The opinion of the court was delivered by: Virginia M. Kendall, United States District Judge Northern District of Illinois
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
A jury in the Circuit Court of Cook County, Illinois, convicted Petitioner of attempted murder and aggravated criminal sexual assault. The court sentenced Petitioner to consecutive sentences of 60 years for attempted murder and 40 years for aggravated criminal sexual assault. Petitioner appealed the judgment to the Illinois Appellate Court and Illinois Supreme Court; each court affirmed his conviction and sentence. Petitioner then filed a state petition for post-conviction relief; the Illinois Circuit Court, Appellate Court and Supreme Court each dismissed or denied his petition. Petitioner now has filed a federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 wherein he asserts that: (1) his right to due process was denied because the state trial court dismissed his petition for post-conviction relief without an evidentiary hearing; (2) his Sixth Amendment right to effective assistance of counsel was violated at trial; (3) his Sixth Amendment right to effective assistance of counsel was violated on direct appeal; and (4) his sentence is unconstitutional under the Sixth and Fourteenth Amendments.
As to certain issues in his first ground for relief and as to his third ground for relief, Petitioner did not exhaust the available state court remedies. Because Petitioner has not demonstrated that the failure to consider these issues would result in a fundamental miscarriage of justice, these non-exhausted issues are procedurally defaulted. As to his remaining claims, the state court's decision was neither contrary to, or an unreasonable application of, United States Supreme Court precedent, or premised on an unreasonable determination of facts. Accordingly, Petitioner is not entitled to a writ of habeas corpus.
Petitioner James Stuckey ("Petitioner" or "Stuckey"), living as Alvin Martin, was arrested in Atlanta, Georgia and extradited back to Chicago on August 11, 1994 to stand trial for his role in the March 29, 1986 attack of a then 14-year-old girl, "T.S." A warrant had been issued for Stuckey's arrest on April 15, 1986. The Chicago Police Department had been looking for Stuckey continuously from March 1986 until he was captured in Atlanta in 1994. Two other men -- Felix Stuckey, Petitioner's brother, and Bruce Davis -- had been tried and convicted earlier for their roles in the attack. The evidence and testimony produced at the trials of Felix Stuckey and Bruce Davis are not part of the record before this Court.
T.S. testified at Petitioner's trial. T.S. stated that on March 28, 1986, Stuckey approached her and asked her if she wanted to make some extra money. T.S. had run away from home a few weeks earlier and she agreed to work for him not knowing what he had in store for her. The work Stuckey provided was to sell T.S. for sex to five separate men. T.S. engaged in the prostitution. The following day, March 29, Stuckey returned and again asked T.S. to prostitute herself. This day, T.S. refused but agreed to go for a ride with Stuckey, Felix Stuckey and Bruce Davis in the brown Grenada that Petitioner was driving. T.S.'s father, who had been looking for her, testified that he saw T.S. in a brown Grenada near his home at approximately 1:00 p.m., and that he wrote down the license plate number of the car. T.S. jumped out of the car and ran away when she saw her father.
T.S.'s father chased after her but T.S. evaded him and returned to the men and the Grenada. Later, T.S. got out of the car, left them men and went to speak with a friend. Shortly after, while T.S. was walking alone on the street, Petitioner, Stuckey and Davis drove up again in the Grenada and this time forced her back into the car at gunpoint.*fn1 The men drove her to a wooded area and all three men sexually assaulted her at the same time. After the attack, and due to what the men believed was T.S.'s "disrespect," Davis tied T.S. to the rear bumper of the Grenada and Stuckey sped away dragging the naked 14-year old behind the car.
Mary Merrill ("Merrill") heard her dogs barking loudly at her back door on March 30 at approximately 12:30 or 1:00 a.m. She opened the door and saw T.S. covered in red marks. Merrill went inside and called the police. When police arrived they found T.S. naked, covered in dirt and with severe injuries. Dr. Demestra Soter examined T.S. when she was brought to the hospital. T.S. sustained third-degree burns to one-third of her chest, the top of her arm and half-way down her shoulders; fifty percent of the skin on the right side of her face was scraped off and seventy percent of the skin from the left side of her face was scraped off, making the bones and muscles at the edge of her eye sockets visible; and a portion of her right ear was missing. T.S. remained in the hospital for nine months and underwent numerous surgeries to repair her injuries.
