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Cole v. Butler

United States District Court, S.D. Illinois

July 22, 2014

RICKY COLE, Prisoner # N12383, Petitioner,
v.
KIM BUTLER, Warden, [1] Respondent.

MEMORANDUM AND ORDER

DAVID R. HERNDON, Chief District Judge.

I. Introduction

This matter comes before the Court on Magistrate Judge Philip M. Frazier's October 31, 2013 Report and Recommendation ("the Report") (Doc. 26). The Report recommends that the Court deny Cole's petition for a writ of habeas corpus and dismiss the case. Cole filed timely objections (Doc. 30). Based on the following, the Court ADOPTS the Report in its entirety.

On February 24, 2012, Cole, pro se, filed a petition for writ of habeas corpus pursuant to Section 2254 (Doc. 1). Cole argues seven specific points stemming from his allegedly illegal police treatment and resulting ineffective assistance of counsel both at the trial court level and at the appellate level. The Government thereafter responded arguing that each of petitioner's claims is procedurally defaulted, non-cognizable, barred by statute, or foreclosed by non-retroactivity rules and other longstanding habeas doctrines (Doc. 17).

On October 31, 2013, pursuant to 28 U.S.C. § 636(b)(1)(B), Magistrate Judge Frazier submitted the Report recommending denial of Cole's petition. The Report was sent to the parties with a notice informing them of their right to appeal by way of filing "objections" by November 18, 2013. On November 6, 2013, petitioner requested and received an extension to file objections. On December 4, 2013, Cole filed objections to the Report.

Cole raises the following five objections (Doc. 30):

1. Police control over petitioner in his home.
2. Petitioner Cole was arrested without probable cause.
3. Direct appeals counsel Ms. Aliza R. Kaliski[s] [] unreasonable conduct prejudiced petitioner, where petitioner lost the opportunity to present evidence, challenging incriminating evidence used by the trial court to convict.
4. Petitioner's motion to quash arrest and suppress evidence.
5. Petitioner's motion to suppress his statement.

Since timely objections have been filed, this Court must undertake de novo review of the Report. 28 U.S.C. § 636(b)(1)(B). The Court may "accept, reject or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id.

II. Facts

In 2006, Cole was convicted of first-degree murder and sentenced to life in prison. Before trial, petitioner filed two motions: 1) to quash arrest and suppress the resulting evidence and 2) to suppress statements allegedly made as a result of coercion during interrogation at the police station (Doc. 18-1 at 1-2). The Court held an evidentiary hearing on the first motion on July 21, 2005 and an evidentiary hearing on the second motion on October 3, 2005. The trial court denied the motions. At trial, defense counsel renewed the motion to quash arrest and suppress evidence. The trial court again denied ...


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