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UNITED STATES EX REL. COLEMAN v. PAGE

November 27, 1995

UNITED STATES OF AMERICA ex rel. JEFFERSON COLEMAN, Petitioner,
v.
THOMAS PAGE, Respondent.



The opinion of the court was delivered by: ALESIA

 Now before the court is petitioner Jefferson Coleman's ("petitioner") petition for a writ of habeas corpus; petitioner's motion for appointment of counsel; respondent Thomas Page's ("respondent") motion for leave to interpose Teague bar; and petitioner's motion to strike respondent's motion to interpose Teague bar. For the reasons set forth below, the court denies the petition and all motions.

 I. BACKGROUND

 The facts underlying petitioner's conviction are those set out in the opinion of the appellate court on direct review, People v. Coleman, 203 Ill. App. 3d 83, 560 N.E.2d 991, 148 Ill. Dec. 394 (1st Dist. 1990), and will not be repeated here. The convoluted procedural history of this case warrants addressing, however. On October 7, 1987, a jury convicted petitioner of two counts of armed robbery, one count of residential burglary, and two counts of unlawful restraint. After merging the convictions for armed robbery and unlawful restraint, the trial court sentenced petitioner to concurrent prison terms of 60 years for armed robbery and 15 years for residential burglary.

 Petitioner filed a direct appeal in the Illinois Appellate Court, raising seven issues: (1) he was not proven guilty of residential burglary; (2) reversible error occurred when the trial judge sustained objections to certain questions at the hearing on petitioner's motion to suppress identifications; (3) the victims' identification of petitioner was unreliable; (4) petitioner was denied effective assistance of counsel at his sentencing and on his motion for a new trial; (5) the trial court erred when it failed to instruct the jury on the mental state required for armed robbery; (6) the trial judge abused his discretion by failing to hold a hearing on whether petitioner's trial counsel could represent him effectively, to appoint substitute counsel, and to grant a continuance; and (7) petitioner was denied his statutory right to a speedy trial. See id.

 While this appeal was pending, petitioner filed his first post-conviction petition in the trial court. In this petition, petitioner alleged that he received ineffective assistance of counsel and was denied his right to a speedy trial. The trial court dismissed the petition as frivolous on January 9, 1989. Petitioner did not appeal this decision. (Respondent's Answer Ex. F at 4.)

 On September 7, 1990, the Illinois Appellate Court affirmed petitioner's convictions and sentence in People v. Coleman, 203 Ill. App. 3d 83, 560 N.E.2d 991, 148 Ill. Dec. 394 (1st Dist. 1990). Petitioner filed a petition for leave to appeal to the Illinois Supreme Court. The sole issue raised by petitioner in his petition to the supreme court was that the appellate court erred in ruling that the trial court properly refused to hold a hearing on whether substitute counsel should have been appointed and to grant a continuance to petitioner's new counsel. On February 6, 1991, the Illinois Supreme Court denied the petition for leave to appeal. (Respondent's Answer Ex. D.)

 In April 1991, petitioner filed a second petition for post-conviction relief, alleging that he was denied effective assistance of counsel because of a conflict of interest between him and his trial counsel, Donna Foley, and because of a conflict of interest between him, Foley, and Foley's supervisor and additional trial counsel, Edward Ptacek; and that he was not proven guilty beyond a reasonable doubt of armed robbery. (Respondent's Answer Ex. E.) The trial court dismissed the petition. Petitioner appealed, and the appellate court affirmed the dismissal in June 1993. (Respondent's Answer Ex. F.)

 In October 1991, petitioner filed in the appellate court a "motion requesting permission to file petition for relief from judgment of September 7, 1990." This motion, which presumably was petitioner's attempt to appeal from the appellate court's opinion affirming petitioner's conviction, raised petitioner's claim that the trial court was required to instruct the jury on the mental state required for armed robbery. (Respondent's Answer Ex. B.) The appellate court denied petitioner's request. (Respondent's Answer at 2.)

