UNITED STATES OF AMERICA ex rel. KENNETH PARKER, Petitioner,
KEITH ANGLIN, Warden, Danville Correctional Center, Respondent.
CHARLES P. KOCORAS, District Judge.
This case comes before the Court on the petition for a writ of habeas corpus filed by pro se petitioner Kenneth Parker ("Parker") pursuant to 28 U.S.C. § 2254. For the reasons stated below, the Court denies the petition and declines to issue a certificate of appealability.
Following a jury trial in the Circuit Court of Cook County, Illinois, Parker was found guilty of aggravated kidnaping and sentenced to twenty-five years of imprisonment. Parker is currently incarcerated at the Danville Correctional Center in Danville, Illinois, where he is in the custody of the warden of that facility, the Defendant Keith Anglin.
On direct appeal, Parker's counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). Parker filed a 1-page pro se response to the Anders motion, arguing: (1) trial counsel was ineffective for unspecified reasons; (2) his confession was physically coerced; and (3) his sentence was excessive. On August 25, 2009, the Illinois Appellate Court granted counsel's Anders motion and affirmed Parker's conviction and sentence.
Parker filed a pro se petition for leave to appeal ("PLA") with the Illinois Supreme Court arguing: (1) his confession was physically coerced and the State's use of the confession violated his right to due process; (2) his trial counsel was ineffective for failing to alert the trial court that his confession was coerced; (3) no probable cause supported his arrest; (4) the trial court gave unspecified improper admonishments; and
(5) his sentence was excessive. On January 27, 2010, the Illinois Supreme Court denied Parker's PLA. Parker did not file a petition for a writ of certiorari with the United States Supreme Court.
On April 20, 2010, Parker filed a pro se post-conviction petition pursuant to 725 ILCS § 5/122-1, et seq., claiming among other things, his appellate counsel was ineffective for not arguing that trial counsel was ineffective based on trial counsel's failure to attempt to suppress evidence, object to hearsay, file a motion in limine, or challenge the sufficiency of the evidence. The trial court summarily denied the petition. On appeal, Parker's counsel moved to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). Parker did not respond to his counsel's motion. On November 15, 2011, the Illinois Appellate Court granted the motion and affirmed. Parker neither filed a PLA with the Illinois Supreme Court nor a petition for a writ of certiorari with the United States Supreme Court.
On September 13, 2012, Parker filed a federal habeas petition pursuant to 28 U.S.C. § 2254.
Parker asserts four arguments in his habeas petition: (1) trial counsel was ineffective for failing to appropriately challenge the State's assertion that probable cause existed, object to unspecified hearsay, file unspecified motions in limine and argue that the evidence was insufficient to support his conviction ("Claim One"); (2) Appellate counsel was ineffective for failing to contend that trial counsel's four alleged errors denied Parker the right to effective assistance of counsel ("Claim Two"); (3) Parker's sentence was excessive because the trial court did not properly weigh the mitigating evidence ("Count Three"); (4) Parker's confession to police should have been excluded because it was physically coerced ("Count Four"). For the following reasons, the Court finds that: (1) Parker's ineffective assistance of trial and appellate counsel claims are procedurally defaulted under the one full round doctrine and no exceptions to procedural default are applicable; (2) his sentencing claim fails on the merits; and (3) to the extent Parker's coerced confession claim is not procedurally barred by the full and fair presentment doctrine, it fails on the merits.
I. Ineffective Assistance of Trial and Appellate Counsel-Claims One and Two
A petitioner must present his claims to all levels of the Illinois courts to avoid procedural default. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). Thus, the Court must determine if Parker presented his ineffective assistance claims to the state trial court, the Illinois Appellate Court, and the Illinois Supreme Court in either his direct or state collateral proceedings. See Castille v. Peoples, 489 U.S. 346, 349 (1989) (failure to present claim to state intermediate court means it is procedurally barred); O'Sullivan, 526 U.S. at 844 (failure to present claim to state's highest court means it is procedurally barred). As discussed below, Parker's ineffective assistance claims are unavailing as they are procedurally defaulted and the cause and prejudice and fundamental miscarriage of justice exceptions to procedural default do not excuse the default.
A. Procedural Default - One Full Round of State Court Review
With respect to Parker's direct appeal, in his brief filed with the Illinois Appellate Court, Parker asserted that trial counsel was ineffective but did not provide any reasons. In Parker's PLA, his only ineffective assistance claim was based on trial counsel's failure to assert his confession should have been excluded because it was coerced. None of the ineffective assistance of trial or appellate counsel claims in Parker's § 2254 petition appear to have been presented to any of the three levels of his state direct proceedings. Moreover, Parker did not file a PLA in his state collateral proceedings so any claims raised at the trial or intermediate appellate court levels in those proceedings are procedurally defaulted. See O'Sullivan, 526 U.S. at 845. Accordingly, Parker's ineffective assistance of counsel claims are procedurally defaulted. See Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004) (a petitioner must "assert his federal claim through one complete round of state-court review, ...