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U.S. EX REL. PACE v. STERNES

November 2, 2004.

UNITED STATES OF AMERICA ex rel. ELTONZE PACE, Petitioner,
v.
JERRY STERNES, Warden of Dixon Correctional Center, Respondent.



The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Eltonze Pace ("Pace") is in the custody of Respondent Warden of the Dixon Correctional Center, Dixon, Illinois, and is serving a fifty-year sentence for first-degree murder. Before the Court is Pace's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent argues that each claim is procedurally defaulted. For the reasons stated below, the Court denies the petition.

FACTUAL BACKGROUND

  Lee Cole, Jr. ("Lee") testified that on July 19, 1995 at about 5:00 p.m., he was with his cousin, James Cole ("James"), and Demond Spraggs ("Spraggs") in a group of fifteen to twenty people socializing outside a friend's house. He heard Pace say to James, "Aren't you going to say excuse me for stepping on my shoe?" When Pace gestured with his hands indicating that he wanted to fight, Spraggs came between James and Pace. Pace then walked away but approached James a few minutes later and said, "Let's talk about this like men." James said, "Okay. Cool," and accompanied Pace to the back of the house. Pace then raised his shirt and drew a gun from his waistband, and James turned away as if to run toward the group. Pace said, "Why you disrespect me?" and shot James. After James fell to the ground, Pace shot him a second time.

  Spraggs testified that when James stumbled over Pace's shoe, Pace wanted to fight. Spraggs intervened and Pace walked away. Then Pace came back, said something to James, and they walked about fifteen or twenty feet away. Spraggs heard a gunshot, looked up and saw James fall to the ground. Pace then stood over him and shot once more.

  PROCEDURAL HISTORY

  In September 1998, a judge in Cook County found Pace guilty of first-degree murder, and he was sentenced to a term of fifty years in the Illinois Department of Corrections. Pace appealed to the Appellate Court of Illinois, First District, and raised only one issue: whether the sentence he received was excessive due to his lack of a previous criminal record and his rehabilitative potential. On June 4, 1998, the Appellate Court rejected Pace's claim and denied his appeal. Pace then filed a petition for leave to appeal the Appellate Court's decision to the Illinois Supreme Court which was subsequently denied.

  On February 25, 1999, Pace filed a pro se petition for post-conviction relief in which he raised a claim of ineffective assistance of counsel for failing to cross-examine the State's two witnesses at trial. The State filed a motion to dismiss Pace's petition which was granted by the Circuit Court of Peoria County on December 27, 2001. Pace, who was represented by counsel, appealed the Circuit Court's decision to the Appellate Court of Illinois, First District. On January 29, 2003, the Appellate Court affirmed the dismissal of the post-conviction petition. Pace then filed a petition for leave to appeal to the Illinois Supreme Court which was denied on June 4, 2003.

  On August 7, 2003, Pace filed the instant habeas corpus petition. His petition raises two claims: (1) ineffective assistance of trial counsel; and (2) ineffective assistance of appellate counsel for failing to raise the issue of ineffective assistance of trial counsel.

  DISCUSSION

  The review of Pace's petition for writ of habeas corpus is governed by 28 U.S.C. § 2254 ("section 2254") as amended by the Antiterrorism and Effective Death Penalty Act of 1996. Federal courts may grant a writ of habeas corpus when a person is held in custody under a state court judgment in violation of the Constitution. Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir. 1996). Before determining whether a petitioner's habeas petition has merit, however, a court must decide whether the petitioner has waived his claim for federal habeas corpus relief because of a procedural default. See Riner v. Owens, 764 F.2d 1253, 1255 (7th Cir. 1985). Therefore, the Court must determine whether Pace's claims are procedurally defaulted before the Court can address the merits of his claims.

  I. Procedural Default

  A petitioner has procedurally defaulted on a claim that forms the basis for a habeas corpus petition when (1) the petitioner has failed to exhaust all remedies available to him in state court, or (2) the state court has disposed of the claim on independent and adequate state law grounds. See Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995); Coleman v. Thompson, 501 U.S. 722, 729 (1991). Procedural default may be overlooked if the petitioner can show good cause for the default and actual prejudice resulting therefrom, or ...


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