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Emery v. Polley

United States District Court, C.D. Illinois

February 3, 2015

DONALD EMERY, K95751, Petitioner,
v.
CECIL POLLEY, Warden, Respondent.

ORDER AND OPINION

JAMES E. SHADID, Chief District Judge.

This matter is before this Court on Petitioner, Donald Emery's ("Emery"), Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254 [1], Respondent Cecil Polley's Answer [10], and Emery's Reply [12]. For the reasons set forth below, the Petition [1] is DENIED.

BACKGROUND

Emery is an inmate at the Graham Correctional Center in Hillsboro, Illinois under the custody of Warden Cecil Polley. At his February 4, 2008 bench trial in the McLean County Circuit Court, Emery was charged with one count of unlawful possession of a controlled substance with intent to deliver, in that he knowingly possessed with the intent to deliver more than fifteen grams, but less than 100 grams, of a substance containing cocaine. Emery was also charged with one count of unlawful possession of a controlled substance with the intent to deliver more than 5, 000 grams of cannabis.

At trial, Officer Jacob Zabukovec testified while on duty on the evening of July 27, 2007, he assisted Sergeant Kelley in returning a runaway juvenile ("DW") back to his home on Orlando Street in Normal, Illinois ("Orlando Street apartment"). During transport, DW informed the officers that his parents had drugs in their apartment. As DW was fourteen at the time, the officers believed he was either exaggerating or lying. When the officers arrived at the apartment, Jeanette Emery ("Jeanette") opened the door.

Jeanette invited the officers inside the front door where the officers told her DW told them there were drugs in the home. Jeanette allowed the officers to search the home. The officers recovered more than twenty-five pounds of marijuana, more than fifty grams of cocaine, and three hundred dollars from the master bedroom of the Orlando Street apartment. The money and most of the cocaine were found in a Nike shoebox containing a pair of black Nike shoes, men's size 11.5. Officers found a majority of the marijuana in a filing cabinet that also contained a notebook with Emery's name on it as well as several mail items addressed to Emery.

Jeanette waived her Fifth Amendment privilege and testified during trial. Jeanette testified she was facing her own pending charges related to Emery's charges and had not received any promises from the State in exchange for her testimony, but had hopes that her testimony would bring closure to her case, thereby enabling her to go home, return to her children, and get back to work. On cross-examination, Jeanette testified she did not expect any preferential treatment. During Emery's case in chief, his attorney showed Jeanette a letter she had written to Emery indicating she had received a plea offer in exchange for her testimony. During cross-examination by the State, Jeanette explained she had never accepted the plea offer mentioned in her letter and was not testifying pursuant to an agreement.

Jeanette also testified Emery brought the marijuana and cocaine into their bedroom, she witnessed Emery package the marijuana for distribution, and helped him on one occasion. Jeanette also witnessed Emery's brother, cousin, and friend package the marijuana. Jeanette further testified Emery instructed her as to how she should handle her pending charges. The State introduced letters Emery wrote to Jeannette; the letters instructed Jeanette how to handle the charges against her without implicating Emery.

Emery testified on his own behalf and denied all wrong-doing and implicated Jeanette. He testified he did not live at the Orlando Street apartment and had slept there a few times, but never on consecutive nights. Emery claimed he lived with various friends; however, in a sworn affidavit Emery executed shortly after his arrest, he gave the Orlando Street apartment as his residence. He testified he had no knowledge of the drugs found in the Orlando Street apartment and he witnessed Jeanette selling illegal drugs in the past.

Emery's brother, Kendall Emery ("Kendall") testified and largely corroborated Petitioner's testimony. Kendall testified that although Emery slept at the Orlando Street apartment, he did not live there. On cross-examination, Kendall admitted that shortly after his arrest on August 3, 2007, he told a law enforcement official he lived at Fairview Apartments, Orlando Avenue, Normal, Illinois.

On February 13, 2008, the judge found Emery guilty of possession of marijuana with intent to deliver and possession of a controlled substance with intent to deliver. On March 26, 2008, the court sentenced Emery to concurrent prison terms of fourteen years on both counts.

Direct Appeal

On July 2, 2009, Emery filed a direct appeal to the Illinois Appellate Court in which he contended: (1) the evidence was insufficient to support his convictions; (2) the trial court relied on evidence that had not been admitted into evidence; and (3) trial counsel was ineffective for failing to invoke Emery's marital privilege to challenge portions of Jeanette's testimony during trial. On November 25, 2009, the state appellate court confirmed Emery's conviction. People v. Emery, No X-XX-XXXX (2009). On March 24, 2010, the ...


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