Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United State ex rel Penny v. DeTella

May 11, 2009

UNITED STATE OF AMERICA EX REL. MICHAEL PENNY, PETITIONER,
v.
GEORGE DETELLA, WARDEN RESPONDENT.



The opinion of the court was delivered by: Marvin E. Aspen, District Judge

MEMORANDUM ORDER AND OPINION

Michael Penny, a prisoner at Menard Correctional Center in Menard, Illinois, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent now moves to dismiss Penny's petition as untimely. For the reasons set forth below, we grant the Respondent's motion to dismiss.

BACKGROUND AND PROCEDURAL HISTORY

We begin with a detailed recitation of both the factual background and lengthy procedural history relating to Penny's detention.

I. Warrant and Search

On August 16, 1990, ten to fifteen Chicago police officers searched Petitioner Michael Penny's home pursuant to a warrant obtained the previous evening. (Ex. D. at 1-2, 5.)*fn1 The warrant stated that an unidentified informant told Officer Terrence Shields he purchased a half ounce of cocaine from Penny on August 15th, 1990, and that Penny retrieved the cocaine from a safe in his bedroom. (Id. at 5.)

When the officers arrived to execute the warrant, they first knocked at the front door and announced their presence. (Id. at 1-2). About a minute later, having received no response, the officers broke down the door with a battering ram, and entered the home, where they found Penny lying in a bedroom. (Id. at 2.) They directed him to show his hands, get out of bed, and walk towards Officer Shields. Penny, dressed only in underwear, asked for his clothes and pointed to a shirt near his bed. (Id.) Officer Shields picked up the shirt, and found several plastic bags containing white powder: four "pony packs" containing a total of 0.2 grams of heroin and a separate bag containing 0.24 grams of cocaine. (Id.) Another officer, Richard Sanchez, lifted the mattress from the box spring bed and found a fully loaded semi-automatic pistol located directly underneath where Penny had been lying. (Id.) In searching the rest of the house, the officers also located a gym bag containing four more plastic bags, holding a total of 0.2 grams of heroin. (Id. at 2-3.) In the kitchen, they found two active pagers, a triple-beam Ohaus scale, a canister of mannitol, strainers, measuring spoons, a grinder, and a tablet of "pony packs" similar to those found in Penny's shirt. (Id. at 3). Cocaine was also found inside a plastic bag recovered from a basement bathroom closet. (Id.)

II. Trial and Sentencing

Penny was charged with possession of a controlled substance, cocaine, with intent to deliver; possession of a controlled substance, heroin, with intent to deliver; and armed violence. (Id. at 16).

In 1993, Penny was tried in the Circuit Court of Cook County, Illinois. The trial judge, who had previously issued the warrant, denied Penny's pre-trial motion requesting a hearing on the validity of the warrant. (Ex. A at 2.) Defense counsel, Chester Slaughter, learned prior to trial that Officer Shields, who had obtained the warrant based on an unidentified informant's statement, had been suspended from the police force for 15 months for false reporting, relating to his concealing another officer's misconduct. (Ex. O, at App. C.) Slaughter raised this issue with the prosecutor and trial court, but quickly conceded that the facts of the false reporting incident were not relevant, and the trial court granted the State's motion to exclude the evidence.*fn2 (Id.) At trial, an expert police witness, Thurmond Royster, offered detailed testimony that each of the recovered items -- including two beepers, a triple beam Ohaus scale, a canister of mannitol, measuring spoons, strainers, a coffee grinder, and a tablet of "pony packs," and the handgun -- were typically used in drug sales operations. (Ex. B at 12-13.)

In support of Penny's contention that he did not have knowing control over the entirety of the premises, and thus did not know about or actually possess all of those items, two witnesses testified to living at the residence with Penny at the time. Penny's girlfriend, Tammy Brown, testified that she and her four-year-old son lived at the residence with Penny and Donnell Logan in August 2006. (Ex. D at 10.) To support this testimony, Brown reached into her purse and began to pull out receipts purporting to show her purchases of a television and range delivered to Penny's residence in March 1990. (Id. at 10-11.) The State objected to the introduction of the documentary evidence, which had not been produced by defense counsel, Mr. Slaughter, during discovery. (Id. at 11.) Defense counsel explained he had not intended to offer the evidence, which the trial judge then excluded, instructing the jury to disregard Brown's testimony about the receipts. (Id.) On the stand, Brown also offered explanations for the acquisition of several of the items recovered from the kitchen. (Id. at 14).

Donnell Logan testified that he also resided at the house, and that he owned the gym bag inside of which the police found four plastic bags containing .2 grams of heroin. (Ex. A at 6-7; Ex. B at 20). However, Logan testified that the heroin the police recovered in the gym bag was packaged differently than the heroin that he had kept in the bag. (Ex. A at 6-7; Ex. B at 20). Logan also testified that he owned the gun that was recovered by Officer Sanchez. (Ex. A at 6-7; Ex. B at 20-21, 45.) He testified that he stored the gun in a box inside the closet, though the State offered rebuttal testimony that Logan had previously claimed outside of court that the gun was kept inside the gym bag with the heroin. (Ex. B at 20-21.)

Based on the evidence, on April 30, 1993, a jury convicted Penny of armed violence; possession of a controlled substance, heroin, with intent to deliver; and possession of a controlled substance, cocaine, with intent to deliver. (Ex. H at 1.) The armed violence conviction was Penny's third class X felony, and as a result he was adjudged an habitual criminal under the Illinois Habitual Criminal Act and was sentenced to natural life in prison, with a concurrent 14-year term for possession of cocaine with intent to deliver. (Ex. D at 1, 3-4, 17-18.) Prior to sentencing, defense counsel, as a supplement to a motion for a new trial, requested a hearing on possible jury misconduct. (Ex. R. App. A-5.) Mr. Slaughter told the court he received a phone call from a juror, who claimed that the foreman and other jurors coerced her to sign the guilty verdict. (Id.) The trial court denied the motion, pointing to the lack of an affidavit from the juror and the fact that claim reflected only on the methods of deliberation within the jury room and not coercion or improper communication from the outside. (Id. at 6-7.)

III. Direct Appeal

Penny appealed his conviction and sentence to the Illinois Appellate Court, claiming (1) that the trial court erred in declining to conduct a hearing regarding whether the search warrant that led to the discovery of narcotics in his home had been obtained through the use of false information, pursuant to Franks v. Delaware, 438 U.S. 154, 155, 98 S.Ct. 2674, 2676 (1978); (2) that he was not proven guilty beyond a reasonable doubt; (3) that the trial court erred when it refused to admit documentary evidence in support of his ex-girlfriend's testimony that she shared his home; (4) that the trial court erred by admitting expert testimony about the conduct of drug dealers; (5) that the trial court failed to conduct a hearing on allegations of possible jury misconduct; and (6) that his sentence as an habitual criminal constituted "double enhancement" not intended by the Illinois legislature. (Ex. A at 1.)

On March 29, 1996, the Illinois Appellate Court affirmed the convictions and sentences. (Ex. D.) Penny then filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court, continuing to assert all the claims presented before the appellate court except for the claim that the trial court failed to conduct a hearing on allegations of possible jury ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.