The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court
Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Petitioner Charles Daniels was convicted in the Circuit Court of Cook County for the crime of burglary and sentenced to eight years imprisonment. He has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that the state failed to prove all elements of the crime beyond a reasonable doubt, that trial counsel was ineffective, and that his conviction violated the ex post facto clause. For the reasons stated herein, Defendant's petition is denied.
Petitioner Charles Daniels was charged by information on March 10, 2000 with one count of burglary, in violation of 720 ILCS 5/19-1(a) (West 2000). Following a bench trial in the Circuit Court of Cook County, Daniels was found guilty on July 16, 2002 and sentenced to eight years imprisonment. Defense counsel moved for a new trial, arguing that the state had proven the elements of residential burglary and not the offense of simple burglary with which Petitioner was charged. The trial court denied the motion for a new trial and found that Daniels had made two separate unauthorized entries: one into the vacant apartment and one into the common area of the larger apartment building. The Illinois Appellate Court affirmed the conviction, finding that there was sufficient evidence of a second separate entrance into the common area which justified the conviction for simple burglary. Daniels' petition for leave to appeal to the Supreme Court of Illinois was denied on May 25, 2004. Rehearing was denied June 23, 2004.
Petitioner Daniels then filed a state post-conviction petition on November 5, 2004. Counsel was later retained by Daniels, and an amended petition was filed, asserting claims of ineffective assistance of counsel for (1) eliciting injurious testimony on cross-examination and (2) neglecting to argue the state's failure to prove the element of "without authority." The post-conviction court denied the petition on August 11, 2006, finding that it could be inferred that Daniels had no authority to be in the building and that any injurious testimony elicited on cross-examination was not prejudicial since other evidence already demonstrated Daniels' presence in the common areas of the building. On appeal, counsel appointed for Daniels moved to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), concluding that any appeal would be frivolous given the other evidence placing Daniels in the common area and the evidence that Daniels entrance into the building was without authority. Over Petitioner's brief in opposition, which argued that there could be no valid strategy for the cross-examination, that no other testimony placed him within the building's common area, and that, in fact, he never did enter the common area of the building, the Illinois Appellate Court affirmed the dismissal of the post-conviction in an order dated July 30, 2007. Petitioner timely filed a petition for leave to appeal to the Illinois Supreme Court, which was denied on November 29, 2007. The instant petition followed.
We construe Petitioner's arguments liberally, reading his pleadings with an attempt to discern the substance of his complaint. See Haines v. Kerner, 404 U.S. 519, 520 (1972). So read, Daniels' petition states three bases for habeas corpus relief: (1) the State's failure to prove every element of his offense beyond a reasonable doubt violates his right to due process; (2) the appellate court retroactively applied a later amendment to the burglary statute in affirming the conviction, violating the ex post facto clause; and (3) trial counsel was constitutionally ineffective because he helped the State prove Daniel's presence in the hallway of the building, by eliciting harmful testimony on cross-examination.
Before considering the merits of the habeas petition, the Court must ensure that Petitioner has exhausted his available state remedies and given the state courts a fair opportunity to address his claims and correct any constitutional errors. See Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir., 2004). To fulfill this requirement, Petitioner must present his claims fully and fairly, invoking "one complete round" of the state's established appellate review process. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Illinois, one complete round of review includes a petition for leave to appeal to the Illinois Supreme Court, whether on direct appeal or in state post-conviction proceedings. See Boerckel, 526 U.S. at 848; White v. Godinez, 192 F.3d 607, 608 (7th Cir., 1999).
Contrary to the State's assertion otherwise, Petitioner has thoroughly exhausted his state court remedies and adequately preserved his claims for federal habeas review. His sufficiency of the evidence claim was presented at trial, at the motion for a new trial, on direct appeal, and in his petition for leave to appeal to the Illinois Supreme Court. His ex post facto and effective assistance of counsel claims were presented in Petitioner's original post-conviction petition, pursued on appeal, and also submitted to the Illinois Supreme Court in a petition for leave to appeal ("PLA"). The State's contention that Petitioner failed to file a post-conviction PLA is clearly belied by the record before the Court. The submission, addendum, and denial of Petitioner's post-conviction PLA all have been attached to his reply brief, and they are easily found through a search of Petitioner's name and appeal number. The State's argument of procedural default is without merit or support.
To succeed on the merits of his petition, Daniels must show that the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Where the state court correctly identifies and accurately states the relevant law, Petitioner must demonstrate that the state court's application of that law was not just erroneous, but objectively unreasonable - that is, that the state court decision lies well outside the realm of permissible differences of opinion. See Badelle v. Correll, 452 F.3d 648, 654-55 (7th Cir., 2006). Alternatively, Petitioner may receive habeas relief if he can show that the state court's decision was based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(2). However, the state court's findings of fact are deemed presumptively correct and must be overcome by clear and ...