"[A] state prisoner raising a Fourth Amendment claim is not entitled to
habeas corpus relief if the state has provided the prisoner `an
opportunity for full and fair litigation' of his claim." Terry v. Martin,
120 F.3d 661, 663 (7th Cir. 1997). "A prisoner receives an opportunity
for full and fair litigation of a Fourth Amendment claim when (1) the
prisoner has clearly informed the state court of the factual basis for
that claim and has argued that those facts constitute a violation of his
Fourth Amendment rights and (2) the state court has carefully and
thoroughly analyzed the facts and applied the proper constitutional case
law to the facts." Id.
Ms. Conde presented the same arguments to the Illinois Appellate Court
that she makes here, so the only question is whether the court conducted
a thorough analysis under the correct law. The Illinois court rejected
Ms. Conde's claim that the search of her storage locker, unattached to
her apartment, and the seizure of her key, which was used to open the
storage unit, were unsupported by independent probable cause or the
"plain view" doctrine, see Arizona v. Hicks, 480 U.S. 321 (1987), because
it found that the seizure of the key and the search of the locker were
within the scope of the warrant. Ex. C at 1, 4-5. The warrant authorized
the search of the "premises" and seizure of proof of residency, and the
court relied on two Illinois cases for the proposition that "premises"
included any storage area included in Ms. Conde's lease. See People v.
Taylor, 563 N.E.2d 513, 515 (Ill.App. Ct. 1990) ("The warrant was not
limited to defendant's home or residence, but specifically stated
`premises,' a word which has been construed to include all buildings at
the address listed, including a detached garage." (citing United States
v. Williams, 687 F.2d 290, 292-93 (9th Cir. 1982); United States v.
Bonner, 808 F.2d 864, 866 (1st Cir. 1986)); People v. Gordon,
470 N.E.2d 29, 32 (Ill.App. Ct. 1984) (holding that "entire" first floor
apartment included storage unit in lower level). The two Illinois cases
relied on by the Illinois Appellate Court applied the appropriate
standard from Steele v. United States, 267 U.S. 498 (1925): "[i]t is
enough if the description [in the warrant of the place to be searched] is
such that the officer with a search warrant can, with reasonable effort
ascertain and identify the place intended." Id. at 503. In Steele, the
Court held that the search conducted was within the scope of the
warrant, which authorized the search of "any building or rooms connected
or used in connection with the garage, or the basement or subcellar
beneath the same," because it was "evident that the elevator of the
garage connected it with every floor and room in the building and was
intended to be used with it." Id. The federal courts cited in Taylor
applied this standard and held that "premises" was broad enough to include
outbuildings and detached garages. See 563 N.E.2d at 515. The Illinois
appellate court here also determined that "proof of residency" included
keys. Ex. C at 4 (citing People v. Brown, 661 N.E.2d 533, 537 (Ill.App.
Ct. 1996)). The Illinois appellate court carefully and thoroughly
analyzed the facts and reasonably applied the proper constitutional case
law, see 28 U.S.C. § 2254(d)(1), 50 I cannot grant relief on Ms.
Conde's Fourth Amendment claim.
Ms. Conde's remaining claims are procedurally defaulted. Her motion for
leave to file a late petition for leave to appeal to the Illinois Supreme
Court was denied. See Ex. E; see also Ex. G
Failure to present her "claims to the Illinois Supreme Court in a timely
fashion has resulted in a procedural default of those claims." O'Sullivan
v. Boerckel, 526 U.S. 838, 848 (1999). To overcome procedural default,
Ms. Conde must demonstrate cause for her failure properly to raise the
claims before the Illinois Supreme Court and prejudice from the failure,
or else show that a fundamental miscarriage of justice will result from
the failure to entertain her claims here. See United States ex rel. Bell
v. Pierson, 267 F.3d 544, 551 (7th Cir. 2001). To demonstrate a
fundamental miscarriage of justice, Ms. Conde would have to make a
credible claim that she is actually innocent and support that claim with
new evidence. Id. She offers no such evidence here.
She may be able to demonstrate cause, however; in her motion for leave
to file a late petition for leave to appeal to the Illinois Supreme
Court, she states that her attorney did not tell her until March 22,
2001, that the Illinois Appellate Court had denied her appeal on March
30, 2000. She also claims that she does not speak or understand English
very well, so her failure to file a timely petition for leave to appeal
may have been due to external forces beyond her control. I need not
actually decide this, however, because I find that she cannot demonstrate
prejudice on either of her claims. Prejudice sufficient to overcome a
procedural default means that "[t]he habeas petitioner must show `not
merely that the errors . . . created a possibility off prejudice, but
that they worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions.'" Murray v.
Carrier, 477 U.S. 478, 494 (1986).
Ms. Conde argues that there was insufficient evidence of constructive
possession to convict her. "On habeas review, [I] will reverse the jury
verdict based on the insufficiency of the evidence only if the record
contains no evidence from which a rational trier of fact could find guilt
beyond a reasonable doubt." Mason v. Godinez, 47 F.3d 852, 857 (7th Cir.
1995). I view the evidence in the light most favorable to the
government, id., and I presume that factual determinations by the state
court are correct unless Ms. Conde rebuts the presumption of correctness
by clear and convincing evidence, see 28 U.S.C. § 2254(e)(1). Ms.
Conde offers no new evidence with respect to her constructive
possession, so I take the facts from the opinion of the Illinois Appellate
To sustain a conviction for unlawful possession of a controlled
substance, the State must prove that the defendant had knowledge of the
presence of the controlled substance and that the defendant had the
controlled substance in her "immediate and exclusive possession or
control." People v. Schmalz, 740 N.E.2d 775, 779 (Ill. 2000). "Mere
proximity is not sufficient evidence of actual possession." Id. "Actual
possession is the exercise by the defendant of present personal dominion
over the illicit material and exists when an individual exercises
immediate and exclusive dominion or control over the illicit material."
