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United States of America Ex Rel. Russzell Russell v. Dave Rednour

March 23, 2011

UNITED STATES OF AMERICA EX REL. RUSSZELL RUSSELL, PETITIONER,
v.
DAVE REDNOUR, WARDEN, MENARD CORRECTIONAL CENTER, RESPONDENT.



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

MEMORANDUM OPINION

This matter is before the court on Petitioner Russzell Russell's (Russell) petition for writ of habeas corpus (Petition). For the reasons stated below, the court denies the Petition.

BACKGROUND

In 2004, a jury convicted Russell in Illinois state court of first degree murder for shooting an individual in the back of the head during an attempted armed robbery. Russell was sentenced to seventy years in prison. Russell appealed the conviction, and on October 26, 2007, the Illinois Appellate Court affirmed the conviction. Russell filed a petition for leave to appeal to the Illinois Supreme Court (PLA), which was denied on January 30, 2008.

On July 30, 2008, Russell filed a post-conviction petition, and on September 30, 2008, the petition was summarily dismissed. Russell appealed the dismissal and his counsel moved to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). (R Ex. H 1). On September 8, 2009, the Illinois Appellate court concluded that no meritorious issues were present and granted counsel's motion to withdraw. (R Ex. J). On October 16, 2009, Russell filed a PLA on his post-conviction appeal, which was denied on January 27, 2010. On April 30, 2010, Russell filed the Petition in this action.

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

Russell argues in his Petition: (1) that his trial counsel was ineffective for failing to call Russell to testify during the hearing on his motion to suppress (Claim 1), (2) that his appellate counsel on his direct appeal (Appellate Counsel) was ineffective for failing to raise his trial counsel's failure to object to or preserve for review what Russell deemed to be suggestive lineup procedures (Claim 2), (3) that his Appellate Counsel was ineffective for failing to raise his trial counsel's failure to preserve for review the argument that Russell's statement was involuntary (Claim 3), and (4) that his Appellate Counsel was ineffective for failing to raise his trial counsel's failure to object the jury instruction on the issue of identification testimony (Claim 4).

I. Procedurally Defaulted Claims

Respondent argues that Claims 2, 3, and 4 are procedurally defaulted and that there is no ...


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