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United States ex rel Garry v. McCann

April 18, 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") motion for a certificate of appealability. For the reasons stated below, we deny the motion for a certificate of appealability.

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. Subsequently, on January 14, 2000, Garry was 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. On May 17, 2001, while his direct appeal was pending, Garry filed a pro se post-conviction petition in the Circuit Court of Macon County, 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. On March 28, 2006, Garry filed a petition for writ of habeas corpus ("Petition") and on February 13, 2007, we denied the Petition. Garry has now filed a motion for a certificate of appealability.

LEGAL STANDARD

If a court denies a petition for writ of habeas corpus and the petitioner wishes to appeal that ruling the petitioner must obtain a certificate of appealability. 28 U.S.C. § 2253(c). A court should only issue a certificate of appealability "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The petitioner must also show that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

DISCUSSION

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

I. Extended-Term Sentence

Garry argued in the Petition that the Trial Court's imposition of an extended- term sentence was unconstitutional because it violated Illinois law. Garry was sentenced pursuant to 720 ILCS 5/33A-3(a), which was later amended, see People v. Garry, No. 4-04-0310 (Ill. App. Ct. 2005)(noting that the law was amended). The amended law was subsequently found by the Illinois Supreme Court to violate the Illinois constitution's single subject clause. See id. (describing the history of the law); see also Ill. Const., art. IV § 8(d) (single subject clause). On direct appeal, Garry did not rely on any federal cases. Instead, he only cited state cases that applied a state law analysis. Additionally, Garry did not frame the claim in such a way as to call to mind a constitutional right, but instead relied on the state constitution. We properly concluded that Garry failed to alert the state courts as to any violations of his federal constitutional rights. In addition, we noted that the federal Constitution does not contain a "single subject clause" and that Garry's argument was strictly a matter of state law.

In addition, Garry argued in the Petition that evidence introduced at his sentencing hearing deprived him of a fundamental right. In order for a petitioner to show that he was deprived of a fundamental right at trial, he must prove that he was deprived of a right under federal law that resulted in a fundamental unfairness in violation of due process. Lechner v. Frank, 341 F.3d 635, 642 (7th Cir. 2003)(citing Estelle, 502 U.S. at 67-68). A fundamental unfairness occurs only if the state law "rulings were so prejudicial that they compromised the petitioner's right to a fundamental fair trial." Anderson v. Sternes, 243 F.3d 1049, 1052, 1053 (7th Cir. 2001)(noting "that the error must have produced a significant likelihood that an innocent person has been convicted").

As explained in our prior ruling, Garry failed to point to sufficient evidence that would show that his right to a fair trial was violated in any way. The victim testified that: around 5:15 a.m. on July 11, 1999, she awakened to find three masked men in her apartment. The intruders, one of whom [she] later identified as [Garry], tried to intimidate [her] into giving them money and drugs by opening and closing the slides on their automatic pistols and pointing the weapons at her. When [she] told them she did not have any money, [Garry] and his co-defendant, Brandon Pugh, began beating the left side of her head and hip with their weapons. [She] stated that they hit her in the head so many times that she "actually saw a vision of Jesus Christ on the wall." Pugh continued to beat [her] with his gun, and with the help of the third intruder, held her down while [Garry] straddled her. [Garry] then put one of his hands around [her] throat and choked her so hard that she gasped for air, urinated on herself three times, and started menstruating. The beating continued for about 30 minutes, until police officers arrived and kicked open the apartment door. At that point, [Garry], Pugh, and the other intruder fled through a window, taking [her] car keys and a gold necklace.

People v. Garry, 752 N.E.2d 1244, 1246-47 (Ill. App. Ct. 2001). Based on these facts, the jury found Garry guilty of home invasion, armed robbery, and armed violence. The Trial Court subsequently held a sentencing hearing, during which evidence was presented that Garry had inflicted great bodily harm upon the victim, and considered the presentence report that stated that Garry had previously been convicted of a Class X felony, which qualified him for an extended-term sentence. Garry has failed to point to sufficient evidence that the use of such evidence at the sentencing stage was so prejudicial that he did not have a fair trial. In addition, after reviewing the record in its totality, we conclude that there is also insufficient evidence to show that Garry's sentence was unreasonable or disproportionate to the crime for which Garry was convicted and that he was "sentenced within the statutory limits, [and] his sentence [was not] 'manifestly unreasonable in light of the nature of the offense and character of the offender' for it to be overturned." Koo v. McBride, 124 F.3d 869, 875 (7th Cir. 1997)(quoting in part Koo v. ...


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