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United States of America Ex Rel. v. Salvador Godinez

April 3, 2010

UNITED STATES OF AMERICA EX REL. FLOYD ROBINSON, PETITIONER,
v.
SALVADOR GODINEZ, DIRECTOR, ILLINOIS DEPARTMENT OF CORRECTIONS, RESPONDENT.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Pro se petitioner Floyd Robinson*fn1 has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed below, the habeas petition is denied, and the court declines to issue a certificate of appealability.

BACKGROUND

Petitioner was charged by indictment with retail theft for stealing merchandise from J.C. Penney and with battery against a J.C. Penney loss prevention officer, Christopher Milsap. At petitioner's trial, Milsap testified as follows (as summarized by the Illinois Appellate Court, Rule 23 Order, People v. Robinson, Nos. 3-08-0025 and 3-08-0269, at 2-3 (cons.) (Ill. App. Ct. Aug. 17, 2009)):

In the early afternoon on February 16, 2006, he was on duty at J.C. Penney and noticed [petitioner] in the store. Milsap saw [petitioner] go to the women's dress department and look up for cameras, which is a 'telltale sign of nervousness.' Next, [petitioner] went to the men's suit department. There, [petitioner] checked a few price tags and selected two suits. [Petitioner] took the suits to the men's big and tall department, removed two bags from his coat pocket, a green Marshall Field's bag and a white Steve & Barry's bag. [Petitioner] placed the suits in one of the bags. When he saw this, Milsap radioed the store manager, Mark Strand, for assistance. [Petitioner] then moved to the men's shirt area, where he picked up three shirts and two ties and placed them in his other bag. [Petitioner] headed toward the direction of the mall doors and entered the mall promenade.

Milsap and Strand followed [petitioner] into the mall promenade toward the mall exit doors. Before [petitioner] reached the doors, Milsap approached him, displayed his J.C. Penney loss prevention badge, and said, 'Excuse me. I'm with J.C. Penney loss prevention. I would like to talk to you about the merchandise you have.' [Petitioner] responded, 'no,' pushed Milsap into a wall and started running. Milsap followed [petitioner] into the parking lot. In the parking lot, [petitioner] 'basically ran into' an off-duty 'cop.' When [petitioner] questioned Milsap at trial about the off-duty officer's identity, Milsap responded, 'We didn't get his name.' . . . .

After [petitioner] had 'a little tussle' with the off-duty policeman, Milsap handcuffed [petitioner]. He then took him and his bags to the J.C. Penney loss prevention area and took inventory of the contents of the bags. The only items in the bags were the two suits, three shirts and two ties Milsap saw [petitioner] place in them. Milsap took photographs of the items and assisted in generating a receipt, which showed that the items had a total value of $864.50.

The prosecution also offered the testimony of Police Officer Lionel Allen, who, as summarized by the Illinois Appellate Court, id. at 3, testified to the following:

[Allen] responded to J.C. Penney in the afternoon of February 16, 2006. When he arrived, he went to the J.C. Penney security office, where he met [petitioner] and Milsap. He asked Milsap to take a photograph of the articles of clothing [petitioner] had in his bags for evidentiary purposes. Allen then spoke to [petitioner], who was evasive and refused to provide his name. Later, at the police station, [petitioner] identified himself.

On June 1, 2006, a jury convicted petitioner on both counts. Petitioner was sentenced to 10 years' imprisonment for the retail theft conviction and 361 days' imprisonment for the battery conviction, to be served concurrently. Id. at 4. Petitioner appealed, raising two issues-whether the trial court erred in admitting his prior convictions for violent crimes as impeachment, and whether he was improperly impeached with information regarding his post-arrest statements to Milsap and Officer Allen-neither of which is relevant to the instant petition. Rule 23 Order, People v. Robinson, Nos. 3-06-0687 and 3-07-0244, at 1 (Ill. App. 3d Dist. July 16, 2008); see also Pet. Br., People v. Robinson, Nos. 3-06-0687 and 3-07-0244 (cons.) (filed Nov. 20, 2007); Pet. Reply Br., Nos. 3-06-0687 and 3-07-0244 (cons.) (filed Jan. 3, 2008). The Illinois Appellate Court affirmed. Rule 23 Order, People v. Robinson, Nos. 3-06-0687 and 3-07-0244 (Ill. App. 3d Dist. July 16, 2008). Respondent states, and petitioner does not contest, that petitioner did not file a petition for leave to appeal ("PLA") on direct appeal.

In addition to his direct appeal, petitioner filed a petition for post-conviction relief, raising five claims relevant to the instant petition:

(A) Milsap and Allen provided perjured testimony;

(B) the prosecution knowingly presented and failed to correct that false testimony;

(C) the prosecution knowingly withheld evidence regarding the video cameras in the store and the police station, and Allen's police report;

(D) the prosecution presented insufficient evidence to sustain petitioner's conviction; and

(E) newly discovered evidence (the video cameras in the store) showed that Milsap and Allen provided perjured testimony.

Petition for Post-conviction Relief, People v. Robinson, No. 06-CF-430 (filed Sept. 24, 2007). The trial court dismissed the petition. See Rule 23 Order, People v. Robinson, Nos. 3-08-0025 and 3-08-0269, at 1 (cons.) (Ill. App. 3d Dist. Aug. 17, 2009).

Petitioner appealed the trial court's denial of his post-conviction petition. That appeal was consolidated with petitioner's appeal from the denial of a petition for post-judgment relief, in which petitioner had raised the same perjured testimony claims. See Rule 23 Order, People v. Robinson, No. 06-CF-430, at 1 (Ill. App. 3d Dist. Aug. 12, 2010). This consolidated appeal raised one claim relevant to the instant petition: that the prosecution had violated petitioner's due process rights when it knowingly presented Milsap's false testimony. See Pet. Br., People v. Robinson, Nos. 3-08-0025 and 3-08-0269 (cons.); Pet. Reply Br., People v. Robinson, Nos. 3-08-0025 and 3-08-0269 (cons.). The Illinois Appellate Court affirmed, finding that petitioner had not presented any evidence that Milsap's testimony was false, and that regardless, due to the "overwhelming" evidence ...


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