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KILLINGSWORTH v. BENSKO

September 1, 2005.

ERIK KILLINGSWORTH, Petitioner,
v.
RAY BENSKO, Warden, Logan Correctional Center, Respondent.



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

MEMORANDUM OPINION AND ORDER

Petitioner, Erik Killingsworth ("Killingsworth" or "Petitioner"), has filed a petition for writ of habeas corpus ("Petition") pursuant to 28 U.S.C. § 2254, on the grounds that (1) he was not fully advised of his constitutional rights at the time of his arrest, and (2) his trial counsel was ineffective under the teachings of Strickland v. Washington, 466 U.S. 668 (1984), for failing to move to suppress his confession. (D.E. 1 ("Petition").)*fn1 For the reasons stated below, the Petition is denied.

I. BACKGROUND FACTS

  A. Underlying Events

  Petitioner is in the custody of the Illinois Department of Corrections ("IDOC") following his 2001 conviction in the Circuit Court of Cook County, Illinois, for possession of a controlled substance within public housing with intent to deliver. (D.E. 14, Ex. D (opinion of Illinois Court of Appeals) at 1.) Following a bench trial, Petitioner was convicted and sentenced to 12 years in the custody of the IDOC, less credit for time served. (Id.)*fn2 The trial centered on events which occurred shortly after Christmas, 1999. On December 26, 1999, Chicago Police Officer Brian Blackman ("Blackman") and other CPD officers responded to a call concerning Apartment 1308 at 4022 South State Street, a Chicago Housing Authority residence sometimes referred to as the Robert Taylor Homes. (Id., Ex. D at 2.) A woman named Katherine Ellis answered the door and let the officers into the apartment. (Id.)

  Testimony at the bench trial differed as to what occurred inside. (As explained later, the trial judge credited the State's evidence and rejected the testimony of Petitioner.) According to the State, as Officer Blackman entered the living room, Petitioner's co-defendant at trial, Elliot Bibbie ("Bibbie"), ran towards the rear bedroom of the apartment clutching the right side of the jacket he was wearing. (Id.) Officer Blackman, concerned that Bibbie might have been holding a weapon in his jacket, followed the co-defendant into the rear room. (Id., Ex. C at 8; see also id., Ex. D at 3.) When Officer Blackman entered the room, he saw Bibbie and Petitioner sitting next to each other on a bed. (Id., Ex. D at 2.) The jacket lay on the floor. (Id.) When Officer Blackman retrieved the jacket from the floor, a bag containing seventeen smaller bags with a crushed leafy substance later stipulated to be cannabis and $261 fell to the floor. (Id.) The officer arrested Bibbie and later recovered two bags of heroin from his pants pocket. (Id.)

  After Bibbie was taken into custody, Ms. Ellis, the leaseholder, signed a consent form for the officers to search her apartment. (Id.) In a second room, the officers found a police scanner and a black plastic bag containing fifty-five bags of cannabis, thirty-seven bags of cocaine, a "chunky lump" of cocaine weighing 61 grams, and $3,981 in cash. (Id., Ex. D at 2-3.) Officer Blackman, after speaking with Ms. Ellis about who usually stayed in the room where the scanner and black bag were found, immediately advised Petitioner of his constitutional rights and placed him under arrest. (Id. at 3; see also id., Ex. C at 9.) Petitioner admitted that the bag and its contents were his. (Id., Ex. D at 3.) Petitioner also later admitted at trial that Ms. Ellis, the woman in whose apartment the drugs were found, was Petitioner's girlfriend. (Id. at 4.)

  Petitioner's version of what occurred differed markedly at trial. Petitioner asserted that when the officers entered the apartment, Petitioner and Bibbie were sitting on the bed in the rear room watching television. (Id.) He also apparently contended that Bibbie did not have a coat in the room. (Id., Ex. B at 6.) Officer Blackman and two other officers entered the room with guns drawn, and the officers took Petitioner and Bibbie to the living room and sat them on the couch. (Id.; see also id., Ex. D at 4.)

  Petitioner also claimed that thereafter officers took Bibbie into the bathroom for approximately fifteen minutes and beat him up there. (Id.; see also id., Ex. B at 6.) (Although not material to the disposition of the case, it appears that Bibbie, who was tried with Petitioner, did not allege any police misconduct, let alone physical abuse or beating. (Id., Ex. C at 23).) Petitioner conceded that he was never struck. (Id., Ex. B at 6.) Petitioner further claimed that he was never shown the plastic bag containing the narcotics and other materials. (Id., Ex. D at 4.) Petitioner also denied ever making any admission to any officer that the narcotics belonged to him. (Id., Ex. D at 3.) B. State Court Proceedings

  1. The Circuit Court of Cook County, Illinois

  The State charged Petitioner with four narcotics charges: two counts of possession of a controlled substance with intent to deliver (more than fifteen grams but less than one hundred grams of cocaine), one count of possession of a controlled substance within public housing with intent to deliver (between one and fifteen grams of cocaine), and possession of between thirty and five-hundred grams of cannabis with intent to deliver. (Id., Ex. B at 4.)

