United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
In 1997, petitioner Jarmain Merritt was convicted of aggravated kidnaping and vehicular hijacking and other counts and sentenced to an extended term of 35 years. Petitioner filed a pro se petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, asserting as his primary claim that his trial counsel was ineffective. This Court appointed counsel who filed an amended petition along with a supporting brief. The State filed an Answer arguing that the petition should be dismissed because of procedural default and other defects. Appointed counsel then filed a response to the Answer. For the reasons stated herein, the petition is denied.
The following facts are taken from Illinois Appellate Court's opinion in petitioner's direct appeal, People v. Merritt, No. 1-99-4236 (Ill.App.Ct. May 23, 2002) (Dkt. # 52-1), and are "presume[d] to be true." Whitman v. Bartow, 434 F.3d 968, 969 (7th Cir. 2006).
On October 8, 1997, [petitioner] was arrested and charged with the aggravated kidnaping, vehicular hijacking, aggravated battery and unlawful restraint of Ida Dorantes. A bench trial commenced on September 7, 1997, at which the following evidence was presented.
Ida Dorantes (Ms. Dorantes) testified on behalf of the State that on August 30, 1997, at approximately 1:00 p.m., she drove to St. Paul Bank on Roosevelt Road in Oak Park, Illinois, to make a deposit. She left her vehicle unlocked in the bank's parking lot. Ms. Dorantes then drove to Austin Boulevard, and stopped. At that point, a man sat up in the back seat of her vehicle, grabbed her by the neck, and told her to keep driving or he would kill her. Ms. Dorantes told the man that he could take her vehicle, if he would let her go, but the man refused. Ms. Dorantes looked at the man in the rearview mirror while he spoke to her. In court, Ms. Dorantes identified [petitioner] as the man inside the vehicle. Ms. Dorantes continued driving straight for three or four blocks, then stopped the vehicle and pressed on the horn. [Petitioner] told her to stop, and hit her repeatedly on the left side of the head. Ms. Dorantes opened the door and [petitioner] tried to get into the front seat. As Ms. Dorantes was exiting the vehicle, [petitioner] climbed into the front seat, at which point, Ms. Dorantes was face to face with [petitioner]. Ms. Dorantes' neighbor, Raul, then ran over to the vehicle and began to struggle with [petitioner]. Ms. Dorantes ran to her mother's beauty shop nearby and called the police. When the police arrived, Ms. Dorantes described the person who attacked her as a  black male, between the ages of 25 and 27, 5' 10", 150 pounds, with short curly hair and a thin moustache. On September 2, 1997, Ms. Dorantes went to the police station and described her attacked to an officer who made a composite sketch, which sketch was admitted into evidence. On September 8, 1997, Ms. Dorantes identified [petitioner] from a photographic lineup as her attacker, and on October 8, 1997, she identified [petitioner] in a live lineup.
Raul Martinez (Mr. Martinez) testified on behalf of the State that at about 1:00 p.m. on August 30, 1997, he was standing on Roosevelt Road when he saw a vehicle stop and a man in the back seat began hitting a woman in the head in the front seat. He identified the woman as his neighbor, Ida Dorantes. Mr. Martinez went over to the vehicle and told the man to leave Ms. Dorantes alone. Ms. Dorantes ran away, and Mr. Martinez struggled to pull the man out of the vehicle, but the man started the vehicle and drove away. Mr. Martinez had an opportunity to view the man's face during the struggle, and he identified [petitioner] in court as the man inside the vehicle. On September 3, 1997, Mr. Martinez identified [petitioner] from the composite sketch at the police station and from a photograph lineup. On October 8, 1997, he identified [petitioner] from a live lineup.
Detective Arthur Borchers (Detective Borchers), a Chicago police officer, testified on behalf of the State that he was assigned to investigate the attack upon Ms. Dorantes, and on September 2, 1997, he spoke with Ms. Dorantes and helped create a composite sketch of her attacker, based on her description. Detective Borchers stated that Ms. Dorantes' vehicle was recovered a few blocks from where she left it on the day of the attack. On September 8, 1997, Detective Borchers learned that [petitioner] had been arrested in connection with a similar incident in Forest Park, Illinois, and he obtained a photograph of [petitioner] for use in a photographic lineup. Detective Borchers' partner, Detective Weber, conducted photographic and live lineups with Ms. Dorantes and Mr. Martinez, and both identified [petitioner] as Ms. Dorantes' attacker. [Petitioner] was arrested and processed, at which time, Detective Borchers learned that [petitioner] was 24 years old, 145 pounds, and 5'11".
Paul Rossi (Mr. Rossi) testified on behalf of the Defense that he was an investigator with the Public Defender's Office, and that he was present when Assistant Public Defender, Julie Harmon (Ms. Harmon), interviewed Ms. Dorantes. During the interview, Ms. Dorantes indicated that she was not able to see her attacker in the rearview mirror, and that she was unable to give a description of her attacker. Mr. Rossi also indicated that he himself interviewed Mr. Martinez, during which interview, Mr. Martinez indicated that he was very uncertain about his identification of [petitioner] in the lineup, and that the mustache as drawn in the composite sketch was too thin.
