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November 19, 2004.

Dionna Beachem (a.k.a. Dionna Beachmon), Petitioner,
Alyssa Williams, Warden, Dwight Correctional Center Respondent.

The opinion of the court was delivered by: MARK FILIP, District Judge


Now before the Court is Petitioner Dionna Beachem's Petition for a Writ of Habeas Corpus against Respondent Alyssa Williams, Warden of the Dwight Correctional Center, challenging the constitutionality of the state court judgment under which Petitioner is being held. The Court has received Respondent's answer and obtained the state court record of Petitioner's trial and state post-conviction proceedings. For the reasons stated below, the Petition is dismissed.


  Petitioner is imprisoned pursuant to a judgment of the Illinois courts. The Court has taken the facts of the matter from the record of Petitioner's trial and post-conviction petition, appellate court opinions and orders in her criminal case and post-conviction petition, and from her own filings in those cases. Ms. Annie Jones, the victim in this case, was seventy-seven years old when her landlord and a worried friend discovered her dead body in her disordered apartment on December 6, 1994. People v. Beachem (Beachem I), No. 1-96-3260, slip op. at 2, 6 (Ill.App.Ct. Jan. 22, 1998). Petitioner and a friend of hers, Tianna Jackson, were arrested in connection with Ms. Jones's death the next day, December 7. Id. at 2. The police suspected Petitioner and Jackson of the crime because they had attempted to use Ms. Jones's credit card on December 5, 1994, the day before Ms. Jones's body was discovered. Id.

  Petitioner told the police a series of stories, the last of which was transcribed by the police, signed by Petitioner, and later admitted into evidence at Petitioner's trial. Id. First Petitioner claimed that she had found Ms. Jones's car with Ms. Jones's keys and purse inside. Id. Then Petitioner said that she and Jackson had taken Ms. Jones's car and credit card from Ms. Jones's apartment building, but Petitioner denied that she had injured or harmed Ms. Jones. Id. Finally, in the version which was transcribed and signed, Petitioner admitted to using violence against Ms. Jones.

  Petitioner said that she had plotted with Jackson to rob Ms. Jones of her credit card. Id. at 2-3. Petitioner stated that she and Jackson had tried to get Ms. Jones to let them into Ms. Jones's apartment building on December 2, 1994, but Ms. Jones refused to do so because they would not identify themselves and Ms. Jones started yelling at them. Id. at 3. Petitioner (who was at least somewhat acquainted with Ms. Jones, id.) and Jackson therefore refined their plan and devised a ruse to get Ms. Jones to allow them into her building.

  A few days later, on December 5, Petitioner and Jackson tried again to get Ms. Jones's credit card. Id. This time, according to Petitioner, "she and Jackson figured out a way to get Ms. Jones to open the door for them." Id. When Ms. Jones asked who was at the door, Petitioner and Jackson stated that they were Jehovah's Witnesses, and Ms. Jones opened the door. Id.

  Petitioner said that as soon as Ms. Jones opened the door, Petitioner grabbed the "skull cap" Ms. Jones always wore and pulled it down over Ms. Jones's eyes. Id. at 3-4. Jackson then pushed Petitioner through the doorway into the building, causing Petitioner to knock Ms. Jones down and fall on top of her. Id. at 4. Jackson locked the front door. Id.

  Ms. Jones struggled in the hallway outside of her apartment and was making noise. Id. Ms. Jones also was praying and begging Petitioner and Jackson not to hurt her, saying such things as "Lord, please send somebody" and "In the name of Jesus, don't hurt me." Id. Ms. Jones told Petitioner and Jackson that they could have whatever they wanted. Id.

  Petitioner tried to keep the skull cap in place over Ms. Jones eyes, but eventually Ms. Jones succeeded in removing it. Id. Petitioner told police that when this occurred, she "snapped" and banged Ms. Jones's head against the floor "about three times." Id. Petitioner said that after she repeatedly banged the elderly woman's head on the floor, Ms. Jones became quiet and stopped struggling. Id. Petitioner and Jackson dragged Ms. Jones into Ms. Jones's apartment and loosely bound her with a phone cord and tied her "skull cap" pulled down over her face with a phone cord that Petitioner had brought with her. Id.

