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CARINI v. MOTE

March 2, 2004.

UNITED STATES ex rel. WILLIAM CARINI, #N51235, Petitioner,
v.
STEPHEN MOTE, Warden, Respondent



The opinion of the court was delivered by: SUZANNE CONLON, District Judge

MEMORANDUM OPINION AND ORDER

After a bench trial in 1993, William Carini was convicted in state court of three counts of aggravated sexual assault. He was sentenced to 20 years for one offense, to be served consecutively to concurrent six year terms for the other two offenses. After multiple state appellate and collateral proceedings, Carini petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

  The Illinois Appellate Court affirmed Carini's conviction and sentence on direct appeal. People v. Carini, 254 Ill. App.3d 1, 626 N.E.2d 297, (Ill.App. Ct. 1993). Carini did not seek leave to appeal to the Illinois Supreme Court. In 1994, he sought post-conviction relief, basing his claim in large part on ineffective assistance of trial counsel. Carini filed second and third amended petitions in 1995. The trial court denied his petition on April 17, 1998. The Illinois Appellate Court affirmed. Unpublished Rule 23 Order, No. 2-98-0593 (Ill. App. Ct., 2nd Dist., Jan. 26, 2000). The Illinois Supreme Court denied his petition for leave to appeal. Order, No. 89114, June 22, 2000. Carini commenced a second collateral attack on his conviction on July 11, 2000. This combined Page 2 petition for post-conviction relief argued his conviction was based on perjured testimony. After an evidentiary hearing, the trial court dismissed the petition on December 1, 2000.*fn1 The Illinois Appellate Court affirmed. Rule 23 Order, No. 2-01-0203 (Ill.App. Ct, 2nd Dist. April 24, 2002). The Illinois Supreme Court denied leave to appeal. Order, No. 93927, Oct. 2, 2002. Carini filed his third petition for post-conviction relief on July 11, 2000. The trial court dismissed the petition. Order, Dec. 13, 2001, Gen. No. 91 CF 2233. The Illinois Appellate Court affirmed. Rule 23 Order, No. 2-02-0146 (Ill.App. Ct., 2nd Dist., July 31, 2003). The petition for leave to appeal was denied on December 3, 2003. Order, No. 96916, Dec. 3, 2003.

  Carini petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition alleges seventeen grounds for relief: (1) the prosecution failed to prove guilt beyond reasonable doubt; (2) the prosecution failed to disclose a suspect list compiled by the police; (3) trial counsel was ineffective because he failed to challenge the prosecution's non-disclosure; (4) denial of due process because the prosecution knowingly withheld information that the chief witness/victim had pending criminal charges at the time she testified; (5) trial counsel was ineffective because he failed to file a pretrial motion to require the prosecution to test evidentiary items for DNA evidence that may have demonstrated Carini's innocence; (6) trial counsel was ineffective for failing to introduce expert testimony regarding the effects alcohol has on a witness' perception and memory; (7) trial counsel was ineffective for failing to file a pretrial motion or trial objection to suppress allegedly suggestive photo and in-person lineups; (8) appellate counsel was ineffective for failing to raise trial counsel's failure to object to prosecution witness' use of statistical evidence; (9) appellate counsel Page 3 was ineffective because he failed to raise trial counsel's failure to file a motion to require the state to test evidence for DNA, he failed to raise trial counsel's failure to introduce expert testimony about the effects alcohol has on witness' perceptions, and appellate counsel failed to raise the suggestiveness of the photo and in-person lineups;*fn2 (10) denial of due process because two prosecution witnesses perjured themselves; (11) denial of due process because the prosecution intimidated the victim to retract her recantation of her trial testimony; (12) denial of effective assistance of counsel because his attorney failed to include in post-conviction pleadings information obtained in a June 2000 interview with the victim that established potential Brady violations; (13) denial of due process because the state continued to commit discovery violations in post-trial proceedings, including the failure to disclose the victim's pending criminal charges; (14) denial of due process because the judge presiding over the second post-conviction petition was biased; (15) the prosecution has continuously concealed information that Carini requested under the Freedom of Information Act ("FOIA"); (16) all claims raised in his petition for leave to appeal to the Illinois Supreme Court; (17) all claims previously raised in state proceedings; (18) any delinquencies or procedural defaults should be excused because his counsel was ineffective and his imprisonment made it difficult to appeal. The state contends that most grounds are subject to procedural default and that the others should be denied on the merits.

  BACKGROUND

  Factual findings of a state trial or appellate court are presumed correct in a federal habeas proceeding unless the petitioner rebuts the presumption with clear and convincing evidence. Page 4 28 U.S.C. § 2254(e)(1). The record does not reveal any evidence contrary to the findings of the state courts. Indeed, Carini's petition does not include a statement of facts. Accordingly, the court adopts the Illinois Appellate Court's summation of the case. Carini, 254 Ill. App.3d at 3-9, 626 N.E.2d at 298-302.

