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United States ex rel Cebertowicz v. Robert

January 30, 2009

UNITED STATES OF AMERICA EX REL. KENNETH CEBERTOWICZ, PETITIONER,
v.
BRADLEY J. ROBERT, WARDEN CENTRALIA CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Petitioner Kenneth Cebertowicz ("Petitioner" or "Cebertowicz"), an Illinois state prisoner, has filed a pro se writ of habeas corpus [1, 11]*fn1 pursuant to 28 U.S.C. § 2254 claiming that he is being held in custody in violation of the Constitution of the United States.*fn2 The petition has been fully briefed. For the following reasons, the petition is denied.

I. Background

A. Factual Background

District Court review of a habeas petition presumes all factual findings of the state court to be correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). The petitioner has failed to provide such evidence, and thus the Court largely adopts the following account from the Illinois Appellate Court's Rule 23 Order on direct appeal in People v. Cebertowicz, No. 3-95-0124 (Ill. App. Ct. 1997) and the Circuit Court of Will County's Order granting the State's motion to dismiss the second amended post-conviction petition. See Ex. D to Ans; Ex. U to Ans.*fn3

Following a jury trial, Cebertowicz was convicted of first degree murder and aggravated discharge of a firearm based on the shooting death of his wife, Victoria Cebertowicz ("Vicki"). Rule 23 order, Ex. D to Ans., at 1. He was sentenced to imprisonment for consecutive terms of fifty years and four years, respectively. Id. This sentence was later modified on appeal to run concurrently. Appellate Court Order, People v. Cebertowicz, No. 3-98-0776, Ex. N to Ans., at 2.

The shooting took place during the early morning hours of December 14, 1993. Ex. D at 2. Cebertowicz testified that he was at home that night, waiting for his wife to return from a job interview at the Dollhouse. Id. Vicki had recently been fired from her position as a dancer at Heavenly Bodies for alleged prostitution. Id. Though she denied the allegation, Cebertowicz suspected that it might be true. Id. Approximately a week prior to the shooting he began taping her phone conversations. Id. That evening, while his wife was out of the house, Cebertowicz searched through her duffel bag, where he found condoms and sexually explicit photographs. Id. He testified that he became enraged because he and his wife did not use condoms since she had undergone a tubal ligation. Id. When Vicki returned home, Cebertowicz asked her if she was a prostitute and she again denied the allegation. Id. Cebertowicz then led her into the bedroom, where he confronted her with the condoms and photographs he had found. Id. At that point, Vicki admitted to being a prostitute. Id.

Cebertowicz and Vicki returned to the living room and continued arguing. Ex. D at 3. Cebertowicz was sitting in a chair with his gun lying on a table next to him. Id. He testified that Vicki stated that she might as well commit suicide, and that he agreed. Id. He threw Vicki some paper and instructed her to write a suicide note. Id. Unsatisfied with the first draft, he made her write another. Id. Cebertowicz testified that at this point the argument had continued for a half hour to an hour, and that he had grown tired of it. Id. He picked up his gun and started to go to bed. Id. He then called Vicki a "whore," and she kicked him in the groin. Id. Cebertowicz testified that he "tensed up" in response to the kick, and that the gun went off and a bullet struck a picture on the wall. Id. At this point Vicki was on her knees in front of Cebertowicz. Id. He then struck her in the head with the muzzle of the gun, and a bullet discharged and lodged in her head. Id.

Immediately after the shooting, Cebertowicz removed the clip from the gun and a bullet from the chamber and placed the gun on the floor in a "locked-back" position. Ex. D at 3. He attempted to stop Vicki's bleeding by placing his hand on her wound, but was unsuccessful. Id. at 4. He picked up the suicide notes she had written and put them in his gun case, and put the case in the bedroom. Id. Cebertowicz then called 911. Id. Afterwards, he went to the garage to find an EMT kit. Id. In the search process he dripped blood on several ammunition cans that were located in the garage. Id. Unable to locate the EMT kit in the garage, he went outside to get one from his car. Id. At this point, the police arrived. Id. An officer accompanied him back inside the house, and Cebertowicz placed a compression bandage on Vicki's wound. Id. Cebertowicz was then placed under arrest for his wife's shooting. Id.

