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Carter v. Hodge

United States District Court, Seventh Circuit

September 9, 2013

MICHAEL CARTER, Plaintiff,
v.
MARC HODGE, Defendant.

MEMORANDUM OPINION AND ORDER

HARRY D. LEINENWEBER, District Judge.

Before the Court are several motions filed by Petitioner Michael Carter (hereinafter, "Carter" or "Petitioner") subsequent to this Court denying his petition for habeas corpus. Specifically, Petitioner filed: (1) a Motion for Leave to Appeal in forma pauperis; (2) a Motion for Appointment of Counsel; (3) a "Motion for Appearance"; (4) a Motion for a Certificate of Appealability; and (5) a "Motion for Transcripts of Proceedings."

For the reasons stated herein, Carter's Motion to proceed in forma pauperis on his appeal is granted, and the remaining Motions are denied.

I. BACKGROUND

As the Court has already discussed the background of this matter extensively in its February 9, 2011 Memorandum Opinion and Order, it will refrain from reciting it at length again here. See, ECF No. 26. Carter, an inmate currently at the Lawrence Correctional Center, filed a petition for habeas corpus relief under 28 U.S.C. § 2254. In his petition, he challenged his 2002 conviction for first degree murder in the Circuit Court of Cook County (Illinois case number 00 CR 538803) on a number of grounds. This Court, however, rejected those arguments in its February 9, 2011 Opinion. ECF No. 26. In addition, the Court determined that there was no basis to issue a certificate of appealability. Id. at 24.

The Court heard nothing from Carter for more than two years after issuing its Opinion. Then, on May 31, 2013, Carter filed a "Notice of Appeal & Late Notice of Appeal, " in which he claimed he wished to appeal the Court's ruling. ECF No. 27. Carter's explanation for why it took him two years to appeal the ruling was that he had not been notified of the Court's Order until March 22, 2013. Id. The Seventh Circuit ruled recently that the time for Petitioner to file his appeal had been equitably tolled, and as such, was not dismissing his appeal at this time. Carter v. Hodge, No. 13-2243, slip op. at 7 (7th Cir. Aug. 8, 2013).

Since filing his notice of appeal, Carter has also filed in this Court several motions, including: (1) a Motion to proceed in forma pauperis [ECF No. 29] which he renewed apparently after realizing he failed to include the necessary financial affidavit [ECF No. 37]; (2) a Motion for Appointment of Counsel [ECF No. 32]; (3) a "Motion for Appearance" to be allowed to appear for hearings before the Seventh Circuit Court of Appeals [ECF No. 33]; (4) a Petition for a Certificate of Appealability [ECF No. 34]; and (5) a Motion for Transcripts of Proceedings [ECF No. 40]. Those motions are now before the Court.

II. ANALYSIS

A. Petitioner's Motion for a Certificate of Appealability

Pursuant to 28 U.S.C. § 2253, a prisoner seeking appellate review of a district court's denial of a habeas petition must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner seeks a certificate of appealability "to pursue his appeal on the issues presented by his habeas petition, and by this Court's order denying the petition...." Mot. for Cert. of Appealability at 5, ECF No. 34. However, the Court already denied Petitioner's request for a certificate of appealability in its February 9, 2011 Order. ECF No. 26 at 24. As the Court explained:

Because this Court has denied Petitioner's habeas claims, it must also consider whether to issue a certificate of appealability. See Rule 11(a) of the Rules Governing Section 2254 Cases. This requires that the applicant make a "substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c)(2). In order to make this showing, the applicant must show that reasonable jurists would find the district court's assessment of the constitutional claims to be debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court dismisses the petition on procedural grounds, it should issue a certificate of appealability when the prisoner shows: (1) that reasonable jurists would find it debatable whether the petition states a valid claim of the denial of a constitutional right; and (2) that reasonable jurists would find it debatable whether the district court was correct in its procedural ruling. Id. at 484-85. For the reasons discussed herein, Carter cannot make the required showing as to either his procedurally defaulted claims or those resolved on the merits.

Id. To the extent that Petitioner's Motion for a Certificate of Appealability could be viewed as a motion for relief from an order pursuant to Federal Rule of Civil Procedure 60, it must be denied.

In its Opinion, the Court found that several of Petitioner's claims were procedurally defaulted. See, ECF No. 26 at 8-15. To overcome procedural default, Petitioner needed to establish cause-and-prejudice or show that a fundamental miscarriage of justice would occur if the Court did not consider his claims. Perruquet v. Briley, 390 F.3d 505, 514-15 (7th Cir. 2004). Plaintiff claimed that his counsel was ineffective, and sought to use his contention of actual innocence as a basis for that claim. As the Court explained, to use actual innocence as a gateway to present a defaulted claim, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of new evidence. ECF No. 26 at 11-12 (citing Schlup v. Delo, 513 U.S. 298, 329 (1995)). In his post-conviction petition, Petitioner argued that his trial counsel was ineffective for failing to call exculpatory witnesses at trial. He presented several affidavits in support of his argument, including one from his co-defendant Stone, in which Stone took sole responsibility for the shooting and claimed it was self-defense. He presented another affidavit from potential witness named Jeremiah McReynolds ("McReynolds"), who claimed he only saw Stone firing a weapon, but who was never called to testify.

The Court found that despite these affidavits, Petitioner failed "to meet the heavy burden required to establish a claim of actual innocence." ECF No. 26 at 13 (citing Buie v. McAdory, 341 F.3d 623, 626-27 (7th Cir. 2003)). The Court found that the account of McReynolds would have merely been cumulative of Petitioner's defense at trial, where he argued that he was unarmed and did not shoot the victim. The Court also noted that the testimony of Stone supported that defense. However, the testimony of several other eyewitnesses supported Petitioner's conviction. In addition, the Court rejected, on the merits, Petitioner's claim that his counsel was ineffective for failing to call McReynolds, as Petitioner failed to ...


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