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U.S. EX REL. LEAKS v. PIERCE

August 21, 2003

UNITED STATES OF AMERICA EX REL. KERMIT LEAKS, PETITIONER,
v.
GUY PIERCE, RESPONDENT



The opinion of the court was delivered by: Blanche Manning, District Judge

MEMORANDUM AND ORDER

Following a bench trial in the Circuit Court of Cook County, petitioner Kermit Leaks was convicted of first degree murder, attempted first degree murder, and armed robbery under an accountability theory. He was subsequently sentenced to concurrent terms of 22 years of imprisonment. He unsuccessfully pursued a direct appeal and sought collateral relief from the Illinois courts. This petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 followed. For the following reasons, Leaks' petition is denied.

I. Background

The court will presume that the state court's factual determinations are correct for the purposes of habeas review as Leaks has not provided clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The court thus adopts the state court's recitation of the facts.

At trial, Danny Andrich testified that, on October 13, 1996, Jose Rodriguez drove Andrich and his girlfriend, Gloria Méndez, to a location in Chicago. Rodriguez removed a bag of drugs from a hidden location in the vehicle, gave Andrich a "rock," and took a "wicky stick" for himself. On that same date, Danny Carter was out driving his car, with Leaks in the [ Page 2]

passenger seat. Carter, who was carrying a gun, arrived on the scene and pulled up behind Rodriguez's car.

Carter got out of his car and walked towards Rodriguez. He threatened to kill Méndez and pulled the trigger. Lucidly for Méndez, the gun did not fire. Carter then shot Rodriguez in the head and took the bag of drugs. Leaks slid over to the driver's side and drove alongside Rodriquez's car. Leaks yelled out to Carter, telling him to "shoot her" and to "hurry up" and "do it." After Carter got back into the car, Leaks drove away.

Méndez also testified to substantially the same version of events. She did not, however, see what was in the bag that Rodriguez removed from his car. She also thought that Carter wanted to steal her purse or jewelry when he began to threaten the occupants of Rodriguez's car. The State stipulated that Leaks admitted he was in the car and that he drove it away after Rodriguez was shot. Defense counsel stipulated that neither Andrich nor Méndez mentioned that Leaks said anything on the day of the shooting. Andrich and Méndez identified Leaks in a photo array three days after the shooting and also identified him in a subsequent line-up and at trial. The court found that Leaks was guilty of all charges based on a theory of accountability.

On direct appeal, Leaks' counsel sought leave to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). Leaks raised five arguments in response: (1) the assistant public defender who represented him at trial was biased because Leaks had filed complaints against other assistant public defenders with the Attorney Registration and Disciplinary Commission; (2) the testimony of the State's witnesses was "embellished" to support a finding of accountability because the witnesses were under the influence of drugs at the time of the offense and one witness lied on the stand; (3) trial counsel was ineffective because he failed to [ Page 3]

communicate with him and disagreed with him regarding defense strategy; (4) the State lacked physical evidence linking him to the shooting and based its case on testimony that was "hopelessly, [sic] contradictory, illogical, [sic] and biased, on behalf of the State"; and (5) he was not provided with a complete trial record.

The Illinois Appellate Court affirmed the judgment of the Circuit Court and permitted counsel to withdraw. Leaks filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court arguing that: (1) he was denied a direct appeal as of right because the Appellate Court ruled against him; (2) the Appellate court erroneously permitted counsel to withdraw because his appeal raised meritorious issues; (3) trial counsel was ineffective because he failed to impeach witnesses, file a motion to suppress (the subject of this motion is unclear), attack suggestive identification, or seek to suppress Leaks' statements; (4) the State did not prove him guilty beyond a reasonable doubt; and (5) the State's identification of him violated his rights to due process because it was "tainted with suggestive tactics by police." The Supreme Court denied Leaks' PLA.

Leaks also filed a state post-conviction petition, which was denied. Leaks appealed and his attorney sought leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). The Illinois Appellate Court affirmed the judgment of the Circuit Court and permitted counsel to withdraw. Leaks filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court arguing that: (1) the Illinois Appellate Court erroneously found that certain claims raised by Leaks were barred because they could have been raised on direct appeal; and (2) the Illinois Appellate Court violated his due process rights by ruling against him. The Supreme Court denied Leaks' PLA. [ Page 4]

This § 2254 petition followed. Leaks contends that: (1) trial counsel was ineffective; (2) the State used perjured testimony to obtain a conviction; (3) the State failed to prove that he was guilty beyond a reasonable doubt; (4) the trial court abused its discretion when it allowed the State to use stipulations at trial, refused to allow him to present a post-trial motion, denied post-conviction relief without first holding an evidentiary hearing, denied his motion to reconsider based on newly discovered evidence, and excluded a motion for a new trial from the record.

II. Discussion

A. Threshold Matters

The court will begin by summarizing the rules governing exhaustion and procedural default and by recapping the standard of review that guides this court in resolving Leaks' § 2254 petition.

1. Exhaustion and Procedural Default

Before this court may reach the merits of Leaks' federal habeas claims, it must consider whether he has exhausted his state remedies and avoided procedural default under Illinois law. See ...


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