 2001). Therefore, where the defendant is not sentenced in
excess of the statutory maximum for each separate offense
(whether served concurrently or consecutively), there is no Ap-
prendi violation. Id.
Habeas appellants are required to obtain a certificate
of appealability in order to preserve issues for appeal. See
28 U.S.C. § 2253(c); Fed. R. App. P. 22. See also Rodriguez
v. United States, 286 F.3d 972, 978 (7th Cir. 2002). Dellinger
did not raise this claim in his certificate of appealability,
nor has he requested us to expand the certificate to in-
clude an Apprendi claim. However, this is not necessarily
fatal to his claim. We have previously held that “if a certifi-
cate is granted as to certain issues, but the petitioner is
later able to make a substantial showing of the denial of
a constitutional right as to a different issue, we shall
amend the certificate to include such a claim.” Ouska v.
Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). This
is applicable even where the petitioner does not specifical-
ly ask us to expand the certificate, but also “when a party
implicitly makes such a request by simply including is-
sues in its briefs that were not specified in the certifi-
cate.” Id.
Therefore, in order to expand the certificate of
appealability to include the Apprendi issue, Dellinger
must still make a substantial showing that the Illinois
court’s sentence denied his constitutional rights. 28 U.S.C.
§ 2253(c); Rodriguez, 286 F.3d at 978. He cannot make such
a showing. For Apprendi to apply to his claim, it must
be applied retroactively. We recently held that Apprendi

-- 10 of 17 --

No. 01-2617 11
7 In rendering its decision, the court stated that “the State argues
that under section 5-8-4(a) . . ., the trial court should have
imposed consecutive rather than concurrent sentences.” Addi-
tionally, the record contains a portion of the State’s appellate
brief in which the State argued that Dellinger’s case should be
remanded for resentencing because the trial court improp-
erly imposed a concurrent sentence. In any case, it does not
matter, as Illinois courts may raise such issues sua sponte. See
People v. Arna, 658 N.E.2d 445, 448 (Ill. 1995) (rejecting defen-
dant’s challenge that the appellate court lacked the authority to
impose consecutive sentences sua sponte).
is not retroactive and thus “does not disturb sentences
that became final before June 26, 2000, the date of its
release.” Curtis v. United States, 294 F.3d 841, 844 (7th Cir.
2002). Dellinger’s sentence became final well before this
date, and therefore we reject his petition for habeas relief
based on a violation of his rights under the Fourteenth
Amendment based on Apprendi.
Finally, Dellinger suggests that his Fourteenth Amend-
ment due process rights were violated because his sentence
was improperly vacated by the Appellate Court on its
own initiative, thus effectively penalizing him for taking
an appeal. This issue was not included in Dellinger’s
certificate of appealability either. However, we note that
the Illinois Appellate Court does not appear to have va-
cated his sentence on its own, but rather addressed the is-
sue at the suggestion of the State. 7 In any case, Dellinger’s
argument is essentially a recharacterization of his conten-
tion that the Illinois Appellate Court erred in its application
of 730 ILCS 5/5-8-4(a). Thus, he has made no showing that
his constitutional rights were violated, and his Fourteenth
Amendment argument on this issue fails as well.

-- 11 of 17 --

12 No. 01-2617
8 The district court also concluded that Dellinger failed to
establish prejudice because he had not shown that a challenge to
the consecutive sentences would have succeeded.
9 Dellinger points out that one assistant public defender advised
him to file his own petition for leave to appeal to the Illinois
Supreme Court, and another scolded him for appealing his con-
viction in the first place.
B. Ineffective Assistance of Counsel
Next, we address Dellinger’s argument that he received
ineffective assistance of counsel in violation of the Sixth
Amendment. He points to several specific instances of
ineffective assistance, including his counsel’s failure to
challenge the imposition of the consecutive sentences,
failure to discuss with him an appeal of the consecutive
sentence issue, and failure to raise the issue regarding
the disparity in sentence received by his co-defendant,
Powell. The district court concluded that Dellinger had
procedurally defaulted these claims by failing to raise them
in state court (either on direct appeal or in his post-convic-
tion proceeding) and that he had not established cause
sufficient to justify the default, other than his youth and
ignorance, which are insufficient. 8
Dellinger admits that he failed to raise the ineffective
assistance of counsel claim in state court, on direct appeal
or in post-conviction relief, but argues he established
“cause” sufficient to justify that default and that he suffered
prejudice as a result of the violation. We first turn to
whether he established cause for the default. The heart of
Dellinger’s argument is that he received sub-standard
assistance from the public defender, 9 and that, from June
1997 forward, he was left on his own. He pleads that he
was a young, uneducated person without the capacity or
ability to recognize possible grounds for relief, including

