The opinion of the court was delivered by: Hon. Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Following a bench trial in 2005, Petitioner Anthony Brown, a/k/a David Wynter ("Petitioner"), was convicted of residential burglary and sentenced as a Class X offender to twelve years' imprisonment. He now seeks habeas corpus relief under 28 U.S.C. § 2254. Petitioner principally contends that his indictment was invalid because the prosecutor presented allegedly fabricated evidence to the grand jury, and that trial and appellate counsel provided ineffective assistance of counsel by failing or refusing to raise that point. For the reasons set forth below, Petitioner's petition is denied.
On federal habeas review, the court presumes the state court's factual determinations to be correct unless a petitioner shows otherwise by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir. 2011). Petitioner provides no evidence to rebut the state court's factual findings. Accordingly, this court adopts the factual account set forth in the opinion of the Illinois Appellate Court on post-conviction petition appeal in People v. Brown, No. 1-08-2915 (Ill. App. Ct. 1st Dist. June 11, 2010). (Post-conviction Order, Ex. K to Resp't's Answer, at 2-5.)
On June 9, 2003, Lieutenant Donald Holmen of the Chicago Police Department responded to a dispatch regarding a burglary in progress; the dispatch included a description of the alleged burglar. (Id. at 2.) Holmen drove his police vehicle to the vicinity where he observed Petitioner, who fit the burglar's description, walking down the alley abutting the burglarized apartment. (Id.; Trial Tr., Ex. T to Resp't's Answer, at R-16 to -17.) When Holmen ordered Petitioner to halt, Petitioner ran and Holmen pursued, ultimately apprehending Petitioner in the stairwell of an adjacent building. (Post-conviction Order at 2.) Holmen performed a protective pat-down search after handcuffing Petitioner (Trial Tr. at CC-16, -21), finding a cellular telephone and some jewelry that, along with a grey jacket Petitioner was wearing at the time of arrest, belonged to the tenants of the burglarized apartment. (Post-conviction Order at 4.)
Police officers walked Petitioner back to the scene of the crime, where they conducted "show-up" identifications with two eyewitnesses. The first, Francisco Rueda, then age seven, had called the police when he observed a man enter a neighboring apartment through the neighbor's window. (Id. at 3.) Rueda identified Petitioner as the man he saw at the show-up and later at trial. (Id.) A second witness, Myra Franco, who lived in the same building as the burglarized apartment, had seen a man climbing through the window of the second floor apartment. (Id.) The arrest report, written by Officer Audie Manaois (one of the officers at the scene), stated that Franco had positively identified Petitioner. (Arrest Report, Ex. R to Resp't's Answer.) At trial, however, Franco testified that she was unable to identify Petitioner during the show-up because she had never seen the burglar's face. (Id.) Officer Manaois testified at trial that he remembered talking with Franco, but that he did not remember Franco identifying Petitioner. (Trial Tr. at GG-36.) The arrest report did not mention Rueda's identification, but Manaois testified at trial that Rueda had identified Petitioner at a show-up. (Id. at GG-25.) Based on this record, the Illinois Appellate Court concluded that "[t]he report merely had the wrong name of the witness who identified [Petitioner] as the burglar." (Post-conviction Order at 12.)
On July 1, 2003, a grand jury returned an indictment charging Petitioner with residential burglary. (Indictment, Ex. R to Resp't's Answer.) Petitioner claims that his trial counsel from the Public Defender's office allowed him to read the grand jury transcript after he was indicted. (Post-conviction Order at 7.) Based on his recollection of the transcript, Petitioner contends that the prosecutor procured the indictment by presenting fabricated evidence-specifically, Petitioner contends the prosecutor led the grand jurors to believe that Myra Franco identified Petitioner as the burglar during the show-up. (Pet. for Writ of Habeas Corpus (hereinafter "Pet."), at 5.) The grand jury transcript is not in the record, but, according to the indictment, Detective J. Allan of the Chicago Police Department was the only witness called at the grand jury proceedings. (Post-conviction Order at 10; Indictment.) Detective Allan presumably read Officer Manaois's arrest report to the grand jury. (Post-conviction Order at 12.)
II. Procedural Background
In September 2005, following a bench trial, Judge James B. Linn of the Circuit Court of Cook County found Petitioner guilty of residential burglary. (Id. at 1; Pet. at 1.) Because Petitioner had several prior felony convictions for residential burglary and attempted burglary (Probation Department Investigative Report, Ex. R to Resp't's Answer, at 3), the court classified him as a Class X offender and sentenced him to twelve years' imprisonment. (Direct Appeal Order, Ex. B to Resp't's Answer, at 1, 3).
On October 11, 2005, Petitioner filed a notice of appeal (Post-conviction Order at 5), and counsel was appointed for him from the Office of the State Appellate Defender ("OSAD"). (Mot. to Withdraw as Counsel on Appeal Pursuant to Anders v. California ¶ 4, Ex. C to Resp't's Answer.) Petitioner's appointed attorney concluded that an appeal would lack arguable merit, however, and filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). Petitioner filed several responses to that motion in which he contended, among other things, that appellate counsel was ineffective for failing to argue that the indictment was invalid as a result of prosecutorial error before the grand jury. (Direct Appeal Order at 1-2.) At this time, Petitioner also filed several pro se petitions with the trial court for discovery, including a request for a copy of the grand jury transcript. The court denied these petitions on April 25, 2007; December 17, 2007; and March 11, 2008. (Post-conviction Order at 6.)
On July 27, 2007, the Illinois Appellate Court, First Division, entered an order granting appellate counsel's motion to withdraw and affirming Petitioner's conviction and sentence. (Direct Appeal Order at 3.) The Illinois Supreme Court denied Petitioner's pro se Petition for Leave to Appeal ("PLA") on January 13, 2008. (Ex. I to Resp't's Answer.)*fn1
On July 14, 2008, Petitioner filed a pro se post-conviction petition in the state trial court. (Pro se Post-Conviction Petition, Ex. J to Resp't's Answer.) He alleged that "(1) the grand jury's indictment was based on known perjured testimony; (2) trial counsel was ineffective for failing to object to the indictment; and (3) appellate counsel was ineffective for failing to raise the issue of the indictment in defendant's direct appeal." (Post-conviction Order at 6-7.) The circuit court summarily dismissed the post-conviction petition on July 22, 2008. (Id. at 7.)
Petitioner, once again represented by OSAD, filed an appeal, arguing that the trial court erred in summarily dismissing the post-conviction petition because Petitioner's argument that trial and appellate counsel provided ineffective assistance of counsel was not "based on an indisputably meritless legal theory or a fanciful factual allegation," as required for summary dismissal under Illinois law. (Brief and Arg. for Pet'r-Appellant, Ex. M. to Resp't's Answer, at 11 (quoting People v. Hodges, 234 Ill. 2d 1, 16, 912 N.E.2d 1204, 1212 (2009)).) Notably, Petitioner's appellate brief raises the merits of his argument concerning the grand jury indictment only in the context of whether the ...