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WILSON v. SCHOMIG

October 28, 2002

GLENN WILSON, PETITIONER,
V.
JAMES SCHOMIG, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm, United States District Judge

    ORDER

Now before the Court is Petitioner, Glenn Wilson's ("Wilson"), Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, his Amended Petition is DENIED.

Background

At approximately 10:00 p.m. on October 27, 1988, Wilson and his younger half-brother, Alvin Alexander ("Alexander"), went to the S&S Liquor Store in Bloomington, Illinois, to commit a robbery. They had apparently been free basing cocaine prior to the robbery and set out to rob the liquor store to get money to buy more cocaine. According to the testimony of Tracy Gault ("Gault"), an S&S employee and the only surviving witness that night, two customers and another store employee, Robert Webb ("Webb"), were ordered to lie down on the floor and she was ordered to open the cash register. After Alexander took the money from the register, Gault was ordered to open the safe and hand the money in it to Alexander. Alexander then hit her in the face with his gun, knocking her glasses off and causing her to bleed; Gault then crouched against the wall. She heard three gunshots, and then the store became quiet. After about 30 seconds, Gault crawled out from near the safe and noticed that the female customer had blood coming from her mouth. She then called 911.

When the police arrived, the male customer was already dead, but the female customer and Webb were still breathing. Webb and the female customer subsequently died, with the cause of death for each of the three victims being a gunshot wound to the head.

On June 1, 1989, Wilson was arrested on an unrelated charge. However, during the first eight days that he was in custody, he made several statements to the police regarding the S&S murders. He was ultimately charged with six counts of murder and one count of armed robbery in the Circuit Court for McLean County, Illinois.

On July 25, 1992, a jury in the Circuit Court of McLean County convicted Wilson on three counts of first degree murder and the one count of armed robbery. At the first stage of the death penalty hearing, the same jury found him eligible for the death penalty on the basis of multiple murder and murder in the course of a forcible felony. At the second stage of the hearing, Wilson waived his right to a jury and proceeded before the trial judge, who found that there were no sufficient mitigating factors to preclude the imposition of the death sentence. He was sentenced to death and a term of 30 years for the armed robbery conviction.

Wilson filed an appeal with the Illinois Supreme Court, raising 11 claims of error: (1) the statements that he made to police should have been suppressed at trial since Miranda warnings were not given and the police interrogation was coercive; (2) defense counsel was ineffective for failing to claim that the statements Petitioner made to a county mental health therapist were involuntary and the result of coercion; (3) statements that Petitioner made to a county mental health therapist were erroneously admitted into evidence in violation of the Mental Health and Developmental Disabilities Act; (4) the State's Attorney incorrectly issued subpoenas without the direction of the Grand Jury or the supervision of the court; (5) he was denied a fair trial by the use of evidence of his prior armed robbery conviction in spite of a motion in limine; (6) he was not proven eligible for the death penalty beyond a reasonable doubt; (7) the sentence of death was excessive; (8) the use of aggravation evidence of his gang membership violated his constitutional rights; (9) the trial court denied Petitioner a fair sentencing hearing by refusing to limit the State to one closing argument; (10) the Illinois death penalty statute is unconstitutional because it places a burden of proof on the defendant which precludes meaningful consideration of mitigation; and (11) the Illinois death penalty statute is unconstitutional because it does not sufficiently minimize the risk of arbitrarily or capriciously imposed death sentences. On December 24, 1994, the Illinois Supreme Court affirmed Wilson's convictions and sentences. His Petition for Rehearing was denied on April 3, 1995, and a Petition for Writ of Certiorari to the United States Supreme Court was also denied.

