Forrest Woods v. Gregory Schwartz

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1234

F ORREST W OODS,

Petitioner-Appellant,

v.

G REGORY S CHWARTZ, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 438—Wayne R. Andersen, Judge.

A RGUED S EPTEMBER 24, 2009—D ECIDED D ECEMBER 9, 2009

Before P OSNER, M ANION, and T INDER, Circuit Judges.

M ANION, Circuit Judge. Forrest Woods was convicted

in Illinois state court of murdering Omar Wilson and

sentenced to forty years’ imprisonment. After unsuccess-

fully appealing his sentence, he filed three state-court

petitions for post-conviction relief. All were denied. He

then filed a petition for a writ of habeas corpus under

28 U.S.C. § 2254. The district court denied his petition,

holding that all but one issue was procedurally barred

2 No. 08-1234

and denying relief on the single preserved issue. On

appeal, Woods challenges the denial of his petition.

We affirm.

I.

On the night of July 10, 1995, Kenya Wilson walked

out of a bedroom in her Hazel Crest, Illinois home and

saw her brother Omar at the bottom of the stairs being

restrained from behind by an unknown man, later identi-

fied as Forrest Woods. Over a span of three minutes,

Omar alternated between calling for his brother Terrell

Wilson and telling Kenya to go back to her bedroom.

Then, without a word, Woods shot Omar in the back of

the head.

At this, Kenya ran into a bathroom and shut the door.

Woods chased after her and tried to gain entry but fled

when Terrell came out of his room to investigate the

gunshot. It was at this point that Terrell got a brief look at

Woods. The police were then called, and Omar was

pronounced dead at the scene.

Neither Kenya nor Terrell knew the shooter. Both

described him as a black man with a light complexion,

round face, and a husky or stocky build. Kenya initially

estimated that he was between eighteen and twenty

years old, stood between 5’7” and 5’8", and weighed

165 pounds. At the time of his arrest, Woods was seven-

teen, stood 5’10” and weighed approximately 225 pounds.

To identify the shooter, the police initially presented

Kenya with over a thousand photos, but she did not

No. 08-1234 3

recognize him in the initial batch. Over a week later,

Officer Raymond Huggins of the Chicago Housing Au-

thority was at the scene of a domestic disturbance. A

suspect there volunteered the following nugget of infor-

mation: “Did you hear about the shooting in Hazel Crest?

Boy named Foo-Foo did it.” Huggins was familiar with

Foo-Foo: he had previously arrested Forrest Woods using

that alias.

Huggins then relayed the tip to Officer Gary Gentzle,

who was investigating Omar’s murder, and gave Gentzle

a photo of Woods. That photo was shown to Kenya, along

with seven other photos; she immediately identified

Woods as the shooter. The next day both she and Terrell

identified Woods in a lineup. The state charged Woods

with first-degree murder; he pleaded not guilty and

proceeded to trial.

At the one-day bench trial, Kenya and Terrell testified

to the events on the night of Omar’s murder, and both

again identified Woods as the shooter. The prosecution

also called Officer Gentzle and Omar’s mother to testify.

The defense did not call any witnesses. Woods was

found guilty of murdering Omar Wilson and later sen-

tenced to forty years’ imprisonment. He then filed a

direct appeal challenging his sentence but not his con-

viction. The Illinois Appellate Court affirmed Woods’

sentence, and the Illinois Supreme Court denied him

leave to appeal.

Woods then filed the first of three post-conviction

petitions in Illinois state court. The first petition raised

three issues. Pertinent here was Woods’ claim that his

4 No. 08-1234

trial counsel rendered constitutionally ineffective assis-

tance by failing to call his brother, Harold Woods, as an

alibi witness. Attached to the petition was an affidavit

from Harold prepared four years after the shooting,

stating, “I don’t recall [Woods] leaving the house any-

time that night.” The trial court dismissed the petition,

concluding the claims should have been presented on

direct appeal and were thus waived. The appellate

court, however, held that Woods’ claim of ineffective

assistance of counsel was not waived and addressed it on

the merits under Strickland v. Washington, 466 U.S. 668

(1984). It found that Harold’s affidavit was inconclusive,

and based on the eyewitness testimony at trial, it con-

cluded that had Harold testified it “would not likely

have changed the outcome of the trial” and denied the

petition. The Illinois Supreme Court denied Woods’

petition for leave to appeal.

