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Ursery v. Harrington

United States District Court, Seventh Circuit

June 27, 2013

FERNANDEZ URSERY, Petitioner,
v.
RICK HARRINGTON, [1] Respondent.

MEMORANDUM AND ORDER

David R. Herndon, Chief Judge United States District Court.

I. Introduction

Before the Court is a Report and Recommendation (R&R) (Doc. 26) of United States Magistrate Judge Donald G. Wilkerson, issued pursuant to 28 U.S.C. § 636(b)(1)(B), recommending denial of petitioner Fernandez Ursery’s § 2254 habeas petition, dismissal of this matter, and denial of a certificate of appealability (COA).

The R&R was sent to the parties, informing them of their right to file “objections” within fourteen days of service of the R&R. Since the filing of the R&R, Ursery has filed four documents. First, a document titled, “Recommendation, ” construed as a motion to appoint counsel which includes vague objections to certain factual findings of the R&R (Doc. 27). Second, a document titled, “Motion for Objection Thereto” (Doc. 28). Ursery requests that the Court file a written objection to the R&R. However, this document does not contain specific objections to the R&R. Third, Ursery filed another “Motion for Appointment of Counsel” (Doc. 29). And finally, Ursery again filed a document titled, “Motion to File Written Objection Thereto, ” without any inclination as to what portion of the R&R Ursery finds objectionable (Doc. 30).

Generally, this Court will only undertake de novo review of 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). The Court need not conduct a de novo review of the findings of the R&R for which no objections are made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). Instead, the Court can simply adopt these findings after review for clear error. See Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). Although Ursery has not made specific objections, except his objections to certain findings of fact stated in the R&R, it seems clear to the Court that his intention in filing multiple documents titled, “Motion to File Written Objection, ” was to object to the R&R’s legal conclusion that his claims should be dismissed. Thus, the Court shall review the R&R’s overall legal conclusions de novo.

II. Findings of Fact

Ursery seemingly objects to the R&R’s statement that Ursery “was found guilty of first-degree murder” (Doc. 27, p. 2). A review of the record clearly demonstrates Ursery was in fact found guilty of first-degree murder in the shooting death of Henry Carpenter (Carpenter). Secondly, construing Ursery’s “objections” as liberally as possible, he generally objects to the R&R’s findings of fact, as he takes issue with the R&R’s factual finding, as characterized by Ursery, “that the state did not have evidence to charge Fernandez Ursery with murder at the commencing[sic] the prosecution until [Shawn Pruitt (Pruitt)] made a statement” (Doc. 27, p. 2). It seems Ursery is alluding to his claim that his Illinois speedy trial rights were violated by the trial court. In summarizing the Illinois Court of Appeals’ decision affirming Ursery’s conviction, the R&R states,

[T]he Court noted that Petitioner was initially charged with aggravated discharge of a firearm and aggravated unlawful use of a weapon and was only charged with murder three months later, after he had made an exculpatory statement to the jailhouse informant [Pruitt]. The Court held that Petitioner’s speedy trial rights (which provides that Petitioner should be brought to trial within 120 days of detention) were not violated because the murder charge was not known (even though it may have been suspected) at the time of the arrest.

(Doc. 26, p. 2). A review of the Illinois Court of Appeals’ decision demonstrates this is an accurate summary of the appellate court’s finding that Ursery’s speedy trial rights were not violated. Ursery was initially charged on May 21, 2002. Pruitt acknowledged on June 24, 2002, that he gave a written statement to the police about Ursery’s confession to Carpenter’s murder. Thus, on August 26, 2002, the State added the first-degree murder charge against Ursery. The appellate court found that while the State might have suspected that Ursery had planned to kill Carpenter, it was not until Ursery “bragged” to Pruitt in June 2002 that the State’s evidence indicated that Ursery committed murder. Accordingly, the murder was not subject to compulsory joinder, and Ursery’s right to a speedy trial on the murder count was not violated. See People v. Ursery, 848 N.E.2d 146, 155 (Ill.App.Ct. 2006) (citing 720 ILCS 5/3-3(b) (West 2002)). As the Court has reviewed, to the best of its ability, Ursery’s specific objections to the R&R’s findings of fact, it ADOPTS the R&R’s findings of fact as its own and will not recite them fully here. The Court refers the reader to the R&R for a more complete summary of the factual and procedural background of these proceedings.

III. Legal Conclusions

Ursery’s petition raises the following claims:

1. Trial counsel was ineffective for failing to file a motion to suppress evidence obtained in violation of the Fourth Amendment.
2. Trial counsel was ineffective for failing to review certain fingerprint evidence.
3. Trial counsel was ineffective for failing to investigate the possibility of ...

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