United States District Court, N.D. Illinois
April 13, 2004.
UNITED STATES OF AMERICA ex rel. ALFRED HONG, Petitioner,
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.
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
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
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 court in resolving Hong's § 2254 petition.
1. Exhaustion and Procedural Default
Before this court may reach the merits of Hong's federal habeas
claims, it must consider whether he has exhausted his state remedies and
avoided procedural default under Illinois law. See Mahaffey v. Schomig,
294 F.3d 907, 914-15 (7th Cir. 2002).
a. Exhaustion of State Court Remedies
To exhaust state court remedies, a petitioner must give the state
courts an opportunity to act on each of his claims before he presents
them to a federal court. See O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). State remedies are exhausted when they are presented to the
state's highest court for a ruling on the merits or when no means of
pursuing review remain available. Boerckel, 526 U.S. at 844-45, 847;
28 U.S.C. § 2254(c). Here, Hong has exhausted his state court remedies
because no state court relief is available to him at this stage in the
b. Procedural Default
Procedural default occurs when a petitioner fails to comply with state
procedural rules. Mahaffey, 294 F.3d at 915. This occurs when the
petitioner fails to pursue all appeals required by state law, Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991), or fails to fully and fairly
present his federal claims to the state court, Boerckel, 526 U.S. at 844.
It also occurs when the state court did not address a federal claim
because the petitioner failed to satisfy an independent and adequate
state procedural requirement, Stewart v. Smith, 536 U.S. 856 (2002). If
an Illinois appellate court finds that a claim is waived, that holding constitutes an
independent and adequate state ground. Rodriquez v. McAdory, 318 F.3d 733,
735 (7th Cir. 2003).
Nevertheless, this court may still reach the merits of a procedurally
defaulted claim if the petitioner establishes either cause for his
failure to follow a rule of state procedure and actual prejudice, or that
the default will result in a fundamental miscarriage of justice. Edwards
v. Carpenter, 529 U.S. 446, 451 (2000). To establish a fundamental
miscarriage of justice, the petitioner must present new and convincing
evidence of his innocence by showing that it is more likely than not that
no reasonable juror would convict him in light of the new evidence.
Schlup v. Delo, 513 U.S. 298, 324 (1995).
2. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a habeas petitioner is not entitled to a writ of habeas corpus
unless the challenged state court decision is either "contrary to" or "an
unreasonable application of clearly established federal law as determined
by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1); Williams
v. Taylor, 529 U.S. 362, 404-05 (2000). In Williams, the Supreme Court
explained that a state court's decision is "contrary to" clearly
established Supreme Court law "if the state court arrives at a conclusion
opposite to that reached by the Court on a question of law" or "if the
state court confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrives at a result opposite to
ours." See id. at 405.
With respect to the "unreasonable application" prong under §
2254(d)(1), a habeas petitioner must demonstrate that although the state
court identified the correct legal rule, it unreasonably applied the
controlling law to the facts of the case. See id. at 407. A state court's
application of Supreme Court precedent is unreasonable if the court's
decision was "objectively" unreasonable. See Lockyer v. Andrade, 123 S.Ct. 1166, 1174 (2003)
(unreasonable application more than incorrect or erroneous). In order to
be considered unreasonable under this standard, a state court's decision
must lie "well outside the boundaries of permissible differences of
opinion." See Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see
also Searcy v. Jaimet, 332 F.3d 1081, 1089 (7th Cir. 2003) (decision need
not be well reasoned or My reasoned and is reasonable if one of several
equally plausible outcomes); Schultz v. Page, 313 F.3d 1010, 1015 (7th
Cir. 2002) (reasonable state court decision must be minimally consistent
with facts and circumstances of the case).
B. Hong's Claims
1. Ineffective Assistance of Counsel Other Crimes Evidence
In his state post-conviction petition, Hong argued that his counsel in
his direct appeal was ineffective because he did not seek to exclude
evidence relating to Hong's financial crimes. Before trial, the trial
court issued an interlocutory order finding that certain evidence
relating to his financial crimes was inadmissible. The State nevertheless
presented this evidence and Hong's counsel did not object.
On direct appeal, the Illinois Appellate Court found that the admission
of the financial crimes evidence was proper because it was highly
probative as to Hong's motive. The court also noted that the trial court
repeatedly gave the jury a limiting instruction. It thus concluded that
the trial court did not abuse its discretion in admitting the evidence.
In his post-conviction appeal, the Illinois Appellate Court began its
discussion of Hong's ineffective assistance argument with a citation to
the well-known standard set forth in Strickland v. Washington,
466 U.S. 668, 694 (1984) (counsel is ineffective if his representation
fell below an objective standard of reasonableness and there is a
reasonable probability that, but for counsel's errors, the result of the proceeding would have been
different). The court found that the prior ruling affirming the
admissibility of the other crimes evidence was res judicata and was, in
any event, correct. It then rejected Hong's request for collateral relief
based on counsel's failure to object to that evidence, stating that
"because the evidence was admissible, no basis exists upon which trial
counsel could have successfully objected." People v. Hong, No. 2-01-146
at 16 (Ill.App. Ct. Mar. 15, 2002) (unpublished order).
