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UNITED STATES EX REL. JAMISON v. BARNETT

April 17, 1998

UNITED STATES OF AMERICA ex rel. CEDRIC JAMISON, Petitioner,
v.
PAUL BARNETT, Respondent.



The opinion of the court was delivered by: ALESIA

MEMORANDUM OPINION AND ORDER

 Before the court is petitioner Cedric Jamison's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, Jamison's petition is denied.

 I. BACKGROUND

 Following a jury trial in Illinois state court, petitioner Cedric Jamison was convicted of attempted murder and armed robbery. He was sentenced to a term of imprisonment of seventeen years on the armed robbery conviction and twenty-five years on the attempted murder conviction. Both terms of imprisonment were to run concurrently.

 Jamison appealed, arguing that the sentence imposed on him was fundamentally unfair because it was grossly disparate to the sentences received by Jamison's two co-defendants, Timothy Shelton (who received fourteen years) and Craig Parker (who received sixteen years). Ira Sheffey represented Jamison on appeal. The appellate court affirmed Jamison's conviction and sentence, finding that the disparity in the sentences was justified by the circumstances. Jamison did not seek leave to appeal to the Supreme Court of Illinois.

 Jamison then filed a pro se petition for post-conviction relief, arguing that he was denied his constitutional right to effective assistance of counsel on appeal. The Illinois circuit court dismissed his petition for post-conviction relief, finding that the petition was "frivolous and patently without merit." Resp't Ex. N at A-4.

 Jamison appealed the circuit court's decision to dismiss his post-conviction petition. A public defender was appointed to represent Jamison on that appeal. The appointed public defender moved to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), on the grounds that Jamison's post-conviction petition failed to give rise to a claim of constitutional deprivation. Jamison filed a response brief.

 The appellate court granted the public defender's motion for leave to withdraw as counsel and affirmed the circuit court's judgment dismissing Jamison's post-conviction petition. In so doing, the appellate court stated: "We have carefully reviewed the record in this case, the [public defender's] brief, and defendant's response in compliance with the mandate of Pennsylvania v. Finley and find no issues of arguable merit." Resp't Ex. F at 2. The Illinois Supreme Court denied Jamison's petition for leave to appeal this decision.

 Jamison then filed this petition for writ of habeas corpus. Jamison argues that he is entitled to relief under 28 U.S.C. § 2254 because he was denied his Sixth and Fourteenth Amendment right to effective assistance of counsel on his direct appeal.

 II. DISCUSSION

 A. Standard for deciding a § 2254 petition

 Jamison filed his § 2254 petition after April 24, 1996; therefore, the current version of § 2254 governs this court's analysis. Long v. Krenke, 138 F.3d 1160, 1998 U.S. App. LEXIS 4446, 1998 WL 110184, at *2 (7th Cir. 1998). In order for the court to entertain Jamison's petition for writ of habeas corpus, Jamison must allege that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. Moreover, a writ of habeas corpus may issue on Jamison's claim that he was denied effective assistance of counsel only if the state court's 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." Long, 1998 WL 110184, at *2 (citing 28 U.S.C. § 2254(d)(1)).

 The court must presume that state courts' factual findings are correct, unless the petitioner rebuts this presumption with clear and convincing evidence. Id. (citing § 2254(e)(1)). The court must review the state courts' legal determinations, as well as mixed questions of law and fact, de ...


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