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U.S. EX REL. PRICE v. McADORY

October 18, 2004.

UNITED STATES ex rel. DAMEN PRICE, Petitioner,
v.
EUGENE McADORY, Warden, Menard Correctional Center, Respondent.



The opinion of the court was delivered by: AMY J. ST. EVE, District Judge

MEMORANDUM OPINION AND ORDER

Before this Court is petitioner Damen Price's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the reasons discussed below, Price's petition is denied.

I. BACKGROUND

  A. Trial Evidence

  Petitioner does not challenge the statement of facts set forth in the Illinois Supreme Court opinions affirming the judgments of the trial court, and thus those facts are presumed correct for purposes of the Court's review. See 28 U.S.C. § 2254(e)(1); Ward v. Hinsley, 377 F.3d 719, 721 (7th Cir. 2004). The Court, therefore, adopts the underlying facts set forth by the Appellate Court of Illinois, First Judicial District, in Petitioner's direct and post-conviction appeals. See People v. Price, No. 1-97-3195 (1st Dist. April 5, 1999) (unpublished order); People v. Price, No. 00-2838 (1st Dist. July 11, 2002) (unpublished order).

  The evidence presented a trial established that on October 9, 1994, a four year old victim was killed in an arson fire at 743 W. 103rd Street in Chicago. The arson involved gang retaliation. The fire resulted from Molotov cocktails being thrown into the house from an alley adjacent to a gas station parking lot. The victim's cousin was a member of the Gangster Disciples and was the intended victim. Petitioner was a member of a rival street gang. At approximately 2:00 a.m., a group of men, including Petitioner, were in the alley behind the house and threw at least two Molotov cocktails through the kitchen window yelling G.D.K., meaning Gangster Disciple Killer.

  B. Procedural Background

  Following a jury trial in the Circuit Court of Cook County, the jury found Petitioner guilty of first degree murder and aggravated arson. The jury also found Petitioner eligible for the death penalty, but determined that the court should not sentence him to death. The Circuit Court thus sentenced Petitioner to consecutive sentences of life imprisonment for first degree murder and a 30-year prison term for aggravated arson.

  Petitioner appealed his conviction to the First District Appellate Court of Illinois. On appeal, Petitioner raised the following issues: 1) he was denied a fair trial because the prosecutor told the jury that defense counsel did not believe Petitioner's testimony; 2) the court erred in sentencing Petitioner without ordering a pre-sentence report and because the parties did not agree to the imposition of a particular sentence; and 3) the trial court abused its discretion when it sentenced Petitioner to natural life imprisonment because the trial court's sentence was unduly severe. (R. 15-1, Ex. A.) On April 5, 1999, the Illinois Appellate Court, First Judicial District, affirmed the Circuit Court. (Id. Ex. C.)

  Next, Petitioner filed a petition for leave to appeal to the Illinois Supreme Court. In his petition, he raised the same issues that he presented in his direct appeal to the appellate court. (Id. Ex. D.) On February 2, 2000, the Illinois Supreme Court denied his petition for leave to appeal. (Id. Ex. E.)

  Petitioner then filed a petition pursuant to the Illinois Post-Conviction Hearing Act alleging that: 1) he received ineffective assistance of trial counsel for failure to file a motion to suppress statements; 2) he received ineffective assistance of trial counsel for failure to adequately investigate the crime scene; 3) he received ineffective assistance of trial counsel for failure to call two individuals as witnesses who gave statements after the State interviewed those witnesses; 4) he received ineffective assistance of trial counsel for failure to object after the trial court allowed co-defendant's statement into evidence; 5) he received ineffective assistance of trial counsel for failure to object when a certain State's witness testified inconsistently from earlier testimony before the grand jury; 6) he was denied a fair trial because the State did not produce a witness to testify that Petitioner actually threw a Molotov cocktail into the house; 7) he was denied a fair trial after the trial court denied his motion for appointment of new counsel; 8) he was denied a fair trial because the court admitted co-defendant's written statement into evidence; 9) he was prejudiced by the State's use of inflammatory remarks; 10) he was prejudiced because the State failed to apprize the trial court that one of its witnesses testified falsely; and 11) he received ineffective assistance of appellate counsel for failure to comply with Supreme Court Rule 341(e)(7). (Id. Ex. F). On June 20, 2000, the Circuit Court of Cook County denied Petitioner's post-conviction petition. (Id. Ex. F.)

  Shortly thereafter, Petitioner appealed the Circuit Court's denial of his post-conviction petition to the Illinois Appellate Court, First Judicial District. He claimed that the trial court erred in summarily dismissing his pro se petition because it included a non-frivolous claim of actual innocence based on an affidavit of his co-defendant, Imani Thomas, and that his trial counsel was ineffective for failing to present evidence that would have discredited the testimony of the eyewitnesses. He also raised a claim based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Finally, Petitioner argued that the enactment of Public Act 83-942, which amended the Illinois Post-Conviction Hearing Act to permit the dismissal of certain petitions prior to the appointment of counsel, violated the single subject rule of the Illinois Constitution. (Id. Ex. G.) On July 11, 2002, the Illinois Appellate Court, First Judicial District, affirmed the Circuit Court's summary dismissal of Petitioner's post-conviction petition. (Id. Ex. J.) On August 1, 2002, the appellate court denied Petitioner's petition for a rehearing. (Id. Ex. L.)

  Petitioner then filed a petition for leave to appeal to the Illinois Supreme Court arguing that: 1) his sentence violated Apprendi; 2) the post-conviction court erred when it summarily dismissed his pro se claims of actual innocence based on his co-defendant's affidavit; and (3) the post-conviction court erred because his post-conviction petition included a non-frivolous claim that trial counsel was ineffective for failing to present impeachment evidence. (Id. Ex. M.) On December 5, 2002, the Illinois Supreme Court denied the petition for leave to appeal. (Id. Ex. N.)

  On February 4, 2003, Petitioner filed a successive post-conviction petition raising the claim of actual innocence. He again included Imani Thomas' affidavit. According to the petition, Petitioner claimed that he misunderstood the law, and thus was unable to adequately raise the claim in his first petition. (Id. Ex. O.) On May 20, 2003, the Circuit Court of Cook County dismissed the ...


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