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July 19, 2000


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


Before the court is Donald McDonald's petition for writ of habeas corpus under 28 U.S.C. § 2254. For the following reasons, the court denies the petition.


The court summarizes the relevant facts regarding McDonald's conviction from the Illinois Appellate Court's order affirming his conviction, which are presumed correct on habeas review. See 28 U.S.C. § 2254(e)(1).*fn1

Following a jury trial in the Circuit Court of Cook County, McDonald was convicted of criminal sexual assault, and sentenced to natural life in prison under the Illinois Habitual Criminal Act. Prior to the conviction which McDonald is collaterally attacking in this petition, McDonald was convicted for the criminal sexual assault of "F.M.," his girlfriend's seven year old daughter. The crime that gives rise to the instant petition took place in June or July 1993, when McDonald again sexually assaulted F.M. by engaged in sexual intercourse with her when she was thirteen years old.

The investigation into McDonald's second sexual assault of F.M. began on March 5, 1994, when Chicago Police Officer Peterson and his partner followed up on an anonymous letter that said a young girl was being sexually molested by her mother's boyfriend, whose name was Don. The police went to the home of the girl's mother, Barbara Mays, and met with Mays and McDonald. Mays told the police that F.M. was at Mays' parent's house, and gave police that address. The police went to look for F.M., but could not find the address Mays gave them. The police then phoned Mays and asked her to accompany them. When the police returned to Mays' home, both she and McDonald went with the police to find F.M. The police did not handcuff Mays or McDonald, nor did the police require Mays and McDonald to join them. Nonetheless, Mays and McDonald felt they were compelled to go with the police.

The police found F.M. at her grandparent's home, and spoke with her about the alleged molestation. During this time, Mays and McDonald remained in the police car. F.M. told the police that McDonald had sexual intercourse with her several months earlier. After learning this information, the police placed McDonald under arrest and took him to the police station.

Prior to trial, McDonald made two motions to suppress his statements. He first argued that his arrest should be quashed because it was not based on probable cause. The court held a hearing on this motion, and took testimony from Mays, McDonald, and Officer Peterson. The court concluded that McDonald was not under arrest at the time police first went to Mays' home, and that Mays and McDonald voluntarily went with the police to find F.M. After the police spoke with F.M., they had probable cause to arrest McDonald, and did so. Accordingly, the court denied McDonald's motion to quash the arrest and suppress his statements.

Sometime after the motion to suppress, but before trial, McDonald made another motion to suppress his statements. This time, McDonald argued that his statements were coerced because he was led to believe that he would be charged with a lesser crime if he gave the statements. The court held a hearing on this issue, and denied the motion.

McDonald also made a motion in limine to bar evidence of McDonald's 1987 conviction for aggravated sexual assault against F.M. The court ruled that it would allow evidence of the acts giving rise to the conviction, but not of the conviction itself or the sentence imposed for that crime.

At trial, Officer Peterson's testimony was consistent with his testimony at the motion to suppress hearing. Peterson said that he spoke with F.M. at her grandmother's house, and determined that McDonald had sexual intercourse with F.M.

F.M. testified about the investigation of the crime, and McDonald's molestation of her. As to the police investigation, F.M.'s testimony was inconsistent with that of Officer Peterson. F.M. testified that she did not speak to the police at her grandmother's home. Instead, she testified that she did not tell police of the assault until she went to the police station.

As to McDonald's molestation of her, F.M. testified that in July 1993 McDonald and her two uncles came to the apartment in which she was living, and asked her to go with them to a building at 55th and Union. The men had been drinking, and once at the building, the two uncles went to a friend's apartment. McDonald stayed with F.M., and told her to go to another apartment to watch television. After about 30 minutes, McDonald came to the apartment F.M. was in, took her clothes off, and had sexual intercourse with her. F.M. also testified that McDonald had sexual contact with her four times in 1987, when she was seven years old.

Calvin Mays, one of F.M.'s uncles that was drinking with McDonald on the day of the assault, corroborated F.M.'s testimony. Calvin testified that he, his brother, McDonald, and F.M. were cleaning a building at 56th and Union. Sometime during the evening, Calvin and his brother went to a friend's apartment, but F.M. and McDonald did not accompany them. Calvin testified that he did not see either McDonald or F.M. for about 45 minutes.

McDonald's counsel chose not to present any witnesses. After the jury returned a guilty verdict, the court conducted a separate sentencing hearing, and sentenced McDonald to natural life in prison.

With new counsel, McDonald filed a direct appeal, arguing three points: (1) the trial court improperly denied his motion to suppress; (2) the evidence did not establish his guilt beyond a reasonable doubt; and (3) the trial court erroneously denied his motion in limine to bar evidence of his prior sexual assaults of F.M. The appellate court affirmed McDonald's conviction. McDonald then sought leave to appeal the same issues in the Illinois Supreme Court, which was denied.

McDonald then filed a pro se post-conviction petition, alleging:

(1) ineffective assistance of appellate counsel;

(2) ineffective assistance of trial counsel;

(3) he was arrested without probable cause;

(4) the Illinois Habitual Criminal Act violates the Illinois constitution because it violates the single subject rule; and
(5) the admission of prior crimes evidence constitutes double jeopardy.

(See R. 8, Ex. F.)

In a six page written order, the trial court denied McDonald's post-conviction petition as frivolous and patently without merit. (See R. 8, Ex. G, pg. 6.) The court found that McDonald's claim of no probable cause for arrest was barred by res judicata. (See id. at pg. 3.) The court also found that McDonald failed to present any evidence to support his claims of ineffective assistance of counsel. (See id. at pg. 4.) Additionally, the court rejected McDonald's complaints with the Habitual Criminal Act, in accordance with People v. Dunigan, 165 Ill.2d 235, 209 Ill.Dec. 53, 650 N.E.2d 1026 (1995) (finding that the Act complied with the Illinois constitution). (See R. 8, Ex. G, pp. 56.) The court did not address McDonald's double jeopardy argument.

McDonald appealed the denial of his post-conviction petition. McDonald had the assistance of counsel on this appeal, and also filed a pro se brief. Together, McDonald and his counsel raised the following issues:

(1) ineffective assistance of trial counsel for failing to call a specific defense witness;

(2) ineffective assistance of appellate counsel;

(3) the Habitual Criminal Act is unconstitutional because it:

(a) discriminates against African-American men;

(b) re-examines prior convictions in violation of the 7th and 14th Amendments;
(c) is an ex post facto law because it inflicts greater punishment for a crime than when the ...

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