The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Wednesday, 11 May, 2011 03:26:22 PM
Clerk, U.S. District Court, ILCD
Petitioner, Derrondas Reed, filed this Petition for a Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (#1) on February 22, 2010. Respondent filed his Answer (#15) on August 25, 2010. Petitioner's Reply (#20) was filed on November 10, 2010. For the following reasons, Petitioner's Petition (#1) is DENIED.
The facts determined by a state court are presumed to be correct unless rebutted by the petitioner with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Badelle v. Correll, 452 F.3d 648, 659 (7th Cir. 2006). The following factual background relating to Petitioner's claims has been taken from the Rule 23 unpublished direct appeal decision on Petitioner's case rendered by the Illinois Fourth District Appellate Court on August 1, 2007:
In late December 2005 or early January 2006, Jasmine Deviner ended her relationship with Petitioner after more than seven years of dating. Deviner testified that Petitioner did not want the relationship to end. The two continued to talk and see each other after the breakup. On January 12, 2006, Deviner got off work around 4:00 pm and received numerous calls from Petitioner. She eventually went over to the home of her cousin, Latoyia Chapman, and continued to receive calls from Petitioner, in which he threatened her life. About a quarter after midnight, Chapman needed to go somewhere, and Deviner had to move her car out of the driveway so Chapman could leave. After Deviner returned her car to the driveway, she heard Chapman yell at her to get down. Deviner looked up, saw Petitioner on her car's hood, and dialed 9-1-1. Petitioner then came to her driver's side window and started shooting. Deviner received at least five separate gunshot wounds. Chapman also identified Petitioner as the shooter.
After he stopped shooting, Petitioner ran toward a Jeep. When Deviner saw Petitioner return, she ran into Chapman's home and went to the bathroom where she shut the door. She later heard glass break, and Petitioner came to the bathroom with a gun. Petitioner dragged Deviner out of the house and into the front yard. Petitioner and an accomplice, Michael Jarrett, tried to lift Deviner, but they let go of her and got into the Jeep.
The State of Illinois charged Petitioner with attempt (first degree murder) (720 Ill. Comp. Stat. 5/8-4(a), 9-1(a)(1) (West 2006)), aggravated battery with a firearm (720 Ill. Comp. Stat. 5/12-4.2(a)(1) (West 2006)), two counts of home invasion (720 Ill. Comp. Stat. 5/12-11(a)(3) (West 2006)), and unlawful possession of a weapon by a felon (720 Ill. Comp. Stat. 5/24-1.1(a) (West 2006)). The unlawful possession of a weapon charge was later severed from the other charges for trial purposes. In May 2006 a jury found Petitioner guilty of attempt (first degree murder), aggravated battery with a firearm, and one count of home invasion. He was found not guilty of the other count of home invasion.
On May 9, 2006, Petitioner filed a pro se motion, in which he alleged he was denied effective assistance of counsel due to: (1) a lack of communication between himself and counsel; (2) counsel not representing him to counsel's full potential; (3) counsel's failure to subpoena the witnesses Petitioner requested; (4) counsel not cross-examining witnesses to the best of his legal ability; and (5) counsel not being prepared for trial. On June 2, 2006, the court held a Krankel hearing*fn2 on Petitioner's ineffective assistance of counsel claim. Petitioner indicated that he wanted Joyce Reed and Rhonda Reed to testify about Petitioner's whereabouts at the time of the shooting to show he had an alibi. He also wanted Deviner recalled because he claimed her testimony was a lie and the result of threats by the trial court and prosecution, which he could support through the testimony of Greg and Monterio Lagrone. Petitioner further stated he had only one meeting with counsel before trial and that counsel did not prepare a defense and cross-examine the witnesses to the best of his ability.
When questioned by the court, defense counsel denied Petitioner ever mentioned any witnesses that could provide an alibi for Petitioner. Petitioner had mentioned the Reeds could testify to his prior drug usage and the possibility he was intoxicated on the night of he shooting in support of an involuntary intoxication defense. Counsel explained to Petitioner that Illinois no longer provided for such a defense. Counsel also claimed he met with Petitioner three to four times prior to trial. The court noted it had observed counsel's performance during trial and found counsel did the best cross-examinations he could under the circumstances, as the evidence against Petitioner was overwhelming. The trial court concluded that appointment of separate counsel to investigate Petitioner's ineffective assistance of counsel claim was not necessary. Defense counsel then filed an amended post-trial motion, which was denied. Petitioner was sentenced on June 21, 2006. The court found the aggravated battery with a firearm conviction merged with the attempt (first degree murder) conviction and sentenced Petitioner to consecutive terms of 35 (attempt) and 25 (home invasion) years in the Illinois Department of Corrections (IDOC). A motion to reconsider sentence was denied.
In his direct appeal, Petitioner raised one issue: the trial court erred when it denied his request to have a different attorney appointed to represent him concerning his post-trial claims that his trial attorney rendered ineffective assistance of counsel. The Illinois Fourth District Appellate Court rejected Petitioner's argument, noting that the trial court was in compliance with Krankel when it discussed Petitioner's allegations with Petitioner and Petitioner's counsel, and relied on its own knowledge of defense counsel's performance. The appellate court found that defense counsel did investigate the Reeds as possible witnesses based on the information Petitioner provided, which concerned a voluntary intoxication defense, not an alibi defense. The appellate court also found that Deviner was not forced to testify due to "threats" from the prosecution and court. Rather, the court stated that the trial court's informing Deviner of the consequences of failing to appear on a subpoena and offering a police officer to be with her during her lunch break for her safety were not threats. Further, if defense counsel cross-examined Deviner in front of the jury about her discussion with the court on appearing for a subpoena, Petitioner could be prejudiced if Deviner said she did not want to testify due to threats from Petitioner. The court also found that Deviner was not the only State witness who could identify Petitioner as the shooter and that counsel's cross-examination was trial strategy entitled to great deference.
