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Dixon v. Hardy

United States District Court, Seventh Circuit

October 4, 2013

JOSHUA DIXON, Petitioner,
v.
MARCUS HARDY, Respondent.

MEMORANDUM OPINION AND ORDER

EDMOND E. CHANG, District Judge.

Petitioner Joshua Dixon has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254.[1] In his petition, he presents four claims: (1) the State abused the grand jury process, and therefore violated his Fourteenth Amendment right to due process, by presenting witnesses to the grand jury in order to obtain sworn admissible statements to use at trial in the event that those witnesses later recanted; (2) the State's introduction of evidence of gang intimidation to explain several witnesses' recantations at trial so infected the proceedings as to render them unfair, in violation of his right to due drocess; (3) the prosecutor's reference to Dixon's gang membership to explain the witness recantations in his closing argument similarly rendered the proceedings unfair in violation of Dixon's right to due process; (4) even if none of these errors, individually, violated Dixon's constitutional rights, the cumulative effect of all of the errors deprived him of his right to a fair trial under the Due Process Clause of the Fourteenth Amendment. R. 1, Habeas Pet. For the reasons that follow, Dixon's petition is denied.

I. Background

The tragic facts of this case are set forth in the state appellate court opinion, and are excerpted below:

On July 16, 2003, at approximately 2 a.m., the victim, Nikolay Shedko, was driving a tractor trailer truck that was too tall to fit under a viaduct near the Rockwell Gardens Housing Project in Chicago. A group of 20 to 30 adults and teenagers from the project surrounded the truck. The crowd included defendant who was 15 years old at the time, codefendant Davis, and prosecution witnesses Anthony Hines, Jerome West, Ernest Catchings and Jason Munson. When the crowd opened the back of the truck and found nothing of value, defendant went to the front of the truck and climbed up the driver's side. The truck driver hit defendant in the face with a cellular telephone, knocking defendant down. After the crowd laughed, defendant asked codefendant Davis for a gun and defendant fired into the cab of the truck, killing the driver.

People v. Dixon , 882 N.E.2d 668, 670 (Ill.App.Ct. 2007). Several witnesses, including Anthony Hines, Jerome West, Ernest Catchings, and Jason Munson, testified to those facts in the grand jury. Id. Before Dixon was indicted, however, these witnesses began to retreat from their previous statements, expressing fear of the Traveling Vice Lords, a gang with which Dixon was associated: for example, Hines claimed to have been both threatened and "jumped" by Dixon's associates; West noted that because he worked security for the Traveling Vice Lords, talking to a prosecutor would put him in danger; and Catchings said he was fearful of testifying against the defendants because he was fearful "that he was going to get hurt'" at 677. As Dixon claims, fearingthat its key witnesses would fully recant at trial, the State called these witnesses to submit sworn testimony in front of the grand jury. Id. at 678. Dixon emphasizes that although the State had a reason to call those witnesses to the grand jury other than purely seeking an indictment, Habeas Pet. at 11 (citing to "R. TB" 212, 214, 233, and 298 for support), these witnesses were all questioned in the grand jury before Dixon was indicted, id. at 12.

The State called Hines, West, Catchings, and Munson at trial. Dixon , 882 N.E.2d at 670-76. Of these four witnesses, only Hines did not recant any of his previous statements. Id. at 670. The prosecution used the grand jury testimony and previous statements made by West, Catchings, and Munson to impeach them at trial. Id. at 671-76. Then, during closing arguments, the prosecution referred to the gang involvement in the case to explain the various witnesses' recantations. Id. at 678, 682. Dixon was convicted of the charged offenses by the jury and sentenced to 65 years' imprisonment. Id. at 678.

Dixon appealed his conviction to the state appellate court, arguing that the prosecution abused the grand jury process by using it to obtain testimony of witnesses it expected might recant at trial; that the trial court improperly allowed testimony involving fear of gang reprisals; and that the prosecution improperly remarked on Dixon's gang membership in closing argument. Id. ; R. 21, Answer, Ex. A, Def.-Appellant's Br.; R. 21, Ex. C, Def.-Appellant's Reply Br. Dixon conceded in his state appeal that he had not included the grand jury or closing arguments issues in his post-trial motion, Dixon , 882 N.E.2d at 678, and that he had failed to object to the prosecutor's closing argument at trial, id. at 682. Having found that these arguments had not been "preserve[d]... for review, " the state appellate court reviewed these claims for plain error, finding both that no error occurred and that no prejudice would have resulted. Id . at 678-83. The appeals court, moreover, held that the trial court did not abuse its discretion in permitting the prosecutor to introduce evidence that the witnesses feared that the gang would retaliate in response to those witnesses' testimony at trial. Id. at 681. So Dixon's convictions were affirmed.

Dixon then filed a petition for leave to appeal (PLA) in the Illinois Supreme Court, raising two issues: (1) whether the prosecution misused the grand jury; and (2) whether the admission of gang evidence violated his rights. R. 21, Ex. E, PLA. Dixon's PLA was, however, summarily denied by the Illinois Supreme Court. R. 21, Ex. F.[2] Dixon now seeks a writ of habeas corpus in this Court, and, for the reasons set forth in this opinion, the Court denies Dixon's Petition for Writ of Habeas Corpus.

