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Rosario v. Akpore

United States District Court, N.D. Illinois

September 9, 2013

IGNACIO ROSARIO, Inmate No. R09139, Petitioner,
v.
KEVWE AKPORE, Warden, Hill Correctional Center, Respondent

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[Copyrighted Material Omitted]

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Ignacio Rosario, Plaintiff, Pro se, Galesburg, IL.

For Akpore, Warden, Defendant: John Robert Schleppenbach, LEAD ATTORNEY, Office of the Illinois Attorney General, Chicago, IL.

For Service List, Defendant: Chief of Criminal Appeals, Attorney General's Office, Chicago, IL.

OPINION

Milton I. Shadur, Senior United States District Judge.

Page 1241

MEMORANDUM OPINION AND ORDER

Ignacio Rosario (" Rosario" ) has filed a Petition for Writ of Habeas Corpus (" Petition" ) under the Antiterrorism and Effective Death Penalty Act (" AEDPA," 28 U.S.C. § 2254(d)[1]). Rosario challenges his two concurrent 18 year sentences stemming

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from Illinois state court convictions for (1) aggravated discharge of a firearm at an occupied building, (2) aggravated discharge of a firearm at another person, (3) three counts of aggravated unlawful use of a weapon predicated on (a) the weapon being immediately accessible, (b) Rosario's not having a valid firearm owner's identification card and (c) being a gang member, and (4) unlawful use of a weapon by a felon.

To address Rosario's claims this Court initially ordered respondent Warden Kevwe Akpore (" Respondent" ) to file an answer to the petition pursuant to Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts (" Section 2254 Rules" ). Although this Court usually automatically grants petitioners the opportunity to file replies under Section 2254 Rule 5(e)[2], in this case the very thorough Answer appears to have provided all of the information needed to address Rosario's claims.

If Rosario nonetheless believes that additional relevant information would call for a different decision, he is free to file a timely motion under Fed.R.Civ.P. 59(e),[3] and this Court will reconsider its decision if necessary. In the meantime this Court denies the Petition in its entirety, subject to the possibility of such a motion.

Statement of Facts

Under Section 2254(e)(1) the state court's findings of fact are presumptively correct in any federal habeas proceeding. Accordingly this opinion begins with the Illinois Appellate Court's recitation of the facts on direct review of Rosario's conviction (People v. Rosario, No. 2-09-0371, 409 Ill.App.3d 1171, 377 Ill.Dec. 755, 2 N.E.3d 671, 2011 WL 10099316, at *2-*5 (Ill.App.2d Dist. June 29)):

During voir dire, the trial court read the 13-count indictment to the jury and cautioned that " the charges * * * are not to be considered as evidence against the defendant just because he has been charged." The trial court told the jury that " the presumption is just the opposite," that every defendant is presumed to be innocent, that such presumption remains with the defendant throughout every stage of the trial through jury deliberations, and that this presumption is not overcome unless the jury is convinced beyond a reasonable doubt that defendant is guilty. After reading the list of witnesses, the trial court then addressed the jury as follows:
" Is there anyone who does not accept the principle that the State has the burden of proof of guilt beyond a reasonable doubt?
Is there anyone who does not accept the principle that no inference of guilt arises should the defendant not testify or offer any evidence?
Is there anyone who does not accept the principle that no conclusions or decisions should be drawn [sic] until jury deliberations begin?
* * *
Is there anyone who does not accept the principle that should the State not prove the defendant guilty beyond a

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reasonable doubt, it is your duty to sign a not guilty verdict?"
Later, while questioning the first 13 jurors, 6 of whom were ultimately accepted as the first panel, the trial court, the State, and the defense attorneys asked twenty times whether a particular juror understood a particular proposition; for example, the proposition that the State must prove the defendant guilty beyond a reasonable doubt. These questions were posed before the entire venire to different jurors at different times. After the first panel was accepted and dismissed for the day, the voir dire continued. In the course of questioning the second panel, individual jurors were asked four times about whether they understood a particular proposition; the alternate jurors were asked a total of 23 times whether they understood.
At trial, Kwayla Dudley testified that she hosted a party at her home on October 6, 2007, that was attended by several guests including defendant, whom she knew as " Casper." She testified that after one of the guests, Derrick Barber, spilled a drink on defendant, Dudley asked everyone to leave. She then went upstairs to check on her children. She testified that she then heard shots fired. At first she ducked down, but then she ran downstairs and out the front door with her children. Don Scott, who had been staying at her house, drove her and her children in his car to her mother's house.
Defendant's sister, Richandra Manning, testified that she invited defendant to join her at Dudley's party. Manning was sitting on the deck playing cards when defendant arrived. He was accompanied by their niece, Rosalinda. After defendant went inside, Manning heard yelling coming from the kitchen. Defendant ran out and Manning stood up to see what was going on. At that point, she fell, but she did not recall anything else until she was in the hospital and learned that she had been shot in the abdomen.
Don Scott testified that on the night of the party he was lying on a couch in the living room when he heard a " commotion" in the kitchen and heard Dudley telling people that they had to leave. He saw defendant and a black male, Derrick Barber, in the kitchen. He also saw defendant lift his shirt and display a gun in his waistband. At that point, Barber started to run out of the kitchen. Scott then heard a couple of shots, and he ran out the front door.
Derrick Barber testified [sic] that he and two brothers, Tommie and Leroy Ward, were present at the party. Barber testified that he was drinking and was " somewhat intoxicated." He was playing cards in the kitchen when he saw a " Hispanic dude." According to Barber, he and defendant had a " friendly" conversation about their tattoos, but a little later Barber accidentally spilled his drink on defendant, who then " got an attitude." Barber stated that Dudley asked him to leave so he went out the front door to his truck which was parked on the driveway.
Barber heard a few sounds like " pop." Then Leroy and Tommie Ward came outside and all three ran after defendant and the girl who was with him. Barber felt a pinch and saw sparks and realized he had been shot in the stomach. Shortly after, an ambulance arrived and took him to the hospital.
On cross-examination, Barber admitted that he had been drinking at the party and was intoxicated by the time these events occurred. Tommie Ward testified that he attended the party ...

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