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June 16, 2005.


The opinion of the court was delivered by: DAVID COAR, District Judge


Before this Court is Petitioner Alex Gilbert's ("Gilbert" or "Petitioner") Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (1996). For the reasons discussed below, this court denies the petition.

I. Facts

  Petitioner Alex Gilbert entered a negotiated guilty plea to first-degree murder based on accountability in the Circuit Court of Cook County on November 10, 1993 and was sentenced to thirty years in prison. This sentence arose from the murder of Kevin Heard on the early morning of July 5, 1992. Petitioner, who was then fourteen years old, was arrested at 9:30 a.m. on July 6, 1992, at his home. The police did not inform Petitioner's mother, who was not at home at the time, of Petitioner's arrest. He was taken to the police station, advised of his Miranda rights in the presence of a youth officer, and questioned. Petitioner denied that he was present when the victim was shot. At 12:30 p.m., the investigating officers put Petitioner in a line-up with three seventeen year-old boys. An eyewitness identified Petitioner as the person she had seen at the scene of the shooting identifying the victim as a member of the rival gang immediately before Petitioner's co-defendant shot at the victim's car. The officers informed Petitioner that he had been identified and questioned him again. Petitioner's mother, who had learned of Petitioner's arrest from a neighbor, arrived at the police station at approximately 2:30 p.m. She asked repeatedly to see Petitioner and was denied. At some point between 12:30 p.m. and approximately 7:00 p.m., Petitioner made a confession to the police. The confession stated that Petitioner, who was then fourteen years old, mistakenly identified the victim as a member of a rival gang because of the way that the victim was wearing a baseball cap; the victim was then fatally shot by Petitioner's co-defendant, a member of Petitioner's gang. The confession was reduced to a written statement by an Assistant State's Attorney and Petitioner signed it. Petitioner states that over the course of his interrogation he asked several times to speak to his mother or to an attorney. As the police were transporting Petitioner from the interview room to the jail, Petitioner saw his mother in the waiting area and told her that he had signed something. Petitioner states that he told his mother to call a lawyer.

  On November 10, 1993, Petitioner, represented by a Cook County Public Defender, entered a negotiated guilty plea to a charge of first-degree murder based on accountability. Petitioner was charged as an adult. The parties stipulated that the factual basis for Petitioner's plea included Petitioner's confession, the eyewitness identification, and forensic evidence from the medical examiner and a weapons expert. (Change of Plea tr., at 8-22.) Petitioner was then sentenced. II. Procedural History

  Petitioner subsequently filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. (West 1996). The trial court appointed counsel for the Petitioner, who filed an amended, supplemental post-conviction petition. Specifically, Petitioner alleged that his guilty plea was involuntary because it was based on a confession obtained in violation of his due process rights; Petitioner also claimed ineffective assistance of counsel because his attorney failed to file a motion to suppress the confession. The State filed a motion to dismiss and the trial court granted that motion without holding an evidentiary hearing. The trial court additionally concluded that Petitioner's substantive claims lacked merit. Petitioner then appealed to the Illinois Appellate Court, arguing that the trial court erred in finding that it lacked jurisdiction to conduct an evidentiary hearing. Petitioner contended that he could attack his guilty plea collaterally on the ground that it was motivated by an involuntary confession if he also raised a claim of ineffective assistance of counsel, which he had done. The State argued in its opposition brief that Petitioner's claims were without merit and that the trial court was therefore without authority to hear them.

  The Illinois Appellate Court held that the trial court was incorrect in finding it lacked jurisdiction over Petitioner's substantive claims. People v. Gilbert, No. 99-3363, slip op. (Ill.App.Ct. Oct. 30, 2001). The appellate court conducted a de novo review of the trial court's dismissal of Petitioner's post-conviction petition without an evidentiary hearing. The appellate court addressed Petitioner's contention that his guilty plea was not knowing or voluntary and found that the trial court had met substantially complied with the requirements of Illinois Supreme Court Rule 402. ILCS S. Ct. R. 402. Rule 402 requires a trial court to admonish a defendant as to the nature of the charges against him, inform the defendant of his right to a jury trial and his right to confront witnesses against him, before accepting a guilty plea. Petitioner did not allege that the trial court failed to substantially comply with Rule 402. The appellate court examined the trial court record and found that "the trial court properly dismissed defendant's petition" on the basis that the record refuted his assertion that his plea was not knowingly or voluntarily entered. Gilbert, No. 99-3363, slip op. at 10

  The appellate court then analyzed Petitioner's claim that his trial counsel was ineffective for failing to file a motion to suppress Petitioner's allegedly involuntary confession. The appellate court stated that Petitioner had to "show that his counsel's performance was deficient in that it fell below an objective standard of reasonableness," and that this deficient performance "so prejudiced him that there is a reasonable probability that the outcome would have been different without counsel's errors." Id. at 10 (citing People v. Cloutier, 191 Ill. 2d 392, 398 (2000)). Specifically, the court stated that the Petitioner "must show that the motion would have been granted and that the trial outcome would have been different if the evidence had been suppressed." Id. at 11 (citing People v. Rodriguez, 312 Ill. App. 3d 920, 925 (2000)).

