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Edward C. Daniel v. Richard Birkey

May 18, 2011

EDWARD C. DANIEL, PETITIONER,
v.
RICHARD BIRKEY, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

E-FILED

Wednesday, 18 May, 2011 04:01:33 PM

Clerk, U.S. District Court, ILCD

OPINION

This case is before the court for ruling on the pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (#1) filed by Petitioner, Edward C. Daniel. After careful consideration of Petitioner's Petition (#1), Respondent's Answer (#30), Petitioner's Reply (#31) and all of the supporting exhibits filed by the parties, Petitioner's Petition (#1) is DENIED.

BACKGROUND

Following a jury trial in May 2006, Petitioner was convicted of unlawful delivery of a controlled substance and unlawful possession of a controlled substance with intent to deliver. At trial, Officer Jeff Martin testified that he used an informant, Calvin Smith, to set up a controlled buy of heroin on January 9, 2006, at approximately 8 p.m. Smith agreed to contact Petitioner to ask to purchase heroin, and police set up surveillance at Smith's residence. Officer Martin searched Smith prior to the transaction and gave Smith prerecorded bills totaling $50 to purchase the drugs. Petitioner drove to Smith's house, and Smith walked out to Petitioner's car. After meeting with Petitioner, Smith returned to Martin's vehicle and handed him three plastic baggies containing heroin and dormin pills. Martin testified that dormin is a drug often mixed with heroin. Martin radioed the other officers that the transaction was complete and Officer Dustin Brown initiated a traffic stop and arrested Petitioner. Brown conducted a pat-down search of Petitioner and discovered $450 on his person. Later, during a strip search at the jail, police found 17 more bags of heroin and dormin pills hidden under Petitioner's clothes. The prerecorded $50 was found in Petitioner's car. When police called the phone number Smith used to arrange the transaction, the cellular telephone in Petitioner's possession at the time of his arrest rang.

Calvin Smith did not testify at trial. However, Martin acknowledged during his testimony that Smith's participation was motivated by the fact that Smith had been arrested for possession of a hypodermic needle and a dormin pill. Martin also testified that Smith was paid for his cooperation. In closing argument, Petitioner's counsel argued that Smith could have concealed drugs on his body and set up Petitioner with a fake drug buy in order to get himself out of his own legal troubles.

Prior to trial, the indictment against Petitioner was amended, without objection from Petitioner's counsel. Count I of the original indictment charged Petitioner with a Class X felony and alleged that Petitioner: committed the offense of UNLAWFUL DELIVERY OF A CONTROLLED SUBSTANCE WITHIN 1,000 FEET OF A PUBLIC PARK, in that said defendant, while within 1,000 feet of the real property comprising Snow Park, a public park located in the 100 block of North Hobbie Avenue in the City of Kankakee, knowingly and unlawfully delivered to a confidential source, in violation of Chapter 720, Paragraph 570/401(c)(1) of the Illinois Compiled Statutes, 1 or more grams, but not less than 15 grams, of a substance containing heroin, a controlled substance, other than as authorized in the Illinois Controlled Substances Act, in violation of Chapter 720, Paragraph 570/407(b)(1) of the Illinois Compiled Statutes.

Count II of the original indictment charged Petitioner with a Class 1 felony and alleged that Petitioner "committed the offense of UNLAWFUL POSSESSION OF A CONTROLLED SUBSTANCE WITH THE INTENT TO DELIVER, in that said defendant knowingly and unlawfully possessed, with the intent to deliver, 1 gram or more, but less than 15 grams, of a substance containing heroin, a controlled substance, other than as authorized in the Illinois Controlled Substances Act, in violation of Chapter 720, Paragraph 570/401(c)(1) of the Illinois Compiled Statutes."

Before the jury was selected, the prosecutor asked to amend Count I of the indictment and stated that he wanted to proceed on a charge of delivery of a controlled substance without reference to the delivery being within 1,000 feet of a public park. He stated that Count I was also being amended to state that the amount delivered was less than one gram, in violation of 401(d) of the Illinois Controlled Substances Act. Petitioner's counsel stated that he had no objection and further stated that the amended charge was a Class 2 felony. The record shows that the original indictment against Petitioner was amended by making handwritten corrections. The indictment, as amended, has the language regarding a public park crossed out and the amount of the controlled substance in both Count I and Count II crossed out and "less than 1 gram" written in.

At sentencing, the trial court reviewed Petitioner's lengthy criminal history, which it described as "remarkable," and stated that Petitioner had "virtually zero potential for rehabilitation." The court then sentenced Petitioner to two concurrent terms of 30 years of imprisonment. The judgment entered by the trial judge shows that Petitioner was sentenced to 30 years on Count I and Count II, both of which were Class 2 felonies.

Petitioner, through appointed counsel, filed a direct appeal and raised three issues: (1) his conviction for unlawful possession with intent to deliver was invalid under Illinois's "one act, one crime" doctrine; (2) the trial court improperly considered his failure to exercise his right to allocution during the sentencing hearing; and (3) he was entitled to credit against his fines for time spent in presentencing custody. The Appellate Court, Third District, affirmed Petitioner's convictions and sentence, but modified the sentencing order to reflect $810 in credit against his fines. People v. Daniel, Case No. 3-06-0557 (April 1, 2008) (unpublished order).

Petitioner filed a lengthy pro se petition for leave to appeal (PLA) to the Illinois supreme court raising numerous issues which had not been raised in his appeal. The PLA was denied on September 24, 2008.

On April 11, 2007, while his direct appeal was pending, Petitioner filed a pro se petition for relief from judgment pursuant to 735 Ill. Comp. Stat. 5/2-1401. Petitioner claimed that the charging instrument in his case was "defective, void and erroneous." The trial court dismissed the petition and Petitioner appealed. On appeal, Petitioner's appointed counsel filed a motion in accordance with Pennsylvania v. Finley, 481 U.S. 551 (1987). Petitioner's counsel stated the appeal presented no issues of merit and asked to be permitted to withdraw. On December 20, 2007, the Appellate Court, Third District, allowed counsel to withdraw and affirmed the dismissal of Petitioner's petition, finding that to continue the appeal would not possibly result in success and would be wholly frivolous. People v. Daniel, Case No. 3-07-0354 (2007) (unpublished order). Petitioner did not file a PLA with the Illinois supreme court.

On December 1, 2008, Petitioner filed a pro se petition for post-conviction relief. Petitioner listed eight issues. Among other things, Petitioner claimed that his trial counsel was ineffective for failing to file a motion to produce the informant and his appellate counsel was ineffective for failing to raise the issue on appeal. He also argued that was denied his right to confront and cross-examine Smith and impeach him with evidence that he had been arrested or charged with a crime. In addition, Petitioner claimed that his trial and appellate counsel were ineffective for failing to argue that the trial court improperly allowed the State to amend the indictment. Petitioner argued that "[a]s matters finally stood, the petitioner was charged and convicted on ...


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