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United States District Court, Northern District of Illinois, Eastern Division

January 28, 2003


The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge


Terrence Lyda ("Lyda") has filed a self-prepared 28 U.S.C. § 2254*fn1 Petition for Writ of Habeas Corpus ("Petition"), using the form of Petition provided by this District Court's Clerk's Office for that purpose and completing the document both by filling in the blanks in the form and by including a 10-page written addendum and several exhibits. For the reasons stated in this memorandum opinion and order, the Petition is dismissed summarily (see Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("Section 2254 Rules")).

After the summary description in Petition Part I of Lyda's conviction and direct appeal proceedings, Part II sets out the nature and course of his later collateral proceedings in the state court system: Lyda's September 1, 2000 filing of a post-conviction petition in the Circuit Court of Cook County, followed by its summary dismissal on October 27, 2000, then by the affirmance of that summary dismissal by the Illinois Appellate Court on June 25, 2002 and finally by the Illinois Supreme Courts denial of leave to appeal that last decision on October 2, 2002. That sequence presents no problem of the current Petition's potential untimeliness in terms of the one-year limitation period established by Section 2244(d)(1) : With the one-year time clock beginning to tick on March 22, 2000 (the date when Lyda's Opportunity to file for certiorari in connection with his unsuccessful direct appeal expired, see Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002)), after which the limitations clock was tolled under Section 2244(d)(2) during the pendency of Lyda's state court post-conviction proceedings, it is clear that a good deal less than the statutory one-year limit had elapsed before Lyda filed his Section 2254 Petition here.

But although Lyda's state post-conviction proceedings thus rendered his current effort timely, at the same time they help to defeat his attempt to obtain federal habeas relief as a substantive matter, This Court has obtained copies of both unpublished orders of the Illinois Appellate Court for the First District dealing with Lyda's crimes: the unpublished July 15, 1999 order in Case No. 1-97-3927, which affirmed his conviction and sentence on direct appeal, and the unpublished June 25, 2002 order in Case No, 1-00-4185, which affirmed the dismissal of his state court post-conviction proceeding. Although Lyda's current Section 2254 Petition seeks to advance five grounds for relief, those Illinois Appellate Court orders reveal that he must fail on all five as a matter of law. None requires extended discussion.

First, Lyda's present claims of unconstitutionality related to the denial of his motion to suppress a lineup identification "as the tainted fruits of an illegal arrest" (Ground One) and to the asserted failure to prove him guilty beyond a reasonable doubt (Ground Two) were addressed by the Appellate Court on direct appeal. As to Ground One, the Appellate Court's decision placed entirely permissible reliance on United States v. Crews, 445 U.S. 463, 472-74 (1980), so that Lyda flunks the standard set out in Section 2254(d)(1). And as for Ground Two, Lyda did not rely before the Appellate Court on federal constitutional principles, rather than state law authorities, so that no federal attack can be launched here in the first instance.*fn2

As for the other three claims — ineffective assistance of trial counsel (Ground Three), the claimed unconstitutionality under Apprendi v. New Jersey, 530 U.S. 466 (2000) of Lyda's consecutive 12-year sentence for attempted first degree murder (Ground Four)*fn3 and ineffective assistance of appellate counsel on that direct appeal (Ground Five) — Grounds Three and Five appear to have been included in Lyda's post-conviction petition to the state Circuit Court, but he then did not submit them for resolution by the Illinois Appellate Court. Hence those contentions are foreclosed by procedural default (Lyda makes no effort to establish cause and prejudice relating to their not having been tendered to the Illinois courts for appellate review). Finally, Lyda's Apprendi — related claim (Ground Four) is wholly without merit, for the teaching of that case does not extend to the imposition of consecutive sentences such as the one about which Lyda complains here (see, e.g., United States v, Parolin, 239 F.3d 922, 92930 (7th Cir. 2001).

Accordingly, as indicated at the outset, "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court" (Section 2254 Rule 4) That being the case, that same Rule 4 mandates the summary dismissal of the Petition, and this Court so orders.

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