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U.S. EX REL. EDWARDS v. BRILEY

March 30, 2004.

UNITED STATES OF AMERICA, ex rel. JAMES LEO EDWARDS, Petitioner,
v.
KENNETH R. BRILEY, Defendant



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This case is before the court on Petitioner James Leo Edwards' ("Edwards") consolidated pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. For the reasons stated below we deny the petition.

BACKGROUND

  Following a jury trial Edwards was convicted of first degree murder for the beating death of seventy-one year old Fred Reckling inside Mr. Reckling's appliance store. Edwards was sentenced to a term of natural life imprisonment without the possibility of parole. In another case following a jury trial Edwards was convicted of armed robbery and sentenced to sixty years imprisonment to run consecutively to Page 2 his life term. Edwards filed two separate habeas petitions in the Northern District of Illinois, each relating to one of the above mentioned convictions. On July 18, 2002 Judge Andersen, the prior judge in this case granted Edwards' motion to consolidate the two cases (case number: 02 C 1659-armed robbery, 02 C 1660-Reckling Murder). In another case that is relevant to the two habeas petitions Edwards was extradited to Ohio where he was convicted for the shooting death of an elderly woman who Edwards stopped on a road. Edwards shot the victim and drove off in her car leaving the victim on the side of the road.

  Edwards presents four bases for relief in his petition relating to the armed robbery conviction which are as follows: 1) there was a violation of his right to remain silent, 2) there was a violation of his right to fundamental fairness when his counsel was barred from referring to aggravated robbery as a lesser included offense of armed robbery, but his counsel was later accused of "flip-flopping" when defense counsel introduced the lesser offense of aggravated robbery, 3) that he received ineffective assistance from his trial counsel because his counsel failed to request that the trial court take judicial notice of evidence presented at sentencing in his murder trial, which counsel knew or should have known contained numerous false allegations, 4) the prosecutor knowingly relied upon false evidence and failed to disclose exculpatory evidence to Edwards, 5) the prosecutor told witnesses to testify differently than their statements included in police reports, and 6) Edwards is legally innocent of the crime of armed robbery because there is insufficient evidence Page 3 that he had a dangerous weapon.

  In his petition relating to the Reckling murder conviction Edwards presents four bases for relief which are as follows: 1) Edwards was not proven guilty beyond a reasonable doubt, 2) the trial court improperly admitted evidence at trial pertaining to other crimes, and 3) the trial court improperly denied his motion to suppress his statements, 4) Edwards was not linked to other crimes introduced at trial, the prosecution failed to reveal exculpatory evidence relating to other crimes, and his trial counsel was ineffective because he failed to challenge the false criminal allegations against Edwards during his trial.

  LEGAL STANDARD

  Pursuant to 28 U.S.C. § 2254, a federal court may entertain a petition for a writ of habeas corpus only on the ground the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). If petitioner seeks to challenge a state court decision under 28 U.S.C. § 2254, a writ of habeas corpus is proper only if the challenged state court decision:
(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 court proceeding.
28 U.S.C. § 2254(d); Aleman v. Sternes, 320 F.3d 687, 690 (7th Cir. 2003). Page 4

  DISCUSSION

 I. Armed Robbery Conviction (96 CF 42)(02 C 1659)

  A. Violation of Right to Remain Silent

  Edwards argues that his right to remain silent was violated when the trial court admitted Edwards' two statements made to the police indicating that he did not want to talk about the location of the weapon, A federal court will not address a question of federal law presented in a habeas corpus petition brought to contest a state court ruling if "the state decision rests upon a state procedural ground that is independent of the federal question and adequate to support the judgment," Page v. Frank, 343 F.3d 901, 905 (7h Cir. 2003). In order to avoid a procedural default on a claim presented in a habeas corpus petition the petitioner must "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process," Howard v. O'Sullivan, 185 F.3d 721, 725 (7th Cir. 1999) (quoting O `Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).

  Edwards failed to raise the issue of the denial of his right to remain silent in his post-trial motion thereby waiving the argument. The state appellate court reviewed the issue to determine if the plain error exception to the waiver rule was applicable. The state appellate court found that the evidence against Edwards was overwhelming and that any error made by the trial court did not amount to grave Page 5 error and thus the argument was waived by Edwards, We find that the argument is procedurally barred. We also note that even if it were not barred the pertinent question for this habeas review would be whether or not the petitioner "shows cause for failure to raise [it] at the appropriate time and actual prejudice which resulted from such failure" or, "[a]bsent such a showing, a defaulted claim is reviewable only if refusal to consider it would result in a `fundamental miscarriage of justice. . . .'" Rodriguez v. Scillia, 193 F.3d 913, 917 (7h Cir. 1999).

  In this case we agree with the state appellate court that the evidence against Edwards was overwhelming. All three victims were able to identity Edwards as the individual that broke into their home and robbed them while holding what looked like a weapon. Edwards was apprehended a short time later under a pop-tent found near the victim's residence,
B. Barring of Reference to Lesser Included Offense
  Edwards argues that there was a violation of his right to fundamental fairness when the prosecution persuaded the trial court to bar defense counsel from referring to aggravated robbery as a lesser included offense of armed robbery, but the prosecutor was allowed to later accuse defense counsel of "flip-flopping" when defense counsel introduced the lesser offense of aggravated robbery. First, Edwards failed to raise this issue in constitutional terms in his appeal and the state appellate court accordingly dealt with the claim as a state law claim and did not include any Page 6 federal constitutional violation analysis. Therefore, he has procedurally defaulted on this claim. See Rodriguez v. McAdory, 318 F.3d 733 (7th Cir. 2003) (indicating that "the state court's holding must `depend[] on a federal constitutional ruling' in order to open it ...

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