  Petitioner and Jackson left Ms. Jones on the floor while they searched for the credit card and any other valuables that might be found. Id. Petitioner stated that she later thought she heard Ms. Jones making sounds, so she told Jackson to check on Ms. Jones; Petitioner said that Jackson went to Ms. Jones and kicked her in the back of the head. Id. at 5. Petitioner said that she and Jackson found and took Ms. Jones's purse, credit card, identification, and car keys, as well as some rings, and left in Ms. Jones's car, which they stole. Id. at 4-5.

  Petitioner said that she and Jackson soon went to a jewelry store at the Ford City Mall and tried to make a $1,200 purchase. Id. at 5. The store owner became suspicious, called the credit card company, and asked Petitioner and Jackson for picture identification. Id. at 5-6. Petitioner first claimed that the credit card was hers, but she later admitted that it was not; mall security detained both Petitioner and Jackson in the store's back room. Id. at 6. Petitioner said in her signed statement to police that while she was in that room, she threw Ms. Jones's car keys into the trash. Id. Ms. Jones's body was discovered on December 6, after a friend became concerned because she did not come to church as usual. Id.

  Petitioner was charged with first degree murder, home invasion, residential burglary, and robbery. Id. at 1. The prosecution corroborated at least parts of Petitioner's confession with further evidence at trial. For example, one of Ms. Jones's neighbors testified that Ms. Jones's car had been in front of the apartment building at 7:30 a.m. on December 5, but was gone at 1:00 p.m. on the same day. Id. at 7. A police officer testified that she found the car parked in the Ford City Mall parking lot. Id. A detective testified that he discovered the car's keys in one of the Mall's dumpsters the next day; the store owner testified that three days thereafter, he found Ms. Jones's driver's license hidden in his store. Id. A doctor who had performed an autopsy on Ms. Jones testified to numerous injuries that her examination revealed, and opined that Ms. Jones had died because head trauma had caused hemorrhaging in her scalp and brain, which had in turn caused her brain to swell. Id. at 7-8. The doctor also testified that when she first saw Ms. Jones, she had a knit cap pulled over her face and tied with a cord. Id. at 7. The doctor testified to various other injuries Ms. Jones had suffered, including broken ribs, various facial bruises and lacerations, and a bruised heart. Id. at 8. Petitioner's trial counsel responded first by attacking the alleged correspondence between the physical evidence and Petitioner's confession. For instance, he called the first police officer to see Ms. Jones's body to the stand as a defense witness; the officer testified that he had seen marks on Ms. Jones's neck that he believed were signs of strangulation. Id. at 8. In closing argument, Petitioner's counsel further stressed alleged incongruities, noting the lack of evidence of a struggle in the hallway (Supplemental Exhibits (D.E. 15), Supp. Ex. 1 ("Trial Transcripts, People v. Beachem, Circuit Court of Cook County, No. 95 CR 406") at H-49), the fact that Ms. Jones's slippers were found in the room rather than the hallway (id. at H-50), and the fact that the injuries were more extensive than Petitioner's confession acknowledged (id. at H-51). The confession, he then repeatedly argued, had been coerced. (Id. at H-47, H-53 to H-54, H-57.) Petitioner had unknowingly used Ms. Jones's property, but was not involved in the murder. (Id. at H-42 to H-43.) The police had merely latched onto the first lead available and decided to ensure the conviction of the resulting suspects. Beachem I, No. 1-96-3260, slip op. at 8.

  The defense was unsuccessful: the jury convicted Petitioner on all counts. Id. at 1, 8. The trial court sentenced Petitioner to concurrent prison terms of ninety, thirty, fifteen, and six years on the murder, home invasion, burglary and robbery charges, respectively. Id. at 1.

