United States District Court, N.D. Illinois, Eastern Division
MICHAEL E. MUNSON, Petitioner,
NEDRA CHANDLER, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
JOHN J. THARP, Jr., District Judge.
Michael Munson is imprisoned at the Dixon Correctional Center, serving a forty-year sentence for possession of a controlled substance with intent to deliver. Munson was convicted in 2003 after a jury trial in the Circuit Court of LaSalle County. He now petitions for a writ of habeas corpus under 28 U.S.C. § 2254. In his pro se petition, Munson raises three categories of arguments supporting his petition for habeas relief. For the reasons set forth below, the Court denies the petition for a writ of habeas corpus and declines to issue a certificate of appealability.
In a federal habeas case initiated by a prisoner in custody pursuant to a state court proceeding, the state court's factual findings are presumed to be correct, and the petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir. 2012). The facts that follow are therefore primarily drawn from the state appellate court opinions on direct and post-conviction appeal. People v. Munson, No. 3-04-0703 (Ill.App.Ct. Jan. 10, 2007), Dkt. 11-1; People v. Munson, No. 3-08-0803 (Ill.App.Ct. Mar. 3, 2011), Dkt. 11-2. Certain procedural facts are also derived from Munson's pleadings and transcripts of state court proceedings. Assertions that Munson offers to controvert these facts are presented, as relevant, in the discussion of the claims he asserts in his petition.
A. Factual Background
In June 2002, City of LaSalle police officers suspected Munson of being involved in drug activity. They believed that he was hiding evidence in his home and businesses, Ottawa Glass and M&M Adult Video. Based on an affidavit that stated that Munson was implicated in a 1998 drug transaction and that his wife had informed the police that he was using his businesses for drug transactions and had been arrested for cocaine possession, the state trial court issued a warrant that authorized the police to search Munson's home and businesses, and to seize cocaine and any items or documents "used in the manufacturing, packaging, processing, distribution, sale or consumption of cocaine." Before police searched Munson's home, his mother gave them permission to search the garage at her Ottawa home. There, officers found a department store shopping bag that contained several clear plastic bags containing cocaine. The total amount of cocaine seized from the garage was between 990 and 1011 grams. The cocaine was cut with a mixing agent, inositol powder, and packaged for delivery and sale. Munson's fingerprints were on the shopping bag and the plastic bags. The officers then searched Munson's residence, where they found a key in a bedroom used by Munson and his wife, Valinda. Valinda gave the officers permission to take the key, which opened Munson's mother's garage. When searching Munson's businesses, police found multiple bottles of inositol powder, two electronic scales, and four boxes of clear plastic sandwich bags.
B. Trial Proceedings
Munson was arrested and charged with possession with the intent to deliver. He was arraigned on June 26, 2002, at which time the State informed the court that Munson was being held in Grundy County on separate charges. The parties agreed to refrain from further proceedings until the Grundy County charges were resolved. Munson remained in the custody of Grundy County for about a year, until June 12, 2003, when the Grundy Charge was dismissed nolle prosequi due to the unavailability of a witness. On June 20, 2003, Munson appeared at a status hearing on the LaSalle County charge; a trial date was set for September 23, 2003. At the next status hearing on August 15, 2003, Munson's attorney moved to withdraw with no objection from Munson. A public defender was then appointed, who appeared with Munson on August 21, 2003; a new trial date was set for October 27, 2003. At a pretrial hearing on October 23, 2003, his public defender moved to withdraw due to a conflict of interest. The motion was granted and a new public defender, who was present in court, was appointed. The new public defender, Munson's third attorney, asked for thirty days to prepare for trial. The court agreed and set a status hearing for three weeks out. Munson indicated that he wanted an earlier trial, and the court took a brief recess so that Munson could consult his newly appointed counsel. When the hearing resumed, the judge informed Munson that if he wished to reinstate his speedy trial demand, she would set a quick trial date. Munson said, "Yes, please, if you could." The trial was set for November 17, 2003, and Munson made no further objections.
