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McGregory v. Pfister

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

February 15, 2017

DANIEL MCGREGORY, R12186, Petitioner,
v.
RANDY PFISTER, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN W. DARRAH, United States District Court Judge

         Petitioner Daniel McGregory, proceeding pro se, filed a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, against Respondent Warden Randy Pfister. For the reasons stated below, McGregory's Petition [1] is denied. Additionally, a certificate of appealability shall not issue.

         BACKGROUND

         On June 20, 2006, a jury found Petitioner guilty of first-degree murder, and the trial court sentenced him to forty-five years of imprisonment. The relevant facts developed in state court are presumed to be correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1). The following facts were elicited at trial in Cook County, Illinois.

         Harris' girlfriend, Katherin Hillman, testified that on October 29, 2003, she and Harris were standing in a parking lot in Maywood, Illinois, when she saw Petitioner walking toward them. (State Ct. Rec. Exh. A at 1-2.) When Hillman brought this to Harris' attention, Harris turned and faced Petitioner. Petitioner then pulled out a gun and fired. Harris ran away, and Petitioner pursued him. Hillman drove after them and heard more shots. Harris ran into the street and fell down after Petitioner shot him again. Petitioner then ran away. (Id. at 2.)

         Detective Lawrence Connor testified that he responded to the report of a shooting and saw Petitioner running through an alley. He exited his car and pursued Petitioner on foot and arrested him. At the police station, after a lineup was conducted, Detective Connor spoke to Petitioner. Petitioner admitted he shot the victim, and Detective Connor called the State's Attorney's Office to interview him. Petitioner's interview was memorialized in writing and videotaped. (Id. at 3.) Assistant State's Attorney Steven Krueger testified that he transcribed Petitioner's statement and read it to Petitioner so that he could make corrections and initial each page. Petitioner stated that two weeks prior to the shooting, he won 100 dollars from Harris while “pitching coins.” Harris then punched Petitioner. Petitioner received stitches for his injuries.

         On the night of the shooting, Petitioner saw Harris speaking with another man and thought that Harris was talking about him. Petitioner left the area, retrieved his gun, and returned to where he saw Harris. When Harris noticed Petitioner, Petitioner drew his g un. Harris began to run away, and Petitioner shot at him. Petitioner chased Harris and continued shooting. Harris fell down, and Petitioner fired once more. Petitioner then ran away and threw the gun in some bushes. (Id. at 4.) Petitioner also made a videotaped statement. In the statement, Petitioner stated that although he had seen Harris with a gun in the past, Harris was unarmed the night of the shooting. He also stated that he thought he had to kill Harris before Harris killed him. (Id. at 5.)

         At trial, Petitioner testified that Harris did not have a gun the night of the shooting and did not threaten to kill him. Petitioner stated that when Harris did threaten to beat him up just before he pulled out his gun and fired. (Id. at 6.) The jury found Petitioner guilty of first-degree murder, and the trial court sentenced him to 45 years of imprisonment. (Id. at 7.) Petitioner appealed and the state appellate court affirmed his conviction. (Id. at 13.)

         On July 9, 2010, the state appellate court denied Petitioner's motion for rehearing. (Id. at 91.) Petitioner did not file a petition for leave to appeal (“PLA”) in the Illinois Supreme Court. Petitioner alleged that he did not learn of the appellate court's order denying his petition for rehearing until June of 2011. (Id. at 103.) On August 15, 2011, Petitioner filed a pro se motion for leave to file a late PLA. The Illinois Supreme Court denied his request on November 30, 2011. Petitioner did not file a petition for writ of certiorari in the United States Supreme Court.

         On August 8, 2012, Petitioner filed a pro se post-conviction petition with the state trial court. The trial court dismissed the petition as frivolous and without merit. The state appellate court affirmed the dismissal. (Exh. H.) Petitioner then filed a PLA that was denied by the Illinois Supreme Court on September 30, 2015. (Exh. M.) The United States Supreme Court denied Petitioner's petition for a writ of certiorari on March 21, 2016. (Exh. N.) Petitioner filed this petition for habeas corpus on April 11, 2016. (Dkt. 1.)

         LEGAL STANDARD

         Petitioner's pro se petition is construed liberally. Ward v. Jenkins, 613 F.3d 692, 700 (7th Cir. 2010). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this Court's authority to grant petitions for habeas corpus. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Historically, habeas corpus relief has been viewed as “an extraordinary remedy, ‘a bulwark against convictions that violate fundamental fairness.'” Brecht v. Abrahamson, 507 U.S. 619, 633 (1933) (quoting Engle v. Isaac, 456 U.S. 107, 126 (1982)) (other internal citations omitted). It provides that relief may not be granted to any claim adjudicated on the merits in a state court proceeding unless the claim “was contrary to, or involved an unreasonable application of Supreme Court precedent” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1); Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010). The federal court deferentially reviews the decision of the last state court. Griffin v. Pierce, 622 F.3d 831, 841 (7th Cir. 2010). State court factual findings are presumed to be correct unless the petitioner rebuts this presumption with “clear and convincing evidence.” Schriro, 550 U.S. at 474 (citing 28 U.S.C. § 2254(e)(1)).

         ANALYSIS

         The Government argues that the petition for writ of habeas corpus should be dismissed because it is barred by the one-year statute of ...


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