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United States ex rel. Partee v. Hardy

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

November 17, 2014

UNITED STATES OF AMERICA ex rel. ELLIS PARTEE, Petitioner,
v.
MARCUS HARDY, Warden, Stateville Correctional Center, Respondent.

MEMORANDUM OPINION AND ORDER

ROBERT W. GETTLEMAN, District Judge.

Petitioner Ellis Partee filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. After respondent Marcus Hardy filed a response brief, the court granted petitioner's motion for appointment of counsel, and petitioner filed a counseled reply brief. For the reasons discussed below, the habeas petition is denied, and the court declines to issue a certificate of appealability.

BACKGROUND

After a 2006 jury trial (at which he acted pro se), petitioner was convicted of burglary and, on December 7, 2006, was sentenced to seven years' imprisonment. See Rule 23 Order, People v. Partee, Nos. 1-07-0191, 1-07-1928, and 1-07-2701 (cons.) (Ill.App.Ct. Dec. 4, 2009). On May 18, 2007, petitioner filed a pro se petition for a writ of habeas corpus, which argued that his conviction violated the one-act one-crime doctrine and the prohibition against double jeopardy because the charge of which he was convicted had been dismissed as part of a plea agreement in an unrelated case. (Petitioner had previously raised this argument in a pro se motion to dismiss the indictment, which the state court had denied.) The habeas petition also contended that petitioner was denied effective assistance of counsel before and after his trial, denied the right to confront witnesses, and denied due process when the state indicted him based on false testimony from a "state actor." Finally, petitioner claimed that the conditions of his confinement violated the Eighth Amendment because, in relevant part, he was denied access to the law library. The trial court denied the habeas petition.

Next, on August 10, 2007, petitioner filed a pro se postconviction petition pursuant to 725 ILCS 5/122-1 et seq. That petition raised a number of claims, including in relevant part that petitioner was maliciously prosecuted and falsely imprisoned based on a charge that had previously been dismissed as a part of a plea agreement, that the prosecution had used perjured testimony, that he had "documents of newly discovered evidence" (though these documents were not attached to the petition), and that petitioner's appellate counsel had rendered ineffective assistance because no action had been taken on his appeal due to "budget constraints." The trial court summarily dismissed the postconviction petition, finding that all of petitioner's allegations were frivolous and patently meritless. Id. at 1.

Petitioner separately appealed his conviction, the denial of his state-court habeas petition, and the dismissal of his postconviction petition, arguing in part that the trial court had erred in refusing to offer him assistance in gaining library access, refusing to allow him to present testimony in support of his motion to dismiss the indictment, refusing to allow him representation at his sentencing, and ruling on his motion to reconsider his sentence without petitioner being present. Id . The Illinois Appellate Court consolidated those appeals on petitioner's motion, and affirmed all three judgments. Id. at 1, 44.[1] In so doing, the court observed that petitioner had not alleged that he was prejudiced by the trial court's refusal to issue an order granting him extra access to the law library, and that the record reflected that the trial court repeatedly advised petitioner that he would not receive special treatment in light of his decision to proceed pro se. The court further mentioned that it was undisputed that petitioner had access to the library, as evidenced by the numerous pro se motions he had filed. Id. at 28.

Petitioner claims that he filed a petition for leave to appeal, but the record reflects that he did not. Respondent states, and petitioner does not contest, that petitioner requested and received an extension of time to file a PLA. When the Illinois Supreme Court granted that extension, petitioner's case received an Illinois Supreme Court number. Id . As the dismissal order specifies, petitioner failed to file a PLA within that extended time frame. The Illinois Supreme Court then dismissed petitioner's case because "[p]etitioner ha[d] failed to file a petition for leave to appeal within the time allowed by order...." Dismissal Order, People v. Partee, No. 109692 (Ill. Mar. 24, 2010).

On December 16, 2010, [2] petitioner filed the instant pro se petition for a writ of habeas corpus, raising five claims:[3]

(1) his conviction violates double jeopardy because, before being charged with and convicted of the instant offense, petitioner had previously been charged with misdemeanor theft for the same act, and that charge had been dismissed as part of a plea agreement;
(2) petitioner was denied due process when the trial court refused to allow him representation at his sentencing and refused to allow him to be present during a hearing on his pro se motion to reconsider his sentence;
(3) petitioner was denied due process when he was deprived of the right to offer the testimony of the judge who accepted his plea on the misdemeanor theft charge and the public defender who represented him on that charge, which petitioner argues was crucial testimony because of the "clearly confusing [and] incorrect" record of those proceedings;
(4) petitioner was denied due process when, during his trial and post-trial proceedings, he was deprived of meaningful access to the law library, and he was denied a fair trial when the trial court permitted the prosecution to offer "other crimes" evidence; and
(5) petitioner's appellate counsel was ineffective for failing to argue that the trial court erred in allowing the state to introduce "other crimes" evidence and ...

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