United States District Court, C.D. Illinois
August 12, 2005.
DAVID JULIAN, Petitioner,
RICHARD BIRKEY, Acting Warden, Respondent.
The opinion of the court was delivered by: MICHAEL MIHM, District Judge
Now before the Court is Petitioner, David Julian's ("Julian"),
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254.
For the reasons set forth below, the Petition [#2] is denied.
Following a trial in the Circuit Court of Tazewell County,
Illinois, Julian was found guilty of armed robbery. On January
10, 2001, he was sentenced to a term of 40 years' imprisonment.
Julian was subsequently convicted of a second charge of armed
robbery in the same court, and on April 5, 2001, he was sentenced
to another 40-year term to be served concurrently with his first
term. He is now incarcerated at the Illinois River Correctional
Center in Canton, Illinois.
Julian filed a consolidated direct appeal to the Illinois
Appellate Court, Third District in which he appealed both
convictions and raised essentially two issues: (1) the cause
should be remanded for further post-trial proceedings on his
claim of ineffective assistance of counsel; and (2) petitioner should be
resentenced for each of his convictions because the court
considered an improper factor in aggravation. On December 11,
2002, the Illinois Appellate Court rejected his claims and
affirmed his convictions and sentences. Julian's petition for
leave to appeal to the Illinois Supreme Court was denied on April
On August 7, 2002, Julian filed a petition for post-conviction
relief in which he raised the following claims: (1) he received
ineffective assistance of counsel for incorrectly advising him
that the maximum sentence he could receive was 30 years for each
crime, to run concurrently, inducing him to reject the State's
plea offer of 23 years; (2) his Sixth and Fourteenth Amendment
rights were violated when trial counsel coerced him to request a
bench trial rather than a jury trial; (3) the trial court denied
him effective assistance of counsel by failing to admonish him
under Illinois Supreme Court Rule 403 at the stipulated bench
trial; (4) his right to testify under the Sixth and Fourteenth
Amendments was violated at both trials; and (5) he received
ineffective assistance of counsel with respect to each of these
claims. Following an evidentiary hearing, Julian's petition was
denied by the circuit court on March 18, 2003. He filed an appeal
with the Illinois Appellate Court, and the trial court's
dismissal of his post-conviction petition was affirmed on October
14, 2004. Julian's petition for leave to appeal to the Illinois
Supreme Court, which raised only the first issue, was denied on
January 26, 2005.
Julian then filed the present Petition for Writ of Habeas
Corpus pursuant to § 2254 mounting a collateral attack with
respect to his April 2001 conviction. In this Petition, he argues
that he received ineffective assistance of counsel when counsel advised him that he could not receive a sentence greater than 30
years' imprisonment based on the Supreme Court's decision in
Apprendi v. New Jersey, and this information coerced him to
reject the State's plea offer of a 23-year sentence. This Order
Before reaching the merits of a petition for writ of habeas
corpus brought pursuant to 28 U.S.C. § 2254, a district court
must consider "whether the petitioner exhausted all available
state remedies and whether the petitioner raised all his federal
claims during the course of the state proceedings." Farrell v.
Lane, 939 F.2d 409, 410 (7th Cir. 1991), quoting
Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988). If
the answer to either of these questions is "no," then the failure
to exhaust state remedies or procedural default bars the
petition. Id. In other words, if a petitioner fails to give the
state courts a full and fair opportunity to review his claims,
then his petition must fail. Bocian v. Godinez, 101 F.3d 465,
468-69 (7th Cir. 1996).
Exhaustion of a federal claim occurs when it has been presented
to the highest state court for a ruling on the merits or when it
could not be brought in state court because a remedy no longer
exists when the federal petition is filed. Id. In the present
case, Respondent does not argue that Petitioner has failed to
exhaust his state remedies.
Procedural default occurs when a claim could have been but was
not presented to the state court and cannot, at the time the
federal petition is filed, be presented to the state court.
Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992).
This occurs in one of two ways. First, a procedural default may
occur when a petitioner fails to pursue each appeal required by state law, Jenkins v.
Gramley, 8 F.3d 505, 507-08 (7th Cir. 1993), or when he did
not assert the claim raised in the federal habeas petition in the
state court system. Resnover, 965 F.2d at 1458-59. The second
way in which a petitioner may procedurally default a claim is
when a state court disposes of the case on an independent and
adequate state law ground, regardless of whether that ground is
substantive or procedural. Coleman v. Thompson, 501 U.S. 722,
111 S.Ct. 2546, 2553-55 (1991).
Federal review is barred for claims that are procedurally
defaulted unless the petitioner can demonstrate cause and
prejudice. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558,
1572-73 (1982); Farrell, 939 F.2d at 411. Review in federal
court is also possible if a fundamental miscarriage of justice
would otherwise occur in that a constitutional error probably
resulted in the conviction of someone who is actually innocent.
Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 864-67 (1995).
