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UNITED STATES EX REL. NELSON v. DE TELLA

August 2, 1996

UNITED STATES OF AMERICA ex rel. ORDELL NELSON, Petitioner,
v.
GEORGE E. DE TELLA, Respondent.



The opinion of the court was delivered by: ALESIA

 Before the court are eight claims that petitioner Ordell Nelson ("Nelson") raised in his petition for a writ of habeas corpus. For the reasons that follow, Nelson's claims, and his habeas corpus petition in its entirety, are denied.

 I. BACKGROUND

 This case is before the court on remand from the Seventh Circuit Court of Appeals. On July 14, 1994, this court denied Nelson's petition for a writ of habeas corpus. The court concluded that eight of Nelson's 10 claims were procedurally defaulted, because Nelson did not present the eight claims to the Illinois Supreme Court. The court addressed and rejected the remaining two claims on their merits.

 After petitioning for rehearing, which the court denied, Nelson appealed to the Seventh Circuit Court of Appeals. On appeal, Nelson argued that even though his counsel may not have presented all of his claims in their submissions to the Illinois Supreme Court, he did so himself in supplements filed pro se. The state denied that Nelson filed such documents. The court of appeals found that this court must resolve this disputed issue of fact and determine whether Nelson presented any of the eight claims to the Illinois Supreme Court in pro se briefs.

 The court of appeals also stated that since this court's initial decision denying Nelson's petition, it had made clear in Hogan v. McBride, 74 F.3d 144, modified on denial of reh'g, 79 F.3d 578 (7th Cir. 1996), that failure to include an issue in a petition seeking discretionary review by a state's highest court is a forfeiture if and only if the state itself considers it a forfeiture. The court noted that it had observed in Jenkins v. Gramley, 8 F.3d 505 (7th Cir. 1993), that the courts of Illinois require some issues to be so presented, but do not require all issues at all stages of the direct and collateral proceedings to be so presented. Accordingly, the court of appeals instructed this court to determine, in accordance with Hogan, whether Illinois would deem any omitted claims forfeited, and to resolve on the merits any claims not forfeited.

 Because the court of appeals affirmed this court's judgment regarding the two claims that the court addressed on their merits, those two claims are not at issue before this court.

 II. DISCUSSION

 A. Whether Nelson presented his habeas corpus claims to the Illinois Supreme Court in pro se filings

 Nelson's eight claims that this court ruled were forfeited by his failure to bring them before the Illinois Supreme Court are as follows:

 1. Nelson's fourth and fourteenth amendment rights were violated by the state's use of illegally seized evidence, gained when Nelson was arrested without probable cause;

 2. Nelson's fourth and fourteenth amendment rights were violated by officers' interrogation of Nelson based on an anonymous tip that the officers did not corroborate;

 3. Nelson's fourth, fifth, sixth, and fourteenth amendment rights were violated by the trial judge's refusal to suppress the statements that Nelson gave during his detention and interrogation at the police station;

 4. Nelson's fourteenth amendment rights were violated by the state's prosecutorial misconduct, where the prosecutor made prejudicial and inflammatory statements not based on the evidence;

 5. Nelson's sixth amendment rights to effective assistance of counsel were violated by his trial counsel's failure to investigate the facts and circumstances of Nelson's initial arrest, which led to his arrest for murder;

 6. Nelson's sixth amendment rights to effective assistance of counsel were violated by his trial counsel's failure to file a timely motion to suppress and quash his arrest and evidence seized;

 7. Nelson's sixth and fourteenth amendment rights to effective assistance of counsel were violated by his appellate counsel's failure to raise the issue that the trial judge erred when he declined to instruct the jury on voluntary manslaughter based on serious provocation;

 8. Nelson's sixth and fourteenth amendment rights to effective assistance of counsel were violated by his appellate counsel's failure to raise the issue of prosecutorial misconduct.

 In his direct appeal of his conviction to the Illinois Appellate Court, Nelson raised none of these claims. (See Ex. to Answer to Pet. for Writ of Habeas Corpus.) Nelson filed a pro se petition for leave to appeal to the Illinois Supreme Court from the appellate court's decision affirming his conviction and sentence. (See Ex. to Answer to Pet. for Writ of Habeas Corpus.) In his petition for leave to appeal, he simply attached the appellate court's order, thus ...


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