United States District Court, N.D. Illinois, Eastern Division
UNITED STATES OF AMERICA EX REL. YOHN ZAPADA (R17740), Petitioner,
MICHAEL LEMKE, WARDEN, STATEVILLE CORRECTIONAL CENTER Respondent.
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER, District Judge.
Pro se Petitioner Yohn Zapada ("Zapada" or "Petitioner") is serving a 48-year sentence for first-degree murder. In this action, he seeks relief pursuant to 28 U.S.C. § 2254 on two bases. He claims that (1) the mandatory 20-year enhancement of his sentence for the use of a firearm violated his constitutional rights to due process and equal protection; and (2) his post-conviction counsel was ineffective in that she failed to timely file a notice of appeal from the trial court's dismissal of his post-conviction petition. Respondent Michael Lemke, the Warden of Stateville Correctional Center ("SCC") where Petitioner is incarcerated, has moved to dismiss Zapada's petition as untimely and meritless . For the reasons explained below, Zapada's petition  is denied and the court declines to issue a certificate of appealability.
FACTUAL AND PROCEDURAL HISTORY
On habeas review, federal courts presume as correct the factual findings made by the last state court to adjudicate the case on the merits. See 28 U.S.C. § 2254(e)(1); Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012). This presumption can only be rebutted by clear and convincing evidence. Id. The following facts are drawn from the Illinois Appellate Court's Order affirming Zapada's conviction on direct appeal. People v. Zapada, 347 Ill.App.3d 956, 808 N.E.2d 1064 (1st Dist. 2004).
On the evening of June 17, 2001, Omar Brown sat in the driver's seat of a car parked in the alley beside his apartment in Cicero, Illinois. Also in the car, seated in back, were Brown's cousin, Conan Little, and Brown's friend, Raphael Vega. While the three were waiting for Little's father to join them in the car, Petitioner entered the alley on foot. As Petitioner walked past Brown's car, Brown allegedly cursed at Petitioner, and the two became entangled in a verbal dispute. The altercation quickly escalated and became physical: Petitioner banged on the hood of Brown's car and struggled with Brown near the car door. Moments later, two of Petitioner's friends, Danny (last name unidentified) and Alex Negron ("Negron"), entered the alley in a van and joined in the fight, which now included Little and Vega, as well. Although the circumstances of the ensuing melee are disputed, Petitioner acknowledged that he fired two gun shots at Brown before abandoning the gun and fleeing the scene. Zapada did not know whether his bullets found their intended target, but Little testified that Zapada's two shots struck Brown in the stomach and armpit. After Zapada fled, Negron grabbed the same gun and shot Brown two or three times.
Brown later died as the result of multiple gunshot wounds. Dr. Adrienne Segovia, a deputy medical examiner with the Cook County medical examiner's office, testified that, "in a multiple-gunshot-wound case, the Cook County medical examiner's office does not separate the shots to determine which was fatal, but assigns the wounds equal weight." Id. at 960, 808 N.E.2d at 1069. Therefore, both Zapada and Negron were considered to have fatally wounded Brown.
Following a bench trial before Judge Colleen McSweeny-Moore of the Circuit Court of Cook County, Petitioner was convicted of first-degree murder. Id. at 961, 808 N.E.2d at 1069. Petitioner maintained that the shooting was in self-defense, but the trial court determined that defendant was the aggressor, defeating any self-defense claim. Id. at 963, 808 N.E.2d at 1071. At sentencing, the trial judge expressed concern about gang violence, stating, "the fact that gang members wield guns and shoot them willy-nilly for no apparent purpose is just so senseless." Id. at 965, 808 N.E.2d 1072. The trial court sentenced Petitioner to 30 years for the murder, with an additional 20 years for the discharge of a firearm during the commission of the offense, pursuant to 730 ILCS 5/5-8-1(a)(1)(d)(ii). Id. at 967, 808 N.E.2d at 1074 (quoting statute).
II. Direct Appeal
Petitioner filed a timely appeal, raising three arguments: (1) that the trial court erred in considering the matter of gang violence in imposing sentence; (2) that the state did not sufficiently disprove self-defense; and (3) that the 20-year mandatory firearm enhancement in his sentence was unconstitutional. Id. at 965-67, 808 N.E.2d at 1072-73. The appellate court rejected both of Zapada's arguments regarding errors at trial, affirming his conviction. Zapada prevailed, however, on the sentencing-phase issue, and the case was remanded for re-sentencing. Id. at 966, 808 N.E.2d at 1073. While awaiting re-sentencing, Petitioner filed a petition for leave to appeal ("PLA") the trial issues to the Illinois Supreme Court, which was denied on December 1, 2005. (Order Denying PLA, People v. Zapada , No. 98474 (Ill.Dec. 1, 2005), Ex. B. to Resp't's Mot. to Dismiss , hereinafter "Mot. to Dismiss.")
On August 15, 2006, Petitioner and Negron were re-sentenced to twenty-eighty years each, plus the consecutive twenty-year firearm enhancement. (Mot. to Withdraw as Counsel on Appeal, People v. Zapada , No. 1-06-2493, Ex. C to Mot. to Dismiss, at 1.) Due to a typographical error in the trial-court transcript, it appeared that Negron had been given a lesser sentence (a total of 40 years, rather than 48), and Petitioner again appealed. ( Id. at 1.) When it became clear that both Petitioner and Negron had, in fact, received the same sentence, the state appellate defender moved to withdraw Petitioner's opening brief and, pursuant to Anders v. California, 386 U.S. 738 (1967), to withdraw as counsel. ( Id. at 1-2.) Petitioner did not object to the motion, and the Appellate Court granted it on October 23, 2008. (Summ. Order, People v. Zapada , No. 1-06-2493 (1st Dist. 2008), hereinafter " Ill.App. Summ. Order, " Ex. D to Mot. to Dismiss, at 2.)
III. Post-Conviction Proceedings
Petitioner initially filed a state post-conviction petition on March 1, 2006, prior to his re-sentencing. (Docket Sheet, People v. Zapada , No. 01 CR 16022-2 (Cir. Ct. Cook Cnty.), Ex. I to Mot. to Dismiss, at 7.) This petition was dismissed by the Circuit Court of Cook County, without prejudice, on May 9, 2006. ( Id. )
Petitioner filed another state post-conviction petition on January 5, 2007, this time pro se. ( Id. at 9.) This petition was later amended by counsel. ( See First Amendment to Previously Filed Post Conviction Petition, Ex. D. to Habeas Pet. .) In this petition, Zapada raised a claim of ineffective assistance of trial counsel based on, among other things, the allegedly inadequate impeachment of a key prosecution witness. ( Id. at 5-7.) The State moved to dismiss the petition, and although the record does not contain a copy of the order, the docket reflects that the motion was granted on December 7, 2011. (Docket Sheet at 16.) Petitioner missed the 30-day deadline for filing an appeal, though ...