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United States of America, Ex Rel. Kelvin Carter v. Donald Gaetz

February 24, 2011

UNITED STATES OF AMERICA, EX REL. KELVIN CARTER, PETITIONER,
v.
DONALD GAETZ, RESPONDENT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Petitioner Kelvin Carter's (Carter) petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 (Petition). For the reasons stated below, the Petition is denied.

BACKGROUND

In January 2004, Carter was convicted in a state court bench trial of first degree murder. Carter was sentenced to forty-five years of imprisonment. Carter appealed his conviction and sentence, and on February 8, 2006, the Illinois Appellate Court affirmed his conviction and sentence. Carter then filed a pro se petition for leave to appeal (PLA) in the Illinois Supreme Court, and the petition was denied on September 27, 2006. On March 27, 2007, Carter filed a post-conviction petition, which was dismissed on June 25, 2007. Carter appealed the dismissal, and on May 8, 2009, the Illinois Appellate Court affirmed the trial court's dismissal of the post-conviction petition. Carter then filed a PLA in the Illinois Supreme Court on his post-conviction petition, and the PLA was denied on September 30, 2009. On June 21, 2010, Carter filed the instant Petition pursuant to 28 U.S.C. § 2254.

LEGAL STANDARD

An individual in custody pursuant to state court judgment may seek a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which provides the following:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The decision made by a state court is deemed to be contrary to clearly established federal law "'if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.'" Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009)(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). The decision by a state court is deemed to involve an unreasonable application of clearly established federal law "'if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.'" Emerson, 575 F.3d at 684 (quoting Bell, 535 U.S. at 694).

DISCUSSION

Carter contends in the Petition: (1) that he was denied due process when the prosecutor presented statements from Aisha Hood (Hood), Tamika Austin (Austin), and Bathsheba Rooks (Rooks) (Claim 1), (2) that he was denied due process when the prosecutor presented testimony from Leroy Lane (Lane) (Claim 2), (3) that there was insufficient evidence to prove Carter guilty beyond a reasonable doubt since the evidence consisted, in part, of testimony by a convicted felon (Claim 3), (4) that Carter is actually innocent, despite the verdict (Claim 4), (5) that Carter's trial counsel was ineffective for failing to call as a witness Gigi Spicer (Spicer) (Claim 5),

(6) that Carter's trial counsel was ineffective for failing to object to the admission of hearsay (Claim 6), (7) that Carter's appellate counsel on his direct appeal was ineffective for failing to argue that trial counsel was ineffective for failing to call Spicer as a witness (Claim 7), and (8) that the Illinois statutory firearm sentence enhancement violates Carter's due process rights (Claim 8). Respondent argues that the court should deny the Petition in its entirety, contending that the Claims 1 and 5-8 are procedurally defaulted, that Claims 4 and 8 are not legally cognizable claims, and that Claims 2 and 3 are meritless.

I. Procedurally Defaulted Claims

Respondent argues that Claims 1 and 5-8 are procedurally ...


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