B. Procedural Background

Following his conviction by a jury in the Circuit Court of Will County, Cebertowicz filed a timely appeal claiming: (1) the trial court erred in refusing to tender a second degree murder instruction to the jury; (2) the State failed to prove beyond a reasonable doubt that he committed the offense of aggravated discharge of a firearm; (3) the trial court erred in admitting into evidence the contents of certain ammunition cans found in the garage; (4) he was denied the right to a fair trial when the prosecutor called him a "freaking animal" during the opening statement; and (5) his fifty year sentence for first degree murder is excessive. Petitioner's Brief on Appeal, Ex. A to Ans. The Illinois Appellate Court, Third District, affirmed his conviction on May 2, 1997. Ex. D to Ans.

Thereafter, Cebertowicz filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court. PLA, Ex. E to Ans. In his PLA, he raised one issue: whether the appellate court erred in refusing his request to reverse the trial court's decision not to tender a jury instruction on second degree murder. The Illinois Supreme Court denied the PLA on October 1, 1997. Denial of PLA, Ex. F to Ans.

On January 20, 1998, Cebertowicz filed a first post-conviction petition through his appellate attorney, Thomas Moore. Post-conviction petition, Ex. G to Ans. The petition asserted that trial counsel was ineffective for failing to present mitigation witnesses at sentencing, and for failing to inform Cebertowicz of the possibility of consecutive sentences for his two convictions. Id. On July 15, 1998 the Circuit Court of Will County dismissed the post-conviction petition without an evidentiary hearing following the State's motion. Order dismissing post-conviction petition, Ex. J to Ans. Cebertowicz then appealed to the Illinois Appellate Court, Third District, claiming that:

(1) his consecutive sentences should be modified to run concurrently; and (2) that the trial court erred in dismissing the defendant's post-conviction petition without an evidentiary hearing. Petitioner's brief on appeal, Ex. K to Ans. On May 24, 2000, the appellate court affirmed the circuit court's dismissal of the post-conviction petition, but modified the sentences to run concurrently. Appellate court order, Ex. N to Ans., at 2.

On June 28, 2000, Cebertowicz filed a PLA to the Illinois Supreme Court claiming that the appellate court erred when it affirmed the trial court's dismissal of his post-conviction petition without an evidentiary hearing. Petitioner's PLA, Ex. O to Ans. at 4. The Illinois Supreme Court denied the PLA on October 4, 2000. Order denying PLA, Ex. P to Ans.

On November 6, 2000 Cebertowicz filed a pro se second post-conviction petition in the Circuit Court of Will County in which he presented eleven claims: (1) he was denied the effective assistance of trial and appellate counsel and subjected to double jeopardy when the trial court imposed consecutive sentences; (2) he was denied the effective assistance of trial and appellate counsel and subjected to double jeopardy when the trial court failed to vacate one of the two murder convictions; (3) he was denied the effective assistance of trial and appellate counsel and due process of law because the Illinois second degree murder statute is unconstitutionally vague; (4) he was denied the effective assistance of trial and appellate counsel when trial counsel failed to provide a recognized defense under the law, and appellate counsel failed to raise this issue on direct appeal; (5) he was denied the effective assistance of trial and appellate counsel where trial counsel failed to discuss the desirability of accepting the State's thirty year plea offer and gave petitioner erroneous advice, and appellate counsel failed to raise the issue on direct appeal; (6) he was denied the effective assistance of trial and appellate counsel where the trial court failed to suppress his pre-trial statements, and appellate counsel failed to raise the issue on petitioner's direct appeal; (7) he was denied the effective assistance of trial and appellate counsel where the prosecutor engaged in misconduct by showing a picture to the jury that was prejudicial and not entered into evidence; (8) he was denied the effective assistance of trial and appellate counsel when trial and appellate failed to raise the constitutionality of the first degree murder statue as confusing or vague with respect to sentencing; (9) he was denied the effective assistance of trial and appellate counsel where evidence was relied upon during petitioner's sentencing hearing that was not charged in his indictment or proved beyond a reasonable doubt and neither trial nor appellate counsel raised the issue; (10) he was denied the effective assistance of trial and appellate counsel because of the cumulative effects of the errors; (11) he was denied the effective assistance of appellate counsel where appellate counsel advised him to only raise one issue in his PLA to the Illinois Supreme Court. Pro se seconded post-conviction petition, Ex. Q to Ans., at 1-15. The circuit court appointed Cebertowicz counsel, who then filed an amended second post-conviction petition raising the same eleven issues in the pro se petition on May 8, 2001. Amended second post-conviction petition, Ex. R to Ans. Following a hearing involving testimony from both Cebertowicz and his trial counsel, Joseph Polito (Transcript of hearing on second amended post-conviction petition, Ex. T to Ans.), the circuit court granted the State's motion (Motion to dismiss second amended post-conviction petition, Ex. S to Ans.) to dismiss the petition. Order granting State's motion to dismiss second amended post-conviction petition, Ex. U to Ans. The circuit court denied Cebertowicz's petition for rehearing on January 13, 2004. Order denying motion to reconsider State's motion to dismiss second amended post-conviction petition, Ex. V to Ans. Cebertowicz filed a pro se habeas corpus petition in United States District Court while his state actions were still proceeding. On March 1, 2001, the district court summarily dismissed the petition without prejudice for failure to exhaust state remedies and with leave to reinstate within 60 days after termination of the state court proceedings.