Woods then filed a second petition for post-conviction

relief, claiming that his trial counsel was ineffective for

failing to call his mother and brother-in-law as alibi

witnesses. Attached to the petition were their affidavits

attesting to Woods’ presence at home on the night of the

murder. The trial court dismissed the petition, and the

appellate court affirmed, holding that the claim and the

affidavits should have been submitted in Woods’ initial

post-conviction petition and were thus waived. It also

held that Woods could not establish cause and prejudice

to escape the procedural bar of waiver. The Illinois Su-

preme Court again denied Woods’ petition for leave

to appeal.

No. 08-1234 5

Undeterred, Woods filed a third petition for post-convic-

tion relief. In it, he raised three claims with twelve

distinct sub-claims. The trial court dismissed the petition

as “frivolous and patently without merit.” On appeal,

Woods’ appointed counsel filed a motion to withdraw

under Pennsylvania v. Finley, 481 U.S. 551 (1987). In the

motion, counsel recited the procedural history of

Woods’ case and stated

Woods has shown no objective factor why he could not

have raised these claims in his original post-conviction

petition, and therefore he may not seek relief in a

successive petition.

With the exception of Finley, the motion did not cite

any federal law. Woods then filed two objections

restating the bases for the claims in his third petition;

however, he did not address the procedural bar of waiver

that his counsel had cited. But he did note, without any-

thing more, that the failure to entertain his petition would

result in a miscarriage of justice. The appellate court

granted the motion to withdraw and affirmed the trial

court’s dismissal of the petition. In their respective

orders, neither the trial court nor the appellate court

cited or discussed federal law. And for the fourth time,

the Illinois Supreme Court denied Woods’ petition for

leave to appeal.

Woods then filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2254 in the United States District Court

for the Northern District of Illinois. In his petition, he

raised seventeen claims. The district court found that

Woods had procedurally defaulted all but one of those

6 No. 08-1234

claims and that he could not escape the procedural bar

under any of the applicable exceptions. Concerning the

merits of his preserved claim of ineffective assistance of

counsel for failing to call Harold Woods to testify, the

district court found that in denying that claim the

Illinois Appellate Court did not unreasonably apply

Strickland’s standard for ineffective assistance of counsel

and denied Woods’ petition.

Woods then moved for a certificate of appealability,

which the district court denied. This court, however,

granted him one on the following issues: whether

Woods’ trial counsel was ineffective for failing to chal-

lenge Kenya Wilson’s ability to view the crime; whether

Woods’ appellate counsel was ineffective for raising only

a forfeited issue; and whether Woods’ trial counsel was

ineffective for failing to identify and call alibi wit-

nesses. This appeal followed.

II.

A.

The first two claims Woods raises on appeal are that his

appellate counsel was ineffective for raising only a for-

feited issue and that his trial counsel was ineffective for

failing to challenge Kenya Wilson’s ability to view the

crime. The district court found that both claims were

procedurally defaulted and we review that determination

de novo. Smith v. Gaetz, 565 F.3d 346, 352 (7th Cir. 2009).

Before seeking habeas relief, a petitioner must fairly

present his federal claims at each level of the state’s courts

No. 08-1234 7

for their review. 28 U.S.C. § 2254(b)(1)(A); Baldwin v.

