The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On July 16, 2009, Petitioner, Kenneth Lansden, paid the $5.00 filing fee and his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (#1) was considered filed in this court. On July 20, 2009, this court entered an Order (#6) which denied Petitioner's Motion for Appointment of Counsel (#3) and ordered Respondent, Randy Grounds, to file a response to the Petition pursuant to Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. On October 16, 2009, Respondent filed his Answer (#13) to the Petition and also filed supporting exhibits (#14). On January 27, 2010, Petitioner filed his Reply (#17).
This court has carefully reviewed the arguments of the parties and the numerous exhibits filed in this case. Following this careful and thorough review, Petitioner's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (#1) is DENIED.
In June 2006, Petitioner was found guilty, following a bench trial, of unlawful manufacture of a controlled substance in that Petitioner manufactured 900 grams or more of a substance containing methamphetamine. Petitioner was represented at trial by retained counsel, Todd M. Reardon, and signed a written waiver of his right to a jury trial on April 17, 2006. On that date, the trial court fully admonished Petitioner of his right to a jury trial before accepting the waiver. Petitioner specifically denied that anyone had forced or threatened him to waive his right to a jury trial or that any promises had been made to him to get him to waive that right.
On the date of the bench trial, the parties entered into a written stipulation regarding the facts which was signed by the prosecutor and Attorney Reardon. Following an explanation by the trial judge, Mitchell K. Shick, Petitioner stated that he understood that, in the stipulation, he was asking the judge to accept what was stated as the testimony of the persons listed. Petitioner stated that he did not have any doubt or hesitation about asking the judge to accept the stipulation and that he had freely and voluntarily agreed to the stipulation.
The stipulation stated that Officer Brad Poehler would testify that, on July 14, 2005, he made a traffic stop on a vehicle driven by Jason C. Hawkins. Poehler arrested Hawkins for driving on a suspended license. Petitioner was a passenger in the vehicle. Poehler searched the vehicle incident to arrest and found, under the parking brake, a plastic bag containing a white powdery substance. Jason Hawkins would testify that, prior to the traffic stop, he met with Petitioner at Petitioner's home. Hawkins saw what he believed to be a methamphetamine lab in Petitioner's home. Petitioner asked Hawkins to drive him into the country for the manufacture of methamphetamine. Inspector Don Sweeney would testify that he field tested the white powdery substance found in the vehicle and the field test identified the substance as methamphetamine. Later that day, Sweeney executed a search warrant at Petitioner's home. In the bedroom, Sweeney found 1,175.7 grams of a liquid substance, contained in two separate jars, that field tested positive for methamphetamine. Sweeney also found items commonly used in the manufacture of methamphetamine, including coffee filters with residue, a digital scale with residue, lithium batteries, hydrochloric acid generators, Coleman fuel, acetone, and denatured alcohol.
The stipulation further provided that Inspector Jim Hite would testify that, on July 15, 2005, he executed a search warrant on a storage unit rented to Petitioner. Inside the storage unit, Hite found the following items commonly used in the manufacture of methamphetamine: propane tanks with converted valves, anhydrous ammonia, Coleman fuel, air purifying respirators, tubing and mineral spirits. The stipulation stated that Amy Parker, a forensic scientist, laboratory tested the powdery substance and samples taken from the liquids and found methamphetamine present. Attached to the stipulation were police reports prepared by Poehler, Sweeney and Hite.
Based upon the stipulated evidence, Petitioner's retained counsel moved for a directed finding, arguing that the State had not proved the manufacture of 900 grams. After the circuit court denied this motion, Petitioner's counsel presented the affidavit of Jonathan Blitz, Ph.D., a professor of chemistry at Eastern Illinois University. The affidavit provided that Dr. Blitz performed scientific testing on the two liquid substances and determined that the percentage of methamphetamine in one sample was 0.0028% and in the other was 0.0012%. Dr. Blitz also expressed the opinion that the "retention time" led him to speculate that the "two substances may actually not be methamphetamine but a compound with a similar, but not identical, retention time." When admonished by the trial court about the stipulation, Petitioner expressed understanding that, by offering Dr. Blitz's affidavit, he was giving up his right to call Dr. Blitz as a witness. After being fully admonished regarding his right to testify, Petitioner declined to testify at the bench trial.
