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United States ex rel Clark v. Polk

March 30, 2009


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


Petitioner Richard Clark ("Clark"), an Illinois state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. [1, 23]. For the following reasons, his petition for a writ of habeas corpus is denied.

I. Background

Because Petitioner does not present clear and convincing evidence challenging the statement of facts set forth in the Illinois Appellate Court' s decision on direct appeal, the Court presumes that those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). The Court therefore adopts the following account from the Illinois Appellate Court' s Rule 23 Order on direct appeal affirming the judgment of the Circuit Court of Cook County.

A. Factual Background

Following a 2001 jury trial, Clark was convicted of theft by deception and sentenced to fourteen years imprisonment to be served consecutively to a seven-year sentence that Clark received in a separate case. Ans., Ex. A*fn1 (Rule 23 Order) at 1. Clark's conviction arose from a "pigeon drop" scheme through which Clark and an accomplice stole $5,000 from Wilborn Carlos ("Carlos"), a 75 year-old associate minister. Id. at 2. Carlos testified that on July 23, 1997, he encountered a man with an African accent, whom he later identified as Clark, while exiting Creative Mirror in Evergreen Park. Id. Clark requested Carlos'help in locating the African Methodist Church, saying that he had something to give to the church. Id. During that exchange, a stranger approached and offered to help the men find the church, suggesting that they go to the post office to obtain directions. Id. Carlos drove the two men to the post office, where the stranger entered the building and then exited it after failing to obtain any information about the church' s location. Id.

Afterwards, Clark told Carlos that Clark's relative was killed in a plane crash and that he had collected $150,000 in the settlement. Id. Clark said that he spent $50,000 to pay his attorney and he wanted to donate the remaining $100,000 to charity because he could not keep it for himself. Id. at 3. He told Carlos that he was from Africa and needed to return there, but if he did so with the money, he and his family would be killed. Clark then showed Carlos an envelope containing some money, allegedly $100,000 and a letter from the "airplane company" regarding the settlement. Id.

Clark then told Carlos that he wanted Carlos to take the money and donate it to a charity, but before he would give the money to Carlos, he needed to prove that he was an honest man. Id. In order to do so, Clark requested that Carlos withdraw funds from his own account and add them to the envelope, which Carlos agreed to do. Id. The stranger also agreed to withdraw a similar amount of money, returning from the bank with an envelope with $6,000 written on it.

Id. The three men then proceeded to Carlos'bank which was closed. Id. The stranger then mentioned that there was another branch of the bank that was open that day and Carlos drove to that location. Id. Clark told Carlos to withdraw fifty $100 bills. Carlos entered the bank and wrote out a check to cash, dated July 23, 1997, for $5,000. Id. at 4. Carlos cashed the check and received an envelope containing $5,000. Id. Carlos then drove the two men to the location where they first met. Id. They combined all of the money into a blue handkerchief. Id. The stranger then recommended that the three men pray over the money. Id. Carlos closed his eyes and the three men proceeded to pray over the handkerchief. Id. Thereafter, Clark gave Carlos the envelope in the blue handkerchief and left, telling Carlos he was returning to Africa and needed to catch a flight at O'

Hare. Id.

Carlos drove back to the bank to redeposit the money. Id. When Carlos retrieved the blue handkerchief from the trunk of the car he discovered that it only contained scraps of paper cut into strips and no money. Id. Carlos returned to the place where he initially met Clark and the stranger but there was no trace of either man. Id. Carlos then went immediately to the Evergreen Park Police Department to fill out a report. Id. Detective Daniel Envoy ("Envoy"), of the Evergreen Park Police Department, testified that he met Carlos on July 23, 1997, when Carlos came in to report the incident. Envoy testified that the next day, Carlos returned to the Evergreen Park Police Department and asked him to examine Carlos'vehicle for fingerprints that Clark may have left behind. Id. at 4-5. A print was successfully lifted from the right rear door of Carlos'vehicle and submitted to the State Police Crime Lab. Id. Analysis of the fingerprint identified it as belonging to Richard Clark. Id. Subsequently, Envoy obtained a photograph of Clark and placed it in a photo line-up to be presented to Carlos, who immediately identified the photo of Clark. Id.

