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United States Ex Rel. v. Marcus Hardy

July 13, 2011

UNITED STATES EX REL.
CARL HEMPHILL,
PETITIONER,
v.
MARCUS HARDY, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

(#R19689),

MEMORANDUM OPINION AND ORDER

Before the Court is Petitioner Carl Hemphill's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). For the following reasons, the Court denies Hemphill's habeas petition. Further, the Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

BACKGROUND

Hemphill does not present clear and convincing evidence challenging the statement of facts in the last state court decisions to address his arguments on the merits, which are the Illinois Appellate Court's opinions on direct appeal and post-conviction appeal, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010). The Court therefore adopts the underlying facts as set forth by the Illinois Appellate Court in People v. Hemphill, No. 1-03-0895 (Ill.App.Ct. Mar. 31, 2005) (unpublished) and People v. Hemphill, No. 1-06-3481 (Ill.App.Ct. Mar. 19, 2010) (unpublished).

I. Factual Background

Following a 2003 bench trial in the Circuit Court of Cook County, Illinois, the trial court convicted Hemphill of first degree murder, aggravated kidnaping, armed robbery, and attempted armed robbery. The court then sentenced him to concurrent sentences of forty years of imprisonment for the murder and ten years of imprisonment for each of the other convictions.

Hemphill's convictions arise out of an incident in which he and his accomplices devised a plan to rob the victim, Terry Sales, a known drug dealer. Upon meeting with Sales, Hemphill held Sales at gunpoint while his accomplices searched Sales' pockets. Finding no drugs or valuables, Hemphill forced Sales into the trunk of Sales' car. After driving Sales' car for a while, Hemphill and his accomplices pulled over and demanded that Sales relinquish his cellular telephone for fear he might contact authorities. Later, the men stopped again, ordered Sales out of the trunk, and returned his car keys to him. When Sales demanded that Hemphill return his cellular telephone, Hemphill shot and killed him. Thereafter, Hemphill provided a signed confession in which he admitted to the robbery, kidnaping, and murder.

Prior to the bench trial, defense counsel filed a motion to suppress statements given to the police. At the suppression hearing, Assistant State's Attorney ("ASA") Sharon Kanter testified that during the morning of April 20, 1999, she met Hemphill at police headquarters. Kanter stated that she told Hemphill that she was a prosecutor and not his lawyer and then read him his Miranda rights, after which Hemphill indicated that he understood his rights, agreed to make a statement, and elected to have his statement memorialized by a court reporter. Upon the court reporter's arrival, Kanter again informed Hemphill of his Miranda rights and asked him if he understood that she was not his attorney. Hemphill responded yes. At the conclusion of Hemphill's court recorded statement, he told Kanter that he was not under the influence of any drugs at that time. Hemphill then read and signed each page of the transcript after making corrections. Hemphill's transcribed statement was published for the trial court. After hearing other witness testimony, the trial court denied Hemphill's motion to suppress and the case proceeded to trial.

At sentencing, Hemphill's grandmother, Roselle Holle, testified in mitigation. She stated that when Hemphill was a baby, he fell from a third floor window and that the accident had "sort of taken something away from him." Holle further testified that Hemphill was prescribed Ritalin, which he was still taking. Cheryle Perry, Hemphill's mother, also testified that Hemphill fell when he was a child after which he was taken to the hospital. Perry testified that a doctor at the hospital told Perry that Hemphill's accident "did something to him." She also testified that throughout his childhood, Hemphill was hyperactive. He was placed in special education classes and took Ritalin from first grade through high school. After the trial court considered the factors in aggravation and mitigation, it sentenced Hemphill to concurrent prison terms of 40 years for the murder and 10 years each for the other convictions.