-- 12 of 17 --

No. 01-2617 13
his own attorneys’ ineffectiveness. Essentially, his “cause”
for failing to raise this claim in the state courts is three-fold:
that he is young, uneducated and that he had ineffec-
tive counsel. The Supreme Court has defined cause suf-
ficient to excuse procedural default as “some objective fac-
tor external to the defense” which precludes petitioner’s
ability to pursue his claim in state court. Murray v. Car-
rier, 477 U.S. 478, 492 (1996). We have held that youth
and lack of education do not constitute the type of ex-
ternal impediment sufficient to excuse a procedural de-
fault. See, e.g., Henderson v. Cohn, 919 F.2d 1270, 1272-73
(7th Cir. 1990) (illiteracy and limited education do not con-
stitute cause).
Likewise, the fact that Dellinger may have had ineffective
assistance of counsel does not automatically excuse him
from raising an ineffective assistance claim in state court.
In Edwards v. Carpenter, 529 U.S. 446 (2000), the Su-
preme Court held that “ineffective assistance adequate
to establish cause for the procedural default of some other
constitutional claim is itself an independent constitution-
al claim. And we held in Carrier that the principles of com-
ity and federalism that underlie our longstanding exhaus-
tion doctrine . . . require that constitutional claim, like
others, to be first raised in state court.” Id. at 451-52. In
other words, the claim of ineffective assistance must be
raised in state court before it can suffice on federal habe-
as relief as “cause” to excuse the default of another claim
(even if that other claim is also ineffective assistance of
counsel). If the second claim of ineffective assistance of
counsel is itself defaulted, the petitioner will be fully
defaulted. Id. at 452-54. Dellinger points to no reasons
for this second level of default, other than the aforemen-
tioned claims of youth and ignorance, which as we have
stated are insufficient.

-- 13 of 17 --

14 No. 01-2617
10 Nor could he do so, even if he had been represented by
counsel. Dellinger had no constitutional right to an attorney
during post-conviction proceedings, see Pitsonbarger v. Gramley,
141 F.3d 728, 737 (7th Cir. 1998), or in petitioning the Illinois
Supreme Court for review, see Anderson v. Cowan, 227 F.3d
893, 901 (7th Cir. 2000).
11 We are aware that all of Dellinger’s attorneys were Assistant
Public Defenders, but that does not affect our analysis. While
an attorney’s conflict of interest can be sufficient cause to excuse
a procedural default, Dellinger has not argued that there is a
conflict and “we will not presume a conflict exists where none
is demonstrated.” Barnhill v. Flannigan, 42 F.3d 1074, 1078 (7th
Cir. 1994) (no conflict between trial and appellate counsel, where
both were employed as public defenders by the State of Illi-
nois, and therefore, no ineffective assistance of counsel).
Furthermore, to 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 proceed-
ing (and thus cannot blame counsel), 10 and because we
have stated that youth and ignorance are insufficient
to constitute “cause” for default, his failure to raise an in-
effective assistance of counsel claim during the post-
conviction proceeding constitutes a full default. 11 Because
Dellinger is unable to show cause to excuse his default,
we need not reach the issue of whether he could estab-
lish prejudice. See Henderson, 919 F.2d at 1273.

-- 14 of 17 --

No. 01-2617 15
12 The district court determined that Dellinger had procedurally
defaulted the issue by never raising it in state court.
Absent a showing of cause, a “defaulted claim is re-
viewable 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.
One final note. Dellinger spends a great deal of his
appellate brief arguing that his equal protection rights
were violated because he was sentenced to consecutive
sentences whereas his co-defendant received concur-
rent sentences. He claims that it is a violation of equal
protection for any court to arbitrarily sentence two co-
defendants, who are identically situated, to materially
different terms of imprisonment. 12 However, in his cer-
tificate of appealability, Dellinger framed this argument
only in terms of a violation of his Sixth Amendment right to

-- 15 of 17 --

16 No. 01-2617
counsel, which we rejected above. Once again, while he
has not requested us to expand his certificate of ap-
pealability, if he has made a “substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c), we may
do so on our own. However, Dellinger has made no such
showing. First, for the same reasons we concluded he had
defaulted his ineffective assistance of counsel claims, he
has procedurally defaulted this claim as well. Nor has he
identified any Supreme Court precedent establishing that it
is a violation of the Equal Protection Clause to receive a
greater sentence than one’s partner in crime. See 28 U.S.C.
§ 2254(d)(1) (“decision . . . was contrary to . . . clearly
established Federal law, as determined by the Supreme
Court of the United States”). Moreover, in Holman v. Page,
95 F.3d 481 (7th Cir. 1996), we rejected a similar conten-
tion, holding that, as long as a defendant receives a con-
stitutional sentence, he is not “entitled to assert third
parties’ rights to better sentencing practices and thereby
improve his own lot.” Id. at 486 (citation omitted). Thus,
while Powell may very well have received a windfall from
the Illinois Appellate Court, if the Illinois Appellate Court
erred in failing to properly apply the Illinois statute in his
case, that has no bearing on Dellinger’s federal habeas
petition. Dellinger is not in state custody pursuant to
Powell’s state court judgment. Instead, in filing his peti-
tion, Dellinger was required to demonstrate that he is in
state custody “in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a). He
had to show that his own sentence was an illegal or un-
constitutional one. However, as discussed above, to the
extent that the Illinois Appellate Court erred in Dellinger’s
sentencing, it was an error of state law. Accordingly, he
has failed to present a cognizable case under Section 2254,
and his petition was properly denied.

-- 16 of 17 --

No. 01-2617 17
III.
For the reasons stated herein, we affirm the decision of
the district court.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-19-02

-- 17 of 17 --