                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-4342
JERRY WARD,
                                             Petitioner-Appellant,
                                 v.

CHARLES L. HINSLEY,
                                             Respondent-Appellee.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 99 C 7527—Robert W. Gettleman, Judge.
                          ____________
       ARGUED MAY 18, 2004—DECIDED JULY 28, 2004
                     ____________




  Before FLAUM, Chief Judge, and KANNE and ROVNER,
Circuit Judges.
  FLAUM, Chief Judge. Petitioner-appellant Jerry Ward
appeals from a judgment of the United States District Court
for the Northern District of Illinois denying his petition for a
writ of habeas corpus brought under 28 U.S.C. § 2254. His
appeal presents the question of whether a federal habeas
court may review procedurally defaulted claims of alleged
structural errors when the petitioner has not argued that
the procedural default is excused by cause and prejudice or
that a fundamental miscarriage of justice will result if the
2                                                No. 03-4342

claims are not addressed. We hold that a federal habeas
court may not review such claims, and therefore we affirm
the district court’s denial of Ward’s petition for a writ of
habeas corpus.


                      I. Background
  Ward has not rebutted the state court’s factual determi-
nations. Therefore, we presume the state court’s recitation
of the facts to be correct. 28 U.S.C. § 2254(e)(1), Mahaffey v.
Schomig, 294 F.3d 907, 915 (7th Cir. 2002).
  Ward was indicted by a grand jury for the shooting
murder of Bruce Herd, the bludgeoning murder of Pamela
Williams, the armed robbery of Bruce Herd, and possession
of a stolen motor vehicle.
  At Ward’s jury trial, police officers Joseph Scardino, James
Peck, and James Summerville testified that they responded to
a call of a man being dumped from a car on February 15,
1986. At approximately 9:35 p.m., they found a black male
lying in the snow with a gunshot wound to the skull. The
body was later identified as Bruce Herd.
  Officer Scardino and his partner left the scene to drive
around the area. They were alerted to the description of the
suspect vehicle. Shortly thereafter, they found a car that
matched the description and ultimately arrested Ward, the
driver of the car. From the front seat of the car, the officers
recovered a .38-caliber revolver and two spent cartridges.
Officer Scardino testified that he saw a “red substance in the
form of dots” as well as a “white fleshy material or matter”
on the car and on Ward’s face and clothes.
  After Ward had been handcuffed, Officers Peck and
Summerville joined Officer Scardino. Officers Peck and
Summerville testified that they saw a red substance and a
“white flesh” substance on Ward’s face and on the front of
his clothing. They saw the same red and white materials on
No. 03-4342                                                 3

the trunk and right rear quarter panel of the car. Ward was
arrested and transported to the police station. At the
station, additional detectives noted that red splatters ap-
peared on Ward’s outer jacket, trousers, shoes, and under-
shorts.
  Shortly after Ward’s arrest, officers received an additional
notification about a man shot. Officers ultimately found the
second victim, Pamela Williams, lying in the snow. An
officer testified that a tire jack and hat were lying in the
snow near the body.
  An evidence technician collected the physical evidence
from the case, including plastic cups and soda cans recov-
ered from the car that Ward had been driving, and numer-
ous fingerprints, and blood samples found at the crime
scenes. The technician also took many photographs of the
crime scenes. A serologist for the crime lab, Pamela Fish,
analyzed the samples taken from Ward’s clothing, the tire
jack, the garage door, car trunk lid, and car right fender.
She testified that the bloodstains were consistent with
Williams’ blood and inconsistent with Ward’s and Herd’s
blood. From the shot residue analysis and swabs taken from
Ward’s hands, a crime lab chemist concluded that the evi-
dence was consistent with Ward having recently discharged a
handgun.
  The State also presented the report of a firearm expert.
That expert had concluded that the bullet that had killed
Herd had been fired from a .38-caliber revolver like the one
recovered from the car Ward had been driving. A latent
print examiner conducted an exam of the fingerprints taken
from the exterior of the car and from the items recovered from
the car, finding that a print from the exterior passenger
window and a print from one of the plastic cups recovered
from the car were made by Ward. Williams matched a print
from the soda can found in the car, and Herd matched a print
from a plastic cup. No prints were recovered from the gun
or tire iron.
4                                               No. 03-4342

