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Duncan v. Hathaway

August 11, 2010

DARRYL R. DUNCAN, PETITIONER,
v.
JODY HATHAWAY, RESPONDENT.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER*fn1

Petitioner Darryl R. Duncan ("Duncan") has brought a petition pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. For the following reasons, Duncan's petition is denied.

I.

In 2005, following a bench trial, Duncan was found guilty of possession of a stolen motor vehicle and aggravated fleeing from police. He was sentenced to a nine year prison term. Notices of appeal were filed both before and after a timely motion to reconsider the sentence was heard. Those appeals were consolidated and Paul Rogers ("Rogers") from the Appellate Defender's Office was appointed as counsel for purposes of Duncan's direct appeal.

On direct appeal, Rogers raised two issues: 1) the trial court erred by not ordering a fitness hearing prior to sentencing in light of Duncan's history of mental health issues, and 2) Duncan's 235 days in custody were not properly credited for sentencing purposes. Shortly after Rogers filed the appeal brief, Duncan sent Rogers a draft appellate brief of his own, which raised a host of additional claims. Rogers felt the additional claims were meritless and refused to supplement his brief. He sent Duncan a letter, dated October 16, 2006, in which he explained his reasons for refusing to file the requested claims and further advised Duncan that the appellate court would not allow a pro se supplemental brief because Duncan was already represented by counsel. Rogers advised Duncan that if he wished to pursue the additional claims on direct appeal, he should discharge the Appellate Defender's Office and either represent himself or hire a private attorney.

Disregarding Rogers' advice, Duncan moved for leave to file a supplemental brief with the appellate court on October 19, 2006. Along with his motion, Duncan attached his pro se brief, Rogers' October 16, 2006 letter, and a cover letter in which he requested newly appointed appellate counsel. Duncan's motion and request for newly appointed appellate counsel were summarily denied on December 5, 2006, but Duncan did not discharge the Appellate Defender's Office as advised by Rogers. Months later, the trial court judgment was affirmed and the mittimus was corrected to reflect the 235 days Duncan spent in custody prior to sentencing. The appellate court found no bona fide doubt as to Duncan's fitness and no abuse of discretion in the trial court's decision not to order a fitness examination. Duncan filed a pro se petition for leave to appeal ("PLA") that decision to the Illinois Supreme Court on July 13, 2007, which was denied.

Meanwhile, during the early pendency of Duncan's direct appeal, Duncan filed a pro se post-conviction petition contending that there was no probable cause for his arrest, that his trial counsel was ineffective, and that the judge violated Duncan's due process rights.*fn2 The petition was summarily dismissed, the court stating that the alleged claims were frivolous, patently without merit, and did not "raise the gist of a constitutional claim." (Ex. C.) Duncan appealed the decision and Rogers, the same attorney representing Duncan on direct appeal, was appointed to represent him.

In September of 2006, Rogers filed a motion to withdraw from representation for purposes of the post-conviction appeal pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), but before the Finley motion was decided, Duncan moved pro se to withdraw his post-conviction petition and to strike the related appeal. The motion to withdraw could not be granted because judgment on the petition had already been entered and an appeal had already been filed, so the appeal was dismissed instead. No further action was taken on the petition.*fn3

Then, on December 26, 2006, after Duncan's request to submit a pro se supplemental direct appeal brief and his request for new appellate counsel on direct appeal were denied, he filed a second pro se post-conviction petition, this time alleging that 1) his indictment was invalid, 2) there was insufficient evidence of his guilt, 3) the trial court should have ordered a fitness hearing, and 4) he received ineffective assistance of trial counsel. The successive petition was dismissed as procedurally barred but the court also made specific findings on Duncan's claims. Duncan appealed and Rogers was appointed to represent him for a third time.

Again, Rogers filed a Finley motion requesting that he be allowed to withdraw from representing Duncan in his post-conviction appeal. In the motion, Rogers argued that any appeal would be frivolous because Duncan did not obtain leave to file his second post-conviction petition as required by Illinois law. See 725 ILCS 5/122-1(f)(2006). Duncan responded to the motion, arguing that he did not follow the proper procedure for successive petitions due to his history of mental illness. He asked that the Finley motion be denied and that Rogers be made to "do his job," or, in the alternative, that the court vacate his sentence. Duncan raised a number of ineffective assistance of appellate counsel claims in his response brief, but the appellate court did not address them. Rogers' Finley motion was granted and the trial court's dismissal of Duncan's petition was affirmed based solely on the fact that it was successive and procedurally barred. Duncan did not file for leave to appeal that decision to the Illinois Supreme Court.

In his habeas petition, Duncan raises the following issues:

(1) his due process rights were violated because there was insufficient evidence of his guilt in that:

(a) the evidence presented involved two different van models;

(b) he was not in the van when arrested;

(c) his fingerprints were not found in the van;

(d) he was not positively identified in a line-up;

(2) two witnesses were allowed to testify even though they were not on the ...


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