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United States ex rel Hillard v. Anglin

November 5, 2010


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

Judge Robert W. Gettleman


Petitioner Tony Hillard has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming ineffective assistance of trial, appellate, and post-conviction counsel. For the reasons below, the petition is denied.


Following a jury trial in the Circuit Court of Cook County, Illinois, petitioner was convicted of armed robbery, armed violence, aggravated kidnaping, and aggravated battery, and was sentenced to an aggregate sentence of 50 years' imprisonment: consecutive sentences of 25 years for armed violence, 15 years for armed robbery, and 10 years for aggravated kidnaping.*fn2

At trial, the victim testified to the following: On the morning of May 10, 1997, the victim's estranged wife, who was working as his secretary, was late to work, so he paged her. She called him back, explained that her car was not working, and asked him to pick her up at her apartment. When he arrived at her apartment around 10:15 a.m., she invited him to wait inside while she finished getting ready. As he entered the apartment, someone hit him over the head with a baseball bat, knocking him unconscious. When he awoke some time later, his clothing had been removed and his feet were bound together with electrical tape. He saw his wife and three or four other men in the room. One man was holding a bat in one hand and a gun in the other hand; a scarf covered the lower part of his face. Petitioner's co-defendant, Erven Walls, held a gun. The man with the baseball bat and the gun walked over to the victim, told him to keep his eyes closed, and hit him on the head with an iron object. Then Walls walked over to the victim and hit him repeatedly on the head and around the eyes. The two men pulled the victim into the bathroom and placed him in the bathtub.

Petitioner then entered the bathroom, put a gun in the victim's mouth, and demanded that the victim tell him where he kept his money and his car. Petitioner left the bathroom, returning a few moments later with the gun and a pillow. Walls handcuffed the victim's hands behind his back and bound his legs and hands together with electrical tape. Petitioner began to cover the victim's face with the pillow, but the man with the bat stopped him. Over the next five hours, the men continued to threaten the victim at gunpoint, demanding to know where he kept his money. Eventually, the men presumably gave up. Petitioner placed a towel over the victim and turned on the bathtub's water faucet. The men left.

Around 7 p.m., the victim freed himself from the electrical tape binding his feet and, realizing he was alone in the apartment, walked outside onto the street. He saw the man with the baseball bat and co-defendant Walls standing across the street. They noticed the victim and immediately fled.

Officer Ramirez testified that he was on patrol on May 10, 1997, when a young boy stopped him and directed him to the victim, who was standing on the street, handcuffed, with duct tape on his mouth and an open head wound. The victim brought Officer Ramirez into his wife's apartment, where Officer Ramirez saw hundreds of plastic bags, a scale, white powder, spoons, and breathing masks, as well as blood in the bathtub. He recovered two loaded revolvers and identification documents for petitioner, three other men, and the victim's wife.

Detective Bradley testified that he was assigned to follow-up investigation. The victim provided him with petitioner's name, as well as his wife's name and the name of another individual whose identification Officer Ramirez had recovered. When Detective Bradley arrested co-defendant Walls and the victim's wife on September 17, 1997, he learned that one of the recovered guns was registered to Loretha Hillard, petitioner's sister. During a phone conversation, Loretha informed Detective Bradley that petitioner was the only person who would have taken her gun, and gave him petitioner's address.

Detective Bradley arrived at the address with other officers. A woman, Benicia Eberhardt, answered the door, and Detective Bradley saw a man standing behind her. Detective Bradley asked him his name; petitioner responded with a fictitious name. Detective Bradley asked petitioner why he had stolen his sister's gun, and petitioner responded that he had not stolen her gun. When asked if he would accompany the officers to the police station to discuss the theft of his sister's gun, petitioner agreed, and then provided his real name but continued to deny knowledge of the gun's whereabouts. The officers arrested him and took him to the police station, where the victim identified him in a lineup.

In November 1997, petitioner was indicted in the Circuit Court of Cook County. He filed a pretrial motion to quash his arrest and suppress evidence. After a hearing on March 4 and 5, 1998, the trial court denied the motion, finding that the detective who arrested petitioner had reasonable grounds to believe that petitioner had committed the offense and that probable cause to arrest him existed. At this hearing and at trial, petitioner was represented by Assistant Public Defender ("APD") Cheryl Bormann.

Petitioner appealed his conviction, arguing (among other things) that the trial court erred in failing to grant his motion to quash arrest when the police lacked probable cause for the arrest. The Illinois Appellate Court affirmed. People v. Hillard, No. 1-99-0152 (Ill. App. Ct. June 11, 2001) (unpublished order pursuant to Illinois Supreme Court Rule 23). Petitioner filed a pro se petition for leave to appeal ("PLA") to the Illinois Supreme Court, which was denied. People v. Hillard, No. 91958 (Ill. Oct. 3, 2001). Petitioner did not file a petition for a writ of certiorari to the Supreme Court of the United States.

On August 23, 2001, petitioner filed a pro se post-conviction petition pursuant to 725 ILCS 5/122-1 et seq. in the Circuit Court of Cook County. APDs Cheryl Miller, George Dykes, and Marge Sanders were appointed to represent petitioner. They filed a supplemental post-conviction petition on November 25, 2003. The State moved to dismiss the pro se and supplemental petitions on January 27, 2004. On February 4, 2004, petitioner filed a second (counseled) supplemental post-conviction petition. The State filed an amended motion to dismiss on February 19, 2004. Petitioner argued: (1) the prosecution withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) his 25-year sentence for armed violence should be vacated pursuant to People v. Cervantes, 189 Ill.2d 80 (Ill. 1999); and (3) he received ineffective assistance of counsel at the pretrial hearing on his motion to quash the arrest and suppress evidence.

The court dismissed petitioner's Brady claim, granted a new sentencing hearing on the Cervantes issue (and resentenced him to 45 years' imprisonment), and granted an evidentiary hearing on the allegation of ineffective assistance of counsel based on trial counsel's failure to call petitioner's sister, Loretha Hillard, as a witness at the hearing on the motion to quash arrest. The evidentiary hearing was held on April 28, 2004. At its conclusion, the trial court issued an oral ruling denying the petition, finding that petitioner "failed to establish any credible basis for this court to warrant that he was denied effective assistance of counsel by [trial counsel's] failure to call Loretha Hillard as a witness at the suppression hearing." People v. Hillard, No. 97 CR 30453.

Represented by present counsel Frederick F. Cohn, petitioner appealed to the Illinois Appellate Court. Petitioner raised three arguments: 1) ineffective assistance of post-conviction counsel because his counsel worked in the same office as APD Bormann, who was a supervisor in the public defender office during the post-conviction proceedings; 2) ineffective assistance of trial counsel, appellate counsel on direct appeal, and post-conviction trial counsel, all arising out of purported failures of legal research at the suppression hearing; and 3) post-conviction counsel's failure to comply with Illinois Supreme Court Rule 651(c). The Appellate Court affirmed. People v. Hillard, No. 1-04-3365 (Ill. App. Ct. June 15, 2007). Petitioner filed a PLA to the Illinois Supreme Court, which was denied. People v. Hillard, No. 105011 (Ill. Nov. 29, 2007).

On March 27, 2008, petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises five ineffective assistance claims:

A. Trial counsel failed to properly research the law related to the use of a general description as probable cause to support an arrest and failed to present the court with this case law during the suppression hearing. If the law had been properly researched and presented to the court, the court would have suppressed both the out-of-court and in-court ...

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