II. Procedural Background

Hemphill appealed his conviction to the Illinois Appellate Court arguing that his Fourth Amendment rights were violated when the trial court admitted statements that resulted from an arrest made without probable cause. The Illinois Appellate Court affirmed Hemphill's judgment of conviction on March 31, 2005. Hemphill then filed a petition for leave to appeal ("PLA") to the Supreme Court of Illinois raising two claims: (1) his Fourth Amendment rights were violated when the trial court admitted statements that resulted from an arrest made without probable cause; and (2) the trial and appellate court erred by not holding an evidentiary hearing to determine whether the assistant state's attorney had coerced his confession by telling him she was his attorney. The Supreme Court of Illinois denied Hemphill's PLA on March 29, 2006. Hemphill did not file a petition for a writ of certiorari in the United States Supreme Court after the denial of his PLA.

On June 28, 2006, Hemphill filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq. In his pro se post-conviction petition, Hemphill brought the following claims: (1) his trial counsel was constitutionally ineffective for failing to (a) challenge the admissibility of his confession on the grounds that he was held for more than forty-eight hours after arrest without probable cause, (b) present evidence at the suppression hearing that he had fallen on his head as a child and took Ritalin, (c) present additional witnesses at the suppression hearing who would testify that he did not voluntarily accompany the police officers, and (d) preserve issues for appeal by raising them in a post-trial motion; (2) the trial court erred when it allowed the State to cross-examine him beyond the scope of the direct examination; (3) his arrest was illegal because he was held for more than forty-eight hours without probable cause; (4) he was denied due process when ASA Kanter told him she was his attorney in order to elicit a confession; (5) the evidence at trial was insufficient to convict him; and (6) appellate counsel was constitutionally ineffective for failing to raise trial counsel's ineffectiveness.

On July 28, 2006, the Circuit Court dismissed Hemphill's post-conviction petition. On August 21, 2006, Hemphill filed a pro se motion to reconsider the dismissal of his post-conviction petition that the Circuit Court denied on September 14, 2006. Hemphill then filed a counseled post-conviction appeal arguing that: (1) the trial court violated the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-01, et seq., when it summarily dismissed his post-conviction petition for failing to state the "gist" of a constitutional claim; (2) his trial counsel was ineffective for failing to present evidence at the suppression hearing that Hemphill had fallen on his head as a child and took Ritalin; (3) his appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness; and (4) his conviction for attempted armed robbery was void because he could not be convicted of both attempted armed robbery and armed robbery.

On June 20, 2008, the Illinois Appellate Court affirmed the dismissal of Hemphill's post-conviction petition. Hemphill filed a PLA to the Supreme Court of Illinois reasserting all but one of his claims that he raised on appeal, namely, his claim that his conviction was void. The Supreme Court of Illinois denied Hemphill's PLA on September 30, 2009. Hemphill then filed a motion to reconsider the denial of his PLA, and on November 12, 2009, the Supreme Court of Illinois granted Hemphill's motion, vacated the denial of the PLA, and directed the Illinois Appellate Court to vacate its judgment and reconsider it in light of People v. Hodges, 234 Ill.2d 1, 332 Ill.Dec. 318, 912 N.E.2d 1204 (Ill. 2009). On March 19, 2010, the Illinois Appellate Court reaffirmed the dismissal of Hemphill's post-conviction petition. Hemphill then filed a PLA arguing that the trial court violated the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-01, et seq., when it summarily dismissed his post-conviction petition for failing to state the "gist" of a constitutional claim. On September 29, 2010, the Supreme Court of Illinois denied Hemphill's final PLA.

III. Habeas Petition

Hemphill's petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254(d) was docketed on February 23, 2011. Construing his pro se allegations liberally, see McGee v. Bartow, 593 F.3d 556, 565-66 (7th Cir. 2010), Hemphill's habeas claims include: (1) the trial court violated his Fourth Amendment rights when the court admitted statements into evidence that resulted from an arrest made without probable cause; (2) the trial court violated the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-01, et seq., when the court summarily dismissed his post-conviction petition for failing to state the "gist" of a constitutional claim; (3) his trial counsel was constitutionally ineffective for failing to present evidence of his mental health history, namely, that he ...


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