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United States of America Ex Rel. Brandon Brown v. Marc Hodge

October 22, 2012


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:


An Illinois judge convicted Brandon Brown on charges of possession of a stolen motor vehicle (PSMV) and aggravated PSMV and sentenced him to prison terms totaling fifteen years. Brown has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent contends that all of Brown's claims are procedurally defaulted. For the reasons stated below, the Court agrees that Brown's claims are procedurally defaulted and therefore denies his petition.


A. State court proceedings

1. Aggravated PSMV trial (Case No. 06 CR 18675)

On May 17, 2006, Skyway Chevrolet employee Donna Lee called the Chicago police to report the theft of a 2006 Cadillac Escalade. Officer Eric Rashan responded to the call. After learning that the car was equipped with an OnStar navigation system, Rashan located the vehicle about an hour later, at 8224 South Saginaw. He knocked on the door of the house where the car was parked, but no one answered. Rashan called Lee, who arrived with other Skyway employees to retrieve the Escalade.

Rashan testified that he returned to the South Saginaw house on August 3, 2006. Brown answered the door. Rashan arrested Brown after learning that he had an outstanding traffic warrant. Later that day, Lee viewed a line-up and identified Brown as the man who had stolen the Escalade. A grand jury then indicted Brown for aggravated PSMV. Brown was released on bond. Brown originally retained counsel, but after his bond was revoked and his bail bond money was returned to his ex-girlfriend, who had posted the bond, Brown had no other funds to pay an attorney, so the court appointed a public defender.

In February 2008, the court held a bench trial on Brown's aggravated PSMV charge. At the trial, Lee testified that she saw a man she identified as Brown at the Skyway Chevrolet dealership lot, looking at the Escalade. After a series of attempted ruses, Brown eventually tricked Lee into leaving him. When Lee returned, Brown had left, her desk drawer was open, and the Escalade's keys were missing. Lee looked outside and saw Brown running toward the Escalade. He turned to look at her and then hopped into the car and drove away. Lee immediately told the dealership manager to call the police, and Officer Rashan arrived at the dealership shortly afterward. Lee gave Rashan a physical description of the man she had seen and informed him that the Escalade was equipped with an OnStar navigation system. About an hour later, Rashan notified Lee that he had located the Escalade, and she went with other Skyway employees to 8224 South Saginaw to retrieve it. Finally, Lee testified that on August 3, 2006, Rashan contacted her again to ask her to come to the police station to view a line-up. Lee testified that she identified Brown as the man who had stolen the Escalade from Skyway Chevrolet in May 2006.

On cross-examination, Lee admitted that although the man she identified as Brown had given her his name when she first approached him in May 2006, she could not remember the name later that day when Officer Rashan arrived at the dealership. Lee also gave testimony about the clothing Brown had been wearing that conflicted with the description she had given to Rashan in 2006. Lee accounted for this by stating that she sees "thousands of customers a day. That part is kind of foggy." Ex. Z at Y-38.

Officer Rashan testified that on August 3, 2006, he was patrolling the South Saginaw area when he saw a suspicious-looking car parked in the same location where the Escalade had been located three months earlier. When he knocked on the door to the house where the car was parked, Brown answered. Rashan asked his sergeant to run Brown's name through a police database, which showed that Brown had an outstanding traffic warrant. Rashan arrested Brown on the warrant and brought him to the police station. Rashan testified that because Brown substantially matched the description of the car thief that Lee had given him in May, he contacted Lee to have her view a line-up that included Brown. After Lee identified Brown, Rashan asked him about Skyway Chevrolet. Brown admitted that he had been there and had spoken to a female salesperson, although he denied stealing the car.

On cross-examination, Rashan admitted that the car and car keys were never dusted for fingerprints. He also admitted that Brown never signed a statement and that he (Rashan) had not reported Brown's oral statement to the state's attorney.

The court found Brown guilty of aggravated PSMV, determining that Lee was a credible witness even though there were some inconsistencies between the description of Brown's clothing she gave to Officer Rashan in May 2006 and her testimony in court. Specifically, the court noted that Lee's identification was credible and was corroborated by the fact that Brown answered the door to the house where the car had been found three months earlier. The court stayed sentencing pending the resolution of Brown's second case.

2. PSMV trial (No. 07 CR 13320)

On June 2, 2007, Brown was arrested while out on bond in his 2006 case. Officer John Sullivan testified that he arrested Brown after he tried to flee from a 2004 Ford Mustang that had been reported stolen nearly seven months earlier. Brown was charged with PSMV and other offenses relating to a license plate found on the Mustang. As indicated above, the trial court appointed the a public defender to represent Brown.

At Brown's bench trial in May 2008, Sullivan testified that he and his partner, Officer Brian Glim, were responding to a call about a noise disturbance when they saw a red Mustang convertible driving toward them. After learning that the car had been reported stolen, Sullivan stopped the Mustang and ordered the driver out of the car. He identified the driver as Brown. Sullivan testified that Brown ran away from the officers and that when they gave chase, Brown "stiffened up in an aggressive manner." Ex. Z at BB-20. Sullivan stated that the officers sprayed Brown with Mace and arrested him. After giving Brown Miranda warnings, Sullivan asked him "something along the lines of why are you driving a stolen car." Id. at BB-22. According to Sullivan, Brown responded: "I knew it was stolen. I didn't steal it. My boy took it. I was just using it."

