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U.S. EX REL FISHER v. COWAN

January 9, 2004.

UNITED STATES OF AMERICA ex rel., DALE FISHER, Petitioner,
v.
ROGER COWAN, Respondent



The opinion of the court was delivered by: CHARLES NORGLE, District Judge

OPINION AND ORDER

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.

I. BACKGROUND

  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)). Page 2

  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 paper bag.

  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 conviction Page 3 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

  II. DISCUSSION

  The court first discusses the general rules of federal habeas review, including procedural default, and then discusses each of Fisher's claims.

  A. Standard of Review

  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 ...


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