Petitioner filed a pro se petition for post-conviction relief with the circuit court that raised seven arguments: (1) trial counsel was ineffective for failing to investigate an alibi witness; (2) trial and appellate counsel were ineffective for failing to argue that an in-court identification violated his due process rights because he was the only black man in the courtroom; (3) Petitioner's right to be present at all critical stages of his trial was violated when jurors were interviewed and one dismissed out of his presence and trial and appellate counsel were ineffective for failing to argue this claim; (4) the right to an impartial jury was violated when a juror was dismissed for not revealing a prior relationship with the mother of one of the murder victims and for talking to other jurors about news stories about the trial; (5) trial and appellate counsel were ineffective for failing to recognize that a fitness hearing was required since Petitioner was given psychotropic drugs before and during trial and sentencing; (6) the right to present witnesses was violated when prosecutors intimidated Margaret Wilson to keep her from testifying; and (7) appellate counsel was ineffective for failing to argue that the trial court had erred in denying the motion to preclude the State from seeking the death penalty. The circuit court then appointed counsel to represent Wilson, and his counsel filed an amended petition, which raised only four claims of error: (1) he was denied effective assistance of counsel at the hearing on his motion to suppress statements where his attorney failed to request that he be examined by a psychologist and that a psychologist be appointed to aid in the preparation for the hearing; (2) he was denied effective assistance of counsel where counsel failed to retain an expert and to present psychological and psychiatric evidence in defense; (3) he was denied effective assistance of counsel at his death penalty hearing where his attorney failed to request that he be examined by a psychologist or psychiatrist to aid in the preparation for the hearing and presentation of evidence in mitigation, and further failed to investigate and present a witness in mitigation; and (4) he was denied effective assistance of appellate counsel where his attorney failed to raise the issue that the State was precluded from seeking the death penalty. After a hearing, his petition for post-conviction relief was dismissed.

Petitioner then pursued an appeal from this denial in which he presented five claims: (1) the trial court abused its discretion in denying the defense's request for funds; (2) the trial court erred in dismissing the petition; (3) Petitioner was denied the effective assistance of appellate counsel when counsel failed to argue that the State was precluded from seeking the death penalty; (4) the trial court arbitrarily and capriciously imposed a premature deadline for filing the amended petition; and (5) the Illinois Supreme Court should adopt a uniform test governing when an expert should be appointed during both trial and post-conviction proceedings. On May 18, 2000, the Illinois Supreme Court affirmed the circuit court's denial of funds to hire an expert and dismissal of Wilson's post-conviction petition. His request for rehearing was denied on July 3, 2000, and a Petition for Writ of Certiorari to the United States Supreme Court was also denied.

Wilson filed the present Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, in which he presents essentially four claims for relief: (1) trial counsel provided ineffective assistance at Petitioner's capital sentencing hearing by failing to investigate and present significant mitigating evidence, including evidence relating to Wilson's organic brain dysfunction; (2) the trial judge erred in failing to suppress all of Petitioner's statements to law enforcement officers on Miranda grounds; (3) trial counsel provided ineffective assistance in not challenging the admissibility of Wilson's statements to law enforcement officers on the grounds that they were involuntary and the result of coercion and in failing to seek the suppression of statements Wilson made to a county mental health therapist on Miranda grounds; and (4) Illinois' death penalty system has pervasive constitutional flaws. The matter is now fully briefed, and this Order follows.

Legal Standard

Before reaching the merits of a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, a district court must consider "whether the petitioner exhausted all available state remedies and whether the petitioner raised all his federal claims during the course of the state proceedings." Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991), quoting Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988). If the answer to either of these questions is "no," then the failure to exhaust state remedies or procedural default bars the petition. Id. In other words, if a petitioner fails to give the state courts a full and fair opportunity to review his claims, then his petition must fail. Bocian v. Godinez, 101 F.3d 465, 468-69 (7th Cir. 1996).

Exhaustion of a federal claim occurs when it has been presented to the highest state court for a ruling on the merits or when it could not be brought in state court because a remedy no longer exists when the federal petition is filed. Id. In the present case, Respondent does not argue that Petitioner has failed to exhaust his state remedies.

Procedural default occurs when a claim could have been but was not presented to the state court and cannot, at the time the federal petition is filed, be presented to the state court. Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992). This occurs in one of two ways.

First, a procedural default may occur when a petitioner fails to pursue each appeal required by state law, Jenkins v. Gramley, 8 F.3d 505, 507-08 (7th Cir. 1993), or when he did not assert the claim raised in the federal habeas petition in the state court system. Resnover, 965 F.2d at 1458-59. The second way in which a petitioner may procedurally default a claim is when a state court disposes of the case on an independent and adequate state law ground, regardless of whether that ground is substantive or procedural. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2553-55 (1991).

Federal review is barred for claims that are procedurally defaulted unless the petitioner can demonstrate cause and prejudice. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 1572-73 (1982); Farrell, 939 F.2d at 411. Review in federal court is also possible if otherwise a fundamental miscarriage of justice would occur in that a constitutional error probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 864-67 (1995).