Id. On cross-examination, Sullivan admitted that Brown did not sign any statement admitting that he knew the Mustang was stolen.

The court found Brown guilty of PSMV and granted defense counsel's motion for a directed finding of not guilty on the other charges. On June 17, 2008, the court sentenced Brown to consecutive prison terms of eight years on the aggravated PSMV conviction (No. 06 CR 18675) and seven years on the PSMV conviction (No. 07 CR 13320).

3. Appeal and post-conviction proceedings

Brown appealed his convictions to the Illinois Appellate Court, which consolidated the two cases into a single appeal. People v. Brown, No. 1-08-1883 & 1-08-2095 (cons.) (Ill. App. Ct. July 1, 2010) (unpublished). On appeal, Brown asserted three claims: (1) the prosecution failed to prove him guilty of aggravated PSMV beyond a reasonable doubt (No. 06 CR 18675); (2) his term of mandatory supervised release was incorrectly calculated based on an improper classification of his convictions; and (3) he was not given the proper amount of credit for the time he had been incarcerated prior to his two convictions. On July 1, 2010, the appellate court affirmed the trial court's rulings on the first two issues and agreed with Brown on the third issue, giving him additional credit for time served. Brown then filed a petition for leave to appeal (PLA) with the Illinois Supreme Court, raising only the mandatory supervised release issue. The court denied the PLA. People v. Brown, No. 110846, 238 Ill. 2d 656, 942 N.E.2d 456 (Table) (Nov. 24, 2010).

While his direct appeal was pending, Brown filed a pro se petition for post-conviction relief, alleging that his public defender at trial had been constitutionally ineffective in four respects: (1) failing to ask the "right questions," (2) failing to visit Brown in jail to discuss his case, (3) failing to investigate and call a witness for Brown that came to court on his behalf, and (4) failing to take action when he learned that Brown had been threatened. Brown also said he was innocent, stating that "these [sic] guys who committed this crime threaten[ed] to kill me if I told anybody." Ex. AA at 32-- 33. Brown's petition contained only the number of his second case (No. 07 CR 13320), but the petition discussed events that had occurred in the first case (No. 06 CR 18675). Brown also listed his sentence as fifteen years, the total sentence for both convictions. Ex. AA at 31.

The trial court summarily dismissed Brown's post-conviction petition on June 26, 2009, six days before the appellate court affirmed Brown's convictions on direct appeal. The trial court found Brown's post-conviction petition to be "frivolous and patently without merit." Id. at 28. The court addressed Brown's claim that trial counsel was constitutionally ineffective for failing to investigate or call a witness on his behalf, based on Brown's failure to include an affidavit from the potential witness or "explain the significance of the witness'[s] testimony." Id. The court did not expressly address Brown's claim that counsel was ineffective for failing to visit him at the jail to discuss his case or take action after learning that Brown had been threatened. The court discussed only the procedural posture of Brown's second trial, and its analysis of Brown's claim makes no mention of Brown's aggravated PSMV conviction.

Brown appealed to the Illinois Appellate Court. The Office of the State Appellate Defender was appointed to represent him. In March 2010, appointed counsel sought leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). Ex. J, K. Counsel stated that Brown had not set out a colorable claim of ineffective assistance. Ex. J at 9. Appointed counsel's brief discussed the history of both cases and noted that the two cases had been consolidated on direct appeal. In discussing the merits of Brown's post-conviction petition, counsel made no mention that the petition had included only the case number from his second trial.

On May 9, 2010, Brown responded to counsel's Finley motion, giving a number of details about both of his trials that he believed warranted relief in his post-conviction appeal. Ex. L. Brown reiterated the claim in his post-conviction petition that trial counsel was ineffective for failing to contact or call a specific witness on his behalf, basing these allegations on events that occurred in his first trial. Brown also asserted a number of claims that he had not included in his post-conviction petition: (1) trial counsel was unconstitutionally ineffective for failing to move to suppress Brown's statement in his first trial; (2) appellate counsel was unconstitutionally ineffective for failing to argue ineffective assistance of trial counsel on direct appeal; (3) the prosecution presented false testimony at both of his trials; (4) the prosecution failed to prove him guilty beyond a reasonable doubt; and (5) there were several irregularities surrounding his arrest and Lee's lineup identification in connection with his first trial. Ex. I at 3.

On June 9, 2011, the appellate court granted appointed counsel leave to withdraw and affirmed the dismissal of Brown's post-conviction petition. Ex. I. The court referenced the claims included in Brown's response to the Finley motion, stating:

In his response, defendant contends that his trial counsel failed to investigate a witness and file a motion to suppress. Defendant also contends that appellate counsel refused to raise a claim of ineffective assistance on direct appeal. He further argues that the State presented false testimony at trial, he was not proven guilty beyond a reasonable doubt, and there were numerous irregularities surrounding his arrest and the subsequent lineup identification.

Id. at 3. The court did not refer directly to the fact that many of these claims appeared for the first time in Brown's response, nor did it discuss the fact that some of the claims concerned Brown's first trial and others concerned the second one. The court concluded as follows:

We have carefully reviewed the record in this case, the aforesaid memorandum, and defendant's response, and find no issues of arguable merit. Therefore, the motion of the State Appellate Defender for leave to withdraw as counsel is granted, ...

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