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United States ex rel Cleveland v. Cox

January 27, 2009

UNITED STATES OF AMERICA EX REL. RONALD CLEVELAND, PETITIONER,
v.
JOHN COX,*FN1 RESPONDENT.



The opinion of the court was delivered by: Blanche M. Manning United States District Court Judge

MEMORANDUM AND ORDER

Petitioner Ronald Cleveland's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the court. For the following reasons, Cleveland's petition is denied.

I. Background

The court will presume that the state court's factual determinations are correct for the purposes of habeas review as Cleveland has not provided clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The court thus adopts the state court's recitation of the facts, and will briefly summarize the key facts which are relevant to Cleveland's § 2254 petition.

A. Cleveland's Trial

After a bench trial, petitioner Ronald Cleveland was convicted of burglary and was sentenced to a 15-year term of imprisonment. He is currently in the custody of John Cox, the Warden of Vienna Correctional Center in Vienna, Illinois, and his inmate number is N90847.

Cleveland is a former employee of the Michael Reese Hospital, where he worked as a custodian. On the evening of November 14, 2003, personnel at the hospital discovered that four microscopes were missing from four offices in the hospital's pathology department. The pathology department had been victimized by microscope theft twice before (specifically, four microscopes had twice been stolen from the same four offices that were robbed on November 14, 2003). After the second set of microscopes were stolen, the hospital installed a surveillance system, but did not publicize this security measure.

Beginning at 5:00 p.m. on the evening of November 14, 2003, until 9:00 a.m. the following day, the pathology department's surveillance system recorded certain views of the pathology department on a black and white time-lapse videotape. At trial, Timothy Anderson (the director of human resources at the time) testified that he saw Cleveland, whom he recognized from previous encounters, looking through windows of the department's office doors, entering four of those offices, and "exiting with bags full of something." People v. Cleveland, No. 1-06-0409, at 3 (Ill. App. Ct. May 29, 2007) (unpublished order). Cleveland then "deposited the bags in a certain area of the department, then collected them and exited through a side door." Id. The doors of the offices that Cleveland entered and exited showed signs of forcible entry, based on the condition of the locks and the presence of gouges in the wood frames around the locks.

On cross-examination, Anderson conceded that because the tape was in black and white, he could not ascertain what color the bags were. In addition, because the video did not show the interior of the offices, it did not show Cleveland removing the microscopes.

Bob Giovannoni, the manager of environmental services at the hospital at the relevant time, testified that on the night of the burglary, Cleveland was working a shift from 2:30 p.m. to 11:00 p.m., but was not assigned to clean the pathology department. He also testified that the hospital used clear garbage bags for regular waste and red bags for biohazardous waste.

After Cleveland's arrest, the police told him they had recovered a surveillance tape. Cleveland then stated that all of the office doors were unlocked and admitted that he had carried out four red plastic bags from the pathology department. The police searched Cleveland as well as his house and his car, but never recovered the microscopes.

Cleveland's first attorney was David Wiener, who did not view the videotape because he did not have the proper equipment to play a time-lapse recording. According to Wiener, one week before trial, the State told him it did not intend to use the tape at trial because it had not yet found a machine that could play it. Wiener did not represent Cleveland at trial due to a scheduling conflict. Instead, attorney Michael Oppenheimer represented Cleveland at trial. The State located a suitable videotape player shortly before trial and Oppenheimer was able to view the videotape before Cleveland's trial started.

After a bench trial where the State presented, among other things, the videotape, the court found Cleveland guilty. Because Cleveland was a Class X offender due to his prior convictions, he was subject to a sentence of six to thirty years of imprisonment. The trial court sentenced Cleveland to a 15-year term of imprisonment.

It also conducted a hearing on whether counsels' performance was deficient to the extent that Cleveland's arguments were based on the trial court record. Specifically, it held that Weiner could not be faulted for his failure to view the tape prior to trial because: (1) the State told him it did not plan to introduce the tape into evidence; and (2) Cleveland could not have been prejudiced because Weiner did not represent him at trial. It similarly found that the timing of Oppenheimer's viewing of the tape was reasonable since he viewed it as soon as a suitable tape player was located and that Cleveland had not established that he was prejudiced by the timing of the viewing of the tape.

B. Direct Appeal

Cleveland appealed and his counsel sought leave to withdraw. Cleveland opposed the motion to withdraw. The state appellate court granted counsel's motion to withdraw and affirmed the circuit court's judgment of conviction and sentence. In its order, among other things, it found that Cleveland's fifteen-year sentence was neither excessive nor void based on the alleged failure to admonish him about the possibility of an extended sentence.

Cleveland filed a pro se petition for leave to appeal ("PLA"), arguing that: (1) numerous witnesses presented perjured testimony at trial; (2) his attorney failed to show sufficient interest in his case; (3) the trial court was biased against him and made derogatory remarks that were improperly excised from the trial transcript; (4) his attorney improperly failed to obtain evidence showing how much the microscopes weighed; and (5) his attorney did not adequately communicate with him before trial. On November 12, 2007, the Illinois Supreme Court denied Cleveland's PLA.

C. State Post-Conviction Proceedings

On January 31, 2008, Cleveland filed a state post-conviction petition, which was denied. The respondent has provided this court with a copy of the state court docket for this proceeding. The docket does not indicate that Cleveland appealed this decision.

D. Federal Habeas Proceedings

On June 30, 2008, Cleveland filed a timely federal habeas petition pursuant to 28 U.S.C. § 2254. In his first claim, Cleveland argues that trial counsel (Weiner and Oppenheimer) were ineffective because Oppenheimer told him that the State was seeking a sentence of three to seven years. In his second claim, Cleveland asserts that the Illinois Appellate Court (a) erred when it allowed his appellate counsel for his direct appeal to withdraw; and (b) when ruling on the motion for leave to withdraw, erroneously stated that Cleveland had been tried before a jury. According to Cleveland, this alleged error means that the court mixed his appeal up with another case.

In his third claim, Cleveland contends that his 15-year sentence is void as a matter of law because the court told him before trial that he faced a sentence of three to seven years. Finally, in his fourth claim, entitled "Excessive Sentence," he lists numerous issues: (a) the trial court did not advise him at an unspecified time about his three-year term of mandatory supervised release ("MSR"); (b) the State violated his due process rights by withholding the videotape until shortly before trial; (c) the evidence against him was insufficient to support a guilty finding; and (d) ...


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