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U.S. EX REL. MCDONALD v. PAGE
July 19, 2000
UNITED STATES OF AMERICA, EX REL. DONALD LEE MCDONALD, PETITIONER,
JAMES H. PAGE, RESPONDENT.
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
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
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,
(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.
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
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
(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 ...