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UNITED STATES EX REL. DECRETI v. WILSON

May 28, 1997

The United States ex rel. ROBERT DECRETI, Petitioner,
v.
PATRICIA WILSON, Warden, Respondent.



The opinion of the court was delivered by: CASTILLO

 Petitioner Robert DeCreti, a prisoner in the custody of the Illinois Department of Corrections at Menard Psychiatric Center, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. *fn1" DeCreti was convicted on October 21, 1991, in the Circuit Court of Cook County of attempted first-degree murder and intimidation -- placing a ten-month old baby in the freezer compartment of a refrigerator and threatening the child's mother with a knife to prevent her from reporting the crime. DeCreti received concurrent sentences of twenty years and five years respectively.

 On appeal, DeCreti contended that the evidence had not shown an intent to kill, since the child's brief confinement in the freezer did not threaten her life. He also claimed that he did not receive a fair sentencing hearing when the prosecutor impermissibly asked a witness whether she had "heard" that DeCreti had been charged with aggravated battery for shaking a baby. The Illinois appellate court rejected both contentions and affirmed his conviction and sentence on December 4, 1992, and the Illinois supreme court denied leave to appeal. A copy of the appellate court's opinion is an exhibit to the petition.

 DeCreti filed a post-conviction petition on November 14, 1994, raising the same alleged errors and adding a claim that his trial counsel had been ineffective. DeCreti contended his attorney had been remiss in his efforts to locate alibi witnesses and investigate the complaining witness, the child's mother, who allegedly had a history of mental instability and drug and alcohol dependency. The petition was denied December 14, 1994. Although in his present habeas petition DeCreti checked the box indicating that he had received an evidentiary hearing on his post-conviction petition, his brief states that he did not. Pet. Br. at 14. The petition states that the denial of his post-conviction petition was affirmed by the Illinois appellate court, but DeCreti does not provide a copy of either the trial court or appellate decision. On December 26 1995, DeCreti petitioned the Illinois supreme court for leave to file a petition for habeas corpus, in which he stated that he did not receive an evidentiary hearing on his post-conviction petition. The Illinois supreme court denied leave on March 28, 1996.

 Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires the court to conduct an initial review of habeas corpus petitions. The court may summarily dismiss a petition without ordering a response if it plainly appears from the face of the petition and its exhibits that the petitioner is not entitled to relief. Small v. Endicott, 998 F.2d 411, 414 (7th Cir. 1993).

 The two claims that DeCreti raised on direct appeal, lack of proof of intent to kill and prejudicial comments at his sentencing, can quickly be dismissed. *fn2" With respect to claims already decided against the petitioner in state court, a federal district court may grant a writ of habeas corpus only if the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2).

 A claim that the evidence was insufficient to establish an element of the crime beyond a reasonable doubt is tested by the standard of Jackson v. Virginia, 443 U.S. 307, 324, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979): the conviction must stand unless "it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." But a federal court entertaining a habeas petition no longer applies the Jackson test to the record de novo. After the 1996 amendments to § 2254, the only question before the court is whether the state court's application of Jackson was reasonable. Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir. 1997).

 The Illinois appellate court reasonably applied the Jackson standard in holding that a rational factfinder could have found intent to kill beyond a reasonable doubt. The victim's mother testified that she found the baby "crushed up" in the freezer compartment of the refrigerator and that it was clear that DeCreti had put the baby there. Tr. at 15. DeCreti speaks of "momentarily" putting the child in the freezer, but that is his own characterization. A physician testified that the child had marks consistent with "freezer burn." She was not certain that this was their cause, but if they had been caused by contact with a cold object, the baby would have had to have been in the freezer for several minutes. Tr. 54-56. While it would have taken a substantial period of time for the baby to have died of either hypothermia or suffocation, and a trier of fact could have had a reasonable doubt that DeCreti intended to kill the baby rather than torture her, that doubt is hardly compelled by the record.

 DeCreti's attack on his sentencing hearing can be dismissed even more quickly. A federal court will not normally review a state sentencing determination falling within statutory limits. Gleason v. Welborn, 42 F.3d 1107, 1112 (7th Cir. 1994), cert. denied, 514 U.S. 1109, 131 L. Ed. 2d 852, 115 S. Ct. 1961 (1995). The prosecutor's injection of unproven allegations did not render the sentencing fundamentally unfair. As the appellate court noted, the trial court expressly based the sentence on DeCreti's previous convictions and disclaimed reliance on unproved charges. Tr. 134. The cases cited by DeCreti involve review of federal convictions on direct appeal, where the standard of review is quite different. On direct appeal, a federal court of appeals reviews the district court's application of federal law, but on petition for habeas corpus a federal district court can review state court judgments only for constitutional error and within a highly deferential framework.

 DeCreti's third ground for habeas relief, first raised in his post-conviction petition, is that his trial counsel was ineffective for failing to locate alibi witnesses. The court does not have before it the state court's resolution of that claim. With respect to this ground for relief, the post-conviction petition stated only that

 
The Petitioner also clearly states that his defense counsel provided him with ineffective assistance of counsel. This was when counsel failed to adequately produce the defense witness in entirety; by failing to subpeona [sic] alibi witnesses that could have refuted the testimony of the victim, as to the Defendant's whereabouts during the alleged aggravated battery & attempted murder. These said witnesses could have rebutted the testimony of katrina Lonngren; Plaintiff's witness and victim in the matter.

 Post-conviction petition at P(d).

 The post-conviction petition did not name the witnesses or specify the information DeCreti's attorney had been given that should have enabled him to locate them. Nor did DeCreti provide affidavits as to what their testimony would be if called to testify. Apparently DeCreti hoped to persuade the court to appoint new counsel who would locate the witnesses, record their potential testimony, and prepare a supplemental or amended petition that would justify holding an evidentiary hearing. Not surprisingly, the trial court declined to do so and summarily dismissed the petition.

 In this court DeCreti does not provide much more:

 
[DeCreti] revealed to Mr. Wellish [defense counsel] the following "information," the names and address of his alibi witnesses and the address of Mr. James Balle along with his telephone number and the location of the following witnesses by first name only Paul & Ruthie, along with their business address. The Court continued the case from July 29, 1991 to October 15, 1991.
 
On October 15, 1991, the defendant informed the court that he had located this alibi witnesses (TR.5) The trial court denied the defendant's request for a continuance so that he might locate his alibi witnesses. (TR.6)
 
The defense counsel admitted that the defendant had given him a general location where he might be able to locate the witness. (Tr. 6-7) Defense counsel never attempted to locate the ...

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