  Normally, sentences for first degree murder in Illinois are not to exceed sixty years. 730 Ill. Comp. Stat. 5/5-8-1(a)(1)(a) (2002). Under the law applicable at the time of Petitioner's conviction, however, a court was permitted to sentence defendants to terms of up to one hundred years if it found certain aggravating factors. 730 Ill. Comp. Stat. 5/5-8-1(a)(1)(b) (1996), superceded by 2000 Ill. Legis. Serv. P.A. 91-953 (West); 730 Ill. Comp. Stat. 5/5-8-2(a)(1) (1996), superceded by 2000 Ill. Legis. Serv. P.A. 91-953 (West). At sentencing, the court found two such aggravating factors — including that the victim, Ms. Jones, was over sixty years old. See Beachem I, No. 1-96-3260, slip op. at 13-15; see also 730 Ill. Comp. Stat. 5/5-8-2(a)(1) (1996); 730 Ill. Comp. Stat. 5/5-5-3.2(b)(2), (4)(ii) (1996). The jury had not been asked to make a determination regarding this aggravating factor in regard to the murder count. People v. Beachem (Beachem II), 784 N.E.2d 285, 288, 295 (Ill.App.Ct. 2000). However, the jury was required in connection with the robbery count to find that Ms. Jones had been more than sixty years old, because "Beachem was charged with committing a robbery on a victim over 60 years of age." Id. at 295; see also id. ("Thus the jury's guilty verdict was a finding that the murdered victim of the robbery was over 60.").

  Petitioner appealed her conviction to the Illinois Appellate Court, alleging both that improper comments in the prosecution's closing argument had denied her a fair trial and that the trial court had abused its discretion in sentencing her to a ninety year prison term. Beachem I, No. 1-96-3260, slip op. at 1-2. The appellate court rejected both arguments. It found that the comments which Petitioner alleged had drawn improper and irrelevant sympathy to the victim — that Ms. Jones had been a "deeply religious woman," a "benevolent, deeply religious woman," "a true victim," and "the type of woman that our society, at least some of us, have been taught to respect," id. at 8-9 — were not improper. For example, the court explained that according to Petitioner's confession, she and Jackson schemed to exploit Ms. Jones's religious convictions to gain entry to her apartment by pretending to be Jehovah's Witnesses; the court found that the prosecution's comments properly pointed out this correspondence between the confession and Ms. Jones's personality without improperly dwelling on Ms. Jones's religion. Id. at 10-11. Similarly, the court found that the description of Ms. Jones as a "true victim" was both accurate and reasonable. Id. at 11.

  Petitioner further alleged that the prosecution had made two arguments unsupported by evidence in its closing argument: that Petitioners' fingerprints were not found in Ms. Jones's apartment because Petitioner had worn gloves, and that the police did not leave the State's Attorney alone in an interview with the Petitioner because Petitioner was a killer. Id. at 9. The appellate court found the first prosecution argument to be supported by the evidence. Because the crime had occurred in Chicago in the middle of winter and the jury had heard testimony that gloved hands do not leave fingerprints, it was reasonable to suggest that Petitioner had committed the crime but had worn gloves. Id. at 11. Petitioner's trial counsel never objected to the prosecution's comment about the State's Attorney interview at trial, and the appellate court considered arguments based upon it waived. Id. at 11-12. In the alternative, the court found that if the comment was otherwise objectionable, the defense had provoked it by claiming that the police had remained in the room with the State's attorney in order to intimidate Petitioner. Id. at 12.

  As to the allegedly improper arguments and comments by the prosecution, the court concluded with an alternative holding. The court held that even if it had found that the allegedly offending comments were improper, such error would have been harmless because of the "overwhelmin[g]" evidence supporting the conviction. Id. at 12.

