UNITED STATES OF AMERICA ex rel. NATHANIEL BROWN (B-65324), Petitioner,
NEDRA CHANDLER, WARDEN DIXON CORRECTIONAL CENTER, Respondent.
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, District Judge.
In December 1994, Petitioner Nathaniel Brown was convicted by a jury of four counts of criminal sexual assault. The trial court, Judge Kipperman, sentenced Brown to two five-year terms for criminal sexual assault to run concurrently with two consecutive fifteen-year terms for aggravated criminal sexual assault. Brown filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in 2005, and supplemented it with an amended petition in 2009. Brown claims that there were numerous errors in the grand jury proceedings and further errors on the part of trial counsel and the trial court judge, rendering his confinement invalid. The court stayed habeas proceedings in 2005 to permit petitioner to pursue his state post-conviction appeal, but, despite Petitioner's efforts to exhaust his state court remedies, no resolution had been reached six years later. Given this delay, the court deemed Brown's state remedies exhausted in 2011, and now proceeds to the merits of his petition. Though Brown won that battle, he loses the war: for the reasons explained here, the court denies both the original  and supplemental  petitions, and declines to grant a certificate of appealability.
FACTUAL AND PROCEDURAL BACKGROUND
On habeas review, the court presumes the facts as found by the state court correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). The following facts are drawn from the Illinois Appellate Court's order affirming Brown's conviction on direct appeal. ( Illinois v. Brown, 288 Ill.App.3d 1098, 711 N.E.2d 822, Order of the Ill.App. Ct., 1st Dist., June 2, 1997, hereinafter " Ill. App. Ct. Order, " Ex. A to St. Ct. R. .)
Petitioner was charged with two counts of aggravated criminal sexual assault and two counts of criminal sexual assault stemming from four different instances in which he assaulted a friend of his stepdaughter. ( Id. at 1.) The first of the four acts occurred in September 1992, the second just before the victim's thirteenth birthday (which was October 21, 1992), the third in December 1992, and the fourth in January 1993. ( Id. at 2.) At all relevant times, Brown was age 47. (Def.-Appellant's Br., Ex. B to St. Ct. R., at 16.) ("[Petitioner's] date of birth was February 12, 1945....") Throughout this period, the victim was living in the Westchester, Illinois home that Brown shared with his stepdaughter, his wife (Cathy Brown), and two children from the Browns' marriage. ( Id. at 1-2.) Each of the four attacks followed a similar pattern:
[The complainant] awoke in the early morning hours to find defendant on top of her... She stated that she could not breathe because defendant was crushing her. Her underwear was off and her legs were pried open and pinned down by defendant's knees. Defendant had complainant's arms over her head with one hand and he inserted the fingers of his other hand in her vagina. He then penetrated her vagina with his penis. When defendant was finished he stood up, put on his underwear and left the room without saying a word. The complainant knew he had ejaculated because there was a white substance on her bed and on her leg near her vagina. After he left the room, she got up, turned on the light, locked the door and started crying.
( Id. at 2.) The victim testified that she told three of her schoolmates about the assaults: Kevin Anderson, Ann Morgan, and Elizabeth Doanes (Petitioner's stepdaughter). ( Id. at 3.) Anderson and Morgan corroborated the victim's testimony, testifying that the victim told them about the rapes in November 1992 and April 1993, respectively. ( Id. ) Doanes, however, denied being told about the attacks. ( Id. ) The State called Sandra Conrath, a retired teacher, and Sam Pulia, a police sergeant, to impeach Doanes's credibility. Contrary to Doanes's testimony that she had never herself been assaulted by Brown, Conrath, and Pulia testified that, in 1989, Doanes had complained to Conrath that Brown was "touching her and doing things to her, " and had told Pulia that she had been sexually assaulted by Petitioner. ( Id. ) In addition to Doanes, Brown also called his daughter from a prior relationship, his wife, and a police officer, Sergeant Lisuzzo as witnesses in his case in chief. ( Id. at 3-4.)