[Petitioner] testified on his own behalf at trial that on August 30, 1997, between 1:00 p.m. and 5:00 p.m., he was at his family's apartment at East 67th Place, taking care of his children. [Petitioner] stated that his mother and his brother were also present at the same time. [Petitioner] indicated that the first time he ever saw Ms. Dorantes was in court.
Dorothy Burnett (Ms. Burnett), [petitioner's] mother also testified on behalf of the Defense. Ms. Burnett stated that on August 30, 1997, she was at her apartment with [petitioner], planning a birthday party, and [petitioner] did not leave the apartment until 4:00 p.m. Ms. Burnett admitted that she did not tell anyone that [petitioner] had been with her at the time of the attack until two years after [petitioner's] arrest.
At trial, defense counsel attempted to admit the testimony of Ms. Harmon regarding her interviews with Ms. Dorantes. The prosecutor objected to this evidence on the basis that a proper foundation had not been laid and the testimony was cumulative of the testimony offered by Mr. Rossi. The parties stipulated that the testimony of Ms. Harmon would corroborate Mr. Rossi's testimony. The parties also stipulated to the testimony of Howard Burnett,  which testimony would corroborate Ms. Burnett's testimony that [petitioner] was convicted of armed violence in 1993 and sentenced to six years imprisonment, convicted of possession of a stolen motor vehicle in 1997 and sentenced to four years imprisonment, and convicted of possession of a controlled substance in 1998 and sentenced to three years imprisonment, which sentence he was serving at the time of trial.
Following the submission of this and other evidence, the trial court found [petitioner] guilty of aggravated kidnaping and vehicular hijacking. At the sentencing hearing, the State presented evidence in aggravation that [petitioner] was previously convicted: (1) of aggravated vehicular hijacking in 1994 and sentenced to four years imprisonment, (2) of armed violence in 1993 and sentenced to six years imprisonment, (3) of possession of a controlled substance in 1998 and sentenced to three years imprisonment. The State sought the imposition of an extended term sentence based on the fact that [petitioner] had been convicted of the Class X felony, armed violence, within the last ten years. The trial court sentenced [petitioner] to an extended term 35 year sentence, which sentence was imposed consecutive to the three year sentence for possession of a controlled substance.
(Dkt. # 52-1 at pp. 2-6.)
Petitioner raised five claims in his direct appeal to the Illinois Appellate Court:
(a) trial counsel was ineffective for: (1) failing to lay the foundation for and provide the impeachment testimony of petitioner's former attorney, Julie Harmon, who interviewed the eyewitnesses; (2) stipulating that the testimony of Harmon would simply corroborate the testimony of the defense investigator who also attended the interviews; (3) stipulating to the testimony of an alibi witness, petitioner's brother, and specifying only that the witness would corroborate the testimony of petitioner's mother that petitioner was home the day of the kidnaping; and (4) failing to object to the detective's testimony that the eyewitnesses had no doubt when they identified petitioner in the lineup;
(b) the State did not prove petitioner guilty beyond a reasonable doubt;
(c) the Act that increased aggravated kidnaping from a Class 1 to a Class X felony violated Illinois's single-subject rule;
(d) petitioner's extended-term sentence and the fact that the sentence was imposed consecutively to the sentence for possession of a controlled substance were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the fact of his prior conviction was not proven to a jury beyond a reasonable doubt; and
(e) petitioner was penalized for maintaining his innocence and going to trial, as evidenced by the disparity between his thirty-five year sentence and the seven-year sentence he was offered during plea proceedings.
(Answer at 2-3.)
In a 12-page order, the Illinois Appellate Court affirmed the conviction. (Dkt. # 52-1.) The Court rejected the ineffective assistance of trial counsel claim holding, among other things, that the decision to stipulate to Harmon's and Burnett's testimony was appropriate and that any failure to object to Detective Borchers' statement about the two eyewitnesses at the lineup was an "isolated omission" that did not affect the outcome of the trial. ( Id. at 7-8.) As for the insufficiency of the evidence claim, the appellate court found the testimony of the two eyewitnesses was sufficient to support the conviction:
The record indicates that both Ms. Dorantes and Mr. Martinez had adequate opportunity to view the offender, accurately described the [petitioner's] physical characteristics, and positively identified [petitioner] in lineups shortly after the attack. Although Mr. Rossi testified that Mr. Martinez and Ms. Dorantes expressed doubts about the accuracy of their identifications, it was for the trier of fact to assess witness credibility and resolve any conflicts in testimony.
( Id. at 8-9.)
Petitioner filed a petition for leave to appeal ("PLA") in the Illinois Supreme ...