  A medical examiner performed the autopsies on the vic-
tims, concluding that Herd was killed by a gunshot wound
to the back of the head, and that Williams died from
injuries due to beating. The examiner discovered forty-six
external injuries and eleven internal injuries to Williams
and noted that the beating would have caused the emission
of brain matter.
  Other testimony at trial included that of Curtis Rollins,
who testified that while he was in his home at 9:20 p.m., he
heard two gunshots. He looked out the window but could
not see anything because a garage blocked his view. At 11
p.m. he went to the store and on his return he saw a body
laying in front of a garage in the alley.
  After the State rested, defense counsel called Detective
Warren Gavin. Gavin testified that during his February 17,
1986 interview of Rollins, Rollins had not stated that he
had heard two shots fired at 9:20 p.m. on February 15.
Defense counsel attempted to introduce a statement that
Ward had made to the police about how he had acquired the
car, but the judge ruled the statement inadmissible.
  On the next day of trial, defense counsel requested a con-
tinuance for the purpose of locating five additional wit-
nesses. The defense proferred that three of the witnesses
would testify to Ward’s alibi; a fourth would testify to his
recollection of seeing two black men, neither of whom was
Ward, remove a body from the car and drive away; the fifth
would testify that he saw two black men remove a body from
a car and drive away. The court granted a lunch recess to
locate the witnesses, but the defense was able to locate only
one witness during the allotted time. Ward decided not to
call that witness, and he rested his case.
  The jury returned guilty verdicts on the charges of mur-
der, armed robbery, and possession of a stolen motor ve-
hicle. Ward waived his right to sentencing by the jury. The
trial judge sentenced him to death for each of the murders,
No. 03-4342                                                  5

in addition to a thirty-year term of imprisonment for the
armed robbery conviction and a three-year term of impris-
onment for the possession of a motor vehicle conviction, the
sentences to run concurrently.
  The Illinois Supreme Court affirmed Ward’s appeal of his
convictions and sentences on direct appeal. People v. Ward,
154 Ill.2d 272 (Ill. 1992). The Illinois Supreme Court later
affirmed the dismissal of Ward’s post-conviction petition.
People v. Ward, 187 Ill.2d 249 (Ill. 1999).
  Ward filed a petition for a writ of habeas corpus in the
district court pursuant to 28 U.S.C. § 2254. While the
petition was pending, former Illinois Governor George Ryan
commuted Ward’s sentence to natural life in prison without
possibility of parole. Ward then filed a second amended
petition for a writ of habeas corpus in the district court. The
district court denied all of the claims in the petition.
Regarding the claims that Ward advances in this appeal,
the district court found that they were procedurally de-
faulted in the state courts. Because Ward did not attempt
to overcome the procedural default by arguing cause for
noncompliance with the state procedural rule and actual
prejudice arising from the alleged constitutional violations,
or that a fundamental miscarriage of justice would occur if
the district court did not address the merits of the claims,
the district court concluded that the claims were not subject
to review in a § 2254 petition. United States ex rel. Ward v.
McAdory, No. 99 C 7527, 2003 WL 22872121 (N.D. Ill. Dec.
3, 2003) (order dismissing habeas corpus petition). The
district court granted a certificate of appealability on the
sole issue of whether Edwards v. Carpenter, 529 U.S. 446
(2000) requires a petitioner to establish cause and prejudice
with respect to procedurally defaulted claims of alleged ex
parte communications, perjured testimony, and Brady
violations, in order to obtain review in the habeas court.
6                                                No. 03-4342