A jury found Brown guilty on all four counts: two counts of aggravated criminal sexual assault, for the episodes before the victim's thirteenth birthday, and two counts of criminal sexual assault, for the episodes after she turned 13. Brown was subsequently sentenced to two five-year terms of imprisonment for criminal sexual assault to run concurrently with two consecutive fifteen-year terms for aggravated criminal sexual assault. ( Id. at 1.)
II. Direct Appeal
Petitioner appealed, raising nine issues, all of which the appellate court rejected in affirming Brown's conviction. Petitioner, who was represented by counsel, claimed that: (1) the trial court erred in admitting testimony corroborating the victim's complaint of rape; (2) the trial court erred in excluding testimony regarding the victim's sexual activity; (3) the trial court erred in allowing the cross examination of Doanes regarding her own allegations, made in 1989, that Brown had sexually assaulted her; (4) certain testimony by Conrath and Sergeant Pulia relating to the victim's allegations of sexual assault should have been excluded as unduly prejudicial; (5) Petitioner was prejudiced because the judge had to be reminded to give a limiting instruction concerning certain rebuttal testimony; (6) the State made improper closing argument; (7) the evidence did not conform to the bill of particulars; (8) the evidence was insufficient to support the conviction; and (9) the judge committed various prejudicial errors. (Def.-Appellant's Br., Ex. B to St. Ct. R.) Petitioner later filed a petition for leave to appeal ("PLA") before the Supreme Court of Illinois, arguing that his counsel at trial and on appeal represented him "inadequate[ly] and incompetent[ly]." (Pet. for Leave to Appeal, Ex. D to St. Ct. R.) Leave to appeal was denied on October 1, 1997. ( Id. )
III. State Post-Conviction Proceedings
Brown filed a pro se petition for post-conviction relief, raising seventeen issues, on March 30, 1998. (Post-Conviction Pet., Ex. F to St. Ct. R.) On April 27, 1998, he filed an amended petition raising three additional issues. (Am. Mot. for Post-Conviction Relief, Ex. G to St. Ct. R.) On May 8, 1998, the trial court denied both petitions, which sought relief under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq. ( People v. Brown, No. 98 CR 1960, Post-Conviction Order of the Ill.App. Ct., 1st Dist., 2001, hereinafter "Post-Conviction Order of the Ill.App. Ct., " Ex. E to St. Ct. R., at 2.) Petitioner again appealed, this time alleging that (1) his consecutive sentences were improper under Apprendi v. New Jersey, 530 U.S. 466 (2000); and (2) the post-conviction trial court erred in dismissing Brown's allegation of ineffective assistance of counsel (both at trial and on appeal) as "frivolous and patently without merit." (Pet.'s Post-Conviction App. Br., Ex. H to St. Ct. R.) In 2001, the appellate court reversed and remanded, finding that Petitioner "was entitled to an evidentiary hearing with regard to his allegations of ineffective assistance of counsel during trial... where trial counsel failed to call several witnesses whom petitioner claims could have provided testimony which would show that the victim was lying." (Post-Conviction Order of the Ill.App. Ct. at 6.)
It appears that hearing has never taken place. On remand from the appellate court's ruling, Petitioner was initially represented by private counsel. The State moved to dismiss the petition as untimely, and the post-conviction trial court granted the motion. On appeal, however, the State conceded, and the court agreed, that the post-conviction trial court had erred in finding the petition untimely on remand, as it was filed within time limit of three years from the date of Brown's conviction. ( People v. Brown, No. 1-03-1185, Second-Stage Post-Conviction Order of the Ill.App. Ct., 1st Dist., Sept. 2, 2005, hereinafter "Second-Stage Post-Conviction Order of the Ill.App. Ct., " Ex. L to St. Ct. R., at 3.) Accordingly, the appellate court reversed and remanded for "new second-stage proceedings on defendant's petition." ( Id. ) After it was determined that Petitioner would not be represented by retained counsel on remand, the court appointed a public defender on March 2, 2007, but Petitioner dismissed his court-appointed counsel on November 2, 2007 and proceeded pro se. ( People v. Brown, Nos. 1-08-0682, 1-08-2619, & 1-08-2622 ( Ill. App. 1st Dist. 2011), Ex. Z to St. Ct. R., at 4.) Petitioner subsequently filed another amended post-conviction petition on December 11, 2007 alleging, among other things, ineffective assistance of trial and appellate counsel ( id. ), as well as numerous other motions, all of which were denied. Petitioner appealed the dismissal of these motions, but his appeal was dismissed for lack of prosecution on October 7, 2008 due to Brown's failure to file the record on appeal within the time prescribed by Illinois law. ( People v. Brown, No. 08-683 (Ill.App.Ct. 1st Dist. Oct. 7, 2008), Ex. AA to St. Ct. R., at 1.)
