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Brown v. Pfister

United States District Court, N.D. Illinois

May 18, 2017

Randy Brown, N12465, Petitioner,
v.
Randy Pfister, [1] Respondent.

          MEMORANDUM OPINION AND ORDER

          Ronald A. Guzmán United States District Judge

         Randy Brown brings the instant petition for relief under 28 U.S.C. § 2254. For the reasons stated below, Brown's second amended petition [34] is denied. The Court declines to issue a certificate of appealability. All pending motions are denied as moot. Civil case terminated.

         Procedural Background

         Following an October 2002 jury trial, Brown was convicted of two counts of aggravated criminal sexual assault, aggravated kidnaping, and aggravated robbery. At trial, the jury was presented with evidence that on April 8, 1999, the victim, K.T., took a Metra train downtown to meet her boyfriend. (Resp.'s Ex. C, Post-Conviction Rule 23 Order, People v. Brown, 2013 IL App. (1st) 102527-U, ¶ 3.) When K.T. arrived downtown, she asked Petitioner for directions, who pointed her the wrong way. (Id. ¶ 4.) Petitioner subsequently came up behind K.T., told her he had a gun, led her to a nearby park, and robbed and sexually assaulted her. (Id.) K.T. reported the attack to the police. (Id.) In May 1999, after Petitioner was arrested on an unrelated matter, K.T. identified Petitioner in a lineup and a forensic expert determined within a reasonable degree of scientific certainty that DNA taken from K.T. after the attack matched Petitioner's. (Id. ¶ 5.) Petitioner was sentenced to 75 years imprisonment.

         On direct appeal, Petitioner argued that the trial court erred in admitting irrelevant evidence that he had been arrested on an unrelated matter and that he was prejudiced when the forensic expert inadvertently used the name of a different victim during the trial. (Id. ¶ 7.) Petitioner also argued that the trial court erred in sentencing him on both counts of aggravated criminal sexual assault. The Illinois Appellate Court denied the first two grounds for relief but vacated one of his criminal sexual assault convictions and remanded for resentencing, finding the aggravated criminal sexual assault was a lesser-included offense of aggravated kidnaping and that Petitioner had been prejudiced because “the offense of aggravated kidnaping without proof that [Petitioner] caused severe bodily injury [would] not trigger consecutive sentences.” (Id. ¶ 8.) On remand, the trial court reimposed the 75-year sentence, and Petitioner again appealed, arguing only that the mittimus be corrected to reflect additional sentencing credit for time he spent in presentence custody. (Id. ¶ 13.) The Illinois Appellate Court corrected the mittimus to reflect an additional credit of two days in presentence custody and affirmed his sentence as modified. (Id.)

         Petitioner filed a pro se petition for leave to appeal (“PLA”) with the Illinois Supreme Court, contesting his lawyer's performance, specifically asserting that his appellate lawyer did not challenge Petitioner's sentence in his direct appeal on resentencing. (Resp.'s Ex. K, Pet. Leave Appeal, People v. Brown, No. 105747 (Ill.Dec. 13, 2007). The Illinois Supreme Court denied the PLA on January 30, 2008. (Resp's Ex. L, Order, People v. Brown, No. 105747 (Ill. Mar. 6, 2008).

         On May 22, 2008, Petitioner filed a pro se petition, later adopted by counsel, pursuant to Illinois' Post-Conviction Act, 725 Ill. Comp. Stat., 5/122-1 et seq., contending that: (1) the trial court erred in denying his motion to quash his arrest and suppress evidence; (2) the trial court erred in admitting evidence of other crimes; (3) ineffective assistance of trial and appellate counsel, and (4) the sentence imposed on remand was incorrect. (Resp.'s Ex. C, Post-Conviction Rule 23 Order, People v. Brown, 2013 IL App. (1st) 102527-U, ¶ 14.) In August 2010, the trial court dismissed the petition finding that: (1) Petitioner failed to attach the required affidavits and evidence in support; (2) Petitioner waived the suppression and related ineffective assistance of trial counsel issues for having failed to raise them on direct appeal; (3) the challenge to the admissibility of the other crimes evidence was barred by res judicata; and (4) Petitioner failed to demonstrate ineffective assistance of appellate counsel.