On October 31, 2003, Munson retained attorney Frederick Cohn to represent him. Cohn moved to substitute for public defender Reilly, indicating in his written motion that he would be ready to proceed with trial as scheduled. Munson insisted the trial date not be moved. Cohn, now Munson's fourth lawyer, filed pretrial motions to suppress and, on November 17, made an oral motion in limine to preclude evidence of Munson's commission of the Grundy County crime two days prior to the LaSalle County charge. The trial court denied the motions and the trial proceeded.
One of the witnesses at trial was Chicago police officer Thomas Cunningham, who testified that he had arrested Munson in a drug transaction two days before the cocaine was found in his mother's garage. Before Cunningham testified, the court instructed the jury that his testimony was to be considered only for the limited issue of Munson's knowledge and intent.
Munson's defense was to raise reasonable doubt by showing that Valinda, not he, placed the bag of cocaine in his mother's garage. He took the stand at trial and testified that he had access to his mother's garage but that he did not know about the cocaine. He denied that the items found at his businesses were used to package cocaine. He said instead that he and Lavonne Sipula, his girlfriend and employee, used the sandwich bags to make holiday gift bags, that he purchased inositol powder at GNC for use as a dietary supplement, and that Sipula used the scales to weigh mail. Munson also testified that he had agreed to try to sell a vehicle belonging to his friend Robert Harris, who was incarcerated. Munson admitted that the title of the vehicle was in his name because Harris was having IRS problems. In preparation for the sale, Munson took the car to the garage at his home to have it worked on by a mechanic. Once at Munson's garage, the mechanic opened the trunk in front of Munson and Valinda. Munson went inside the house, and a few minutes later, Valinda carried a brown grocery bag inside. She asked Munson what was in the bag; he did not know. He opened it to find a white bag containing a smaller clear plastic bag holding white powder. Valinda left with the bag and returned later without it; she did not answer when Munson asked her what she had done with the bags.
On cross-examination, the State asked Munson if he had ever used inositol powder as anything other than a dietary supplement. He answered that he had not, and was subsequently impeached by a prior statement that he had made to an FBI agent, in which he claimed that Harris had previously taught him how to cut cocaine with inositol power and admitted that he had done so. Munson also admitted on cross that he had seen cocaine before and that he thought the white powder inside the bag could have been cocaine. When the State asked him how many times he had previously seen it, Munson's attorney advised Munson to assert his Fifth Amendment right and refuse to answer the question. The jury was excused, and the trial court ordered Munson to answer the question. Munson was given time to consult with his attorney, and after the jury returned, he answered the question, testifying that he had seen cocaine many times in the past.
Munson also called three employees of the Ottawa Police Department as witnesses to testify regarding their prior encounters with Valinda. One detective testified that he found her nude in a hotel swimming pool; she told the detective that she was "being tormented by the people inside the mirrors of the hotel." Another officer testified that she once made statements through police dispatch that she was going to stab her husband because he allegedly took a desk from their home. Finally, an inspector testified that she had reported that "government agents were out to kill her" and that "she heals people by laying her hands on them and that God cleanses out the pollution,  through the bleeding from her vagina."
During closing arguments, the State argued that Munson had lied when he stated that he did not know what the white substance was and then testified that he thought it probably was cocaine. The State also condemned Munson for "muddying up" Valinda. In the defense's closing argument, Munson's attorney reiterated the argument that Valinda or someone else put the bag of cocaine in the garage. The jury found Munson guilty of possession of a controlled substance with intent to deliver.
At the sentencing hearing, a federal agent testified for the State. He stated that Munson had admitted to him in an interview that he was heavily involved with Harris's cocaine business, including having been paid to oversee distribution when Harris was out of town and eventually buying the business from Harris. The agent also testified that Munson told him that Harris taught him how to dilute cocaine with inositol powder. Munson presented no mitigating witnesses at the sentencing hearing. The presentencing investigation report indicated that Munson faced pending charges for federal tax evasion, that he had no prior convictions, had never used illegal drugs, and occasionally drank alcohol. The trial court sentenced Munson to forty years in prison and ordered him to pay a street-value fine of $101, 130, noting among other things that his crime was motivated by greed and that his actions seriously harmed the youth in the community.
