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United States ex rel. Bryant v. Acevedo

United States District Court, Seventh Circuit

December 19, 2013

United States of America ex rel. LIZELL BRYANT, Petitioner,
GERARDO ACEVEDO, Acting Warden, Respondent.



Before the Court is Petitioner Lizell Bryant's ("Bryant") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the following reasons, Bryant's petition is denied.


A. Facts

A state court's factual findings are "presumed to be correct" on federal habeas corpus review unless the petitioner rebuts this "presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). The Court takes the following facts from the relevant Illinois state court opinions. Following a bench trial, Bryant was convicted of the aggravated battery and attempted first-degree murder of his wife, Evelyn Bryant ("Evelyn"), and sentenced to 30 years' imprisonment. Bryant and Evelyn married in 1991, but later separated in 1997. Evelyn moved into an apartment in Des Plaines, Illinois while Bryant lived in an apartment in Joliet, Illinois. Despite the separation, Evelyn and Bryant continued to see each other occasionally.

On October 20, 1998, Bryant arrived at Evelyn's apartment around 10:00 p.m. At some point thereafter, Bryant struck Evelyn on the head, knocking her to the floor where he continued to beat her with his first. Bryant also hit her over the head several times with a vase and a brass candlestick and covered her face with pillows. He told Evelyn that she was going to die, that he hoped she said goodbye to her grandchildren, and that if anyone came to the door her would kill her. When Evelyn tried to run towards the door, Bryant grabbed her and stabbed her twice in the chest with a kitchen knife. Once Evelyn got control of the knife, she ran to the kitchen in order to call the police. Bryant, however, ran after her and ripped the phone off the wall, smashing it to the floor. Eventually, Bryant left and Evelyn was able to reach a neighbor for help. Bryant was arrested a few hours later, after Evelyn gave a description of him and his car to the police.

B. Procedural History

In 1998, Bryant was indicted on charges of aggravated battery and attempted first-degree murder. Bryant proceeded to a jury trial where he was found guilty of aggravated battery, but the jury was unable to return a verdict on the attempted murder charge. Subsequently, Bryant requested, and was granted a new trial. For his retrial, Bryant waived his right to a jury and agreed to a bench trial. The trial court found Bryant guilty on both the aggravated battery and attempted first-degree murder charges.

Although the statutory maximum was 30 years, the trial court sentenced Bryant to an extended-term of 60 years' imprisonment. Bryant then appealed his conviction and sentence, arguing, inter alia, that his extended-term sentence violated Apprendi v. New Jersey, which provides that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. 466, 490 (2000). The Illinois Appellate Court remanded the case for resentencing based on Apprendi, finding that "the evidence is not clear that the crime was exceptionally brutal and heinous and reasonable juries could disagree." People v. Bryant , 758 N.E.2d 430, 438 (Ill.App.Ct.2001).

On remand for resentencing, Bryant made a motion to substitute judges based on the alleged bias of the trial court, which was denied. Bryant proceeded to resentencing pro se and the trial court sentenced him to 30 years' imprisonment. Once again, Bryant filed a timely appeal.

In his second direct appeal, Bryant argued that the court erred in denying his motion to substitute judges and that he was denied representation at his resentencing hearing. The appellate court upheld the denial of his motion to substitute judges, but, after the State admitted to error regarding his lack of representation, the court remanded his case once again for a second resentencing.

At his second resentencing, Bryant was represented by a Cook County public defender and called several witnesses in mitigation. Although the State did not call any witnesses in aggravation, it submitted evidence that Bryant had a previous conviction in 1981 for three-counts of involuntary manslaughter after he shot and killed his then-wife and her parents. The trial court sentenced Bryant to 30 years' imprisonment.

After his second resentencing, Bryant filed a third direct appeal, arguing that the trial court acted "arbitrarily and punitively" in sentencing him to 30 years. State Ct. R. Ex. N., at p. 10. The appellate court affirmed his sentence, finding that "the trial court had an ample basis for sentencing defendant to 30 years in prison and did not abuse its discretion in doing so. Put another way, we conclude that the trial court has not shown defendant prejudice... but has merely judged his case as [is] its power and duty under the law." State Ct. R. Ex. Q, at p. 9.

On September 3, 2008, Bryant filed a petition for leave to appeal ("PLA") to the Illinois Supreme Court. Bryant argued that the appellate court "overlooked critical facts and evidence, and has misapprehended the arguments presented on appeal" and that the trial court was biased against him. State Ct. R. Ex. V, at p. 2. The PLA was denied on November 26, 2008.

Meanwhile, Bryant filed a post-conviction petition before the trial court on July 5, 2002, which the trial court summarily dismissed on July 12, 2002 because his direct appeal was still pending. Following Bryant's appeal of that ruling, the State conceded error, and the Illinois Appellate Court remanded for further post-conviction proceedings. Although Bryant was originally represented by appointed counsel, he refused the services of the public defender and his attorney was granted leave to withdraw. Bryant then continued pro se, filing supplemental materials. His motion remained pending until 2008.

On September 5, 2008, the trial court held a hearing on Bryant's post-conviction petition, during which Bryant once again refused the services of the public defender and proceeded pro se. Bryant demanded that the trial court make an immediate ruling on the long-pending motion, even though the State had not yet responded or moved to dismiss. The trial court then dismissed Bryant's post-conviction and supplemental post-conviction motions, finding that he failed to state a meritorious claim for relief.

Bryant appealed the dismissal of his post-conviction petitions, arguing that the trial court erred by denying him counsel on his post-conviction motion and by dismissing his motion sua sponte. On March 25, 2011, the appellate court found that Bryant was given his statutory right to appointed counsel-which he refused-and "was not prejudiced in such a manner to warrant appointment of private counsel." State Ct. R. Ex. GG, at p. 24. The court further ...

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