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United Ex Rel. Erwin v. Harrington

United States District Court, Seventh Circuit

November 7, 2013

UNITED STATES OF AMERICA, ex rel. DEAUNTE ANDRE ERWIN, Petitioner,
v.
RICK HARRINGTON, Warden, Menard Correctional Center, Respondent.

MEMORANDUM OPINION AND ORDER

HARRY D. LEINENWEBER, District Judge.

Before the Court is Petitioner Deaunte Andre Erwin's Petition for a Writ of Habeas Corpus. For the reasons stated herein, the Petition is denied and the Court declines to issue a Certificate of Appealability.

I. BACKGROUND

Petitioner Deaunte Erwin (the "Petitioner") is incarcerated by the state of Illinois and is in the custody of Warden Rick Harrington (the "Respondent"). His incarceration stems from a murder and armed robbery that took place in 2003. Petitioner was convicted in a jury trial in state court in which the jury found that Petitioner discharged a firearm during the murder. Petitioner had made incriminating statements to law enforcement, and prosecutors introduced those statements at trial. The trial court sentenced Petitioner to twenty-five years for first degree murder, an additional twenty years for personal discharge of a firearm during the murder, and another ten years for each of two armed robberies.

Petitioner pursued a direct appeal and a full round of post-conviction proceedings, all to no avail. The Illinois courts that heard Petitioner's claims all agreed with the trial court that Petitioner's confession was admitted properly. The state courts held that Petitioner had not been denied effective assistance of counsel at either his trial or direct appeal. Petitioner then brought this Petition for a Writ of Habeas Corpus.

II. ANALYSIS

Petitioner's claims are based on ineffective assistance of both trial and appellate counsel and the trial court's failure to suppress an allegedly coerced confession. Respondent agrees that, with the exception of one ground within the ineffective assistance claim, Petitioner has exhausted his state court remedies for these claims because no state court avenues remain by which he may present them. In addition, none of these claims is barred by the statute of limitations or by non-retroactivity principles.

A. Ineffective Assistance of Counsel

1. Inadequate Cross-Examination

Petitioner alleges that trial counsel neglected to conduct an adequate cross-examination of an assistant state's attorney about a timeline related to Petitioner's custodial request for counsel. On direct appeal, Petitioner's appellate counsel raised this ineffective assistance ground, but then withdrew the allegation after concluding that the argument had no factual basis. Exs. E, F. Petitioner did not raise this argument in either of his post-conviction appellate briefs. See, Exs. K, M.

To present his case in federal court, a habeas petitioner must first assert his federal claim through one complete round of state-court review, either on direct appeal or in post-conviction proceedings. 28 U.S.C. ยง 2254(b)(1)(A). "Adequate presentation of a claim to the state courts requires the petitioner to present both the operative facts and the legal principles that control each claim." Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009). Because appellate counsel withdrew this argument, Petitioner's claim fails this requirement and is barred procedurally.

Petitioner does not acknowledge this default and does not present any excuse for it. Petitioner could have argued that this Court's failure to review his claims would result in a "fundamental miscarriage of justice." See, Patrasso v. Nelson, 121 F.3d 297, 301 (7th Cir. 1997). This Court sees no apparent fundamental miscarriage of justice, and declines to make Petitioner's arguments for him. See, Franklin v. Gilmore, 188 F.3d 877, 884 (7th Cir. 1999). Petitioner's ground is defaulted and does not entitle Petitioner to habeas relief.

2. Failure to Request a Separate Verdict Form

Petitioner argues that trial counsel should have requested that the trial court provide the jury with separate verdict forms, and that appellate counsel was ineffective for failing to make that argument on direct appeal. Respondent concedes that unlike Petitioner's argument as to inadequate cross-examination, Petitioner's separate jury form ...


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