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Henry Hersman v. Geraldo Acevedo

March 29, 2012

HENRY HERSMAN, PETITIONER,
v.
GERALDO ACEVEDO, RESPONDENT.



The opinion of the court was delivered by: Herndon, Chief Judge:

MEMORANDUM AND ORDER

I. Introduction

Before the Court is a report and recommendation (R&R) of United States Magistrate Judge Wilkerson, issued pursuant to 28 U.S.C. § 636(b)(1)(B) (Doc. 48), recommending denial of petitioner Henry Hersman's amended petition for habeas corpus, filed pursuant to 28 U.S.C. § 2254 (Doc. 29). The R&R was sent to the parties, with a notice informing them of their right to appeal by way of filing "objections" within fourteen days of service of the R&R. In accordance with the notice, petitioner timely filed a document titled reply to report and recommendation (Doc. 54). The Court construes this document as petitioner's objections to the R&R. Accordingly, this Court must undertake de novo review of the specifically objected-to portions of the R&R. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b); SOUTHERN DISTRICT OF ILLINOIS LOCAL RULE 73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). Additionally, the Court reviews portions of the R&R to which petitioner makes "no objection or only partial objection," for clear error. See Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). The Court may "accept, reject, or modify the recommended decision." Willis, 199 F.3d at 904. For the reasons discussed herein, the Court ADOPTS the findings of the R&R.

II. Background

As to the underlying facts of the instant dispute, the Court refers to the R&R, as it recites the facts as stated in the Rule 23 unpublished direct appeal decision affirming petitioner's judgment that the Illinois Fourth District Appellate Court issued on March 23, 2007 (See Doc. 48, pp. 1-4; Doc. 39-3, pp. 2-7). Summarily, petitioner pled guilty to two counts of unlawful delivery of a controlled substance and to 13 of the 19 charges brought against him in connection with his driving a burning vehicle into the home his former spouse, Sally Jane (Jane), Jane's parents, and petitioner's and Jane's two children were occupying. Since petitioner's plea of July 14, 2004, he has continuously attempted unsuccessfully to withdraw his plea and receive a trial. However, as the Court shall explain, contrary to the assertions of petitioner's objections, the merits of the legality of petitioner's plea are not properly before this Court.

Further, the Court presumes familiarity with petitioner's underlying direct appeal and various post-conviction proceedings, as extensively recited in the R&R.

However, the Court shall briefly recite the pertinent procedural and factual history of petitioner's instant Section 2254 habeas corpus petition.

Petitioner filed his initial federal pro se petition for habeas corpus relief on February 12, 2009 (Doc. 1). Petitioner initially raised three grounds for relief. First, petitioner claimed ineffective assistance of counsel, as he alleged his trial counsel failed to call thirty three witnesses, failed to depose two witnesses who testified at trial, did not file proper motions, coerced petitioner into pleading guilty, maintained insufficient contact with petitioner, and failed to withdraw from the case when petitioner requested his withdrawal. Second, petitioner claimed the trial court violated his due process rights, as it failed to hold a fitness hearing, failed to admonish him regarding his rights, failed to provide him with experienced counsel, denied his motion to change venue, allowed the testimony of witnesses who the prosecutor coached, and allowed the victims to dictate to the prosecutor the length of his prison sentence. Finally, petitioner claimed the trial court violated his Eighth Amendment rights, as it failed to consider mitigating evidence at sentencing, sentenced petitioner to 28 years at 85%, set bail at $2,000,000.00, and allowed trial counsel to advise petitioner the court would be lenient on petitioner, due to his mental illness. Additionally, petitioner supplemented his initial petition on April 7, 2009, requesting the Court allow petitioner to withdraw his guilty plea (Doc. 5).

After an initial review of petitioner's claims, the Court appointed William A. Shirley (Shirley) to represent petitioner on June 24, 2009 (Doc. 7). The Court granted Shirley leave to file an amended petition (Doc. 15). Thus, on April 27, 2010, petitioner filed a document titled amendment of petition and memorandum (Doc. 29). The amended petition advances one ground for relief: ineffective assistance of counsel (Doc. 29, p. 13). However, before citing ineffective assistance of counsel as the only ground "ripe for review," petitioner discusses the viability of his initial claims for violations of his due process and Eighth Amendment rights; ultimately concluding those grounds do not merit the Court's review. Thus, the following represent the extent of the issues instantly before the Court on petitioner's amended 28 U.S.C. § 2254 petition:

1. whether the Petitioner asked his public defender to call thirty-three witnesses and the subjects about which such witnesses would testify;

2. whether the public defender's performance prejudiced the defense by telling the Petitioner that he would get 60 years if he did not take the 6 to 30 years offered by the state of Illinois;

3. whether the Petitioner and his public defender had sufficient contact;

4. whether the public defender should have withdrawn at the request of the Petitioner; and

5. whether the public defender's statements that the court would be lenient at sentencing because of the Petitioner's mental illness misled the ...


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