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Holmes v. Pierce

January 7, 2009

TYRONE HOLMES, PETITIONER,
v.
GUY D. PIERCE,*FN1 RESPONDENT.



The opinion of the court was delivered by: Hon. Ronald A. Guzman U.S. District Court Judge

Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER

Before the Court is Tyrone Holmes' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 that seeks to vacate his convictions for first degree murder and criminal sexual assault. For the reasons provided in this Memorandum Opinion and Order, the Court denies the petition.

Facts

In 1989, Holmes was convicted of first degree murder and criminal sexual assault of Lajauina Camel. (Gov't Ex. A, People v. Holmes, 601 N.E.2d 985, 986 (Ill. App. Ct. 1992).) Holmes appealed his convictions and sentence. He argued that: (1) he was deprived of his right to a speedy trial, in violation of the Illinois statute and the Sixth Amendment to the U.S. Constitution; (2) the trial court erred in finding that the State had shown that certain injuries found on the victim's body were bite marks inflicted by Holmes because Holmes had impeached the testimony of the State's bite-mark experts and the court erred in relying upon opinion testimony regarding muddy shoe prints that had been stricken from the record; (3) the State failed to prove his guilt beyond a reasonable doubt as to criminal sexual assault; and (4) his sentence was excessive in light of his steady employment record and other mitigating factors. (Id. at 989-99.)

On September 8, 1992, the appellate court affirmed Holmes' convictions and sentence. (See generally id.) Holmes filed a petition for leave to appeal to the Illinois Supreme Court that raised the same issues that he raised on direct appeal. (Gov't Ex. B, Pet. Leave Appeal 8-34.) On October 6, 1993, the Illinois Supreme Court denied the petition for leave to appeal. (Gov't Ex. C, People v. Holmes, No. 75594, slip op. at 1 (Oct. 6, 1993).)

On November 5, 1993, Holmes filed the first of five petitions for relief pursuant to the Illinois Post-Conviction Hearing Act, 725 Ill. Comp. Stat. 5/122-1 et seq., and/or 735 Ill. Comp. Stat 5/2-1401 for relief from judgment, arguing that: (1) trial counsel was ineffective for failing to challenge Holmes' arrest; (2) trial counsel was ineffective for failing to present a witness who would testify that Holmes was not the last person in the building where the victim was found; (3) trial counsel was ineffective for being absent during the bite mark expert's examination of Holmes; (4) Holmes was denied due process of law because the state-ordered tests of his blood and saliva were never conducted; (5) he was denied an impartial judge because the judge was aware of Holmes' prior conviction for rape; (6) trial counsel was ineffective for failing to impeach Jacqueline Wilson's testimony; (7) Detective Vucko's testimony regarding a police report was inadmissible hearsay because he did not author the report and Holmes was deprived of due process because he was unable to cross-examine Detective Summerville, the author of the report; (8) he was denied due process of law when the court permitted Dr. Kenney to remain in the courtroom in contravention of the court's earlier order excluding witnesses from the courtroom; and (9) prosecutorial misconduct. (Gov't Ex. D, Pet. Post-Conviction Relief; Gov't Ex. E, Supplemental Pet. Post-Conviction Relief.) In addition, the Public Defender also filed a supplemental post-conviction petition to compel genetic marker testing. (Gov't Ex. F, Pet. Compel Genetic Marker Testing.) The State moved to dismiss Holmes' pro se post-conviction petition, his pro se supplemental post-conviction petition and the Public Defender's supplemental petition, which were treated collectively as one petition. (See Gov't Ex. I, People v. Holmes, No. 1-96-1046, slip op. (June 5, 1998).) On February 1, 1996, the trial court granted the State's motion to dismiss the petition because Holmes had not established a denial of effective assistance of counsel or due process. (See id.)

Holmes appealed the dismissal of his first post-conviction petition. (Gov't Ex K, Pet'rAppellant's Br. 4.) However, he raised only one issue: Holmes was entitled to have genetic marker testing conducted where DNA testing was not available at the time of his trial; (2) the evidence was impounded and is available for testing; and (3) DNA testing could conclusively exclude petitioner as the offender. (Id.) On June 5, 1998, the appellate court affirmed the dismissal of Holmes' petition. (See Gov't Ex. I, People v. Holmes, No. 1-96-1046, slip op. (June 5, 1998).) Holmes did not request leave to appeal to the Illinois Supreme Court. (Gov't Ex. M, Letter from J. Hornyak to C. Hulfachor of 3/15/05 (stating that records do not show petition for leave to appeal to the Illinois Supreme Court was filed).)

On April 21, 1999, Holmes moved for forensic testing that was not available at trial. (Gov't Ex. FF, Updated Certified Stmt. Conviction/Disposition.) On May 13, 1999, the trial court granted the motion. (Id.) On October 14, 1999 and November 1, 1999, Cellmark Diagnostics issued reports analyzing the victim's vaginal swab for the presence of semen and spermatazoa and Holmes' coat, pants and boots for the presence of blood. (Gov't Ex. N, Pet. Post-Conviction Relief, Exs. B & C.)

