The 7th Circuit Court of Appeals has affirmed the denial of a man’s petition for habeas relief after finding he waived his argument of ineffective assistance of counsel by not raising that argument in his habeas petition.
After being convicted of capital murder, rape, criminal confinement and burglary, a judge imposed a sentence of death on Chijioke B. Ben-Yisrayl. However, if the sentence did not hold up on appeal, the judge also imposed an alternative sentence of 60 years and an aggregate term of 90 years on the remaining counts.
Ben-Yisrayl’s death sentence was litigated on direct review and post-conviction proceedings for several years in Indiana trial and appellate courts before prosecutors withdrew their request for the death penalty and instead agreed to the 60-year alternative. However, the 60-year sentence also was reversed on appeal, but on resentencing, the trial court judge reimposed the same sentence.
Ben-Yisrayl’s 60-year sentence was affirmed on appeal the second time, but other post-conviction proceedings and other issues were ongoing. Meanwhile, Ben-Yisrayl began pursuing habeas relief in the U.S. District Court for the Southern District of Indiana, but Judge Tanya Walton Pratt stayed the proceedings while his state post-conviction review continued.
When the stay was lifted, the state of Indiana responded to Ben-Yisrayl’s habeas petition, but he failed to file his reply within the allotted time. Pratt ultimately denied relief without an evidentiary hearing and also denied Ben-Yisrayl’s motion to alter or amend the judgment.
On appeal in Chijioke B. Ben-Yisrayl v. Ron Neal, 16-1013, Ben-Yisrayl argued his resentencing counsel “was constitutionally ineffective for submitting a meager two-page sentencing memorandum and for failing to challenge the prosecution’s destruction of evidence.” However, 7th Circuit Court of Appeals Judge Diane Sykes wrote in a Monday opinion Ben-Yisrayl did not raise an ineffective counsel argument in his habeas petition, except for a brief mention in his Rule 59(e) motion to alter or amend judgment.
“The fleeting reference to this claim in Ben-Yisrayl’s Rule 59(e) motion cannot save it for appellate review; it is equally well-settled that a Rule 59(e) motion is not an appropriate vehicle for advancing ‘arguments or theories that could and should have been made before the district court rendered judgment,’” Sykes wrote.
Thus, Ben-Yisrayl’s argument on appeal was waived and the judgment of the district court was affirmed.