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UNITED STATES EX REL. JEFFERSON v. PAGE

May 14, 1996

UNITED STATES OF AMERICA ex rel. FLENEAR JEFFERSON, Plaintiff,
v.
THOMAS PAGE, Defendant.



The opinion of the court was delivered by: BUCKLO

 Following a 1990 jury trial in the Circuit Court of Cook County, the petitioner, Flenear Jefferson ("Mr. Jefferson"), was found guilty of murder and attempted murder. The trial judge sentenced Mr. Jefferson to concurrent terms of forty years imprisonment for murder and thirty years imprisonment for attempted murder to be served consecutively to a twenty-year sentence which Petitioner was serving in Arkansas. Mr. Jefferson petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254.

 The petition, read liberally, asserts four claims: 1) the court improperly instructed the jury regarding culpable mental state by using accountability *fn1" language in its instruction; 2) Petitioner's forty year sentence resulted from improper use of the accountability theory; 3) Petitioner was denied his Sixth Amendment right to confront witnesses against him when the trial court denied him the opportunity to cross-examine a state's witness regarding gang membership; and 4) the prejudicial value of evidence of Mr. Jefferson's possession of weapons to raise money to post bail for his half-brother, Freddie Jefferson, *fn2" and to flee the jurisdiction outweighed its probative value, yet the trial court admitted it. For the following reasons, the petition is denied.

 Procedural History

 Mr. Jefferson raised a number of issues on direct appeal, including the four claims stated in his petition. The Illinois Appellate Court affirmed the petitioner's convictions and sentence. People v. Jefferson, 260 Ill. App. 3d 895, 631 N.E.2d 1374, 197 Ill. Dec. 915 (1st Dist. 1994). Mr. Jefferson filed a petition for leave to appeal to the Illinois Supreme Court alleging two claims: 1) the appellate court's jury instruction on accountability improperly expanded previous state court decisions; and 2) the appellate court improperly relied on the accountability theory to impose the same sentence on the accomplice (Mr. Jefferson) and the perpetrator (Freddie). The petition was denied on October 6, 1994. People v. Jefferson, 157 Ill. 2d 512, 642 N.E.2d 1292, 205 Ill. Dec. 175 (1994).

 Procedural Default

 The respondent first argues that Mr. Jefferson's third and fourth claims are procedurally defaulted. Whether Mr. Jefferson has forfeited these claims depends on the law of Illinois, as:

 
failure to present a claim at the time, and in the way, required by the state is an independent state ground of decision, barring review in federal court.

 Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996) (citing Coleman v. Thompson, 501 U.S. 722, 729-44, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991)). Under Hogan, I am to determine if Illinois courts have held either that any procedural failing of which Mr. Jefferson is guilty constitutes a forfeiture or would so hold if Mr. Jefferson filed a collateral attack in state court. Hogan v. McBride, supra, 74 F.3d at 147.

 Instead of directly appealing a trial court's judgment, a party may collaterally attack that judgment by filing a petition for relief pursuant to the Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. In a post-conviction proceeding, the court does not determine a defendant's guilt or innocence but rather considers constitutional issues not already reviewed. People v. Stewart, 123 Ill. 2d 368, 528 N.E.2d 631, 633, 123 Ill. Dec. 927 (1988).

 
In essence, post-conviction proceedings are limited to issues which have not been, and could not have been, previously adjudicated. Put another way, all issues actually decided on direct appeal are res judicata, and all those which could have been presented but were not are deemed waived.

 Id.

 Mr. Jefferson appealed the trial court's judgment to the Illinois Appellate Court. In affirming the trial court's conviction and sentencing of Mr. Jefferson, the appellate court resolved Mr. Jefferson's claims raised in the third and fourth grounds for his habeas petition. Res judicata principles, therefore, prevented Mr. Jefferson from raising his third and fourth ...


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