With respect to claims that are not barred either for failure to exhaust or procedural default, federal courts must employ a strict analysis. A petition must be denied with respect to any claim previously adjudicated on the merits in a state court unless the decision of the state court:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). See also Lindh v. Murphy, 96 F.3d 856, 868-71 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059 (1997).

Subsection (d)(1) instructs that Supreme Court precedent governs legal questions. Id. at 869. In resolving mixed questions of law and fact, relief is unavailable unless "the state's decision reflects an unreasonable application of the law," meaning federal courts are to have a hands-off attitude unless the state court judgment is premised on an unreasonable error. Id. at 870 (internal quotation marks omitted). A responsible, thoughtful decision that is made after a full opportunity to litigate suffices, "even if it is wrong." Id. at 871, 876-77. Subsection (d)(2) pertains to a decision constituting an unreasonable determination of the facts, and, according to 28 U.S.C. § 2254(e)(1), factual issues are presumed to be correctly resolved. A petitioner must rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Discussion

As previously stated, Wilson presents essentially four claims in his Amended Petition: (1) trial counsel provided ineffective assistance at Petitioner's capital sentencing hearing by failing to investigate and present significant mitigating evidence, including evidence relating to Wilson's organic brain dysfunction; (2) the trial judge erred in failing to suppress all of Petitioner's statements to law enforcement officers on Miranda grounds; (3) trial counsel provided ineffective assistance in not challenging the admissibility of Wilson's statements to law enforcement officers on the grounds that they were involuntary and the result of coercion and in failing to seek the suppression of statements Wilson made to a county mental health therapist on Miranda grounds; and (4) Illinois' death penalty system has pervasive constitutional flaws. Each argument will be addressed in turn.

I. Wilson's First Claim is Without Merit

In his first claim, Wilson alleges that his trial counsel provided ineffective assistance during his sentencing hearing. The seminal case on ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court stated that in order for a prisoner to demonstrate that counsel's performance fell below the constitutional standard, the petitioner would have to show that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. A prisoner must also prove that he has been prejudiced by his counsel's representation by showing "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The courts, however, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 690. "Judicial scrutiny of a counsel's performance must be highly deferential" and "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689.

Wilson argues that he suffers from myriad major mental-health problems, including organic frontal-lobe brain dysfunction, which has many behavioral correlates that are purportedly relevant to his homicidal behavior in this case. He contends that his trial counsel failed to investigate and present mitigating evidence relating to this dysfunction at his capital sentencing hearing and also failed to present evidence from a long-time friend, Michele Ritza ("Ritza").

However, Wilson makes no reference to a claim regarding the testimony of Ritza in either his Memorandum or Traverse. Accordingly, this aspect of his argument is waived, and only the purported failure to present mitigating evidence relating to his organic frontal-lobe brain dysfunction will be addressed.

Wilson raised the issue of ineffective assistance of counsel for failure to investigate and introduce evidence of his mental health condition as mitigation on appeal from the denial of his post-conviction petition. In addressing this claim, the Illinois Supreme Court held:

Defendant alleges that he was denied the effective assistance of counsel when his attorney failed to investigate defendant's mental condition and to use the evidence he would have discovered . . . as mitigation during defendant's sentencing hearing. To support these claims, defendant requested that the trial court appropriate funds to allow him to hire an expert. Defendant explained that his medical records and examinations by other experts reveal that he needs to be examined by a neuropsychiatrist.

Defendant therefore requested funding for an ambulatory EEG. Defendant's attorney averred that he had contacted Dr. Lyle Rossiter, Jr., who had agreed to perform an ambulatory EEG and to examine and evaluate defendant. The cost for the test, test interpretation, and evaluation of defendant totaled $3,786. The trial court denied defendant's motion to retain Dr. Rossiter. On appeal, defendant contends that the trial court abused its discretion in denying this motion.

Trial courts are permitted to exercise a great deal of discretion in resolving post-conviction petitions. This is done to ensure that defendant are permitted an opportunity to advance claims of constitutional deprivation. Whether to allow a defendant's motion for the appointment of an expert in a post-conviction proceeding is a matter that lies within the trial court's discretion. The key ...


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