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Kaspar v. Dorethy

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

August 26, 2016

WILLIAM KASPAR #R-46530, Petitioner
v.
STEPHANIE DORETHY, Respondent.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY United States District Judge

         An Illinois state court jury convicted William Kaspar of solicitation of murder for hire, and a judge sentenced him to a 25 year prison term. The judgment was affirmed on direct appeal, Kaspar's post-conviction petition was denied and that ruling was affirmed on appeal, and his motion to file a second post-conviction petition was also denied, with the decision affirmed on appeal.

         Kaspar has filed a pro se petition for habeas corpus under 28 U.S.C. § 2254 in which he asserts two claims. Respondent Stephanie Dorethy, the warden of the prison where Kaspar is incarcerated, has moved to dismiss the first claim on the ground that it is a non-cognizable state law claim and has moved to dismiss the second claim on the ground that it is time-barred.

         1. First claim

         Kaspar's first claim is that his due process rights were violated because the Illinois Appellate Court made fundamentally inconsistent procedural rulings in his direct and post-conviction appeals. Kaspar challenged on direct appeal the trial court's denial of his motion to suppress evidence on the ground that the application for the warrant authorizing the placement of an eavesdropping device on another jail detainee did not establish probable cause and/or contained material falsehoods and omissions. The other detainee was the individual whom Kaspar had allegedly solicited to murder a third person. Kaspar argued that among other things, the warrant application did not disclose that the other detainee had initially told law enforcement that, in initially talking to Kaspar, he (the other detainee) had made up a story that he had a brother-in-law who could assist Kaspar. On direct appeal, the appellate court addressed the omission by concluding that it was immaterial. See Resp.'s Mot. to Dismiss, Ex. A (direct appeal decision) at 11. The appellate court also made an alternative ruling on this point:

Moreover, in support of his argument, defendant relies upon a report made by the DuPage County Sheriff's Office, which indicates that during an interview, Wassmund [the other detainee] told detectives that he fabricated the existence of a brother-in-law. This report is attached to defendant's reply brief but is not contained in the record on appeal. As such, we are not permitted to consider it. People v. Brown, 249 Ill.App.3d 986, 994 (1993) ("It is an elementary principle that an appellate court cannot consider matters outside the record.")

Id.

         Kaspar then filed a post-conviction petition in which he again challenged the trial court's ruling on his motion to suppress and again challenged, in particular, the warrant application's omission of the fact that the other inmate had lied to the police about having a brother-in-law. The appellate court rejected this argument, saying the following:

We . . . conclude . . . that defendant forfeited his contention regarding the initial application's omission of the fact that Wassmund's brother-in-law was fictitious. A postconviction petition is not an appeal from the judgment of conviction; rather, it is a collateral attack on the trial court proceedings. People v. Petrenko, 237 Ill.2d 490, 499 (2010). Therefore, issues that could have been raised on appeal, but were not, are forfeited. Petrenko, 237 Ill.2d at 499. However, if a postconviction claim depends upon matters outside the record, the forfeiture rule does not apply because matters outside the record may not be raised on direct appeal. [People v.] Youngblood, 389 Ill.App.3d at 214.
In his opening brief, defendant asserts that the initial and supplemental applications were not part of the record on appeal but concedes in his reply brief that he "[g]enerally[] *** agrees with the State's observations about the record on direct appeal. As the State observes, both applications were included in the record on appeal. However, defendant urges that Detective Garlisch's report, which revealed the fictitious nature of Wassmund's brother-in-law, was not part of the record on direct appeal
. . . .
. . .
With respect to defendant's argument about the initial application's omission of the fictitious nature of Wassmund's brother-in-law, although the State does not point this out, our review of the trial testimony reveals that it contained testimony about Davis's role in playing the fictitious brother-in-law. Wassmund testified that he had told defendant about his real brother-in-law "from the south side of Chicago, he is a gang banger, he is a black guy." After Wassmund spoke to detectives, they decided to use a fictitious brother-in-law in their undercover investigation. [Detective] Garlisch explained:
"We decided to have Michael Wassmund place a phone call to a fictitious brother-in-law who was going to be the hit man in the case. In order to do that, we obtained a supplemental eavesdrop order allowing him to record the conversation between [defendant] and our ...

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