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April 30, 2004.

MICHAEL GILYARD, Petitioner, V. JERRY L. STERNES, Warden, Respondent

The opinion of the court was delivered by: DAVID COAR, District Judge


Petitioner Michael Gilyard ("Petitioner" or "Gilyard") filed his petition for habeas corpus relief with this Court in August 2001, and it was received in this Court on August 22, 2001. The petition was initially denied as time-barred, but, after Respondent conceded that the petition was timely filed, that decision was reversed by the Seventh Circuit Court of Appeals. See Gilyard v. Sternes, No. 02-1063, Order of Jan. 16, 2003 (7th Cir. 2003) (unpublished order). On March 11, 2003, the Respondent filed its Answer to the habeas corpus petition. For the reasons set forth below, the petition for habeas corpus relief is denied.


  In September 1990, following a jury trial in Lake County, Illinois, Petitioner was convicted of first degree murder and home invasion. He was sentenced to a term of imprisonment of sixty (60) years. Petitioner appealed his conviction and sentence to the Appellate Court of Illinois raising the following five issues: (1) the State failed to prove guilt beyond a reasonable doubt; (2) he received ineffective assistance of counsel when his counsel failed to tender a jury instruction on criminal trespass to a residence; (3) the jury determination that he was not insane at the time of the crime was against the manifest weight of the evidence; (4) his two convictions arose from the same physical act violating the "one act/one crime" principle under Illinois law; and (5) his sentence was excessive. On October 20, 1992, the Illinois Appellate Court rejected Petitioner's claims and affirmed his conviction and sentence. Petitioner filed a petition for leave to appeal the Illlinois Supreme Court which raised the first, second, and third issues from his previous appellate brief. The Illinois Supreme Court denied the petition on February 3, 1993.

  Meanwhile, the Supreme Court of Illinois granted Petitioner's request for a supervisory order relating to the home invasion sentence on July 8, 1993. On October 1, 1993, the Illinois Appellate Court vacated his conviction for home invasion. In light of these subsequent developments, it is unclear whether Petitioner's conviction and sentence became final on May 4, 1993, when the time for filing a petition for certiorari to the United States Supreme Court expired, or on October 1, 1993, when his conviction and sentence for home invasion were vacated. As the Respondent has conceded the timeliness of the habeas petition, the actual date the conviction and sentence became final would only be relevant to retroactivity issues which are not presented by this petition.

  On February 22, 1994, Petitioner filed a pro se petition for post-conviction relief in Lake County Circuit Court. The petition presented the following three issues: (1) the trial court erred in refusing to suppress Petitioner's confession at trial; (2) Petitioner's trial counsel was ineffective in arguing the motion to suppress; and (3) Petitioner's appellate counsel was ineffective for failing to argue either of those two issues on direct appeal. The circuit court of Lake County dismissed the petition as frivolous and patently without merit on April 6, 1994. Petitioner appealed to the Illinois Appellate Court. The State Appellate Defender moved to withdraw from its representation of Petitioner pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). On February 15, 1996, the Appellate Court granted the motion and affirmed the dismissal of the post-conviction petition. Petitioner did not file a petition for leave to appeal to the Illinois Supreme Court.

  Petitioner sought to file subsequent post-conviction petitions in state court. The first attempt was styled as a motion to supplement or amend his first petition and was filed on May 18, 1995. The state trial court dismissed the petition for lack of jurisdiction because the original post-conviction petition was still pending. The appellate court affirmed the dismissal, holding that petitioner had waived his ability to bring the claims presented in the petition by not presenting them in the first post-conviction petition. Petitioner appealed the denial of that petition to the Illinois Supreme Court, which denied him leave to appeal on December 6, 1996. The second attempt was styled as a motion to amend his previous motion to supplement or amend this first petition, and it was filed on May 14, 1996. It was dismissed on June 5, 1996 for the same reason that the first attempt was dismissed: the trial court lacked jurisdiction to accept amendments to petitions that were currently on appeal. Petitioner did not appeal that determination.

