The opinion of the court was delivered by: CHARLES NORGLE, District Judge
Before the court is Petitioner Dale Fisher's Petition for Writ of
Habeas Corpus filed pursant to 28 U.S.C. § 2254. For the following
reasons, Fisher's petition is denied.
On February 25, 1998, following a bench trial in the Circuit Court of
Cook County, Illinois, Dale Fisher was convicted of possession of a
controlled substance with intent to deliver and sentenced to 15 years in
the Illinois Department of Corrections. In reviewing Fisher's petition,
the court summarizes the facts as described by the Illinois Appellate
Court, which are presumed correct on habeas review. See
Sumner v. Mate, 449 U.S. 539, 544-46 (1981);
28 U.S.C. § 2254(e)(1); see also Rodriguez v. Peters, 63 F.3d 546, 554 (7th
Cir. 1995) ("Factual findings that have been decided by the state trial
or appellate courts are presumptively correct.") (quoting Montgomery
v. Greer, 956 F.2d 677, 680 (7th Cir. 1992)).
At Fisher's trial, Chicago police officer Eugene Bikullius testified to
the following course of events. On June 20, 1996, he saw Fisher get out
of a parked car and walk toward a residence at 4041 West Gladys.
Bikullius observed Fisher holding a brown paper bag in one hand and a
plastic bag with red markings in the other. Fisher put the plastic bag
into the paper bag and handed it to a person standing on the front
porch. The individual looked into the bag and then handed it back to
Fisher. As Bikullius approached, Fisher again tried to give the paper
bag to the other individual, who refused to take it. Fisher then looked
over his shoulder toward Bikullius and dropped the bag to the ground.
The Officer retrieved the bag and observed inside several packets of
what was later determined to be cocaine.
Fisher refuted Bikullius' testimony by testifying as follows. He was
sitting on the front porch with his brother and cousin when they observed
an unmarked police car slowly drive past a vacant lot which was located
adjacent to the house. At the same time, he observed a man running
through the vacant lot. The police car stopped in front of the house and
one of the officers asked him to approach the car. After he refused, the
officers then unsuccessfully made the same request of his brother. The
officers then exited the car, searched him and his brother and asked them
if they observed a man running through the vacant lot. While he was
talking to the officers, another officer retrieved a brown paper bag from
the vacant lot. The officers then looked inside the bag, and put him, his
brother and his cousin in the police car. He denied ever possessing the
On February 25, 1998, Fisher was found guilty and convicted of
possession of a controlled substance with intent to deliver and sentenced
to 15 years of imprisonment. On August 23, 1999, Fisher appealed to the
Illinois Appellate Court, First Judicial District, who affirmed his
and sentence. On February 2, 2000, the Illinois Supreme Court denied
Fisher's pro se Petition for Leave to Appeal.
On September 23, 1999, Fisher filed a pro se petition for post
conviction relief, alleging that: (1) he was denied a fair trial
as a result of the ineffective assistance of his trial counsel; (2) he
was denied a fair trial when Chicago Police Officer, Eugene Bikullius,
gave false and incredible testimony; and (3) his sentence was excessive.
On October 5, 1999, the Circuit Court of Cook County denied Fisher's
petition for post conviction relief. Fisher acknowledges that he
failed to timely appeal the order denying his petition for post
conviction relief. See Pet. for Writ of Habeas Corpus, at 3.
On January 22, 2001, Fisher filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 with this court. Fisher's petition has
been briefed and is now before the court.*fn1
The court first discusses the general rules of federal habeas review,
including procedural default, and then discusses each of Fisher's claims.
Fisher's case is governed by 28 U.S.C. § 2254(d), as amended by the
Anti terrorism and Effective Death Penalty Act ("AEDPA"). Section
2254 sets a high hurdle for habeas relief. The statute states:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court ...