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U.S. EX REL. CISERO v. BARNETT

July 8, 2004.

United States of America ex rel. FRED CISERO, Plaintiff,
v.
PAUL BARNETT, Warden, Robinson Correctional Center Defendants.



The opinion of the court was delivered by: CHARLES NORGLE, District Judge

OPINION AND ORDER

Before the court is Fred Cisero's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, Fred Cisero ("Cisero" or "Petitioner"), challenges his conviction for delivery of a controlled substance, in violation of 720 Ill. Comp. Stat. 570/401(a)(2)(D). Cisero argues that he is entitled to habeas relief based on prosecutorial misconduct, which deprived him of his federal due process right to a fair trial, and a violation of Brady v. Maryland, 373 U.S. 83 (1963). For the reasons stated below, the petition is denied.

I. BACKGROUND

  On habeas review, the court must presume that the state courts' factual determinations are correct unless the petitioner rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 544-46 (1981); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). Cisero has not presented clear and convincing evidence to rebut this presumption. Therefore, the court adopts the Illinois Appellate Court's recitation of facts. See People v. Cisero, No. 98-1830, 775 N.E.2d 1068 (Ill.App.Ct. June 30, 2000) (unpublished opinion); see also Resp's. Answer, Ex. B.

  A. Facts

  On June 21, 1995, Cisero delivered nearly five kilograms of cocaine to an individual named E.K. Chinwah, who was cooperating in an ongoing investigation by the United States Drug Enforcement Agency ("DEA"). The following day, Cisero received a bag from Chinwah, which contained approximately $125,000 in cash. The DEA videotaped the transaction, and had also taped several conversations between Cisero and Chinwah leading up to the transaction.

  On October 16, 1995, a group of federal and local law enforcement officers went to Cisero's home to discuss his participation in the June transaction and to seek his cooperation in the investigation of another individual. During the visit, Cisero made statements to the officers detailing his involvement in various drug transactions. In addition, Cisero gave the officers a handgun, two shotguns, and approximately $27,000 in cash. At that time, Cisero agreed to cooperate with law enforcement; however, a few days later he expressed his intention not to cooperate.

  On November 2, 1995, Cisero was arrested and charged with one count of delivery of a controlled substance, based on the June transaction, and three counts of unlawful use of a weapon by a felon, based on the handgun and shotguns he turned over to law enforcement officers on October 16. The State dropped the unlawful use of a weapon charges, and proceeded to trial on the delivery of a controlled substance charge.

  B. Procedural History

  Prior to trial, Cisero filed a motion to suppress certain statements and evidence given to law enforcement officials during the October 16 visit to his home. On September 24, 1997, a hearing was held and the motion was denied. On April 16, 1998, following a jury trial in the Circuit Court of Cook County, Cisero was convicted of one count of delivery of a controlled substance, in violation of 720 Ill. Comp. Stat. 570/401(a)(2)(D), and sentenced to a term of twenty years imprisonment.

  Cisero filed a direct appeal from his conviction to the Illinois Appellate Court, First Judicial District, raising the following issues: (1) the trial court erred in not suppressing a statement made during custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436 (1966); (2) various comments, amounting to prosecutorial misconduct, resulted in the denial of a fair trial; and (3) the trial court abused its discretion in not granting a continuance based on the State's late production of information that the United States Attorney had elected not to prosecute an individual who testified against Cisero. See Resp's. Answer, Ex. A (Cisero's appellate brief). On June 30, 2000, the Illinois Appellate Court affirmed Cisero's conviction. See People v. Cisero, No. 98-1830, 775 N.E.2d 1068 (Ill.App. Ct. June 30, 2000) (unpublished opinion); see also Resp's. Answer, Ex. B.

  Cisero then filed a petition for leave to appeal to the Illinois Supreme Court, raising the single issue of prosecutorial misconduct. See Resp's. Answer Ex. C (Cisero's petition for leave to appeal). On October 4, 2000, the Illinois Supreme Court denied Cisero's petition for leave to appeal. See People v. Cisero, 738 N.E.2d 930 (Ill. Oct. 4, 2000); see also Resp's. Answer, Ex. D.

  Cisero filed his petition seeking a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, in the federal district court on October 2, 2001, within the one-year deadline provided by 28 U.S.C. § 2244(d)(1). In the instant petition, Cisero argues that he is entitled to habeas relief based on prosecutorial misconduct, which deprived him of his federal due process right to a fair trial, and a violation of Brady v. Maryland, 373 U.S. 83 (1963). With regard to the prosecutorial misconduct claim, Cisero argues that "[r]epeated improper comments by the prosecutor, in closing arguments to the jury, denied [him] a fair trial." Cisero's Pet. for Writ of Habeas Corpus, Part III(1)(A). With regard to the Brady violation claim, Cisero argues that the ...


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