Reese, 541 U.S. 27, 32 (2004). The natural corollary of this

requirement is that when a petitioner has exhausted his

state court remedies and failed to properly assert his

federal claims at each level of review those claims are

procedurally defaulted. Lewis v. Sterns, 390 F.3d 1019,

1026 (7th Cir. 2004). And when a state court resolves a

federal claim by resting its decision on a state law

ground independent of the federal question and ade-

quate to support the judgment, we will not review the

question of federal law. Coleman v. Thompson, 501 U.S. 722,

729 (2001). Any such ruling on the federal claims would

be advisory, given the fact that on remand the state

court would still deny petitioner relief on the independent

and adequate state law ground. Id. at 729 (“Because

this Court has no power to review a state law determina-

tion that is sufficient to support the judgment, resolution

of any independent federal ground for the decision could

not affect the judgment and would therefore be advi-

sory.”).

Thus, when a state refuses to adjudicate a petitioner’s

federal claims because they were not raised in accord

with the state’s procedural rules, that will normally

qualify as an independent and adequate state ground

for denying federal review. Cone v. Bell, 556 U.S. ___, 129

S. Ct. 1769, 1780 (2009). “A finding of waiver by the state

postconviction court is enough to establish an adequate

and independent state ground.” Sturgeon v. Chandler, 552

F.3d 604, 611 (7th Cir. 2009). Such claims are commonly

referred to as being procedurally defaulted. E.g., Johnson

v. Loftus, 518 F.3d 453, 455 (7th Cir. 2008). And when a

8 No. 08-1234

claim is procedurally defaulted, that bars our review of

the claim, unless the petitioner can demonstrate both

cause for and prejudice from the default or that a miscar-

riage of justice will occur if we do not consider his

claims. Anderson v. Benik, 471 F.3d 811, 815 (7th Cir. 2006).

In this case, Woods raised his claims that trial counsel

was ineffective for failing to challenge Kenya Wilson’s

ability to view the crime and that appellate counsel was

ineffective for raising only a forfeited issue for the first

time in his third post-conviction petition. Nonetheless,

he argues that these claims are not procedurally

defaulted because the appellate court denied his federal

claims on their merits. In the alternative, Woods argues

that he can escape that procedural bar because it would

result in a fundamental miscarriage of justice, namely,

“in a conviction of one who is actually innocent.” Gonzales

v. Mize, 565 F.3d 373, 381 (7th Cir. 2009) (parenthesis

omitted). Woods does not argue “cause” and “prejudice”

to escape the procedural bar. See Schlup v. Delo, 513 U.S.

298, 314-15 (1995) (discussing the difference between

“cause and prejudice” and “miscarriage of justice”).

Woods argues that the Illinois Appellate Court decided

the merits of his federal claims when it summarily

affirmed the trial court’s denial of his third petition for

post-conviction relief. In support, Woods relies on our

holding in Wilkinson v. Cowan, 231 F.3d 347 (2000), and

language we used in Lewis v. Sternes, 390 F.3d 1019, 1030

No. 08-1234 9

(7th Cir. 2004), summarizing our holding in Wilkinson.1

Both cases addressed the dismissal of post-conviction

petitions, when the appellate court granted an attorney’s

Finley motion to withdraw. Woods reads them as

standing for the broad proposition that when post-convic-

tion appellate counsel files a Finley motion and in

response the appellate court both grants the attorney’s

motion to withdraw and summarily affirms the dismissal

of the petitioner’s post-conviction petition, the court has

rendered a merits judgment on each of the claims

asserted in that petition. But a careful examination of

those cases shows that our holding in Wilkinson was not

as broad as Woods would read it.

In Wilkinson we addressed a much different situation

than we have here. There, the petitioner had presented

his federal claims in his original post-conviction petition

to the trial court, and they were summarily dismissed.

