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U.S. v. WALLS

March 31, 2004.

UNITED STATES OF AMERICA ex rel., FREDRICK KIZER, Petitioner;
v.
JONATHAN R. WALLS, Respondent



The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge

MEMORANDUM OPINION AND ORDER

In October 1995, petitioner Frederick Kizer was convicted in the Circuit Court of Lake County of first degree murder, three counts of attempted first degree murder, and two counts of aggravated battery with a firearm, and was later sentenced to consecutive prison terms of 50 years for murder and 25, 15, and 10 years for attempted murder. After pursuing an unsuccessful direct appeal, petitioner filed a petition for relief pursuant to the Illinois Post — Conviction Hearing Act, 725 ILCS 5/122-1 et seq., which was dismissed as being frivolous and patently without merit. See People v. Kizer, 318 Ill. App.3d 238, 240 (Ill.App. 1st Dist. 2000).

In his appeal of the dismissal of his state post — conviction petition, petitioner challenged for the first time the consecutive nature of his ten — and fifteen — year sentences. The Illinois Appellate Court held that petitioner's ten — year sentence should have run concurrently with his other sentences, but affirmed the consecutive nature of the fifteen — year sentence. See id., 318 Ill. App.3d at 241-42. Petitioner sought leave to appeal to the Illinois Supreme Court, which was denied. Petitioner's subsequent petition for a writ of certiorari was also denied.

  In May 2002, petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, the petition is denied. Page 2

  DISCUSSION

  Petitioner's first trial in the Circuit Court of Cook County for charges of first degree murder, three counts of attempted first degree murder, and two counts of aggravated battery resulted in a mistrial when the jury was unable to reach a verdict. Petitioner then filed a motion for substitution of judge, alleging that Judge Toomin, who presided over the first trial, exhibited behavior that demonstrated he could not be fair and impartial in a second trial. More specifically, petitioner maintained that prior to releasing the jurors from the first trial, the judge summoned them to his chambers and expressed his incredulity to those jurors who had voted not guilty during deliberations and indicated that he believed there was more than enough evidence to prove petitioner guilty beyond a reasonable doubt. Petitioner further claimed that, after declaring the mistrial, the judge suggested to the state that they call a handwriting expert in the next trial to help resolve the issue of whether petitioner had signed his confession. The state has denied that Judge Toomin made the latter statement.

  Petitioner's motion for substitution was denied by Judge Karnezis (who was assigned to preside over the motion), who concluded that, even if all of the allegations were true, petitioner had not established that Judge Toomin was so prejudiced that he could not be fair and impartial. After a second jury trial before Judge Toomin, petitioner was found guilty on all charges and sentenced to consecutive terms of 50 years for murder, and 25, 15, and 10 years for the three attempted murders.

  On direct appeal, petitioner argued that the trial court erred in denying his motion for substitution of judge after the mistrial. The Illinois Appellate Court affirmed the judgment, noting that, (1) defendant had not provided a transcript of proceedings to help the court Page 3 determine what, if anything, Judge Toomin had said regarding the handwriting expert, and (2) the judge's comments to the jury were made after he had heard all of the evidence against the defendant. See People of the State of Illinois v. Frederick Kizer, No. 1-95-3562 (Ill.App. 1st Dist. July 22, 1997). Petitioner sought leave to appeal to the Illinois Supreme Court, which was denied on June 3, 1998.

  Petitioner then filed a pro se petition for relief pursuant to the Illinois Post — Conviction Hearing Act, 725 ILCS 5/122-1 et seq., in which he alleged: (1) ineffective assistance of trial counsel; (2) prosecutorial misconduct in improper closing arguments, such as vouching for government witnesses' credibility, referring to notorious criminals, and referencing petitioner's failure to testify; (3) judicial bias against him as evidenced by, among other things, Judge Toomin's questioning of the state's expert at trial; (4) failure to establish petitioner's guilt beyond a reasonable doubt; and (5) ineffective assistance of appellate counsel for failure to raise these issues on direct appeal. On December 23, 1998, petitioner's post — conviction petition was dismissed as frivolous and patently without merit. See People v. Kizer, 318 Ill. App.3d 238, 240 (Ill.App. 1st Dist. 2000).

  On appeal of the denial of his state post — conviction petition, petitioner, represented by the State Appellate Defender, argued for the first time that his 15 — year and 10 — year consecutive sentences were imposed in violation of 730 ILCS 5/5-8-4(a).*fn1 Petitioner's counsel did not Page 4 address any of the grounds raised in the pro se petition, other than summarizing the contents of that petition in the "Introduction" portion of the brief. Petitioner then moved pro se to file a supplemental brief to preserve the grounds raised in his pro se petition. Petitioner's pro se motion was opposed by the state on the ground that petitioner "does not have a Sixth Amendment right to have both representation of counsel and to also conduct portions of the proceedings on his own." On May 15, 2000, the appellate court denied petitioner's motion to file a pro se supplemental brief.

  On July 10, 2000, however, petitioner (through counsel) was granted leave to file a supplemental brief in which he alleged that all of his consecutive sentences were unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). In an unpublished order, the appellate court reversed the consecutive nature of petitioner's ten — year sentence, but affirmed the consecutive nature of the fifteen — year sentence under state law and further refused to apply Apprendi retroactively. See People v. Kizer, No. 1-99-0733 (Ill.App. 1st Dist. November 6, 2000). After petitioner sought rehearing, the appellate court issued a published opinion setting forth a more comprehensive discussion of its Apprendi analysis (although it denied the petition for a rehearing).

  Petitioner (through counsel) then sought leave to appeal to the Illinois Supreme Court, raising two issues: (1) the retroactivity of Apprendi, and (2) whether state law rendered his 15 — year consecutive sentence void (rather than merely voidable, as the appellate court had held). Proceeding pro se. petitioner then sought leave to file a supplemental petition for leave to appeal in which he addressed many of the issues raised in his initial state post — conviction petition, such as ineffective assistance of counsel. In an order dated March 27, 2001, the Illinois Supreme Page 5 Court denied petitioner's motion to file a supplemental brief, and on June 29, 2001, denied petitioner leave to appeal. Petitioner subsequently filed a petition for writ of certiorari in the United States Supreme Court, which was denied on November 13, 2001.

  On May 10, 2002, petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner asserts six grounds for relief in the instant petition: (1) violation of his Fifth and Fourteenth Amendment rights due to Judge Toomin's alleged impartiality; (2) violation of his Fourteenth Amendment right to due process and his Sixth Amendment right to a jury trial arising from his consecutive sentences; (3) violation of his Fifth and Fourteenth Amendment rights due to Judge Toomin's alleged questioning of the government's expert witness at the second trial; (4) violation of his Sixth Amendment right to effective assistance of counsel arising from trial counsel's failure to call certain witnesses; (5) violation of his Fourteenth Amendment right to due process arising from allegedly improper comments by the prosecution during closing arguments; (6) violation of his Sixth Amendment right to effective assistance of counsel arising from his appellate counsel's failure to raise the foregoing issues on direct appeal; and (7) violation of his Fourteenth Amendment right to due process arising from the government's failure to meet its burden of proof at trial.

  In response to the instant petition, respondent contends that grounds three through seven are procedurally defaulted, and that grounds one and two fail on the merits. For the reasons stated below, the court agrees and ...


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