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Dellinger v. Bowen

August 19, 2002


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 1691--Matthew F. Kennelly, Judge.

Before Flaum, Chief Judge, and Manion and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Manion, Circuit Judge


Martize Dellinger was convicted in Illinois state court of two counts of attempted murder, two counts of armed violence, two counts of aggravated battery with a firearm, and two counts of aggravated battery. After unsuccessfully pursuing direct appeals and post-conviction challenges within the state court system, Dellinger filed a petition for habeas corpus relief in federal district court pursuant to 28 U.S.C. § 2254. The district court denied his petition for habeas relief, but granted Dellinger a certificate of appealability on several issues.

Dellinger raises those issues on appeal to this court, and we affirm.


In August 1995, at about 2:30 a.m., Martize Dellinger, Rhamal Powell, and Kareem Muhammad shot into a group of people running away from them who were apparently rival gang members and their girlfriends. Dellinger, Powell and Muhammad are all associated with the Vice Lords street gang. Two of the women, Patricia Baker and Cherie Morris, were shot and suffered relatively minor injuries. At trial, both women testified that they were sitting on Ms. Baker's back porch with several friends when three men approached on foot and pulled out guns. When the women and their friends began to run, the men started shooting. Ms. Baker was shot in the buttocks, and Ms. Morris in the foot. Both were taken to a hospital, treated and released around 6:00 a.m. Both women identified Muhammad, Powell and Dellinger as the shooters.

These three men were tried in a separate, simultaneous bench trial for attempted murder and lesser crimes. At trial, the prosecution introduced, by stipulation, statements by Powell and Dellinger. *fn1 In Dellinger's statement, he stated that he was 17 years old and a member of the Vice Lords street gang. He stated that his car had been shot up by a rival gang, and that on August 25th, he, Powell and Muhammad went looking for the rival gang members.

Dellinger claimed that when they saw the people on the porch, the other defendants started shooting. He stated that "he didn't want to shoot but he raised his gun and shot two times towards where the two guys [from the porch] had ran." Dellinger did not call any witnesses in his defense. In closing, Dellinger's public defender argued that the evidence was insufficient to prove an intent to kill, as required for attempted murder, or to prove that he had caused "great bodily harm," to support the underlying felony of aggravated battery (and thus, armed violence). *fn2

The trial judge found each of the defendants guilty and, on October 3, 1996, he sentenced Dellinger, Powell, and Muhammad to concurrent sentences of 19 years each on the attempted murder and armed violence charges. The other convictions merged in the judgment. On direct appeal Dellinger, now represented by a different assistant public defender, argued that the evidence was insufficient to convict him of attempted murder, that he did not cause "great bodily harm" as required for aggravated battery, and that the convictions for armed violence and aggravated battery arose from the same act as the attempted murder and should be vacated under Illinois law as violating the "one act, one crime" rule. On September 30, 1997, the Illinois Appellate Court rejected Dellinger's arguments, and affirmed his convictions. People v. Dillinger [sic], No. 96-3640 (Ill.App.Ct. Sept. 30, 1997) (unreported order). With respect to the sufficiency of the evidence, the court concluded that the act of firing a gun was sufficient to support a finding of an intent to kill, and that under Illinois law a gunshot wound was "great bodily harm" sufficient to support the underlying felony of aggravated battery (and thus, armed violence). After rejecting Dellinger's "one act, one crime" argument, the Illinois Appellate Court further concluded that the trial court was required to impose consecutive sentences under 730 ILCS 5/5-8-4(a). *fn3 The Illinois Appellate Court concluded that "the shooting of [two] women was sufficient to establish great bodily harm, and . . . it also was sufficient to meet the severe bodily injury criterion set forth in [730 ILCS 5/5-84(a)]. Defendant's sentences for attempted murder and armed violence must be served consecutively." Dillinger [sic], slip op. at p.8. The Appellate Court then vacated Dellinger's sentence and remanded the case for resentencing in accordance with its decision.

In October 1997, Assistant Public Defender Robert Drizin wrote Dellinger, advising him of the Appellate Court's ruling imposing consecutive sentences and informing him that an assistant public defender would represent him on resentencing. Furthermore, the letter informed Dellinger that if he wanted to file a pro se petition for leave to appeal the Illinois Appellate Court's decision, he could do so within 21 days of the Appellate Court's decision. Dellinger sought leave to appeal pro se to the Illinois Supreme Court twice thereafter (although he did not raise the issue of consecutive sentencing either time), but both petitions were denied by the Illinois Supreme Court as untimely.

At resentencing, Dellinger was represented by another assistant public defender, Susan R. Smith, but she did not challenge the court's imposition of two consecutive 15-year sentences, for a new total of 30 years. Dellinger then began a direct appeal of his new sentence, this time represented by Assistant Public Defender Thomas Finegan. Once again he did not challenge the issue of consecutive sentences, nor did he claim Smith had been ineffective in failing to challenge that ruling. Instead, his sole challenge involved the constitutionality of Illinois' "Truth-in-Sentencing" statute, 730 ILCS 5/3-6-3(a)(2)(ii), which limited good-time credit to 4.5 days for each month of sentence. *fn4 In January 1999, the Illinois Supreme Court declared the statute unconstitutional, People v. Reedy, 708 N.E.2d 1114, 1122 (Ill. 1999), and in February 1999, the Illinois Appellate Court applied this ruling to Dellinger's case, concluding that he was eligible for one day of good conduct credit for each day served. People v. Dellinger, No. 1-98-0448 (Ill. App. Ct. Feb. 22, 1999) (unpublished summary order).

In the meantime, Dellinger's co-defendant, Powell, who was represented by appointed counsel, had also appealed his initial convictions. On June 30, 1998, the Appellate Court affirmed his convictions on all counts, but, unlike its action in Dellinger's case, did not remand the case for consecutive sentencing under 730 ILCS 5/5-8-4(a). People v. Powell, 701 N.E.2d 68 (Ill.App.Ct. 1998). *fn5 Of course, Powell's decision was rendered by a different panel of judges than the one that decided Dellinger's appeal.

Meanwhile, Dellinger filed a pro se petition for postconviction relief in Illinois state court, raising several issues including the sufficiency of the evidence. However, he did not raise the consecutive sentencing issue at this point either, nor did he claim that Smith or Finegan were ineffective in failing to do so themselves. The Circuit Court of Cook County denied this ...

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