  At the bench trial, Petitioner denied making any inculpatory admission. (Id., Ex. D at 3.) As mentioned, Officer Blackman testified that, after he "advised [Petitioner] of his rights," Petitioner admitted the illegal substances belonged to him. (Id., Ex. B at 14 (quoting Officer Blackman's trial testimony).) The trial judge recognized that the outcome of the trial largely came down to a credibility assessment concerning the testimony given by Petitioner and Officer Blackman. (Id., Ex. D at 5 ("The question comes down to the believability of the witnesses.").) On that issue, the trial court found that Officer Blackman's testimony was credible and credited it in finding Petitioner guilty. (Id., Ex. D at 5 ("Having heard the testimony, I find the police officer credible.").) The court convicted Petitioner of possession of cocaine within public housing with intent to deliver and sentenced him to twelve years imprisonment in the IDOC. (Id.)*fn3 2. The Illinois Court of Appeals

  Petitioner appealed his conviction to the Illinois Court of Appeals. (See id., Ex. B.) On appeal, Petitioner argued, inter alia, that his trial counsel was ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), for failing to file and litigate a motion to quash Killingsworth's statement because there was no evidence that he knowingly, voluntarily and intelligently waived his right to remain silent." (Id., Ex. B at 13.) Specifically, in his brief to the Illinois Court of Appeals, Killingsworth asserted that there was no evidence that he was properly advised of his Miranda rights because Officer Blackman, although testifying that he advised Petitioner of his "constitutional rights," failed to testify as to exactly what rights he articulated to Petitioner. (E.g., id., Ex. B at 14 (["Officer] Blackman testified that he advised Killingsworth of his `constitutional rights,' but did not state what those rights were.") Petitioner further asserted that the lack of sufficient evidence that he was properly informed of his Miranda rights meant there was no evidence that he waived his rights knowingly, voluntarily, and intelligently. (Id., Ex. B at 15.) Thus, Petitioner asserted that there was "no reason for [his] trial attorney not to file a motion to suppress his alleged statement to the police," which, he maintains, would necessarily have succeeded. (Id.)

  The Illinois Court of Appeals denied Petitioner's appeal in material part. The court determined that Petitioner failed to show that his counsel's performance was deficient and that the outcome of his trial was not prejudiced by any alleged deficiency. (See id., Ex. D at 8-11 (citing and applying, inter alia, Strickland v. Washington, 466 U.S. 668 (1984).) It also found that Petitioner's counsel's decision whether to pursue a motion to suppress in connection with the trial was a strategic one, based on the defense strategy employed that Petitioner did not make the admission at all. (Id., Ex. D at 11.) In this regard, the court stated that "the defense presented in this case was that defendant did not tell Officer Blackman that the drugs were his." (Id.) The court reasoned that, "[g]iven that line of defense, counsel would have had no reason to seek the suppression of evidence or challenge Officer Blackman's testimony regarding the Miranda warnings because those tactics would be inconsistent with the premise that defendant did not make an inculpatory statement in the first place." (Id.)

  3. The Supreme Court of Illinois

  After the appellate court upheld his conviction, Petitioner filed a petition for leave to appeal in the Supreme Court of Illinois. (See D.E. 14, Ex. E.) In that filing, Petitioner presented the Strickland issue to the state Supreme Court as he had to the appellate court. (Id., Ex. E at 3-5; see also id., Ex. E at 5 ("As the appellate courts are the most common forum for claims of ineffectiveness, parties should be able to rely upon them for accurate guidance in this area of law. Therefore this Court should grant Killingsworth's petition for leave to appeal.").) The Illinois Supreme Court denied Petitioner's petition for leave to appeal. (Id., Ex. F.)

  Petitioner is currently incarcerated pursuant to the judgment of the Circuit Court of Illinois (id., Ex. D at 1), and he now petitions this Court to grant him a writ of habeas corpus on the ground that his counsel was ineffective for failing to pursue a motion to suppress the inculpatory statement he allegedly made after his arrest. (See Petition at 5.) The State filed an answer to Killingsworth's Petition (D.E. 13), and included a copy of the Certified Statement of Conviction in People v. Killingsworth, No. 00CR0264701 (Ill. Cir. Ct. 2001) (Id., Ex. A); a copy of Killingsworth's brief filed with the Illinois Court of Appeals (Id. Exhibit B); a copy of the State's response brief filed with the Illinois Court of Appeals (Id., Exhibit C), a copy of the decision of the Illinois Court of Appeals rejecting Petitioner's appeal in material part (Id., Exhibit D); a copy of the petition for leave to appeal to the Supreme Court of Illinois (Id., Exhibit E); and a copy of the Supreme Court's denial of the petition for leave to appeal (Id., Exhibit F).*fn4

  II. LEGAL PRINCIPLES

  A. Authority to Grant a Writ of Habeas Corpus and ...


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