Wilkinson, 231 F.3d at 349. He appealed, and his ap-

pointed appellate counsel moved “to withdraw without

1

The language from Lewis that Woods relies upon appears

when we summarized the holding in Wilkinson and stated:

In Wilkinson v. Cowan, 231 F.3d 347, 352 (7th Cir. 2000), we

held that when the Illinois Appellate Court, in response to

a Finley motion, had not only granted an attorney’s motion

to withdraw but also summarily affirmed the dismissal of

the petitioner’s post-conviction petition, the court had

rendered a merits judgment as to each of the claims

asserted in that petition.

Lewis, 390 F.3d at 1030.

10 No. 08-1234

briefing the merits of any of the issues raised in the case.”

Id. at 350. Petitioner did not file an objection, and the

appellate court granted the motion to withdraw and

summarily affirmed the trial court’s denial of the petition.

In response to the habeas petition, the state argued that

his claims were defaulted because he did not again

present his claims in a pro se memorandum responding

to the motion to withdraw or by filing his own brief

addressing the issues he sought to appeal. Id. We

rejected the state’s position. Id. at 351-52 (“We simply

reject the State’s contention that Wilkinson can be

charged with a procedural default under these circum-

stances.”). Based on the circumstances of that case, we

held that the appellate court had been presented with the

petitioner’s claims and had addressed them on their

merits. Id. at 352; see also id. at 350 (“In view of the par-

ticular way in which the Illinois appellate court disposed

of Wilkinson’s post-conviction appeal, however, we

do not believe that he procedurally defaulted the inef-

fectiveness claim.”).

In Lewis we rejected a petitioner’s claim that he had

fairly presented the appellate court with two ineffective

assistance of counsel claims that first appeared in his

objection to his attorney’s motion to withdraw. Lewis,

390 F.3d at 1031 (“[W]e reject the notion that a petitioner

fairly presents his federal claim to the state courts when

he raises that claim for the first time in an appellate

brief after his lawyer has filed a motion to withdraw

under Finley.”). We refused to read our holding in

Wilkinson broadly and limited it to the precise factual

No. 08-1234 11

and procedural posture of that case. Id. at 1031 (“Lewis

construes our holding in Wilkinson far too broadly.”).

We stated:

At most, Wilkinson stands for the proposition that

when a state appellate court elects to summarily affirm

the judgment below without having invited the appel-

lant to identify the issues he wishes to pursue on appeal,

we will construe the affirmance to have reached the

merits of each issue that the petitioner properly

raised in the court below.

Id. at 1031 (emphasis added).

Simply put, the holding in Wilkinson cannot be divorced

from its unique facts. And it certainly did not create a

categorical rule that a decision is merits-based whenever

an appellate court grants a Finley motion and summarily

affirms the trial court’s denial of a post-conviction peti-

tion. Such a blanket holding would, in fact, impermissibly

restrain how state appellate courts may dispose of cases

and motions to withdraw: “We have no power to tell state

courts how they must write their opinions.” Coleman, 501

U.S. at 739. And to prescribe such a categorical rule in

these instances would rob the state courts of their auton-

omy. Id. (“[W]e will not impose on state courts the respon-

sibility for using particular language in every case.”);

accord id. (“A broad presumption would also put too

great a burden on the state courts.”). Therefore, we reject

Woods’ argument that our cases stand for the proposi-

tion that any time the appellate court grants an attorney’s

motion to withdraw and summarily affirms the denial of

12 No. 08-1234

his post-conviction petition it is a decision on the merits

of his federal claims.2

In cases such as this one, where on the face of the

order it is unclear on what basis the state court disposed

of a claim, we must make a determination on the

record that the state court was presented with. Id. Specifi-

cally, we look to the nature of the disposition and the

surrounding circumstances to determine whether the

state court relied on an independent and adequate

state law ground in disposing of the claim, or whether

“the state court decision fairly appears to rest on

federal grounds or is interwoven with federal law.” Willis

v. Aiken, 8 F.3d 556, 561 (7th Cir. 1993). Here, our review

of the record includes the motion to withdraw filed by

Woods’ appointed counsel during the appeal of his third

post-conviction petition. Williams v. Washington, 59 F.3d

673, 678 n.3 (7th Cir. 1995) (looking to state court briefs

to determine the basis of the appellate court’s holding).

