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O'Neil v. Bryant

May 4, 2007

PHILLIP O'NEIL, PETITIONER,
v.
STEPHEN C. BRYANT, RESPONDENT.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 17) of Magistrate Judge Clifford J. Proud recommending that the Court deny petitioner Phillip O'Neil's ("O'Neil") petition for a writ of habeas corpus under 28 U.S.C. § 2254. O'Neil has objected to the Report (Doc. 18).

I. Report and Recommendation Review Standard

After reviewing a magistrate judge's report and recommendation, the Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court must review de novo the portions of the report to which objections are made. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999). Because O'Neil has objected to every aspect of the Report, the Court reviews all issues de novo.

II. Background

The Report sets forth a complete picture of the relevant facts, to which no party has objected, and the Court sees no need to repeat those facts here. Suffice it to say for now that O'Neil was convicted in an Illinois state court in 1994 for the murder of Michael Adams. He appealed his conviction and filed two state petitions for post-conviction relief, none of which resulted in a reversal of his conviction. O'Neil then filed this petition under 28 U.S.C. § 2254 raising three basic arguments: (1) that he was denied effective assistance of counsel because his trial counsel pursued a theory of innocence and not self-defense and because his trial counsel failed to call him and two other witnesses to testify, (2) that the prosecution improperly used perjured testimony in front of the grand jury and at trial and withheld exculpatory evidence and (3) that his second state post-conviction petition was erroneously dismissed.

III. The Report

The Report finds that O'Neil's prosecutorial misconduct claims were procedurally defaulted because, while he raised the issues in his first post-conviction petition and touched on them in his appeal of the denial of that petition to the Illinois Appellate Court, he never presented those issues to the Illinois Supreme Court. The Report further found that O'Neil's procedural default was not excusable because he did not establish cause or prejudice from failing to do so or that the failure to hear his claims in this forum would amount to a fundamental miscarriage of justice.

The Report further found that the Appellate Court's resolution of O'Neil's ineffective assistance of counsel claims on direct appeal from his criminal conviction was not contrary to and did not involve an unreasonable application of clearly established federal law. The Appellate Court identified the proper legal standard -- Strickland v. Washington, 466 U.S. 668 (1984) -- and reasonably applied it consistent with United States Supreme Court precedent.

Finally, the Report noted that the Illinois courts properly rejected his second petition for post-conviction relief because it did not present a state or federal constitutional claim and that any flaws in the Illinois courts' conclusions cannot serve as a basis for federal habeas relief.

IV. O'Neil's Objection

O'Neil objects to the Report's recommended disposition of his prosecutorial misconduct claims, arguing that the trial court that decided his first post-conviction petition did not understand, and therefore did not decide, many of the issues he raised in that petition. O'Neil believes this prevented him from presenting his claims to the Illinois Supreme Court.

O'Neil also objects to the Report's recommended disposition of his ineffective assistance of counsel claims. He believes the Illinois Appellate Court unreasonably applied Strickland to the facts when it did not find counsel ineffective after he promised the jury it would hear certain evidence about what O'Neil said during the events at issue in his criminal case, then declined to call O'Neil to the stand.

O'Neil objects to the Report's recommendation with respect to the issues regarding his second post-conviction petition. He makes other arguments about why the Illinois ...


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