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February 19, 2003


The opinion of the court was delivered by: Richard Mills, U.S. District Judge

Cocaine cost Montenegro the American dream.

Petitioner was admitted to the United States in 1981 and later became a lawful permanent resident in 1987. Because of his conviction, Petitioner will be deported upon release from prison.

This cause is before the Court on a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.*fn2 The Court ordered Respondent to file an answer to the Petition and he has complied. Upon review of the pleadings and all of the exhibits, the Court concludes that an evidentiary hearing is not required. Pursuant to Rule 8 of the Rules Governing § 2254 cases, the Court will dispose of this petition based solely on the parties' submissions.


Section 2254(e)(1) requires federal courts to give deference to the state court's factual determinations. 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 546 (1981) (holding this section applies to both trial and appellate court determinations). Accordingly, the Court's factual findings are based upon the facts as stated in the orders issued by the Illinois Appellate Court in both People v. Montenegro, No. 1-96-4418 (May 18, 1998) and People v. Montenegro, No. 1-98-2340 (July 12, 1999). Petitioner does not challenge these facts.

In February 1995, a confidential informant bought a small amount of cocaine from "Jose" in a house located at 401 So. 45th Avenue in Northlake, Illinois. The house was rented by Petitioner Marcelino Montenegro. The informant advised the police of the sale and a warrant was executed at the house the next day. Police recovered 70 bricks of cocaine worth an estimated $6.5 million from the basement of Petitioner's house.

Petitioner was charged with possessing, with the intent to deliver, more than 900 grams of cocaine. Prior to the trial, Petitioner filed motions to quash the search warrant and for identification and production of the informant. The trial court denied all three motions.

At trial, police officers testified they discovered three cartons of cocaine in a basement crawl space and one plastic bag filled with cocaine underneath the stairs leading from the basement to the kitchen.

Petitioner testified he told officers at the time of his arrest that the cocaine belonged to Jose Garcia and that Petitioner agreed to sell it for $16,000 per kilogram. Petitioner claimed he made the statement in response to threats that his wife would be arrested and because the police called him a stupid Mexican. The police denied making these statements.

Petitioner's post-conviction petition was dismissed by the state trial court on March 31, 1998. The dismissal was affirmed by the Illinois Appellate Court on July 12, 1999 and the petition for leave to appeal was denied by the Illinois Supreme Court on July 5, 2000.


The petition for writ of habeas corpus was filed on August 11, 1999.*fn3 Petitioner makes five claims therein. First, Petitioner claims he was convicted in violation of the Sixth and Fourteenth Amendments because he was denied the right to confront the confidential informant.

Second, Petitioner claims the warrant used to search his home was procured in violation of the Fourth and Fourteenth Amendments. Third, Petitioner claims he was denied a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978) in violation of the Fourth and Fourteenth Amendments. Fourth, Petitioner claims he was convicted in violation of the Sixth Amendment because his trial counsel was ineffective. Lastly, Petitioner argues his appellate counsel provided ineffective assistance because he failed to argue the trial court improperly excluded evidence supporting Petitioner's defense.


A petitioner is required to exhaust the remedies available in the state court unless there is an absence of an available state corrective process or circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1)(A). Petitioner exhausted his state court remedies by utilizing both a direct appeal and a post-conviction petition.

Once a petitioner exhausts his state court remedies, he may seek federal habeas review of his claims if they allege he is being held in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Before reviewing the substance of a petitioner's claim, the court must first address whether any of the claims have been procedurally defaulted. Procedural default can occur in three ways. First, when the petitioner presents an issue within a petition never before presented to the state court for review. See Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995). Second, when the petitioner failed to properly and fairly raise the federal element of an issue to the state court for review. See Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992). Fair presentment of that claim "requires the petitioner to give the state courts a meaningful opportunity to pass upon the substance" of the claim. Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999). The petitioner must have placed both the operative facts and the controlling legal principles before the state courts. See Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001). Or third, when the state court previously disposed of an issue on an independent and adequate state law ground, such as a state procedural bar. See Coleman v. Thompson, 501 U.S. 722, 729-730 (1991); Stewart v. Smith, 536 U.S. 856, 122 S.Ct. 2578 (2002); Braun v. Powell, 227 F.3d 908, 912 (7th Cir. 2000). The state court must have "clearly and expressly" relied on procedural default as the basis of its ruling. Harris v. Reed, 489 U.S. 255, 263 (1989). If the state would treat a claim as procedurally default barring further review, that default likewise bars federal review of the claim, even if it was never presented to the state court. Thus, "federal courts insist that the habeas petitioner respect the structure of the state court system, by complying with its rules and appellate scheme, before they will provide independent, collateral review of the petitioner's claims." Cawley v. DeTella, 71 F.3d 691, 694 (7th Cir. 1995).

Federal courts may only review a defaulted claim if the petition shows cause for failure to raise the claim at the appropriate time and actual prejudice resulting from such failure. See Reed, 489 U.S. at 262.

Absent such a showing, a defaulted claim is reviewable only if refusal to consider it would result in a "fundamental miscarriage of justice," that is, where "a constitutional violation has probably resulted in the conviction of one who is actually innocent. . . ." Murray v. Carrier, 477 U.S. 478, 495-96 (1986) (internal quotations and citations omitted). This standard requires a petitioner to show that it is more likely than not that no reasonable juror would have convicted him. Schlup v. Delo, 513 U.S. 298, 329 (1995); Rodriguez, 193 F.3d at 917.

If a federal claim has been properly presented to the state courts, a federal court may grant habeas relief only if the state court's decision on the merits of an issue was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Brown v. Sternes, 304 F.3d 677, 690 (7th Cir. 2002); Farmer v. Litscher, 303 F.3d 840, 845 (7th Cir. 2002).

A state-court decision is "contrary to" clearly established precedents if it "applies a rule that contradicts the governing law set forth in our cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, 529 U.S. 362, 405-406 (2000). The Supreme Court clarified that even if "the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable." Penry v. Johnson, 532 U.S. 782, 793 (2001). A state court is not required to cite Supreme Court cases or even be aware of the cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, ___ U.S. ___, 123 S.Ct. 362, 365 (2002). "The court may grant relief under the `unreasonable ...

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