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UNITED STATES EX REL. MOSES v. GILMORE

February 17, 1995

UNITED STATES OF AMERICA ex rel. JOSEPH MOSES, Petitioner,
v.
JERRY D. GILMORE, Warden, Respondent. 1



The opinion of the court was delivered by: JAMES H. ALESIA

 Joseph Moses, an Illinois state prisoner, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner Moses presents five reasons why a writ of habeas corpus should issue. Petitioner argues that: (1) he was denied his right to due process when the trial court sentenced him to consecutive periods of imprisonment; (2) he was denied his right to due process when the trial court failed to admonish him on the use and effect of consecutive sentences, and on the sentencing possibilities following a probation violation; (3) his Eighth Amendment rights were violated when the trial court, with knowledge of petitioner's drug addiction, imposed consecutive sentences; (4) his Sixth Amendment right to effective assistance of counsel was violated at all stages in the proceedings and, specifically, regarding the motion to withdraw his guilty plea; and (5) he was denied his right to due process when the trial court dismissed his post-conviction petition.

 Of the five issues raised by petitioner, issues 3, 4 and 5 were first raised in the petition for habeas relief. Issue 2 had been raised in the petition for post-conviction relief. Only issue 1 previously had been raised in petitioner's direct appeal.

 For the procedural and substantive reasons set forth below, this court finds no merit in petitioner's claims.

 I. BACKGROUND

 Petitioner Joseph Moses was convicted of two counts of forgery and one count of armed robbery. On October 30, 1984, petitioner received concurrent ten-year prison terms for the forgery convictions. He received twenty years imprisonment for armed robbery with the sentence to be served consecutively to those for forgery.

 On direct appeal, petitioner argued that the trial court abused its discretion in ordering consecutive sentences. On February 26, 1986, the appellate court rejected petitioner's argument and affirmed his conviction and sentences. People v. Moses, 140 Ill. App. 3d 1147 (1986) (unpublished order), appeal denied (June 3, 1986).

 On June 29, 1992, petitioner filed a petition for post-conviction relief. On July 15, 1992, the circuit court entered an order dismissing the petition as frivolous and patently without merit. In addition, the circuit court alluded to the untimeliness of the petition and to waiver barring petitioner's admonishment claim. Petitioner appealed.

 During the appeal, petitioner's appointed counsel filed a motion for leave to withdraw as counsel pursuant to the standards set forth in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), representing that he had fulfilled his Anders duties. On April 5, 1994, the appellate court granted the motion for leave to withdraw as counsel because the post-conviction petition was time-barred. Consequently, no meritorious issues existed for review. 725 ILCS 5/122-1. Petitioner had waited more than seven years since the date of his conviction before filing his petition for relief.

 Petitioner then sought permission to withdraw his appeal from the appellate court, and to amend his post-conviction petition. On September 22, 1993, the appellate court denied both requests.

 On June 2, 1994, the Illinois Supreme Court denied petitioner's request for leave to appeal. Petitioner has exhausted his state remedies, and he properly petitions this court for a writ of habeas corpus. See 28 U.S.C. § 2254 (b).

 II. DISCUSSION

 A. Defaulted Claims

 Petitioner raises five issues in his petition for writ of habeas corpus. However, petitioner failed to raise four of the five issues in state court at the appropriate time in order to preserve state judicial review of such issues. See Nutall v. Greer, 764 F.2d 462, 465 (7th Cir. 1985) (state prisoner waives habcas review of a claim by failing to present it to the lower appellate court on direct appeal and by failing to seek leave to present it to the highest state court). Therefore, procedural default operates to prevent petitioner from asserting four of his five claims for purposes of federal habeas review. Id. An exception to this rule of procedural default occurs when the petitioner shows cause for failing to raise the arguments earlier and prejudice resulting from procedural default. Id. This court discusses each of the petitioner's defaulted claims in order.

 1. Due Process -- Admonishment of Trial Court

 Petitioner contends that the trial court failed to properly admonish him before sentencing, thereby violating his Fourteenth Amendment right to due process. Petitioner alleges that the trial court failed to inform him that he could receive consecutive sentences as a result of his guilty plea. In addition, petitioner argues that the trial court failed to inform him, before he admitted to a probation violation, that he could be sentenced to whatever would have been a permissible sentence at the time probation was imposed. As a result of this allegedly insufficient admonishment, petitioner asserts that he did not enter a knowing, intelligent and voluntary plea. See Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).

 Petitioner did not raise this issue in his direct appeal. He first raised the issue of insufficient admonishment before the Illinois Appellate Court in his petition for leave to appeal from his post-conviction review. The appellate court dismissed that petition as time-barred. This court may not review a claim, first raised as a constitutional issue in a petition for post-conviction relief, when a state court has ruled on the state procedural issue regarding waiver. See Goins v. Lane, 787 F.2d 248, 251 (7th Cir.), cert. denied, 479 U.S. 846, 107 S. Ct. 165, 93 L. Ed. 2d 103 (1986); see also Farmer v. Prast, 721 F.2d 602, 605 n.5 (7th Cir. 1983) (if a state appellate court rules on the merits of a constitutional ...


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