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U.S. EX REL. THOMPSON v. BRILEY

June 17, 2004.

UNITED STATES OF AMERICA ex rel. DENNIS THOMPSON JR., Petitioner
v.
KENNETH R. BRILEY Respondent.



The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge

MEMORANDUM, OPINION AND ORDER

This case is before the Court on the petition of Dennis Thompson, Jr. for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we deny the petition for habeas corpus.

BACKGROUND

  Petitioner Dennis Thompson, Jr. does not challenge the statement of facts set forth in the order of the Illinois Appellate Court affirming his convictions for first-degree murder. People v. Thompson, 713 N.E.2d 832 (1st Dist. 1997). For purposes of federal habeas review, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e). Accordingly, we adopt the facts as our own.

  In the Circuit Court of Cook County, Petitioner was convicted of two counts of first-degree murder for the deaths of Dennis Thompson, Sr., Petitioner's father, and Don Renee Rouse, a female acquaintance of Thompson, Sr. Petitioner's bench trial took place in May 1995. The evidence presented at trial established that on March 26, 1994, Petitioner went to his father's home in Dolton, Illinois with a loaded gun and fatally shot his father in the head from behind and at close range as the deceased was bent over and looking in the refrigerator. He then shot Rouse, who survived long enough to call Dolton police and inform them that Petitioner had shot her and Thompson, Sr. The trial evidence established that Petitioner was upset because his father had beaten his stepmother on the previous night.

  Once police learned that Rouse had identified Petitioner as the shooter, Officer William Dodaro determined Petitioner's identity and address. When he arrived at Petitioner's home, Officer Dodaro observed a man and a woman standing on the sidewalk. The man matched the suspect's description, and Officer Dodaro asked if he was Dennis Paul Thompson, Jr. Petitioner answered in the affirmative, and upon being asked if he had been at his father's home earlier in the evening, Petitioner responded "yes." He was then arrested and given Miranda warnings, after which he confessed to the shootings and told authorities where he disposed of the gun. The police recovered the gun from the location Petitioner specified. Petitioner also told his aunt, Patricia Posey, that he had killed his father. Although Petitioner was eligible for the death penalty under 730 ILCS 5/5-8-1 (West 1998), the trial judge sentenced him to a term of natural life imprisonment.

  PROCEDURAL HISTORY

  A detailed explanation of the procedural history is appropriate in light of Respondent's assertion that Petitioner is procedurally defaulted from raising several claims in his habeas petition. On September 17, 1996, Petitioner appealed his convictions to the Illinois Appellate Court, asserting that: (1) he had been denied his Fifth Amendment right to testify at trial; (2) he had been denied his Sixth Amendment right to effective assistance of counsel because counsel (a) failed to move to quash and suppress his arrest statements and (b) failed to object to inadmissible hearsay evidence; and (3) the trial court erred in failing to reduce his conviction from first- to second-degree murder due to the existence of mitigating factors. On July 21, 1997, the Appellate Court affirmed his conviction and sentence. People v. Thompson, 713 N.E.2d 832 (1st Dist. 1997).

  On August 22, 1997, Petitioner filed for leave to appeal to the Illinois Supreme Court, asserting that the Appellate Court erred in holding that: (1) Petitioner's Miranda rights were not violated when police questioned him before placing him under arrest; and (2) Petitioner's Sixth Amendment right to effective assistance of counsel was not violated when counsel failed to move to quash and suppress his arrest statements. The Illinois Supreme Court denied the petition on December 3, 1997. People v. Thompson, 689 N.E.2d 1145 (1997).

  On May 21, 1998, Petitioner filed for post-conviction relief in the Circuit Court of Cook County under 725 ILCS 5/122-1 (West 1998), asserting that: (1) his Miranda rights were violated when he was interrogated prior to being placed under arrest; (2) his Fifth Amendment right to testify was violated when his attorney told him he could not testify; and (3) his Sixth Amendment right to effective assistance of counsel was violated because his counsel (a) failed to move to quash his arrest and failed to move to suppress his incriminating statements, (b) failed to allow Petitioner to testify despite his desire to testify, (c) failed to object to inadmissible hearsay, (d) failed to obtain a psychological evaluation, (e) failed to call witnesses at trial and at the sentencing hearing who he knew existed and were willing to testify, and (f) forced Petitioner to waive his right to a jury trial. The Circuit Court of Cook County granted the State's motion to dismiss the post-conviction petition on May 21, 1999 without an evidentiary hearing. Petitioner appealed the dismissal of his post-conviction petition to the Illinois Appellate Court, which determined that the Circuit Court had acted properly in dismissing his post-conviction petition because he had failed to make a substantial showing that he was denied a constitutional right at trial. People v. Thompson, 797 N.E.2d 245 (1st Dist. 2001). Petitioner sought leave to appeal the dismissal of his post-conviction petition to the Illinois Supreme Court making the same claims he had in his original post-conviction petition, but with the additional claim that the trial court erred in not granting his motion for a reduction of first- to second-degree murder based upon mitigating factors. The Illinois Supreme Court denied his petition on February 6, 2002. People v. Thompson, 766 N.E.2d 244 (2002).

  Petitioner filed this instant petition for a writ of habeas corpus on April 9, 2002, alleging that: (1) he was denied his Sixth Amendment right to effective assistance of counsel as a result of (a) counsel's failure to move to quash his arrest statements, (b) counsel's failure to allow him to testify, and (c) other errors; (2) the trial court erred in not granting his motion for reduction of his first-degree murder conviction based on mitigating factors; (3) he was denied his Fifth Amendment right to testify when counsel told him he could not testify; (4) the trial court abused its discretion when it failed to grant him a reduction of his first-degree murder conviction; and (5) he was denied ineffective assistance of counsel due to counsel's failure to call key witnesses, including his stepmother.

  On July 19, 2002, this Court granted Petitioner leave to file an amendment to his habeas petition, in which he asserts essentially the same allegations of ineffective assistance of counsel, including: (1) counsel's failure to interview or call as a witness his mother, Darlene Henderson; (2) counsel's failure to obtain psychological testing to evaluate Petitioner's mental state; (3) counsel's statement that he could not afford a psychological evaluation, even though counsel knew the State would pay for the test; and (4) counsel's failure to allow Petitioner to testify on his own behalf to establish that he acted under extreme mental or emotional disturbance.

  DISCUSSION

  Federal courts may issue a writ of habeas corpus if a petitioner demonstrates that he is "in [state] custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Moffat v. Gilmore, 113 F.3d 698, 702 (7th Cir. 1997); see also Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1370 (7th Cir. 1994) (en banc) ("[F]ederal courts can grant habeas relief only when there is a violation of federal statutory or constitutional law."). The federal courts may not grant habeas relief under Section 2254 unless the state court's judgment "(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 ...


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