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UNITED STATES EX REL. REESE v. PETERS

May 10, 1989

UNITED STATES OF AMERICA ex rel. JOHN L. REESE, Petitioner,
v.
HOWARD PETERS, Respondent


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE:

 Petitioner John L. Reese seeks habeas relief pursuant to 28 U.S.C. ยง 2254 from his armed robbery conviction and sentence of twenty-five years incarceration. For the reasons stated herein, the petition is denied.

 I

 Procedural History

 On May 21, 1980, a jury in the Circuit Court of Cook County convicted Reese of the July 16, 1979 armed robbery of the O&D White Owl Restaurant. The state's main witness at trial was Willie Thomas, owner of the White Owl, who testified that he was in the restaurant that day when Reese and another armed man stole money from the cash register. Thomas identified Reese before trial and in court from mug shots and testified that he knew Reese from the neighborhood and that they attended grammar school together. A waitress additionally identified Reese as one of the robbers. Reese's defense was that at the time of the armed robbery he was at the Ingalls Memorial Hospital, sixteen miles from the White Owl, visiting his son, Tracy Butler, who had been in a car accident earlier that day.

 On June 18, 1980, Reese was convicted after a jury trial and was sentenced to twenty-five years imprisonment. He appealed the conviction, arguing in a brief filed by his attorney that his arrest and the seizure of evidence was unlawful, the state presented insufficient evidence to rebut the alibi defense, and the trial in a repeat-offender courtroom raised a presumption of guilt. Reese filed a pro se brief raising two additional challenges: a not guilty finding for the co-defendant should have led to a directed verdict for Reese and trial counsel should have impeached Thomas with evidence that he did not attend grammar school with Reese. The Appellate Court affirmed the conviction in an unpublished opinion addressing all but the grammar school issue. People v. Reese, 102 Ill. App. 3d 1200, 434 N.E.2d 1201 (1st Dist. 1981). The Illinois Supreme Court denied leave to appeal.

 Thereafter began a series of federal habeas and state post-conviction petitions. On April 30, 1982, Reese filed a petition for federal habeas relief in the Northern District of Illinois. Reese raised the same issues argued on direct appeal and added a claim that the state knowingly used perjured testimony. In order to avoid dismissal for failure to exhaust state court remedies, Reese amended the petition to exclude the perjured testimony claim. District Judge Thomas R. McMillen granted the state's motion for summary judgment on all claims. The Seventh Circuit affirmed, holding that the Fourth Amendment claim was not cognizable in habeas proceedings, the state's evidence was sufficient to convict, and the use of a recidivist court did not prejudice Reese's defense. United States ex rel. Reese v. Fairman, 801 F.2d 275 (7th Cir. 1986), cert. denied 479 U.S. 1096, 107 S. Ct. 1314, 94 L. Ed. 2d 167 (1987).

 On October 12, 1982, while litigating the habeas petition in federal court, Reese filed a post-conviction petition pursuant to Ill.Rev.Stat. ch. 38, para. 122-1 et seq., charging violations of the Fourth Amendment, prosecutorial misconduct, a prejudiced tribunal, the knowing use of perjured testimony, the systematic exclusion of blacks from the jury, the state's failure to proffer exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and ineffective assistance of trial counsel based on the fact that Charles K. Snowden, his attorney, was not listed on the Master Roll of attorneys licensed to practice law in Illinois. *fn1" As to the last claim, the evidence before the court established that the Attorney Registration and Disciplinary Commission removed Snowden from the Master Roll for failing to pay the 1980 registration fee and later reinstated him when he paid the fee and penalties. On February 27, 1986, the state trial court dismissed the petition without a hearing. On appeal, Reese abandoned all claims except the ineffective assistance claim. The Appellate Court affirmed, holding that an attorney's performance is not per se unconstitutionally deficient when state authorities have temporarily suspended the attorney for failure to remit the annual registration fee. People v. Reese, No. 86-629 (1st Dist. Aug. 18, 1988).

 On October 5, 1987, during the pendency of his post-conviction petition, Reese filed his second federal habeas petition, setting forth the perjured testimony, ineffective trial counsel, and Brady violation claims raised earlier. Reese added a claim of ineffective appellate counsel. On account of the pending proceedings in state court, we dismissed the petition without prejudice for failure to exhaust state court remedies. Reese finished the state post-conviction proceedings and filed this habeas petition raising the following claims: assessing the merits of the post-conviction petition without an evidentiary hearing denied Reese his right to due process, trial counsel's performance was unconstitutionally deficient by virtue of his having been stricken from the attorney rolls, failing to impeach Thomas as to his grammar school and a host of other alleged acts of incompetence, *fn2" the Brady violation, the knowing use of perjured testimony at trial, and ineffective appellate and post-conviction counsel.

 II

 Abuse of Writ

 Respondent initially contends in opposition to the petition that dismissal is warranted under Section 2254 Rule 9(b) which provides:

 
A second or successive petition may be dismissed . . . if new and different grounds are alleged [and] the judge finds that the failure of the petitioner to assert those grounds in ...

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