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Dolis v. Gilson

December 23, 2009

JAMES DOLIS, PETITIONER,
v.
KEVIN GILSON, ACTING WARDEN, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Before the Court is Petitioner James Dolis's federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the Court denies Dolis's habeas petition.

BACKGROUND

I. Factual Background

The Court begins with a brief recounting of the relevant facts as determined by the Illinois Appellate Court, see Easley v. Frey, 433 F.3d 969, 970 (7th Cir. 2006), and supplemented by testimony in the trial record before the Circuit Court of Cook County.*fn1 A jury convicted Dolis of home invasion and aggravated battery after he entered the home of his ex-girlfriend, Ellen Stefanits ("Stefanits"), on the morning of February 11, 1999 and stabbed Stefanits's teenage son, Glenn Podeszwa ("Podeszwa"), in the arm. (R. 47, Ex. F at 91-92.)

At trial, Stefanits testified that she had previously allowed Dolis to live in the home she owned; but she forced him to move out in September 1997 after he became abusive. (R. 48, Ex. Q at D36-38.) She further testified that Dolis was not living at her residence at the time of the incident. (R. 48, Ex. Q at D36-38.) Once Dolis moved out, Stefanits changed the locks and did not give Dolis a key. (R. 48, Ex. Q at D37-40, D53.) Nonetheless, Dolis continued to come to Stefanits's home from September 1997 through February 1999, except during August 1998, and September 21, 1998 through January 19, 1999, when he was incarcerated. (R. 48, Ex. Q at D37-38, D133.)

Stefantis also testified that on February 8, 1999, Dolis appeared at her home asking for money and when she refused, he stole her purse that contained a set of her car keys and left with her car. (R. 48, Ex. Q at D41-44, D73.) The next day, Dolis appeared at Stefanits's work to return her purse and car to ask for money. (R. 48, Ex. Q at D44-45.) After Stefanits refused his request, Dolis removed the starter wire from her car. (R. 48, Ex. Q at D48.) The following afternoon, Stefanits saw Dolis attaching a license plate to a truck in a parking lot and informed a nearby police officer that Dolis had stolen and disabled her car. (R. 48, Ex. Qat D49-50.) Dolis fled on foot when the officer approached him. (R. 48, Ex. Qat D49-50.)After this incident, Dolis's brother, State Trooper Michael Dolis ("Trooper Dolis"), testified that Dolis called him, and Trooper Dolis's caller I.D. showed that Dolis had called him from the home of a friend. (R. 48, Ex. Qat D157-158.) Later, on the night of February 10, 1999, Stefanits testified that she discovered that a hole had been cut in her screen door. (R. 48, Ex. Qat D72-77.) When she awoke on the morning of February 11, 1999, she discovered Dolis standing in her hallway holding a knife and blaming her for having his truck towed. (R. 48, Ex. Qat D52-54.) After the argument escalated and Stefanits began to scream, Podeszwa entered the kitchen and Dolis "lunged" at him and stabbed him in the arm. (R. 48, Ex. Qat D54-56, 134-137).

Once Stefanits convinced Dolis to leave, she testified that she phoned the police to report the incident and took Podeszwa to the hospital. (R. 48, Ex. Qat D67-68.) Later that morning, according to Trooper Dolis's testimony, Dolis phoned Trooper Dolis to check on Stefanits's status. (R. 48, Ex. Qat D158.) Trooper Dolis noticed that the caller I.D. indicated that Dolis was calling from the same residence that he had called from the day before. (R. 48, Ex. Qat D158.) After calling Stefanits to confirm that an incident had occurred, Trooper Dolis notified the police as to Dolis's whereabouts. (R. 48, Ex. Qat D159.) The police arrested Dolis later that day. (R. 48, Ex. Qat D159-160.)

II. Procedural Background

The police charged Dolis with home invasion, attempted murder, and aggravated battery.

During his trial, Dolis wrote the trial judge a number of inflammatory letters, accusing the judge, prosecutor, defense counsel, Stefanits, Podeszwa, and the Chicago Police Department of participating in a conspiracy to, among other things, convict him. (R. 47, Ex. O at C52-66.) The jury acquitted Dolis of attempted murder but convicted him of home invasion and aggravated battery. (R. 47, Ex. F at 1.) He was sentenced to thirty years incarceration for home invasion and five years for aggravated battery to run concurrently, followed by a term of supervised release. (R. 47, Ex. F at 1.)

