James T. Lockheart v. DON HULICK , Warden, Illinois River Correctional Center

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3754
J AMES T. L OCKHEART ,
Petitioner-Appellant,
v.
D ON H ULICK , Warden, Illinois River
Correctional Center,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 03 C 5306—Elaine E. Bucklo, Judge.
____________
A RGUED M ARCH 28, 2006—D ECIDED A PRIL 12, 2006
____________
Before P OSNER , E ASTERBROOK , and W ILLIAMS , Circuit
Judges.
E ASTERBROOK , Circuit Judge. James Lockheart is serving
a term of 30 years’ imprisonment for attempted aggravated
sexual assault. The principal testimony against him came
from the intended victim, whose story was corroborated by
employees at the restaurant where she worked. Lockheart,
who represented himself throughout the state proceedings,
contended that the witnesses, all of them white, had
conspired to frame an innocent black man. Lockheart’s first
trial ended in a verdict of guilty, but the conviction was
reversed after the appellate court concluded that a juror

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2 No. 04-3754
should have been removed for cause. The second trial ended
in a mistrial after the jury could not reach a unanimous
verdict. The third trial produced another conviction, which
remained standing after two appellate proceedings (dealing
with both direct and collateral challenges). The Supreme
Court of Illinois denied Lockheart’s petition for leave to
appeal from the second appellate decision. 202 Ill. 2d 686,
787 N.E.2d 178 (2003).
Lockheart then sought collateral relief in federal court. 28
U.S.C. §2254. The district court denied his petition. 334 F.
Supp. 2d 1070 (N.D. Ill. 2004). Of the many issues that
Lockheart raised, a certificate of appealability singled
out whether the trial judge was biased plus an ante-
cedent procedural question: whether Lockheart defaulted
this subject by omitting it from his petition for leave to
appeal in the Supreme Court of Illinois. See O’Sullivan
v. Boerckel, 526 U.S. 838 (1999). That is the ground on
which he lost in the district court, and it is the initial
subject on this appeal.
To preserve a claim for federal collateral review, the
petitioner must “fairly present” it to all levels of the state
judiciary. That means, among other things, articulating the
point in such a way that a judge could grasp both its
substance and its foundation in federal law. Baldwin v.
Reese, 541 U.S. 27 (2004), concludes that this requirement
is not met if a judge must go outside the four corners of the
document in order to understand the contention’s nature
and basis. Baldwin held that, if the state’s Supreme Court
must read the decision of its appellant court in order to
learn what the petitioner is arguing, then the issue has
not been preserved for federal decision; a petition must
contain each contention, and not just point to some other
document where it might be located. Lockheart did just
what Baldwin says is inadequate. His petition for leave to
appeal to the Supreme Court of Illinois did not present a
judicial-bias argument. Instead he asked the Supreme

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No. 04-3754 3
Court to read other documents, such as his appellate brief
and his “Petition for Leave to Appeal as a Matter of Right
and in the Alternative” that he had filed in support of an
earlier request for review. The state judges were under no
obligation to track down and peruse those documents.
Now if state rules entitled litigants to present argu-
ments by incorporation, then use of that approved device
would preserve these issues. But Lockheart does not
identify any rule of the Supreme Court of Illinois allowing
this maneuver, and we could not find one. Supreme Court
Rule 315(c) limits petitions to 20 pages, and such a cap is
incompatible with incorporation by reference. A 50-page
appellate brief “incorporated into” a petition would cause it
to exceed the limit. Lockheart’s petition was 22 pages (the
court accepted it despite the length); the documents that
Lockheart purported to incorporate by reference were
substantially longer. So we are left with Baldwin: only
arguments in the main body of the petition have been
preserved, and the judicial-bias claim therefore has been
forfeited.
For completeness we add that Lockheart has not estab-
lished bias. The reason he argues that the judge was biased
is because judicial partiality automatically vitiates a
judgment, see Edwards v. Balisok, 520 U.S. 641, 647 (1997),
while judicial errors do not unless they not only violate the
Constitution but also cause material harm to the defense.
See Brecht v. Abrahamson, 507 U.S. 619 (1993). Proving
bias, as opposed to error, is not as easy as Lockheart
supposes, however; treating error as proof of bias would
obliterate the rule that mistakes do not support automatic
reversal.
The record reveals that Judge Sacks, trying the case for
the third time, had lost patience with Lockheart’s limita-
tions as a lawyer as well as with tactics that the judge
thought designed to drag out the process (“milk the system,”

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4 No. 04-3754
as the judge put it). The judge repeatedly chastised
Lockheart out of the jury’s hearing. None of these ex-
changes implies that the judge had any personal interest in
the outcome or was unwilling to give black defendants fair
trials. The record does not approach the level of acrimony
held in Liteky v. United States, 510 U.S. 540 (1994), not to
evince bias, let alone evince the sort of preconception that
Berger v. United States, 255 U.S. 22 (1921), deemed unac-
ceptable. During a trial for espionage held while the United
States was at war with Germany, the judge in Berger
supposedly declared of Americans with German ancestry
that their “hearts are reeking with disloyalty”, id. at 28; the
Court thought this incompatible with a duty to treat all
litigants impartially. Nothing of the sort occurred in
Lockheart’s trial. Though the judge was unhappy with
Lockheart’s conduct, that is different in kind from being
prejudiced against black litigants as a class.
The only statement in the jury’s hearing about which
Lockheart now complains came during his cross-exam-
ination of Officer Drapiewski, who testified about his
investigation and arrest of Lockheart. This exchange
occurred:
Lockheart: You didn’t like the idea that a white lady
was attacked by a black man, did you?
[Prosecutor]: Objection to defendant’s speeches.
Court: Mr. Lockheart, please. You are making an issue
that is not an issue in this case. Objection sustained.
Ask another question.
Lockheart treats this as telling the jury that race was
not an issue in the case. Yet the judge said no such
thing—and at the end of all three trials the jury was
instructed that, if it concluded that the witnesses had
conspired on racial grounds to frame a black man, then it
must acquit. Doubtless Drapiewski did not “like the idea
that a white lady was attacked by a black man”; surely

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No. 04-3754 5
he does not “like” sexual assaults by white men either;
but Drapiewski’s likes and dislikes had nothing to do
with the charge laid against Lockheart. Drapiewski’s
druthers were “not an issue in the case,” just as the
judge said. Lockheart asked a rhetorical question to
make an irrelevant point, not to obtain information from
the witness. The judge did not err—let alone display
bias—by telling Lockheart to desist.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-12-06

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