United States District Court, C.D. Illinois, Rock Island Division
CLIFFORD W. SHULL, Petitioner,
NEDRA CHANDLER, Warden of the Dixon Correctional Center, Respondent.
SARA DARROW, District Judge.
Petitioner Clifford Shull, a prisoner in the custody of the Illinois Department of Corrections, brings this petition pro se seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. (West, Westlaw through PL 113-163, approved 8/8/14). For the reasons set forth below, the petition is denied and the Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2) (West, Westlaw through PL 113-163, approved 8/8/14).
Factual determinations by state courts are presumed to be correct in federal habeas corpus proceedings; Shull has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Vasquez v. Hillery, 474 U.S. 254, 258 (1986); Sumner v. Mata, 449 U.S. 539, 545-47 (1981). Shull does not challenge facts established in the prior state court proceedings. Accordingly, the Court sets forth the following relevant facts found in the opinions concerning Shull's direct appeal and his post-conviction proceedings. The following testimony was elicited at Shull's jury trial:
[On November 28, 2001, Shull was involved in an accident while driving a truck that resulted in the death of two individuals. He was later charged with reckless homicide for driving his truck in a reckless manner while under the influence of alcohol.] The responding patrol sergeant, Keith Charvat, testified that when he arrived at the accident scene, [Shull] was standing on the driver's side of the truck and told Charvat that he was the driver. Sarah Underwood, a teller at a drive-through window of a credit union located near the accident scene, testified that she saw a man driving the truck and a woman sitting in the passenger seat. Debbie Wass testified that she saw [Shull's] truck in her front yard after hearing the collision, and observed [Shull] standing on the driver's side of the truck and a female walking around the back of the truck from the passenger side. A responding firefighter testified that he observed [Shull] standing on the driver's side of the truck. According to this witness, [Shull] said that he was driving and was suffering from chest pains caused by his chest hitting the steering wheel. Another responding paramedic testified that [Shull] also told him that [Shull] was the driver. Finally, the emergency room physician testified that [Shull] told him that he was the driver of the vehicle. The doctor also testified that he noted that [Shull] had tenderness in the upper left quadrant of his abdominal area.
Resp't Ex. H at 2, ECF No. 11-9.
During the accident, Leslee Hildebrandt also was an occupant in [Shull's] pickup. There was conflicting testimony concerning whether [Shull] or Hildebrandt was driving the truck during the accident.
Charvat stated that when he arrived, Hildebrandt was standing by the rear of the truck. Charvat observed that "[j]ust in front of the right rear tire on the passenger side of the truck was a ***half pint bottle which was half full of * * * whiskey."
Hildebrandt testified for [Shull]. She stated that it was she, and not [Shull], who was driving when the accident occurred. On cross-examination, she admitted that after the accident she told a police officer that [Shull] was the driver and she was the passenger.
By way of impeachment, Hildebrandt admitted that in 1996 she was convicted of prostitution in Iowa. The record does not contain a copy of Hildebrandt's conviction.
During the jury instruction conference, the judge asked the parties, "[I]n regard to a conviction for the offense of prostitution over in the State of Iowa, the parties stipulate, is that correct, that this is an offense which is punishable for up to two years in jail; is that correct?" [Shull]'s attorney replied, "That's correct, Your Honor. It is classed as an Aggravated Misdemeanor. Being licensed in Iowa[, ] I'm aware of the fact that *** an aggravated misdemeanor would carry a penalty range of up to two years * * *."
Resp't Ex. A at 4, 9; ECF No. 11-2.
During trial, the court admonished Shull regarding his right to testify as follows:
You have a choice to make. Those choices are you can either testify or you don't have to testify, the choice is entirely up to you. I have no preference one way or the other. But you do have a constitutional right to testify if you wish to do so. Similarly, you have a constitutional right not to testify. You have the ...