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United States ex rel Garry v. McCann

February 13, 2007

UNITED STATES OF AMERICA, EX REL. TYREK S. GARRY, PETITIONER,
v.
TERRY MCCANN, RESPONDENT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Petitioner Tyrek S. Garry's ("Garry") petition for a writ of habeas corpus. For the reasons stated below, we deny Garry's petition for a writ of habeas corpus in its entirety.

BACKGROUND

Following a jury trial in the Macon County Circuit Court, Illinois, ("Trial Court") Garry was convicted of home invasion, armed robbery, and armed violence. On January 14, 2000, Garry was subsequently sentenced to an extended-term of forty years in prison for the armed violence conviction, based on a prior Class X felony conviction, twenty five years in prison for the home invasion conviction, and twenty five years in prison for the armed robbery conviction, with all sentences to run concurrently, and the Trial Court also ordered Garry to serve eighty five percent of his sentence, pursuant to the truth-in-sentencing provision in 730 ILCS 5/3-6-3(a)(2)(iii) upon agreeing with the jury's finding that Garry had inflicted great bodily harm upon the victim. Garry then appealed his conviction to the Illinois Appellate Court, Fourth District ("Illinois Appellate Court") and on July 6, 2001, the Illinois Appellate Court affirmed Garry's conviction. Garry then filed a petition for leave to appeal to the Illinois Supreme Court, which was denied on October 3, 2001. While his direct appeal was pending, Garry filed a pro se post-conviction petition in the Circuit Court of Macon County on May 17, 2001, which was dismissed on March 24, 2003. The Illinois Appellate Court affirmed the dismissal on January 13, 2005 and the Illinois Supreme Court denied Garry's petition for leave to appeal on May 25, 2005. Garry filed the instant petition of writ of habeas corpus ("Petition") on March 28, 2006.

LEGAL STANDARD

A district court may entertain a habeas corpus petition from a "person in custody pursuant to the judgment of a State court only on the grounds that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Pursuant to 28 U.S.C. § 2254, a writ of habeas corpus will not be granted unless "the applicant has exhausted the remedies available in the courts of the State; . . . or there is an absence of available State corrective process; or . . . circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254 (b)(1). A habeas corpus petition shall also not be granted:

on behalf of a person in custody pursuant to the judgment of a State court . . . unless the adjudication of the claim . . . (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)(1-2). A decision by a state court is deemed to be "'contrary to' [the U.S. Supreme Court's] clearly established precedents if it 'applies a rule that contradicts the governing law set forth in [the Court's] cases' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from our precedent.'" Early v. Packer, 537 U.S. 3, 8 (2002)(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A state court need not cite to Supreme Court cases in its decision, "so long as neither the reasoning nor the result of the" state court's decision contradicts such precedent. Id.

DISCUSSION

In his petition for a writ of habeas corpus, Garry asserts the following claims:

(1) the State knowingly and intentionally used perjured testimony (Claim 1); (2) ineffective assistance of trial counsel for not raising the issue of the State's knowing and intentional use of perjured testimony (Claim 2); (3) ineffective assistance of appellate counsel for not raising the issue of the State's knowing and intentional use of perjured testimony (Claim 3); (4) post-conviction counsel provided "inadequate assistance," (Pet. 6) (Claim 4); and (5) the law under which Garry received his extended-term sentence for home invasion violates the Illinois constitution (Claim 5).

Before a state prisoner can petition for a writ of habeas corpus in the federal courts, the petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerkel, 526 U.S. 838, 845 (1999). This means that the petitioner must properly assert each claim at each and every level in the state court system, either on direct appeal of his conviction or in post-conviction proceedings. Id. at 848-49; see also Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992)(stating that "[p]rocedural default . . . occurs when a claim could have been but was not presented to the state court and cannot, at the time that the federal court reviews the habeas petition, be presented to the state court" and that "[i]ssues which were never raised in the state courts are the proper subject of procedural default in this collateral review under § 2254"). Therefore, a petitioner must pursue his appellate right "to the highest state court to preserve federal review." Grigsby v. Cotton, 456 F.3d 727, 732 (7th Cir. 2006).

A federal court can review procedurally defaulted claims if a petitioner "shows cause for failure to raise them at the appropriate time and actual prejudice which resulted from such failure," or if the refusal to review would result in a "fundamental miscarriage of justice." Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir. 1999). A petitioner can establish cause by "showing that some type of external impediment prevented the petitioner from presenting his federal claim to the state courts." Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). To establish prejudice, a petitioner must show that the violation of his federal rights "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). A miscarriage of justice exists "where 'a constitutional violation has probably resulted in the conviction of one who is actually innocent'" ...


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