Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Anthony Gay v. Yolande Johnson

July 18, 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

Monday, 18 July, 2011 03:20:53 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. 11), to which Petitioner has filed a Reply (Doc. 14). Petitioner has also filed two Motions to Expand the Record (Doc. 13 & 15) pursuant to Rule 7 of the Rules Governing § 2254 Cases. For the following reasons, Petitioner's Motions to Expand the Record (Docs. 13 & 15) 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. 12-2 at 1). Since that time, Petitioner has accumulated numerous aggravated-battery convictions. (Doc. 12-2 at 2-5). The instant habeas proceeding arises out of one such conviction. The factual predicate for this conviction occurred on December 1, 2000, when Petitioner struck a correctional officer at the correctional center where he was imprisoned. (Doc. 12-1 at 2; Doc. 12-20 at 3). The State charged Petitioner with aggravated battery on November 21, 2003.*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. 12-1 at 1-3). After a March 16, 2005, fitness hearing, the trial court found Petitioner fit to proceed on his pending cases. (Doc. 12-1 at 3-4). Accordingly, Petitioner's underlying case proceeded to a jury trial on January 24, 2006, at which time he was convicted. (Doc. 12-1 at 6). On February 28, 2006, Petitioner was sentenced to a term of five years imprisonment, to be served consecutively to sentences in fifteen other cases. (Doc. 12-1 at 7).

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; and 2) the charging document was insufficient. (Doc. 12-1 at 1-2). On December 31, 2007, the Illinois Appellate Court for the Fourth District of Illinois affirmed Petitioner's conviction. (Doc. 12-1 at 20). 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. 12-1 at 11-13). Petitioner did not file a Petition for Leave to Appeal ("PLA") with the Illinois Supreme Court. (Doc. 12-5).

In January 2008, Petitioner filed identical, pro se post-conviction petitions in which he argued that the trial court violated his speedy trial rights in the instant case and three others 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. 12-3). 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. 12-3 at 10-11). 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. 12-3 at 10-11). 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. 12-3 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. 12-3 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. 12-3 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. 12-3 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. 12-7).

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 8-11). On May 27, 2010, the Court ordered Respondent to respond to the Petition within 60 days. (Doc. 3). After being granted additional time to respond, Respondent timely filed an Answer on October 29, 2010. (Doc. 11).

DISCUSSION

Section 2254 of Chapter 28 of the United States Code provides that a court may "entertain an application for writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." (emphasis added). Accordingly, "federal courts can grant habeas relief only when there is a violation of federal statutory or constitutional law." Haas v. Abrahamson, 910 F.2d 384, 389 (7th Cir. 1990) (quoting United States ex. re. Lee v. Flannigan, 884 F.2d 945, 952 (7th Cir. 1989)). "Violations of state laws are cognizable only if they resulted in fundamental unfairness and consequently violate a petitioner's constitutional rights." Lechner v. Frank, 341 F.3d 635, 642 (7th Cir. 2003).

Here, in grounds one and two, Petitioner appears to only allege violations of his statutory speedy trial rights. Although he labels the claims "Due Process Violation" and "Speedy trial violation," the supporting facts he gives for each are that "The trial court circumvented my statutory speedy trial rights by questioning my fitness when there was no question about my fitness." (Doc. 1 at 8-11 (emphasis added)). Furthermore, both on direct appeal and on his petition for post-conviction relief, Petitioner's arguments concerning his speedy trial rights were brought pursuant to Illinois law.*fn2 While he asserts that there is a difference between his claim on direct appeal and his post-conviction claim, this difference is purportedly that on direct appeal he attributed the delay to his counsel, and in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.