  The court first examined the voluntariness of Petitioner's confession by analyzing the totality of the circumstances. The court listed the factors it must consider in a voluntariness determination and provided some additional considerations used when analyzing a confession by a juvenile. The additional factors included time of day of questioning, and the presence or absence of a parent or other interested adult. Id. at 12 (citing People v. McNeal, 298 Ill. App. 3d 379, 391 (1998)). The court stated that Petitioner's involuntariness argument was based on the fact that he was not allowed to speak with his mother before or during his interrogation. There is, however, no per se right for a juvenile either to have a parent present during questioning or to consult with a parent before questioning. Id. (citing People v. Pogue, 312 Ill. App. 3d 719, 728 (1999)). Although absence of a parent is one factor a court will consider during a voluntariness determination, the appellate court stated that it "is not determinative of whether a juvenile's confession should be suppressed." Id. The court then found that Petitioner's claim, even with his mother's supporting affidavit (stating that she had been present at the police station and asking to see her son,) was insufficient to support a finding of involuntariness. In addition, the court found that Petitioner failed to show that his trial counsel would have been able to prove that the confession was involuntary. Instead, the court stated that the trial record showed that the confession and the subsequent plea were voluntary. Moreover, the appellate court stated that "[c]ounsel was not deficient and defendant was not prejudiced because the stipulated evidence apart from the confession was sufficient to show a factual basis for defendant's plea." Id. at 13.

  Petitioner then filed a petition for leave to appeal to the Illinois Supreme Court, which was denied. He subsequently filed a motion for rehearing with the Illinois Supreme Court, which the Court treated as a motion for leave to file a motion for reconsideration and denied.

  Petitioner then came into federal court on a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, originally filed in April 2002. In August 2004, this court ordered the appointment of counsel for the Petitioner. In his Memorandum in Support of the Petition for Writ of Habeas Corpus, Petitioner asserts that he is entitled to relief on his claim of involuntary confession and that he was denied effective assistance of counsel. With regard to his confession, he alleges that the State has improperly attempted to narrow his voluntariness claim to whether the failure to allow his mother to consult with him before or during his interrogation violated his due process rights. In fact, he contends, he had preserved a broader involuntariness claim because he had asserted repeatedly that the initial search and seizure of his home was done without his permission; that he was denied an attorney after he asked for one during his interrogation; that he was denied an attorney after his mother, who was present at the police station, asked for one to be provided; and that he was interrogated without a parent or interested adult present. He further contends that the Illinois Appellate Court based its determination that his confession and guilty plea were voluntary on an "almost nonexistent" record, noting that the record does not account for the full ten hours he was in police custody and that the court did not address the problems with the line-up the police conducted. As to his claim of ineffective assistance of counsel, Petitioner contends that his trial court attorney's failure to file a motion to suppress the confession fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668 (1984). Moreover, he contends that the state appellate court failed to properly and thoroughly analyze the totality of circumstances involving the confession as required by the United States Supreme Court.

  In its response, the State asserts that Petitioner's involuntary confession claim is noncognizable because Petitioner admitted in open court that he was guilty of the offense when he entered his plea. The only way he could now raise independent claims about constitutional violations that allegedly occurred prior to his guilty plea would be to allege that his counsel was ineffective and that it was because of that ineffectiveness that he entered the plea. The State contends that Petitioner's claim of ineffective assistance of counsel for failure to move to suppress the confession is likewise non-cognizable because it seeks to collaterally attack the conviction for alleged constitutional violations that preceded the guilty plea. The State contends that Petitioner only argues that his counsel should have moved to suppress his confession and does not argue that his counsel's ineffectiveness caused him to enter a plea that was not voluntary and intelligent. Finally, the State argues that if the court inferred a claim of ineffective assistance of counsel that caused Petitioner to enter an involuntary guilty plea, that claim would be procedurally defaulted and without merit. The State contends that Petitioner failed to raise a claim that his plea was involuntary because of ineffective assistance of counsel at every level in the Illinois courts, and that he specifically omitted this claim in his Petition for Leave to Appeal. In addition, the State asserts that the Illinois Appellate Court ruled that Petitioner's ineffective assistance of counsel fails on the merits and that this ruling was not an unreasonable application of clearly established United States Supreme Court case law. 28 U.S.C. § 2254(d)(1).

  III. Analysis

  A. Exhaustion of State ...

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