  On June 3, 1991, Joann Schulz, a female resident of Valparaiso, Indiana was attacked while sleeping in her car alongside I-94 south in Illinois. She was on her way home after spending June 2nd partying, drinking and boating with her brother in Tichigan, Wisconsin. She left her brother's house in Tichigan at about 1:30 a.m. on June 3rd. After driving for about an hour, Schulz decided to stop and rest her eyes. She pulled off the highway and onto the shoulder somewhere near Grand Avenue in Lake County, Illinois. Carini has continually asserted Schulz felt tired because she was drunk. Schulz did not recall when she pulled over, but estimated that it was about 3:00 or 3:30 a.m. She left the doors unlocked and the windows rolled down because it was hot. She reclined her seat and fell asleep.

  Schulz was startled awake by a knife pressed against her throat. A white man was kneeling over her from the passenger seat. She testified at trial that the man had a "square jaw, nappy hair, and a very prominent scar on his upper lip." Carini, 254 Ill. App.3d at 5, 626 N.E.2d at 300. He ordered her to fully recline her seat. He then proceeded to have vaginal intercourse with her for about five minutes. The man then grabbed Schulz's hair and forced her face down into the back seat. There, he had anal intercourse with her for five to ten minutes, despite her pleas to stop. The man finally stopped, but he grabbed her hair and forced her to perform oral sex on him while he sat down in the front passenger seat. Schulz bit down on the attacker's penis. The man cried out in pain and tumbled from the car. Schulz sped away, driving into Indiana without stopping. Once home, Schulz Page 5 showered and noticed blood between her legs. She exited the shower immediately and called the hospital. The hospital instructed her to refrain from showering and to bring her clothing with her to the emergency room. At the hospital, a doctor examined her and took samples. Schulz also spoke with police officers.

  Later on that day, Schulz met with Illinois State Police Officer James Gentilcore at her home in Valparaiso. Gentilcore was the lead investigator and testified at trial. At this initial meeting, Gentilcore obtained a description of Schulz's attacker as a "white male in his late twenties to early thirties who weighed approximately 175 to 180 pounds, was 5 feet 7 inches tall, had dark fuzzy cut hair, was clean shaven, and had a one-quarter-inch scar above his right lip," Id. at 3, 626 N.E.2d at 298. Gentilcore submitted this description to an analyst. Using this information, the analyst gave Gentilcore a computer generated list of potential suspects. The list contained over 100 names of individuals who lived in the general area of the attack and matched the description provided by Schulz.

  At trial, Gentilcore testified that he selected Carini from the list because he was the only person who resided near the site of the attack. The other names on the list lived in counties further west or south of the attack site. Gentilcore obtained a photograph of Carini from the Wheeling, Illinois police department and returned to Valparaiso on July 17, 1991 — about two weeks after the attack.

  Gentilcore met Schulz at the automobile dealership where she worked. On a desk, Gentilcore displayed six black and white photographs of individuals who may or may not have been her attacker. Each person in the photograph lineup had characteristics similar to those of the attacker described by Schulz. After reviewing at the photographs for about five minutes, Schulz tentatively Page 6 identified Carini. She explained that the hair was exact and the chin was perfect, but that she did not like the angle of the chin in the photograph. Gentilcore asked if she would like to see a color photograph of anyone in the lineup. Schulz requested to examine a color photograph of Carini. Again, she tentatively identified Carini as her attacker, but informed Gentilcore that she could not be absolutely certain because of the angle at which the photograph was taken.

  A few weeks later, on September 4, 1991, Gentilcore visited Carini at his home. He noticed Carini had a very light mustache and a scar above his left lip that was about one-quarter-inch long. Gentilcore testified that after his visit with Carini, he called Schulz and asked her if she was sure about the scar. She responded affirmatively and said that it was on the right side of his face. Gentilcore asked if she meant her right, or the perpetrator's right. According to Gentilcore, Schulz responded by apologizing and saying that she should have told him earlier that she meant her right side as she looked at him, the perpetrator's left side.

  On this information, Gentilcore asked Schulz to come to the police station to view an in-person line-up. Schulz came in on October 17, 1991. Gentilcore told her that the individuals in the line-up may or may not include the person who attacked her. The six participants entered the viewing room single-file. Gentilcore testified that when Carini entered, Schulz stepped back from the viewing window and appeared emotionally upset. She trained her eyes on Carini. After ten to fifteen minutes, Gentilcore attempted to comfort Schulz. He asked her if she could identify an individual and told her it was okay if she could not. Schulz identified Carini. At trial, Gentilcore made an in-court identification of Carini as the man Schulz selected during the photographic and in-person lineups. Schulz also identified Carini as her attacker ...


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