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U.S. EX REL. JONES v. HINSLEY

June 3, 2005.

UNITED STATES ex rel. GREG JONES, Petitioner,
v.
CHARLES HINSLEY,[fn1] Respondent.



The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge

*fn1 Since the filing the petition, Charles Hinsley replaced Eugene McAdory as Warden of Menard Correctional Center. Pursuant to Fed.R.Civ.P. 25(d) and Rule 2(a) of the Rules Governing Section 2254 Cases, Warden Hinsley is substituted as the proper party-respondent.

MEMORANDUM OPINION AND ORDER

Greg Jones has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § ("section") 2254 challenging his state criminal conviction. For the reasons set forth below, the petition is denied and this case is dismissed with prejudice.

  Procedural Background

  In 1999, Jones was convicted of two counts of first-degree murder in connection with the deaths of Genova Taylor and Larry Lowe and was sentenced to a prison term for the remainder of his natural life. (See Gov't Ex. A, People v. Gregory D. Jones, No. 1-99-3207, Dec. 19, 2000). He appealed both his conviction and sentence to the Appellate Court of Illinois, First District, raising the two issues: (1) there was improper admission of hearsay evidence; and (2) his counsel was ineffective because he failed to request a fitness hearing. On December 19, 2000, the Illinois Appellate Court affirmed the trial court's rulings of his convictions and sentence. (Id. at 219.)

  On January 29, 2001, Jones filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court. (See Gov't Ex. B, 1/29/01 Pet. Leave Appeal.) In the PLA, Jones claims that there was insufficient evidence to support his conviction; namely, there was insufficient evidence to prove both that Jones did not act in self-defense and that Jones caused Lowe's death. Id. He also claimed that he was not afforded a fair trial because hearsay evidence was improperly admitted. Id. On April 4, 2001, the petition was denied. (See Gov't Ex. C, People v. Gregory D. Jones, No. 90839 (Ill. Sup. Ct. Pr. 4, 2001).) Jones did not seek leave to appeal to the United States Supreme Court.

  In June 2001, Jones filed a petition for post-conviction relief, claiming his sentence violated the United States Supreme Court holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). (See Gov't Ex. D.,6/14/01 Pet. Post-Conviction Relief.) On June 29, 2001, the petition was denied. (See Gov't Ex. E, People v. Gregory D. Jones, No. 97 CR 12872-01 Circuit Ct. Cook County July 2, 2001.)) Jones then appealed the denial of his petition for post-conviction relief, and on September 30, 2002, the appellate court affirmed the circuit court's dismissal. (See Gov't Ex. F, Order of the Illinois Appellate Court, No. 1-01-3185). Jones sought leave to appeal the adverse decision on his post-conviction petition to the Illinois Supreme Court. (See Gov't Ex. G, 12/15/00 Pet. Leave Appeal.) On June 4, 2003, his petition was denied. (See Gov't Ex. H, People v. Gregory D. Jones, No. 95917 (Ill. Sup. Ct. June 4, 2003).) Discussion

  In this section 2254 petition, Jones raises four claims: (1) that at the bench trial, the court abused its authority by considering the circumstances of Taylor's death as a basis to determine that Jones should be convicted of first degree murder of Lowe; (2) that trial counsel was ineffective because he did not move to sever the two murder charges; (3) that his Fourth Amendment due process rights were violated because the cause of Lowe's death was not proven beyond a reasonable doubt; and (4) that the state was improperly allowed to present Lowe's hearsay declaration into evidence.

  Claim Two and Claim Four

  We can reach the merits of these claims only if Jones "raised all of [them] during the course of the state proceedings, presenting each claim fully and fairly to the state courts." Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir. 1999). "A petitioner presents his claims fully by pursuing all available avenues of relief provided by the state before turning to the federal courts." Id. (internal quotation marks and citation omitted). A petitioner presents his claims fairly if he gives the state courts "a meaningful opportunity to pass upon the substance of the claims later presented in federal court." Id. at 916. Both the operative facts and the "controlling legal principles" must be submitted to the state court. Id. at 917 (internal quotation marks and citation omitted). Jones will have properly presented his claims if he: (1) relied on federal cases employing a constitutional analysis or state cases applying a constitutional analysis to a similar factual situation; (2) asserted the claim in terms that evoke a specific constitutional right; or (3) alleged a fact pattern that is "well within the mainstream of constitutional litigation." Verdin v. O'Leary, 972 F.2d 1467, 1473 (7th Cir. 1992) at 1473-74 (internal quotation marks and citation omitted). However, satisfying any of these elements does not automatically mean that the claims have been adequately presented to the state court. Id. For example, if a petitioner does not raise his claims in a petition for a discretionary appeal to the state supreme court, he has not fully presented his claims. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"). Furthermore, for state remedies to have been exhausted, the claim raised in the habeas petition should be phrased as it was during the state appellate process. Chamber v. McCaughtry, 264 F. 3d 732, 738 (7th Cir. 2001).

  Also, ". . . a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.S. § 2254. If the claim is not affirmatively based on such constitutional grounds it will be considered to be non-cognizable in federal court. Merely referencing a constitutional issue in passing will not deem an issue as having been fairly presented. Fortini v. Murphy, 257 F.3d 39, 44 (1st Cir. 2001). If the presentation requirement is not fulfilled, the claims are considered to be procedurally defaulted and if they are grounded solely on state law, they are considered non-cognizable. See Verdin v. O'Leary, 972 F.2d 1467, 1472-73, 1476 (7th Cir. 1992). Furthermore, procedurally defaulted and non-cognizable claims are precluded from federal review. Id.

  Respondent asserts that several claims have been procedurally defaulted. In claim two. Petitioner states that he received ineffective assistance of counsel when counsel failed to file a pre-trial motion to have the two murder charges tried separately. Respondent argues that this claim was not presented in the appellate and post-conviction proceedings. Respondent further contends that one ground in claim four fails for the same reason. In addition, Respondent notes that part of claim four was raised for the first time in the instant habeas corpus petition and thus it was not "fairly presented" to the state courts. See Verdin, 972 F.2d at 1479 n. 13.

  Petitioner responds that he asked his counsel to seek separate trials but his counsel never moved to sever. But as his appellate briefs demonstrate, Jones never included the separation trial issue in his appeals, post-conviction petitions or PLA. The only argument that remotely resembles such a claim can be found in his PLA, where he argued that counsel should have asked for a "fitness hearing." A fitness hearing seeks to resolve a genuine doubt of the competency and ability of a defendant to stand trial. 725 ILCS 5/104-11(a). It has nothing to do with counsel's failure to ask for severance of the two murder trials. Claim two is procedurally defaulted and is not entitled to habeas relief.

  Claim four suffers the same fate. Petitioner raises for the first time that he was deprived of his rights under the Sixth Amendment because the trial court admitted a hearsay statement of Lowe's that he was a victim. The trial court admitted Lowe's out-of-court statement before his death as an excited utterance, and Jones claims that his Sixth Amendment rights were violated because he was never able to confront Lowe about the statement. Jones did not raise these Confrontation Clause claims in his direct appeal, nor did he raise them in his post-conviction petition or post-conviction appeal. In the appeal process, Jones did dispute whether the hearsay statement was properly admitted. However, in his argument there, he contends that the statement the trial court labeled as an excited utterance was a actually a dying declaration, but it did not satisfy the elements to be termed a dying declaration. Jones also argued that the statement was not reliable and that the improper admission prevented him from receiving a fair trial. However, Jones's argument was based solely ...


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