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Gavin v. Acevedo

December 16, 2009

EZRA U. GAVIN, PETITIONER,
v.
GERARDO ACEVEDO, WARDEN, HENRY HILL CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on Petitioner Ezra U. Gavin's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (d/e 3). Respondent Gerardo Acevedo, Warden of the Henry Hill Correctional Center, has filed an Answer (d/e 11).

This matter is fully briefed and ripe for adjudication. For the following reasons, Gavin's Petition is denied.

FACTS

Petitioner is incarcerated at Henry Hill Correctional Center in Galesburg, Illinois, where he is in Respondent's custody. On November 15, 2001, police in Quincy, Illinois, searched Petitioner's home pursuant to a search warrant. See Answer (d/e 11), Ex. E, Illinois Appellate Court Order of December 8, 2004, 2. They found plastic sandwich bags, a digital scale, more than $5000 in cash, and more than 125 grams of cocaine. Id., 2-3. Subsequently, on December 19, 2001, police initiated a controlled buy at Petitioner's residence, after which they obtained another search warrant and on December 20, 2001, searched Petitioner's home. Id., 3-4. They uncovered the money used in the controlled buy, and more than 15 grams of cocaine. Id., 4-5.

On May 22, 2002, a jury in Adams County, Illinois, convicted Petitioner of two counts of possession of cocaine with intent to deliver, and one count of unlawful use of a building. Id., 1. Petitioner filed two post-trial motions challenging his convictions, but the Circuit Court of Adams County, Illinois (Adams County Court) denied them. See Answer, Ex. M, 69-71, Post Trial Motion No. 1 and Post Trial Motion No. 2; Ex. N, 131, Transcript of Sentencing Hearing, 13:14-21. The Adams County Court sentenced Petitioner on the drug convictions to consecutive fifteen-year and twenty-five year sentences, and to a three-year concurrent sentence on the unlawful use of a building conviction. See Answer, Ex. M, 73-75, Adams County Court Judgment Order of July 11, 2002. The court based Petitioner's sentence on his 21 prior criminal convictions, the fact that Petitioner was from Chicago and had apparently come to Quincy to "poison the people in [the] community," and the fact that the quantity of drugs seized from Petitioner's house was the largest the West Central Illinois Task Force had seen in at least five years. Answer, Ex. N, 131, Transcript of Sentencing Hearing, 41:14-17, 44:9-15, 48:2-11.

Petitioner appealed his conviction on July 12, 2002. Answer, Ex. M, 109, Illinois Appellate Court Docketing Order. The Illinois Appellate Court affirmed his conviction and sentence on December 8, 2004. Answer, Ex. E, Illinois Appellate Court Order of December 8, 2004. The Illinois Appellate Court rejected Petitioner's argument that the State had not proven beyond a reasonable doubt that he knowingly possessed the cocaine, or that he controlled the residence. Id.

Petitioner on January 20, 2005, filed a petition for leave to appeal (PLA) with the Illinois Supreme Court. Answer, Ex. F, Petitioner for Leave to Appeal. On March 30, 2005, the Illinois Supreme Court denied his PLA. People v. Gavin, 830 N.E.2d 5 (Ill. 2005).

On February 17, 2005, Petitioner filed a pro se state post-conviction petition in the Adams County Court. See Answer, Ex. J, August 28, 2005, Illinois Appellate Court Order, 4. Subsequently, appointed counsel filed two amended petitions on Petitioner's behalf, and the State of Illinois filed a motion to dismiss. See Answer, Ex. N, 236, Transcript of Proceedings of September 7, 2006, 3:13-16. The Adams County Court dismissed Petitioner's petition without an evidentiary hearing on October 16, 2006, finding that he had waived his arguments by failing to raise them during his direct appeal. See Answer, Ex. J, August 28, 2005, Illinois Appellate Court Order, 5-6.

Petitioner appealed to the Illinois Appellate Court, arguing that: (1) his sentence violated his constitutional right to travel; (2) his trial counsel was ineffective by failing to file a post-trial motion regarding his sentence; and (3) his appellate counsel was ineffective by failing to challenge his sentence, and by failing to argue ineffective assistance of trial counsel. The Illinois Appellate Court rejected these arguments, finding that any challenge that trial or appellate counsel could have mounted to Petitioner's sentence would have been unsuccessful because Petitioner's sentence fell within the statutory guidelines. Id., 9.

On November 24, 2008, Petitioner filed a PLA with the Illinois Supreme Court, arguing that his trial counsel was ineffective by, among other things, failing to move to suppress his post-arrest statement, and that his appellate counsel was ineffective in several respects. Answer, Ex. K, Petition for Leave to Appeal. The Illinois Supreme Court denied the PLA on January 28, 2009. People v. Gavin, 902 N.E.2d 1087 (Ill. 2009).

Petitioner filed his Petition in the instant matter on May 15, 2009.

ANALYSIS

Petitioner raises three bases for habeas relief in the Petition. First, Petitioner argues that he was denied effective assistance of trial counsel in violation of the Sixth Amendment. He further asserts that his Sixth Amendment rights were violated when he was denied effective assistance of appellate counsel. Finally, Petitioner argues that the police violated his Fourth Amendment rights when they obtained the search warrant that eventually resulted in his conviction. Respondent counters that the Court should deny the Petition because Petitioner's ineffective assistance of trial counsel claim is procedurally defaulted, and his ineffective ...


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