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United States ex rel Truly v. Robert

September 30, 2008

UNITED STATES OF AMERICA EX REL. CLARK TRULY, PETITIONER,
v.
BRADLEY J. ROBERT, WARDEN CENTRALIA CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Petitioner Clark Truly ("Truly" or "Petitioner"), an Illinois state prisoner, seeks a writ of habeas corpus [9] pursuant to 28 U.S.C. § 2254 claiming that the State knowingly used false evidence to obtain a tainted conviction for aggravated battery with a firearm, that trial counsel was ineffective because he failed to object to the introduction of the false conviction presented to the jury, and that the state court decision is unreasonably contrary to United States Supreme Court precedent as established in Napue v. Illinois. For the following reasons, the petition for the writ of habeas corpus is denied.

Also before the Court are three motions filed by Petitioner: (i) motion for summary judgment [39]; motion for writ of habeas corpus testificandum [44]; and (iii) motion for judgment on the pleadings or evidentiary hearing [45]. For reasons stated below, these three additional motions are denied.

I. Background

A federal district court's review of a habeas petition presumes all factual findings of the state court to be correct, absent clear and convincing evidence to the contrary. See Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). Because Petitioner has failed to provide such evidence, the Court adopts the following account, except as otherwise noted, from the Illinois Appellate Court's Rule 23 Order or direct appeal.

A. Factual History

Following a 2001 jury trial, Truly was convicted of aggravated battery with a firearm and sentenced to 18 years incarceration in connection with the July 1999 shooting of Charles Pinkston ("Pinkston"). Rule 23 order, Ex. A to Ans., at 1. Pinkston testified that on July 1, 1999, he was talking with his friends Shannon Fouch, Jerome Fouch and Karen Haynes ("Haynes") in front of the Fouch residence, when he saw Truly drive past them in a red car. Id. Pinkston knew Truly and they had had a few altercations. Id. The vehicle made a U-turn and pulled up about four feet in front of Pinkston. Id. at 2. Pinkston and Haynes testified that Truly asked Pinkston if he had a problem with him, to which Pinkston replied "no". Id. Truly then pulled out a gun and fired at Pinkston. Id. The initial shot missed Pinkston who began running, but was shot in the leg when Truly fired at him again. Id. Pinkston managed to crawl over the side gate of the Fouch residence, but could go no further because his leg was broken. Id. While Pinkston was lying on the ground behind the gate, Truly stood in front of the gate pointing a gun at him. Id. Shannon told Truly "don't shoot" and Pinkston testified that Truly then retreated to his car and left. Id. There is some discrepancy in the testimony as to whether Truly departed on foot or in the vehicle. Haynes did not see him leave and Shannon Fouch did not see whether Truly entered the car before it drove off. Id. at 3-4. At trial, Truly maintained that he was driving the car with his cousin in the passenger seat. Id. at 4. Truly testified that when he got out of the car and had words with Pinkston, he heard gunshots coming from behind him. Id. at 5.

He then ran and saw Pinkston lying on the ground and, after seeing that the car was gone, walked away. Id.

Police observed a fired bullet shell case and a live bullet at the scene, both of which came from a .40 caliber firearm. Rule 23 order, Ex. A to Ans., at 4. During a search of Truly's home and garage, police identified a red car with a spent shell casing on the car's floorboard. Id. The shell casing came from a .40 caliber firearm. Id. The parties stipulated that the two fired shell cases were compared by an expert in the field of firearms ammunition, and the expert determined to "a reasonable degree of scientific certainty that the two shell casings were fired in the same firearm." Id. Truly was arrested on April 9, 2001 and charged with attempted first-degree murder and aggravated battery with a firearm. Id. at 5.

B. Procedural History

At trial, the State introduced into evidence, without objection, copies of certified convictions previously shown to defense counsel including evidence that, on March 23, 2000, Truly was convicted of possession of a stolen motor vehicle and "aggravated assault of a police officer with a firearm." Rule 23 order, Ex. A to Ans., at 5-6. The State informed the jury that it should consider Truly's prior convictions to determine whether or not he was believable. Id. at

6. The trial court instructed the jury that Truly's previous convictions should only be used to determine his credibility and not "as evidence of his guilt of the offense with which he is charged." Id. Truly was found guilty of aggravated battery with a firearm. Id. The trial court denied his motion for a new trial. Id.

At the sentencing hearing, defense counsel informed the court for the first time that, although Truly had pleaded guilty to "aggravated assault of an officer with a firearm or other dangerous weapon", he did not use a firearm. Rule 23 order, Ex. A to Ans., at 6. Defense counsel clarified that Truly allegedly drove a car at a police officer and had not been in possession of a gun in that case. Id. The State agreed with defense counsel, stating that Truly drove a car at a police officer who fired in the direction of Truly three times because he felt his life was in danger. Id. at 7. The trial court took all of the evidence on mitigation and aggravation into consideration. Id. The court sentenced Truly to 18 years imprisonment and denied his motion to reconsider his sentence. Id. at 1.

Truly appealed his conviction and sentence, contending that plain error occurred when: (1) the State presented erroneous evidence that he was previously convicted of aggravated assault of a police officer with a firearm when he had actually used a car to commit the offense; and (2) the trial court considered the use of a firearm in the present offense as an aggravating factor in sentencing. Rule 23 order, Ex. A to Ans., at 8. On August 18, 2003, the Illinois Appellate Court, First District, affirmed Truly's conviction and sentence. Id. at 12. The Appellate Court found that the trial court erred in informing the jury that Truly had been convicted of aggravated assault of a police officer with a firearm when the prior conviction was simply for aggravated assault of a police officer. Id. at 9. The Appellate Court also found that the error was plain and affected substantial rights under the Fourteenth Amendment. Id. However, the Appellate Court held that (i) Truly did not establish that the error was prejudicial and (ii) even if the prior conviction was used improperly by the jury, there was ample evidence to convict Truly without that conviction. Id. at 9-10. The Appellate Court further found that the misstatement did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. Id. at 10. Finally, the Appellate Court found that the trial ...


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