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U.S. EX REL. CLEMONS v. BARHAM

January 17, 2003

UNITED STATES OF AMERICA EX REL. SAMUEL CLEMONS, PETITIONER,
v.
WILLIAM R. BARHAM, WARDEN, RESPONDENT



The opinion of the court was delivered by: Wayne R. Andersen, United States District Judge

MEMORANDUM OPINION AND ORDER

This case is before the Court on the petition of Samuel Clemons for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we deny the petition for habeas corpus.

BACKGROUND

For purposes of federal habeas review, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254 (e). Clemons does not challenge the statement of facts set forth in the order of the Illinois Appellate Court affirming his robbery conviction. People v. Clemons, No. 1-97-3577 (Ill.App. Ct. June 10, 1999). Accordingly, we will adopt such facts as our own.

Clemons' conviction arose from the robbery of Sondra Dillon ("Dillon"), an employee of Clothes Bin Laundromat ("the laundromat"). Dillon testified that she heard a knock at the laundromat door on February 12, 1996, at around 10:00 p.m., after the close of business. Dillon recognized Clemons and allowed him to enter the store after he told her he had a calculator he wanted to return to her employer. She testified that, upon entering the laundromat, Clemons urinated on the floor, choked her when she turned her back on him, and then removed $140 from her pants pocket. Dillon also testified that Clemons attempted to pull down her pants, but he was unable to do so. After calling the authorities, she informed an investigating officer of where Clemons lived, and the next day officers arrested Clemons outside his residence.

At trial, Clemons testified that he went to the laundromat to use the pay phone. While there, he found a wallet on the floor and, as a joke, asked Dillon to identify the contents. He testified that she told him the wallet contained $140. He counted $325 and informed Dillon that he would take $25 as a reward for finding it. The two struggled over the wallet and, immediately thereafter, Clemons left the laundromat. He explained that he kept the money in the wallet because it contained no identification.

PROCEDURAL HISTORY

Clemons, proceeding pro se, appealed his conviction to the Illinois Appellate Court, raising the following seven issues: 1) he was denied effective assistance of counsel when his lawyer failed to file a motion for a "change of venue" or a motion for a jury trial; 2) he was denied effective assistance of counsel when his lawyer failed to make proper objections to the State's Attorney's questions which suggested that he attempted to rape the victim when in fact no rape occurred or was charged; 3) he was denied effective assistance of counsel when his attorney failed to file proper "motions" when the State was allowed to amend its answer to discovery and call a witness who was not originally disclosed in the answer; 4) he was denied effective assistance of counsel when his attorney failed to impeach the State's witnesses; 5) he was not proven guilty beyond a reasonable doubt; 6) the verdict was based on inconsistent testimony; and 7) he was improperly sentenced as a Class X felon. On June 10, 1999, the Illinois Appellate Court affirmed his conviction and sentence.

Clemons subsequently filed a petition for leave to appeal to the Illinois Supreme Court in which he raised the following four issues: 1) he was denied effective assistance of counsel when his lawyer failed to file a motion for a "substitution of judge" or a motion for a jury trial; 2) he was denied effective assistance of counsel when his lawyer failed to make proper objections to the State's questioning regarding the uncharged rape; 3) he was denied effective assistance of counsel when his lawyer failed to impeach the State's witnesses; and 4) he was not proven guilty beyond a reasonable doubt. On February 24, 2000, the Illinois Supreme Court denied leave to appeal. Clemons did not file a petition for post-conviction relief in the state court.

Clemons' petition for writ of habeas corpus was filed on April 11, 2000. This Court recognized in Clemons v. Barham, 2001 WL 1636427 (N.D. Ill. Dec. 18, 2001), that, although Clemons identified ten issues, only the following seven claims were properly raised: 1) he was denied effective assistance of counsel when his lawyer failed to move for a substitution of judge (petitioner's claim ia); 2) he was denied effective assistance of counsel when his lawyer failed to demand a trial by jury (claim ib); 3) he was denied effective assistance of counsel when his lawyer failed to object to prejudicial questions and comments that discredited the petitioners s character (combined claims ic, ie, and ih); 4) he was denied effective assistance of counsel when his lawyer failed to object and demand a mistrial when the State was allowed to amend discovery during the trial (combined claims id and ig); 5) he was denied effective assistance of counsel when his lawyer failed to impeach a witness when the testimony conflicted with previous statements (claim if); 6) he was not proven guilty beyond a reasonable doubt (claim ii); and 7) the verdict was based on impeached and inconsistent testimony (claim iii).

In that opinion, we found Claims Four, Five and Six procedurally defaulted and, therefore, we denied them. See id. at *6. However, we also held that Claims One, Two, Three, and Seven were not procedurally defaulted. See id. Accordingly, respondent was granted leave to file a brief addressing the merits of the non-defeated claims, which he has done. Clemons failed to file a reply.

DISCUSSION

Federal courts may issue a writ of habeas corpus if a petitioner demonstrates that he is "in [state] custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2245 (a); Moffat v. Gilmore, 113 F.3d 698, 702 (7th Cir. 1997); see also Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1370 (7th Cir. 1994) (en banc) ("[F]ederal courts can grant habeas relief only when there is a violation of federal statutory or constitutional law"). The federal courts may not grant habeas relief under Section 2254 unless the state court's judgment (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 ...


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