United States District Court, N.D. Illinois, Eastern Division
UNITED STATES OF AMERICA ex rel. REVAY JONES, Petitioner,
ALLAN MARTIN, Warden, Shawnee Correctional Center, Respondent.
MEMORANDUM OPINION AND ORDER
ROBERT W. GETTLEMAN, District Judge.
Petitioner Revay Jones filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his appellate counsel was ineffective in two ways. On June 7, 2012, this court issued an order denying petitioner's first claim on the merits, and directing respondent to answer petitioner's second claim on the merits. Having reviewed the supplemental briefing,  the court now denies the habeas petition and declines to issue a certificate of appealability.
Following a jury trial, petitioner was convicted of home invasion and armed robbery, but acquitted on charges of felony murder and aggravated unlawful restraint. Petitioner was sentenced to thirty years' imprisonment for home invasion and ten years' imprisonment for armed robbery, to be served consecutively.
Represented by an Assistant Appellate Defender, petitioner appealed his conviction and sentence, raising no claim relevant to the instant petition. Order, People v. Jones, No. 1-03-1546 (Ill.App.Ct. Sept. 30, 2004). The Illinois Appellate Court affirmed. Petitioner filed a counseled petition for leave to appeal ("PLA"), which the Illinois Supreme Court denied. Order, People v. Jones, No. 99489 (Ill. Jan. 26, 2005). The PLA raised one claim (whether the trial court improperly sentenced petitioner to consecutive terms of imprisonment), which is not relevant to the instant petition. See id.
Petitioner then filed a pro se postconviction petition pursuant to 725 ILCS 5/122-1 et seq., and a supplemental pro se petition. See Order, People v. Jones, No. 1-07-2673, at 12 (Ill.App.Ct. Nov. 19, 2010). He raised a variety of arguments, including the two ineffective assistance claims he raises in the instant petition. The first of these claims is that petitioner's appellate counsel was ineffective for failing to raise a Confrontation Clause challenge to the trial court's admission of testimony from a Schaumburg police officer (Sergeant Vince Liberio), who testified to out-of-court statements made by two witnesses, Loren Scott Young (a suspect who cooperated with the police investigation that led to petitioner's arrest) and Sylvia Jones (petitioner's sister), who were both deceased at the time of the trial. The second claim is that his appellate counsel was ineffective because he failed to challenge the trial court's denial of petitioner's motion to suppress evidence found during a warrantless search of his bedroom, which allegedly violated his Fourth Amendment rights. In an August 2007 written order, the trial court rejected the claims on the merits and dismissed the petition. See id. at 13.
On appeal from that dismissal, petitioner was again represented by the office of the State Appellate Defender. Petitioner, however, filed a "Motion to File Opening Brief on Appeal, " explaining that he wished to proceed pro se because the Assistant Appellate Defender assigned to represent him had "allowed his case to lay dorm[ant] for more than one year and a half, thus leaving [petitioner] no alternative...." The proposed brief accompanying petitioner's motion contended that the trial court erred in dismissing his postconviction petition on both of his ineffective assistance of appellate counsel grounds. The Illinois Appellate Court denied petitioner's motion without any discussion regarding the merits of petitioner's claims. Order, People v. Jones, No. 1-07-2673 (Ill.App.Ct. July 15, 2009).
Several weeks later, petitioner's appointed counsel filed a brief, which claimed that petitioner's direct appeal counsel had been ineffective for failing to raise the Confrontation Clause argument, but did not contend that direct appeal counsel was ineffective for failing to raise the Fourth Amendment claim. Id . The Illinois Appellate Court rejected the Confrontation Clause claim, agreeing with the trial court that because none of the statements at issue constituted inadmissible hearsay, petitioner's trial counsel was not ineffective for failing to raise that nonmeritorious claim on direct appeal. Id. at 18-21. Petitioner filed a pro se PLA, which raised the Confrontation Clause claim, and also argued that the Appellate Court had denied him the right to proceed pro se on appeal, which caused him to waive his Fourth Amendment claim. The Illinois Supreme Court denied petitioner's PLA. Order Denying PLA, People v. Jones, No. 111577 (Ill. Jan. 26, 2011).
On August 30, 2011, petitioner filed the instant pro se petition for a writ of habeas corpus, raising two claims:
(1) his appellate counsel was ineffective for failing to argue on direct appeal that the trial court violated petitioner's Confrontation Clause rights by allowing Sergeant Liberio to testify about statements that the two deceased witnesses made to him; and
(2) his appellate counsel was ineffective for failing to argue on direct appeal that the trial court erred in denying petitioner's motion to suppress evidence found in his bedroom.
On June 7, 2012, this court denied the petition for a writ of habeas corpus with respect to petitioner's claim that his counsel on direct appeal was ineffective for failing to argue that petitioner's Confrontation Clause rights were violated during the trial. Respondent contended that petitioner's second claim was procedurally defaulted and did not address the merits of the second claim. After finding that the second claim had not been procedurally defaulted, the court ordered supplemental briefing on petitioner's second claim.
I. Standard of ...