Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States ex rel Linnear v. Bryant

May 24, 2007

UNITED STATES OF AMERICA EX REL. DARYL LINNEAR PETITIONER,
v.
STEVEN C. BRYANT, WARDEN, AND LISA MADIGAN, ATTORNEY GENERAL OF ILLINOIS, RESPONDENTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Petitioner Daryl Linnear's ("Linnear") petition for a writ of habeas corpus ("Petition"). For the reasons stated below, we deny the Petition.

BACKGROUND

Linnear was convicted in Illinois state court in a bench trial of first degree murder and on February 13, 2001, he was sentenced to twenty years in prison. Linear appealed the conviction and on November 25, 2002, an Illinois appellate court affirmed the trial court. Linear then filed a petition for leave to appeal to the Illinois Supreme Court and the petition was denied on April 2, 2003. Linnear then filed a post-conviction petition, which was dismissed by an Illinois state trial court on April 30, 2003. On November 5, 2004, an Illinois appellate court affirmed the trial court. Linnear then filed a petition for leave to appeal with the Illinois Supreme Court, which was denied on December 1, 2005. On August 28, 2006, Linnear filed the instant Petition seeking relief pursuant to 28 U.S.C. § 2254.

LEGAL STANDARD

A district court may entertain a habeas corpus petition from a "person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A habeas corpus petition shall also not be granted: on behalf of a person in custody pursuant to the judgment of a State court . . . unless the adjudication of the claim . . . (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1-2). A decision by a state court is deemed to be "'contrary to' [the U.S. Supreme Court's] clearly established precedents if it 'applies a rule that contradicts the governing law set forth in [the Court's] cases' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent.'" Early v. Packer, 537 U.S. 3, 8 (2002)(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

DISCUSSION

Linnear raises seventeen grounds for relief in his Petition. Linear argues that he received ineffective assistance of counsel at trial based on his counsel's alleged failure to: call certain defense witnesses at trial (Ground 1), discuss facts with Linnear (Ground 2), ask about a plea bargain (Ground 3), properly cross-examine witnesses (Ground 4), object to hearsay and to conflicting testimony (Ground 5), recognize a conflict of interest (Ground 6), obtain a forensic or scientific expert (Ground 7), object to prosecutorial misconduct (Ground 8), make proper strategic decisions (Ground 9), prepare for trial (Ground 10), properly impeach witnesses (Ground 11), show the bias of witnesses (Ground 12), make an effective closing argument (Ground 13), and to accurately inform Linnear of the pertinent law (Ground 14). Linnear also alleges separately that the cumulative effect of the above mentioned alleged errors showed that his trial counsel's representation was inadequate (Ground 15) and that the State of Illinois did not prove Linnear guilty beyond a reasonable doubt (Ground 16). Finally, Linnear contends that his appellate counsel on direct appeal erred by failing to raise the above alleged errors committed by his trial counsel (Ground 17).

We note that in the table of contents of the Petition that contains the heading "Issues Presented for Review," Linnear lists his appellate counsel's representation as Ground 16. (Pet. 3A). However, Linear indicates in the body of the Petition that Ground 16 is his contention that the State did not prove him guilty beyond a reasonable doubt. Thus, although Linnear did not properly number his grounds in the Petition, he has presented the court with seventeen separate grounds and, for the purposes of analyzing the Petition, the court will treat Ground 16 as Linnear's contention that he was not proven guilty beyond a reasonable doubt and Ground 17 as the ground relating to his appellate counsel.

I. Grounds 4, 9, and 15

Respondent contends that Grounds 4, 9, and 15 are procedurally defaulted. A petitioner's claims are procedurally defaulted unless the petitioner can show that "'he fully and fairly presented his claims to the state appellate courts, thus giving the state courts a meaningful opportunity to consider the substance of the claims that he later presents in his federal challenge.'" Simpson v. Battaglia, 458 F.3d 585, 593 (7th Cir. 2006)(quoting Bintz v. Bertrand, 403 F.3d 859, 863 (7th Cir. 2005)). A claim is "fairly presented" to the state appellate courts only if the petitioner "assert[ed] his federal claim through one complete round of state-court review, either on direct appeal of his conviction or in post-conviction proceedings.'" Id. (quoting Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004)). Claims not "fairly presented" to the state appellate courts can only be presented upon a "showing of cause and prejudice to excuse the default," or if "a miscarriage of justice will result if [the court does] not consider the merits of [the] case." Daniels v. Knight, 476 F.3d 426, 430 (7th Cir. 2007)(quoting Dretke v. Haley, 541 U.S. 386, 388 (2004)); Anderson v. Benik, 471 F.3d 811, 815 (7th Cir. 2006)(stating that "[e]stablishing cause ordinarily requires demonstrating an external obstacle preventing the petitioner from fairly presenting the federal claim in state court, and actual prejudice, not merely a possibility of prejudice, is required" and that "[t]he miscarriage-of-justice-exception applies when the petitioner can demonstrate that he is actually innocent").

In the instant action, Linnear asserts as Ground 4 that his trial counsel erred by failing to properly cross-examine the State's witnesses. Linnear asserts as Ground 9 that his trial counsel failed to make sound decisions and did not adopt an effective trial strategy. In Ground 15 Linear asserts that the cumulative effects of his trial counsel's alleged errors show that Linnear did not receive adequate representation. Linnear did not raise Grounds 4, 9, or 15 during a full round of the state court appellate proceedings. Linnear did not, for example, include the grounds in his pro se petition for leave to appeal and supplemental brief filed on his direct appeal to the Illinois Supreme Court, or in his appeal from the dismissal of his post-conviction petition. (R. Ex. F, G, K). Linnear has not shown cause for his failure to raise the grounds earlier and he has not shown that he will suffer actual prejudice or that a fundamental miscarriage of justice will occur if the court does not entertain them at this juncture. Therefore, Grounds 4, 9, and 15 are procedurally defaulted. We also note that, regardless, we have reviewed Grounds 4, 9, and 15 in detail and conclude that the grounds lack any merit.

II. Grounds 1-3, 5-8, 10-14

Respondent contends that Grounds 1-3, 5-8, and 10-14 are procedurally defaulted and that, regardless of the default, the grounds lack any merit.

A. Procedural Default

As indicated above, on April 30, 2003, an Illinois state trial court dismissed Linnear's post-conviction petition. Linnear then received appointed counsel for his appeal to the Illinois appellate court. Linnear's appointed counsel filed an appellate brief, which based the appeal solely upon the argument that Linnear was not properly served with notice of the decision of the denial of the post-conviction petition within the statutory prescribed period. (R. Ex. K). On April 29, 2004, Linnear filed a pro se motion for leave to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.