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United States ex rel Belcher v. Gilson

July 10, 2009

UNITED STATES OF AMERICA EX. REL., ALBERT BELCHER PETITIONER,
v.
KEVIN GILSON,*FN1 WARDEN, WESTERN ILLINOIS CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge

Judge Joan H. Lefkow

MEMORANDUM OPINION AND ORDER

Albert Belcher ("Belcher"), who is currently incarcerated at Logan Correctional Center in Lincoln, Illinois,*fn2 has filed a pro se petition for writ of habeas corpus based on alleged violations of his rights under the Sixth and Fourteenth Amendments. Belcher asserts four grounds for relief: (1) ineffective assistance of trial counsel; (2) prosecutorial misconduct; (3) the trial court's refusal to grant credit for time served in a day reporting program; and (4) the trial court's failure to determine whether Belcher's confinement in that program was custodial. In his answer [Docket No. 24], Kevin Gilson ("respondent") requests that the court deny Belcher's petition. For the reasons stated below, the petition for writ of habeas corpus is denied.

FACTUAL BACKGROUND

A. The Procedural History of Belcher's Claims in State Court

On October 19, 2004, a jury in the circuit court of Cook County convicted Belcher of possession of a controlled substance with intent to deliver. The circuit court sentenced Belcher to 12 years' imprisonment. See People v. Belcher, No. 1-04-3106, slip op. at 5 (Ill. App. Ct. May 3, 2006), referred to hereinafter as "Ill. App. Slip Op."

Belcher appealed his conviction to the Illinois Appellate Court, raising four arguments. First, Belcher initially argued that his conviction should be reversed and the case remanded for retrial "because the record [did] not affirmatively show that his counsel [had] discussed the legal consequences of the stipulation regarding the chain of custody and chemical composition of the recovered substance or that he [had] waived his constitutional right to confrontation." Id. at 6. In his reply brief, Belcher conceded and the appellate court agreed that this argument was untenable in light of the Illinois Supreme Court's opinion in People v. Phillips, 840 N.E.2d 1194, 217 Ill. 2d 270, 298 Ill. Dec. 759 (2005), decided while his appeal was pending.*fn3

Second, Belcher argued that his conviction should be reversed and his case remanded for a new trial because the prosecutor made several improper remarks during closing argument that had the effect of denying him a fair trial. Belcher acknowledged that he failed to properly preserve this issue by objecting to the remarks at trial and filing a post-trial motion, which the appellate court considered to be a waiver under Illinois law. Ill. App. Slip Op. at 6 (citing People v. Enoch, 522 N.E.2d 1124, 1129-30, 122 Ill. 2d. 176, 119 Ill. Dec. 265 (1988) ("[T]he failure to raise an issue in a written motion for a new trial results in a waiver of that issue on appeal.") (collecting cases)). The appellate court then addressed Belcher's invocation of the plain-error rule, which allows Illinois courts "to review alleged errors not properly preserved when (1) the evidence in a criminal case is closely balanced, or (2) the error is so fundamental, and of such magnitude, that the accused is denied the right to a fair trial and remedying the error is necessary to preserve the integrity of the judicial process." People v. Hudson, 886 N.E.2d 964, 970, 228 Ill. 2d 181, 319 Ill. Dec. 840 (2008). The appellate court considered the statements on which Belcher relied to support his claim and found that no prosecutorial misconduct, and consequently, no plain-error had occurred.

The last two issues Belcher raised on appeal concerned the trial court's refusal to give him credit for the time he spent at the Cook County Day Reporting Program ("CCDRP").*fn4

Belcher argued that this decision was erroneous, or, alternatively, that the trial court was required to hold an evidentiary hearing on the issue before denying him credit. The appellate court ruled that under People v. Martin, 829 N.E.2d 834, 842, 357 Ill. App. 3d 663, 673 (Ill. App. Ct. 2005), time spent by a defendant in a day reporting program, such as the CCDRP, did not constitute "custody" within the meaning of the credit-against-sentence provision of the Illinois Unified Code of Corrections ("Code"), codified at 730 Ill. Comp. Stat. 5/5-8-7(b).*fn5 In doing so, the appellate court rejected Belcher's contention that Martin was no longer good law in light of the Illinois Supreme Court's decision in People v. Campa, 840 N.E.2d 1157, 1165, 217 Ill. 2d 243, 298 Ill. Dec. 722 (2005), which held that participation in a day reporting program constituted custody within the meaning of the speedy-trial provision contained in the Illinois Code of Criminal Procedure ("CCP"), codified at 725 Ill. Comp. Stat. 5/103-5(a),(b).*fn6 Ill. App. Slip Op. at 13. Because the appellate court determined that Belcher was not entitled to a credit as a matter of law, it rejected his alternative argument that the trial court erred when it declined to hold an evidentiary hearing to determine whether Belcher's participation in the CCDRP constituted custody. Accordingly, the appellate court affirmed Belcher's conviction on May 3, 2006.

Belcher thereafter filed a petition for leave to appeal to the Illinois Supreme Court. Docket No. 15, Ex. E. Belcher requested the Court clarify whether its reasoning in Campa,that participation in a day reporting program under the speedy-trial provision of the CCP extended to the credit-against-sentence provision of the Code, such that Belcher would be entitled to a credit for the time he spent in the CCDRP. Id. at 5. The Illinois Supreme Court denied Belcher's petition on September 27, 2006. See People State of Ill. v. Belcher, 857 N.E.2d 675, 221 Ill. 2d 645, 306 Ill. Dec. 276 (2006).

B. Belcher's Federal Petition for a Writ of Habeas Corpus

On December 22, 2006, Belcher filed his pro se petition for writ of habeas corpus under 28 U.S.C. ยง 2254. Belcher's petition asserted that he was being held ...


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