                      II. Discussion
 We review the district court’s findings of law de novo.
Walton v. Briley, 361 F.3d 431, 432 (7th Cir. 2004).
  In his petition for a writ of habeas corpus, Ward claimed
that his custody was in violation of the Constitution of the
United States because his trial judge had engaged in two ex
parte communications, the State had knowingly presented
perjured testimony, and the State had failed to tender an
exculpatory photograph of Ward taken shortly after his
arrest. Ward argued that the combined effect of these three
errors constituted “a structural defect in the constitution of
the trial mechanism” mandating automatic reversal. See
Arizona v. Fulimante, 499 U.S. 279, 309 (1991). Ward
conceded before the district court that he had not raised any
of these arguments before the Illinois courts and that they
are therefore procedurally defaulted. Rather than argue
that the procedural default was excusable due to cause and
prejudice, or that the failure to review the federal claim
would result in a fundamental miscarriage of justice, see
Edwards v. Carpenter, 529 U.S. 446, 451 (2000), Ward argued
that he need not satisfy those requirements due to the
structural nature of his claims. In Ward’s view, his claims
invoke constitutional protections so basic that they are
reviewable by the federal habeas court, regardless of his
procedural default of those claims in the Illinois courts.
   Of the three trial errors that Ward contends cumulated to
form a structural error in the mechanism of his trial, the
first is in regards to the decisions of his trial judge to
engage in two ex parte conversations. The first ex parte
conversation occurred during voir dire, when the prosecution
wished to exclude a potential juror because of her views on
the death penalty, and the defense wished to exclude a
different potential juror because he had stated that busi-
ness matters might distract him during the trial. The trial
judge examined the two prospective jurors outside of the
No. 03-4342                                                 7

presence of both counsel to determine whether these jurors
should be dismissed for cause or by way of peremptory
challenge.
  A second ex parte conversation occurred on the fifth day
of trial, shortly after the defense requested a continuance
for the purpose of locating witnesses to support Ward’s alibi.
In order to evaluate the request, the trial judge examined the
statements that the proffered defense witnesses had made
to the police during the investigation of the crime. In cham-
bers, outside of the presence of counsel, the trial judge
consulted with the police investigator who had taken down
the statements. Ultimately, the trial judge concluded that
the prospective witnesses would not provide relevant
testimony and allowed only the ninety-minute lunch break
for the defense to find the witnesses. Ward contends that
the multiple ex parte conversations deprived him of the
right to be personally present and to be represented by
counsel at all critical stages of the proceedings. See United
States v. Wade, 388 U.S. 218, 224-25 (1987).
  Next, Ward alleges that his conviction is based on the
perjured testimony of Officer Summerville, crime lab serolo-
gist Pamela Fish, and witness Curtis Rollins. Ward claims
that Officer Summerville lied under oath when he stated
that he saw white fleshy material on Ward and Ward’s car,
and he presents three arguments in support of this asser-
tion. First, Ward notes that no photographs of the alleged
white fleshy matter were taken by the evidence technician.
Secondly, Ward mentions that Summerville’s testimony has
been discredited repeatedly by the Illinois courts in various
unrelated cases. Lastly, Ward refers to the judgment
entered against Summerville in state court, convicting him
for abusing his official capacity. Regarding Pamela Fish’s
testimony, Ward cites to inconsistencies in her official
records to indicate the possibility of perjury. Lastly, Ward
submitted an affidavit signed by Rollins attesting to the fact
that he perjured himself at trial when he testified that he
saw Williams’ body in the alley.
8                                                No. 03-4342

