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September 8, 2005.

United States of America ex rel. KEVIN JONES, Petitioner,
ALAN UCHTMAN, Warden, Menard Correctional Center, Respondent.

The opinion of the court was delivered by: RUBEN CASTILLO, District Judge


Petitioner Kevin Jones is currently serving concurrent terms of thirty-three and ten years for first degree murder and attempted armed robbery, respectively. (R. 8, Pet. at 1.) On April 15, 2005, Jones filed a petition for a writ of habeas corpus claiming that his continued custody violates the United States Constitution. (Id. at 5.) Jones's petition sets forth two grounds for relief: 1) that his custody violates the Fifth and Fourteenth Amendments because his conviction was supported by inculpatory statements he made after invoking his right to remain silent and to consult with an attorney; and 2) that his custody violates the Sixth Amendment because his appellate counsel was ineffective. (Id.) After carefully considering these claims, we find that Jones has procedurally defaulted the first claim and failed to satisfy the standards for relief set forth in 28 U.S.C. § 2254(d) with respect to the second claim. As a result, we deny Jones's petition for federal habeas relief. (R. 8-1.)


  In reviewing any petition for habeas relief, this Court must presume that the state court's factual determinations are correct unless the petitioner rebuts those facts by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). We therefore adopt the recitation of the facts set forth in the Illinois Appellate Court's order denying Jones's appeal from the circuit court's dismissal of his post-conviction petition. We have gleaned the facts regarding the procedural history of this case from Jones's habeas petition and the state court record that Respondent provided pursuant to Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts.

  A. The October 1998 Shooting

  In October 1998, Jones approached two men who had just purchased illegal drugs from him, pointed a pistol at one of the men, and fatally shot him. (R. 15, Record, Ex. L, Ill. App. Ct. Post-Conv. Order at 4.) Jones then fled the state of Illinois, but later returned and surrendered to the police. (Id.) The police recovered the weapon that fired the fatal shot from an individual named Ronnie Carpenter. (Id.) Jones gave a statement acknowledging that Jones and Carpenter were friends. (Id.) Jones also admitted that he approached the two men with a weapon because he wanted to "stick? somebody up" and that he shot at them when they fled. (Id.)

  B. The Suppression Hearing

  Prior to trial, Jones filed a motion to suppress arguing that the inculpatory statements he made to the police were not voluntary and were obtained as the result of an interrogation that continued after Jones invoked his right to remain silent and/or his right to consult with an attorney. (Id. at 1-2.) The Circuit Court of Cook County held a hearing to consider Jones's motion to suppress. (Id. at 2.) At the hearing, Detective Sylvia Van Witzenburg testified that on November 4, 1998 she met Jones in an interview room at a police station around 6 p.m. (Id.) She testified that she informed Jones of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and that Jones indicated that he understood those rights. (Id.) Van Witzenburg asked Jones if he wished to give a statement, and he answered in the affirmative, saying he wanted to "get it off of his chest." (Id.) Van Witzenburg and Jones then discussed the October 1998 shooting for about an hour and a half. (Id.)

  Van Witzenburg testified that at about 11 p.m., Assistant State's Attorney Michelle Gemskie met with Jones in Van Witzenburg's presence. (Id.) Gemskie told Jones that she was a prosecutor, not his defense counsel, and informed Jones of his Miranda rights. (Id.) Jones again indicated that he understood those rights. (Id.) Jones elected to have a court reporter transcribe his statement, and when a court reporter arrived around 3:30 a.m., Gemskie again informed Jones of his Miranda rights and Jones again indicated that he understood them. (Id.) Defendant then gave a statement, after which Gemskie read the transcribed statement aloud and Jones made some changes and corrections. (Id.) All who were present signed the statement. (Id. at 2-3.)

  Jones told Van Witzenburg that his formal education did not proceed beyond the ninth grade and that he was not able to read or write very well. (Id. at 3.) She testified, however, that he appeared to understand his rights and that he gave appropriate answers to the questions posed to him. (Id.) Jones never stated in Van Witzenburg's presence that he did not understand his rights, that he was learning disabled, or that he wanted an attorney. (Id.)

  Jones also testified at the suppression hearing. He stated that, on November 4, 1998, he went to the police station with his aunt, Tammy Jones, because Ms. Jones told him that the police wanted to question him regarding a homicide.*fn1 (Id.) On the way to the station, Jones asked Ms. Jones about an attorney, and she told him that one would be provided at the police station. (Id.) Jones waited in the police station lobby for about an hour before two male detectives took him inside. (Id.) Jones did not request an attorney in Ms. Jones's presence. (Id.) Jones testified that without informing him of his Miranda rights, one of the male detectives asked Jones if he committed a murder on October 2, which Jones denied. (Id.) They did not ask Jones anything further, and Jones did not ask them if he could consult with an attorney. (Id.) One of the detectives booked Jones and informed him of his Miranda rights. (Id.) The detectives took Jones into a small room where he waited for Van Witzenburg for around four hours. (Id.)

  Jones's testimony regarding his discussion with Van Witzenburg differed substantially from Van Witzenburg's testimony. Jones stated that Van Witzenburg asked him what happened on October 2, 1998 without informing him of his Miranda rights. (Id.) Jones requested an attorney, but Van Witzenburg told him that none were available. (Id.) On cross-examination, however, Jones testified that he asked for an attorney right after Van Witzenburg read him his Miranda rights. (Id. at 3-4.) Jones testified that when Gemskie arrived, she and Van Witzenburg questioned Jones but he insisted that he did not know what happened and asked to consult with an attorney. (Id. at 4.) A court reporter arrived sometime later, after which Gemskie again asked Jones questions about the shooting which he answered. (Id.) He then signed a type-written statement. (Id.) Jones admitted that he never requested an attorney while the court reporter was transcribing his statement. (Id.)

  Tammy Jones also testified on Jones's behalf. She stated that on the way to the police station, Jones told her that he wanted to turn himself in and that he needed a lawyer. (Id.) Ms. Jones testified that at the police station, Jones informed a uniformed police officer that he needed a lawyer and that Jones was almost immediately led away from the lobby. (Id.) After considering all of this testimony, the circuit court denied the motion to suppress. The court found that Jones was informed of his Miranda rights "at almost every juncture" and that "the credible ...

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