B. Procedural History

Clark was tried and convicted of theft by deception on March 24, 1999. Id. at 1. Clark was sentenced to fourteen years imprisonment, to run consecutively to a seven-year sentence imposed in a separate case. Id. On April 19, 1999, Assistant Public Defender Darlene Williams filed a post-trial motion alleging that several errors had occurred during trial. Id. at 5-6. On that day, Clark indicated to the court that he no longer wished to be represented by Williams, as he believed that he had received ineffective assistance of counsel. Id. at 6. Clark also indicated that he had filed a complaint with the Attorney Registration and Disciplinary Commission ("ARDC"), alleging that Williams sabotaged his defense. Id. The trial court granted Williams' request for leave to withdraw and stated that a member of the private bar would be appointed to represent Clark on the next court date in order to avoid a conflict of interest as a result of the ARDC complaint. Id. However, on the next court date, after reviewing the relevant case law regarding conflicts of interest between a public defender and a defendant, the trial court ordered Williams' supervisor to appoint another public defender from outside the district to represent Clark. Id. Assistant Public Defender Deborah Niesen was appointed to represent Clark in post-trial proceedings. Id.

On direct appeal, Clark argued that defense counsel had provided ineffective assistance of counsel for failing to fulfill the promise she made in her opening statement that she would present evidence, in the form of Carlos' bank records, and testimony from an employee of the bank that the victim withdrew the money a day after he reported the incident to the police. Id. at 6-7. The Illinois Appellate Court found that Clark had misrepresented defense counsel's opening statement and that the defense counsel did not tell the jury that the "bank lady" would prove that Carlos was lying or would testify that the check was cashed on July 24, 1997. Id. at 7-8. The Appellate Court held that Clark had failed to prove that defense counsel's failure to call the bank employee to testify and failure to introduce evidence was not sound trial strategy and outside the range of reasonable professional assistance. Id. at 8-10. The Appellate Court further held that Clark failed to show that he was prejudiced by these decisions as required by the Strickland standard. Id. On May 2, 2002, the Appellate Court affirmed Clark's conviction and sentence. Id. at 15. Clark filed a petition for rehearing, which was denied on May 31, 2002. Ex. E (PLA) at 2.

Clark then filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court claiming that he was wrongly convicted of theft by deception because both the trial court and the Appellate Court confused deception creating an opportunity for theft with the distinct offense of theft by deception, given that the State never alleged and no evidence hinted that Clark induced Carlos to hand over money to him. Id. at 3. Clark did not raise the ineffective assistance of counsel claim. Id. On October 24, 2002, the Illinois Supreme Court denied the PLA. Ex. F (Order) at 1.

Clark filed a petition for post-conviction relief on August 6, 2003 claiming that (1) trial counsel was ineffective for failing to impeach Carlos' testimony, failing to introduce evidence, and failing to argue this issue in his motion for a new trial; and (2) he was denied due process by the State' s failure to disclose favorable evidence and by the prosecution' s knowing use of perjured testimony. Ex. G at 2. In three subsequent filings, he also raised issues relating to his sentence, including an Apprendi violation. See Amended petition for post-conviction relief, Ex. H; Supplement to petition for post-conviction relief, Ex. I; Revised supplement to petition for post-conviction, Ex. J. The State moved to dismiss the petition, arguing that Clark's claims were meritless or barred by the doctrines of waiver or res judicata. Ex. K at 2. On August 24, 2004, the Circuit Court dismissed the petition, finding that there were no constitutional issues raised in the post-conviction petition that had not been previously addressed and decided by the courts that would justify the relief sought by Clark. Ex. M (Trans.) at 38.

Clark appealed the Circuit Court' s dismissal order, arguing (among other things) that his trial counsel was ineffective for failing to impeach Carlos' testimony with the police report compiled on the day of the incident. Ex. N (Pet. PC Br.) at 2. Clark filed a motion for leave to file a pro se supplemental brief to raise the additional claims of (1) ineffective assistance of trial counsel for failure to introduce exculpatory bank records; and (2) violation of his right to due process by allowing the State to use perjured testimony to obtain Clark' s conviction. Ex. O (Motion for Leave to File pro se Supp.). Clark's motion was denied by the Illinois Appellate Court, First District, on February 8, 2006. Ex. Q (Order denying leave) at 1. On May 31, 2006, the Illinois Appellate Court affirmed the Circuit Court' s dismissal of Clark's post-conviction petition. Ex. R (People v. Clark, No. 1-05-0076, (Ill. App. Ct. May 31, 2006)) at 15. The Appellate Court held that Clark' s claim of ineffective assistance of trial counsel was forfeited because it could have been raised on direct appeal but was not. Id. at 9. Furthermore, the Appellate Court found that the ineffective assistance claim would have failed on the merits because Clark did not establish that he had suffered any prejudice as a result of trial counsel's actions, as required by the Strickland standard. Id. at 9-11.

Clark filed a pro se PLA to the Illinois Supreme Court renewing his claim of ineffective assistance of trial counsel for failure to introduce exculpatory evidence regarding Carlos'bank records, failing to contest the State' s use of perjured testimony, and failing to impeach Carlos' testimony. Ex. S (PLA) at 7. Clark also argued that he was denied the effective assistance of post-trial counsel and appellate counsel and that the State' s closing arguments at trial were ...

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