The opinion of the court was delivered by: Bucklo, District Judge
MEMORANDUM OPINION AND ORDER
Mariama Conde was convicted in Illinois state court of three counts of
possession of narcotics after the Chicago Police executed a search warrant
of her apartment and seized several kilograms of heroin. She appealed,
lost, and filed a motion for leave to file a late petition for leave to
appeal to the Illinois Supreme Court, which was denied. She files a
petition for a writ of habeas corpus under 28 U.S.C. § 2254, raising
three claims: (1) that the state court erred in denying her motion to
suppress; (2) that there was insufficient evidence of constructive
possession to sustain her conviction; and (3) that her trial counsel
rendered ineffective assistance by failing to interview or call three
witnesses. I deny the petition.
"[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.
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).
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 ...