The failure to raise a losing argument, whether at trial or on appeal,
is reasonable and thus does not constitute ineffective assistance of
counsel. Rodriguez v. United States, 286 F.3d 972, 985 (7th Cir. 2002);
Stone v. Parley, 86 F.3d 712, 718 (7th Cir. 1996). Consequently, the
performance of Hong's counsel met the objective standard of reasonableness
required by Strickland. He is, therefore, not entitled to federal habeas
relief as to this claim. See Hough v. Anderson, 272 F.3d 878, 890 (7th
Cir. 2002) (if a defendant fails to satisfy one of the Strickland
prongs, the court's inquiry under Strickland ends).
2. Summary Dismissal of Hong's State Post-Conviction Petition
Illinois law requires a judge to summarily review a state
post-conviction petition within ninety days after it is filed and
docketed. 725 ILCS 5/122-2.1(a). If a judge does not summarily dismiss
the petition within this ninety day period, the petition must be docketed
for further proceedings. 725 ILCS 5/122-2.1(b). In his state
post-conviction petition, Hong contended that the trial court dismissed
his petition after the ninety day period had expired so its order was
void and he was entitled to more elaborate proceedings to resolve his
This argument was based on Hong's belief that the ninety day period
began on the day he mailed his petition. The Illinois Appellate Court,
however, found that the date that the petition was docketed was the
proper beginning of the ninety day period. It thus concluded that the
trial court had dismissed the petition in a timely manner. Issues relating to
state law post-conviction procedure are not cognizable on federal habeas
review. Montgomery v. Meloy, 90 F.2d 1200, 1206 (7th Cir. 1996). Thus,
Hong's request for relief is barred.
Next, Hong contends that his consecutive sentences violate Apprendi v.
New Jersey, 530 U.S. 466 (2000). The Illinois Appellate Court found that
Apprendi was not retroactively applicable and thus could not help Hong.
The Seventh Circuit has also held that Apprendi is inapplicable to cases
on collateral review. Curtis v. United States, 294 F.3d 841 (7th Cir.),
cert. denied, ___ U.S. ___, 123 S.Ct. 451 (2002). Hong's Apprendi argument
must, therefore, fail.
4. Fourth Amendment
Finally, Hong argues that the police violated his Fourth Amendment
rights when they removed evidence from his home and business. The
Illinois Appellate Court found that Hong had waived this argument by
failing to develop this contention in his appellate brief. It also noted
that no basis for the argument was readily apparent. It thus found that
Hong had waived the argument. The court has carefully examined Hong's
post-conviction appellate brief. It agrees with the Illinois Appellate
Court that Hong did not present an understandable argument as to the
basis of his Fourth Amendment claim. See Hong's Pro Se Brief at 21.
In Illinois, points must be developed on appeal or they are waived.
See Illinois Supreme Court Rule 341(e)(7). The failure to properly
present a claim to the state courts is an independent and adequate state
procedural ground which precludes habeas review if the state court found
that the procedural defect barred it from resolving the defendant's
claims on the merits. See Dressier v. McCaughtry, 238 F.3d 908, 912-13
(7th Cir. 2001). This is precisely what occurred here so Hong's Fourth
Amendment claim is procedurally barred. The court may nevertheless still grant relief on a procedurally
defaulted issue if the petitioner can establish cause for the default and
actual prejudice as a result of the alleged violation of federal law or
demonstrate that the court's failure to consider the claim will result in
a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S.
at 750. Although Hong does not contend that cause and prejudice or the
fundamental miscarriage of justice exceptions excuse his default, the
court will nevertheless consider whether these exceptions can help him.
Cause exists where "some objective factor external to the defense
impeded [the petitioner's] efforts to comply with the State's procedural
rule." Striclkler v. Greene, 527 U.S. 263, 282 (1999). Here, Hong failed
to properly follow state procedural rules. Nothing in the record before
the court indicates that an objective factor prevented him from doing
so. Thus, cause does not excuse his default and the court's inquiry as to
cause and prejudice is at an end.
The fundamental miscarriage of justice exception is also inapplicable
because "this relief is limited to situations where the constitutional
violation has probably resulted in a conviction of one who is actually
innocent." Dellinger v. Bowen, 301 F.3d at 767, citing Schlup v. Delo,
513 U.S. 298, 327 (1995). To show "actual innocence," a petitioner must
present clear and convincing evidence that, but for the alleged error, no
reasonable juror would have convicted him. Id. Hong's petition, as well
as the state court pleadings submitted to the court, do not contain any
substantiated allegations of actual innocence. Thus, this exception does
not apply. III. Conclusion
For the above reasons, Hong's § 2254 petition [1-1] is denied.
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