Id. (citations omitted).
"Constructive possession exists without actual personal present
dominion over a controlled substance, but with an intent and capability
to maintain control and dominion. Where narcotics are found on premises
under the defendant's control, it may be inferred that [s]he had the
requisite knowledge and Possession, absent other facts and circumstances
which might leave a reasonable doubt as to guilt in the minds of the
jury." People v. Frieberg, 589 N.E.2d 508,
524 (Ill. 1992) (citations
omitted). "The rule that possession must be exclusive does not mean that
the possession may not be joint; if two or more persons share immediate
and exclusive control or share the intention and power to exercise
control, then each has possession." Schmalz, 740 N.E.2d at 779 (citations
Ms. Conde rented the apartment in which the police found the heroin
that she was convicted of possessing. Her name appeared on the lease,
which included exclusive use of the locked storage closet, and Ms. Conde
admitted that she paid rent. Ex. C at 5. After reviewing the warrant,
Ms. Conde used a key to open the front door of her apartment. The police
seized the key, which opened both her apartment door and the door of the
storage unit. Id. Ms. Conde admitted that she paid the bills, furnished
the apartment, kept clothing, shoes and purses in both bedrooms, and
slept in both bedrooms. Id. at 3. However, she testified that three other
people were living there, two of whom had keys to the apartment, and that
she never went into the storage closet and did not know there were drugs
in it. Id. at 3.
In one bedroom of the apartment, the police found two clear plastic
bags with white powder inside a woman's shoe in the closet, as well as
cable bill and an application for license plate renewal, both with Ms.
Conde's name and address, on a dresser. In the other bedroom, the police
found nine bags of white powder in a purse that also contained a parking
ticket with Ms. Conde's name on it. Id. at 2. There was a digital gram
scale in the kitchen. In the bathroom, there was a cloth net stretched
over the bathtub with fecal matter on and underneath it. One of the
officers who executed the warrant testified that nets like that were used
by people who swallowed contraband and recovered it by defecating. Id.
Finally, the police used the key that they seized from Ms. Conde to open
the storage unit, which was located just outside the back door of the
apartment and had a number corresponding to her apartment number. Id. at
2, 4. Inside the storage unit, the police found a suitcase that contained
two gallon-sized plastic bags of multicolored pellet shaped balloons of
heroin and two plastic bags of heroin. Id. at 2. The pellet-shaped
balloons also had fecal matter on them. Id. at 6. The state did not test
all of the substances that it recovered from the apartment, but the total
weight of what was tested that was positive for heroin was approximately
1.7 kilograms. Id. at 2-3.
This evidence was more than sufficient to demonstrate constructive
possession. Ms. Conde had control and dominion over the apartment and the
storage locker; both were opened by a key from her key-chain and both
were included on the lease that she signed. Her control over the premises
was exclusive even though she may have shared exclusive possession with
her roommates at the time of the search. The drugs found in the
bedrooms, in which Ms. Conde admitted to sleeping and storing her
belongings, were found in the vicinity of items bearing Ms. Conde's name
and address. Even though she testified that she did not know that there
were drugs in the storage unit, the trial court was not required to
credit her testimony, and could infer her knowledge from her control over
the storage locker. Moreover, there was feces on the drugs found in the
storage locker as well as the net that was in the bathroom, and the trial
court could have inferred that Ms. Conde knew the purpose of the netting
and that there were drugs in her apartment or storage locker. Because
there is sufficient evidence from which a rational trier of fact could
have found guilt of possession beyond a reasonable doubt, Ms. Conde was
not prejudiced by the failure to raise this claim in the Illinois Supreme
Ms. Conde claims that her trial attorney was constitutionally
ineffective for failing to interview or call the three women who were
with her when she was arrested and her apartment was searched. To
demonstrate ineffective assistance of counsel, Ms. Conde must
"demonstrate that h[er] counsel's performance fell below an objective
standard of reasonableness," and "that [s]he was prejudiced by the
deficient performance." Hough v. Anderson, 272 F.3d 878, 890 (7th Cir.
20014 (citing Strickland v. Washington, 466 U.S. 668, 687, 688 (1984)).
Reasonableness is measured according to prevailing professional norms and
under the totality of the circumstances, and "to prevail, the
[petitioner] must overcome the presumption that the challenged act or
omission might have been considered sound trial strategy." Id. at
890-91. To demonstrate prejudice, Ms. Conde must "show that there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 891.
Ms. Conde does not identify with any particularity what testimony the
witnesses might have offered; she states only that one of the three women
with her at the time of her arrest "resided with Defendant prior to and
including the date of arrest" and "may have provided [the] Court with
relevant testimony to challenge the State's application of constructive
possession against Defendant." Petition at 16, This is too speculative to
demonstrate that she was actually prejudiced by the failure to interview
and call these witnesses. See Granada v. United States, 51 F.3d 82, 85
(7th Cir. 1995) (holding that petitioner failed to establish prejudice
from failure to call witnesses "because he has not identified who these
witnesses were or what their testimony would have been"). Even if the
witness could have testified that she lived in the apartment with Ms.
Conde, that would not have precluded a finding of constructive possession
under Illinois law. See Schmalz, 740 N.E.2d at 779 (holding that
exclusive possession may be joint). Ms. Conde was not prejudiced by the
failure properly to raise this claim in the Illinois Supreme Court.
Ms. Conde's petition for habeas corpus is DENIED.
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