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UNITED STATES EX REL. WEBSTER v. DETELLA

May 22, 1997

UNITED STATES ex rel. GAINES WEBSTER, Petitioner,
v.
GEORGE DeTELLA, Warden, and JAMES RYAN, Attorney General, 1 Respondents.



The opinion of the court was delivered by: CASTILLO

 Gaines Webster brings this petition for a writ of habeas corpus, claiming that his continued imprisonment is in violation of the United States constitution. After carefully reviewing it, we deny the petition and dismiss the action, for the reasons explained below.

 RELEVANT FACTS

 In reviewing a case on petition for writ of habeas corpus, a federal court presumes that the facts found by the state courts are correct. Sumner v. Mata, 449 U.S. 539, 547, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981). A petitioner may rebut this presumption with clear and convincing evidence of different facts. 28 U.S.C. ยง 2254(e)(1) (1997). The petitioner has not challenged the state court's factual findings here, so we take the following factual account from the opinion of the state appellate court.

 The complaining witness testified that, on September 10, 1984, she was walking northbound on California Avenue when she noticed a car drive by slowly while the man driving looked at her. The car turned west off of California Avenue onto 65th Street, and the driver parked it in the first space with the motor running. The complainant turned west onto 64th Street. As she passed an alley, the driver of the car she had seen grabbed her around the throat, holding a broken bottle, with which he cut her on the throat and forearm. The man ordered her not to scream and said "I could still fuck you if I cut you." He forced her into his car, and drove away. As he drove, he told her, "Don't worry, I ain't going to hurt you," and said that he "just wanted to be with a white woman and he wanted to suck on a white woman's titty."

 The complainant did not see the broken bottle once she was in the car. She did, however, notice a red pen glued to the dashboard of the car and the word "deVille" on the glove compartment. When she picked up a tissue the driver had used to wipe his bleeding hand, the driver grabbed it and threw it out the window as they drove down an alley. He then stopped the car with the passenger side door against a garage so that the door could not be opened. The driver pulled the complainant's shirt up and removed her bra, and began sucking on her breast. The complainant tried to push him away, and told him that she was pregnant and that she had venereal disease. The driver pulled her pants and underwear down to her knees, and inserted one of his fingers into her vagina. He then placed his mouth on her vagina. After a noise occurred nearby, the driver told the complainant that she could pull her pants up. He asked her where she had been going and drove her to 63rd Street and California Avenue, where he let her out of the car. As he drove away, the complainant memorized his license plate number. She went to a gas station and called the police, who arrived a short time later. After hearing her story, the police took hert to a house where she identified the car and the driver, who was Webster. She identified the car by the red pen on the dashboard and the word "deVille."

 After testifying to the events of the night in detail, the complainant then gave a summary of the same events, explaining what she had told the police officers, and also testified that a more detailed statement which she gave at the police station was consistent with her prior testimony. On cross-examination, the complainant admitted that she had been convicted of two counts of possession and one count of delivery of a controlled substance a few years before. She denied taking any drugs on the night of the assault.

 Two police officers who responded to the complainant's call testified, and described how they had traced the license plate number the complainant had given them, contacted the owner, and found that the owner's son had just brought the car home. Upon examining the car, one officer noticed that there was blood on the seat. The police also found a tissue with blood after searching with the complainant; the tissue turned out to have type AB blood on it, which is apparently Webster's blood type. The complainant's blood is type O. The police also repeated the story that the complainant had told them about the assault.

 Webster testified that he had been driving northbound on California Avenue when he saw the complainant hitchhiking. He offered her a ride if she "wouldn't mind [him] nibbling on her breasts." She hesitated and then got into his car, whereupon he drove to an alley and proceeded to suck on her right breast. He then drove her to 63rd Street and California Avenue, where she got out of the car. Webster specifically denied forcing her into his car, threatening her with a broken bottle, removing her pants, inserting his finger into her vagina, or placing his mouth on her vagina.

 Webster appealed, raising the following arguments: (1) the statute under which he was charged and convicted of aggravated criminal sexual assault was unconstitutionally vague; (2) the repetitious testimony regarding the complainant's version of events on the night of the assault unfairly reinforced her story in the minds of the jury; (3) improper prosecutorial comments deprived him of a fair trial; (4) the court improperly instructed the jury on aggravated criminal sexual assault and attempt of the same offense; (5) there was insufficient evidence to support his conviction on attempt; (6) the extended term sentence imposed by the judge was excessive; and (7) he received ineffective assistance of counsel, because his attorney failed to: seek questioning on racial bias during voir dire (Webster is black and the complainant is white); file any pretrial motions challenging the information; object to the complainant's repetitious testimony; offer jury instructions on the lesser included offense of simple criminal sexual assault; object to the judge's order sequestering the jury or inquire into a voided "not guilty" verdict form; or present a mitigating factor (Webster's recent enrollment in school) at the sentencing hearing.

 The appellate court found that Webster was barred from bringing his second and fourth claims, because his attorney had not objected to the repetitious testimony or proffered different instructions, and thus any errors were waived. The appellate court held that the aggravated criminal sexual assault statute was not constitutionally defective, and that although some of the prosecutor's comments were improper, they did not constitute the deciding factor in the jury's verdict or otherwise deprive Webster of a fair trial. In Webster's favor, the court agreed with him that there was insufficient evidence of attempt to support that conviction, and vacated the attempt conviction. The court nevertheless found that the 60-year extended term sentence was proper, as the trial judge had considered the appropriate factors in sentencing Webster. *fn2" Finally, the appellate court rejected Webster's claim that he received ineffective assistance of counsel, finding that he had not "overcome the presumption that counsel's alleged errors were not trial strategy," nor had he shown that the errors affected the outcome of the trial. People v. Webster, 175 Ill. App. 3d 119, 128, 529 N.E.2d 741, 746, 124 Ill. Dec. 760 (1st Dist. 1988).

 Webster petitioned for leave to appeal to the Illinois supreme court, raising only the claim that he received ineffective assistance of counsel, because his attorney (a) failed to inquire into jurors' racial bias; (b) failed to object to the repetitious testimony; (c) failed to offer an instruction on the lesser included offense of simple criminal sexual assault; and (d) failed to provide any meaningful representation at sentencing. The PLA was denied on February 1, 1989.

 Webster then began state post-conviction proceedings in the circuit court. His petition in that court raised the following claims: there was insufficient evidence of weapon use to support the conviction for aggravated criminal sexual assault; his trial attorney's failure to elicit testimony from the witness about the passage of time during the course of the assault constituted ineffective assistance of counsel; he received ineffective assistance from both trial and appellate counsel because they failed to "adequately argue or advance the Constitutional errors described above"; and he was denied a fair trial by a conspiracy among the prosecutors, police witnesses, and complaining witness to conceal evidence. His petition was denied. On November 28, 1990, Webster filed a notice of appeal from the circuit court decision. Although several volumes of record were filed in the appeal, Webster never filed an appellate brief. ...


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