United States of America ex rel. RALPH HOLMES, Petitioner,
NEDRA CHANDLER, Warden, Dixon Correctional Center, Respondent.
MEMORANDUM OPINION AND ORDER
VIRGINIA M. KENDALL, District Judge.
Petitioner Ralph Holmes brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Holmes is incarcerated at Dixon Correctional Center in Dixon, Illinois, where he is in the custody of Nedra Chandler, the warden of that facility. He is currently serving a fourteen-year sentence for his conviction as an armed habitual offender under 720 ILCS § 5/24-1.7(a)(1). For the following reasons, Holmes's petition is denied.
On October 3, 2007, Joliet police officers Patrick Schumacher and Mark Lauer approached Holmes while he was standing in the Evergreen Terrace apartments parking lot. Holmes was not legally permitted to be in that parking lot, and upon seeing the officers, he ran away. As the officers chased him, Officer Schumacher saw Holmes drop a gun and stopped to pick it up, while Officer Lauer continued to chase and ultimately apprehended him. When questioned, Holmes admitted he dropped the gun, but stated it was a BB gun, not a firearm.
At trial the State put forth evidence that Officer Schumacher saw Holmes drop the weapon, and expert testimony that the weapon was a firearm and not a BB gun. It also put forth certified copies of Holmes's two prior firearms-related convictions. However, it did not conduct fingerprint testing on the gun, which the State claims was because Officer Schumacher touched the weapon, thereby contaminating it. Holmes's defense attorney at trial did not present any contradicting forensic evidence and did not cross-examine the State's gun identification expert. Holmes's affirmative defense included testimony from Holmes's daughter that she did not see him with a gun that day, and testimony from Holmes himself that there were other men running with him through the tunnel when Officer Schumacher saw the gun drop. The jury convicted Holmes based on this evidence on April 3, 2008, and the court sentenced him to fourteen years in prison on July 24, 2008.
Holmes directly appealed his conviction on April 6, 2009, arguing that the armed habitual statute violated the constitutional prohibition against ex post facto laws because his prior convictions took place before the law was passed. The Illinois State Appellate Court affirmed his conviction on November 13, 2009, on the grounds that a recent Illinois Supreme Court case foreclosed his claim. Holmes did not further appeal to the Illinois Supreme Court.
On October 16, 2008, Holmes also filed a postconviction petition and a pro se postconviction petition in which he raised the same six arguments currently before this Court in his habeas petition. The trial court dismissed the petitions as frivolous and without merit. Holmes appealed the dismissal, but his appointed counsel moved for leave to withdraw as counsel because he believed the appeal to be frivolous and without merit. The appellate court granted counsel's motion to withdraw and affirmed the lower court's dismissal of Holmes's postconviction petitions.
Holmes filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court on July 26, 2011, but dropped the majority of the arguments he made in his appeal and postconviction petitions. Instead, he made three claims: that the evidence presented at trial was not sufficient to convict him; that his postconviction counsel was ineffective for seeking to withdraw; and that the appellate court abused its discretion in granting counsel's motion and affirming the denial of his postconviction petitions. The latter two arguments are absent from Holmes's present habeas petition, and the Illinois Supreme Court denied Holmes's PLA on all three arguments on September 28, 2011. (Dkt. No. 14-13 at 35.)
Holmes now presents nine claims in his petition for a writ of habeas corpus:
1. Trial counsel was ineffective under the Sixth and Fourteenth Amendments for failing to challenge the indictment on the ground that it was not signed by the foreperson of the grand jury;
2. Holmes was improperly charged and sentenced under 720 ILCS § 5/24-1.1(a) even though that charge had been "nolle prossed, " and could not be charged and sentenced under 720 ILCS § 5/24-1.7(a)(1) because his past two offenses were not "forcible felonies" as defined by Illinois law;
3. The evidence was insufficient to convict Holmes as an armed habitual criminal under the Fourteenth Amendment because the State did not prove beyond a reasonable doubt that Holmes was ever in possession of a weapon;
4. The State's dismissal of the unlawful possession of a weapon count rendered the armed habitual criminal count void under the Fourteenth Amendment because unlawful possession was an element of the armed habitual criminal offense;
5. Trial counsel was ineffective under the Sixth and Fourteenth Amendments for failing to cross-examine the State's expert witness concerning how the firearm found at the scene of the crime was related to Holmes;
6. Trial counsel was ineffective under the Sixth and Fourteenth Amendments for failing to file a proper motion in limine to bar ...