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Kevin Simmons v. Guy Pierce

August 2, 2011

KEVIN SIMMONS, PETITIONER,
v.
GUY PIERCE, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

E-FILED Tuesday, 02 August, 2011 12:58:28 PM Clerk, U.S. District Court, ILCD

ORDER

This matter is before the Court on Petitioner, Kevin Simmons' ("Simmons"), Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, his Petition for Writ of Habeas Corpus [#1] must be DISMISSED.

BACKGROUND

On August 23, 2004, a jury in the Circuit Court of Hancock County, Illinois, found Simmons guilty of the first degree murder of his wife, Kathy Simmons. Simmons was subsequently sentenced to forty-five years in prison.

Simmons directly appealed his conviction to the state appellate court arguing that (1) the trial court erred in allowing the State to introduce expert testimony regarding the behavior of domestic violence victims; (2) the trial court erred in allowing the State to introduce testimony regarding the history of Petitioner's abuse of the victim; (3) the trial court denied Petitioner's right to a fair trial as a result of the State's questioning of Petitioner regarding his other crimes; and (4) the cumulative affect of the trial court's errors required a new trial. The appellate court affirmed Simmons' conviction and sentence on June 30, 2006. See People v. Simmons, No. 3-04-0918 (Ill. App. 2006).

Petitioner, represented by counsel, filed a petition for leave to appeal (PLA) to the state supreme court on September 19, 2006. In this PLA, Petitioner reiterated his first two arguments previously before the appellate court. The Illinois Supreme Court denied Simmons' PLA on November 29, 2006. Simmons did not file a petition for writ of certiorari to the United States Supreme Court.

On May 25, 2007, Simmons filed a pro se post-conviction petition in the Circuit Court of Hancock County alleging ineffective assistance of counsel and excessive sentence. Petitioner later supplemented his petition with a claim that his counsel violated Brady v. Maryland, 373 U.S. 83 (1963) in failing to correct witness Benny Dowell's ("Dowell") perjured testimony that he was under no agreement with the prosecutor concerning his testimony at trial. After the trial court appointed counsel, Simmons' post-conviction petition was amended to only the one claim that the State failed to inform Simmons of the alleged agreement between the prosecutor and Dowell. The trial court subsequently denied Simmons' petition.

Simmons appealed this decision arguing that (1) the State failed to disclose its relationship with Dowell; (2) the State failed to correct Dowell's perjured testimony; and (3) post-conviction counsel failed to file certificate pursuant to Illinois Supreme Court Rule 651(c). Simmons' appeal was denied on December 31, 2009. Simmons' later filed a PLA in the Illinois State Supreme Court, which was denied on March 24, 2010. Simmons did not file a petition for writ of certiorari in the United States Supreme Court.

Simmons filed the instant § 2254 petition on August 18, 2010, raising three issues. TheGovernment responded to the Petition on January 27, 2011, and Petitioner was afforded an opportunity to file his traverse. Simmons filed his traverse on June 1, 2011. The matter is fully briefed, and this Order follows.

DISCUSSION

In his Petition [#1], Simmons raises the following claims: (1) the prosecutor erred in failing to disclose Dowell's deal with the State and to correct Dowell's perjured testimony; (2) post-conviction counsel was ineffective for failing to comply with Illinois Supreme Court Rule 651c and failing to raise the ineffective assistance of trial counsel; (3) the prosecutor withheld evidence during trial; and (4) both appellate and post-conviction counsel were ineffective for failing to argue that the prosecutor withheld evidence. As a preliminary matter, the Court notes that Petitioner did exhaust his state remedies, and that his Petition is timely filed.

I. Claim I

Petitioner first claims that the prosecutor erred in failing to disclose the existence of a "testimony for leniency" deal with Dowell and further erred in failing to correct Dowell's perjured testimony relating to the deal. Petitioner is correct that a defendant's due process rights are violated when the State uses false testimony and when the State withholds information favorable to the defense. See Brady v. Maryland, 373 U.S. 83 (1963). In order to establish a Brady violation, a petitioner must show that (1) there was evidence of an agreement or understanding; (2) the prosecution suppressed the evidence; (3) the evidence ...


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