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Welch v. Uchtman

August 11, 2006

ROOSEVELT WELCH, PETITIONER,
v.
ALAN UCHTMAN, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

Before the Court is Petitioner Roosevelt Welch's ("Welch") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, Welch's § 2254 petition [#1] is DENIED.

BACKGROUND

On April 17, 1995, following a jury trial, Welch was convicted in Rock Island County, of armed robbery, armed violence, and unlawful possession of a controlled substance with intent to deliver. Welch was sentenced to consecutive thirty year prison terms on the armed robbery and the armed violence convictions. No sentence was imposed on the unlawful possession with intent to distribute charge because that offense merged into the armed violence conviction. Welch's co-defendant was found guilty of possession of a controlled substance with intent to deliver.

The facts of the case relevant to this petition are fairly straightforward. At Welch's trial, a woman named Kathy Robinson testified that on January 3, 1995, Welch, who she knew, arrived at her house and robbed her at gun point. Robinson gave Welch her purse and Welch left. Robinson denied that she had any drugs in her purse at the time of the robbery. Robinson called the police and told them that Welch had robbed her and that he had entered a black Toyota pick-up truck upon leaving her house.

The police subsequently stopped a black Toyota pick-up truck and observed an individual in the passenger seat bending over. When the police ordered the occupants out of the truck, the driver of the truck, Welch's co-defendant Jackson, immediately exited from the vehicle. However, Welch did not immediately depart, but rather appeared to be attempting to conceal something beneath the passenger seat.

The police searched the truck and found a gun. Additionally, located on the passenger side floorboard was Robinson's purse, a blue nylon bag containing powder and rock cocaine and items used to make rock cocaine, and a purple Crown Royal bag containing both powder and rock cocaine. Some of the cocaine in the Crown Royal bag was in a "pen shape," which the Government states is a method that dealers often use to allow them to break off pieces to distribute to others when conducting a sale. The police also recovered plastic baggies, some of which were empty and some of which contained cocaine.

When the police responded to Robinson's house, they discovered a cigarette case on the front porch. The cigarette case contained cocaine. During a subsequent search of Robinson's house, the police discovered heroin, marijuana, a scale, and packing materials. The police also discovered Crown Royal bags. The discovery of the bags was not revealed to Welch or Jackson prior to trial.

The co-defendants were tried in one proceeding. At trial, Jackson testified that he did not know anything about the robbery and that he had simply been driving down the street when he saw Welch jogging down the street and waving at him. Jackson allegedly stopped the truck, spoke to Welch, and agreed to give him a ride. Jackson and Welch were acquaintances prior to the date in question. Jackson further testified that the gun, purse, and drugs were not in his truck before he picked up Welch. Jackson was convicted of possession with the intent to distribute a controlled substance; however, the conviction was reversed by the state appellate court. The appellate court determined that the existence of the undisclosed Crown Royal bags recovered from Robinson's residence was exculpatory evidence that was material to Jackson's defense that Welch brought the drugs into the truck and that the drugs were there without Jackson's knowledge.

Welch, on the other hand, did not testify at trial and was convicted of all three offenses. On appeal, Welch argued that his trial counsel was ineffective for not opposing the State's motion to join his trial with that of Jackson and because his trial counsel did not move for a severance after hearing Jackson's testimony. Additionally, Welch argued that the evidence supporting the armed violence conviction was insufficient because there was not sufficient evidence to prove the drug offense, and the trial court erred in imposing consecutive sentences. On July 30, 1997, the state appellate court affirmed Welch's conviction and sentence.

Welch then field a petition for leave to appeal to the Illinois Supreme Court. In his petition, he challenged the sufficiency of the evidence and the consecutive sentences. He did not include his ineffective assistance of counsel claim in his petition.