On April 19, 2000, Holmes filed a second petition for post-conviction relief with aid of counsel, as well as a motion for relief from judgment pursuant to 735 Ill. Comp. Stat. 5/2-1401. (Gov't Ex. N, Pet. Post-Conviction Relief.) In both, Holmes argued that he had newly discovered evidence (obtained from court-ordered testing of the evidence) that serologist Pamela Fish testified falsely regarding blood stains on Holmes' pants, coat and boots. (Id.) On November 27, 2000, the court dismissed both the post-conviction petition and the motion for relief from judgment. (Gov't Ex. P, H'rg Tr. of 11/27/00.) Holmes' appeal of his second petition for post-conviction relief was consolidated with his appeal of his third petition for post-conviction relief. (Gov't Ex. S, People v. Holmes, Nos. 1-01-0496 and 1-01-3210, slip op. at 2 (Mar. 19, 2003).) However, on appeal, Holmes abandoned the issues raised in his second petition for post-conviction. (See id.)

On April 13, 2001, Holmes filed a third petition for post-conviction relief. (Gov't Ex. Q, Pet. Post-Conviction Relief.) He argued that, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), his Sixth and Fourteenth Amendment rights were violated when the trial court sentenced him to an extended term sentence of natural life for "brutal and heinous behavior indicative of wanton cruelty," a factor that was not proven to a jury beyond a reasonable doubt. (See id. 2.) On July 6, 2001, the trial court dismissed the third petition for post-conviction relief. (Gov't Ex. R, People v. Holmes, No. 87-CR-6274, slip op. at 1 (July 5, 2001).) Holmes appealed the dismissal and raised the same issue on appeal. (Gov't Ex. S, People v. Holmes, Nos. 1-01-0496 and 1-01-3210, slip op. at 2-3 (Mar. 19, 2003).) On March 19, 2003, in the consolidated appeal, the appellate court affirmed the dismissal of Holmes' second and third petitions for post- conviction relief. (Id. at 3.) The appellate court held that Apprendi did not apply retroactively. (Id.) Holmes filed a petition for leave to appeal to the Illinois Supreme Court. (Gov't Ex. W, Pet. Leave Appeal.) On October 7, 2003, the Illinois Supreme Court denied the petition for leave to appeal. (Gov't Ex. X, People v. Holmes, No. 96116, slip op. 1 (Oct. 7, 2003).)

On July 1, 2002, Holmes filed a fourth petition for post-conviction relief. (See Gov't Ex. Y, People v. Holmes, No. 87-CR-6274, slip op. 1 (Aug. 20, 2002).) On August, 20, 2002, the trial court dismissed the fourth petition for post-conviction relief because the issues raised were barred by res judicata, waived or frivolous. (Id.) Holmes appealed the dismissal, arguing that

(1) the State knowingly introduced false testimony at trial and withheld exculpatory evidence; (2) both his trial attorney and the trial court erroneously believed he was eligible for the death penalty; and (3) his appellate counsel was ineffective for failing to raise these issues on direct appeal. (Id. 1-2.) The appellate court affirmed the dismissal of the fourth petition for post-conviction relief and held that the issues raised were waived. (Gov't Ex. Z, People v. Holmes, No. 1-02-3303, slip op. 7-11 (June 16, 2004).) Holmes filed a petition for leave to appeal to the Illinois Supreme Court and argued that the fundamental miscarriage of justice exception to the waiver rule should apply to permit Holmes' fourth petition for post-conviction relief where: (1) due to constitutional error, petitioner was wrongfully found to be "death eligible," but the death sentence was not imposed; (2) he has a free-standing claim of actual innocence based upon the State's failure to disclose serologist Pamela Fish's handwritten notes and her false trial testimony; and (3) his life sentence was unlawful, even though the court found "brutal and heinous behavior indicative of wanton cruelty," because trial counsel and the court erroneously believed he was eligible for the death penalty. (Gov't Ex. DD, Pet. Leave Appeal 3.) On November 24, 2004, the Illinois Supreme Court denied the petition for leave to appeal. (Gov't Ex. EE, People v. Holmes, No. 99013, slip op. 1 (Nov. 24, 2004).)

In December 2004, Holmes filed a petition for relief from judgment pursuant to 735 Ill. Comp. Stat. 5/2-1401. (Gov't Ex. GG, Pet. Relief J.) He argued that his life sentence is void due to the following: (1) criminal sexual assault is not listed as an aggravating factor whereby a defendant can be found death-eligible; and (2) although Holmes was sentenced to natural life, the trial court's erroneous belief that Holmes was eligible for the death penalty requires re-sentencing because the trial judge had the wrong sentencing range in mind. (Id. 1-7.) On January 25, 2005, the trial court dismissed the petition as frivolous. (Gov't Ex. FF, Updated ...


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