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Garner v. Ramos

August 26, 2009

CLEVELAND GARNER, PETITIONER,
v.
ANTHONY RAMOS, WARDEN, RESPONDENT.*FN1



The opinion of the court was delivered by: David H. Coar United States District Judge

HONORABLE DAVID H. COAR

MEMORANDUM OPINION AND ORDER

Illinois inmate Cleveland Garner has filed a petition for a writ of habeas corpus, see 28 U.S.C. § 2254, and the state has responded. For the following reasons, the petition is DENIED.

I. FACTS

In Garner's direct appeal, People v. Garner, No. 1-93-1551 (Ill. App. Ct. Sept. 27, 1994), the Illinois Appellate Court recounted the following facts, which this court presumes are correct, see 28 U.S.C. § 2254(e)(1); Ashford v. Gilmore, 167 F.3d 1130, 1131 (7th Cir. 1999):

In the early morning hours of June 2, 1992, Garner attacked a woman while she was out on a cigarette run. After dragging her behind a building, he slapped her face and told her that she knew what he wanted and that he would "give it to [her]." The victim offered money from her pocket, but Garner knocked the money away and said he did not want it. He hit and punched her, then unbuckled his belt and took his shirt off. When she attempted to flee, Garner struck her with an open hand and a closed fist. The victim grabbed a bottle from the ground and attempted to hit Garner with it, but he took it from her and used it to strike the back of her head. Garner broke the bottle over the victim's head, hit her with the broken bottle, and then took a piece of broken glass, held it to her neck, and threatened to cut her. He then pulled off her shirt, ripped off her bra, and grabbed at her breasts. When she again attempted to escape, he threw her back on the ground. Garner again beat her, hitting her 50 or 60 times before he stopped. When the victim screamed at a nearby security guard to call the police, Garner told the security guard that the victim was his girlfriend. Garner then asked the victim for her wedding ring, but she refused. He then demanded that she remove one of her legs from her pants so that she could not chase him, picked up his shirt and her money, and fled. The victim sustained a cut on her lip and on the side of her head, cuts to the back of her head, a gash on her forehead, and a laceration to her middle finger. She spent a night in the hospital, where she received 45 stitches on her head and finger.

Garner went to trial on armed robbery and attempted aggravated criminal sexual assault charges in the Circuit Court of Cook County. On December 3, 1992, a jury returned guilty verdicts against him. After finding that Garner's conduct was brutal and heinous, the trial court ordered an extended-term sentence of 60 years' imprisonment for the armed-robbery charge and a consecutive, extended-term sentence of 30 years' imprisonment for the sexual-assault charge.

In his direct appeal, Garner challenged (1) the trial court's finding that the crime was brutal and heinous and (2) the imposition of an extended-term sentence for the sexual assault charge. On September 27, 1994, the Appellate Court of Illinois reduced the sentence on the sexual assault charge to 15 years (the statutory maximum), but otherwise affirmed. People v. Garner, No. 1-93-1551 (Ill. App. Ct. Sept. 27, 1994). Garner sought leave to appeal, but the Illinois Supreme Court denied review on February 1, 1995.

Garner first sought collateral review in state court, filing a pro se post-conviction petition in the Circuit Court of Cook County on June 16, 1995. There he advanced a number of arguments: (1) the police did not follow their usual procedures during the investigation, in violation of his constitutional rights; (2) the state's witnesses lied; (3) his trial counsel was ineffective for (a) accepting two jurors that Garner wanted to exclude from the jury, and (b) failing to cross-examine sufficiently witnesses against him; (4) the prosecutor committed misconduct by calling Garner an "animal" during closing argument, and the jury was not properly instructed to disregard the comment; (5) his constitutional rights were violated when a witness, Pamela Fish, testified erroneously that Garner's blood had been discovered on some exhibits, as Garner contends that he did not bleed that night; (6) he was denied his constitutional right to testify; (7) he was denied a fair trial because the court failed to instruct the jury to disregard testimony about naked pictures on the walls in Garner's room; and (8) he was denied a fair trial because of inconsistencies in the police reports. Garner subsequently retained an attorney, who filed no amendments to the pro se petition. The trial court denied the petition on April 6, 1999.

On appeal of his state post-conviction petition, Garner's appointed counsel sought remand on the ground that the retained attorney had not complied with Illinois Supreme Court Rule 651(c), which requires that an attorney show that he consulted with the petitioner, reviewed the record, and made any amendments that were necessary for an adequate presentation of the petitioner's arguments. See 134 Ill.2d R. 651(c). The state appellate court agreed that Garner's attorney had not complied with the rule, and on that ground summarily reversed the trial court's decision on March 21, 2001.

On remand, Garner's appointed counsel supplemented his post-conviction petition with an argument that his sentence violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). When his petition again was dismissed on March 23, 2004, Garner appealed. This time his appointed counsel argued to the appellate court only that Garner did not receive appropriate credit for jailtime served prior to sentencing. On August 28, 2006, the appellate court agreed with Garner's sole argument on appeal, crediting time served to his sentence but otherwise affirming the trial court's decision.

In Garner's timely pro se petition for leave to appeal to the Illinois Supreme Court, he advanced new arguments and reasserted some of the grounds from his initial pro se petition. He argued that (1) he should have been allowed to plead guilty to the lesser offense of aggravated battery; (2) he was denied a fair trial because the jury saw him with bruises on his face; (3) the police arrest report was inconsistent with the officers' trial testimony; (4) a police-officer witness had given false testimony; (5) the trial court abused its authority in giving him consecutive sentences; (6) the trial judge's finding that the crime was brutal and heinous is not supported by the record; (7) he was denied a fair trial when the trial court removed the public defender initially assigned to his case; (8) the state's initial over-charging (including a charge of attempted first-degree murder) prejudiced the trial court; and (9) trial counsel was ineffective for (a) not calling a security guard who witnessed the events to testify on his behalf, (b) failing to tell Garner that the state would request a sentence of 90 years' imprisonment, (c) not allowing Garner to testify, and (d) not properly cross-examining the victim, who, according to Garner, had lied to the jury. The Illinois Supreme Court denied review on January 24, 2007. People v. Garner, 862 N.E.2d 236 (Ill. 2007).

Garner then turned to federal court, filing this petition on February 23, 2007. He identifies four grounds for relief: (1) the evidence was insufficient to convict him of armed robbery; (2) the evidence was insufficient to convict him of attempted aggravated criminal sexual assault; (3) he received ineffective assistance from his trial attorney, who failed to (a) cross-examine a witness, (b) object to improper and unreliable statements, (c) call a key witness to testify on his behalf, and (d) object when the state was allowed to lead witnesses; and (4) he received ineffective assistance from his appellate attorney, who failed to argue any of the preceding grounds on appeal. ...


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