In the spring of 1998, Welch filed a post-conviction petition in the Illinois trial court. Welch argued that (1) his trial counsel was ineffective for not objecting to a joint trial because Jackson's defense was antagonistic to Welch's; (2) Welch was seen in handcuffs by jurors; (3) Welch was refused the right to testify based on his attorney's advice; and (4) the State withheld evidence when they failed to disclose that Crown Royal bags were discovered in Robinson's house. The trial court conducted a hearing on the petition and Welch testified at the hearing. The trial court then denied the post-conviction petition.

Welch appealed the trial court's decision on his post-conviction petition, arguing only that the State failed to disclose exculpatory evidence when it failed to disclose the discovery of the Crown Royal bags at Robinson's house. The state appellate court affirmed the trial court's denial of the post-conviction petition on September 1, 2000. Welch once again filed a petition for leave to appeal to the Illinois Supreme Court. The Illinois Supreme Court denied the petition on November 29, 2000.

Welch filed a second post-conviction petition in January 2001. In his petition, he argued that (1) the trial judge erred in not severing the trials; (2) his counsel on direct appeal was ineffective; (3) his counsel on his first post-conviction petition was ineffective; and (4) the prosecutor knowingly allowed Robinson to commit perjury. Welch also filed a petition for relief from judgment arguing that his consecutive sentences violated Apprendi v. New Jersey, 539 U.S. 466 (2000). Welch amended his second post-conviction petition in October 2001, arguing that his trial should have been severed from Jackson's, he was denied the right to testify, and he was sentenced in violation of Apprendi.

The state trial court denied Welch's second post-conviction petition finding that Apprendi did not apply retroactively and that all of Welch's other issues were barred by res judicata. Welch appealed the denial of his second post-conviction petition, arguing only that the trial court erred in refusing to sever his trial from Jackson's. The state appellate court affirmed the denial of the petition on June 24, 2003. The state appellate court found that Welch had waived his claim that the trial court erred in refusing to sever and that, even if Welch's ineffective assistance of counsel claim could be considered the "cause" of the waiver, Welch could not show any prejudice to overcome the default.

Welch filed another petition for leave to appeal with the Illinois Supreme Court. Welch argued that (1) his trial should have been severed from Jackson's; (2) his appellate counsel was ineffective for not raising this issue on direct appeal; and (3) the trial court addressing his second post-conviction petition erred in determining that review of the majority of his issues was barred by res judicata. The Illinois Supreme Court denied the petition on December 3, 2003.

Welch filed the instant motion pursuant to 28 U.S.C. § 2254 on April 21, 2004. Welch initially filed this motion in the Northern District of Illinois; however, the case was transferred to this District because Welch was convicted in Rock Island County, which is located in the Central District of Illinois. In his petition, Welch argues that (1) the trial court erred in refusing to sever his trial from Jackson's because Jackson's defense was antagonistic to his own; (2) the State's evidence was insufficient to prove that Welch intended to deliver the cocaine; (3) Welch was denied due process when the State failed to disclose that Crown Royal bags had been discovered in Robinson's home; (4) the State's failure to disclose the discovery of the Crown Royal bags in Robinson's home led to Welch improperly being sentenced to consecutive sentences; (5) Welch's trial counsel and appellate counsel were ineffective; (6) the state appellate court erred when it affirmed the trial court's finding that the armed robbery and armed violence crimes were separate courses of conduct because this conflicted with the appellate court's decision in Jackson's appeal; (7) Welch's post-conviction counsel was ineffective on his first post-conviction petition; and (8) Welch's sentence violated Apprendi.

On March 24, 2005, the State filed an Answer to Welch's § 2254 petition and Welch filed a timely traverse on May 23, 2005. Originally, when this case was transferred from the Northern District to the Central District, the case was assigned to the Honorable Joe Billy McDade. On June 12, 2006, Judge McDade recused himself from this case and the case was reassigned to this Court on June 13, 2006. As the issues are fully briefed, this Order follows.

DISCUSSION

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).

Under 28 U.S.C. § 2254(d), 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 ...


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