II. Legal Standards

Dixon's habeas petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. See Lindh v. Murphy , 521 U.S. 320, 322-23 (1997); Benefiel v. Davis , 357 F.3d 655, 659 (7th Cir. 2004). Under the AEDPA, a federal district court may issue a writ of habeas corpus when a prisoner is in state custody pursuant to a state court judgment obtained "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "The relevant decision for purposes of our assessment under AEDPA is the decision of the last state court to rule on the merits of the petitioner's claim." Eichwedel v. Chandler , 696 F.3d 660, 671 (7th Cir.2012) (internal quotation marks and citation omitted); see also Ylst v. Nunnemaker , 501 U.S. 797, 806 (1991). Moreover, the Court may only review a state prisoner's habeas claims after he has exhausted his state remedies. See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel , 526 U.S. 838, 845 (1999); Johnson v. Hulett , 574 F.3d 428, 431 (7th Cir. 2009). Therefore, the reviewing federal court must determine whether the petitioner "either failed to exhaust all available state remedies or raise all claims before the state courts" before it may reach the merits of an issue. Dressler v. McCaughtry , 238 F.3d 908, 912 (7th Cir. 2001); see also Lieberman v. Thomas , 505 F.3d 665, 669-70 (7th Cir. 2007). This requires "the petitioner to assert his federal claim through one complete round of state-court review, either on direct appeal of his conviction or in post-conviction proceedings." Lewis v. Sternes , 390 F.3d 1019, 1025-26 (7th Cir. 2004) (noting that petitioner must raise his claims " at each and every level in the state court system , including levels at which review is discretionary rather than mandatory, " to exhaust those claims (emphasis added)); Brown v. Watters , 599 F.3d 602, 609 (7th Cir. 2010).

The scope of federal review of a habeas petition under § 2254 is narrow, United States ex rel. Guirsch v. Battaglia , 2007 WL 4557819, at *4 (N.D. Ill.Dec. 20, 2007), and the burden of proof falls on the petitioner to show that he is entitled to relief, Cullen v. Pinholster , ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011). A federal court may not grant habeas corpus relief unless the state court decision (1) was contrary to, or involved an unreasonable application of clearly-established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). A state court decision is contrary to clearly-established federal law when the court applies a rule that contradicts the governing law set forth by the Supreme Court or, on facts materially indistinguishable from the facts of an applicable Supreme Court precedent, reaches a different result. Williams v. Taylor , 529 U.S. 362, 405-06 (2000). Similarly, a state court decision unreasonably applies clearly-established law when it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." United States ex rel. Hampton v. Leibach , 347 F.3d 219, 245 (7th Cir. 2003) (internal quotation marks and citation omitted). "This reasonableness determination is quite deferential, such that a state decision may stand as long as it is objectively reasonable, even if the reviewing court determines it to be substantively incorrect." Barrow v. Uchtman , 398 F.3d 597, 602 (7th Cir. 2005); accord Williams , 529 U.S. at 410 ("[A]n unreasonable application of federal law is different from an incorrect application of federal law."). A state court's decision must lie "well outside the boundaries of permissible differences of opinion" to be found objectively unreasonable. Watson v. Anglin , 560 F.3d 687, 690 (7th Cir. 2009) (internal quotation marks and citation omitted).

In certain circumstances, however, a reviewing federal court should not even reach the question: when a petitioner fails to properly raise issues before the trial court or the state appellate court, he forfeits his ability to raise these issues in his post-conviction appeal-including, pertinently, in his habeas petition. See Miranda v. Leibach , 394 F.3d 984, 994-95 (7th Cir. 2005); see also United States ex rel. Monroe v. Zimmerman , 2010 WL 3307081, at *7 (N.D. Ill. Aug. 18, 2010) (noting that "the forfeiture rule is well-established in Illinois"). This is because a state court's forfeiture holding constitutes a ground that "is independent of the federal question and adequate to support the judgment." Coleman v. Thompson , 501 U.S. 722, 729 (1991); see Miranda , 394 F.3d at 994-95; Aliwoli v. Gilmore , 127 F.3d 632, 634 (7th Cir. 1997). Only where a petitioner can show either "cause for his state-court default of any federal claim, and prejudice therefrom" or "a sufficient probability that [the court's] failure to review his federal claim will result in a fundamental miscarriage of justice" should a federal court review a procedurally-defaulted claim. Edwards v. Carpenter , 529 U.S. 446, 447, 451 (2000). "Cause" cannot be attributable to the petitioner as it must be external, beyond his control. Murray v. Carrier , 477 U.S. 478, 488 (1986). "Prejudice" must be more than the mere possibility of prejudice-only "actual prejudice" will suffice." Id. at 494. And, to show that a fundamental miscarriage of justice has occurred, the petitioner must demonstrate that he is "actually innocent of the crime." Schlup v. Delo , 513 U.S. 298, 324 (1995).

To avoid forfeiture in Illinois, a defendant must both contemporaneously object at trial and include the alleged error in a written post-trial motion. People v. Ramos , 742 N.E.2d 763, 769 (Ill.App.Ct. 2000); Miranda , 394 F.3d at 995 (noting that "[w]e believe that the rule requiring that all issues for appeal be preserved in a written post-trial motion is solidly established in Illinois law.... [T]he Illinois Supreme Court has repeatedly held that issues not contained in a written post-trial motion are waived on appeal even though a timely objection was interposed at trial." (internal quotation marks and citations omitted)). Thus, a defendant who fails to raise an issue both at trial and in a ...


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