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United States of America Ex Rel. v. Marcus Hardy

March 29, 2011

UNITED STATES OF AMERICA EX REL. WALTER VEGA, PETITIONER,
v.
MARCUS HARDY, WARDEN, STATEVILLE CORRECTIONAL CENTER,*FN1 RESPONDENT.



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

MEMORANDUM OPINION AND ORDER

Petitioner Walter Vega, an inmate at Stateville Correctional Center, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons below, the petition is denied. The court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

BACKGROUND

Following a jury trial in the Circuit Court of Cook County, Illinois, petitioner was convicted of one count of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse, and was sentenced to concurrent prison terms of 28 and 7 years, respectively. At his trial, the evidence established that, on May 3, 1999, petitioner approached A.H., a seventeen year old girl, grabbed her by the back of the neck, told her not to move because he had a knife, and led her into a gangway. Once in the gangway, petitioner made contact between his penis and her vagina, anus, and mouth. After the assault, petitioner warned her: "this never happened, I saw where you live and I can hurt you and I'll hurt your family." Nine months later, A.H. saw petitioner and called the police, who arrested him. While in police custody, petitioner gave a written confession.

Petitioner appealed his conviction, arguing that his trial counsel was ineffective for three reasons: 1) failing to win suppression of a self-incriminating statement petitioner had made; 2) allowing the prosecutor to allude to the investigation of petitioner's involvement in other crimes; and 3) failing to object to comments the prosecutor made during closing argument. The Illinois Appellate Court affirmed. People v. Vega, No. 1-04-2409 (Ill. App. Ct. Feb. 28, 2006). Petitioner failed to file a petition for leave to appeal ("PLA") to the Illinois Supreme Court or a petition for a writ of certiorari to the Supreme Court of the United States.

On November 21, 2006, petitioner filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. Petitioner argued: (1) the statutes under which petitioner was convicted were "unauthorized" because the legislation renaming them was not intended to create criminal laws; and (2) the prosecution had violated his due process rights by attempting to "inflame the passions of jurors by employing gender bias" in stating (in the context of explaining jury instructions) that "[t]here is a certain segment of the population[,] and ladies I think you are going to know what I am talking about, that don't always like to read directions before they set up a high chair, before they install a DVD player." The trial court dismissed the petition, finding that both arguments lacked merit. People v. Vega, No. 00 CR 6531 (Cook County Cir. Ct. Jan. 19, 2007). The court further found that because petitioner had already raised the second claim on direct appeal, it was barred by res judicata. Id.

On appeal, petitioner was represented by the Office of the State Appellate Defender. His counsel 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 because petitioner failed to raise either of his two claims on direct appeal (and because the first argument was meritless and the second would be either procedurally barred or barred by res judicata). Mot. to Withdraw, People v. Vega, No. 1-07-0405 at 4, citing People v. King, 192 Ill.2d 189, 193 (2000). Petitioner alleges, and the Illinois Appellate Court recognized, that petitioner filed a response. People v. Vega, No. 1-07-0405, at 2 (Ill. App. Ct. Oct. 24, 2008) ("Defendant has filed a number of pro se responses objecting to counsel's motion and the assessment of the merits of his case."). According to respondent, however, these documents cannot be located; the court will thus assume that petitioner filed a response with the claims asserted in his post-conviction PLA. People v. Vega, No. 107818, at 11-17. The court granted the motion to withdraw and, finding no issues of arguable merit, affirmed the dismissal of petitioner's post-conviction petition. People v. Vega, No. 1-07-0405 (Ill. App. Ct. Oct. 24, 2008).

Petitioner filed a PLA in the Illinois Supreme Court, raising three claims: (1) the Illinois Appellate Court's application of Finley conflicted with the Illinois Constitution; (2) the Illinois Appellate Court failed to comply with Finley because it dismissed petitioner's appeal without requiring his counsel to consult with him; and (3) on appeal of the trial court's dismissal of his post-conviction petition, petitioner was denied due process and effective assistance of counsel. People v. Vega, No. 107818, at 2, 10-11. The Illinois Supreme Court denied petitioner's PLA. Notice of PLA Denial, People v. Vega, No. 107828 (Ill. March 25, 2009).

On July 15, 2009, petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising five claims:

(A) the Illinois Appellate Court unreasonably applied Finley by dismissing petitioner's appeal without requiring his appointed counsel to consult with him and review the record;

(B) the trial court's jury instructions and the prosecution's closing argument both constructively amended petitioner's indictments;

(C) by constructively amending petitioner's indictments, the trial court and prosecution deprived petitioner of his right to make a closing argument;

(D) petitioner was denied a unanimous jury verdict because some jurors might have found him guilty only of oral penetration, which his indictment did not mention; and

(E) Illinois's statutory definition of "penetration" is unconstitutional because it "allowed petitioner to be convicted of an act of penetration when he was ...


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