O'Sullivan, William v. Boerckel, Darren (06/07/1999)

By: Sylvia Borowski, Medill News Service

Questions presented

May an individual who is in custody pursuant to a state criminal conviction pursue claims in a federal habeas petition if those claims were not raised on direct appeal in state court?

Brief

""When we're done here, we'll take you to see your girlfriend,"" a Montgomery County, Illinois, police officer said to Darren Boerckel as he was being interrogated in connection with the alleged rape of an 87-year-old woman.

Two hours later, Boerckel allegedly confessed to breaking into Mary Draper's house and raping her on the night of Aug. 23, 1976. At the time,Boerckel was a 17-year-old boy with an IQ of approximately 70 and a long- standing reading defect.

More than 20 years later, the 40-year-old Boerckel says he is not guilty and the issues not raised in his state court appeal should have been taken into account in his federal habeas corpus petition. He seeks a new trial to prove his innocence.

On the sunny afternoon of Aug. 31, 1976, Boerckel was standing on a street corner waiting for his girlfriend when an officer drove up and asked him to come to the station.

The police already had questioned other men, but they thought Boerckel was the man guilty of the crime.

At the police station, Boerckel maintained his innocence and told the police that he saw two men near the victim's house on the night of Aug. 23.

But after two hours of questioning, the police drew up a confession, which Boerckel read with the reading level of a first-grader and signed -- the officers promised that he would be able to see his girlfriend after he cooperated.

Boerckel was charged with rape, burglary and aggravated battery.

Before trial, the officers discovered semen, but they were unable to use DNA tests at the time. The officers also found Type O blood near the victim. Boerckel has Type O blood, sharing it with about 40 percent of the U.S. population.

Boerckel was convicted in 1977. He was sentenced to concurrent terms of 20 to 60 years for rape, five to 15 years for burglary and two to six years for aggravated battery.

Boerckel appealed all the way to the U.S. Supreme Court, where his petition for certiorari was denied.

While imprisoned at the Western Illinois Correctional Center in Mt. Sterling in 1994, Boerckel filed a petition in U.S. District Court in Springfield, Ill. for a writ of habeas corpus against the warden, William D. O'Sullivan.

In 1995, a federal judge rejected Boerckel's request for a hearing because some of the issues were not raised in his petition to the Illinois Supreme Court. In the meantime, witnesses identified two men who acknowledged responsibility for the rape. One of the men was Boerckel's cousin.

The 7th Circuit Court of Appeals considered three issues: Whether Boerckel knowingly and intelligently waived his Miranda rights; whether his confession was involuntary; and whether the evidence against him was insufficient to support a guilty verdict

On Feb. 9, 1998, the appeals court unanimously held that Boerckels decision not to include all of the claims on his appeal to the Illinois Supreme Court does not limit him from filing a federal habeas petition.

""Requiring petitioners to argue all of their claims to the state supreme court would turn federalism on its head. If a state has chosen a system that asks petitioners to be selective in deciding which claims to raise in a petition for leave to appeal to the states highest court, we seriously question why this Court should require the petitioner to raise all claims to the states highest court if he hopes to request habeas review,"" Judge Michael Kanne wrote for a unanimous appeals panel.

The U.S. Supreme Court granted certiorari on Nov. 16, 1998, allowed Boerckel to proceed in forma pauperis, and limited review to the one question above.

On June 7, 1999, the Court ruled against Boerckel, holding that in order to satisfy the exhaustion requirement, he had to present his claims to a state supreme court in a petition for discretionary review because the review was part of the state's ordinary appellate review procedure.

Writing for a 6-3 majority, Justice Sandra Day O'Connor concluded that although a state prisoner has no right to review in the Illinois Supreme Court, he does have a ""right...to raise"" his claims before that court.As to Boerckel, because the time for filing a petition for leave to appeal to the Illinois Supreme Court had long past, Boerckel's failure to presentthree of his federal habeas claims to that court in a timely fashion resulted in a procedural default of those claims.

Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer dissented.