Meantime, while appeal from the motion rulings was pending, on May 9, 2008, the State moved to dismiss Brown's post-conviction petition (aggregating the claims from his petitions filed in 1998 and 2007). On August 22, 2008, the trial court granted that motion, dismissing the petition due to Petitioner's failure to make a substantial showing of a violation of his constitutional rights. ( People v. Brown, Nos. 1-08-0682, 1-08-2619, & 1-08-2622 ( Ill. App. 1st Dist. 2011), Ex. Z to St. Ct. R., at 4-5.) The appellate court reversed and, for the third time, remanded for an evidentiary hearing on Petitioner's ineffective assistance of counsel claim. ( Id. at 10.) But because Brown had already filed a motion for leave to file a late PLA,  the trial court had no jurisdiction to proceed and the appellate court recalled its remand order. The Illinois Supreme Court denied Petitioner's motion on March 29, 2011. (Resp.'s Answer at 7.)
Brown also filed several additional pro se pleadings in the years between the appellate court's 2001 ruling first remanding his post-conviction petition to the trial court and the second remand order in 2005. In 2003, Petitioner filed a pro se "motion to vacate the judgment and sentence, " as well as a "motion to vacate mandatory consecutive sentences." ( People v. Brown, No. 1-03-3198, Order of the Ill.App. Ct., 1st Dist., Sept. 9, 2005, Ex. Q to St. Ct. R., at 1.) The circuit court "construed [both filings] as petitions for relief under the Post-Conviction Hearing Act... and dismissed [them] as frivolous and patently without merit." ( Id. ) Petitioner appealed, arguing that his concurrent five-year sentences were improper, as they arose from the same physical act as his convictions for aggravated criminal sexual assault. The appellate court affirmed based on Brown's failure to provide a record adequate to assess his claim (specifically, the court could not determine whether Petitioner had raised his claim before the trial court). ( Id. at 5.) In 2005 and 2006, Petitioner also filed, pro se, a petition for mandamus (which was denied for lack of jurisdiction), an amended post-conviction petition, a "petition for relief of void judgment, " and a "motion for production of medical record." ( People v. Brown, No. 93 CR 10870, Certified Statement of Conviction/Disposition, Ex. T to St. Ct. R., at 8-9) In response, on October 2, 2006, the State moved to strike these pro se filings on the ground that Petitioner was represented by counsel. The court granted that motion on November 16, 2006, holding that Petitioner was precluded from filing pro se pleadings while still represented by counsel. ( Id. ) Petitioner again appealed, arguing that "the trial court erred in denying the [ pro se ] motions on the singular basis that defendant had appointed counsel representing him in a separate post-conviction proceeding." ( People v. Brown, No. 1-07-082, Order of the Ill.App. Ct., 1st Dist., Sept. 18, 2008, Ex. V to St. Ct. R., at 1.) The appellate court agreed, and reversed and remanded with instructions that Brown be granted leave to file his petitions. ( Id. at 6-7.) On remand, the trial court denied the petition on October 22, 2010, and Petitioner again appealed. That appeal was still pending as of the last filing in the instant case ( People v. Brown, No. 1-10-3478, Order of the Ill.App. Ct., 1st Dist., June 21, 2011, Ex. EE to St. Ct. R., at 1), but the appellate court later affirmed the trial court decision on December 13, 2012.