Direct Appeal Petition for Leave to Appeal (PLA) to Illinois Supreme Court In his direct appeal PLA to the Illinois Supreme Court, Petitioner argued the appellate court erred under Illinois law when it failed to appoint him separate counsel to investigate his claims of ineffective assistance of trial counsel. The Supreme Court denied his PLA on November 29, 2007.
Petitioner's Post-Conviction Petition
Petitioner filed a pro se Post-Conviction Petition on August 8, 2008. In the petition, Petitioner made the following arguments:
Claim I- he was denied effective assistance of counsel on direct appeal when appellate defense counsel failed to argue that the evidence was insufficient to prove Petitioner guilty beyond a reasonable doubt;
Claim II- the prosecutor's misconduct by misstating facts and inflaming the jury;
Claim III- his sentence was improperly enhanced because the statutes involved violate the proportionate penalties clause, were enacted in violation of the single subject rule, and subject Petitioner to double jeopardy;
Claim IV- the trial court improperly prevented Petitioner from presenting evidence that trial counsel was ineffective for failing to impeach witnesses with their pre-trial inconsistent statements;
Claim V- defense counsel was ineffective for failing to produce witnesses who would have contradicted Deviner's testimony at trial and was ineffective for failing to make efforts to call or produce witnesses who would have given notice of an alibi defense (Reeds);
Claim VI- defense counsel was ineffective for neglect in preparation of trial and during the actual trial itself for failing to (1) investigate the veracity of Jasmine Deviner's post-trial hearing testimony, in which she claimed that she recanted her trial testimony in a post-trial affidavit because she was afraid of certain individuals (Greg and Mario Lagrone); (2) investigate Tiffany Althoff and Tasha Flagg, who would have impeached the credibility of Deviner's post-trial testimony that she provided a false affidavit only because she was afraid of certain individuals; (3) adequately consult with Petitioner prior to trial; (4) obtain Petitioner's phone records to impeach the assertions of the State's witnesses; (5) consult with a forensic expert to produce favorable evidence for Petitioner at trial; (6) request a continuance to adequately prepare for trial; (7) investigate whether Deviner's post-trial testimony disavowing her post-trial affidavit was coerced by the police and prosecutor, and whether her accusation concerning threats from Greg and Mario Lagrone were false; and (8) meaningfully prepare for trial, which prevented Petitioner from testifying.
Claim VII- he was denied effective assistance of counsel on the direct appeal of his conviction and sentence;
Claim VIII- he was denied his Constitutional rights to Due Process and Equal Protection by the cumulative effect of the violations set forth in Claims I-VIII.
On August 31, 2007, Petitioner's pro se Post-Conviction Petition was found "frivolous or patently without merit" and dismissed with prejudice. Petitioner appealed, but on May 9, 2009, his appellate counsel filed a motion to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987), concluding that Petitioner's appeal presented no issue of merit upon which Petitioner could realistically expect to obtain any relief from the court. The appellate court then accepted Petitioner's pro se brief. In this brief, Petitioner listed all of the claims made in his Post-Conviction Petition. He argued the Petition stated the "gist" of a constitutional claim. He argued more generally about prosecutorial error, improper sentencing, trial counsel's lack of preparation denying him the opportunity to testify, and trial counsel's failure to investigate the possibility that Deviner's post-trial hearing testimony was coerced by the police or prosecution.
On September 29, 2009, the Fourth District Appellate court issued a Rule 23 Order finding Petitioner's claims without merit. It rejected his arguments on the issues of ineffective assistance of appellate counsel for failure to raise reasonable doubt, prosecutorial misconduct during rebuttal closing argument, sentence enhancement, ineffective assistance of trial counsel, and cumulative error.
Petitioner's Post-Conviction Petition PLA to the Illinois Supreme Court Petitioner then filed a PLA with the Illinois Supreme Court. In the PLA he referenced the Fourth District decision denying the appeal of his Post-Conviction Petition. Petitioner recited a "Statement of Facts." In that statement, Petitioner listed all the grounds he put in his Post-Conviction Petition. The grounds were basically listed in single sentence form, except for the ground alleging trial counsel's ineffectiveness for failing to investigate Deviner's alleged coerced recantation testimony at the post-trial hearing. In the "Argument" section of the PLA, however, Petitioner focused on (1) how the appellate court on direct review would not let him raise some of his claims and (2) trial counsel's failure to investigate State witnesses after the post-trial hearing who had "been threatened and coerced by the State's Attorney and Police to give false testimony." Petitioner explained this rendered trial counsel ineffective. The last paragraph in Petitioner's PLA stated:
"Defendant/Appellant herein (Incorporates) as part of this Petition for Leave to Appeal to the Illinois Supreme Court Each and Every Claim Presented in his Post-Conviction Petition filed (August 8, 2008), Some of which were not even addressed by the Circuit Court or Appellate Court for the Fourth Judicial District of Illinois, Also (Incorporating) his Additional Points and Authorities and Reply Brief in Appeal No. 4-08-0644 as part of his Petition herein."
Petitioner also attached, as part of the appendix, the Fourth District Appellate Court's Order of September 29, 2009. The Illinois Supreme Court ...