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June 9, 1999


The opinion of the court was delivered by: Castillo, District Judge.


Thomas Price filed this petition for a writ of habeas corpus, 28 U.S.C. § 2254, attacking his state court burglary conviction and the resulting sentence. Price claims that his attorney rendered constitutionally ineffective assistance in that counsel did not file a motion to suppress Price's post-arrest statement; failed to tender a jury instruction on the lesser-included-offense of theft; and neglected to submit certain evidence to the jury. He also claims that his fourteen-year sentence for burglary constitutes cruel and unusual punishment. Because the state court's adjudication of Price's claims was eminently reasonable, we deny his habeas corpus petition.


Price was arrested, along with two co-defendants, after breaking into a building and attempting to steal boxes of aluminum siding. The co-defendants pled guilty, but Price declined a plea bargain that would have resulted in a six-year term of imprisonment. At trial, Price testified that he believed the building he entered was abandoned, and that he was simply looking for a quiet place to shoot-up the heroin he had purchased just before the arrest.

The jury, however, believed the police officers, who testified that when they arrived on the scene Price and his co-defendants were dragging huge boxes of aluminum siding toward doors which appeared to have been pried open. The officers also testified about the dilapidated state of the building's roof, but stated that all of the doors and windows functioned and were secure (except, of course, the door the defendants had pried open).

Officer James Bailey interviewed Price after the arrest. Officer Bailey testified that, after giving Price the Miranda warnings, Price said he and his friends had been "junking". Officer Bailey told the jury that "junking" is "picking up scrap metal and selling it for money." Price, however, did not mention drugs during his statement to Officer Bailey and no drug paraphernalia was found at the burglary scene.

On this basis, the jury convicted Price of burglary, and the court sentenced him to fourteen years' imprisonment. Price appealed and, apparently, filed a post-conviction petition at about the same time. The petition was summarily dismissed, and the Illinois appellate court consolidated Price's appeal from that dismissal with the pending direct criminal appeal. People v. Price, Nos. 1-96-0194 and 1-96-2132, at 1 (Ill.App.Ct. Sept. 22, 1997) (Pet.Ex.A). Between the direct appeal and state collateral attack, Price fairly presented each of the claims he now asserts as grounds for federal habeas corpus relief. Additionally, the state appellate court addressed each claim on the merits, but affirmed Price's conviction and sentence, as well as the dismissal of his post-conviction petition.

In his habeas corpus petition, Price attacks his conviction on the ground that his attorney was constitutionally deficient. Specifically, Price claims counsel should have attempted to suppress his post-arrest statement; asked the trial judge to tender an instruction on the lesser-included-offense of theft; and introduced photographs of the building to bolster Price's own testimony that he thought the building was abandoned. Price also attacks his sentence as unconstitutionally cruel because his co-defendants received significantly lesser punishments. After setting out the standards for evaluating Price's petition, we will address each claim in turn.


Price filed his petition in the fall of 1998 and, therefore, the 1996 amendments to the federal habeas corpus statute apply to this case. Under 28 U.S.C. § 2254(d)(1), Price cannot obtain habeas relief unless he establishes that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court."*fn1 In other words, this Court will not evaluate Price's claims de novo; rather, we analyze whether the Illinois appellate court decision was legally consistent with Supreme Court caselaw, and whether that court reasonably applied Supreme Court precedent to the facts of Price's case. "The statutory `unreasonableness' standard allows the state court's conclusion to stand if it is one of several equally plausible outcomes." Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997).


Price claims that his conviction violates the Sixth Amendment because his defense attorney rendered ineffective assistance. He also maintains that his sentence violates the Eighth Amendment's proscription against cruel and unusual punishment. Although Price appears to misapprehend our task in habeas by arguing the straightforward merits of his claims, we analyze his arguments as attacks on the state appellate court's adjudication of his claims.

I. Ineffective Assistance of Counsel

Price rightly does not challenge the state court's enunciation of the standards for evaluating an ineffective-assistance claim. That court correctly set forth the test for ineffective assistance as determined by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Price, Nos. 1-96-0194 and 1-96-2132, at 5-6. Specifically, the state court required Price to establish both that his attorney's performance was objectively unreasonable, and that the deficient performance resulted in prejudice to Price. Id. at 5 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Instead, Price argues that the state court's application of the Strickland test to his three ineffective-assistance claims was unreasonable. To succeed Price must establish a clear error ...

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