IV. State Habeas Petition
In addition to the post-conviction litigation described above, Petitioner has attempted to avail himself of state habeas relief. He filed a combined motion for relief from judgment pursuant to 725 ILCS 5/2-1401 and a state habeas corpus complaint pursuant to 735 ILCS 5/10-101, et seq, on July 29, 2002. Brown relied on four arguments in the combined motion: (1) counts one and three of the indictment "omitted one of the necessary element[s] of the statutory criminal offense, to which, the petitioner was charged and convicted" (i.e., force); (2) his consecutive terms of imprisonment violate Apprendi; (3) the trial court lacked jurisdiction because count three of the indictment was "void and defective" for alleging an act that does not constitute an element of the offense (specifically, Brown argued that "fingers penetration" does not fall under the statutory criminal definition of "any intrusion, however slight of any... object into the sex organ or anus of another person"); and (4) there was no evidence presented at trial that showed that any incident occurred "during the month of October'" or that any "fingers penetration" had occurred, as alleged in the indictment. (Pet.'s Petition for Writ of Habeas Corpus, and or Relief from Judgment, Instanter, Ex. BB to St. Ct. R.) The State filed a motion to dismiss on the ground that none of Brown's claims were cognizable under Illinois' habeas statute. Alternatively, the State argued, Petitioner's combined motion might be construed as a petition for relief pursuant to section 2-1401 of the Code of Civil Procedure, 735 ILCS 5/2-1401; as so construed, it would fail because it was not filed within two years of the judgment, nor in the same proceeding as that judgment, both requirements for relief under section 2-1401. (St.'s Mot. to Dismiss, Ex. T to St. Ct. R.) The trial court agreed with the State, dismissing the petition on April 22, 2003. (Ex. O to St. Ct. R.; Ex. Q to St. Ct. R.) The trial court's decision was affirmed on appeal on December 19, 2003, and Petitioner's subsequent PLA was denied on May 26, 2004. ( Brown v. Leibach , No. 97993, PLA, Ex. DD to St. Ct. R.; Brown v. Leibach, 813 N.E.2d 221 (Ill. 2004).)
V. Federal Habeas Petition
Brown filed this petition pursuant to 28 U.S.C. § 2254 on April 28, 2005, and filed a supplemental petition on April 27, 2009. In Brown's first habeas petition , he asserted that his post-conviction efforts were still underway in state court. (Pet. at 1.d.) In the aggregate, these petitions raise ten different claims: (1) the counts charging Petitioner with aggravated criminal sexual assault (counts one and three) were "void" because they failed to include the element of force and did not identify the victim's age; (2) consecutive sentences were improper; (3) the state habeas court committed multiple errors; (4) the indictment was "defective" and "void" because it failed to properly allege "sexual penetration" as required by the relevant statute; (5) the state habeas court's dismissal of Brown's petition relied on "false and perjurious information" provided by the State in its motion to dismiss; (6) the grand jury proceedings were tainted by multiple errors; (7) the prosecution's trial evidence went beyond the scope of the bill of particulars; (8) the state trial judge committed numerous purposeful errors in aid of a conspiracy to convict Petitioner; (9) guilt was not proved beyond a reasonable doubt and Petitioner was denied his right to "obtain witnesses in his favor"; and (10) counsel was ineffective for failure to raise claims (1) through (9)). (Pet.; Supp. Pet. .)
On June 14, 2005, this court stayed habeas proceedings pending the completion of Petitioner's post-conviction appeal . Over the next six years, the parties filed periodic reports on the status of Petitioner's post-conviction proceedings, but, despite Petitioner's efforts to exhaust his state court remedies, no resolution had been reached. During a May 2, 2011 status hearing , Petitioner advised the court (through appointed counsel) that, although the state courts agreed he was entitled to a hearing on his claims, it could still take two to three years before such a hearing could take place. This court concluded that the delays Brown faced were "extraordinary and unacceptable, " and, if no hearing was held in state court within six weeks, Petitioner's claims would be deemed exhausted. (Minute Order of 5/2/11 .) No such hearing was held within six weeks, and, on June 9, 2011, this court concluded that Brown had exhausted his state court remedies, allowing the court to proceed to the merits of his § 2254 petition. (Minute Order of 6/9/11 .) In its subsequent answer, Respondent argues that all of ...