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August 19, 1998

PAUL BARNETT, Warden, Danville Correctional Center, Respondent.

The opinion of the court was delivered by: BUCKLO


 Petitioner, Billy Rhoads, filed a 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus to challenge his conviction for first degree murder. For the following reasons, the Petition is denied.


 On July 10, 1990, the petitioner, Billy J. Rhoads, and a codefendant, John R. Radcliffe, were charged by indictment with the murder of Steven Heitlage. Rhoads, No. 1-91-0620 at 1; (Resp. Supp. Ex. A). Both defendants were tried in a bench trial in the Circuit Court of Cook County, Illinois.

 The evidence at trial established that Robin Leavy dated the victim, Mr. Heitlage, from the summer of 1989 until December, 1989. In January, 1990, Ms. Leavy met Mr. Rhoads and they began dating. Id. at 2. Ms. Leavy, Mr. Heitlage, and Mr. Rhoads shared an apartment in April, 1990. During April Ms. Leavy learned she was pregnant. She told Mr. Rhoads that Mr. Heitlage was the father of the child. Mr. Rhoads became jealous and upset. Shortly thereafter Mr. Heitlage moved out of the apartment. Id.

 Shawn Leslie, a friend of Mr. Heitlage and Ms. Leavy, testified that on June 3, 1990, he and Mr. Heitlage were at a fast food restaurant when Mr. Rhoads drove up to the restaurant. Mr. Rhoads told Mr. Leslie he wanted to see Mr. Heitlage to settle something with him. Mr. Leslie stopped Mr. Heitlage and Mr. Rhoads from getting near each other. Mr. Rhoads told Mr. Leslie that if he did not settle the matter at that time, he would get Mr. Heitlage later and when he did, he would kill Mr. Heitlage. Id. The altercation ended when Mr. Heitlage ran to a marked police car outside the restaurant and Mr. Rhoads drove away. Id.

 Two weeks later Mr. Heitlage and Mr. Leslie were working on cars at Mr. Leslie's house when Ms. Leavy phoned. Ms. Leavy made plans to meet Mr. Heitlage that evening at a gas station not far from her house. Ms. Leavy testified she told Mr. Rhoads and Mr. Radcliffe about her plans to meet Mr. Heitlage at the gas station, eat at Wag's restaurant, and then go to a pool hall. Id. at 3. Driving Mr. Radcliffe's red Maverick, Mr. Rhoads and Mr. Radcliffe took Ms. Leavy to the gas station, dropped her off, and left. (Trial Tr. at 105). Mr. Heitlage arrived about a half an hour later in his Buick Regal.

 After a few stops Mr. Heitlage and Ms. Leavy arrived at Wag's restaurant. They left at about 10:15 p.m. or 10:30 p.m. Upon exiting the restaurant Ms. Leavy noticed Mr. Radcliffe's red Maverick in the parking lot. (Tr. at 110). Ms. Leavy did not tell Mr. Heitlage about the red Maverick. Not long after leaving Wag's restaurant Ms. Leavy noticed Mr. Radcliffe's red Maverick alongside Mr. Heitlage's Buick Regal. Ms. Leavy did not see who was in the red Maverick. (Trial Tr. at 111).

 Ms. Leavy and Mr. Heitlage proceeded to Henry Horner Park. Ms. Leavy testified they arrived at the Park at around 10:45 p.m. to 11:00 p.m. Ms. Leavy and Mr. Heitlage walked into the Park and sat down around two hundred feet from the parking lot. After a few minutes of talking Mr. Heitlage saw somebody approaching and asked who it was. Ms. Leavy turned and saw an individual dressed entirely in black. (Trial Tr. at 115). The individual ran to Mr. Heitlage and placed him in a headlock. Ms. Leavy recognized the assailant as Mr. Rhoads. (Trial Tr. at 116). Mr. Heitlage asked Mr. Rhoads not to hurt him. Mr. Rhoads told Mr. Heitlage he would not hurt him and instructed Ms. Leavy to return to the car. Before returning to the car Ms. Leavy saw Mr. Radcliffe approach. (Trial Tr. at 117-18).

 Ms. Leavy retrieved her purse from Mr. Heitlage's car and got into the red Maverick. (Trial Tr. 119). About five minutes later Mr. Rhoads and Mr. Radcliffe returned to the red Maverick. When Ms. Leavy asked where Mr. Heitlage was, Mr. Rhoads told her not to worry about it and that "it would be taken care of." (Trial Tr. at 120). The three stopped at a McDonald's and then returned home. Ms. Leavy did not notice blood on either Mr. Rhoads' clothes or hands after they got home or at any other time that evening. (Trial Tr. at 163).

 Later that evening Mr. Rhoads came to Ms. Leavy's bedroom and told her that he had cut Mr. Heitlage's throat and stabbed him in the back. (Trial Tr. at 123). The next day Mr. Rhoads told Ms. Leavy that if the police asked any questions she should say that she had not met Mr. Heitlage at the gas station. (Trial Tr. at 128).

