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Tommie L. White v. Tod Van Wolvelaere

September 17, 2012

TOMMIE L. WHITE, PETITIONER,
v.
TOD VAN WOLVELAERE,*FN1 RESPONDENT.



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

MEMORANDUM AND ORDER

This action is currently before the Court on the Petition for Writ of Habeas Corpus filed under 28 U.S.C. § 2254 (Doc. 1). For the reasons set forth below, the petition is DENIED and the claims are DISMISSED.

I. BACKGROUND

On March 23, 2006, a jury in Saline County, Illinois, found petitioner Tommie L. White guilty of one count of burglary of a building, one count of burglary of a vehicle, and one count of theft for unlawfully entering the Saline County Housing Authority maintenance building with intent to commit theft. The trial court sentenced White to concurrent twelve-year sentences for the burglary convictions and a concurrent three-year sentence for the theft conviction (Doc. 16-1, Exh. A, p. 2). White filed post-trial motions for judgment notwithstanding the verdict or a new trial (on the basis that a juror had slept through the cross-examination of key witnesses) and a motion to reconsider the sentence. The trial court denied both motions (Doc. 16-1, Exh. A p. 2).

With assistance of counsel, White appealed the conviction. The appellate court found that White raised two issues on appeal: 1) whether the trial court erred in denying without an evidentiary hearing his post-trial motion, and 2) whether the vehicular burglary and theft convictions should be vacated as lesser-included offenses of the burglary of the maintenance building. On November 26, 2007, the Appellate Court of Illinois, Fifth District, affirmed in part and vacated in part. The appellate court found no abuse of discretion in the trial court's denial of an evidentiary hearing on the sleeping-juror issue because White's post-trial motion was "too vague to establish prejudice" (Doc. 16-1, Exh. A, p. 4). The appellate court vacated the theft conviction (but not the vehicular burglary conviction) as a lesser-included offense of the burglary of the maintenance building (Doc. 16-1, Exh A, p. 7).

On March 4, 2008, White filed a pro se "Letter Request in Lieu of Petition for Leave to Appeal" in the Supreme Court of Illinois (Doc. 16-9, Exh. I, p. 6). The record contains a pro se Petition for Leave to Appeal filed in the Supreme Court on May 20, 2008 (Doc. 16-9, Exh. I, p.1). On September 24, 2008, the Supreme Court summarily denied the Petition for Leave to Appeal (Doc. 16-9, Exh. I, p. 34). White did not file a petition for post-conviction relief in the trial court "due to time restraints" (Doc. 1, Exh. A, pp. 6 and 9-16).

White filed the pending petition for writ of habeas corpus in this court on June 24, 2009 (Doc. 1). He raises the following nine grounds for relief, all based upon ineffectiveness of his trial counsel:

1. Trial counsel did not inform the Court or the petitioner that he had previously represented a witness in the case, David R. Endicott;

2. Trial counsel advised White not to testify, to White's detriment;

3. Trial counsel advised White that he would receive only two years of supervised release, but he was sentenced to a three-year term of supervised release;

4. Trial counsel requested that White receive "treatment" while incarcerated, but did not specify that treatment would negatively affect his accrual of good time credit;

5. Trial counsel misadvised White that wages earned while working at the county jail would be applied to payment of his court-imposed fines;

6. Trial counsel failed to inform White that if he proceeded to trial the state would ...


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