UNITED STATES OF AMERICA EX REL. ANTHONY BOYCE (R52162), Petitioner,
MARCUS HARDY, WARDEN STATEVILLE CORRECTIONAL CENTER, Respondent.
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, District Judge.
Pro se Petitioner Anthony Boyce ("Boyce") has brought a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court denies the petition , and declines to grant a certificate of appealability.
FACTUAL AND PROCEDURAL HISTORY
The following facts are drawn from the state court record and are entitled to a presumption of correctness, a presumption that Petitioner can rebut only with clear and convincing evidence. Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir. 2012) (citing 28 U.S.C. § 2254(e)(1)). Petitioner was convicted of first-degree murder and sentenced to natural life imprisonment in the Circuit Court of Cook County for the murder of Lorenzo Hamilton ("Hamilton"). ( People v. Boyce, 395 Ill.App.3d 1112, 986 N.E.2d 804, Order of the Ill.App. Ct., 1st Dist., Dec. 30, 2009, hereinafter " Ill. App. Ct. Order, " Ex. A to St. Ct. R. , at 1.) The evidence established that Petitioner was the mastermind and strong arm behind the plan to murder Hamilton for insurance proceeds. Boyce talked his girlfriend, Latoya Williams ("Williams"), into fraudulently posing as Hamilton's girlfriend and obtaining an insurance policy on Hamilton's life. ( Id. ) Petitioner also visited the insurance office that issued the policy on multiple occasions with his cousin, Patrick Davis ("Davis"). Boyce did most of the talking, while Davis pretended to be Hamilton. ( Id. at 1-2.) Hamilton was subsequently murdered, and Petitioner forced Williams to file an insurance claim, beating her severely on more than one occasion when she expressed reservations. ( Id. )
At trial, Davis testified that Petitioner was not involved with the crime; Davis claimed that it was Williams who came up with the plan, and that Davis had pulled the trigger. ( Id. at 2.) The prosecution impeached that testimony, however, with Davis's prior statement to the police in which Davis asserted that Petitioner was behind the scheme, that Davis witnessed Petitioner shoot Hamilton in the back of the head, and that Petitioner had confessed to Davis that he had murdered Hamilton. ( Id. ) The prosecution also introduced evidence of three prior episodes in which Petitioner had arranged for accomplices' legs to be broken in order to submit false insurance claims alleging the injuries were the result of collisions with insured automobiles. ( Id. )
The trial court instructed the jury that it could find Boyce guilty of first-degree murder if it found any of the following: (1) "he intended to kill or do great bodily harm to [Hamilton]"; (2) "he knew that his act would cause death to [Hamilton]"; (3) "he knew that his acts created a strong probability of death or great bodily harm to [Hamilton]"; or (3) Boyce, or someone whose conduct he was legally responsible for, killed Hamilton in the course of "committing the offense of insurance fraud, or... committing the offense of conspiracy to commit insurance fraud." (Supp. Report of Proceedings, Vol. 1, Ex. V. to St. Ct. R., at 94.) The jury was also instructed that Boyce was responsible for the criminal acts of others if "he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense." ( Id. at 90.) The jury found Boyce guilty of first-degree murder, but also made the specific finding that the evidence had not established that Boyce had fired the weapon that killed Hamilton. ( Id. at 113-14.)
After concluding his state direct appeal and post-conviction proceedings, Petitioner filed this § 2254 petition, raising two claims: (1) Petitioner was improperly convicted under Illinois' felony murder statute; and (2) the prosecution wrongfully introduced the evidence regarding the beatings of Williams and the car insurance scams. (Pet'r's Pet.  at 8-19.) Respondent Marcus Hardy ("Hardy"), Warden of Stateville Correctional Center, argues that the petition should be dismissed because the claims are procedurally defaulted, and Petitioner cannot excuse his defaults. Specifically, Respondent asserts that Petitioner failed to exhaust the claims through a complete round of review, including in a timely petition for leave to appeal ("PLA") before the Supreme Court of Illinois.