2

Beyond the fact that a categorical rule in such cases is imper-

missible, the circumstances in Wilkinson are distinguishable

from what we have here. In Wilkinson, the petitioner only

filed one post-conviction petition, there were no prior orders

disposing of his claims on clear procedural grounds, and he

did not object to his attorney’s motion to withdraw. Wilkinson,

231 F.3d at 349. Here, the appellate court was disposing of

Woods’ third petition for post-conviction relief, Woods’ previ-

ous petition was dismissed as procedurally barred, and he

filed two objections to the motion to withdraw restating

his claims.

No. 08-1234 13

The orders denying Woods’ third post-conviction

petition are unclear. There are two trial court orders

disposing of Woods’ petition. One is a one-page

transcript that briefly addresses the fact that most of

Woods’ claims criticize trial tactics and should have

been raised earlier; it also notes that Woods’ allegations

are unsupported by anything more than his blanket

bites of disapproval. The other is a mere minute order.

Neither states a basis for the holding or provides any

reasoning; they simply conclude that the petition is

dismissed as frivolous and without merit. The appellate

court’s order offers little more: it briefly recounts the

procedural history of Woods’ case and states that the

motion to withdraw is granted and the trial court is

affirmed. These orders do not give us much to go on.

But read in conjunction with all of the surrounding cir-

cumstances of Woods’ claims, they indicate that the

resolution of Woods’ third post-conviction petition

neither rested primarily on federal law nor was it inter-

woven with federal law. Coleman, 501 U.S. at 735; Harris

v. Reed, 489 U.S. 255, 261 (1989). Rather, the appellate

court summarily applied the state-law doctrine of

waiver to dispose of Woods’ claims.

Under Illinois law, “[a]ny claim of substantial denial of

constitutional rights not raised in the original or an

amended petition is waived.” 725 ILCS 5/122-3 (2008); see

also People v. Anderson, 874 N.E.2d 277, 288 (Ill. App. Ct.

2007) (“[I]n the context of a successive postconviction

petition, the rule of waiver is not merely a principle of

judicial administration, but, rather, an express require-

14 No. 08-1234

ment of the statute.”). Here, the appellate court dismissed

Woods’ second post-conviction petition on waiver grounds

and noted that he could not escape the procedural bar

by establishing cause or prejudice. Similarly, under

Illinois law, all of the claims in Woods’ third post-convic-

tion petition would have been deemed waived: they all

concerned matters he would have been aware of on

direct appeal (the failure to challenge the eyewitness

testimony of Kenya Wilson) or in his first post-conviction

petition (the fact that appellate counsel only raised a

forfeited issue). People v. Piper, 651 N.E. 2d 739, 741 (Ill.

App. Ct. 1995).

While the orders disposing of Woods’ third post-con-

viction petition do not explicitly invoke waiver or

federal law as a basis for denial, the sole ground cited

by his appellate counsel in the motion to withdraw was

that she “could not argue why petitioner should be al-

lowed to present these claims, when they should have

been raised in his original post-conviction petition, and

therefore he may not seek relief in a successive peti-

tion.” Nothing in the appellate court’s order discusses

how Woods could escape the procedural bar for it to

reach the merits and deny his newly presented but previ-

ously available claims. People v. Pitsonbarger, 793 N.E.2d

609, 621-23 (Ill. 2002); see also Anderson, 874 N.E.2d at 289.

To the contrary, those orders say nothing more than that

the petition is denied. Ylst v. Nunnemaker, 501 U.S. 797, 804

(1991) (“The essence of unexplained orders is that they

say nothing.”). And nothing plus Woods’ speculation

of the orders’ import does not mean that the disposition

No. 08-1234 15

fairly appears to rest on or to be interwoven with

federal law.

