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HARDING v. STERNES

June 9, 2003

LINNELL HARDING, A/K/A DONNELL BURT, PETITIONER, VS. JERRY STERNES, RESPONDENT.


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Linnell Harding*fn1 petitions for a writ of habeas corpus under 28 U.S.C. § 2254 based upon his trial counsel's alleged ineffectiveness and the state trial court's decision to exclude what he believes was a key piece of evidence. For the reasons explained below, the Court finds that Harding is not entitled to relief on either claim, and we therefore deny the petition.

Facts & Procedural History

At about 4:00 a.m. on August 10, 1991, Rafael Colon's car was stolen at gunpoint — literally right out from under him. A week later, while responding to a disturbance call, the police found Colon's car at a house on West Washington Street where Linnell Harding was hanging out. When the police learned that the car was registered to Colon, Harding, who initially had been arrested for disorderly conduct as a result of the disturbance at Washington Street, was charged with armed robbery and possession of a stolen motor vehicle.

At trial, the prosecution called Colon, who described the carjacking and identified Harding as one of the perpetrators. It also called Officer Howard Lodding, one of the police officers who responded to the Washington Street call and ultimately found Colon's car in Harding's possession. Lodding testified that Harding told him the car was his and consented to the search of the car, which ultimately revealed that the car belonged to Colon.

After the court denied his motion for a directed verdict, Harding's attorney called Harding's brother, his mother and two of his cousins, all of whom testified that Harding was at his mother's house when Colon's car was taken. Additionally, Harding took the stand in his own defense, testifying that he did not steal Colon's car and that, at the time of the incident, he was at his mother's house. Harding admitted that he had been at the Washington Street address and had the keys to Colon's car. But he testified that a man he knew, Artric Jordan, had loaned him the car and given him the keys, and that he had no idea the car was stolen. Harding also attempted to show that Jordan had stolen Colon's car. Jordan had been arrested for carjacking less than three weeks after Colon's car was taken. But in response to a motion in limine filed by the prosecution, the trial court precluded Harding from introducing evidence of the arrest. The court did, however, permit Harding's attorney to recall Colon to the stand during the defense case to show him a mugshot of Jordan. Colon testified that he had never seen Jordan before and did not see him the night of the carjacking. Harding's attorney nonetheless argued to the jury, based on Harding's testimony and that of the alibi witnesses, that Jordan had stolen Colon's car.

Harding had several prior convictions, including one for armed robbery, one of the very offenses for which he was being tried. In response to a defense motion in limine, the trial court ruled that if Harding testified, the prosecution could elicit that he had been convicted of felonies, as well as the dates of the convictions. But, the court ruled, the nature of the offenses was inadmissible because the jury "would tend to convict him just because he's an armed robber." Record, Z-9. The court also barred the prosecution from eliciting the sentences that Harding had been given, concluding that this information did not bear on Harding's credibility. Id., Z-10.

As it turned out, however, the prosecution chose not to elicit Harding's priors on cross-examination. On re-direct, however, Harding's attorney raised the issue, over the prosecution's objection. Counsel questioned Harding regarding the fact that he had given a false name and address to the police when arrested, a matter about which the prosecution had questioned Harding on cross examination. Counsel asked Harding why he had done this, and Harding replied, "You know, it puzzle me right now today, that is one of the fear that you have of the polices really, it's one of the fears, you know." Trial Transcript, AA-235 — AA-236. There ensued the following examination:

Q: Have you ever been arrested before?

A: Yes, I have. Yes, I have.

Q: And you've been convicted, is that correct?

A: Yes, I have.

MR. CALLAHAN [prosecutor]: Objection, this is beyond the scope at this point, Judge.
THE COURT: All right. Well, I'm going to leave it. So I'll overrule the State's objection.
MR. STANTON [defense counsel]: Q: On October the 7th of 1982 before his Honor Judge McNulty were you convicted of a crime?
A: Yes, I was.

MR. CALLAHAN: Objection, this is beyond the scope.

WITNESS: Yes, I was.

THE COURT: Well, no, it is not. It's collateral but the cross-examination related to truthfulness, this relates to truthfulness.
MR. CALLAHAN: Fine, Judge.
MR. STANTON: Q: And as a result were you sentenced to thirty months probation?
A: Yes, I was. Yes, I was.
Q: On May the 1st of 1989 were you also convicted of the charge of unlawful use of weapon by a felon?
A: Yes, I was.
Q: And were you given a sentence of two years in the Illinois Department of ...

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