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United States ex rel Miller v. Sims

April 17, 2009

UNITED STATES OF AMERICA EX REL. ROBERT MILLER PETITIONER,
v.
GREG SIMS, WARDEN RESPONDENT.



The opinion of the court was delivered by: Wayne R. Andersen United States District Judge

Wayne R. Andersen District Judge

MEMORANDUM OPINION AND ORDER

This case is before the court on the petition of Robert Miller ("Miller") for habeas corpus relief pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition for habeas corpus is denied.

BACKGROUND

Following a bench trial in 2002, the Circuit Court of Cook County found petitioner Robert Miller guilty of residential burglary and possession of burglary tools. Rule 23 Order, People v. Miller, No. 1-02-0504 (1st Dist. Dec. 8, 2003). He was sentenced to 18 years in prison. Id. Miller appealed and the Illinois Appellate Court affirmed the Circuit Court's decision. Id. The Illinois Supreme Court subsequently denied Miller's Petition for Leave to Appeal (PLA). People v. Miller, 209 Ill.2d 594, 813 N.E.2d 226 (2004).

Miller then filed a pro se petition for post-conviction relief in the Circuit Court of Cook County. Order Dismissing Pet. for Post-Conviction Relief, People v. Miller, No. 00-C-220576 (Cook Cty. Cir. Ct. Jan. 24, 2005). This petition was dismissed by the Circuit Court on January 24, 2006. Id. The Illinois Appellate Court affirmed the dismissal of the petition for post-conviction relief on August 6, 2007. Rule 23 Order, People v. Miller, No. 1-05-0585 (1st Dist. Aug. 6, 2007). Finally, on November 29, 2007, the Illinois Supreme Court denied Miller's PLA. People v. Miller, 226 Ill.2d 600, 879 N.E.2d 936 (2007). Miller then filed the instant habeas petition on January 2, 2008.

Miller's petition for habeas corpus does not specifically challenge the statement of facts set forth in the order of the Illinois Appellate Court affirming the denial of his second post-conviction petition. Rule 23 Order, People v. Miller, No. 1-05-0585 (1st Dist. Aug. 6, 2007). For the purposes of federal habeas review, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e). Thus, we will adopt the facts of the Illinois Appellate Court decision as our own.

At trial, Jennifer Alexander testified that on October 8, 2000, at around 5:30 p.m. she saw movement on the back porch of a house located at 2205 Sherman Avenue in Evanston. Jennifer, who lived next door, knew that the owners, Chip Plumb and Mary Kay Conlon, were out of town and went with her husband, Richard Alexander, to investigate. When they arrived, Jennifer noticed that a wicker table was askew, a window was open, and there was a large hole cut in the screen. Jennifer yelled "[h]ello," and then after hearing no response shouted, "I am calling the police now." As she was closing the door to the porch, Jennifer heard someone screaming, saw defendant, tripped over a chair, and fell to the ground. From the ground, Jennifer saw defendant run past her, screaming and waving his hands. Defendant, who was wearing dark clothes and a dark knit skull cap, ran for his bicycle, which was leaning against the house. Richard then caught defendant and struggled with him. Eventually, both men fell to the ground and defendant fled on foot. In the meantime, Jennifer had called the police. Shortly after the police arrived, Jennifer was standing on Plumb and Conlon's front porch when she saw defendant taken out of a squad car. She immediately identified defendant as the man who was in the Plumb-Conlon house.

Richard testified that when Jennifer first opened the door to the back porch, he did not notice anything unusual; however, after Jennifer shouted "hello," he noticed that a table was out of place and one of the screens had been cut. Then, Richard saw that the door to the remainder of the house was open and he and Jennifer said to each other, "Something is not right. Let's get out of here. Someone is in the house." Richard walked down the steps and proceeded to his back yard where he heard a scream or a yell and the door slamming. When he turned to see what was happening, Richard saw Jennifer falling down the stairs. He also saw defendant, who was wearing a black coat, dark jeans, and a wool night cap, walk down the steps, walk around the side of the house, and grab a bicycle. Richard approached defendant on the sidewalk between the houses as defendant was walking his bicycle by the handle bars. As defendant was trying to get his bicycle through a gate, Richard jumped towards him and struck defendant's bicycle. The impact caused both Richard and defendant to fall to the ground. Defendant then fled the scene on foot, leaving his bicycle and wool cap on the sidewalk. After 20 minutes later, the police brought Richard and Jennifer to the front porch of the Plumb-Conlon house for the express purpose of viewing a person they had in custody. From the front porch, Richard saw the police walking defendant around the front of a squad car and to the curb. Richard identified defendant as the person he saw come from the house.

Officer Lambeseder, an officer for the Evanston police department, testified that on October 8, 2000, at around 5:40 p.m. he responded to a radio message that there was a burglary in progress and the perpetrator was fleeing Westbound from the 21-2200 block of Sherman Avenue. The description of the suspect was that he was a short, black male wearing dark clothing. Officer Lambeseder parked his squad car a couple of blocks west of the location and waited. Fewer than 10 minutes later, Officer Lambeseder saw defendant sprinting between some houses. Defendant then came out onto the street, looking in Officer Lambeseder's direction, and started walking. Defendant fit the description of the suspect because he was short, black and wearing dark clothing. Officer Lambeseder stopped defendant, finding him out of breath and sweating. Later, Officer Lambeseder admitted that he did not include that defendant was out of breath or sweating in his supplemental report. Officer Lambeseder then handcuffed defendant, explained that he was being stopped for a burglary, and conducted a search. The search revealed that defendant had a small pry bar and two Swiss Army knives in his possession. Thereafter, Officer Lambeseder took defendant to the scene of the crime where the officer brought defendant out of the car for a show-up identification.