Dolis appealed his convictions to the Illinois Appellate Court, claiming that the trial court judge abused his discretion by relying on inadmissible evidence during sentencing and not making an inquiry into his complaints about his attorney's performance. See People v. Dolis, No. 1-00-0759 (Ill.App.Ct. March 7, 2002) (unpublished); (R. 47, Ex. A at 17, 22.) In addition, Dolis filed a supplemental brief that raised ineffective assistance of counsel claims against his trial counsel, alleging that he failed to call certain witnesses and failed to establish evidence of false testimony or bias among the State's witnesses. (R. 47, Ex. D at 3-4.) The appellate court affirmed Dolis's convictions, finding that the trial court did not abuse its discretion at sentencing or in failing to make judicial inquiry into trial counsel's performance. (R. 47, Ex. F at 2.) Analyzing Dolis's ineffective assistance of counsel claims under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), the appellate court also found that trial counsel's decision to call certain witnesses was within his discretion in formulating legal strategy, and that Dolis failed to demonstrate that he was prejudiced as a result of trial counsel's decisions. (R. 47, Ex. F at 4-5.) Dolis then filed a petition for leave to appeal (PLA) to the Illinois Supreme Court, raising only his judicial inquiry claim, which the court denied on May 30, 2002. See People v. Dolis, 775 N.E.2d 5 (Ill. 2002).

In August 2002, Dolis filed a petition for post-conviction relief in the Circuit Court of Cook County pursuant to the Illinois Post-Conviction Hearing Act, 725 ILL. COMP. STAT. 5/122-1 et seq, claiming ineffective assistance of both his trial and appellate counsel, numerous errors by the trial court, and unconstitutional arrest. (R. 47, Ex. K at 3.) The State moved to dismiss the petition, and the court granted the motion. (See R. 47, Ex. K at 2.)

Dolis appealed the dismissal, and the appellate court affirmed the ruling of the Circuit Court in People v. Dolis, No. 1-05-0988 (Ill. App. Ct. Aug. 9, 2006) (unpublished). (R. 47, Ex. K.) First, the appellate court held that because Dolis raised his claims of ineffective assistance of counsel due to counsel's failure to call certain witnesses and effectively cross-examine the State's witnesses on direct appeal, those claims were barred by the doctrine of res judicata. (R. 47, Ex. K at 2-3.) Dolis also brought the claim of improperly received testimony regarding his prior violent behavior toward women on direct appeal, such that it was barred by res judicata. (R. 47, Ex. K at 2-3.)

The appellate court next addressed Dolis's claims that were not raised on direct appeal, finding all to be forfeited pursuant to People v. Blair, 831 N.E.2d 604, 615 (Ill. 2005). (R. 47, Ex. K at 3.) The first two claims pertained to ineffective assistance of counsel based on counsel's failure to object to the State's opening and closing arguments and failure to present and argue a motion to quash his arrest. (R. 47, Ex. K at 3.) The other claims not raised on direct appeal all pertained to trial court error, specifically alleging that the trial court erred in: (1) denying Dolis's request to represent himself; (2) responding to the jury's questions during deliberation without Dolis present; (3) denying his motion for a substitution of judges without referring the motion before a different judge for a hearing; and (4) denying his motion for a directed verdict. (R. 47, Ex. Kat 3-4.)

The court then turned to claims raised by Dolis on direct appeal and thus not forfeited. First, it held that Dolis's claim of ineffective assistance of counsel based on his counsel's advice about whether to testify was based on facts outside of the record that could have been raised on appeal. The court performed a Strickland analysis and determined that because Dolis affirmatively stated at trial that it was his decision not to testify, he did not meet his burden of establishing ineffective assistance under Strickland. (R. 47, Ex. K at 4) (citing People v. McCleary, 819 N.E.2d 330 (Ill. 2004)). Dolis's remaining ineffective assistance of appellate counsel claims consisted of a "laundry list [of claims]. . . that appellate counsel allegedly failed to raise on direct appeal." (R. 47, Ex. K at 5.) The appellate court deemed these claims waived for failure to comply with Illinois Supreme Court Rule 341(e)(7), which requires an appellant's brief to contain an "[a]rgument, which shall contain the contentions of the appellant and reasons therefore, with citation of the authorities and the pages of the record." (R. 47, Ex. K at 5.) Finally, the appellate court found Dolis's general argument that the trial court erred in dismissing his post-conviction petition because he stated the "gist of a meritorious constitutional claim" to be "without merit" because Dolis was required to make a "substantial showing of a constitutional violation." (R. 47, Ex. K at 6.)

