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Green v. Lemke

United States District Court, Seventh Circuit

September 29, 2013

MICHAEL A. GREEN, Petitioner,
v.
MICHAEL LEMKE, [1]Respondent.

MEMORANDUM & ORDER

DAVID R. HERDON, CHIEF JUDGE UNITED STATES DISTRICT COURT

This matter is before the Court on the Petition for a Writ of Habeas Corpus filed by petitioner on July 26, 2010 (Doc. 1). For the reasons set forth below, this Court DENIES the Petition and DISMISSES WITH PREJUDICE this matter.

Findings of Fact

On March 6, 2004, petitioner beat to eventual death the two year old child of his girlfriend. He was charged with first degree murder, tried before a jury in Madison County, Illinois, found guilty, and sentenced to 60 years’ imprisonment.

On direct appeal, petitioner raised two grounds for relief: that the trial court erred in admitting his video-taped statement because it was taken in violation of the Sixth Amendment; and, the trial court erred in refusing to give an involuntary manslaughter jury instruction (Doc. 16-9, p. 3-4). In a Rule 23 Order dated March 16, 2007, the Illinois Court of Appeals affirmed the conviction (Doc. 1-1, pp. 22-31). With respect to the first claim, the court of appeals recounted the facts surrounding the video-taped statement:[2] On March 7, 2004, petitioner was arrested on unrelated warrants and signed a waiver of his Miranda rights prior to being interviewed about the child’s injuries (on that date, the child was still alive although in critical condition), which petitioner indicated he knew nothing about (Id. at 26). Petitioner signed a second waiver on March 8, 2004, after the child died and was interviewed: this time petitioner indicated that he hit the child (Id. at 26-27). An attorney, Ted Barylske, visited petitioner at the jail on that date but did not enter an appearance on his behalf (Id. at 27). Petitioner was charged on March 9, 2004 and an initial appearance was held the next day (Id.). At that hearing, petitioner indicated that he did not want the public defender to represent him and that he was in the process of trying to hire Mr. Barylske (Id.). Petitioner appeared at a preliminary hearing a few weeks later, on March 26, 2004, still without an attorney, and requested a continuance (Id.). On March 29, 2004, petitioner was advised of his Miranda rights, signed a waiver, agreed to a video-taped interview, and was interviewed again (in which he admitted to inflicting more extensive injuries on the child) (Id. at 28). On these facts, the court of appeals first noted that once a criminal defendant invokes his right to counsel, the state may not initiate a conversation with him and any such evidence would be suppressed (Id. at 29). The court then held that “the defendant’s expression of his intent to hire a private attorney is not a sufficiently clear indication that he wanted the assistance of a lawyer in dealing with the police” (Id. at 30). As such, because petitioner had not invoked his right to counsel for 6th Amendment purposes, the police were free to question him (after giving Miranda warnings).

With respect to the refusal to instruct the jury on involuntary manslaughter, the court stated that “[a]ny suggestion that the defendant acted recklessly in causing [the child’s] death was negated by evidence that a defenseless, two-year-old child was severely shaken and beaten by a 23-year-old man and that the child sustained extensive injuries to her brain and abdomen from the beating which caused her death” (Id. at 31). These claims were also raised in a Petition for Leave to Appeal (PLA), (Doc. 16-11, p. 7), which was denied on November 29, 2007. People v. Green, 879 N.E.2d 934 (Ill. 2007).

In a pro se petition for post-conviction relief, petitioner raised four grounds for relief:

1. The trial court erred in allowing a juror to serve (Mrs. Corrigan) who was related to the State’s witness, Tawna Cooper, an employee of the Department of Children and Family Services; and, trial counsel was ineffective for failing to interview Mrs. Corrigan (Doc. 16-5, p. 27).
2. The trial court erred in allowing photographic (autopsy) evidence of the child’s injuries; and, trial counsel was ineffective for failing to object (Doc. 16-5, p. 31).

This petition was denied on waiver grounds and petitioner’s claims were further found to be without merit (Doc. 16-5, p. 40-41).[3] Petitioner was appointed counsel on appeal; however, that counsel sought to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), stating that any request for review would be without merit (Doc. 16-14, p. 2). In a response, petitioner essentially argued that the juror was biased because she may have acquired information from the potential witness outside of the trial (Doc. 16-15, pp. 6-9). Petitioner also argued that trial counsel failed to object as to 2 (of the 8) autopsy photographs, which unduly prejudiced the jury (Doc. 16-15, pp. 10-11).

In its Rule 23 Order affirming the trial court’s decision, the Illinois Court of Appeals considered the merits of petitioner’s ineffective assistance of counsel claims only. The Court found that petitioner failed to present evidence that the juror had in fact heard about his case outside of the trial that would contradict the juror’s testimony that “I haven’t really heard about the case or anything” (i.e. no prejudice) (Doc. 1-1, p. 36). The Court also found that petitioner’s trial counsel had in fact objected to 6 of the 8 autopsy photographs and that the failure to object to the remaining 2 photographs did not affect the outcome of the trial (Id. at 36). Thus, the Court found that trial counsel was not ineffective. In a PLA, petitioner raised these two ineffective assistance of counsel claims. The PLA was denied on January 27, 2010. People v. Green, 924 N.E.2d 458 (table) (Ill. 2010). Before this Court, petitioner raises 4 grounds for relief:

1. His video-taped statement should have been suppressed because it was taken in violation of the 5th and 6th Amendments. (Petitioner cites to Montejo v. Louisiana, 556 U.S. 778 (2009), for this proposition).
2. The trial court erred in failing to give an involuntary manslaughter instruction.
3. Appellate counsel was ineffective for failing to argue that trial counsel was ineffective for failing to properly question/investigate juror Corrigan and for failing to object to 2 out of the 8 autopsy photographs.
4. The trial court erred in admitting the 2 autopsy photographs because they unduly prejudiced Petitioner.

In response, the respondent argues that each of these claims is defaulted and, in any ...


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