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United States ex rel. Harris v. Lemke

United States District Court, N.D. Illinois, Eastern Division

August 6, 2014

UNITED STATES OF AMERICA ex rel. DERRICK HARRIS, a/k/a Derrick Harrison, Petitioner,
v.
MICHAEL LEMKE, Warden, Stateville Correctional Center, Respondent.

MEMORANDUM OPINION AND ORDER

ROBERT W. GETTLEMAN, District Judge.

Petitioner Derrick Harris has filed a pro se petition for habeas corpus relief pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. For the reasons discussed below, the habeas petition is denied, and the court declines to issue a certificate of appealability.

BACKGROUND

In 1998, following simultaneous trials in the Circuit Court of Cook County, Illinois, petitioner and three co-defendants were convicted of home invasion, armed robbery, aggravated criminal sexual assault, and aggravated kidnapping. The trial court sentenced each defendant to consecutive thirty-year prison terms for each offense, for a total of 120 years.

Petitioner appealed directly to the Illinois Appellate Court, contending that: (1) the trial court erred in denying petitioner's motion to suppress his confession; (2) the trial court erred in admitting DNA evidence that provided a partial match; and (3) the trial court abused its discretion in imposing the maximum allowable sentence. On June 13, 2000, the Illinois Appellate Court affirmed petitioner's conviction and sentence, and the court denied petitioner's petition for rehearing on July 19, 2000. Petitioner, along with two of his co-defendants, filed a pro se petition for leave to appeal ("PLA") to the Illinois Supreme Court. In his PLA, petitioner argued that the appellate court erred in denying his petition for rehearing because his sentence is unconstitutional under Apprendi v. New Jersey , 530 U.S. 466 (2000). The Illinois Supreme Court denied petitioner's PLA on October 26, 2000. Petitioner did not file a petition for writ of certiorari to the Supreme Court of the United States.

On December 14, 2000, petitioner filed a pro se post-conviction petition pursuant to 725 ILCS 5/122-1 et seq. in the Circuit Court of Cook County. In this petition, petitioner again raised the Apprendi claim. The trial court dismissed his petition. Petitioner appealed to the Illinois Appellate Court, which affirmed the trial court's dismissal on August 3, 2007. Petitioner did not file a PLA.

In December 2005, petitioner filed a second pro se post-conviction petition in the Circuit Court of Cook County, arguing that trial counsel was ineffective for denying him his right to testify and failing to inform him that he had a fundamental right to testify. The trial court dismissed the petition. Petitioner appealed to the Illinois Appellate Court, which reversed and remanded for further proceedings because the trial court erred in dismissing petitioner's petition sua sponte before the State filed a motion to dismiss. On remand, the trial court dismissed the claim again. In February 2012, the appellate court affirmed the dismissal because petitioner had not made a substantial showing of the constitutional violation of his right to effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 687 (1984). The appellate court further stated that to establish that he was denied his right to testify, petitioner must meet the requirements of Illinois law, which requires a defendant to reaffirm his intention to testify during the trial, and petitioner did not do so. People v. Thompkins , 641 N.E.2d 371, 384-85 (Ill. 1994). Petitioner filed a PLA raising the ineffective assistance of counsel claim. The Illinois Supreme Court denied the PLA on May 30, 2012.

On January 24, 2013, petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising three claims:

A. The trial court erred in refusing to suppress petitioner's confession despite independent objective evidence supporting petitioner's contention that the confession was coerced.
B. The trial court erred in admitting evidence of partial DNA matches to the petitioner without first holding a hearing pursuant to Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), to determine the scientific reliability of such analysis.
C. Petitioner was denied his right to effective assistance of counsel because his attorney denied him the right to testify and failed to inform him of his fundamental right to testify.

LEGAL STANDARDS

I. Procedural Default

A petitioner must exhaust all state court remedies for federal habeas review to be appropriate. 28 U.S.C. § 2254(b)(1)(A); see O'Sullivan v. Boerckel , 526 U.S. 838, 845 (1999) ("State prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process."); Stevens v. McBride , 489 F.3d 883, 894 (7th Cir. 2007) (failing to take a claim through one complete round of the appellate process results in procedural default). The purpose of requiring exhaustion is to give state courts a "full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts." O'Sullivan , 526 U.S. at 845; see Harris v. McAdory , 334 F.3d 665, 668 (7th Cir. 2003) ("A petitioner must give the state court a meaningful opportunity to consider the substance of the claims later presented in federal court."). In Illinois, this means that a petitioner must have appealed directly to the Illinois Appellate Court and presented ...


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