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U.S. EX REL. HONG v. FREEMAN

April 13, 2004.

UNITED STATES OF AMERICA ex rel. ALFRED HONG, Petitioner,
v.
DAVID FREEMAN, Respondent



The opinion of the court was delivered by: BLANCHE MANNING, District Judge

MEMORANDUM AND ORDER

Petitioner Alfred Hong's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the court. For the following reasons, Hong's petition is denied.

I. Background

  The court will presume that the state court's factual determinations are correct for the purposes of habeas review as Hong has not provided clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The court thus adopts the state court's recitation of the facts, and will briefly summarize the key facts which are relevant to Hong's § 2254 petition.

  Rose Yee, and her husband, Gym Yee, were Hong Kong immigrants. They helped Hong and his family immigrate from Hong Kong in the 1960s. The Yees owned a restaurant where Hong and his father worked. They subsequently sold the restaurant to Hong's father. Hong later opened his own restaurant.

  Hong had significant financial problems. First, he was a regular patron at an off-track betting parlor, where he typically bet approximately $400 per day, three to four days per week. Second, he was often in arrears with the rent for his restaurant and generally paid his rent only when he was served with eviction notices. As of August of 1997, Hong owed his landlord $16,000, Third, he owed over $20,000 in back state and federal taxes. Fourth, Hong owed Gym Lee $12,000.

  To address these problems, Hong opened numerous credit cards in Gym Yee's name, rented a post office box in his and Yee's names, withdrew $13, 100 from the Yees' money market accounts, and acquired a credit card in Gym Yee's name. At the time of his arrest, his wallet contained receipts for the money market withdrawals and a receipt for the post office box. It also contained two driver's licenses (one in his name and one in Gym Yee's name). Hong also unsuccessfully attempted to obtain a $15,000 loan from First Chicago Bank in Gym Yee's name, but the loan application was denied due to excessive credit card debt.

  Clara Hong, Hong's wife, found out about Hong's financial situation in July of 1997 and told him she wanted a divorce. On the morning of August 26, 1997, the Hongs argued and Clara Hong again asked for a divorce. The Hongs went to their restaurant and Hong went into the restroom. Clara heard a gunshot and Hong emerged from the restroom unscathed but holding a gun. He told her that he wanted to kill himself so his family could collect his life insurance.

  Later that evening, Rose and Gym Lee retired for the night in separate bedrooms in their apartment in Highland Park, Illinois. Rose was awakened when someone attacked her. Rose fought back but was badly beaten and severely cut with a razor. Gym came into the room and Rose was able to flee and obtain medical attention. In the meantime, Gym held down the intruder, who turned out to be Hong, until the police arrived.

  At trial, Hong presented an insanity defense. Christopher Anderson, a counselor specializing in compulsive gambling testified for the defense. He stated that Hong was a compulsive gambler who had reached the desperation stage and concluded that Hong was a pathological gambler. In addition, Bernard Block, a psychiatrist, testified that Hong's financial problems, his chronic gambling, and his marital difficulties were all stressors that led to a psychotic episode at the time that Hong entered the Yees' apartment. Block also concluded that Hong was unable to conform his actions to the requirements of the law. On cross-examination, Block admitted there was no evidence that Hong was suffering from hallucinations or delusions at the time of the attack and that the only evidence supporting his theory of a psychotic episode was the fact that Hong exhibited disorganized thinking.

  In rebuttal, Henry Lanmeyer testified on behalf of the State. He examined Hong and concluded that he was antisocial and a pathological gambler. Nevertheless, he opined that gambling is not a psychosis and that pathological gamblers are in touch with reality and understand the law and its consequences. Finally, he conducted reality testing, which assesses an individuals1 ability to think with clarity about daily activities and understand what is real and what is not. He concluded that Hong did not suffer from a reality disorder.

  A jury convicted Hong of attempted first degree murder and home invasion. He was sentenced to consecutive terms of imprisonment of fourteen and eight years of incarceration, respectively. Hong unsuccessfully appealed and then unsuccessfully sought state collateral relief. In his § 2254 petition, Hong contends that: (1) the trial court erred when it admitted evidence relating to Hong's financial crimes and Hong's counsel on direct appeal was ineffective for failing to raise this issue; (2) the state court erred when it summarily dismissed Hong's state post-conviction petition; (3) Hong's consecutive sentences violate Apprendi v. New Jersey, 530 U.S. 466 (2000); and (4) the police violated Hong's Fourth Amendment rights when they removed evidence from his home and business. These issues are all properly before the court. II. Discussion

  A. Threshold Matters

  The court will begin by summarizing the rules governing exhaustion and procedural default and by recapping the standard of review that guides this ...


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