  Finally, Petitioner alleged that had the trial court had underweighted or ignored so many factors calling for a lower sentence that it had abused its discretion by sentencing Petitioner to ninety years in prison, ignoring the likelihood that she would be rehabilitated. The appellate court noted that Petitioner had been eligible for the death penalty, and held that it was not an abuse of discretion for the trial court to conclude that although the various alleged mitigating factors suggested that Petitioner should not receive a death sentence, she should nonetheless be sentenced to ninety years. Id. at 13-16; see also id. at 15 ("The facts of this case indicate that Beachem formulated a plan to rob Annie Jones months before she acted on it. . . . Beachem tailored her plan so that she could get Ms. Jones to open the door for her. Then Beachem beat a frail, elderly woman to keep her from making noise and exposing their plan to steal a credit card. . . .").

  The appellate court thus affirmed the judgment of the trial court. Petitioner sought leave to appeal to the Illinois Supreme Court. Her petition presented the same bases for relief as her earlier appeal: that the prosecution had made improper comments designed to draw sympathy to Ms. Jones (Answer (D.E. 12), Ex. B (Pet. for Leave to Appeal) at 9-10) and misstated evidence in its closing argument (id. at 11-12), and that the trial court abused its discretion in sentencing (id. at 12-16). The court denied her petition without an opinion. Beachem I, No. 85093, slip op. at 1 (Ill. June 25, 1998).

  The next year, Petitioner filed a petition for post-conviction relief in the Illinois state courts. She raised a number of new claims which purported to prove that her trial counsel had been so ineffective as to deny her the constitutional right to counsel. Petitioner's trial counsel allegedly failed to move to quash Petitioner's arrest and confession, Beachem II, 95-CR-00406, slip op. at 14-15 (Ill. Cir. Ct. Jan 14, 1999), forbade her to testify at trial, id. at 15-17, failed to inform her of a plea offer from the prosecution, id. at 17-18, failed to object to victim impact statements introduced at sentencing, id. at 18-19, failed to challenge two jurors for cause, id. at 20, and presented an inadequate closing argument, id. at 20-21. She further alleged that her trial counsel should have objected to a line of questioning the prosecution pursued with one police witness, in which the prosecution elicited testimony to the effect that the witness had heard from Petitioner's father that Petitioner had stated that she knew something about Ms. Jones's murder. Id. at 19. Petitioner also renewed her argument that the original trial court had abused its discretion in sentencing. Id. at 9, 21.

  The trial court dismissed the petition for post-conviction relief as "frivolous and patently without merit" (id. at 1) after reviewing the claims in a lengthy opinion. Id. at 1-22. The trial court did not hold an evidentiary hearing because Petitioner's claims were not supported by the requisite affidavits or supporting evidence required under Illinois law and were not clearly supported by the record. Id. at 8-9, 17-18, see also 725 Ill. Comp. Stat. 5/122-2.1(a)(2) (2002). (The trial court noted that the only arguments offered came via the petition and Beachem's own affidavit, which was insufficient under Illinois law, particularly given that "[t]he tendered documents . . . do not explain with any degree of specificity, how the petitioner's rights were violated. They further do not support any of the claims alleged in the petition." (Beachem II, 95-CR-00406, slip op. at 9 (Ill. Cir. Ct. Jan. 14, 1999) (collecting Illinois authorities).) The trial court also held that the abuse of discretion claim was barred by "res judicata" because of its previous litigation in the direct appeal, id. at 13, and that all of the ineffective assistance claims except for the one based on failure to report a plea agreement could have been raised on direct appeal and were thus waived, id. at 11-12.

  The court offered alternative substantive grounds for the dismissal of most of the claims; the Court relays those relevant to the present petition for habeas corpus. The court found that the record indicated not that Petitioner's counsel had refused to permit her to testify "as to how she became involved in the situation," id. at 9, but rather that counsel had merely advised her not to testify, id. at 17. The trial court admonished Petitioner of her right to testify, and Petitioner acknowledged that she understood and did not wish to do so. Id. With respect to Petitioner's claim that her trial counsel had failed to relay a plea agreement from the prosecution to her, the court discussed the lack of any affidavit or other evidence other than Petitioner's conclusory allegation, and held as a matter of state law that "[u]nsupported conclusory allegations in the petition or in the petitioner's own affidavit are not sufficient to require a hearing under the [Illinois Post-Conviction Hearing] Act." Id. at 17-18 (collecting Illinois cases). The court dismissed Petitioner's claim as insufficiently developed and as meritless in any event. Id.