The day T.S. was brought to the hospital, she was reunited with her parents and her mother gave police the license plate number of the brown Grenada that T.S.'s father had written down when he had seen T.S. in the car. A Vitullo kit for sexual assault identification was taken but the State never tested the kit. An assistant state's attorney went to Cook County Hospital to show T.S. a photo array. T.S. could not speak due to the swelling around her mouth. The assistant state's attorney showed T.S. seven or eight pictures of African-American men, including an arrest photo of Petitioner from a prior unrelated arrest. When T.S. saw the picture of Petitioner she groaned and nodded her head. The pictures from the hospital photo array were never produced to the defense, despite two defense motions made prior to trial. T.S. told her therapist soon after the identification that she could not identify the men who assaulted her. Later, at Petitioner's trial, T.S. testified that she had lied to her therapist because she did not like him. On cross examination, she testified that she had admitted the truth of her attack to one doctor and one other individual, "Miss Cole."
At the time of the incident, Lorraine Washington ("Washington") was working at the Tropic Lounge in Chicago and dating Petitioner. Washington testified at trial that, on the night of the assault, she arrived at work around 7:30 p.m and Petitioner arrived at approximately 9:30 p.m. During the time at the Tropic Lounge, Stuckey was never out of her sight for more than a couple of minutes. Washington left the lounge with Stuckey at 4:00 a.m.
When originally questioned by police shortly after the incident, Washington denied knowing Petitioner in spite of displaying a photo of him in her home. Washington informed police that she did not have knowledge of Petitioner's whereabouts. Eight years later, law enforcement officers arrested Petitioner in Atlanta, Georgia where he was living under an alias with Washington and their child. Prior to the trial, over eight years after the incident, Washington never told authorities that Stuckey was with her throughout the evening of March 29th and into the morning of March 30th.
Petitioner exercised his Fifth Amendment right not to testify at his trial.
On October 25, 1995, a Cook County jury convicted Petitioner of attempted murder and aggravated criminal assault. Petitioner filed a motion for a new trial which was denied. The court sentenced Petitioner to consecutive sentences -- an extended term of 60 years on attempted murder and 40 years on aggravated criminal sexual assault. Petitioner appealed, contending that: (1) T.S.'s identification was insufficient to prove him guilty beyond a reasonable doubt; (2) the prosecution's comments during rebuttal closing argument were improper and deprived him of a fair trial; (3) the trial court abused its discretion in sentencing him to extended, consecutive terms of 60 years for attempted murder and 40 years for aggravated criminal sexual assault; and (4) he was deprived of effective assistance of counsel due to his lawyer's failure to object to the prosecutor's improper comments and his lawyer's failure to challenge his sentence. On September 19, 1997, the Illinois Appellate Court affirmed Petitioner's conviction and sentence. (Exhibit B to Respondent's Answer).*fn2
Stuckey filed a petition for leave to appeal to the Illinois Supreme Court contending that the appellate court incorrectly concluded: (1) that T.S.'s uncorroborated, substantially impeached identification of him as one of her assailants was sufficient to prove guilt beyond a reasonable doubt; and (2) that the petitioner was not denied effective assistance of counsel when his attorney failed to object to the prosecutor's improper and erroneous comments during closing argument and failed to file a motion challenging the petitioner's sentence. (Exhibit C). On December 3, 1997, the Illinois Supreme Court denied the petition for leave to appeal. (Exhibit D).
On February 18, 1997, Stuckey filed a petition for post-conviction relief in the state court. (Exhibit E). Petitioner and his counsel also filed several supplements to the petition. (Exhibits F, H, and J). The State filed two motions to dismiss. (Exhibits G and I). In his petition and supplements, Stuckey contended that: (1) he was denied due process because the State failed to preserve the victim's Vitullo kit, to produce the photo array allegedly shown to the victim during her hospitalization, to tender the victim's complete mental history, to provide evidence that could have impeached T.S., specifically, a 1991 Chicago Tribune article, and the State made improper statements to the jury; (2) the evidence did not prove Petitioner's guilt beyond a reasonable doubt;
(3) the prosecutor knowingly introduced perjured testimony; (4) Petitioner was denied effective assistance of trial counsel because his attorney failed to: (a) fully investigate and support his alibi theory of defense, (b) file appropriate motions, (c) adequately challenge the competency of T.S., (d) challenge the missing Vitullo Kit, and (e) properly advise Petitioner regarding his right to testify; and
(5) he was denied effective assistance of appellate counsel because counsel did not raise on appeal many of trial counsel's failures. Without holding an evidentiary hearing, the court granted the State's motion to dismiss on September 13, 2000. (Exhibit K). The court dismissed many of the claims on grounds of res judicata and waiver. (Exhibit K, C286). Other claims were denied on the merits. (Exhibit K, C286-92). Petitioner filed a motion to reconsider or, in ...