 Aside from Mr. Leslie and Ms. Leavy, two other witnesses testified against Mr. Rhoads. Officer G. Kanzler testified he found Mr. Heitlage's body in Henry Horner Park on June 18, 1990, at 5:10 a.m. He also testified about the condition of the body and having seen the Buick Regal parked in the parking lot at 1:00 a.m. on the morning of the murder. Detective Mark Sanders also testified for the State. Detective Sanders testified he found a knife by Mr. Heitlage's body and that his investigation led to Mr. Rhoads and Mr. Radcliffe. Detective Sanders noticed a laceration on Mr. Radcliffe's hand when he was fingerprinted. Both officers testified the crime scene was quite bloody.

 The parties stipulated that the knife was checked for fingerprints but that none were found and that black pants and a black shirt discovered in Mr. Rhoads' room, although unwashed since the night of the murder, had no bloodstains. Mr. Radcliffe was acquitted after the State rested. Mr. Rhoads was convicted and sentenced to thirty-two years in prison.

 The only issue raised on Mr. Rhoads' direct appeal was whether his sentence was excessive. The Illinois Appellate Court affirmed the sentence. Mr. Rhoads filed a petition for leave to appeal the sentencing issue to the Illinois Supreme Court. Mr. Rhoads' petition was denied. (Resp. Supp. Ex. C).

 Mr. Rhoads then filed a petition for state post-conviction relief, arguing ineffective assistance of counsel. (Resp. Ex. A). The State moved to dismiss the petition. The circuit court heard argument on the State's motion. Mr. Rhoads argued trial counsel was ineffective because he refused to present alibi evidence that Mr. Rhoads was actually at work at the time of the murder and did not pursue evidence that indicated the State's main witness, Ms. Leavy, might have had a pending assault case against her dropped in exchange for her testimony. (Post-Conviction Tran. at A-6 & A-7). Mr. Rhoads' petition for post-conviction relief was dismissed. The Illinois Appellate Court affirmed the dismissal and the Illinois Supreme Court denied Mr. Rhoads' petition for leave to appeal. Mr. Rhoads filed this petition for habeas corpus on June 6, 1997.

 Mr. Rhoads raised five claims in his initial habeas petition: (1) his sentence was excessive; (2) ineffective assistance of trial counsel for failure to call alibi witnesses; (3) ineffective assistance of appellate counsel for failure to raise issues; (4) ineffective assistance of post-conviction counsel for failure to amend his post-conviction petition; and (5) ineffective assistance of post-conviction counsel for withdrawing from the case. On June 19, 1998, Mr. Rhoads amended his habeas petition to add additional claims: (1) failure by the State to disclose certain evidence; (2) ineffective assistance of trial counsel for failure to obtain evidence, to properly cross-examine witnesses, and to object to the introduction of particular evidence; and (3) failure to definitively establish the time of death.

 Post-Conviction Counsel

 Two of Mr. Rhoads' grounds for habeas relief are premised on ineffective assistance of counsel at the post-conviction level. A criminal defendant does not have a right to counsel to pursue post-conviction appeals. Pennsylvania v. Finley, 481 U.S. 551, 557, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987). A criminal defendant who has no right to counsel cannot be deprived of the effective assistance of counsel. Coleman v. Thompson, 501 U.S. 722, 752-53, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991); Wainwright v. Torna, 455 U.S. 586, 587-88, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (1982). Accordingly, Mr. Rhoads' claims for ineffective assistance of post-conviction counsel are without merit.

 Excessive Sentence

 Mr. Rhoads argues his Fifth, Eighth, and Fourteenth Amendment rights were violated when the trial court sentenced him to thirty-two years imprisonment for first degree murder. Mr. Rhoads claims the sentencing court did not take into consideration a variety of mitigating factors. (Habeas Pet. at 6 & 6-A).

 In Illinois, a criminal defendant convicted of first degree murder is to be sentenced to the penitentiary, by statute, for a term of between twenty and sixty years. 730 ILCS 5/5-8-1(a)(1)(a). Generally, federal courts will not review a sentence that falls within statutory limits. Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir.1984)(citing cases). Mr. Rhoads' sentence was within the statutory limit and the Illinois Appellate Court found the sentence entirely appropriate. (Supp. Ex. A; Rhoads, No. 1-91-0620). Mr. Rhoads may still prove a constitutional violation if he can show that his sentence was "extreme" and "grossly disproportionate" to the crime. Koo v. McBride, 124 F.3d 869, 875 (7th Cir.1997)(citations omitted).

 Mr. Rhoads was convicted of first degree murder. The sentencing court found Mr. Rhoads had no criminal background, was motivated by passion in committing murder, was employed, graduated from high school, and was unlikely to commit further crimes. (Trial Tr. at 256-59). The sentencing court also found the crime was "vicious," Mr. Heitlage was unarmed, and that Mr. Rhoads ignored Mr. Heitlage's pleas not to hurt him. Taking everything into consideration the sentencing ...

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