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United States ex rel Boyd v. Pierce

September 17, 2010

UNITED STATES EX REL. LATHIERIAL BOYD, PLAINTIFF,
v.
GUY PIERCE, WARDEN, PONTIAC CORRECTIONAL CENTER RESPONDENT.



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

MEMORANDUM OPINION AND ORDER

Petitioner Lathierial Boyd has filed a second amended pro se petition for a writ of habeas corpus pursuant to the Anti-Terrorism and Effective Death Penalty Act ("ADEPA"), 28 U.S.C. § 2254, seeking to overturn his conviction for first-degree murder, attempted first-degree murder, and aggravated battery. Respondent has filed the instant motion to dismiss the petition as time-barred under 28 U.S.C. § 2244.*fn1 For the reasons discussed below, the court grants respondent's motion and dismisses the petition.

FACTS

Petitioner Lathierial Boyd is incarcerated at Pontiac Correctional Center in Pontiac, Illinois. On December 10, 1990, petitioner was convicted of first-degree murder, attempted first-degree murder, and aggravated battery following a bench trial in the Circuit Court of Cook County. The evidence showed that, on February 24, 1990, petitioner fired an Uzi assault rifle into a crowd outside a bar on Chicago's north side. One individual was killed, one was paralyzed (and died three years later), and three others were wounded. The trial court sentenced petitioner to 55 years' imprisonment for first-degree murder and a consecutive 27 years' imprisonment for attempted murder, in addition to 5 years' imprisonment for aggravated battery, to run concurrently.

Petitioner appealed his conviction, and the Illinois Appellate Court affirmed the conviction on March 24, 1993. People v. Boyd, No. 1-91-0098 (Ill. App. 1993). Petitioner did not file a petition for leave to appeal ("PLA") to the Illinois Supreme Court.

On August 3, 1993, petitioner filed a counseled post-conviction petition pursuant to 725 ILCS 5/122-1, et seq. After holding an evidentiary hearing, the state trial court denied the petition on October 12, 1994. Petitioner appealed, and on January 31, 1996, the state appellate court affirmed. People v. Boyd, No. 1-94-3734 (Ill. App. 1996). Petitioner filed a PLA in the state supreme court, which that court denied on June 5, 1996. People v. Boyd, 667 N.E.2d 1059 (Ill. 1996).

Petitioner filed a second post-conviction petition on March 19, 1998. The state trial court denied that petition on May 7, 1998. Petitioner again appealed, and on August 30, 2000, the state appellate court affirmed. People v. Boyd, No. 1-98-2135 (Ill. App. 2000). Petitioner filed a PLA in the state supreme court, which that court denied on November 29, 2000. People v. Boyd, No. 90361 (Ill. 2000).

On March 6, 2002, petitioner filed a third (counseled) post-conviction petition. After an evidentiary hearing, the state trial court denied the petition on September 15, 2004. Petitioner appealed, and on May 12, 2006, the state appellate court affirmed. People v. Boyd, No. 90 CR 8602. Petitioner filed a PLA in the state supreme court, which was denied on September 27, 2006.

Petitioner filed his fourth post-conviction petition on July 14, 2008. The state trial court denied that petition on September 12, 2008, and petitioner filed a notice of appeal on October 30, 2008. This post-conviction appeal is currently pending.

Petitioner filed the instant petition for writ of habeas corpus on July 15, 2008. On August 25, 2008, and again on September 23, 2008, petitioner moved to amend his petition with additional grounds for relief. The court granted both motions.

As amended, the habeas petition raises seven claims:

(A) the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose a witness's statement to police that petitioner was not the shooter;

(B) petitioner is actually innocent;

(C) the state trial court made unsupported factual and credibility determinations when it denied petitioner's third post-conviction petition;

(D) trial counsel was ineffective for failing to:

(1) call several witnesses who had given police a physical description of the shooter that was inconsistent ...


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