Munson moved for a new trial, alleging ineffective assistance of counsel and asserting that his speedy trial right had been violated. At the hearing on the motion, he testified that he had met with Cohn, his trial counsel, just twice for forty-five minutes each time. He argued that Cohn had been ineffective because he did not call additional witnesses to testify regarding Valinda's mental illness, did not read the FBI statement with which he was impeached prior to trial, allowed him to testify, and advised him to assert his Fifth Amendment right in front of the jury. At a hearing on the motion, Cohn testified that Munson had not provided him with names of other witnesses. Cohn's strategy was to raise reasonable doubt by showing that Valinda placed the bag in the garage. He chose not to present more witnesses to testify as to her mental state because he thought it would be harmful to Munson; Cohn testified that "you don't look good attacking a sick person by just showing how sick they are." Ex. M, Tr. at 36:4-5, Dkt. 11-7. Cohn also testified that Munson agreed with his decision not to call Valinda as a witness. As for the FBI report, he did not specifically remember reading the report, but based on his normal practice, believed that he had done so prior to trial particularly because he knew that the FBI agent was present for trial. He could not say for certain whether he had advised Munson not to take the stand, but thought based on his normal practice that he had. The court denied Munson's motion for a new trial and concluded that no speedy trial violation had occurred.
C. Direct Appeal and State Post-Conviction Proceedings
In his direct appeal, Munson raised five issues: (1) he was denied his Sixth Amendment right to effective assistance of counsel because his trial attorney failed to prepare, put forth a meaningful defense, investigate and interview potential witnesses, and review discovery, and because his attorney put Munson in a bad light by advising him in front of the jury to assert his Fifth Amendment right; (2) the trial court erred in denying his motion to suppress evidence seized pursuant to a deficient search warrant; (3) he was denied a fair trial when the trial court allowed evidence of prior bad acts and the prosecutor called him a liar during closing arguments; (4) he was not proven guilty beyond a reasonable doubt because the state failed to prove the elements of "possession" and "intent to deliver;" and (5) the trial court abused its discretion by sentencing him to forty years. The appellate court addressed and rejected the merits of each of these arguments and affirmed Munson's conviction and sentence. People v. Munson, No. 3-04-0703 (Ill.App.Ct. Jan. 10, 2007), Dkt.11-1. Munson then filed a petition for leave to appeal with the Illinois Supreme Court, but his petition was denied. Munson did not file a petition for writ of certiorari with the United States Supreme Court.
Munson next filed a pro se petition for post-conviction relief in the Circuit Court of LaSalle County. In his petition, Munson raised a Sixth Amendment claim for ineffective assistance of appellate counsel based on his appellate counsel's failure to raise (1) his speedy trial argument; (2) his pretrial motion in limine regarding "other crimes" evidence for review; and (3) arguments contesting the consideration of improper aggravating factors at Munson's sentencing. The trial court denied the petition after an evidentiary hearing.
On appeal of the denial of his post-conviction petition, the state appellate defender first filed a brief that raised Munson's ineffective assistance of appellate counsel speedy trial argument. Munson then filed an amended brief pro se that raised all three ineffective assistance of appellate counsel arguments that he had previously raised in his post-conviction petition. The Illinois Appellate Court evaluated the merits of the three arguments and affirmed the denial of the post-conviction petition, concluding that Munson did not suffer prejudice because appellate counsel could not be considered ineffective for failing to raise non-meritorious arguments. Munson petitioned the Illinois Supreme Court for leave to appeal; his petition was denied on November 30, 2011.
D. Federal Habeas Petition
Construing his pro se federal petition for a writ of habeas corpus liberally, see Ward v. Jenkins, 613 F.3d 692, 697 (7th Cir. 2010), Munson asserts three grounds for relief: (1) ineffective assistance of appellate counsel (for failing to raise the three issues addressed during Munson's post-conviction proceedings); (2) ineffective assistance of trial counsel (for failing to investigate and interview potential witnesses and for undermining Munson's credibility at trial by advising him to assert his Fifth Amendment right in front of the jury); and (3) ...