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Moore v. McCann

June 20, 2008

ROBBIE MOORE, PETITIONER,
v.
TERRY MCCANN, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

On April 9, 2007, Petitioner Robbie Moore filed a Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to 28 U.S.C. § 2254. For the following reasons, the Petition is DENIED.

BACKGROUND

In 1997, following a bench trial, Petitioner was convicted of three counts of predatory criminal sexual assault of a child and one count of aggravated sexual abuse. The predatory criminal sexual assault convictions were based on two acts of oral sexual penetration with eleven-year-old T.C. and one act of digital sexual penetration with six-year-old J.G. The aggravated sexual abuse conviction was based on an act of fondling an eleven-year-old girl. Petitioner was sentenced to three consecutive terms of twenty years' imprisonment for the predatory criminal sexual assault convictions and a consecutive seven-year term for aggravated sexual abuse.

In 1999, the Illinois Supreme Court reversed Petitioner's three convictions for predatory criminal sexual assault, ruling that the crime of predatory criminal sexual assault did not exist at the time of the misconduct as the offense was created as part of an unconstitutional public act. Petitioner's conviction and sentence for aggravated sexual abuse were unaffected by the judgment.

On May 24, 2000, Petitioner was charged with three counts of aggravated criminal sexual assault for the above-mentioned alleged acts of oral and digital sexual penetration. Petitioner chose a trial by jury, and was found guilty on all three counts in the Circuit Court of Vermillion County. The trial court sentenced him to three consecutive thirty-year terms.

Petitioner appealed to the Appellate Court of Illinois, Fourth District, arguing that: (1) he was entitled to a new sentencing hearing because he received a longer term of imprisonment upon retrial after successful appeal; (2) the State's failure to notify him of its intent to admit hearsay statements under Section 115-10 of the Code of Criminal Procedure (725 ILCS 5/115-10(d)) required a new hearing; (3) he was not proven guilty beyond a reasonable doubt of sexually assaulting J.G.; and (4) he was entitled to additional days of sentencing credit. On December 12, 2002, the state appellate court affirmed Petitioner's convictions, but remanded with instructions to reduce Petitioner's sentences to twenty-year terms for each count, to be served consecutively. Petitioner did not file a petition for leave to appeal (PLA) in the Illinois Supreme Court.

On September 21, 2004, Petitioner filed an amended petition for post-conviction relief*fn1 in the Circuit Court of Vermillion County, arguing that: (1) his Sixth Amendment right to be confronted with the witnesses called against him was violated during trial when the attorneys were instructed to stand between him and J.G. during the latter's testimony so as to obstruct Petitioner's view of the witness; and (2) his trial counsel was ineffective for failing to make a timely objection to the obstruction of Petitioner's view of the witness.

On April 14, 2005, an evidentiary hearing was held on Petitioner's first amended petition for post-conviction relief. The trial court ultimately denied the petition, and Petitioner appealed to the state appellate court. Petitioner's attorney filed a motion to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). Petitioner argued that: (1) counsel was ineffective for not arguing his entire post-conviction petition properly; (2) the trial court erred in denying relief for his Sixth Amendment claim; (3) his charging instrument was unlawful; and (4) he was not proven guilty beyond a reasonable doubt. On July 11, 2006, the appellate court affirmed the denial of Petitioner's post-conviction petition.

On August 2, 2006, Petitioner filed a PLA in the Illinois Supreme Court. He argued that: (1) his constitutional rights to confront his accuser were violated by the actions of the court, the state's attorney, and his own counsel at trial; (2) the trial court violated the procedures of Section 115-10 when J.G. did not make an in-court identification and was not the first witness called by the state, thereby infringing on his right to a fair and impartial jury; (3) the trial court improperly dismissed some of the claims in his pro se post-conviction petition while letting others be brought in the amended petition; (4) the State's failure to notify petitioner of its intent to admit statements under section 115-10 of the Code of Criminal Procedure requires a new hearing to determine the admissibility of those statements; (5) he was denied the effective assistance of counsel "(3 times)" at the trial level and "(2 times)" at the appellate level; (6) the language in the aggravated criminal sexual assault statute was unconstitutional; and (7) the evidence is insufficient because there were inconsistencies in J.G.'s testimony. On November 29, 2006, the Illinois Supreme Court denied Petitioner's PLA.

On April 9, 2007, Petitioner filed the instant Petition for Writ of Habeas Corpus (#4)*fn2 in this court. Petitioner brings several claims: (1) the evidence was insufficient to convict him because J.G.'s testimony was inconsistent; (2) his trial counsel was ineffective for making a damaging statement about Petitioner during her closing argument; (3) his appellate counsel was ineffective; (4) his double jeopardy rights were violated when he was recharged following reversal by the state supreme court; (5) the charging instrument was unconstitutional; (6) he was wrongfully incarcerated after the Illinois Supreme Court reversed his first convictions without filing an order of immediate release; and (7) his right to a fair trial was violated when his accuser, J.G., was not asked to identify the accused at trial. On July 3, 2007, Respondent filed her Answer to Petitioner's Petition for Writ of Habeas Corpus (#10). On July 16, 2007, Petitioner filed his Response (#12). On July 18, 2007, Respondent filed a Reply (#14).

ANALYSIS

A. Non-Cognizable Claims

District Courts have jurisdiction to entertain petitions for habeas relief from prisoners "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); see also Lowery v. Young, 887 F.2d 1309, 1312 (7th Cir. 1989) ("The 'in custody' requirement is jurisdictional."). The Supreme Court has construed this to require "that the habeas petitioner be 'in custody' under the ...


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