On November 13, 2006, Dolis filed a second PLA with the Illinois Supreme Court. (R. 47, Ex. M.) In this PLA, Dolis: (1) raised a claim of innocence of home invasion based on additional affidavits regarding Dolis's residence at the time of the incident; (2) asserted ineffective assistance of trial counsel for (a) failing to present jail visitation records or witnesses indicating that Stefanits was still involved in a relationship with Dolis when he was in jail, (b) telling Dolis that he would be found guilty if he testified, (c) failing to object to the prosecutor's opening remarks; and (d) failing to quash his arrest; and (3) argued that the trial court erred by responding to the jury's questions during deliberations without Dolis present. (R. 47, Ex. M.) On November 29, 2006, the Illinois Supreme Court denied Dolis's petition without comment. See People v. Dolis, 861 N.E.2d 658 (Ill. 2006); (R. 47, Ex. N.)

During all of these proceedings, Dolis had conflict with both his trial and appellate counsel. Because of his dissatisfaction with his representation, Dolis submitted a pro se supplemental appeal to his original convictions and pro se supplemental PLAs to the Illinois Supreme Court for both the original conviction and the dismissal of his post-conviction petition. (See R. 50, Ex. U-W; R. 51 at 3, 8) When Dolis submitted these documents to the Illinois Appellate Court and the Illinois Supreme Court, his counsel had already filed papers on his behalf. (R. 50, Ex. U-W.) The clerks of both courts sent letters to Dolis informing him that they could not accept his supplemental briefs and PLAs because counsel had already filed on his behalf. (R. 50, Ex. U-W.) The Illinois Supreme Court allowed Dolis to file a motion to substitute his pro se PLA addressing his post-conviction petition for the one filed by his counsel, but the court denied this motion. (R. 50, Ex. W.)

In April 2007, Dolis filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising claims that: (1) the trial court erred in failing to make an inquiry into his complaints about his trial counsel's performance; (2) the State suborned perjured testimony by Stefanits and Podeszwa; (3) the trial court erred in denying his request to represent himself; (4) the trial court erred in admitting "other crimes evidence"; (5) he was not informed of certain "charges" made by Stephanits at trial in order to prepare a defense (including that Dolis took things from her home and intimidated her at work); (6) twelve separate "sub-claims" of ineffective assistance of counsel detailed below; (7) that he was denied the right to testify in his own defense; (8) the trial court erred in entertaining the jury's questions during deliberation without him being present; (9) his arrest and counsel's failure to quash that arrest violated the Fourth Amendment; (10) the trial court relied on inaccurate evidence in imposing the maximum sentence; (11) the trial judge was biased against him; (12) his conviction was based on insufficient evidence; (13) he is innocent of home invasion because he resided in Stefanits's home; and (14) his term of supervised release is unconstitutional.

Dolis's twelve separate "sub-claims" of ineffective assistance of counsel allege that trial counsel: (a) failed to move to transfer the case to a different judge; (b) failed to move to quash petitioner's arrest; (c) failed to object to the prosecutor's opening statement; (d) failed to request a side bar when the state used leading questions in its direct examination of Stefanits; (e) failed to introduce police reports, the grand jury testimony of Detective Christine Nere, and Stefanits's prior inconsistent statements as evidence at trial; (f) made errors in establishing witnesses' bias in cross-examination; (g) failed to subpoena or obtain a transcript of the preliminary hearing, subpoena phone records, a bail bond receipt, and documents establishing that an order of protection had been vacated; (h) failed to call Dr. Ross Romine, Detective Nere and a DCFS investigator as witnesses to testify; (i) suggested that Dolis was guilty during closing arguments; (j) failed to request a jury instruction on "prior crimes" after inducing Stefanits to testify about certain of those crimes and about the order of protection she brought against him; (k) failed to investigate Podeszwa's psychiatric treatment; and (l) failed to object to the prosecution's closing argument. The State agrees that Dolis has exhausted all of his state-court remedies and that his petition is timely.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that habeas relief cannot be granted unless the state court's decision was contrary to, or an unreasonable application of, federal law clearly established by the Supreme Court. See 28 U.S.C. ยง 2254(d); see also Williams v. Taylor, 529 U.S. 362, 403 (2000). Under the "contrary to" prong of this standard, a habeas petitioner must show that "the state court confront[ed] facts that are materially indistinguishable from a relevant Supreme Court precedent and arrive[d] at a result opposite [to the Court's]." Williams, 529 U.S. at 405. Under the "unreasonable application" prong, a petitioner must show that although the state court identified the correct legal rule, it unreasonably applied the controlling law to the facts of the case. See id. at 407. "This reasonableness determination is quite deferential, such that a state decision may stand as long as it is objectively reasonable, even if the reviewing court determines it to be substantively incorrect." Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir. 2005); see also Williams, 529 U.S. at 410 (an unreasonable application of federal ...


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