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U.S. v. LEIBACH

March 19, 2004.

UNITED STATES OF AMERICA, ex rel. MARK S. KARRAS, SR., Petitioner,
v.
BLAIR LEIBACH, Warden, Respondent



The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Mark Karras ("Karras") is in the custody of Respondent Warden of the Danville Correctional Center, Danville, Illinois. In 1999, Karras was convicted of the offenses of aggravated criminal sexual assault, criminal sexual assault, attempted robbery, and unlawful restraint. Karras was sentenced to respective concurrent terms of fifteen years and three years in prison. After filing several post-conviction petitions, Karras now petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss on the grounds that each claim is either procedurally defaulted or without merit. For the reasons stated below, the petition for writ of habeas corpus is denied.

FACTUAL BACKGROUND*fn1

  At about 5 a.m. on February 18, 1997, Karras and the complainant engaged in sexual intercourse in a gangway near 73rd Street and East End Avenue in Chicago. Complainant Page 2 maintained that she was forced to commit the sexual act while Karras portrayed the complainant as a cocaine addict willing to commit an act of prostitution to share his cocaine.

  Complainant testified that she had just left her sister's residence at 7132 South East End and was walking toward a bus stop on 75th Street in order to go home where she lived with her three children and her grandmother in the Chatham area of Chicago. She saw Karras come out of a building at 72nd Street and East End. She testified that they exchanged greetings and as she continued walking, she noticed the petitioner walking behind her. As she approached 73rd Street, Karras attacked and tackled her, knocking her down into the snow and causing her clothing to become wet on one side.

  The complainant testified that Karras then pulled her into a gangway by her throat. There, the petitioner stood behind her and forced her to stand facing the against the wall. He asked her if she had any money and when she said she didn't, Karras seemed angry. He told her that he had a gun. He went through her jogging pants' pockets and removed several items including a pack of cigarettes, rubber bands, and some coins. Next, the complainant testified that Karras pulled down the jogging pants and had sexual intercourse with her from behind for several minutes. Complainant said she did not scream because she was shaking and did not know what to do. She testified that after the rape, Karras seemed to calm down and told her that he had children and asked complainant to be his girlfriend. They began to walk around the area. After leaving the gangway, they saw a woman by a garage on 73rd Street and Karras said he wanted to rob her. Complainant said that the petitioner was not restraining her, but she did not flee, fearing defendant would shoot her if she did. Complainant denied that she was walking arm-in-arm with defendant, that she whispered to him, or that she put her head next to his head.

  As they continued to walk, complainant saw a brown van which she believed might be Page 3 driven by a man whom she knew as Dan who delivered newspapers. She said that she was determined to leave defendant and told him to get away from her. She believed that the driver would possibly stop in order to get to know her if she was not with another man. Karras then stepped away from her, telling her to meet him at a local grocery store. Complainant told the driver of the van that she had just been robbed. She also warned a pedestrian that Karras had a gun and had just robbed her. The van driver offered to take her home, but complainant wanted cigarettes so they went to a gas station where the driver purchased some. Upon complainant's request, the driver went back to the area where she had encountered defendant. There, she saw police who had detained Karras by the grocery store. Complainant told police that he had robbed and raped her in a gangway. She was taken to a hospital where she was examined. She said that she did not sustain any bruising or experience pain from being tackled or dragged by defendant and none of her clothing was ripped.

  Chicago police officer Alex Conway testified that he and his partner went to a grocery store at 73rd Street and Ridgeland Avenue just after the incident in question to investigate a report of a suspicious man. There police saw Karras using an exterior pay telephone. While detaining him, a van carrying complainant arrived, and she told the officers that Karras had a gun and had just raped her. Police did not find a gun on Karras.

  Karras testified that he had been at a "dope building" on East End about 10:30 p.m. on February 17, 1997, when he saw complainant and a female companion who asked if "rocks" were being sold. He did not buy any cocaine at that time but returned at 5 a.m. the next day and bought some cocaine. He then encountered complainant outside the "dope building." She asked Karras if he had any cocaine, and when he said that he did, she replied that she had just smoked a "primo joint" and wanted more, suggesting that she and defendant have "sex for drugs." Karras, Page 4 at first, walked away with complainant following and offering to perform fellatio. Finding complainant attractive, he asked complainant where she wanted to go. She led Karras into a gangway where she produced a broken cigarette and paper. Karras gave her one-half of his cocaine which she mixed with the cigarette tobacco. They each smoked and complainant asked Karras if he was "ready." She pulled down her pants while he lowered his pants. When Karras could not attain an erection, complainant manually stimulated him. She then turned away from Karras and using her hands to brace herself against the building wall, she then backed against him pinning him against the wrought iron fence in the gangway in such a way that he could not even stand straight up. She then gyrated against him until he ejaculated. Complainant then retrieved her clothes, stating, "it was getting good." Karras got his clothing and, as he did so, he heard change fall from his pocket. He managed to recover fifty cents before he left the gangway. Karras denied that the gangway shown in police photographs was the one where the sexual encounter occurred.

  PROCEDURAL HISTORY

  After a bench trial, the Honorable Bertina Lampkin found Karras guilty on February 5, 1998, of aggravated criminal sexual assault, criminal sexual assault, attempted robbery, and unlawful restraint. On May 24, 1999, Karras was sentenced to respective concurrent terms of fifteen years and three years in prison. Karras filed a pro se motion for new trial, which the court denied. Karras filed a motion to reconsider his sentence, which was denied on June 7, 1999. He then appealed to the Illinois Appellate Court and raised two issues. First, he claimed that he was not found guilty beyond a reasonable doubt because his testimony was more credible than the Page 5 complainant's. Second, he contended that the trial court was biased against him because it acted as a prosecutor, restricted the defense's cross-examination, and incorrectly remembered testimony. While his direct appeal was pending, Karras filed a pro se post-conviction petition, which alleged that he was denied effective assistance of counsel. Karras claimed, among other things, that the claimant's blood was not tested, certain witnesses were not called, arguments were not presented on the cross-examination of the claimant, and counsel did not discuss trial strategy with him. The trial court denied this motion on June 2, 2000.

  Karras' public defender filed a motion to withdraw as appointed counsel on appeal pursuant to Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), because he found no meritorious appellate issues. Karras responded to the Finley motion by asking the appellate court to deny the public defender's motion to withdraw. Karras claimed that his constitutional rights to due process, effective assistance of counsel, and equal protection would be violated by granting the motion to withdraw.

  The Appellate Court consolidated Karras' direct appeal and his appeal from the denial of his post-conviction petition. The Appellate Court affirmed the trial court's decision and granted the public defender's motion for leave to withdraw as counsel. The Appellate Court agreed that Karras was found guilty beyond a reasonable doubt and determined that the trial court was not biased. In granting the motion for leave to withdraw, the Appellate Court agreed with the public defender that there were no arguable bases for relief.

  Karras then filed a petition for late leave to appeal with the Illinois Supreme Court claiming that his constitutional rights to due process and equal protection were violated by the trial court's bias. Karras contends that the trial court showed bias by ignoring the rules concerning impeachment of a witness and by finding the ...


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