On this record, there is no “good reason to question

whether there is an independent and adequate state

ground for the [appellate court’s] decision.” Coleman, 501

U.S. at 739. Rather, the underlying Finley motion and the

history of this case, including the fact that Woods’ second

petition was denied on waiver grounds, and the circum-

stances surrounding the denial of Woods’ third post-

conviction petition convinces us that the state courts did

not address and reject the merits of Woods’ federal claims

in his third post-conviction petition. Therefore, we find

that Wood’s claims of ineffective assistance of appellate

counsel and ineffective assistance of trial counsel for

failing to challenge Kenya’s testimony were not denied

on their merits but were rejected on the independent

and adequate state law ground of waiver.

The state court’s reliance on an independent and ade-

quate state law ground in denying a claim bars our

review. Smith, 565 F.3d at 351; Sturgeon, 552 F.3d at 611

(noting waiver constitutes an adequate and independent

state ground). To escape this procedural bar, Woods

argues that our failure to entertain the merits of his

claims will result in a miscarriage of justice, namely the

conviction of an innocent man: Woods claims that he is

actually innocent of killing Omar Wilson. But a defendant

who asserts actual innocence as a reason to excuse a

procedural default must do more than invoke those

words, he “must demonstrate [his] innocence.” Buie v.

McAdory, 341 F.3d 623, 626-27 (7th Cir. 2003). Indeed,

16 No. 08-1234

he “comes before the habeas court with a strong—and

in the vast majority of the cases conclusive—presumption

of guilt.” Schlup v. Delo, 513 U.S. 298, 326, n.42 (1995). To

rebut this presumption, Woods must make a credible

claim, supported by new, reliable evidence of his inno-

cence. Id. at 324. He must establish that “in light of the

new evidence, no juror, acting reasonably, would have

voted to find him guilty beyond a reasonable doubt.” Id.

at 329.

This is not such a case. Woods’ “new” evidence is the

affidavits of his family members. All of the affidavits

were prepared years after the murder; Woods’ mother

and brother-in-law’s were, in fact, prepared seven

years after the murder. And they all note with incredible

particularity the most pedestrian details of that night:

the fact that they watched Martin, ate White Castle, and

Woods was told to go to bed at a certain time and the

time he finally complied. Such recall would be under-

standable if the night stood out as being particularly

remarkable and traumatic. But here, for the Woods

family at least, the night was like any other: it was not

until ten days later that Woods was arrested for the

murder.

Weighed against the eyewitness testimony of Kenya

Wilson, these affidavits do not establish that no “reason-

able factfinder would have found the applicant guilty of

the underlying offense; it is black letter law that testimony

of a single eyewitness suffices for conviction even if

20 bishops testify that the eyewitness is a liar.” Hayes v.

Battaglia, 403 F.3d 935, 938 (7th Cir. 2005) (internal quota-

No. 08-1234 17

tion marks omitted). Therefore, we find that Woods cannot

escape the procedural default of his first two claims.

B.

Woods has preserved one claim for review: whether

his trial counsel was constitutionally ineffective for

failing to call his brother Harold Woods as an alibi wit-

ness. This claim was presented in his first post-conviction

petition to the Illinois Appellate Court, which rejected the

claim. Our review is limited to whether that court’s denial

of his claim was an unreasonable application of clearly

established federal law. 28 U.S.C. § 2254(d). This claim is a

mixed question of law and fact, and we review the district

court’s denial de novo. Allen v. Chandler, 555 F.3d 596, 600

(7th Cir. 2009).

A state court’s decision is “contrary to” clearly estab-

lished federal law “if the state court applies a rule

different from the governing law set forth in [Supreme

Court] cases, or if it decides a case differently than [the

Supreme Court has] done on a set of materially indistin-

guishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). And

a state court’s decision is an “unreasonable application” of

clearly established federal law if it correctly identifies the

governing legal principle “but unreasonably applies it to

the facts of the particular case.” Id. In other words, Woods

must show that the appellate court’s decision was “so

erroneous as to be objectively unreasonable.” Badelle v.