  Finally, Ward argues that the State failed to tender a
photograph that detectives took of him shortly after his
arrest. He believes that this photo would indicate that he
did not have any “white fleshy material” or “brain matter”
on his person at the time that he was arrested. Because he
believes that the photograph would have aided his defense,
he argues that the State was bound by Brady v. Maryland,
373 U.S. 83 (1963) to furnish him with a copy of it. Under
Brady, “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punish-
ment, irrespective of the good faith or bad faith of the
prosecution.” Id. at 87.
  On appeal, Ward concedes that he procedurally defaulted
the claims arising from the ex parte conversations and the
State’s alleged knowing presentation of perjured testimony.
However, notwithstanding Ward’s failure to present the Brady
claim to the Illinois courts, Ward argues that the claim is not
procedurally defaulted because his counsel was unaware of
the existence of the photograph during Ward’s proceedings
in state court. See Crivens v. Roth, 172 F.3d 991, 995-96
(7th Cir. 1999) (stating that procedural default of Brady
claim is excusable when the petitioner was unable to pre-
sent the claim to the state courts “because of the state’s mis-
conduct”). The State counters that, during the pendency of
Ward’s case in state court, Ward’s counsel had access to the
Chicago police department’s progress reports from the
murder investigation. Those reports indicated the existence of
the photograph to which Ward refers, yet Ward’s counsel
did not request the photograph at that time. Ward has not
rebutted the State’s allegations regarding the availability
and completeness of the progress reports, nor has he other-
wise persuaded us that the State suppressed the existence
of the photograph, or the photograph itself. We therefore
conclude that Ward’s Crivens argument is unavailing. Like
Ward’s claims arising from the ex parte conversations and
No. 03-4342                                                    9

allegedly perjured testimony, Ward’s Brady claim was
procedurally defaulted in state court.
  Citing Coleman v. Thompson, 501 U.S. 722, 730 (1991), the
Supreme Court reiterated in Edwards v. Carpenter, 529 U.S.
446, 451 (2000) that a prisoner must “demonstrate cause for
his state-court default of any federal claim, and prejudice
therefrom, before the federal habeas court will consider the
merits of that claim.” (Emphasis in original). Edwards rec-
ognized only one exception to the cause and prejudice rule:
only in “the circumstance in which the habeas petitioner
can demonstrate a sufficient probability that our failure to
review his federal claim will result in a fundamental mis-
carriage of justice” may a federal habeas court review a
procedurally defaulted claim that has not been excused by
a demonstration of cause and prejudice. Edwards, 529 U.S.
at 451, citing Coleman, 501 U.S. at 732. The Supreme Court
has described the “class of cases . . . implicating a fundamental
miscarriage of justice” as the “extraordinary instances when a
constitutional violation probably has caused the conviction
of one innocent of the crime.” McCleskey v. Zant , 499 U.S.
467, 494 (1991). In Coleman, the Supreme Court did not
excuse claims of structural error from compliance with the
procedural default doctrine. See Coleman, 501 U.S. at 750;
Hatcher v. Hopkins, 256 F.3d 761, 764 (8th Cir. 2001).
  Despite Edwards, Ward argues that he need not excuse
the procedural default of his claims arising from the ex
parte conversations, the allegedly perjured testimony, and
the alleged Brady violation because the cumulative effect of
the errors calls into question the reliability of the entire
trial. Ward maintains that the collective errors constitute
a structural error. Structural defects implicate the fairness
and reliability of the entire trial process and require auto-
matic reversal. See Neder v. United States, 527 U.S. 1, 8-9
(1999); Arizona v. Fulimante, 499 U.S. 297, 309 (1991). Errors
of this magnitude include “the complete denial of counsel,
a biased judge, racial discrimination in the selection of the
10                                               No. 03-4342

