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UNITED AMERICA EX REL. KYTKA v. WASHINGTON

March 13, 1996

UNITED STATE OF AMERICA ex rel. MYRON JOHN KYTKA, Petitioner,
v.
ODIE WASHINGTON, Director of the Illinois Department of Corrections, Respondent.



The opinion of the court was delivered by: ASPEN

MEMORANDUM OPINION AND ORDER

 MARVIN E. ASPEN, Chief Judge:

 Myron Kytka brings this petition pursuant to 28 U.S.C. § 2254, seeking a writ of habeas corpus against Odie Washington, Director of the Illinois Department of Corrections. In October 1989, Kytka was convicted of possessing a controlled substance with the intent to distribute it, and was sentenced to twenty-six years in custody. He claims that habeas relief is appropriate because his trial and appellate counsel performed below constitutional standards. For the reasons set forth below, the petition is denied.

 I. Background

 At the outset, we observe that Kytka asserts in his petition that the fact-finding of the Illinois state courts was deficient, and therefore an evidentiary hearing in this court is necessary. Petition PP 51-59. However, he does not articulate any structural defects in the fact-finding process that would justify our rejection of these findings, see 28 U.S.C. § 2254(d)(1)-(7). Indeed, as discussed below, the factual elements of his ineffective assistance of counsel claims were thoroughly litigated in an evidentiary hearing on his state post-conviction petition. See Resp. Ans., Exs. K-N. Moreover, the petitioner has wholly failed to demonstrate that the material findings of the state court are "not fairly supported by the record." 28 U.S.C. § 2254(d)(8). Consequently, as no real challenge to their veracity has been mounted, we may presume the correctness of the factual findings contained in the written opinions and transcribed oral rulings of the state courts. See Johnson v. Trigg, 28 F.3d 639, 643-44 (7th Cir. 1994).

 The following is a summation of the relevant portions of these findings. In May 1989, employees at United Parcel Service ("UPS") in Fort Lauderdale, Florida, opened a package addressed to Myron Kytka of Hawthorne Woods, Lake County, Illinois. *fn1" Inside they found approximately one kilogram of a white, powdery substance that subsequently tested positive for cocaine. UPS notified local law enforcement authorities, who then took the package and delivered it to law enforcement agents of the Lake County Metropolitan Enforcement Group ("LCMEG") in Lake County, Illinois.

 After receiving the package, LCMEG agent Wayne Hunter arranged with other agents to conduct a controlled delivery of the package to Kytka's address. On May 18, 1989, LCMEG agents posed as UPS employees and drove to the petitioner's home in a UPS delivery truck. While agent Sylvester Hampton went to Kytka's front door to deliver the cocaine package, several other agents in the back of the UPS truck maintained a radio-to-telephone link with agent Hunter, who was in the chambers of Lake County Judge Harry Hartel with a complaint for a search warrant and an unsigned search warrant. The complaint requested authority to search:

 
A. The person of any and all persons within the residence described in paragraph "B"
 
B. The following described property the residence located at the common mailing address of 16 Sequoia, Hawthorne Woods, Lake County, Illinois. The residence is a two-story gray colored single family home with a two-car attached garage. The roof of the residence is grey shingle with blue trim. The front of the residence faces west. There is a chimney on the east side of the residence and the numbers 16 appear in bronze to the right of the front door.

 Resp. Ans., Ex. I, at 1. The complaint also sought the seizure of "cocaine, United State's [sic] Currency, scales and other paraphernalia used in the packaging and processing of cocaine and evidence of residency and occupancy." Id. The warrant to be signed by Judge Hartel contained the same description of the house at 16 Sequoia, and the same list of items to be seized by officers. However, with regard to the scope of the authorized search, the warrant simply stated that agents could search "any and all persons within the residence described as the residence located at the common mailing address of 16 Sequoia, Hawthorne Woods, Lake County, Illinois." Resp. Ans., Ex. H, at 1.

 At approximately 11:18 a.m., Hampton delivered the package to Kytka--who told the agent that he was expecting a package from Florida and signed for it--and agents in the back of the UPS truck notified Hunter that the delivery had been made. Hunter then informed Judge Hartel's staff of the delivery and asked them to retrieve the judge from the bench to sign the warrant and complaint. Judge Hartel, who had previously read the complaint and warrant, returned to his chambers where he signed and dated these documents. *fn2"

 Hunter then informed the other LCMEG agents that the warrant had been signed, and they proceeded to search Kytka's house. In addition to finding the package containing one kilogram of cocaine just inside the door, they also found a briefcase containing cannabis plants, a loaded .22 caliber handgun, $ 5000 in cash, 3.41 grams of cocaine, and three glass vials of the type used to store powdered cocaine. The search also turned up several small packages of cannabis and a cocaine processing kit in Kytka's basement. Finally, in Kytka's bedroom, agents found a key ring with five safety deposit box keys. LCMEG agents later used these keys to obtain search warrants for five safety deposit boxes at various banks, where they found almost $ 250,000 in cash.

 Prior to trial Kytka's attorney filed a motion to suppress the evidence seized from the house, contending that there was no probable cause to search the house, or if probable cause existed, it was only to seize the package of cocaine delivered by the LCMEG agents. Petitioner later filed a second motion to suppress the $ 250,000 seized from his safety deposit boxes, arguing that agents should not have taken the safety deposit box keys from his house because they were not mentioned in the warrant as items to be seized. Both of these motions were denied, and after a bench trial Kytka was convicted of possessing more than 900 grams of a controlled substance with the intent to distribute, and of possessing a smaller quantity of cannabis. Petitioner was sentenced to twenty-six years in custody.

 On direct appeal Petitioner challenged, among other things, the trial court's denial of his two motions to suppress. In an unpublished order the Illinois Appellate Court rejected Kytka's evidentiary claims based on the doctrine of waiver, noting that Kytka had failed to cite any authority to support his argument that police manufactured probable cause, had failed to present any evidence at the suppression hearing, and had neglected to include a copy of the warrant and complaint in the appellate court record. In addition, ...


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