Officer Firth, an officer for the Evanston police department, testified that on October 8, 2000, at around 5:35 p.m., he responded to a radio message about a burglary at 2205 Sherman Avenue. While Officer Firth was at the scene, he noticed pry marks on a window frame on the back porch. He also noticed that the adjoining window was open and the screen had been cut. Further, when another officer brought defendant for a show-up identification, the Alexanders positively identified defendant as the man who was in the Plumb-Conlon house.

Defendant testified that on October 8, 2000, he worked for Velma Thomas from 8 or 9 a.m. until about 5:15 p.m. at 1310 Foster in Evanston. After work, defendant walked towards the el station located at the corner of Maple and Foster. Defendant was carrying a pry bar, a hammer, some nails, and a Swiss Army knife because he had been doing carpentry work for Thomas. On the way to the el station, defendant went down an alley where he saw some floor carpet that he wanted to get for Thomas. Defendant exited the alley, deciding to go back towards Thomas' house to see if he could get someone to help him with the carpet. Once on the street, a police officer approached defendant and took him into custody. Defendant never ran nor was he sweating or out of breath. The officer took defendant to 2205 Sherman where he put a hat on defendant, stood him outside a car, and turned him around to face the houses. Defendant denied every being in the area of the burglary, but admitted that he had a blue Rally two-speed bicycle locked up on the front porch of Thomas' house at the time of the incident. At the police station, defendant told Detective Carlos Mitchem that his bike was at 1310 Foster and that he was on his way to get the carpet.

Detective Mitchem testified that he spoke with defendant on October 8, 2000. Defendant did not mention anything about carpeting he found during their conversation. After speaking with defendant, Detective Mitchem went to Thomas' house, spoke with her, and saw a Rally bicycle chained to her front porch. Rule 23 Order, People v. Miller, No. 1-05-0585 (1st Dist. Aug. 6, 2007).

I. Direct Appeal

Based on these facts, the trial court found Miller guilty of residential burglary and possession of burglary tools. Miler filed a pro se Motion for a New Trial, alleging his trial counsel was ineffective for failing to file a motion to challenge the State's identification testimony. The trial court denied this motion, finding there was no basis to challenge either the arrest or show-up identification. Rule 23 Order, People v. Miller, No. 1-02-0504 (1st Dist. Dec. 8, 2003).

Miller appealed directly to the Illinois Appellate Court. He argued that the State failed to prove he was guilty beyond a reasonable doubt and that his trial counsel was ineffective for failing to suppress identification evidence. On December 8, 2003, the Appellate Court affirmed the guilty verdict of the trial court. Id. Miller then filed a PLA in the Illinois Supreme Court. Brief of Petitioner, People v. Miller, No. 98200 (April 12, 2004). Again, he alleged that his trial counsel was ineffective for failing to suppress identification evidence. The Illinois Supreme Court denied the PLA on May 26, 2004. People v. Miller, 209 Ill.2d 594, 813 N.E.2d 226 (2004).

II. Post-conviction Petition

On October 25, 2004, Miler filed a pro se petition for post-conviction relief in the Circuit Court of Cook County. The Circuit Court denied this petition because it "completely rehashe[d] [petitioner's] bench trial. He seeks to relitigate each and every fact that the State sought to introduce at trial. Nothing new is raised in the Petition. The evidence against the Defendant is overwhelming." Order Dismissing Pet. for Post-conviction Relief, People v. Miller, No. 00 C 220576 (Cook Cty. Cir. Ct. Jan. 24, 2005).

Miller appealed to the Illinois Appellate Court on three grounds. First, he argued that his trial and appellate counsel were ineffective for failing to call an alibi witness on his behalf. Second, he alleged that his trial and appellate counsel were ineffective for failing to investigate two exculpatory witnesses. Third, Miller claimed that his appellate counsel was ineffective for failing to raise on direct appeal the ineffective assistance of counsel claim concerning the failure to investigate two exculpatory witnesses.

The Illinois Appellate Court affirmed dismissal of Miller's petition for post-conviction relief. Rule 23 Order, People v. Miller, No. 1-05-0585 (1st Dist. Aug. 6, 2007). The Court held that Miller failed to satisfy the requirement under 725 ILCS 5/122-2, which provides that supporting affidavits, records, or other evidence must accompany a post-conviction petition and independently support the petitioner's claims for relief. Id., see 725 ILCS 5/122-2. Miller submitted no such documents. In addition, the Court held that appellate counsel's alleged failure to raise the ineffective assistance of counsel claim regarding Miller's trial counsel's failure to investigate two exculpatory witnesses was without merit because it did not prejudice Miller. Rule 23 Order, People v. Miller, No. 1-05-0585 (1st Dist. Aug. 6, 2007).

Accordingly, on August 20, 2007, Miller filed a PLA in the Illinois Supreme Court. Brief of Petitioner, People v. Miller, No. 1-0585 (Aug. 20, 2007). The petition set forth the same three claims previously raised in his post-conviction appeal to the Illinois Appellate Court. On November 29, 2007, the Illinois Supreme Court denied Miller's PLA. People v. Miller, 226 Ill.2d 600, 879 N.E.2d 936 (2007).

III. Miller's Section 2254 Habeas Corpus Petition

Miller then filed a petition for habeas corpus relief in this court pursuant to 28 U.S.C. § 2254. Miller's habeas petition includes twenty-one counts, as set forth below:

(1) Petitioner was denied a full and fair hearing when the trial court summarily dismissed his post-conviction petition without determining ...


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