United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. HERNDON JUDGE.
Otis Stewart, was convicted of home invasion and aggravated
discharge of a firearm after a jury trial in Madison County,
Illinois, in 2001. He was sentenced to thirty-five years of
imprisonment for the charge of home invasion and a
consecutive twenty year term for the charge of aggravated
discharge of a firearm.
December 2013, petitioner filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. §2254 (Doc. 1), raising the
Petitioner was denied the right to a preliminary hearing in
violation of the Fourteenth Amendment.
Petitioner was denied an impartial jury at trial because one
juror knew two of the State's witnesses.
Petitioner's post-trial counsel was ineffective for
waiving petitioner's juror misconduct claim.
Petitioner's right to confrontation was violated when the
State elicited testimonial hearsay evidence in violation of
Crawford and the Sixth Amendment.
Petitioner's trial counsel was ineffective for failing
a. move to suppress officers' identifications of
b. move to suppress petitioner's statement to law
c. interview witnesses who saw petitioner at the nightclub;
d. interview the State's witnesses before trial;
e. seek a preliminary hearing; f. move to dismiss the
indictment for a due process violation; and g. move for a
mistrial based on the Crawford violation.
Petitioner's post-conviction appellate counsel was
ineffective and violated his Sixth Amendment right by
withholding information vital to petitioner's request for
a new trial.
Petitioner's sentence was unconstitutional because he is
Petitioner's post-conviction counsel was ineffective for
not raising post-conviction counsel's ineffectiveness on
appeal in violation of petitioner's Sixth Amendment
Petitioner's post-conviction counsel was ineffective for
failing to assist petitioner in litigating the claims of his
post-conviction petition in violation of petitioner's Due
Process rights under the Fourteenth Amendment.
response, respondent contends the petitioner's first
claim is unexhausted, not cognizable on habeas review, and
barred by the Supreme Court's holding in Teague v.
Lane. 489 U.S. 288 (1989). He argues that claims 2, 3,
5, 7, 8, and 9 are procedurally defaulted, and claim 4
does not warrant habeas relief. Petitioner filed an amended
petition with the Court in December 2014. He added a tenth
ground for appeal; that his sentence to consecutive terms of
thirty-five and twenty years were void because the statute
did not authorize a consecutive sentence. Respondent argues
that claim 10 is not cognizable on habeas review.
Facts of the Crime
following summary is taken from a Fifth District Appellate
Court direct appeal order. Doc. 13, Ex. D.
January 7, 2001, petitioner, a man named Robert Mike, and
another man named Patrick Thomas spent most of their evening
at a night club called Club CTW. Petitioner and Mike got into
a heated argument at the club. Mike and Thomas decided to
leave the club and Mike went home. Around 3 a.m., Thomas and
petitioner arrived at Mike's home. Mike assumed the
petitioner was there to apologize for their argument and
allowed Thomas and petitioner into his home. When petitioner
entered Mike's house he pulled a handgun on Mike and
convinced petitioner that he needed to look for money
upstairs. While upstairs, Mike called 9-1-1 and stalled for
time while the police were en route. He then heard a gunshot
downstairs. Thomas was shot in the leg, and around that time
four officers from the Alton police department arrived.
Officer Brent Bertschi was the first to find petitioner and a
companion leaving the scene. When he ordered them to halt,
they ran. Petitioner fired four rounds at Officer Bertschi as
he fled. Officer Shane Gibbs was standing near and ordered
petitioner to drop his gun. Petitioner slowed down and
started to point his gun at Officer Gibbs. Officer Gibbs
fired two rounds at petitioner. Petitioner was not hit, but
fell to the ground and tossed his gun. Petitioner was
arrested immediately and the gun he used to fire at the
officers was found. Petitioner's companion that fled with
him was able to get away.
was the only witness to his shooting and initially refused to
cooperate with the investigation. He stated that a man named
Rico Long, not petitioner, was the man who shot him.
Petitioner stood trial before a Madison County jury on
charges of home invasion, aggravated battery with a firearm,
and aggravated discharge of a firearm. Thomas did not testify
at petitioner's trial. The jury found him guilty of home
invasion and aggravated discharge of a firearm and found him
not guilty of aggravated battery. He was sentenced to
thirty-five years of imprisonment for home invasion and a
consecutive twenty year term for aggravated discharge of a
procedural history of petitioner's case is lengthy and
muddled. Petitioner filed a direct appeal to the Appellate
Court for the Fifth District of Illinois and the conviction
was affirmed. People v. Stewart, 342 Ill.App.3d 350,
276 Ill.Dec 982, 795 N.E.2d 335 (2003). In August 2003,
petitioner filed his first section 2-1401 petition for relief
from judgment. See, 735 ILCS 5/2-1401 (West 2002).
He claimed his conviction was void because he did not receive
a preliminary hearing after the State amended his indictment.
In September 2003, the circuit court dismissed the petition.
In December 2003, petitioner filed a supplement to the
petition where he claimed that the State knowingly relied
upon perjured testimony before the grand jury in order to
secure an indictment. In February 2004, the court dismissed
the supplement and reiterated its dismissal of the initial
2-1401 petition. Petitioner did not appeal these orders of
March 2004, petitioner filed a pro se petition for
post-conviction relief in the Circuit Court of Madison
County. See, 725 ILCS 5/122-1 to 122-8 (West 2004).
He raised the following claims:
was denied the right to an impartial jury because a juror
knew two witnesses;
was denied a speedy trial
did not receive a preliminary hearing on the ...