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United States ex rel. Donner v. Akpore

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

April 28, 2015

KEVWE AKPORE, Warden, Hill Correctional Center, Respondent.


THOMAS M. DURKIN, District Judge.

Gregory Donner was convicted by a jury of burglary, and is serving a prison term of 17 years at the Hill Correctional Center in Galesburg, Illinois, where he is in the custody of Warden Kevwe Akpore. See R. 7. Donner, pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See id. The Warden answered the petition arguing that it should be denied. R. 13. For the following reasons, Donner's petition is denied, and the Court declines to issue a certificate of appealability.


Around midnight on January 10, 2010, Donner was arrested by Officer Andrew Riley on suspicion of burglarizing a car near the officer's home. See R. 14-1 at 1 (¶¶ 3-4). Officer Riley testified at Donner's trial that he was off duty and at home when he heard the sound of breaking glass outside coming from the alley. Id. (¶ 4). In response, Officer Riley looked out his kitchen window and saw a person reaching into his neighbor's car window. Id. Officer Riley went outside with his gun and badge and as he approached the car he instructed the person to get on the ground. Id. Instead of getting on the ground, the person fled. Id. Officer Riley gave chase and called 911 on his cell phone. Id. Officer Riley lost sight of the person for two or three seconds during the pursuit, but ultimately made an arrest. Id. Officer Riley testified that Donner was the person he arrested and the person he saw burglarizing the car. Id.

After Donner's arrest, Officer Joseph Montesdeoca and his partner arrived to take Donner into custody. Id. (¶ 5). Officer Montesdeoca testified that after he gave Donner Miranda warnings, Donner said, "I know the system, hurry up and take me to jail." Id. (¶ 7). The state attempted to offer this statement during Officer Montesdeoca's direct testimony. See R. 14-5 at 292 (H-90). Defense counsel objected that the statement was hearsay. Id. The trial court found this statement to be "admissible hearsay" over defense counsel's objection. Id. (H-90:7). The State did not ask the Court to give the jury an instruction limiting the evidentiary purpose of this statement.

The State argued in closing that this statement constituted an admission of guilt, while the Defense argued that no physical evidence tied Donner to the burglarized car and that Officer Riley lost sight of the person he was pursuing. R. 14-1 at 1 (¶ 8). A jury convicted Donner on October 26, 2010, and he was sentenced on November 22, 2010. See id. at 38-39. Due to prior convictions, Donner's sentencing range was 6 to 30 years. See id. at 28. He was sentenced to 17 years' imprisonment. See R. 7.[1] Donner filed a timely notice of appeal with the Illinois Appellate Court immediately after his sentencing on November 22, 2010. See R. 14-1 at 37.

Donner made the following arguments on appeal: (1) he "was denied a fair trial [and his right not to testify] when the trial court erroneously admitted his statement, " R. 14-1 at 5; (2) "trial counsel was ineffective for failing to file a motion... in limine seeking to bar Donner's statement, " id. at 6; and (3) his sentence was excessive, id. at 7. In support of the first argument, Donner's counsel cited two cases in which the Illinois Appellate Court found statements similar to Donner's to be hearsay, and argued that Donner's statement about "the system" did not "tend to prove or disprove whether he burglarized the motor vehicle in question." Id. at 21. In support of his ineffective assistance of counsel argument, Donner's counsel cited Illinois case law and argued that trial counsel "was deficient for failing to file a pre-trial motion in limine as it was patently meritorious and had a reasonable likelihood of success." Id. at 25. Donner's counsel also cited Illinois case law to argue that Donner's sentence was "excessive given the specific nature of the instan[t] offense." R. 14-1 at 28.

The Appellate Court affirmed Donner's conviction on March 8, 2013. R. 14-1 at 1 ( People v. Donner, 2013 WL 937443, ¶ 2 (Ill.App.Ct. 1st Dist. Mar. 8, 2013)). The Appellate Court held that Donner's statement, "taken in connection with the facts that he was taken into custody after being identified by Riley as the person who emerged from the victim's car and fled, leads to the inference of guilt, " such that the statement "was properly admitted at trial." R. 14-1 at 2 (2013 WL 937443, ¶ 13). The Appellate Court also held that Donner's ineffective assistance of counsel claim "fail[ed] because the statement was properly admitted at trial, and, consequently, defendant cannot show he was prejudiced by trial counsel's failure to include this issue in a motion in limine. " R. 14-1 at 2-3 (2013 WL 937443, ¶ 17). Finally, with respect to Donner's claim that his 17-year sentence was excessive, the Appellate Court held that the sentence was not "an abuse of discretion when defendant threw a brick into the window of a car and had 11 prior felony convictions." R. 14-1 at 3 (2013 WL 937443, ¶ 21). Donner filed a petition for rehearing before the Appellate Court on March 28, 2013, which was denied on April 8, 2013. See R. 14-2 at 23.

Donner filed a petition for leave to appeal with the Illinois Supreme Court, raising the same three claims he raised before the Appellate Court. R. 14-2 at 21-40. The Illinois Supreme Court denied his petition on September 25, 2013. R. 14-2 at 41.[2]

Donner filed this habeas petition on February 24, 2014, raising substantially the same three issues he raised on his direct appeal. See R. 7.[3] Donner makes a number of arguments that the trial court abused its discretion in admitting his statement, and contends that this abuse of discretion constitutes a constitutional due process violation. See R. 7 at 8-9. Donner also argues that his trial counsel was ineffective for failing to file a "patently meritorious" motion in limine to exclude his statement. Id. at 10. Finally, Donner argues that his sentence was "cruel and unusual" and "excessive in light of the charge, " and the trial court failed to consider "the constitutional prohibition against sentences that serve no pen[o]logical interest." Id. at 12.


I. Claim One

The Warden's primary argument against Donner's claim that the trial court erroneously admitted his statement is that the claim "is non-cognizable on habeas review because it does not present a federal constitutional basis in this Court." R. 13 at 7. Although it is true "a state trial court's evidentiary rulings [that]... turn on state law, ... are matters that are usually beyond the scope of federal habeas review, " if a "petition[er] draws enough of a connection between his rights to due process and the trial court's (alleged) evidentiary... errors, " this can "render his claim cognizable on habeas review." Perruquet v. Briley, 390 F.3d 505, 511-12 (7th Cir. 2004).

Here, Donner argues that his "statement contained no specific reference to the charge, and provides no information from which guilt can be inferred." R. 7 at 9. He contends that his statement was so ambiguous that its admission led to "an unreasonable determination of the facts in light of the evidence, " id. at 9, and violated his due process right to a fair trial. See id. at 8, 10. Although Donner does not cite federal authority to support his argument, it is clear that he intends to claim that his constitutional due process rights were violated when the ...

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