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Rosado v. Wright

March 12, 2007

ANTONIO ROSADO, PLAINTIFF,
v.
STEVE WRIGHT, ACTING WARDEN, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Petitioner Antonio Rosado has brought a pro se petition for habeas corpus relief*fn1 pursuant to the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254, seeking to overturn his state conviction for murder and conspiracy to commit murder. For the reasons set forth below, the petition is denied.

FACTS

On June 29, 1999, following a jury trial in the Circuit Court of Cook County, petitioner was convicted of first degree murder, conspiracy to commit murder, and armed robbery. He was sentenced to 50 years for murder and 20 years for armed robbery. Petitioner filed a direct appeal, claiming: (1) denial of due process and a fair trial because the State presented prejudicial and irrelevant evidence and argument concerning the criminal activities of severed co-defendants and unindicted associates; (2) the State failed to prove him guilty of armed robbery beyond a reasonable doubt because the evidence established that he took no property from another person and used no force toward the goal of taking property from the victim; (3) the State improperly commented that petitioner did not assert an alibi after being apprised of his Miranda rights in violation of Doyle v. Ohio, 426 U.S. 610 (1976); (4) the trial court erred in denying a jury instruction on "withdrawal"; and (5) defendant was improperly given consecutive sentences in violation of People v. Whitney, 188 Ill. 2d 720 (1999).

On August 1, 2002, in an unpublished order issued pursuant to Illinois Supreme Court Rule 23, the Illinois Appellate Court affirmed petitioner's convictions and sentence for murder and conspiracy to commit murder, but vacated petitioner's sentence and conviction for armed robbery. Petitioner's request for a rehearing was denied on September 9, 2002.

Petitioner then filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court, alleging that: (1) he was denied due process and a fair trial because the State presented prejudicial and irrelevant evidence and argument concerning the criminal activities of severed co-defendants and unindicted associates; (2) the appellate court failed to remand his case for resentencing after vacating his conviction for armed robbery in violation of People v. Payne, 98 Ill. 2d 45 (1983); (3) the appellate court failed to address the alleged Doyle violation under a plain error analysis in violation of People v. Herrett, 137 Ill. 2d 195 (1990); and (4) the trial court erred in denying petitioner's requested jury instruction on "withdrawal." On February 5, 2003, the Supreme Court denied petitioner's PLA.

On February 26, 2003, petitioner filed a petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq., alleging that: (1) his Fifth and Fourteenth Amendment rights were violated because the jury instruction on accountability to first degree murder constituted a constructive amendment to the indictment; (2) he was denied his Fourteenth Amendment right to due process by the State's knowing use of the perjured testimony of four witnesses; and (3) he was denied effective assistance of trial and appellate counsel because neither counsel preserved his claims that the State knowingly presented the perjured testimony of several witnesses. On March 6, 2003, the state trial court dismissed the petition as frivolous and without merit.

Petitioner appealed the dismissal of his post-conviction petition, alleging only that he was denied his Fourteenth Amendment right to due process because the State knowingly used the perjured testimony of one witness. In an unpublished order dated March 31, 2005, the Illinois Appellate Court affirmed the summary dismissal of petitioner's post-conviction petition. On April 25, 2005, the state appellate court denied petitioner's request for rehearing.

Petitioner then filed a PLA, alleging that the appellate court: (1) misapplied People v. Collins, 202 Ill. 2d 59 (2002), regarding the required documentation a petitioner must provide to support his pro se post-conviction petition to survive first-stage summary dismissal; (2) misapplied Illinois Supreme Court precedent instructing that fact-finding is inappropriate at first-stage post-conviction proceedings; and (3) erroneously held that petitioner's affidavit did not sufficiently support his perjury claim. The Illinois Supreme Court denied leave to appeal on September 29, 2005.

Having exhausted all available state court avenues for relief, petitioner timely filed the instant pro se petition for writ of habeas corpus on August 29, 2006, alleging that: (1) he was denied due process and a fair trial because the State presented irrelevant and prejudicial evidence and argument concerning the criminal activities of severed co-defendants and unindicted associates; (2) he was denied due process and a fair sentencing hearing because the appellate court reversed his armed robbery conviction but did not remand for resentencing on his murder conviction; (3) he was denied due process and a fair trial because the appellate court found a Doyle violation but did not reverse his convictions because of its misconception that Doyle errors do not warrant plain error review; (4) trial and appellate counsel were ineffective for not preserving claims that: (a) the trial court erred in allowing a jury instruction on accountability because it constituted an amendment to the indictment; (b) petitioner's due process rights were violated when the State knowingly used the perjured testimony of four witnesses; and (c) trial counsel failed to interview a witness who was willing to sign an affidavit stating that his testimony implicating petitioner was perjured and given at the behest of the State; and (5) petitioner was denied due process and a fair trial because the trial judge refused to tender a jury instruction on "withdrawal."

DISCUSSION

Procedural Default

Before the court may entertain the merits of a habeas petition, it must first inquire whether petitioner has: (1) exhausted all available state remedies, and (2) raised all of his claims during the course of his state proceedings. Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir. 1998). If a petitioner fails to meet either of these requirements, the court may not reach the merits of his habeas claims. Id.

Respondent concedes that the petition is timely and that petitioner has exhausted his available state remedies, but maintains that petitioner's first four claims are procedurally defaulted. As the Supreme Court noted in O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), "state prisoners 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" to preserve a claim for habeas review. See also Hadley v. Holmes, 341 ...


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