United States District Court, N.D. Illinois, Eastern Division
UNITED STATES OF AMERICA ex rel. ANTHONY DINGUS (# R-44941), Petitioner,
KIMBERLY BUTLER, Warden,  Respondent.
MEMORANDUM OPINION AND ORDER
I. SHADUR, SENIOR UNITED STATES DISTRICT JUDGE
Dingus ("Dingus") has filed a 28 U.S.C. § 2254
("Section 2254") Amended Petition for Writ of
Habeas Corpus ("Petition") to challenge his conviction
for murder and the resultant 50 year sentence. In accordance
with Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts ("Section 2254
Rules"), this Court promptly reviewed the Petition and
its attachments. For the reasons stated in this memorandum
opinion and order, Dingus' Petition is denied on all
counts and this action is dismissed.
2254(d) makes the state court's findings of fact
presumptively correct in any federal habeas proceeding. In
this instance the factual background stated in the Illinois
Appellate Court's opinion on direct review (People v.
Dingus, 2015 IL App. (1st) 132087-U, ¶ 18, appeal
denied 39 N.E.3d 1006 (Ill. 2015)) reflects the record fully
and fairly. That factual background will be summarized
was charged with first degree murder, aggravated unlawful use
of a weapon and reckless discharge of a firearm in connection
with the May 25, 2002 shooting death of Raymond Delgado
("Delgado"). At the May 2005 jury trial
Delgado's cousin Jason Soto ("Soto") testified
that he went with Delgado to meet friends for a party. Soto
said that he and Delgado went outside at about 2:30 a.m.,
heard an occupant in a car yell "Ambrose" and saw a
bottle thrown from the car. Soto explained
"Ambrose" was the name of a local gang.
then said he saw an individual walk toward Delgado, and when
the two were 5 to 10 feet apart Soto saw a flash of light and
heard "two pops." Another friend called 9-1-1 as
Soto waited with Delgado. Officers arrived on the scene to
find Delgado lying on the ground next to Soto, with no weapon
Lopez ("Lopez") testified that a short time earlier
he was drinking with friends, including Dingus, in the
backyard of the Francisco Perez residence and that
"something" caused them to leave the backyard.
Lopez saw Perez holding a pink-handled chrome gun, with which
he fired two warning shots as Delgado approached the group.
Lopez testified that Perez then handed the gun to Dingus, who
pointed the gun at Delgado and fired two shots, causing
Delgado to fall to the ground. Dingus then handed the gun to
Lopez, who testified that he then hid the gun in a pile of
logs behind a garage and heard Dingus saying "I got him
Maldonado." Lopez explained that "Maldonado"
is a member of the Ambrose gang. Pablo Medina
("Medina") corroborated most of Lopez's
testimony, adding that he heard Dingus say "Ambrose
killer" as a statement of intent, although he said he
never saw Dingus shoot Delgado. Both Lopez and Medina were
impeached with testimony they provided to the grand jury, but
not as to Dingus' statements quoted in this paragraph --
as to those, their testimony before the grand jury was the
same as that before the trial jury.
then testified that he fired the gun and then gave it to
Lopez, denying that he said "Ambrose killer" before
firing the shots. Dingus was questioned on cross-examination
as to the tear drop tattoos on his face, being asked several
times if they signified that he had "done
something" for his gang, which he denied. There was one
objection to the questioning, based on its repetitiveness.
Dingus argued that he fired the shots in self-defense, but he
conceded that Delgado had not fired at him and that he had
not warned Delgado that he was armed.
the close of evidence and closing arguments, the jury found
Dingus guilty of first degree murder and the trial court
sentenced him to 50 years' imprisonment. After the
Illinois Appellate Court upheld the conviction and sentence
on direct appeal, Dingus filed a petition for leave to
appeal, which was denied. Then over the next four years
Dingus filed four versions of state post-conviction petitions
with the help of multiple attorneys. His final petition
alleged both (1) ineffective assistance of trial counsel in
several respects, including the failure to object to the
questioning regarding Dingus' tear drop tattoos, and (2)
ineffective assistance of appellate counsel due to that
counsel's purported failure to argue, on direct appeal,
trial counsel's constitutionally deficient performance.
response the State filed a motion to dismiss the final
amended petition, which the trial court granted. Dingus then
appealed the decision, and the Illinois Appellate Court
upheld the dismissal. Thereafter the Illinois Supreme Court
again declined to hear the case.
February 1, 2016 Dingus filed a pro se petition for a writ of
habeas corpus. After then respondent Butler filed an answer
to that motion, this Court appointed able and experienced
counsel John Beal (“Beal”) to act on Dingus'
behalf and ordered a reply. On August 30, 2016 Beal filed the
Section 2254 Petition on behalf of Dingus (choosing to file a
superseding Petition with leave of this Court, rather than
simply submitting a reply to respondent Butler's answer).
That Petition set out three main contentions, first that the
trial court erroneously barred Dingus from introducing
evidence of prior acts of violence directed at him by Ambrose
gang members, next that the trial court erroneously barred
defense witness Tiffany Rynkiewicz ("Rynkiewicz")
from testifying and lastly that Dingus' trial lawyer
rendered ineffective assistance of counsel when he failed to
object to cross examination of Dingus by the state's
attorney about the tear drop tattoos. Attorney Beal also
added as an overarching claim that the trial judge was
assertedly biased throughout the proceedings in regard to
jury tampering, sentencing and general attitude during the
response to the Petition, counsel for the respondent Warden
asserted that all claims were procedurally defaulted except
for the claim that Dingus' trial counsel had been
ineffective in failing to object during the tear drop tattoos
questioning. On that score the answer went on to argue that
although the tear drop issue was adequately preserved, that
claim has failed on its merits.
any federal court can address the merits of a Section 2254
petition, the petitioner must have both exhausted state court
remedies and avoided any procedural defaults (Bocian v.
Godinez,101 F.3d 465, 468 (7th Cir. 1996)). Claims are
exhausted "by either (a) providing the highest court in
the state a fair opportunity to consider the constitutional
issue, or (b) having no further available means for pursuing
review of one's conviction in state court"
(Wallace v. Duckworth,778 F.2d 1215, 1219 (7th Cir.
1985) (per curiam)). Because it is clear from the ...