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Howard v. Harrington

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

December 12, 2014

MALCOLM HOWARD,
v.
RICK HARRINGTON

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge.

This matter is before the court on Petitioner Malcolm Howard's (Howard) pro se petition for writ of habeas corpus (Petition) brought pursuant to 28 U.S.C. § 2254. For the reasons stated below, the Petition is denied. Petitioner's motions to expand the record [21] and to exceed the page limit [22] are granted.

BACKGROUND

After a jury trial in Illinois state court, Howard was convicted on two counts of aggravated kidnapping with a firearm, one count of aggravated kidnapping for ransom, and one count of unlawful possession of a weapon by a felon. Howard was found to have held two individuals hostage at gunpoint and demanded a ransom. Howard was sentenced to concurrent 65-year terms of imprisonment. Howard appealed his conviction and on December 23, 2010, the Illinois Appellate Court affirmed his conviction in part and remanded the case for re-sentencing. Before re-sentencing, Howard filed a petition for relief from judgment arguing that there were certain irregularities in the preservation of evidence. The petition for relief from judgments was dismissed and on December 21, 2012, that dismissal was affirmed by the Illinois Appellate Court. The record does not reflect that Howard filed a petition for leave to appeal (PLA) on the petition for relief from judgment.

On remand, Howard was re-sentenced to concurrent 60-year terms of imprisonment. The record does not reflect that Howard filed an appeal or filed a PLA with the Illinois Supreme Court. Howard filed a post-conviction petition, which was dismissed. On February 1, 2013, that dismissal was affirmed by the Illinois Appellate Court. Howard filed a PLA for his post-conviction petition and on May 29, 2013, the PLA was denied. On April 18, 2014, Howard filed the instant Petition. Respondent has answered the Petition.

LEGAL STANDARD

An individual in custody pursuant to state court judgment may seek a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which provides the following:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The decision made by a state court is deemed to be contrary to clearly established federal law "if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.'" Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009)(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). The decision by a state court is deemed to involve an unreasonable application of clearly established federal law "if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.'" Emerson, 575 F.3d at 684 (quoting Bell, 535 U.S. at 694).

DISCUSSION

This court has liberally construed Howard's pro se filings. See Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir. 2004)(stating that "[a]s [the plaintiff] was without counsel in the district court, his habeas petition [wa]s entitled to a liberal construction"); Greer v. Board of Educ. of City of Chicago, Ill., 267 F.3d 723, 727 (7th Cir. 2001)(indicating that a court should "liberally construe the pleadings of individuals who proceed pro se "). Howard asserts in the Petition: (1) that the police acted in bad faith and failed to preserve evidence (Claim 1), (2) that the prosecutor "distorted the burden of proof" during closing arguments (Claim 2), and (3) that Howard received ineffective assistance of counsel on direct appeal due to the failure to raise Claims 1 and 2 on appeal (Claim 3).

I. Procedurally Defaulted Claims

Respondent argues that Claims 1 and 2 are procedurally defaulted and that there is no ...


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