Cebertowicz appealed the Circuit Court of Will County's dismissal of his amended second post-conviction petition and the Office of the State Appellate Defender filed a motion to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). Motion to withdraw as counsel, Ex. W to Ans. The Illinois Appellate Court granted the motion and affirmed the decision of the Circuit Court. Order granting motion to withdraw and affirming case, Ex. X to Ans. Cebertowicz then filed a third PLA to the Illinois Supreme Court raising the same eleven issues from the second amended post-conviction petition. Petitioner's PLA, Exhibit Y to Ans. The Illinois Supreme Court denied petitioner's PLA on December 1, 2005. Order denying PLA, Exhibit Z to Ans.

On December 29, 2005, Cebertowicz filed a motion to reinstate his federal habeas petition, which was granted on January 10, 2006.*fn4 This present petition claims that: (1) the trial court erred when it refused to render jury instructions on second degree murder; (2) the evidence was insufficient to support the charge of aggravated discharge of a firearm; (3) the admission of ammunition cans into evidence was error; (4) the prosecutor committed error when he referred to petitioner as a "freaking animal" in his opening statement; (5) he was denied the effective assistance of trial and appellate counsel and he was subjected to double jeopardy when the trial court imposed consecutive sentences; (6) he was denied the effective assistance of trial and appellate counsel and was subjected to double jeopardy when the trial court failed to vacate one of his two murder convictions; (7) he was denied the effective assistance of trial and appellate counsel where the Illinois second degree murder statute is unconstitutionally vague; (8) he was denied the effective assistance of trial and appellate counsel where trial counsel failed to provide a recognized defense, and appellate counsel failed to raise the issue on direct appeal; (9) he was denied the effective assistance of trial and appellate counsel where trial counsel failed to discuss the desirability of accepting the State's thirty year plea offer and gave him erroneous advice, and appellate counsel failed to raise the issue on direct appeal; (10) he was denied the effective assistance of trial and appellate counsel where the trial court failed to suppress his pre-trial statement, and appellate counsel failed to raise the issue on direct appeal; (11) he was denied the effective assistance of trial and appellate counsel where the prosecutor engaged in misconduct by showing a prejudicial picture to the jury, and appellate counsel did not raise the issue on direct appeal; (12) he was denied the effective assistance of trial and appellate counsel and due process of law when trial and appellate counsel failed to raise the constitutionality of the first degree murder statue as confusing and vague; (13) he was denied the effective assistance of trial and appellate counsel where evidence was relied upon during his sentencing hearing that was not charged in the indictment or proved beyond a reasonable doubt and both trial and appellate counsel failed to raise the issue; (14) he was denied the effective assistance of trial and appellate counsel due to the cumulative effect of these errors; (15) he was denied the effective assistance of trial and appellate counsel when counsel told him to raise only one issue in his PLA from his direct appeal, thus barring him from raising those issues in federal court.

The State filed an answer to petitioner's complaint on February 15, 2006 [14]. Cebertowicz filed a first traverse (which the court takes as a response) to the answer on April 4, 2006 [16] and a ...


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