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Lash v. Gaetz

August 20, 2010

DALE W. LASH, PETITIONER,
v.
DONALD GAETZ, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

This matter comes before the Court on Petitioner Dale W. Lash's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody and Claim of Supplemental Jurisdiction Under 28 U.S.C. § 1367 (d/e 1) (Petition). For the reasons set forth below, the Petition is denied.

BACKGROUND

On February 8, 2001, a jury in Sangamon County, Illinois, Circuit Court found Petitioner Dale Lash guilty of five counts of aggravated criminal sexual assault, one count of armed robbery, and one count of aggravated unlawful restraint. On March 30, 2001, the state court sentenced Lash to thirty years on the first count of criminal sexual assault and six years on each of the remaining four counts of criminal sexual assault, all to run consecutively; six years on the armed robbery conviction, to run consecutively to the other sentences; and three years on the aggravated unlawful restraint conviction, to run concurrently to the other counts. Answer to Petitioner's Petition for a Writ of Habeas Corpus (d/e 7)(Answer), Exhibit A, People v. Lash, Ill. App. Ct. 4th Dist., Case No. 4-01-0517, Brief and Argument for Defendant-Appellant (Direct Appeal Brief), doc. 7-2 at 9.*fn1

Thereafter, Lash engaged in three rounds of review of his conviction in state court. The Court outlines the procedural history by each round of review.

I. DIRECT APPEAL

Lash appealed his sentence to the Illinois Appellate Court. Lash's appellate counsel raised three issues on appeal. The Court summarizes the three issues as follows:

1. The prosecutor violated petitioner's right against self-incrimination by commenting during rebuttal argument about petitioner's decision not to testify, especially about his defense of consent;

2. The trial court erred as a matter of law by imposing a consecutive sentence for armed robbery; and

3. The trial court erred by failing to submit the element of "serious bodily injury" to the jury before imposing a consecutive sentence on armed robbery in violation of his right to trial by jury as set forth in Apprendi v. New Jersey.*fn2

Id., doc. 7-2 at 8.

On April 19, 2004, Lash filed a motion for leave to file a pro-se supplemental brief in his direct appeal before the Illinois Appellate Court. Answer, Exhibit B, People v. Lash, Ill. App. Ct. 4th Dist., Case No. 4-01-0517, Motion for Leave to File Pro-se Supplemental Appeal Brief, and for Extension (sic) of Time on Which to File the Brief. The Illinois Appellate Court denied Lash's request. Answer, Exhibit C, People v. Lash, Ill. App. Ct. 4th Dist., Case No. 4-01-0517, Order denying Request entered April 21, 2004. The Appellate Court affirmed the conviction and sentence on September 2, 2004. Answer, Exhibit F, People v. Lash, Ill. App. Ct. 4th Dist., Case No. 4-01-0517, Order entered September 2, 2004.

Lash then filed a Petition for Leave to Appeal (PLA) to the Illinois Supreme Court on his direct appeal. Lash raised four issues before the Supreme Court. The Court summarizes the issues as follows:

1. The prosecutor violated Lash's right to a fair trial by commenting during rebuttal argument about Lash's decision not to testify;

2. The prosecutor violated Lash's right to a fair trial by commenting during rebuttal argument about irrelevant and inadmissible evidence as to what petitioner believed about the veracity of the state's key witness;

3. The trial court erred in imposing a consecutive sentence for armed robbery; and

4. The trial court erred by failing to submit the element of "serious bodily injury" to the jury before imposing a consecutive sentence on armed robbery in violation of the right to trial by jury and due process pursuant to Apprendi v. New Jersey.

Answer, Exhibit G, People v. Lash, Ill. Sup. Ct., Case No. 99454. Petition for Leave to Appeal. On January 26, 2005, the Illinois Supreme Court denied Lash's request for a PLA. Answer, Exhibit H, People v. Lash, Ill. Sup. Ct.,Case No. 99454, Order Denying PLA. Lash then filed a petition for certiorari to the United States Supreme Court.

On May 23, 2005, the Supreme Court denied Lash's Petition for certiorari on his direct appeal. Answer, Exhibit I, Lash v. Illinois, Sup. Ct., Case No. 04-9609, Order Denying Petition for Certiorari entered May 23, 2005.

II. ORIGINAL COLLATERAL PETITIONS

While the appeal was pending, Lash began filing a series of pro-se collateral attacks on his conviction in state court. On June 12, 2002, Lash filed a petition to vacate the judgment pursuant to 735 ILCS 5/2-1401(a). Answer, Exhibit J, People v. Lash, Sang. Co. Ill. Cir. Ct., Case No. 99-CF-843, Petition to Vacate Judgment. On October 5, 2002, Lash filed an amended petition to vacate the judgment. Answer, Exhibit K, People v. Lash, Sang. Co. Ill. Cir. Ct., Case No. 99-CF-843, Amended Petition to Vacate Judgment. On January 10, 2003, Lash filed another amended prose petition to vacate the judgment. Answer, Exhibit L, People v. Lash, Sang. Co. Ill. Cir. Ct., Case No. 99-CF-843, Amended Petition to Vacate Judgment.

On March 1, 2004, Lash filed a pro-se petition for post-conviction relief pursuant to the Illinois Post-Conviction Hearing Act. 725 ILCS 5/122-1 et seq. On May 3, 2004, Lash filed a motion for leave to file an amended post-conviction petition. On May 24, 2004, the Circuit Court dismissed the post-conviction petition without prejudice to re-file after completion of the direct appeal. Answer, Exhibit S, People v. Lash, Ill. App. Ct. 4th Dist., Case Nos. 4-05-0303 & 4-05-0534, Order entered January 31, 2008, doc. 7-4 at 38.

On March 4, 2005, the Sangamon County Circuit Court dismissed Lash's pro-se § 5/2-1401(a) petitions to vacate the judgment. Answer, Exhibit M, People v. Lash, Sang. Co. Cir. Ct., Case No. 99-CF-843, Order entered March 4, 2005. Lash appealed.

On March 7, 2005, Lash filed a second post-conviction petition. Answer, Exhibit N, People v. Lash, Sang. Co. Cir. Ct., Case No. 99-CF-843, ...


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