In response to the procedural default argument, Petitioner blames his failure to file a PLA on the advice he received from Jennifer Bonjean ("Bonjean"), the attorney who represented him on direct appeal. The state appellate court issued its decision on Boyce's direct appeal on December 30, 2009. (Ill.App.Ct. Order at 1.) In a letter dated March 5, 2010, Bonjean explained to Petitioner that the appellate court had affirmed his conviction and sentence, and provided a copy of the order. (Letter from Bonjean to Boyce of 3/5/10, Ex. A to Pet'r's Rep. .) She advised Petitioner that, "As you know, the appellate court affirmed your conviction and sentence on appeal... [y]our next course of action would be to file a post-conviction petition." ( Id. ). The letter makes no mention of the possibility of, or need for, a petition for leave to appeal to the Illinois Supreme Court. In fact, Bonjean drafted the letter roughly a month after the thirty-five-day PLA deadline had passed. The record is silent as to the question of whether Bonjean had any other communications with Petitioner, but for purposes of this decision the court will assume that her March 2010 letter contained the only advice she gave him after dismissal of his direct appeal.
It appears that Petitioner followed Bonjean's advice. In June 2010, he submitted a pro se petition [21-7] under Illinois's Post Conviction Hearing Act, 725 ILCS 5/122-1, et seq., in the Circuit Court of Cook County. He later brought a pro se supplemental petition in July 2010. (Mot. to Present New Pro Se Pet. [21-8], Ex. G to St. Ct. R.) Neither petition mentioned the matter of a PLA on direct appeal, nor Bonjean's silence on that issue. The supplemental petition did raise an unrelated ineffective assistance of appellate counsel claim regarding Bonjean: specifically, her failure to challenge, on direct appeal, the trial court's introduction of prejudicial evidence. ( Id. at 6.) The state trial court denied the post-conviction petition on September 22, 2010. ( People v. Boyce , No. 01 CR 16813-02, Order of the Cir. Ct. of Cook Cnty., Criminal Div., Sept. 22, 2010, Ex. I to St. Ct. R.) Petitioner filed a notice of appeal from that ruling after the filing deadline, but the Illinois courts denied leave to proceed on that late notice. (Notice of Appeal, Ex. J to St. Ct. R.; Certified Statement of Conviction/Disposition, Ex. N to St. Ct. R.) Thus, neither on direct appeal, nor in his state post-conviction proceedings, did Petitioner present his claims before all levels of the Illinois courts.
In March 2011, Petitioner filed this federal habeas corpus petition along with a motion to stay these proceedings . The case was originally assigned to Judge Blanche M. Manning. In his stay motion, Petitioner asserted that Bonjean had provided misleading advice, and that Petitioner now understood that he needed to file a PLA presenting his claims through one full round of state court review in order to preserve the claims presented to his court. (Mot. for Stay at 1.)
Judge Manning granted the motion , and in April 2011, Petitioner moved for leave to file a late PLA [21-5] before the Illinois Supreme Court. The Supreme Court denied the motion on May 20, 2011 [21-6]. With the denial ending Petitioner's belated exhaustion efforts, Judge Manning lifted the stay, and the parties briefed the habeas petition. As mentioned above, Respondent argues that the present claims were procedurally defaulted due to Petitioner's failure to raise them in a timely PLA on direct appeal. Petitioner responds that the failure should be excused due to Bonjean's allegedly misleading advice. The case was reassigned to this court on December 6, 2012  following Judge Manning's retirement.
I. Requirement of Exhaustion
To preserve a claim for federal habeas corpus review, the prisoner is required to present the operative facts and controlling legal principles through one complete round of review in the Illinois courts, including in a timely PLA to the Supreme Court of Illinois. Pole v. Randolph, 570 F.3d 922, 937 (7th Cir. 2009) ("Under Section 2254's exhaustion requirement, the petitioner must assert his federal claim through one complete round of state-court review, either on direct appeal or in post-conviction proceedings."). Both of the claims Petitioner presents here-the felony murder claim and the prior-bad-acts evidence claim-were raised before the Appellate Court of Illinois on direct appeal (Brief and Argument for Def.-Appellant [21-2] at 1), but Petitioner failed to present them to the Illinois Supreme Court in a timely PLA. Petitioner also could have exhausted his claims by presenting them in a full round of ...