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United States ex rel Thurman v. McCann

April 2, 2007

UNITED STATES OF AMERICA EX REL. DAVID THURMAN, PETITIONER,
v.
TERRY MCCANN, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.



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

MEMORANDUM OPINION AND ORDER

Petitioner David Thurman 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 first-degree murder, armed robbery, armed violence, and aggravated assault. For the reasons set forth below, the petition is denied.

FACTS

On September 26, 1992, following a bench trial in the Circuit Court of Cook County, petitioner was convicted of first degree murder, armed robbery, armed violence, and two counts of aggravated assault. The Circuit Court judge gave petitioner concurrent sentences of:

(1) natural life in prison for first-degree murder; (2) 30 years in prison for armed robbery and armed violence; and (3) three years for the counts of aggravated assault. Petitioner filed a direct appeal, arguing that his sentence, based partially on a prior murder conviction, was improper. On February 2, 1994, the Illinois Appellate Court affirmed petitioner's convictions and sentences.*fn2

On December 19, 1994, petitioner filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court, alleging that his sentence, based partially on a prior murder conviction, was improper. On February 1, 1995, the Illinois Supreme Court denied petitioner's PLA.

On June 2, 1995, petitioner filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq., alleging that: (1) his due process rights were violated because he was not proven guilty beyond a reasonable doubt and did not receive a fair trial; (2) he received ineffective assistance of counsel because: (a) his trial attorney failed to call a key witness and impeach another; (b) his trial attorney failed to challenge the sufficiency of evidence regarding the alleged robbery; and (c) his trial attorney failed to "follow up" on a government witness's inability to pick petitioner out of a line-up; and (3) his Sixth Amendment right was violated when his attorney was not called to be present for the line-up.

The trial court appointed counsel, who filed a supplemental petition for post-conviction relief on March 24, 2000. In that supplemental petition, petitioner claimed ineffective assistance of trial and appellate counsel for: (1) failure to move to suppress line-up identification information prior to trial; (2) failure to call a key witness; (3) failure to request that the court consider a finding of second degree murder; (4) failure to challenge petitioner's alleged statements to a police officer that led to the recovery of a handgun; and (5) failure to present compelling issues on appeal. Petitioner also claimed that the state failed to notify him that a trial witness received leniency in exchange for his testimony. On July 21, 2000, the trial court granted the State's motion to dismiss the supplemental post-conviction petition and denied his post-conviction petition.

Petitioner appealed the trial court's denial of his post-conviction petition to the Illinois Appellate Court. In his appeal, petitioner argued that he had been denied a fair trial because a government witness received leniency in exchange for his cooperation and the State failed to correct the witness's testimony to the contrary. He also argued that the State failed to reveal to defense counsel the agreement with the government witness, which could have been used for impeachment purposes, in violation of Brady v. Maryland, 373 U.S. 83 (1963). On March 13, 2003, the Illinois Appellate Court affirmed the dismissal of petitioner's post-conviction hearing. Petitioner then filed a petition for rehearing on April 7, 2003, which the Illinois Appellate Court denied on April 16, 2003.

On June 12, 2003, petitioner filed a PLA to the Illinois Supreme Court, in which he alleged that his due process rights were violated when the prosecutor failed to disclose at trial that a government witness received leniency in exchange for his testimony and failed to correct the witness's testimony to the contrary. The Illinois Supreme Court denied the PLA on October 7, 2003.

Having exhausted all available state court avenues for relief, petitioner timely filed the instant pro se petition for writ of habeas corpus, alleging that: (1) he was denied a fair trial because state witness Pascual Alvarez received leniency in exchange for his testimony and the prosecution failed to disclose that fact or correct Alvarez's testimony to the contrary; (2) he was denied due process because the prosecution withheld a witness's conflicting statement during discovery; and (3) he received ineffective assistance of counsel because his attorney failed to: (a) file motions to suppress a witness identification and a lineup in which petitioner had initially refused to participate, and (b) object at trial the admission of certain evidence regarding a bullet and a check stub.

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 court proceedings. Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir. 1998). If a petitioner fails to meet either ...


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