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United States ex rel. Dingus v. Butler

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

November 2, 2016

UNITED STATES OF AMERICA ex rel. ANTHONY DINGUS (# R-44941), Petitioner,
KIMBERLY BUTLER, Warden, [1] Respondent.



         Anthony Dingus ("Dingus") has filed a 28 U.S.C. § 2254 ("Section 2254") Amended Petition for Writ of Habeas Corpus ("Petition")[2] 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.


         Section 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 briefly here.

         Dingus 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.

         Soto 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 in sight.

         Joseph 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.

         Dingus 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.

         After 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.

         In 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.

         Procedural History

         On 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 trial.

         In 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.

         Procedural Framework

         Before 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 ...

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