Petitioner's counsel argued that the State failed to prove that the substance was methamphetamine and, even if the State proved the substance was methamphetamine, the State failed to prove Defendant manufactured or possessed 900 grams. The trial court found Petitioner guilty as charged.
On August 17, 2006, Petitioner was sentenced to a term of 20 years in the Illinois Department of Corrections. Petitioner filed a notice of appeal, but later filed a motion to dismiss the appeal, which was granted on March 19, 2007. In his Petition (#1) filed with this court, Petitioner stated that his appeal was withdrawn because the appellate defender assigned to his case advised him there were no issues for argument. However, the exhibits filed by Respondent include an affidavit, signed by Petitioner on March 7, 2007, which stated that he entered into an agreement to withdraw his appeal in exchange for the dismissal of Coles County criminal charges which had been pending against him since 2003.*fn2
On August 6, 2007, Petitioner filed a pro se petition for post-conviction relief in the circuit court of Coles County. Petitioner argued that he was denied the effective assistance of his trial counsel because: (1) his counsel ignored Petitioner's request to have his case assigned to a different judge other than Judge Shick; (2) his counsel failed to investigate and call witnesses to testify; (3) his counsel improperly informed Petitioner to waive his right to a preliminary hearing; (4) his counsel failed to file a motion for dismissal based upon the failure to provide a prompt and timely probable cause hearing; (5) his counsel failed to challenge the warrantless arrest and the evidence derived thereafter as fruits of the poisonous tree; (6) his counsel's demand for additional money in order to proceed with a jury trial forced Petitioner to proceed via stipulated bench trial; (7) his counsel failed to subject the prosecution's case to meaningful adversarial testing; and (8) his counsel's incorrect information deprived Petitioner of his right to testify.
On August 31, 2007, Circuit Judge Gary W. Jacobs issued a lengthy written ruling. Judge Jacobs carefully considered all of Petitioner's claims of ineffective assistance of counsel and dismissed Petitioner's pro se petition as frivolous or "otherwise patently without merit." Judge Jacobs noted, that as far as the failure of Petitioner's counsel to seek a substitution of judge, he had reviewed all transcripts of proceedings and the record was "devoid of any request by petitioner to seek a substitution of judge as a matter of right or for cause." Judge Jacobs stated that "Petitioner could easily have raised this issue before the trial court at numerous times if, as now, he had concerns about Judge Shick presiding over the case." Judge Jacobs also stated that the evidence of Petitioner's guilt was overwhelming and the result of the trial would have been no different even without counsel's alleged deficiencies.
Petitioner filed a notice of appeal. While Petitioner had alleged eight claims of ineffective assistance of counsel in his pro se post-conviction petition, Petitioner raised only two of those claims on appeal. Petitioner argued that he was denied the effective assistance of counsel where: (1) counsel's demand for additional money to proceed with a jury trial forced Petitioner to proceed by way of a stipulated bench trial; and (2) counsel failed to file a motion for substitution of judge on the grounds that the trial judge, Judge Shick, (a) had adopted Petitioner's girlfriend's daughter and had told Petitioner's girlfriend that he would not let her see her daughter if she continued to date Petitioner and (b) was the judge on Petitioner's other pending drug case.
On August 28, 2008, the Appellate Court, Fourth District, affirmed the dismissal of Petitioner's petition for post-conviction relief in an unpublished order. People v. Lansden, Case No. 4-07-0805. The Appellate Court first concluded that Petitioner's argument that his counsel forced him to proceed with a bench trial was rebutted by the record. Lansden, Case No. 4-07-0805, at p. 9-11. The Appellate Court next concluded that Petitioner did not provide ...