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U.S. EX. REL. ELLIS v. BRYANT

November 12, 2004.

UNITED STATES OF AMERICA ex. rel. ROBERT ELLIS, Petitioner,
v.
STEVEN C. BRYANT 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 Robert Ellis for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we deny the petition for habeas corpus.

BACKGROUND

  Petitioner does not challenge the statement of facts set forth in the order of the Illinois Appellate Court affirming his arson conviction. People v. Ellis, No. 1-98-0514 (Ill.App.First Dist. 1999). 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 will adopt the facts as our own.

  Following a bench trial in Cook County, Illinois, Petitioner and co-defendant Craig Smith were convicted of arson and sentenced to a 3-year term of imprisonment. The indictment alleged that defendants knowingly, by means of fire, damaged the building located at 6043 South Aberdeen, with the intent to defraud Allstate Insurance Company ("Allstate").

  After numerous continuances, a bench trial commenced on September 9, 1997, with Smith being represented by counsel and Petitioner proceeding pro se. The State called Michael Lee, an employee of an investigation firm who investigated the property at 6043 South Aberdeen for Allstate. The parties stipulated that Lee is an expert in the field of fire investigations and is qualified to render an expert opinion. Upon arriving at the property on January 7, 1992, Lee observed a wood frame structure containing two residences, a front apartment and a rear apartment. The greatest damage was to the rear apartment. Lee noticed a liquid pour pattern on the floor of the bedroom in the rear apartment, which indicated that a flammable or combustible liquid had been poured on the floor, ignited, and burned. Lee opined that the fire originated inside the rear apartment and started by an open flame being applied to a flammable liquid that had been poured throughout the apartment.

  Victoria Jones testified that she and Gino Nicholson lived in the rear apartment of the property from November 1990 to December 1991. Two other tenants lived in the front apartment. Jones paid rent to Craig Smith. She stated that in April 1991, Smith came to the property and told Jones, Nicholson, and the other two tenants that he sold the property to Petitioner and they would probably have to move. Smith told them that he wanted them to move because he had fire insurance on the property.

  A few days after this conversation, Smith and Petitioner came to the property and spoke with Jones, Nicholson, and the other two tenants, again telling them that they had to move. Smith stated that he had fire insurance on the property and he told them they could obtain fire insurance and they "could make money together." Petitioner stood next to Smith during this conversation. Petitioner stated that the tenants had a certain time to move out and he could locate them to another building. Jones stated that they were current with their rent at the time.

  After these conversations in April, the electricity and gas service were interrupted several times. Jones stated that between April and the time she moved out on December 19 or 20, 1991, the electricity was cut off approximately 50 times. The gas was turned off between 10 and 15 times. Each time these services were interrupted, she notified the utilities and they were turned back on. Jones saw people around the house who cut the wires. On one occasion, she called the police and they found two men in the basement. Jones believed they had a key because the locks were not broken.

  In October of 1991, Smith and Petitioner had another conversation with the tenants. Smith told them that they had to move out by December 20, 1991. He again stated that this was because they had fire insurance. He told them that if they saw anything happening at the house next door, not to say anything. He again told them that they could get fire insurance and they "could make money together." Petitioner was present when Smith made that statement. Smith also told them that the building was going to go up in flames.

  On cross examination, Jones denied damaging the property and stated that she did not return to the property after she left on December 19th or 20th. Petitioner asked her why she did not call the police if Smith told her he was going to burn the building. She stated that she did not really believe Smith was going to burn the building. She moved because Smith asked her to move and because the gas and electricity were being cut off.

  On September 24, 1997, the trial resumed and John Conway, an adjuster for Allstate, testified that he was assigned to the fire loss that occurred at 6043 South Aberdeen on December 24, 1991. The insured, Petitioner, made the claim on December 26. Conway and an adjuster hired by Petitioner, went to the property on January 2, 1992. Conway stated that the back of the two-unit frame building on the property was burned and appeared vacant. The front apartment had broken glass and smoke damage. Conway noticed that the furnace and hot water heater were missing from the property. After obtaining a title search, Conway learned that Smith was the prior owner and there was a mortgage on the property.

  Conway hired George Callas, who appraised the property to have a market value prior to the fire of $31,000. The property was insured for $70,000 and Petitioner' application for insurance indicated a purchase price of $65,000. According to Conway, it would take about $53,525 to repair the building to the condition it was in before the fire. Petitioner submitted a claim for $70,000.

  Charles Johnson testified that on December 24, 1991, he lived at 6029 South Aberdeen. He was familiar with the building at 6043 South Aberdeen and knew the people who lived there. He believed that Smith owned the building. Johnson met Smith when Johnson cleaned the vacant lot next to the property for Smith.

  Johnson testified that he saw Smith at the building on December 24, 1991, at 6 a.m., as Johnson walked down Aberdeen to purchase a newspaper. As Johnson approached 6043 South Aberdeen, he saw Smith enter the front gate of the property and walk around toward the back of the building. This is the same side of the building where the entrance to the rear apartment was located. After Johnson purchased his newspaper, he passed the property again on his way home. Johnson then saw Smith leaving through the back entrance of the property and entering a van parked in the alley. Johnson continued walking to his home. Johnson thereafter learned that the building at 6043 South Aberdeen was on fire. He looked and saw flames coming from the side and back of the building. About ten minutes had passed from the time he saw Smith leave in the van. Johnson testified that he was incarcerated at the time of trial because he had pled guilty to burglary in August 1997. Johnson admitted that he had other felony convictions for theft, burglary, and possession of a controlled substance.

  The parties stipulated that, if Robert Boese were called to testify, he is an expert in the field of forensic chemistry and would be qualified to render an expert opinion in that field. The parties stipulated that Mr. Boese would testify that on January 8, 1992, he received two samples taken from the bedroom in the rear apartment at 6043 South Aberdeen. Bosse found the samples to contain the remnant portion of a wide boiling range mixture of hydrocarbon compounds whose chromatographic representation is consistent with the chromatograms developed from petroleum-based products such as lantern fuels and automotive gasoline.

  The parties stipulated to the admission of various documents: (1) a trust agreement from Maywood Proviso State Bank dated March 13, 1986, between the bank and Smith, transferring Smith's interest in the property to the trust; (2) a mortgage instrument for the trust dated March 27, 1990, which is a mortgage given to Chrysler First Financial Services Corporation in the amount of $55,272.51 to secure a note in that amount; (3) a mortgage document securing another note from First Chrysler for $26,584.33 relating to the property at 6043 South Aberdeen and the property at 12222 South Normal; (4) a trustee's deed conveying the property from the Proviso Bank back to Smith dated April 2, 1990; (5) a contract for the sale of the property from Smith to Petitioner with a purchase price of $35,000; and (6) a quitclaim deed from Smith to Petitioner dated April 1, 1991.

  After the State rested, defendants moved for directed findings in their favor. The trial court denied the motions as to the charge of arson with intent to defraud an insurer and the matter was continued until October 8, 1997.

  On October 8, 1997, the defense moved to call additional witnesses other than those listed in discovery. The State objected, arguing that the request was prejudicial and unfair. The defense sought to introduce the testimony of witnesses who allegedly would contradict Johnson's testimony. The State contended that the defendants had made no attempts to interview Johnson despite ...


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