The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on Magistrate Judge Philip M. Frazier's Report and Recommendation ("R & R") (Doc. 21) of September 27, 2010, wherein it is recommended that the Court deny Petitioner Terron Price's ("Price") Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1). Price filed an Objection (Doc. 24), to which Respondent Dave Rednour did not file a response.
For the following reasons, the Court ADOPTS the R & R (Doc. 21), which denies Price's Petition for Writ of Habeas Corpus (Doc. 1).
After reviewing a magistrate judge's report and recommendation, the Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court must review de novo the portions of the report to which objections are made. The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
Here, Price did not timely object to the portion of the R & R recommending that his claims relating to the jury's exposure to unauthorized, prejudicial evidence be dismissed due to procedural default. Accordingly, the Court has reviewed this portion of the R & R for clear error and finds that it is not clearly erroneous.
Price, however, objected to the portions of the R & R that recommend as follows: (1) Price procedurally defaulted his ineffective trial counsel claim, and it should be dismissed; (2) Price procedurally defaulted his due process and fair trial violations claims for being forced to wear a stun belt, and they should be dismissed; and (3) Price procedurally defaulted his ineffective appellate counsel claim, and it should be dismissed. Because Price timely objected, the Court will be reviewing the R & R de novo with regard to said recommendations.
I. Price's Trial and Direct Appeal
Following a jury trial, the Circuit Court of Jackson County, Illinois, convicted Price of first degree murder and attempted armed robbery, and subsequently sentenced Price to concurrent terms of forty and fifteen years, respectively.On direct appeal, Price raised the claim that he "was denied a fair trial because he was compelled to wear an electronic stun belt" at trial, and "the judge did not identify any circumstances particular to the case that merited" the stun belt restraint. Doc. 14, Exh. A. Price conceded he defaulted this issue because he failed to raise the issue in a post-trial motion, and the appellate court reviewed the claim for plain error.*fn1 The appellate court ultimately found that the stun belt did not constitute plain error. On April 13, 2005, Price filed a petition for leave to appeal to the Illinois Supreme Court, where he appealed the stun belt claim. Thereafter, on September 27, 2006, the Illinois Supreme Court denied Price's petition for leave to appeal.
II. Price's State Post-conviction Proceedings
Price filed a pro se petition for post-conviction relief in the Circuit Court of Jackson County, Illinois, on June 26, 2007. In his post-conviction relief petition, Price raised the following four claims: (1) due process and fair trial rights violations due to the stun belt; (2) ineffective assistance of counsel when trial counsel failed to include the stun belt issue in a post-trial motion, resulting in procedural default on appeal;*fn2 (3) ineffective assistance of counsel on direct appeal due to appellate counsel's failure to raise the issue of trial court's ineffective assistance of counsel in not preserving the stun belt issue for appeal; and (4) due process and fair trial violations due to the unauthorized, prejudicial evidence which the trial court had ordered redacted and excluded. On September 20, 2007, the Circuit Court of Jackson County, Illinois, dismissed Price's petition for post-conviction relief as untimely filed.*fn3
Price, through the Illinois State Appellate Defender's office, appealed the dismissal of his post-conviction petition. Price's counsel conceded that Price's first allegation in his post-conviction petition -- due process and fair trial violations as a result of the stun belt -- was raised and rejected on direct appeal and thus barred by res judicata. Price's post-conviction appellate brief went on to state that Price's "second allegation, that this issue was not raised by appellate counsel, is refuted by the appellate court's decision." Doc. 14, Exh. I at 10. However, Price argued that "the final allegation contained in the petition for post-conviction relief [, that Price suffered a deprivation of due process and fair trial rights because of the jury's exposure to unauthorized, prejudicial statements,] presented the gist of a claim of constitutional deprivation, could not have been raised on direct appeal, and requires an evidentiary hearing." Doc. 13, Exh. I at 10. Price ultimately argued on appeal that (1) his post-conviction brief was timely, and that (2) he suffered a violation of his due process and fair trial right where the jury was exposed to unauthorized, prejudicial evidence which the trial court had ordered redacted and excluded.*fn4 Id.
The appellate court noted that the State had conceded the post-conviction petition was timely filed and that Price conceded that the stun belt and ineffectiveness of appellate counsel claims were res judicata. The appellate court further found that Price forfeited the issues concerning the jury's exposure to unauthorized, prejudicial statements because he failed to raise that issue on direct appeal.Then, on October 4, 2009, Price filed a petition for leave to appeal to the Illinois Supreme Court and presented the following arguments: (1) the appellate court erred when it affirmed the trial court's dismissal of his post-conviction petition pursuant to Illinois v. Hodges, 912 N.E.2d 1204 (Ill. 2009); and (2) the claims presented in the post-conviction petition presented substantial constitutional violations as follows: (a) fair trial violation because he wore a stun belt during trial without a showing of necessity; (b) ineffective ...