With respect to claims that are not barred either for failure
to exhaust or procedural default, federal courts must employ a
strict analysis. A petition must be denied with respect to any
claim previously adjudicated on the merits in a state court
unless the decision of the state court:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a
decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d). See also Lindh v. Murphy, 96 F.3d 856,
868-71 (7th Cir. 1996), rev'd on other grounds,
521 U.S. 320, 117 S.Ct. 2059 (1997). Subsection (d)(1) instructs that Supreme Court precedent
governs legal questions. Id. at 869. In resolving mixed
questions of law and fact, relief is unavailable unless "the
state's decision reflects an unreasonable application of the
law," meaning federal courts are to have a hands-off attitude
unless the state court judgment is premised on an unreasonable
error. Id. at 870 (internal quotation marks omitted). A
responsible, thoughtful decision that is made after a full
opportunity to litigate suffices, "even if it is wrong." Id. at
871, 876-77. Subsection (d)(2) pertains to a decision
constituting an unreasonable determination of the facts, and,
according to 28 U.S.C. § 2254(e)(1), factual issues are presumed
to be correctly resolved. A petitioner must rebut this
presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
Julian argues that his trial counsel was ineffective for
advising him that he could not receive a sentence in excess of 30
years' imprisonment following the Supreme Court's decision in
Apprendi. He then suggests that absent this advice, he would
not have rejected the State's plea offer of 23 years. This claim
was properly presented and was adjudicated on the merits in his
state court proceedings.
Here, the trial court held an evidentiary hearing and made a
factual finding that Julian's counsel did not provide the
erroneous information as claimed in his petition. Pursuant to
28 U.S.C. § 2254(e)(1), factual issues decided by the state courts
are presumed to be correctly resolved, and a petitioner must
rebut this presumption by clear and convincing evidence. Todd v.
Schomig, 283 F.3d 842, 846 (7th Cir. 2002). Accordingly, the
state court's factual determination that Julian's counsel did not erroneously inform him that he could not receive a sentence
greater than 30 years must be presumed to be correct in this
proceeding absent a showing by clear and convincing evidence that
the finding was unreasonable based on the record.
During the evidentiary hearing, Julian admitted that he was
told by the trial judge during his first appearance that the
maximum sentence that he could receive on each charge was 60
years and also acknowledged that his attorney had told him the
same thing prior to his first trial. Julian's attorney, Dennis
Sheehan ("Sheehan"), testified that he told Julian that the
offense was non-probationable with a minimum of a six to a
maximum of 30 years and that in his particular case, the maximum
was 60 years. While Sheehan did tell Julian that in his opinion,
he thought that the appropriate sentence would be 30 years, he
also testified that he never told Julian that he could not get
more than 30 years based on Apprendi and recommended that
Julian take the state's offer of 23 years rather than leaving it
to the judge to decide what penalties would be imposed against
him. In making its factual determination, the circuit court held:
Evidence was clear that Mr. Julian was advised by his
attorney and by the court that he was eligible for an
extended term of up to 60 years in the Illinois
Department of Corrections. Mr. Sheehan did state that
when discussing a plea negotiation offer by the state
he [Sheehan] opined that the sentence might be 30
years. He never stated that that was the maximum
sentence or that a sentence could not be longer. Mr.
Julian knew, because both the court and his attorney
told him, that he was eligible for an extended term.
The Illinois Appellate Court upheld this factual finding as not
against the manifest weight of the evidence. Here, Julian contends that counsel told him that he could not
receive a sentence greater than 30 years and that counsel
admitted this at the evidentiary hearing. However, Julian has
offered nothing new for this Court to consider, much less
something that would rebut the state court's factual
determinations by clear and convincing evidence. He offers no
support for his assertions, and support is not provided by any of
the documents that he submitted in support of his Petition.
Julian's assertions are contrary to the factual findings of the
circuit court following an evidentiary hearing. The circuit court
held the hearing, listened to testimony, and made credibility
determinations based on its observations. Federal courts hearing
habeas corpus petitions based on state convictions have "no
license to redetermine credibility of witnesses whose demeanor
has been observed by the state trial court, but not by them."
Marshall v. Lonberger, 459 U.S. 422
, 434, 103 S.Ct. 843 (1983).
As Julian does little more than ask this Court to accept his
disagreement with the decision of the circuit and appellate
courts, he has failed to introduce evidence rebutting the
presumption of factual correctness by clear and convincing
evidence and has provided no other basis for finding that the
appellate court's conclusion was based on an unreasonable
application of the facts in light of the evidence presented in
the state court proceedings. See § 2254(d)(2) Accordingly, the
Court must conclude that Julian's bald assertion of a
constitutional violation is simply insufficient to meet the
standard required to obtain federal habeas relief. His petition
for writ of habeas corpus is therefore denied.
CONCLUSION For the reasons set forth herein, Julian's Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 [#2] is DENIED. This
matter is now terminated.
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