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Brown v. Hathaway

December 1, 2008

KERRY L. BROWN, PETITIONER,
v.
JODY HATHAWAY, RESPONDENT.



The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge

OPINION & ORDER

Before the Court are two Petitions for the Writ of Habeas Corpus under 28 U.S.C. § 2254, both filed by Petitioner Kerry L. Brown. The Petition in case 07-cv-1336 was docketed on December 10, 2007 (Doc. 1). The Petition filed in case 08-cv-1148 was docketed on June 25, 2008 (Doc. 1). For the reasons stated below, both Petitions are DENIED.

BACKGROUND

The procedural history of this case is long and winding. On January 18, 2006, after a jury trial in the Circuit Court of Woodford County, Illinois, a jury convicted Petitioner of Aggravated Driving under the Influence of Alcohol (DUI) and Aggravated Driving While License was Revoked (DWLR). On March 14, 2006, Petitioner was sentenced to ten years' imprisonment for his Aggravated DUI conviction and three years' imprisonment for his Aggravated DWLR conviction. The sentences were to be served consecutively. Petitioner appealed his conviction and also, in April 2006, filed a petition for post-conviction relief in the Woodford County Circuit Court.

On May 5, 2006, while his post-conviction petition was pending in the state trial court, Petitioner filed a complaint in the trial court for habeas corpus relief pursuant to 735 Ill. Comp. Stat. 5/10-101, et seq. One month later, on June 5, 2006, Petitioner filed a petition for habeas relief under 28 U.S.C. § 2254 in the U.S. District Court for the Central District of Illinois (case 06-cv-1209). On December 19, 2006, the state trial court held an evidentiary hearing on Petitioner's post-conviction petition and denied it. On December 29, 2006, in federal court, Judge Mihm denied, without prejudice, Petitioner's federal habeas petition because Petitioner had not exhausted his state-court remedies. Petitioner subsequently filed two more habeas petitions in the state trial court, which were denied. Petitioner did not appeal those denials.

On January 8, 2007, Petitioner appealed the state trial court's denial of his post-conviction petition to the Fourth District Appellate Court of Illinois. The state appellate court consolidated the post-conviction appeal with the direct appeal of Petitioner's conviction. Petitioner filed two primary briefs in the Fourth District Appellate Court.*fn1 The first brief, which appears to have been filed in June 2007, raised only one claim involving ineffective assistance of trial counsel. After that brief was filed, Petitioner, who was then represented by counsel, filed a second brief with the state appellate court, entitled "Brief and Argument for Defendant- Appellant Pro Se." This "pro se" brief contained the following additional claims: (1) the State failed to sufficiently inform Petitioner of the charges against him; (2) the state trial court had no jurisdiction over Petitioner's criminal case; (3) the sentencing court improperly amended a charging instrument after the conclusion of trial. The state appellate court construed Petitioner's second brief as a motion for leave to file a pro se supplement to his first appellate brief, and the court denied that motion.*fn2

On January 9, 2008, the state appellate court affirmed Petitioner's conviction and affirmed the trial court's denial of his post-conviction petition. Subsequently, Petitioner filed a petition for leave to appeal (PLA) in the Illinois Supreme Court, raising ten claims. The PLA included many claims that were not presented to the state appellate court. The PLA, however, also advanced certain of Petitioner's claims that were raised in the state appellate court below. The claims that Petitioner presented to the state appellate court with at least some degree of clarity and which he also included in the PLA to the Illinois Supreme Court were: (1) the claim regarding the State's failure to apprise Petitioner of the charges against him and (2) the claim regarding an improper post-trial amendment to the charging instruments. The Illinois Supreme Court denied the PLA on May 29, 2008. (Resp. Ex. P).

On November 5, 2007, before the state appellate court had affirmed his conviction, Petitioner filed a Petition for the Writ of Habeas Corpus under 28 U.S.C. § 2254 in this Court, raising various claims. The Clerk opened case 07-cv-1336 and docketed the Petition ("11/5/07 Petition") (Doc. 1).*fn3 Then, on June 25, 2008, Petitioner filed another section 2254 petition in this Court ("6/25/08 Petition"). The Clerk opened case 08-cv-1148 and docketed that petition (Doc. 1). On July 10, 2008, Judge Mihm, who presided over case 08-cv-1148 at the time, transferred the case to Judge McDade to determine if the 6/25/08 Petition was related to the 11/5/07 Petition. On July 31, 2008, Petitioner submitted a filing to the Court indicating that the 6/25/08 Petition was unrelated to the 11/5/07 Petition.

On August 14, 2008, Respondent filed an Answer in case 07-cv-1336 (Doc. 8). The Answer addressed elements of the 11/5/07 and 6/25/08 Petitions. Petitioner responded to the Answer on September 9, 2008 by filing a Traverse in case 07-cv-1336 (Doc. 9). Petitioner has since filed motions seeking judgment on the Petitions in both cases.

LEGAL STANDARD

A federal district court may grant a petition for habeas relief under 28 U.S.C. 28 U.S.C. § 2254 where the petitioner is "in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). With respect to a claim for habeas relief that was adjudicated on the merits in state court, the writ may issue only if the state court's ruling (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d).

ANALYSIS

As a preliminary matter, the Analysis Section of this Opinion primarily addresses the 11/5/07 Petition in case 07-cv-1336. Subsection III of the Analysis Section, however, exclusively addresses the 6/25/08 Petition in case 08-cv-1148. This Opinion disposes of both Petitions.

The 11/5/07 Petition sets forth the following claims:

A. The arresting officer failed to give Petitioner Miranda warnings;

B. The prosecution's use at trial of Petitioner's inculpatory statements violated Miranda;

C. The trial court should have excluded certain statements made by Petitioner and the ...


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