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Truly v. Jones

June 5, 2007

BILLY JOE TRULY, PETITIONER
v.
EDDIE JONES, RESPONDENT.



The opinion of the court was delivered by: Marvin E. Aspen, District Court Judge

MEMORANDUM OPINION AND ORDER

Petitioner Billy Joe Truly, a prisoner at the Pontiac Correctional Center, now petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We deny the petition.

BACKGROUND

On November 3, 1995, Truly was convicted on two counts of first-degree murder for beating Jarvanley Johnson and Paul Lowe to death with a pole on August 8, 1992. Following his conviction, Truly was sentenced to life imprisonment.

Truly did not confess to the murders, but an eyewitness, Antoinette Bell, identified Truly -- in a photo lineup four months after the murders, during an in-person lineup thirteen months after the murders, and at trial -- as the person who beat Johnson and Lowe to death. (Petition at A-2-3.) A second person, Beverly Fowler, also identified Truly in an in-person lineup as the man to whom Johnson had attempted to apologize for an incident earlier that evening. People v. Truly, 741 N.E.2d 1115, 1118-20 (Ill. App. 1st Dist. 2000). The State alleged that incident precipitated the fatal attack. Id.

After the trial court denied Truly's motion for a new trial, he filed a direct appeal with the Illinois Appellate Court for the First District, claiming that: 1) the trial court erred in admitting Bell's in-person lineup identification; 2) the trial court improperly admitted hearsay testimony; and 3) he was not proved guilty beyond a reasonable doubt. People v. Truly, No. 01-96-1705 (Ill. App. 1st Dist. 1998) (Ex. A to Answer). The appellate court denied Truly's appeal on February 17, 1998. Id. Truly filed a petition for leave to appeal before the Illinois Supreme Court, challenging the trial court's decision to admit the lineup identification. (Ex. C to Answer.) The Illinois Supreme Court denied that petition on June 3, 1999. (Id.) Truly then filed a post-conviction petition with the Illinois Circuit Court of Cook County, which that court denied in December 2000 without ordering an evidentiary hearing. (Petition at A-6.)

Truly appealed the post-conviction petition denial, arguing: 1) denial of his Sixth Amendment right to cross-examine Bell regarding her alleged motive, interest, or bias in testifying;

2) denial of his right to counsel at his lineup; and 3) ineffective assistance of appellate counsel. (Answer at 5.) The Illinois Appellate Court for the First District affirmed with respect to the latter two arguments, but remanded for an evidentiary hearing the issue of the limitations placed on Truly's ability to cross-examine Bell at trial. See People v. Truly, 741 N.E.2d 1115, 1131 (Ill. App. 1st Dist. 2000). Following an evidentiary hearing, the circuit court found that any restrictions on Truly's ability to cross-examine Bell were harmless beyond a reasonable doubt. (See Ex. G to Answer, App. Ct. 2005 Decision.)

Truly appealed again to the appellate court, arguing: 1) the post-conviction court erred in denying him relief following the evidentiary hearing; 2) ineffective assistance of post-conviction counsel during the evidentiary hearing; and 3) ineffective assistance of post-conviction appellate counsel. (Id.) The appellate court affirmed the circuit court decision in December 2005, and the Illinois Supreme Court denied Truly's petition for leave to appeal -- based on the same arguments -- on May 24, 2006.

On December 27, 2006, Truly filed this petition for writ of habeas corpus, directed at Eddie Jones, the Warden of the Pontiac Correctional Center. Here, Truly advances six grounds for relief:

1) Truly was denied his right to cross-examine Bell when the trial court precluded cross-examination on the issue of Bell's bias, interest, or motive, and specifically whether Bell was promised any incentives by the State in exchange for her testimony (Petition at 1);

2) Post-conviction counsel provided unreasonable assistance at the post-conviction, post-direct appeal evidentiary hearing by failing to confront the trial prosecutor, State's Attorney Peter Petraikas, regarding incentives the State used to entice Bell to testify against Truly at trial (id. at B-1);

3) Post-conviction counsel provided unreasonable assistance during Truly's post-conviction appeal by failing to argue that Truly was denied his constitutional right to a fair and impartial jury when the court denied defense counsel's request to question a juror about gang bias (id. at C-1);

4) Post-conviction counsel provided unreasonable assistance when, after Truly raised the issue in his initial pro se post-conviction petition, post-conviction appellate counsel failed to challenge the trial court's questioning of twenty potential jurors (six of whom served on the trial jury) outside of Truly's presence (id. at D-3);

5) Post-conviction appellate counsel provided unreasonable assistance by failing to argue that the trial court erred by allowing Truly's trial counsel to represent him in arguing Truly's motion for a new trial without first inquiring into potential conflict, even though Truly's motion ...


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