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United States ex rel Mikels v. Evans

January 13, 2009

UNITED STATES EX REL. CLIFFORD MIKELS (#R-29395), PETITIONER,
v.
JOHN EVANS,*FN1 WARDEN, BIG MUDDY RIVER CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Before the Court is Petitioner Clifford Mikels' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the Court denies Mikels' habeas petition.*fn2

BACKGROUND

Mikels does not present clear and convincing evidence challenging the statement of facts set forth in the Illinois Appellate Court's opinions affirming the judgments of the Circuit Court of Lake County, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Virsnieks v. Smith, 521 F.3d 707, 714 (7th Cir. 2008). The Court adopts the underlying facts as set forth by the Illinois Appellate Court in People v. Mikels, No. 2-04-0643 (Ill.App.Ct. Sept. 29, 2005) (unpublished) and People v. Mikels, No. 2-06-0357 (Ill.App.Ct. Oct. 15, 2007) (unpublished). The Court begins with a brief recounting of the relevant facts as determined by the Illinois Appellate Court. See Easley v. Frey, 433 F.3d 969, 970 (7th Cir. 2006).

I. Factual Background

On April 9, 2003, police officers obtained a warrant to search Mikels and a residence located at 12810 Beach Road, Beach Park, Illinois. The search warrant was based on information provided by an undisclosed informant who stated that Mikels had sold cocaine to him approximately ten times within the prior six month period. According to the informant, he had been inside the residence that was the subject of the search warrant within the previous 72 hour period and saw cocaine, a shotgun, two scales, and a large amount of money.

When the police officers executed the search warrant, they found two sisters, Sarah and Jamie Hernandez, living at the residence. During the search of the residence, police officers found approximately 220 grams of cocaine, firearms, a digital scale, and a police scanner. The police also found proof of Mikels' residency.

On February 26, 2004, Mikels' defense attorney filed a motion to disclose the identity of the confidential informant. At the motion hearing, defense counsel argued that the information provided by the informant that was used to obtain the search warrant had no independent indicia of reliability. The State responded that the informant did not actively participant in the investigation and that the State would not be calling the informant as a witness at trial. According to the State, all of the evidence that was seized at the residence was based on the search warrant rather than on any interaction between the confidential informant and Mikels. The trial court denied Mikels' motion to disclose the identity of the confidential informant noting that when the police appeared before the court to obtain the search warrant, the court established the believability and credibility of the information in issuing the warrant.

II. Procedural Background

A. Direct Appeal

Following a 2004 jury trial in the Circuit Court of Lake County, Mikels was convicted of unlawful possession of a controlled substance with intent to deliver and sentenced to 12 years of imprisonment. (R. 43-1, Resp.'s Rule 5 Exs., Ex. A). On direct appeal to the Illinois Appellate Court, Mikels presented three claims: (1) the trial court erred by denying his motion to disclose the identify of the informant; (2) he was deprived his statutory right to a speedy trial; and (3) the State failed to prove beyond a reasonable doubt that he possessed a controlled substance with intent to deliver. (Ex. B.) On September 29, 2005, the Illinois Appellate Court affirmed Mikels' conviction. (Ex. A.) Mikels then filed a petition for leave to appeal ("PLA") to the Supreme Court of Illinois presenting the following claims: (1) the Illinois Appellate Court erred in affirming the trial court's denial of Mikels' motion to disclose the identity of the informant; (2) the Illinois Appellate Court erred in concluding that Mikels was not denied his statutory right to a speedy trial; and (3) the Illinois Appellate Court erred in concluding that the evidence was sufficient to sustain his conviction. (Ex. D.) On January 25, 2006, the Supreme Court of Illinois denied Mikels' PLA. (Ex. E.)

B. Post-Conviction Petition

On January 3, 2006, Mikels filed a pro se post-conviction petition under 725 ILCS 5/122-1, et seq., claiming that: (1) trial counsel was ineffective for failing to (a) file a motion to suppress evidence obtained from a search of the residence because the search warrant was based on information from an anonymous informant, and (b) interview witnesses and collect evidence that would have allegedly impeached a State witness; and (2) appellate counsel provided constitutionally ineffective assistance of counsel for failing to raise these claims on direct appeal. (Ex. F.) On February 24, 2006, the trial court summarily dismissed Mikels' post-conviction petition. (Ex. G.) Mikels then appealed his post-conviction petition to the Illinois Appellate Court raising one claim -- that trial counsel was ineffective for failing to file a motion to suppress evidence obtained from the search of the residence because the warrant was based on information from an anonymous informant. (Ex. H.) On October 15, 2007, the Illinois Appellate Court affirmed the trial court's decision concluding that Mikels had not demonstrated that there was a reasonable probability that the trial court would have granted his motion to suppress if trial counsel had filed it. (Ex. J.) On January 3, 2008, Mikels filed a motion for leave to file a late ...


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