  On June 6, 1997, Petitioner filed a petition for relief from judgment pursuant to 735 ILCS 5/2-1401, claiming that the trial court erred in not conducting a fitness hearing at trial. The trial court treated this as a successive post-conviction petition, and denied relief on May 21, 1999 holding that the issue had been waived by failing to raise it in his first post-conviction petition. The Illinois Appellate Court rejected Plaintiff's appeal on February 14, 2001. On June 6, 2001, the Illinois Supreme Court denied Petitioner's request for leave to appeal.*fn1 Shortly thereafter, he sought federal habeas relief.


  Petitions seeking federal habeas relief are governed by the familiar, and restrictive, standards of the Antiterrorism and Effective Death Penalty Act (AEDPA). "A federal court may only grant relief under AEDPA if the decision of the state court `was contrary to, or involved an unreasonable application of, clearly establish Federal law, as determined by the Supreme Court of the United States.'" A.M. v. Butler, 360 F.3d 787 (7th Cir. 2004). In 2000, the Supreme Court explained that a state court decision is "contrary to" Supreme Court precedent if the "state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent" and arrives at an opposite result. See Williams v. Taylor, 529 U.S. 369, 405, 407 (2000). An unreasonable application of Supreme Court precedent occurs when "the state court unreasonably applies it to the facts of the particular state prisoner's case" or "unreasonably extends a legal principle . . . to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. To be unreasonable, the decision of the state court must not be simply incorrect or erroneous, it must have been "objectively unreasonable." Wiggins v. Smith, — U.S. —, 123 S.Ct. 2527 (2003). Gilyard's habeas petition raises six grounds for relief: (1) the State did not prove him guilty beyond a reasonable doubt at trial; (2) trial and appellate counsel were ineffective when they failed to address jury instructions on second-degree murder and self-defense; (3) trial and appellate counsel were ineffective in failing to request a fitness hearing at his trial; (4) the jury erroneously determined that Petitioner was sane at the time of the offense; (5) the conviction for felony-murder predicated on home invasion is void because the underlying felony statute is unconstitutionally vague and overbroad; and (6) trial counsel was constitutionally ineffective by: a) failing to get his confession suppressed; b) failing to properly investigate and call witnesses in Petitioner's defense; and c) failing to raise a constitutional issue regarding suppression of Petitioner's confession.

  A. Petitioner's Sufficiency of the Evidence Challenge (Grounds 1 & 4)

  The first and fourth alleged constitutional violations in Gilyard's habeas petition are both sufficiency of the evidence challenges. In ground one, Gilyard asserts that the evidence presented at his state court trial was insufficient as a matter of law to prove that he had the requisite intent to harm the victim, who was his wife. In ground four, Gilyard asserts that the jury's finding that he was sane was based on insufficient evidence. In order to obtain relief on this claim, the Petitioner must show that the Illinois Appellate Court's decision affirming the judgment on these bases involved an incorrect or unreasonable application of federal law.

  In order to prove that the evidence was constitutionally insufficient to sustain the conviction, the Petitioner must demonstrate that, "viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Illinois appellate court applied this standard to Gilyard's sufficiency of the evidence claim on the issue of intent and it reached the following conclusion:
the evidence established that there was a struggle between the victim and defendant and that the victim suffered a gunshot, a blunt trauma to the forehead, several abrasions, numerous lacerations, defense wounds on her fingers, and a stab wound during the altercation. Additionally, one of the knives recovered at the scene had its tip broken. The nature and extent of the victim's injuries, coupled with the fact defendant kicked in the door, would clearly permit a rational trier of fact to conclude that defendant intentionally injured the victim.
People v. Gilyard, 602 N.E.2d 1335, 1345 (Ill.App. Ct. 1992).

  This Court finds the state court conclusion is consistent with-and a reasonable application of-federal law. Consequently, the Court denies Gilyard's claim that the evidence at his trial was ...

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