grand jury, the denial of self-representation, the denial of
a public trial, and a defective reasonable doubt instruction.”
United States v. Harbin, 250 F.3d 532, 543 (7th Cir. 2001)
(citing, respectively, Gideon v. Wainwright, 372 U.S. 335
(1963); Tumey v. Ohio, 273 U.S. 510 (1927); Vasquez v. Hillery,
474 U.S. 254 (1986); McKaskle v. Wiggins, 465 U.S. 168 (1984);
Waller v. Georgia, 467 U.S. 39, (1984); and Sullivan v.
Louisiana, 508 U.S. 275 (1993)). In Ward’s view, the right to
a structurally sound trial is one that is not subject to waiver
and therefore cannot be subject to procedural default. Ward
argues that Edwards did not intend to remove procedurally
defaulted claims of structural error from review by the
federal habeas court.
  We do not accept Ward’s suggestion that a federal habeas
court may review a prisoner’s federal constitutional claims,
notwithstanding the prisoner’s failure to raise the claims
before the state court, so long as the claimed right rises to
the magnitude of a structural error. Contrary to Ward’s
assumption, the procedural default doctrine does not seek
to distinguish claims of trial error from claims of structural
error. Rather, the doctrine serves to distinguish claims that
were raised before the state courts from claims that the
state courts had no opportunity to consider. The procedural
default doctrine is “grounded in concerns of comity and
federalism.” Coleman, 501 U.S. at 730. These concerns are
in no way diminished if the federal claim raised before the
federal habeas court is one of structural error. Under
existing Supreme Court jurisprudence, concerns of comity
and federalism are set aside at habeas review only when
the procedural default is excusable due to cause and
prejudice, or when a petitioner has claimed a miscarriage of
justice by establishing that “a constitutional violation has
probably resulted in the conviction of one who is actually
innocent.” Schlup v. Delo, 513 U.S. 298, 322 (1995) quoting
Murray v. Carrier, 477 U.S. 478, 496 (1986).
No. 03-4342                                                  11

  State courts have “initial responsibility for vindicating
constitutional rights” in state criminal trials. Engle v. Isaac,
456 U.S. 107, 128 (1982). Review by the federal habeas
court of constitutional claims that were not brought before
the state court detracts from the significance of the trial
and from the role of the state courts in enforcing federal
rights. If prisoners were permitted to bring claims of struc-
tural error to the federal habeas court in the first instance,
then criminal defendants would have little incentive to make
a claim of right during state court proceedings. Defense
lawyers would be prone to “sandbagging,” that is, to “tak-
[ing] their chances on a verdict of not guilty in a state trial
court with the intent to raise their constitutional claims
in a federal habeas court if their initial gamble [did] . . . not
pay off.” Wainwright v. Sykes, 433 U.S. 72, 89 (1977).
Because of the passage of time between the original trial
and the eventual litigation of the new claim before the
federal habeas court, this gamble would be unfair to the
State; by the time a writ of habeas corpus is granted, the
probability of retrial is unlikely in light of “erosion of
memory” and “dispersion of witnesses.” Engle, 456 U.S. at
127. Additionally, Ward’s suggested rule would sanction the
regular circumvention of state procedural rules. See id. at
128-29. The requirement that a prisoner demonstrate
actual innocence, or cause for failure to adhere to state
procedural rules and actual prejudice resulting from the
alleged constitutional violation, prevents sandbagging and
respects the “States’s sovereign power to punish offenders
and their good-faith attempts to honor constitutional
rights.” Id. at 128.
  Even if the cumulative effect of Ward’s claims arising
from the ex parte conversations, the alleged perjury, and
the alleged Brady violation rose to the level of a structural
violation—an issue this Court need not reach—the struc-
tural nature of the claim would not excuse Ward’s failure to
present the claims to the State courts. Rather, had Ward
12                                              No. 03-4342

argued cause for the failure to adhere to the State’s pro-
cedural rules and demonstrated any actual prejudice resulting
from the alleged constitutional violation, the appropriate
moment to consider the nature of Ward’s constitutional
claim would have been during the evaluation of those argu-
ments. See Engle, 456 U.S. at 129. As Ward has not argued
cause and prejudice or that a fundamental miscarriage of
justice would occur if his claims were not addressed, the
district court was correct to find the claims barred by the
procedural default doctrine.


                     III. Conclusion
  For the foregoing reasons, 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-02-C-0072—7-28-04
