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Stewart v. Hodge

United States District Court, S.D. Illinois

October 13, 2016

OTIS STEWART, Petitioner,
v.
MARK HODGE, Respondent.

          MEMORANDUM AND ORDER

          DAVID R. HERNDON JUDGE.

         Petitioner, 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.

         In December 2013, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 (Doc. 1), raising the following grounds:

         1. Petitioner was denied the right to a preliminary hearing in violation of the Fourteenth Amendment.

         2. Petitioner was denied an impartial jury at trial because one juror knew two of the State's witnesses.

         3. Petitioner's post-trial counsel was ineffective for waiving petitioner's juror misconduct claim.

         4. Petitioner's right to confrontation was violated when the State elicited testimonial hearsay evidence in violation of Crawford[1] and the Sixth Amendment.

         5. Petitioner's trial counsel was ineffective for failing to:

a. move to suppress officers' identifications of petitioner;
b. move to suppress petitioner's statement to law enforcement;
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.

         6. 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.

         7. Petitioner's sentence was unconstitutional because he is actually innocent.

         8. Petitioner's post-conviction counsel was ineffective for not raising post-conviction counsel's ineffectiveness on appeal in violation of petitioner's Sixth Amendment rights.

         9. 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.

         In 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[2] 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.

         Relevant Facts

         1. Facts of the Crime

         The following summary is taken from a Fifth District Appellate Court direct appeal order. Doc. 13, Ex. D.

         On 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 demanded money.

         Mike 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.

         Thomas 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 firearm.

         2. Procedural History

         The 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 dismissal.

         In 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:

         1. He was denied the right to an impartial jury because a juror knew two witnesses;

         2. He was denied a speedy trial

         3. He did not receive a preliminary hearing on the ...


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