Correll, 452 F.3d 648, 654 (7th Cir. 2006); Raygoza v. Hulick,

474 F.3d 958, 963 (7th Cir. 2007) (noting the decision

18 No. 08-1234

must fall “well outside the boundaries of permissible

differences of opinion.” (quotation omitted)).

Here, the appellate court correctly articulated the

Strickland standard: Woods must demonstrate (1) his

counsel’s performance fell below an objective standard

of reasonableness and (2) there is a reasonable proba-

bility that but for his counsel’s unprofessional errors, the

result of the proceeding would have been different. In

addressing whether Woods’ claim could meet Strickland’s

prejudice prong, the court determined that Harold

Woods’ affidavit only established that he did not recall

Woods leaving the house after 9:15 the night of the

murder. The court held that this statement was incon-

clusive and weighed very little against the eyewitnesses

testimony and identifications by Kenya and Terrell. In

affirming the trial court’s denial of Woods’ petition, the

appellate court ultimately held that Harold’s testimony

“would not likely have changed the outcome of [the]

trial.” 3

3

While that is not the Strickland standard, the appellate court’s

reference to it in the conclusion was made after it had weighed

Harold’s affidavit against the eyewitness identifications of

Kenya and Terrell at trial. The proper statement of Strickland’s

prejudice test appeared in the preceding paragraph. We have

noted numerous times that there is no error when a court has

correctly noted the Strickland standard and then used an

incorrect shorthand version when stating its conclusion. E.g.,

Stanley v. Bartley, 465 F.3d 810, 813 (7th Cir. 2006) (“Having

expounded the well-known standard correctly on the

(continued...)

No. 08-1234 19

Applying Strickland to the facts of the case, the appellate

court’s holding on this matter lies well within the bound-

aries of permissible differences of opinion. Johnson v.

Hulett, 574 F.3d 428, 434 (7th Cir. 2009). As a general

matter, alibi witnesses should be investigated and called,

if available. Raygoza, 474 F.3d at 964; Stanley, 465 F.3d at

813-14. However, the appellate court did not act unrea-

sonably in determining that Harold’s alibi testimony

did not create a reasonable probability of a different

outcome. At trial, the judge could have believed that

Harold didn’t recall Woods leaving the night of the

murder and still found that Woods committed the

murder: Harold’s testimony would not have conclusively

established that Woods was not at Omar’s Hazel Crest

home that night, and at trial, two eyewitnesses is very

strong evidence of guilt. Therefore, the appellate court’s

decision is a reasonable application of the Strickland

standard to the facts of Woods’ case; accordingly, the

district court properly denied Woods’ § 2254 petition.

III.

Based on our review of the facts and circumstances

surrounding the denial of Woods’ third post-conviction

petition, it is clear that the state court’s decision does not

fairly appear to either rest on or to be interwoven with

3

(...continued)

previous page of its opinion, it is more likely that the court

stated its conclusion imprecisely than that it applied a dif-

ferent standard.” (citation omitted)).

20 No. 08-1234

federal law. Thus, Woods’ claims that his appellate

counsel was ineffective for raising only a forfeited issue

and that his trial counsel was ineffective for failing to

challenge Kenya Wilson’s ability to view the crime are

procedurally defaulted. Additionally, Woods has not

shown that failure to consider these claims will result in a

miscarriage of justice; therefore, we are precluded from

considering the merits of his claims. Furthermore, the

Illinois Appellate Court’s rejection of Woods’ preserved

ineffective assistance of counsel claim related to his trial

counsel’s failure to call Harold Woods as an alibi witness

was not contrary to or an unreasonable application of

clearly established federal law. Accordingly, the district

court properly denied Woods habeas relief. We A FFIRM .

12-9-09