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United States ex rel. Gilzene v. Pfister

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

September 16, 2014

UNITED STATES OF AMERICA ex rel. BRYAN GILZENE, Petitioner,
v.
RANDY PFISTER, Warden, Respondent

Bryan Gilzene, United States of America ex rel., Petitioner, Pro se, Pontiac, IL.

For Randy Pfister, Respondent: Drew Meyer, LEAD ATTORNEY, Illinois Attorney General's Office (100 West Randolph), Chicago, IL.

Page 855

MEMORANDUM OPINION AND ORDER

Milton I. Shadur, Senior United States District Judge.

Bryan Gilzene (" Gilzene" ), who is serving a 50-year prison sentence following his state court conviction on charges of first degree murder, aggravated kidnapping and conspiracy to deliver a controlled substance,[1] has been unsuccessful in challenging his conviction on both direct appeal and in state post-conviction proceedings. Now Gilzene has invoked 28 U.S.C. § 2254 (" Section 2254" ) by filing a pro se Petition for a Writ of Habeas Corpus (" Petition" ). Following its receipt of the Illinois Attorney General's 22-page Answer accompanied by 36 exhibits (about 10 inches thick in the aggregate), this Court followed its consistent practice of treating a Section 2254 petitioner as entitled to file a reply as a matter of right (see Rule 5(e) of the Rules Governing Section 2254 Cases in the United States District Courts (" Section 2254 Rules" )). Gilzene has now filed such a reply, so that the Petition is ripe for decision.

It is certainly not any exaggeration to characterize as " overwhelming" the substantial evidence that conclusively established Gilzene's guilt of shooting murder victim Arturo Cedillo (" Cedillo" ) in the head. Gilzene failed in his attempted attacks on his conviction at every level of his state court proceedings, including his unsuccessful post-conviction petition. Before this Court Gilzene raises four claims:

1. At trial the State knowingly used perjured testimony of witnesses Mario Gonzalez (" Gonzalez" ) and Sean Wilkins (" Wilkins" ).
2. One juror was assertedly biased against Gilzene because he is black.
3. One of the prosecutor's asserted errors was an improper comment on Gilzene post-arrest silence.
4. Finally, the trial court was charged with having erroneously excluded, as hearsay, testimony by Ewa Kosinski (" Kosinski," a friend of Gilzene's) about a telephone call with another of his friends, Brad McAtee (" McAtee" ).

Those last three grounds will be dealt with first and in short compass, because all of them were procedurally defaulted. That is so because on Gilzene's appeal from the dismissal of his post-conviction petition, all three of those grounds were rejected on the independent and adequate state law ground of forfeiture, for each could have been but was not raised on direct appeal -- see, e.g., Sturgeon v. Chandler, 552 F.3d 604, 611 (7th Cir. 2009).

In that respect, where as here the Illinois Appellate Court (1) granted the motion by Gilzene's appointed counsel to withdraw from representation [2] and (2) summarily affirmed the denial of Gilzene's post-conviction petition without specifying the basis for that decision, this Court is

Page 856

entitled under Section 2254 to review the record to determine whether that basis was substantive or procedural (Woods v. Schwartz, 589 F.3d 368, 375-76 (7th Cir. 2009). It has done so, and it holds that the Illinois Attorney General's Answer at 19-20 accurately characterizes the dismissal as procedural in nature. And Gilzene has utterly failed to show cause for those procedural ...


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