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United States ex rel Marsiliano v. Montgomery

July 17, 2006

UNITED STATES OF AMERICA EX REL., ANTHONY MARSILIANO, PETITIONER,
v.
JESSE MONTGOMERY*FN1, DEPUTY DIRECTOR, PAROLE DIVISION OF THE ILLINOIS DEPARTMENT OF CORRECTIONS, RESPONDENT.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

On March 23, 1999, following a bench trial in the Circuit Court of Cook County, Illinois, petitioner Anthony Marsiliano was found guilty of robbery, aggravated battery and battery. After merging the battery and aggravated battery counts, the court sentenced petitioner to concurrent terms of thirteen years for robbery and five years for aggravated battery. When his state court direct appeals failed, petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with this court. Petitioner did not seek post-conviction relief in the Circuit Court of Cook County. For the reasons stated below, the court denies the § 2254 petition in its entirety.

BACKGROUND

Following a bench trial in the Circuit Court of Cook County, Illinois, petitioner was convicted of robbery, aggravated battery, and battery, arising from the assault and robbery of a bartender on January 1, 1993. The victim, age 75, testified that petitioner, who the victim was familiar with from the neighborhood, entered the bar where he worked and ordered several drinks. Some time later, the victim stated that he saw a pool cue coming over his head and he fell, and that petitioner pinned him to the floor with the pool cue at his neck. The victim passed out. When he regained consciousness, he noticed cuts on his hands and marks on his neck, and he was having trouble breathing. His wallet containing $400 was missing from his pocket. The victim called police, who accompanied the victim to petitioner's brother's house, and then went to the hospital. The victim identified petitioner from a photo array on January 13, 1993. In 1996, the victim identified petitioner in a lineup.

Petitioner testified at his trial that early in the morning on New Year's Day, after drinking all night, he entered the bar were the victim was working and ordered several drinks. He testified that he fell off his chair while attempting to drink, and the victim told him to leave. Petitioner bought a six-pack of beer from the victim, who became angry when petitioner opened a can in the bar. Petitioner testified that the victim began pushing him out of the bar, and that petitioner pushed back and grabbed the six-pack of beer and left. Petitioner denied choking the victim or taking his wallet.

Petitioner appealed his convictions and was appointed appellate counsel on June 11, 1999. His appellate counsel filed a motion for leave to withdraw under Anders v. California, 386 U.S. 738 (1967), asserting that there were no meritorious issues on appeal. On July 11, 2000, petitioner filed a pro se brief raising several issues, including that his trial counsel was ineffective because she was unprepared, failed to conduct a sufficient investigation, failed to subpoena the victim's doctor, and failed to object to the victim's testimony. The Illinois Appellate Court, First District, affirmed the conviction and sentence on August 30, 2002. People v. Marsiliano, 1-99-2039 (Ill. App. Ct. 1st Dist., Aug. 30, 2000).

Petitioner then sought relief in the Illinois Supreme Court, again rasing ineffective assistance of counsel claims, although with some differences from his ineffectiveness claims in the Illinois Appellate Court. The Illinois Supreme Court denied review. People v. Marsiliano, No. 91853 (Ill. Sup. Ct., Oct. 25, 2001).

On November 6, 2002, petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises three issues: (1) he was denied effective assistance of counsel as guaranteed by the Sixth Amendment when trial counsel was unprepared and did not raise an effective defense; (2) he was denied his Fifth and Fourteenth Amendment rights to due process when his appointed counsel was denied the opportunity to continue the trial; and (3) the trial court erred by having petitioner explain the victim's injuries.

Respondent argues that the first and second grounds fail on the merits, and the third ground is procedurally defaulted. For the reasons discussed below, the court agrees and denies the habeas petition is denied in its entirety.

STANDARD

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("ADEPA"), a habeas petitioner is not entitled to a writ of habeas corpus unless the challenged state court decision is either "contrary to" or "an unreasonable application of" clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1);Williams v. Taylor, 529 U.S. 362, 404-05 (2000). A state court's decision is "contrary to" clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by the Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours." Williams, 529 U.S.at 404. To demonstrate an "unreasonable application" of clearly established federal law, a habeas petitioner must establish that the state court unreasonably applied the controlling legal rule to the facts of the case. Id. at 407. Moreover, the state court's application of Supreme Court precedent must be more than incorrect or erroneous. Rather, it must be "objectively" unreasonable. Lockyer v. Andrade, 123 S.Ct. 1166, 1174 (2003); Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002) (state court decision must lie "well outside the boundaries of permissible differences of opinion").

In addition, before a federal court will consider a habeas corpus petition, a petitioner must exhaust his state remedies -- that is, the petitioner must give the state's highest court an opportunity to address each claim. O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999). To satisfy this requirement, a petitioner must fairly present to the state judiciary both the operative facts and legal principles that control each claim. Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001). A petitioner's failure to fairly present each habeas claim to the state's highest court leads to a default of the claim, thus barring the federal court from reviewing the claim's merits.Boerckel, 526 U.S. at 848. A federal court, however, may excuse a procedural default if a petitioner can show either cause for the default and actual prejudice as a result of the alleged violation of federal law, or can demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In the instant case, respondent concedes that petitioner has met the exhaustion requirement for all three grounds, but argues that the third claim is procedurally defaulted.

DISCUSSION

I. Procedurally ...


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