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Green v. Gilson

July 17, 2008

DONALD L. GREEN, PETITIONER,
v.
KEVIN GILSON, ACTING WARDEN, ILLINOIS RIVER CORRECTIONAL CENTER,*FN1 RESPONDENT.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge

OPINION

Petitioner Donald L. Green ("Green") seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The habeas petition is denied.

I. BACKGROUND

A Sangamon County, Illinois, jury found Green guilty of the first degree murder and aggravated criminal sexual assault of his six-month-old daughter, Lynn Allen. He was sentenced to 50 years for the murder and 25 years for the assault, with the terms to run concurrently. The Illinois Appellate Court summarized the factual background as follows:

Lynn Allen and her mother, Marilyn Allen, were living with defendant on February 14, 1988. On that date, Marilyn left their apartment to run some errands, and defendant was to look after Lynn. Sometime later, defendant ran across the hallway to the apartment of Marilyn's aunt, Sharon Floyd. Defendant was carrying the baby, who was limp, unconscious, and not breathing. While Floyd attempted CPR, defendant called 911.

Upon arrival at the hospital, Lynn was comatose and not breathing on her own. A nurse noticed several bruises on Lynn's face and chest, fresh blood in her diaper, swelling around the perineum, and a vaginal laceration. Despite attempts to save her, Lynn died the next day.

The focus of defendant's trial was determining who and what caused Lynn's death. During trial, several medical experts testified as to the possible causes of her injuries. Defendant provided numerous, conflicting explanations. He told Floyd that he and the baby were playing on the floor and that the baby had fallen over and hit her head. He told a nurse that he went to wake Lynn and found her gasping for air, shaking, lethargic, with 'white stuff' coming out of her mouth. The next day, he told the same nurse that he was carrying Lynn to the bathroom when she hit her head against the bathroom door and the bathroom mirror. He also told the nurse that when he was carrying her back to the bedroom, he tripped over a toy, and she flew out of his arms onto the bed. Defendant told police investigators that he had found blood in her diaper and that he shook the child. Last, defendant told Terry Buchanan, a fellow inmate in the Sangamon County jail, that he had molested and killed the baby.

People v. Green, No. 4-89-0545 (Ill. App. Ct. Oct. 11, 1990) (unpublished).

On direct appeal, Green argued that the trial court (1) improperly excluded testimony of his low intelligence, (2) improperly included the testimony of a pathologist regarding the bruising of the baby, (3) failed to instruct the jury on reckless conduct, (4) erred by denying a motion to exclude rebuttal witnesses, and (5) abused its sentencing discretion. The appellate court rejected these arguments and affirmed the conviction. People v. Green, No. 4-89-0545, 202 Ill. App. 3d 1115, 171 Ill. Dec. 358, 593 N.E.2d 1178 (Ill. App. Ct. Oct. 11, 1990) (unpublished). Green then filed a petition for leave to appeal ("PLA"), asserting the same claims with the exception of the challenge to the pathologist's testimony. The PLA was denied. People v. Green, 136 Ill.2d 548, 153 Ill. Dec. 378, 567 N.E.2d 336 (1991).

In 1991, Green filed pro se post-conviction petitions. An amended petition was filed in 2004 by appointed counsel. On July 21, 1994, the circuit court dismissed the petition after argument. Although the post-conviction petition had raised a plethora of claims, only one issue was argued on appeal: that the trial court erred in refusing to hold a hearing on Green's ineffective assistance claim based on his trial counsel's failure to investigate and call two witnesses. Rather than address the merits, the appellate court affirmed on the ground that Green had failed to support his claims about the witnesses' testimony with affidavits. People v. Green, No. 4-94-0674, 279 Ill. App. 3d 1115, 233 Ill. Dec. 723, 701 N.E.2d 573 (Ill. App. Ct. May 30, 1996) (unpublished). Green's PLA again raised only this one claim. It was denied. People v. Green, 168 Ill.2d 607, 219 Ill. Dec. 570, 671 N.E.2d 737 (1996).

Finally, on April 24, 1997, Green filed a second petition for post-conviction relief. The circuit court summarily dismissed the petition, but the appellate court reversed. On remand, counsel was appointed and an amended second petition was filed. In this petition, Green argued that (1) the state lied to the jury about Terry Buchanan not having a leniency deal, (2) trial counsel was ineffective for failing to object to testimony about his somniloquy, and (3) his appellate counsel was ineffective for failing to raise either of these two issues. The circuit court dismissed the petition. The appellate court affirmed, finding that Green's claims were procedurally defaulted. People v. Green, No. 4-04-0125. Green's PLA was denied. People v. Green, 218 Ill.2d 548, 303 Ill. Dec. 5, 850 N.E.2d 810 (2006).

On July 25, 1997, Green filed a habeas petition with ...


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