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Rembert v. Calloway

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

February 27, 2017

CHARLES REMBERT, (#B79837), Petitioner,
v.
VICTOR CALLOWAY, Acting Warden Danville Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          AMY J. ST. EVE United States District Judge.

         Before the Court is pro se Petitioner Charles Rembert's petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the Court denies Petitioner's habeas petition and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

         BACKGROUND

         When considering habeas petitions, federal courts must presume the factual findings made by the last state court to decide the case on the merits are correct unless the habeas petitioner rebuts those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Miller v. Zatecky, 820 F.3d 275, 280 (7th Cir. 2016). Because Petitioner has not provided clear and convincing evidence to rebut this presumption, the following factual background is based on the Illinois Appellate Court's findings in People v. Rembert, No. 1-13-1220, 2015 WL 1441879 (Ill.App.Ct. Mar. 27, 2015), appeal denied, 39 N.E.3d 1009 (Ill. 2015), and cert. denied sub nom. Rembert v. Illinois, 136 S.Ct. 831 (2016).

         I. Factual Background

         Petitioner was charged with burglary in connection with an August 17, 2011 incident that occurred at J.B. Metals, a metal scrapping and recycling company located at 2910 West Carroll Avenue in Chicago, Illinois. At Petitioner's jury trial, Gene Eydelman, a security manager at J.B. Metals, testified that the company has a 24-hour surveillance system with 12 cameras that stamp the date and time of the video recordings. When Eydelman arrived at work on the morning of August 17, 2011, several employees told him that someone had used a sledgehammer to create a hole in the building and had stolen some copper pipes. Thereafter, Eydelman called the police and then viewed the security footage. Eydelman testified that while viewing the surveillance video, he observed two men enter the building and walk back and forth through a hole in the wall. He also testified that the two men were carrying bags. Further, Eydelman stated that he saw video of a Dodge Intrepid with a broken rear window parked outside the building and identified Petitioner as one of the men on the video who had been inside the building. He also testified that about 300 to 400 pounds of copper pipe, worth approximately $1, 000, had been removed from J.B. Metals.

         Jacob Eydelman, the owner of J.B. Metals, testified at Petitioner's trial stating that when he arrived at work on August 17, 2011, he noticed a hole in the side of the building. He also viewed the security footage and identified Petitioner as one of the men shown in the video using a sledgehammer to break a hole into the side of the building. Ricky Davis, a J.B. Metals' employee, also testified at Petitioner's trial stating that when he viewed the security footage from August 17, 2011, he recognized Petitioner as someone who had visited the company a few days before the burglary. Davis further testified that when he had seen Petitioner, Petitioner was driving a two-tone green and white Dodge Intrepid with a broken rear window, which was the same vehicle shown in the security video. Moreover, Davis testified that on the afternoon of August 25, 2011, Petitioner drove into the lot of J.B. Metals in the two-tone Dodge Intrepid with a newly repaired rear windshield, at which time Davis recognized Petitioner as the man he had seen on the security footage. Once recognized, Petitioner fled the parking lot on foot and Davis chased him onto the street where he saw two police officers, Chicago Police Officers Carrilo and Challis. Officers Carrilo and Challis eventually detained Petitioner a few blocks from J.B. Metals.

         Chicago Police Detective Rose testified at trial that he arrested Petitioner and transported him to J.B. Metals for identification. While there, Detective Rose observed Petitioner's car parked in the lot. Police transported the car to Area Four headquarters where Detective Rose examined the vehicle and discovered small pieces of glass scattered in the trunk, and two large bags, one of which contained small pieces of copper pipe.

         Petitioner testified at his trial stating that he did not break into J.B. Metals on August 17, 2011, and that he had had never been to the business prior to August 25, 2011. Petitioner further stated that on August 25, 2011, he drove a two-toned Dodge Intrepid to J.B. Metals seeking to sell a broken copy machine. He explained that the car belonged to a friend and did not contain any bags in the trunk. Petitioner testified that he believed that Detective Rose planted the bags in the trunk once the car was transported to Area Four headquarters.

         II. Procedural Background

         Following his jury trial, Petitioner was convicted of burglary and sentenced to 18 years imprisonment, along with three years of mandatory supervised release. The Circuit Court considered Petitioner's prior convictions when sentencing him to 18 years. Also, the Circuit Court assessed certain fines and fees, including a $5 court system fee. In his appeal from that judgment, Petitioner argued that the Circuit Court abused its discretion in sentencing him to 18 years and incorrectly assessed a $5 court system fee. On March 27, 2015, the Illinois Appellate Court vacated the fee, but affirmed the Circuit Court judgment in all other respects. The Supreme Court of Illinois denied Petitioner's leave to appeal on September 30, 2015.

         In February 2016, Petitioner filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., in the Circuit Court of Cook County. On March 17, 2016, the Circuit Court denied the post-conviction petition. Petitioner did not appeal the Circuit Court's denial of his post-conviction petition. In his reply brief supporting his habeas petition, Petitioner explains that he did not appeal this denial because he did not think he would get relief. (R. 21, Reply Brief, at 3.)

         III. Habeas Petition

         On April 4, 2016, Petitioner filed the present pro se petition for a writ of habeas corpus. Construing Petitioner's pro se allegations liberally, see Carter v. Duncan, 819 F.3d 931, 941 (7th Cir. 2016), he asserts that: (1) his 18-year sentence violates the purpose and spirit of Illinois law and that the trial court abused its discretion in sentencing him to 18 years; (2) the State violated due process at sentencing by lying to the trial court about ...


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