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Gay v. Johnson

August 25, 2010

ANTHONY GAY, PETITIONER,
v.
YOLANDE JOHNSON, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

This matter is now before the Court on Petitioner, Anthony Gay's ("Gay"), Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the § 2254 Petition [#8] is DENIED.

BACKGROUND AND PROCEDURAL HISTORY

Following a jury trial, Gay was convicted of aggravated battery in the Circuit Court for Livingston County, Illinois, after throwing a brown liquid that smelled like feces at Correctional Lieutenant DeLong while incarcerated at Pontiac Correctional Center. He was sentenced to five years' imprisonment.

Gay pursued an appeal to the Illinois Appellate Court, arguing that the trial court violated his right to compulsory process when it refused to subpoena two witnesses and denied him due process when it refused to conduct a hearing to determine if he was fit to stand trial. His conviction and sentence were affirmed on September 6, 2002. He filed a Petition for Leave to Appeal to the Illinois Supreme Court, which was denied on December 5, 2002.

On March 17, 2003, Gay initiated an attempt to collaterally attack his sentence and conviction through a post-conviction petition pursuant to 725 ILCS 5/122-1 in the Circuit Court of Livingston County. This petition raised three claims: (1) trial court violated his right to compulsory process when it refused to subpoena two witnesses; (2) his due process rights were denied when he was required to wear shackles during the trial without determining that the restraints were warranted; and (3) his counsel on direct appeal was ineffective for failing to raise the other two claims. On March 21, 2003, the trial court dismissed the post-conviction petition, finding that the claims were either forfeited or without merit. On appeal, the Illinois Appellate Court reversed the dismissal, finding that a post-conviction petition cannot be summarily dismissed on forfeiture grounds.

On remand, the trial court appointed counsel to represent Gay, and a supplemental petition was filed restating the same claims that were included in the original petition. The claim based on the failure to subpoena two witnesses was dismissed for lack of a sufficient basis, and the claim regarding the shackling was found to have been waived for failure to raise any objection during the trial, post-trial motions, or on direct appeal and was otherwise without merit. Based on these findings, the petition was denied in its entirety.

On appeal, Gay pursued only the claim regarding the shackling during trial, abandoning his other arguments. Specifically, he argued that the post-conviction court should not have made factual findings in a stage two proceeding reviewing the petition for dismissal. The Court of Appeals rejected this argument, finding that the proceedings had progressed to a stage three determination on the merits, where factual findings are proper. The denial of Gay's post-conviction petition was affirmed on March 27, 2008. His PLA to the Illinois Supreme Court raising the shackling and witness issues was denied on September 24, 2008.

Gay now brings this § 2254 petition, in which he raises essentially two claims: (1) he wasn't allowed to call witnesses on his behalf; and (2) he was compelled to proceed to trial in shackles in the presence of the jury. The State has filed is Answer to the § 2254 petition, and this Order follows.

DISCUSSION

Before reaching the merits of a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, a district court must consider "whether the petitioner exhausted all available state remedies and whether the petitioner raised all his federal claims during the course of the state proceedings." Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991), quoting Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988). If the answer to either of these questions is "no," then the failure to exhaust state remedies or procedural default bars the petition. Id. In other words, if a petitioner fails to give the state courts a full and fair opportunity to review his claims, then his petition must fail. Bocian v. Godinez, 101 F.3d 465, 468-69 (7th Cir. 1996).

Exhaustion of a federal claim occurs when it has been presented to the highest state court for a ruling on the merits or when it could not be brought in state court because a remedy no longer exists when the federal petition is filed. Id. In the present case, Respondent does not argue that Gay has failed to exhaust his state remedies.

Procedural default occurs when a claim could have been but was not presented to the state court and cannot, at the time the federal petition is filed, be presented to the state court. Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992). This occurs in one of two ways. First, a procedural default may occur when a petitioner fails to pursue each appeal required by state law, Jenkins v. Gramley, 8 F.3d 505, 507-08 (7th Cir. 1993), or when he did not assert the claim raised in the federal habeas petition in the state court system. Resnover, 965 F.2d at 1458-59. The second way in which a petitioner may procedurally default a claim is when a state court disposes of the case on an independent and adequate state law ground, regardless of whether that ground is substantive or procedural. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2553-55 (1991).

With respect to claims that are not barred either for failure to exhaust or procedural default, federal courts must employ a strict analysis. A petition must be denied with respect to any claim previously adjudicated on the ...


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