United States District Court, N.D. Illinois
January 16, 2004.
UNITED STATES ex rel. DEMETRIUS COGWELL #N40397, Petitioner,
PEOPLE OF THE STATE OF ILLINOIS,[fn1] Respondent
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
*fn1 This caption is of course mistaken, because the proper respondent
is the Warden at Dixon Correctional Center ("Dixon"), where petitioner is
in custody. That error, which has no effect on the disposition of the
case, is simply noted here.
MEMORANDUM OPINION AND ORDER
Demetrius Cogwell ("Cogwell") has filed a self-prepared "Petition for
Writ of Habeas Corpus Instanter"*fn2 ("Petition") pursuant to
28 U.S.C. § 2254.*fn3 This memorandum opinion and order is issued sua sponte
because the Petition carries its own death warrant.
Before the Petition's fatal substantive deficiency is addressed,
however, a threshold matter should be dealt with. Cogwell's Application
To Proceed Without Prepayment of Fees ("Application"), coupled with a
printout reflecting transactions in his trust fund account at Dixon,
confirms that his funds are
(unsurprisingly) sufficient to pay the modest $5 fee that is
required for such habeas petitions. Accordingly a copy of this memorandum
order is being sent to the authorities at Dixon, who are ordered to remit
the sum of $5 in payment of the fee to the Clerk, United States District
Court, 219 South Dearborn Street, Chicago, Illinois 60604, attention:
Fiscal Department, and in doing so to identify Cogwell's name and the 04
C 231 case number assigned to this action.
As for the substance of Cogwell's claim, he asserts only that the
evidence at his trial was insufficient to prove him guilty of first
degree murder and concealment of a homicidal death beyond a reasonable
doubt. To discharge its responsibilities under Rule 4 of the
Rules Governing Section 2254 Cases in the United States District Courts
("Section 2254 Rules"), this Court has obtained and reviewed a copy of
the December 10, 2996 unpublished order ("Order") of the Illinois
Appellate Court for the First Judicial District in its Case No.
1-95-2273, which affirmed Cogwell's conviction and sentence and
in the course of which the Appellate Court rejected Cogwell's challenge
to the sufficiency of the evidence (as already indicated, the same
challenge that he seeks to present here).
In its 15-page Order the Appellate Court set out all of the trial
evidence with great care and in meticulous detail, a narrative that
occupied fully 11 of its 15 pages. In particular
the Appellate Court recounted in comparable detail the potential
credibility problems posed by key witness Mitchell Loup (referred to
here, as in the Order, as "Loup," although on cross examination he said
his real name was Tyrone Dolliole). And the Appellate Court completed its
recital of the trial evidence by describing the testimony from other
witnesses who were not vulnerable to attack in the same way as Loup and
who provided substantial corroboration that served to inculpate Cogwell.
Having thus reported the trial evidence, Order at 12 accurately stated
and then applied the relevant standard as taught in the Illinois Supreme
Court's Collins case, which has echoed verbatim the United
States Supreme Court's opinion in Jackson v. Virginia,
443 U.S. 307, 319 (1979):
Where, as here, defendant challenges the
sufficiency of the evidence to sustain his
convictions, it is not the function of this court
to retry defendant, but to determine whether,
after reviewing the evidence in the light most
favorable to the prosecution, any rational trier
of fact could have found the essential elements of
the crime beyond a reasonable doubt. People
v. Collins, 106 Ill.2d 237, 261 (1985). In
doing so, we note that it was the province of the
trial court in this bench proceeding to determine
the credibility and weight of the testimony, to
resolve the inconsistencies and conflicts therein
and to render its decision accordingly.
People v. Berland, 74 Ill.2d 286, 305-06
(1978). in making its assessment, the trial court
was not required to disregard the inferences
flowing from the evidence, and we may not reverse
its determination on the credibility and
sufficiency of the evidence unless the evidence is
so improbable as to create a reasonable doubt of
defendant's guilt. People v. Hall,
114 Ill.2d 376, 409-410 (1986).
Order at 12-13 then again parsed the Loup testimony and its
corroboration by the testimony of other witnesses and went on to
conclude (id. at 13):
In light of these principles and our review of the
entire record under the mandated standard, we
cannot say that the trial court's findings were so
unreasonable, improbable or unsatisfactory as to
raise a reasonable doubt of defendant's guilt
(Young, 128 Ill.2d at 52), and we
therefore affirm defendant's convictions.
All of that dooms the Petition, for Cogwell flat-out fails to meet the
hurdle erected by each branch of Section 2254(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 proceedings unless the
adjudication of the claim
(1) resulted in a decision that was contrary
to, or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
And that being so, as Section 2254 Rule 4 puts the matter, "it
plainly appears from the face of the petition . . . that the petitioner
is not entitled to relief in the district court."*fn4
That in turn calls
for the summary dismissal of the Petition and this action, and this Court
This dismissal of course moots any need to address the
question that might provide an independent basis for dismissing the
Petition: the issue of its possible untimeliness. But because Cogwell has
devoted substantial attention to that question, this opinion will
continue with some explanation on that score for his benefit.
In that respect, Cogwell's current filing has been submitted long after
expiration of the one-year limitation period prescribed by Section
2244(d)(1). Although Cogwell's papers say that his state conviction and
sentence "was affirmed by the Illinois Supreme Court on or about FEB.
2001," the response of the Illinois court personnel who were good enough
to furnish the copy of the Appellate Court opinion casts that into
serious question it seems more likely that the rejection of
Cogwell's appeal at the Supreme Court level took place well before that.
But for present purposes this Court will assume the 2001 date to be
Even so, a habeas filing at this time obviously fails to come within
the terms of Section 2244(d)(!). And the only arguable basis for the
tolling of that period advanced by Cogwell is "that he is and has been
under Psychiatric care since Sept. 1997 and is current under Psychiatric
care within the I.D.O.C. Dixon psychiatric care unit (DXP/DPU) to date."
In support of that assertion Cogwell has attached an October 1, 1997
memorandum from a staff psychiatrist at Stateville Correctional Center
Although there appears to be little caselaw on the subject (but see,
e.g., Calderon v. United States District Court, 163 F.3d 530,
541 (9th Cir. 1998) (en bane)), it will also be assumed for present
purposes that actual mental incompetency would serve to toll the running
of limitations. But psychiatric care and treatment do not correlate
one-to-one with actual incompetency, as to which Cogwell has not made any
showing as he would need to if the issue were to require
resolution. In any case, though, the dismissal of the Petition as
substantively deficient obviates any need to pursue the subject
*fn2 "Self-prepared" is used advisedly, for Cogwell has confirmed that
his papers have been prepared by what he calls a "Certififed Lawyer's
Assisstant/Uniform C Law Clerk" named Sir Albert Johnson.
*fn3 All further references to Title 28's provisions will simply take
the form "Section "
*fn4 Though the Illinois Appellate Court's Order was not part of or
annexed to the Petition, this Court can of course take judicial notice of
its contents and ruling.
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