 In March 1992, petitioner filed a motion for leave to file a late petition for leave to appeal in the Illinois Supreme Court. In this motion, petitioner alleged that the appellate court erred in not holding that the trial court erred in not giving an instruction on the mental state required to commit armed robbery. (Respondent's Answer Ex. C.) The supreme court denied petitioner's motion in June 1992. (Respondent's Answer at 2.)

 Petitioner filed a third post-conviction petition, claiming that he was denied equal protection when the trial judge imposed an extended term sentence without statutory jurisdiction. (Pet. at 7.) The trial court dismissed the petition, and petitioner appealed. The appellate court affirmed the circuit court's dismissal on January 20, 1995. (Respondent's Answer, Ex. G.) Petitioner did not seek further review of this decision.

 Petitioner filed the instant petition for a writ of habeas corpus on December 20, 1994, with an amendment filed May 16, 1995. Petitioner asks this court for relief based on four grounds: (1) the Illinois Appellate Court denied petitioner due process and equal protection when it held that the jury was not required to have been instructed on a mental state for his armed robbery offense; (2) petitioner was denied his right to effective assistance of counsel because a conflict of interest existed between him and his trial counsel; (3) petitioner's rights were violated because the trial court failed to hold a hearing to determine whether to appoint substitute counsel and failed to grant a continuance; and (4) petitioner was denied equal protection of the laws of Illinois because he was improperly given an extended sentence under Illinois law. Petitioner has exhausted his state remedies and properly petitions this court for a writ of habeas corpus. See 28 U.S.C. § 2254(b).

 II. DISCUSSION

 A. Motion for appointment of counsel

 In addition to his petition for writ of habeas corpus, petitioner also moves for appointment of counsel. Counsel is to be appointed in a habeas corpus proceeding if an evidentiary hearing is required or if the interests of justice so require. See Rule 8(c), Rules Governing Section 2254 Cases in the United States District Courts; 18 U.S.C. § 3006A(a)(2)(B). The court finds that counsel need not be appointed in the present case. The court finds it unnecessary to hold an evidentiary hearing. Further, while petitioner is a pro se petitioner, he has presented the court with coherent and intelligible bases for his petition, including relevant law and facts, and the court is able to decide his petition based on the information he has provided. Thus, the interests of justice do not require appointment of counsel.

 Accordingly, the court denies petitioner's motion for appointment of counsel.

 B. Procedural default

 "State courts must have a fair opportunity to consider constitutional objections to state criminal convictions before a federal court assumes the intrusive power to nullify those convictions on constitutional grounds." Nutall v. Greer, 764 F.2d 462, 463 (7th Cir. 1985). Thus, before a federal court can consider a petition for a writ of habeas corpus, it must ask whether the petitioner raised all of his claims in state court. United States ex rel. Nelson v. Godinez, No. 91 C 4244, 1994 U.S. Dist. LEXIS 9755, at *5 (N.D. Ill. July 14, 1994). If petitioner has not, he has procedurally defaulted these claims. See id.

 Federal courts will not consider a claim raised in a habeas corpus petition that has been procedurally defaulted in state court. See Coleman v. Thompson, 501 U.S. 722, 732, 111 S. Ct. 2546, 2555, 115 L. Ed. 2d 640 (1991). Thus, a petitioner forfeits the right to raise an issue that he failed to raise on direct appeal, Farrell v. Lane, 939 F.2d 409, 411 (7th Cir. 1991), cert. denied, Farrell v. McGinnis, 502 U.S. 944, 112 S. Ct. 387, 116 L. Ed. 2d 337 (1991), or on appeal to the state's highest court. Nutall, 764 F.2d at 464, 465. Moreover, once a petitioner files a post-conviction petition raising claims not yet heard by all of the state's courts, the petitioner must take those claims to the state's highest court. Jones v. Washington, 15 F.3d ...


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