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United States of America Ex Rel. v. Donald Gaetz

March 22, 2011

UNITED STATES OF AMERICA EX REL. JAMES SWANSEY, PETITIONER,
v.
DONALD GAETZ, WARDEN, MENARD CORRECTIONAL CENTER, RESPONDENT.



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

MEMORANDUM OPINION AND ORDER

Petitioner James Swansey has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that the state trial court erred in denying his motion to quash his arrest and that he was denied his rights to a unanimous jury verdict and due process when only eleven of the twelve jurors signed the verdict form. For the reasons below, the petition is denied.

BACKGROUND

Following a jury trial in the Circuit Court of Cook County, Illinois, petitioner was convicted of two counts of first degree murder and two counts of armed robbery, and was sentenced to concurrent prison terms of natural life for the murder convictions and thirty years for armed robbery.

On March 14, 1996, petitioner was indicted in the Circuit Court of Cook County. He subsequently filed a pretrial motion to quash his arrest. After a hearing, the trial court denied the motion, finding that probable cause to arrest him existed. On direct appeal, the state appellate court made the following findings, presumed correct on federal habeas review absent clear and convincing evidence to the contrary, Gonzales v. Mize, 565 F.3d 373, 384 (7th Cir. 2009), regarding the trial court's hearing on the motion to quash:

At the hearing on [petitioner's] motion to quash his arrest, the evidence established that on September 28, 1992, the victims, Jose Torres and Javier Guzman, were both shot in the back of the head from close range and robbed in an alley at 1859 West Farwell in Chicago. Detective Wayne Johnson testified in January 1993, Kenneth Kenry was being questioned as a witness in an unrelated murder when he mentioned that Frazier Crockett, a suspect in the unrelated murder, had been involved with [petitioner] in the unsolved murder of "two Mexicans" in September. The officers left to verify the police reports in the Torres/Guzman murders, and when they returned Henry gave them more details about the murders. Henry told them that the murders occurred in an alley between Pratt and Farwell, that the two victims had been shot in the back of their heads while lying face down, that they had been robbed and their wallets were found farther down the alley, and that the bullets recovered from their bodies were .22 caliber. Henry also told officers that he knew [petitioner] and Crockett very well because they sometimes lived with Henry, and [petitioner] and Crockett had described the murders to him the day after they happened. Henry was familiar with the murder weapon, a dark-colored, rusty .22 caliber revolver, with tape on the handle, because he gave it to Crockett and defendant to sell a week before the murders. Henry also told the police that the gun had been recovered in an unrelated incident from another individual and subsequently gave the officers bullets for the gun. Officer Johnson spoke to another officer and learned that the gun had in fact been recovered in an unrelated incident. When the information from Henry was corroborated by the police report, the officers began to look for [petitioner] and Crockett. [Petitioner] was arrested January 24, 1993, on the street without a warrant. Detective Tom Blomstrand testified that he initially considered Henry a suspect in the unrelated murder about which he was being questioned and that he told Henry to let the officers know if he saw [petitioner] or Crockett on the street.

Blomstrand stated that Henry had initially lied about being a witness in the unrelated murder case, but after a polygraph test Henry provided additional information in that case. Blomstrand also testified that he relied on the information in the police reports and also the firearms report. Blomstrand stated that he did not seek a warrant for [petitioner's] arrest.

After his motion to quash was denied, petitioner proceeded to trial and was found guilty of two counts of first degree murder and two counts of armed robbery. Eleven of the twelve jurors signed the verdict form.

Petitioner appealed his conviction, arguing that the trial court erred in failing to grant his motion to quash arrest. The Illinois Appellate Court affirmed. People v. Swansey, No. 1-96-2143 (Ill. App. Ct. May 13, 1998) (unpublished order pursuant to Illinois Supreme Court Rule 23). Petitioner filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court, which was denied. People v. Swansey, No. 85707 (Ill. Oct. 6, 1998). Petitioner did not file a petition for a writ of certiorari to the Supreme Court of the United States.

On March 30, 1998, while his direct appeal proceedings were pending, petitioner filed a pro se post-conviction petition pursuant to 725 ILCS 5/122-1 et seq. in the Circuit Court of Cook County. Counsel was appointed to represent petitioner. Through counsel, petitioner filed a supplemental post-conviction petition in October 2001. Petitioner argued: (1) he was denied due process when he was convicted by an eleven-person jury; (2) he received ineffective assistance of appellate counsel; and (3) under Blockburger v. United States, 284 U.S. 299 (1932), double jeopardy prevented a retrial. The court dismissed the petition. Swansey v. People, No. 85707.

In March 2006, the appellate court reversed and remanded, holding that, (1) petitioner had made a substantial showing that appellate counsel was ineffective, and (2) post-conviction counsel failed to comply with Rule 651(c). People v. Swansey, No. 1-04-1941 (Ill. App Ct. March 13, 2006). On remand, the post-conviction trial court denied post-conviction relief, explaining that an affidavit from the twelfth juror stated that she had intended to sign the verdict form and that her failure to do so was a mere oversight.

On appeal, the Office of the State Appellate Defender filed a motion for leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), asserting that there were no issues of arguable merit for appeal. Petitioner filed a response. The Illinois Appellate Court affirmed, finding no issues of arguable merit. People v. Swansey, No. 1-07-2151 (Ill. App. Ct. Oct. 17, 2008). Petitioner filed a PLA to the Illinois Supreme Court, which was denied.

People v. Swansey, No. 107574 (Ill. Jan. 28, 2009).

On September 15, 2009, petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254, raising two claims: (1) petitioner's motion to quash his warrantless arrest was improperly denied; and (2) petitioner was denied his rights to a unanimous jury verdict and ...


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