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Anthony Gay v. Yolande Johnson

June 21, 2011

ANTHONY GAY, PETITIONER,
v.
YOLANDE JOHNSON, WARDEN, TAMMS CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED

Tuesday, 21 June, 2011 03:57:37 PM

Clerk, U.S. District Court, ILCD

OPINION & ORDER

This matter is before the Court on Petitioner Anthony Gay's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1). Respondent has filed an Answer to the Petition (Doc. 7), to which Petitioner has filed a Reply (Doc. 23). Petitioner has also filed two Motions to Expand the Record (Doc. 22 & 24) pursuant to Rule 7 of the Rules Governing § 2254 Cases. For the following reasons, Petitioner's Motions to Expand the Record (Docs. 22 & 24) and § 2254 Petition (Doc. 1) are DENIED.

PROCEDURAL HISTORY

Petitioner was first convicted of robbery in 1994, and was sentenced to seven years imprisonment. (Doc. 7 at 2). Since that time, Petitioner has accumulated numerous aggravated-battery convictions. (Doc. 7 at 2). The instant habeas proceeding arises out of one such conviction. The factual predicate for this conviction occurred on January 23, 2001, when Petitioner struck a correctional officer at the Pontiac Correctional Center where he was imprisoned. (Doc. 7 Exh. A at 10). The State charged Petitioner with aggravated battery on January 20, 2004.*fn1

On March 3, 2004, Petitioner made a pro se demand for a speedy trial in the proceeding underlying this case, as well as six other cases, pursuant to 730 ILCS 5/3-8-10. On May 26, 2004, however, the circuit court entered a written order for an examination to determine Petitioner's fitness with regards to all of his pending cases. (Doc. 7 at 3). After a March 16, 2005, fitness hearing, the trial court found Petitioner fit to proceed on his pending cases. (Doc. 7 at 3). Accordingly, Petitioner's underlying case proceeded to a jury trial on November 7, 2005, at which time he was convicted. (Doc. 1 at 1). On December 14, 2005, Petitioner was sentenced to a term of six years imprisonment, to be served consecutively to sentences in twelve other cases. (Doc. 7 Exh. A at 5).

On direct appeal, Petitioner argued that: 1) the circuit court violated his statutory right to a speedy trial pursuant to 725 ILCS 5/103-5 and 730 ILCS 5/3-8-10. (Doc. 7 Exh. A at 13-16); and 2) the circuit court erred by failing to hold an in camera hearing with regards to several juror's relationship with the case. (Doc. 7 Exh. A at 17). On December 28, 2007, the Illinois Appellate Court for the Fourth District of Illinois affirmed Petitioner's conviction. (Doc. 7 Exh. D). With regards to Petitioner's speedy trial claim, the Fourth District found that Petitioner was tried within the applicable speed-trial period (for a defendant in the custody of the Illinois Department of Corrections with multiple charges pending against him), and that therefore no violation had occurred. (Doc. 7 Exh. D at 7-8). Petitioner did not file a Petition for Leave to Appeal ("PLA") with the Illinois Supreme Court. (Doc. 7 at 5). In July, 2007, Petitioner also filed a petition for relief from judgment under 735 ILCS 5/2-1401, in this case and eleven others, arguing that the State's Attorney violated his speedy trial right by waiting anywhere from 18 months to almost three years after the alleged incident to file an indictment. (Doc. 7 at 6).

On January 14, 2008, Petitioner filed a pro se post-conviction petition in which he argued that the trial court violated his speedy trial right by ordering a fitness examination when his fitness was not an issue, and that his appellate counsel was ineffective for failing to raise that and other issues on appeal. (Doc. 7 Exh. H at 6). After the circuit court denied Petitioner's post-conviction petition as patently frivolous and without merit, Petitioner filed a motion to vacate the court's judgment, asserting that the speedy-trial argument in his petition was different than the one he raised on direct appeal. (Doc. 7 Exh. H at 7). Specifically, Petitioner noted that he was now arguing that the trial judge erred in sua sponte questioning his fitness when no such question existed, and that this violated 725 ILCS 5/104-10 and Illinois case law. (Doc. 7 Exh. F at 2). The Illinois Appellate Court for the Fourth District affirmed, finding that Petitioner's speedy-trial claim was either already determined on direct appeal, or, if as Petitioner asserted this speedy-trial argument was different, forfeited by his failure to raise it on direct appeal. (Doc. 7 Exh. H at 11). In addition, the Fourth District found that the claim was meritless because Petitioner's counsel had urged the trial court to order the fitness examination that served as the basis of his speedy trial argument, and Petitioner could not now complain of an error he induced the circuit court to make. (Doc. 7 Exh. H at 11 (citing People v. Davis, 746 N.E.2d 758, 761 (Ill. App. Ct. 2001)).

With regards to Petitioner's ineffective assistance claim, the Fourth District found that he failed to meet the standard set forth in Strickland v. Washington, 466 U.S. 668 (1974). Under Strickland, to assert an ineffective assistance of counsel claim, Petitioner had to prove (1) that his counsel's performance failed to meet an objective standard of competence, and (2) counsel's deficient performance resulted in prejudice to Petitioner. (Doc. 7 Exh. H at 12). The Fourth District found that Petitioner failed to meet the prejudice prong, because both of the issues Petitioner claimed his counsel was ineffective for not raising were meritless. (Doc. 7 Exh. H at 12). Accordingly, the Fourth District affirmed the circuit court's dismissal of Petitioner's post-conviction petition. Petitioner filed a Petition for Leave to Appeal to the Illinois Supreme Court, which was denied on January 27, 2010. (Doc. 7 at 7).

On April 22, 2010, Petitioner filed the instant § 2254 Petition in which he has raised three claims: "1) Due Process Violation -- The trial court circumvented my statutory speedy trial rights by questioning my fitness when there was no question about my fitness;" "2) Speedy trial violation -- The trial court circumvented my statutory speedy trial rights by questioning my fitness when there was no question about my fitness;" and "3) Ineffective Assistance of Counsel -- my appellate counsel was ineffective for not raising the issues in ground one and two." (Doc. 1 at 6-9).

On April 29, 2010, the Court ordered Respondent to respond to the Petition within 60 days. (Doc. 3). Respondent ...


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