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United States ex rel Kizer v. Hulick

December 9, 2008


The opinion of the court was delivered by: Judge Robert W. Gettleman


Petitioner Frederick Kizer filed an amended petition for habeas corpus relief pursuant to the Anti-Terrorism and Effective Death Penalty Act ("ADEPA"), 28 U.S.C. § 2254. Respondent has filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56(a)(2). Petitioner has filed a response in opposition to respondent's motion for summary judgment and requested an evidentiary hearing. For the reasons discussed below, the court grants respondent's motion for summary judgment and denies petitioner's request for an evidentiary hearing.


In 1995, petitioner was convicted in the Circuit Court of Cook County of one count of first degree murder, three counts of attempted first degree murder, and two counts of aggravated battery with a firearm. The conviction arose from a shooting that took place on the evening of April 17, 1994, at 5352 South Paulina Street in Chicago, Illinois that resulted in the murder of Willie Hall and the attempted murders of Vanessa Winslow, Kevin Richardson, and William Richardson. Petitioner initially denied that he had been at scene, or that he had taken part in the shootings. He told investigators that at the time the shooting took place, he had been with Michael Byrd and Tara Callum at Byrd's home. Both Byrd and Callum were interviewed by police and failed to corroborate the details of petitioner's alibi. Petitioner's trial counsel attempted to locate Byrd and interview him in order to assess his value as a defense witness. He was unsuccessful in his attempts and did not call Byrd at either of petitioner's trials.

Petitioner's first trial in the Circuit Court of Cook County, Illinois, resulted in a mistrial after eleven of the twelve jurors voted for acquittal. At his second trial, the State presented a written confession signed by petitioner admitting to the shootings. Additionally, Kevin Richardson, Vanessa Winslow, and Demond Richardson, the brother of Kevin and William who witnessed the incident, testified that petitioner was the shooter.

The jury returned a guilty verdict and the trial court sentenced petitioner to consecutive prison terms of 50 years for the first degree murder count and 25, 15, and 10 years, for the three attempted murder counts. On direct appeal, petitioner argued that the trial court erred in denying his motion for substitution of judge after the mistrial. The Illinois Appellate Court affirmed the judgment. See People of the State of Illinois v. Frederick Kizer, No. 1-95-3562 (Ill. App. 1st Dist. July 22, 1997). Petitioner sought leave to appeal to the Illinois Supreme Court, which was denied on June 3, 1998.

Petitioner then filed a pro se petition for relief pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq., in which he alleged: (1) ineffective assistance of trial counsel; (2) prosecutorial misconduct in improper closing arguments, such as vouching for government witnesses' credibility, referring to notorious criminals, and referencing petitioner's failure to testify; (3) judicial bias against him as evidenced by, among other things, the trial judge's questioning of the state's expert at trial; (4) failure to establish petitioner's guilt beyond a reasonable doubt; and (5) ineffective assistance of appellate counsel for failure to raise these issues on direct appeal. On December 23, 1998, petitioner's post-conviction petition was dismissed as frivolous and patently without merit. See People v. Kizer, 318 Ill. App. 3d 238, 240 (Ill. App. 1st Dist. 2000).

On appeal of the denial of his state post-conviction petition, petitioner, represented by the State Appellate Defender, argued for the first time that his 15-year and 10-year consecutive sentences were imposed in violation of 730 ILCS 5/5-8-4(a). Petitioner's counsel did not address any of the grounds raised in the pro se petition, other than summarizing the contents of that petition in the "Introduction" portion of the brief. Petitioner then moved pro se to file a supplemental brief to preserve the grounds raised in his pro se petition. Petitioner's pro se motion was opposed by the state on the ground that petitioner "does not have a Sixth Amendment right to have both representation of counsel and to also conduct portions of the proceedings on his own." On May 15, 2000, the appellate court denied petitioner's motion to file a pro se supplemental brief.

On July 10, 2000, however, petitioner (through counsel) was granted leave to file a supplemental brief in which he alleged that all of his consecutive sentences were unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). In an unpublished order, the appellate court reversed the consecutive nature of petitioner's ten-year sentence, but affirmed the consecutive nature of the fifteen-year sentence under state law and further refused to apply Apprendi retroactively. See People v. Kizer, No. 1-99-0733 (Ill. App. 1st Dist. Nov. 6, 2000). After petitioner sought rehearing, the appellate court issued a published opinion setting forth a more comprehensive discussion of its Apprendi analysis (although it denied the petition for a rehearing).

Petitioner (through counsel) then sought leave to appeal to the Illinois Supreme Court, raising two issues: (1) the retroactivity of Apprendi, and (2) whether state law rendered his 15-year consecutive sentence void (rather than merely voidable, as the appellate court had held). Proceeding pro se, petitioner then sought leave to file a supplemental petition for leave to appeal in which he addressed many of the issues raised in his initial state post-conviction petition, such as ineffective assistance of counsel. In an order dated March 27, 2001, the Illinois Supreme Court denied petitioner's motion to file a supplemental brief, and on June 29, 2001, denied petitioner leave to appeal. Petitioner subsequently filed a petition for writ of certiorari in the United States Supreme Court, which was denied on November 13, 2001.

On May 10, 2002, petitioner filed a habeas petition with this court, in which he argued that his trial counsel had been ineffective and that the prosecutor made constitutionally impermissible statements to the jury during closing arguments. Respondent argued that petitioner had procedurally defaulted these claims because he had not fully presented them to the state courts. This court agreed and dismissed the petition. U.S. ex rel. Kizer v. Walls, 2004 WL 719342 (N.D. Ill. Apr. 1, 2004).

The Seventh Circuit granted petitioner a certificate of appealability on both the ineffective assistance of counsel and prosecutorial misconduct claims. The court of appeals, holding that petitioner had fully presented those claims to the state courts, and that the claims were not procedurally defaulted, remanded the case to "allow the district court the opportunity to consider the merits" of petitioner's claims. Kizer v. Uchtman, 2006 WL 265483 (7th Cir. Feb. 3, 2006) (unpublished order).

Petitioner then filed an amended habeas petition to which respondent filed an answer, arguing that petitioner's claims were meritless. At that time, respondent also noted that petitioner's ineffective assistance claim might be procedurally barred because a state court had rejected it on an independent and adequate state ground, but that respondent had not obtained the necessary state post-conviction documents to make that determination. After receiving the post-conviction documents, respondent filed a supplemental answer to petitioner's amended petition. In that supplemental answer, respondent argued that petitioner's ineffective assistance claim was procedurally barred because the Cook County Circuit Court found it "patently frivolous and without merit" in its dismissal of the petition for post-conviction relief on December 23, 1998. Petitioner then filed a motion to strike the supplemental answer, arguing that respondent waived the procedural ...

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