United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge.
Presently before us is a pro se motion pursuant to 28 U.S.C. § 2254 to vacate, set aside or correct the sentence rendered against Jesse Lopez ("Petitioner") on May 30, 2008. For the reasons set forth below, we deny Petitioner's request for habeas relief.
BACKGROUND AND PROCEDURAL HISTORY
We begin with a review of the factual background of Petitioner's conviction and the procedural history of his appeal.
I. Lopez's Conviction
After a bench trial, Petitioner was convicted of armed violence, aggravated battery with a firearm, and aggravated discharge of a firearm. ( See Dkt. 13, State Ct. R., Ex. J, Postconviction Rule 23 Order.) In discovery, the State of Illinois disclosed a recording device used by informant Blake Pannell, who was a cooperating witness for the State during Petitioner's trial. (Dkt. 12, Ans. at 2.) The State also revealed that, in exchange for his cooperation, Pannell received financial assistance, vacation of his outstanding felony convictions, and dismissal of pending criminal charges. ( Id. at 2-3.)
During Petitioner's trial, Pannell testified that both he and Petitioner were members of the Latin King Disciples gang. ( Id. at 3, 5.) During his testimony, the State played recordings of conversations between Pannell and fellow Latin King members, including a recording of a conversation that discussed the shooting of Marcus Randle. Pannell testified that the voices recorded by the overhear device included his own, Petitioner's, and that of a fellow gang member, Chavez Saulsberry. ( Id. ) Pannell identified the voice that admitted to shooting Randle as Petitioner's. ( Id. ) Pannell also testified that he agreed to assist the Federal Bureau of Investigation, the Kane County State's Attorney, the Kane County Sherriff's Office, and the Aurora Police in their ongoing investigations into crimes by the Latin Kings. ( Id. at 3-4.) In exchange for his cooperation, Pannell explained that he was given financial assistance to move out of state, received a vacated sentence on his burglary conviction, and received transactional immunity for an unrelated homicide. ( Id. at 4, 6.) Also at trial, Randle and Aurora Police Department Patrolman David Sheldon, who responded to the shooting of Randle, testified for the State. Patrolman Sheldon testified that the description Randle gave of his shooter matched Petitioner's likeness. (State Ct. R., Ex. M, Trial Tr. at 190-92.)
Petitioner was found guilty on May 15, 2007. People v. Lopez, No. 2-08-0653. On October 24, 2007, the State's Attorney disclosed transcripts to Petitioner's counsel of Pannell's testimony to a federal grand jury. (State Ct. R., Ex. M, Trial Tr. at 408-11.) This testimony was independent of Petitioner's prosecution and was part of law enforcement's ongoing investigation into the Latin Kings. ( Id. ) In this testimony, Pannell revealed his involvement in additional violent crimes that were not disclosed during Petitioner's bench trial and additional financial assistance that he received from the federal government for his cooperation. ( Id. ) In response, Petitioner, on November 20, 2007, filed a revised posttrial motion for a new trial and argued that the State had violated Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1197 (1963) by failing to provide Petitioner with Pannell's grand jury testimony earlier, which could have been beneficial to Petitioner's defense at trial. (State Ct. R., Ex. M, Trial Tr. at 407.) On May 9, 2008, the trial court denied Petitioner's request for a new trial, finding that the testimony was immaterial and would not have changed the outcome of Petitioner's trial. ( Id. at 412-16.) On May 30, 2008, Petitioner was sentenced to twenty-two years in prison. ( Id. at 460.)
II. Direct Appeal
On July 24, 2009, Petitioner filed an appeal to the Illinois Appellate Court. (State Ct. R., Ex. A, Pet'r Direct Appeal Br.) In this appeal, Petitioner raised one claim: that the State violated Brady by failing to disclose Pannell's grand jury testimony at trial. ( Id. at 14.) On May 3, 2010, the Illinois Appellate Court affirmed the trial court's decision that the grand jury testimony was not material. ( See State Ct. R., Ex. D, PLA at ii.) Petitioner then raised the same Brady claim in his petition to leave for appeal ("PLA"), which the Illinois Supreme Court denied on September 29, 2010. ( Id.; State Ct. R., Ex. E, Order Denying PLA.)
III. State Postconviction Proceedings
Petitioner filed a postconviction petition on May 20, 2011. (State Ct. R., Ex. F, Postconviction Pet.) In this petition, Petitioner raised several additional claims. On postconviction appeal, however, Petitioner raised only one claim: that his direct appeal counsel was ineffective for failing to argue that the trial court erred in failing to orally impose his term of Mandatory Supervised Release ("MSR") at the sentencing hearing. (State Ct. R., Ex. G, Pet'r Postconviction Br.; State Ct. R., Ex. I, Pet'r Postconviction Reply Br.) The Illinois Appellate Court later dismissed Petitioner's claim. (State Ct. R., Ex. J, Postconviction Rule 23 Order.) Petitioner raised the same issue in his postconviction PLA, which the Illinois State Supreme Court denied on May 29, 2013. (State Ct. R., Ex. K, Postconviction PLA; State Ct. R., Ex. L, Order Denying Postconviction PLA.)
IV. Federal Habeas Petition
On September 6, 2013, Petitioner filed a federal habeas petition asserting the following claims:
Claim 1. The State violated Brady by failing to disclose Pannell's grand jury testimony.
Claim 2. Petitioner's trial counsel was ineffective for failing to challenge Pannell's identification of Petitioner's voice on the overhear recording, and for failing to adequately argue the Brady claim in the posttrial motion.
Claim 3. The State deprived him of his due process rights by mentioning an unrelated collateral crime during his initial trial.
Claim 4. The trial court violated Petitioner's constitutional rights when it allowed the prosecutors to reference the unrelated crime, denied the Brady claim, failed to sentence petitioner to MSR, and failed to inform Petitioner that the court had given Pannell immunity.
Claim 5. Petitioner's direct appeal counsel was ineffective for failing to claim that the trial counsel was ineffective, for failing to claim the State erred in referencing the unrelated murder claim, and for ...