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U.S. v. HINSLEY

August 24, 2005.

UNITED STATES OF AMERICA ex rel. ANTONIO McDONALD,
v.
CHARLES HINSLEY, Warden.



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 Antonio McDonald for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we deny the petition for habeas corpus.

BACKGROUND

  Petitioner Antonio McDonald was convicted on October 21, 1999 in the Circuit Court of Cook Country on one count of first degree murder and two counts of armed robbery. The court sentenced McDonald to consecutive sentences of 60 years imprisonment for murder and 30 years imprisonment for armed robbery. McDonald appealed his conviction to the Illinois Appellate Court arguing that the trial court erred in sentencing him to consecutive prison terms and that his sentence was excessive given the circumstances and his rehabilitative potential. The Illinois Appellate Court affirmed the conviction and term of McDonald's sentences but modified the sentences to be served concurrently. McDonald did not file a petition for leave to appeal these issues to the Illinois Supreme Court.

  McDonald then filed a pro se post-conviction relief petition alleging that: (1) he was not proven guilty beyond a reasonable doubt; (2) trial counsel provided ineffective assistance by failing to file a motion to quash McDonald's arrest based on lack of probable cause; (3) trial counsel provided ineffective assistance for failing to file a motion to quash certain witness testimony identifying McDonald as the murderer; and (4) appellate counsel provided ineffective assistance for failure to argue on direct appeal trial counsel's ineffective assistance. On November 16, 2001, the Circuit Court denied McDonald's petition, and he appealed. On June 4, 2003, the Illinois Appellate Court affirmed the Circuit Court's decision and denied McDonald's petition for post-conviction relief. McDonald then filed a petition for leave to appeal to the Illinois Supreme Court. On December 26, 2003, the Illinois Supreme Court denied this petition.

  On May 27, 2004, McDonald filed a petition for writ of habeas corpus with this court asserting two claims based on ineffective assistance of trial counsel and one claim for ineffective assistance of appellate counsel.

  DISCUSSION

  Pursuant to the Antiterrorism Effective Death Penalty Act ("AEDPA"), a person in custody pursuant to "the judgment of a State court," who believes he is being held in violation of the Constitution, federal law, or treatise of the United States, may seek relief by presenting his claims in a petition for writ of habeas corpus. 28 U.S.C. § 2254(a). The federal courts may not grant habeas relief under section 2254 unless the state court's judgment "(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). Before a federal court may review the merits of a habeas petition, a petitioner must exhaust all remedies in state court and fairly present any federal claims in state court first, or risk procedural default. See Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001). A petitioner exhausts his state court remedies by "either (a) providing the highest court in the state a fair opportunity to consider the constitutional issue, or (b) having no further available means for pursuing a review of one's conviction in state court." Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir. 1995).

  In this case, exhaustion is not an issue. Respondent Charles Hinsley concedes that McDonald has exhausted his state court remedies for purposes of federal habeas review because he has no further avenues in state court through which to challenge his conviction. We now turn to the issue of procedural default.

  I. Procedural Default of Ineffective Assistance of Trial Counsel Claims

  The procedural default hurdle forbids federal courts from addressing claims that were not fairly presented to the state court. See Jones v. Washington, 15 F.3d 671, 675 (7th Cir. 1994). Procedural default occurs when a petitioner fails to present a claim to the state court at the time, and in the way, required by the state. See Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996).

  In this case, McDonald has procedurally defaulted his two ineffective assistance of trial counsel claims because he failed to comply with state procedural requirements. See People v. McDonald, No. 1-02-0094 (2003), at 5-8. In Illinois, a post-conviction relief petition is required to include "affidavits, records, or other evidence supporting its allegations or shall state why the same is not attached." 725 ILCS 5/122-2. In particular, an ineffectiveness claim involving counsel's decision not to call a witness must be supported by an affidavit from the proposed witness detailing what that witness's testimony would have been if called to testify at trial. See People v. Enis, 194 Ill.2d 361, 380, 743 N.E.2d 1, 13 (2000).

  In his first claim for ineffective assistance of trial counsel, McDonald alleges that counsel should have filed a motion to quash McDonald's arrest based on lack of probable cause. Specifically, McDonald alleges that the testimony of a purported witness would have shown that the police lacked probable cause to arrest McDonald. However, McDonald, in presenting this claim to the state courts, did not include any affidavits from this witness. Furthermore, McDonald did not provide any explanation for his failure to attach the necessary affidavits. Therefore, the state courts rejected McDonald's first claim of ineffective assistance of trial counsel because he failed to comply with Illinois procedural requirements governing post-conviction relief. See McDonald, No. 1-02-0094, at 5.

  The state courts also rejected McDonald's second claim for ineffective assistance of trial counsel on similar procedural grounds. In his second allegation, McDonald alleges that counsel was ineffective for failing to file a motion to quash certain witness testimony identifying McDonald as the murderer. While McDonald did attach police reports to support his petition, the state courts did not consider this procedurally sufficient. See McDonald, No. 1-02-0094, at 6. "Police reports are nonverbatim accounts by officers of what other individuals have told them, not sworn affidavits of the witnesses themselves, and thus are not sufficient to support a claim of ineffective assistance of counsel." Id. Furthermore, ...


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