  Petitioner appealed, narrowing her claims for relief to her trial counsel's alleged failure to relay a plea offer (D.E. 12, Ex. E (Brief and Argument for Petitioner-Appellant) at 12-15) and her trial counsel's failure to object to the prosecution's line of questioning that produced hearsay evidence regarding a discussion between Petitioner and her father (id. at 17-19). Petitioner also added the claim that the prosecution had deprived her of a fair trial by eliciting testimony from a witness to the effect that Jackson had confessed to the crime. (Id. at 20-22.) Petitioner also alleged, either as an independent ground for relief or as an excuse for failing to raise the issue sooner, that her appellate counsel had been ineffective in failing to raise this last argument. Finally, in a supplemental brief, the Petitioner alleged that her sentence violated the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Petitioner argued that unless the jury had been instructed in regard to the murder charges to determine whether any of the statutory aggravating factors applied, Petitioner could not have been sentenced to more than sixty years in prison, the normal statutory limit of 730 Ill. Comp. Stat. 5/5-8-1(a). (D.E. 12, Ex. F (Supp. Brief and Argument for Defendant-Appellant) at iv-v.)

  The appellate court initially found against the Petitioner on everything but her Apprendi claim. The court affirmed the trial court's dismissal of Petitioner's plea agreement claim, finding it "frivolous" and "patently without merit" because there was no record support as required by Illinois law. See Beachem II, 740 N.E.2d 389, 391 (Ill.App. 2000) ("It was pure unsupported conclusion."). Although Petitioner claimed that she had in fact attached an affidavit from her mother to her petition, of which the trial court allegedly had failed to take note (D.E. 12, Ex. E at 14-15), the court disagreed: the affidavit was addressed "To the Appellate Court" and was dated almost a month after the trial court dismissed the petition. Beachem II, 740 N.E.2d at 391. The appellate court could not consider it because it had not been properly presented to the trial court. Id. The court also found that the prosecutorial misconduct issues had not been properly raised below and were waived. Id.

  By contrast, the court initially found Petitioner's Apprendi argument at least potentially persuasive. (It reversed itself shortly thereafter on remand after consulting intervening precedent.) The court held that Apprendi applied retroactively to judgments finalized before that decision, and that it presented potential implications for Petitioner's case. Id. at 397. However, the court was reluctant to make any determinations before the issue was developed more fully below, and the court remanded the petition to the trial court for reconsideration in light of Apprendi. Id. at 399.

  The State of Illinois petitioned the Illinois Supreme Court for summary review and remand to the appellate court for reconsideration in light of three cases from the Illinois Supreme Court. (D.E. 12, Ex. H (Motion for Summary Remand in Light of People v. Ford (Ill. 2001), People v. Hopkins (Ill. 2002), and People v. Rogers (Ill. 2001).) The Illinois Supreme Court remanded the case to the appellate court for reconsideration without an opinion. Beachem II, 779 N.E.2d 1147, 1148 (Ill. 2002).

  On remand, the appellate court changed its mind on the merits of Petitioner's Apprendi claim and affirmed the trial court's dismissal of her post-conviction petition. Although it still held that the rule established in that case applied retroactively to the Petitioner's, it found that the trial court's ninety year sentence was consonant with that rule. Beachem II, 784 N.E.2d 285, 295 (Ill.App.Ct. 2002). First, the court found that the "statutory maximum" penalty for first degree murder was death, rather than sixty years in prison, and that the ninety year prison term was more lenient than a death sentence, so that there was no need for either of the aggravating factors upon which the trial court relied to have been found by a jury. Id. Second, the court found that Apprendi's jury-finding requirement had been met when the jury had explicitly found ...

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