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UNITED STATES EX REL. FRIERSON v. GRAMLEY

January 30, 1997

UNITED STATES OF AMERICA ex rel. WILLIAM FRIERSON, Petitioner,
v.
RICHARD B. GRAMLEY, Respondent.



The opinion of the court was delivered by: ALESIA

 Now before the court is a petition for a writ of habeas corpus and motion for appointment of counsel submitted by petitioner William Frierson. For the reasons that follow, the court denies both the motion for appointment of counsel and the petition for a writ of habeas corpus.

 I. BACKGROUND

 Frierson was convicted by a jury in state court of two counts of aggravated criminal sexual assault for raping a woman who was paralyzed from the waist down and wheelchair-bound. *fn1" Frierson was sentenced to two concurrent 18-year terms of imprisonment. He appealed his conviction, which was affirmed. He petitioned for leave to appeal to the Illinois Supreme Court, which denied his petition. Frierson then filed a petition in state court for post-conviction relief; his petition was denied. The appellate court affirmed the denial of Frierson's post-conviction petition, and the Illinois Supreme Court denied his petition for leave to appeal.

 On March 14, 1996, Frierson filed in this court his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his current petition, Frierson raises essentially three multi-faceted arguments. First, Frierson claims that he was denied an impartial jury because the trial court failed to excuse a juror who said she would have a problem treating fairly a defendant accused of rape and improperly allowed the use of blind peremptory challenges.

 Frierson also alleges that his trial counsel were constitutionally ineffective, in that they failed to subpoena two witnesses who were present in the house where Frierson had sex with the victim; never told Frierson that he had a right to testify, and in fact told him that he could not testify, at his trial; and failed to obtain important medical records.

 Finally, in his reply to the state's answer to his petition, Frierson claims that the trial court's refusal to permit him to impeach the victim concerning her prostitution activities deprived Frierson of his constitutional rights under the Sixth and Fourteenth Amendments to present his case and confront his accuser.

 II. DISCUSSION

 A. Motion for appointment of counsel

 In addition to his petition for a writ of habeas corpus, Frierson 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 it unnecessary to hold an evidentiary hearing to decide Frierson's habeas petition. In addition, while Frierson 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 Frierson's motion for appointment of counsel.

 B. Applicability of Antiterrorism and Effective Death Penalty Act

 The state contends that the Antiterrorism and Effective Death Penalty Act of 1996 ("Act"), effective April 24, 1996, applies to Frierson's petition even though his petition was filed prior to the effective date of the Act. Under the Act, federal habeas relief is not available for any claim adjudicated on the merits by a state court unless the state decision was contrary to, or an unreasonable application of, established federal law as determined by the United States Supreme Court, or the state court's determination of the facts was unreasonable in light of the evidence. Pub. L. 104-132, Tit. I, § 104(3), 110 Stat. 1219 (amending 28 U.S.C. § 2254(d)).

 The state is correct. The Seventh Circuit recently has held that the amended section 2254(d) applies to cases that were pending at the time the Act took effect. Lindh v. Murphy, 96 F.3d 856, 867 (7th Cir. 1996), cert. granted in part, U.S. , 117 S. Ct. 726, 136 L. Ed. 2d 643 (1997). Accordingly, the court must evaluate Frierson's claims in light of the new standard set forth above.

 C. Procedural default

 The court finds that Frierson presented to the Illinois appellate and supreme courts all of the grounds for relief that he set forth in his original habeas petition. Accordingly, Frierson has not procedurally defaulted any of the claims raised in his original petition, and the court will address each of these claims on its merits. See Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S. Ct. 2546, 2554-55, 115 L. Ed. 2d 640, reh'g denied, 501 U.S. 1277, 112 S. Ct. 27, 115 L. Ed. 2d 1109 (1991).

 However, Frierson's claim, raised for the first time in his reply, that the trial court violated his constitutional rights to confront his accuser and present a defense by barring him from impeaching the victim with evidence of her prostitution activities is a different story. Therefore, the court will address the issue of procedural default as to that claim separately, in section F. below.

 D. Right to an impartial jury

 Frierson argues that the trial court should have excused for cause a juror who stated that she did not know if she could be fair to a defendant who was accused of rape. Frierson also argues that the trial judge erred in using a system of blind peremptory challenges. Frierson alleges that these occurrences violated his Sixth Amendment right to an impartial jury.

 1. Failure to excuse juror

 During the voir dire in Frierson's criminal trial, the trial judge questioned a juror on her ability to sit impartially on the jury in Frierson's case. The judge asked, and the juror answered, the following:

 
Q: All right. And do you have any difficultly with sitting in this type of trial where the charge is that of aggravated criminal sexual assault case?
 
A: No, I do not.
 
Q: All right. Do you have any difficulty with the idea that you as a juror are to apply the law as I instruct you and not as -- even if you might disagree with that?
 
A: I think I might have a problem with that.
 
Q: All right. You might?
 
A: Yes.
 
Q: All right. Well, let me ask you the -- further the question [sic] in that regard, all right, as that question was asked, it is kind of speculative.
 
A: Well, I think that in our society crimes against women aren't taken as ...

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