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United States Ex Rel. Lance Vanorsby v. Gerardo Acevedo

August 24, 2012

UNITED STATES EX REL. LANCE VANORSBY,
PETITIONER,
v.
GERARDO ACEVEDO, ACTING WARDEN, ILLINOIS RIVER CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge John J. Tharp

MEMORANDUM OPINION AND ORDER

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

BACKGROUND*fn1

Vanorsby was charged with two counts of armed robbery and two counts of unlawful restraint. These charges stemmed from the robbery of two young women in Chicago on June 23, 2003. At Vanorsby's trial in 2007, evidence showed that on the night of June 23, 2003, the two victims were walking down an alley between Troy and Kedzie Avenues on their way to meet friends when they were approached by two men. The men pointed their guns at the victims and demanded their purses. After sorting through the purses and discarding unwanted items, the men left the scene. The victims subsequently flagged down a police car and both victims provided descriptions of the offenders to the police. One of the victims later identified Vanorsby in a lineup on July 14, 2003, and also identified Vanorsby during the trial. The jury convicted Vanorsby of two counts of armed robbery and the trial judge sentenced him to 18 years' imprisonment.*fn2

Prior to his criminal trial, Vanorsby moved to quash his arrest and suppress evidence that he had been identified in a police lineup by one of the robbery victims. At an evidentiary hearing on his motion, Vanorsby testified that on July 14, 2003, he was in the Cook County jail after being arrested on charges stemming from an unrelated armed robbery that took place in Dolton, Illinois. On that date, he was taken from the jail by Chicago Police Detectives Jasica and Dwyer to the Area 2 Chicago police station ("Area 2"). The detectives did not serve Vanorsby with a warrant or any document authorizing his removal from the county jail. Vanorsby testified that he advised the detectives that he was represented by counsel.

At Area 2, Vanorsby continued, the detectives directed him to change into his own clothes and placed him in a lineup. They did not provide Miranda warnings and did not advise Vanorsby that he had a right to counsel. After the lineup, the detectives told Vanorsby that he had been identified, but not by whom or for what offense.

At the same evidentiary hearing, Detective Jasica testified that in the course of investigating the June 23, 2003, armed robbery, a detective from the Dolton police department contacted him and informed him that he was investigating a series of armed robberies occurring in the suburbs. The Dolton detective passed on some descriptive information about Vanorsby and inquired if the Chicago detectives had any similar cases. Based upon the information from the Dolton detective, Jasica contacted the SORT team at the Cook County jail about obtaining temporary custody of Vanorsby. Jasica faxed a temporary custody order regarding the transfer to the SORT team. On July 14, 2003, Detective Jasica along with Chicago Police Detective Dwyer took Vanorsby from the Cook County jail to Area 2. The detectives had no documents for the release of the defendant from the jail. Jasica acknowledged that Vanorsby was not given Miranda warnings or advised of his right to counsel prior to placing him in the lineup, but he denied knowing that the defendant was represented by counsel. One of the victims of the June 23, 2003, armed robbery, he testified, identified Vanorsby in the lineup.

In his motion to suppress the lineup identification, Vanorsby argued that the Chicago detectives had unlawfully seized him from the Cook County jail in violation of his Fourth Amendment rights. The trial court denied the motion to suppress, finding that the defendant had been continually in custody from the time of his initial incarceration in the Cook County jail. The court further found that the defendant was not in custody on charges related to the June 23 robbery until after the lineup had been conducted.

Vanorsby appealed his conviction to the Illinois Appellate Court, First District, arguing that he was illegally seized and/or arrested without probable cause when he was taken from the Cook County jail on July 14, 2003. As his "arrest" was allegedly illegal, Vanorsby maintained that the fruits of that illegal arrest-the lineup identification and in-court identification-should have been suppressed. The Illinois Appellate Court rejected Vanorsby's arguments and affirmed his conviction in an opinion entered on December 6, 2010. Doc. 1-5 pp. 10-16. Vanorsby then filed a petition for rehearing, which the Illinois Appellate Court denied. Vanorsby next filed a petition for leave to appeal in the Supreme Court of Illinois arguing that the Illinois Appellate Court did not address his probable cause arguments under the Fourth Amendment. The Supreme Court of Illinois denied Vanorsby's petition on March 30, 2011. People v. Vanorsby, No. 111880, 949 N.E.2d 664 (Ill. 2011).*fn3

On October 18, 2011, Vanorsby filed his pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). Vanorsby's petition lists four separate grounds for relief, but in reality he has only two distinct claims: (1) he was unlawfully seized in violation of the Fourth and Fourteenth Amendments of the U.S. Constitution immediately prior to the police lineup, and (2) perjured testimony from detectives Dwyer and Jasica was presented to the grand jury and the court purportedly in violation of the Fourth and Fourteenth Amendments.*fn4

DISCUSSION

I.Vanorsby's Unreasonable Seizure Claims

In his habeas petition, Vanorsby renews his argument that the Chicago police violated his Fourth Amendment right to be free from unreasonable searches and seizures when they seized him from the Cook County jail, where he was being held on unrelated charges. He argues that at the time of his seizure, the police did not have probable cause to arrest him for the June 23, 2003, robbery. Therefore, he argues, the evidence obtained from his seizure-the victim's identification of him as the perpetrator during the lineup and her subsequent in-court identification of him-should have been excluded because it was obtained through his illegal seizure. Vanorsby further argues that at the time of his seizure, the police did not have probable cause to arrest him for the June 23, 2003 robbery.

The State argues that Stone v. Powell, 428 U.S. 465 (1976), bars this Court from hearing Vanorsby's Fourth Amendment claims. Stone holds that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 482; see also Hayes v. Battaglia, 403 F.3d 935, 939 (7th Cir. 2005) (on habeas petitions, federal courts "may ...


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