         Petitioner appealed through counsel, arguing only that his 15-year sentence for aggravated robbery should run concurrent to his other sentences. (Resp.'s Ex. O, Pet'r's Br., People v. Brown, No. 1-10-2527, Apr. 2012.) Petitioner's motion to file a supplemental pro se brief was denied. (Resp.'s Ex. T, Order, People v. Brown, No. 1-10-2527 (Ill.App.Ct. June 7, 2012)). On appeal, the Illinois Appellate Court modified Petitioner's sentence to an aggregate of 60 years (concurrent terms of 30 years of aggravated kidnaping and 15 years for aggravated robbery to be served consecutive to the 30-year term for aggravated criminal sexual assault), and affirmed dismissal of the post-conviction petition. (Resp.'s Ex. C, Post-Conviction Rule 23 Order, People v. Brown, 2013 IL App. (1st) 102527-U, ¶ 3.) The Illinois Supreme Court denied Petitioner's PLA on September 25, 2013. (Resp.'s Ex. V, Order Denying PLA, People v. Brown, No. 116346 (Ill. 2013).)

         On November 15, 2013, Petitioner sought leave to file a pro se successive petition containing all twelve of the claims currently raised in his § 2254 petition. (Resp.'s Ex. E, People v. Brown, 2016 Il App (1st) 1141798-U (Apr. 21, 2016), ¶ 6.) The circuit court denied Petitioner's request, finding that the only new issue presented by Petitioner was his claim of ineffective assistance of post-conviction counsel, the other 11 issues were barred by waiver and res judicata, and Petitioner had failed to show cause and prejudice. (Id.) On appeal, counsel filed a motion for leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), asserting that there were no non-frivolous issues to present on appeal. The appellate court granted the motion, and affirmed the judgment of the circuit court denying Petitioner leave to file the successive post-conviction petition. (Id. ¶¶ 7-8.) The Illinois Supreme Court denied Petitioner's subsequent PLA. (Resp.'s Ex. EE, Order, People v. Brown, No. 120983 (Ill. Sept. 28, 2016).)

         Petitioner filed his habeas petition pursuant to 28 U.S.C. § 2254 in November 2013 and moved to stay the proceedings pending disposition of his then-pending motion for leave to file a successive post-conviction petition. (Dkt. # 1.) After initially denying the motion to stay and upon review of additional briefing filed by the parties, the Court granted the motion to stay consideration of the instant § 2254 petition. (Dkt. # 25.) On October 12, 2016, the Court lifted the stay after the Illinois Supreme Court denied Petitioner's PLA regarding the denial of his motion for leave to file a successive post-conviction petition. (Dkt. # 33.)

         Petitioner's second amended § 2254 petition (Dkt. # 34) alleges the following claims:

1. Insufficiency of the evidence;

2. Ineffective assistance of trial counsel for failing to object to the admissibility of certain evidence and failing to preserve a Fourth Amendment claim for review;

3. Ineffective assistance of appellate counsel for failing to: (a) raise a claim of ineffective assistance of trial counsel, (b) challenge the admission of certain evidence, and (c) failing to make a Fourth Amendment challenge;

4. Due process violation based on trial court's admission of certain evidence;

5. Due process violation based on prosecutor's improper comments during opening statements and closing arguments;

6. Brady v. Maryland, 273 U.S. 83 (1963), violation;

7. Ineffective assistance of trial counsel for failing to object to the prosecution's alleged Brady violation and knowing use of perjured testimony, and ineffective assistance of appellate counsel for failing to raise these issues on appeal;

8. Due process violation based on the trial court's re-sentencing after remand;

9. Trial court erred in admitting testimony of the victim;

10. Trial court erred in admitting a computer-generated composite sketch of the victim;

11. Ineffective assistance of trial and appellate counsel for failing to object to the victim testimony and the composite sketch; and

12. Ineffective assistance of post-conviction counsel.

         Standard

         Habeas relief cannot be granted unless the state court's decision was contrary to, or involved an unreasonable application of, federal law as determined by the United States Supreme Court. See Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Warren v. Baenen, 712 F.3d 1090, 1096 (7th Cir. 2013). Habeas relief “has historically been regarded as an extraordinary remedy, a ‘bulwark against convictions that violate fundamental fairness.'” Brecht v. Abrahamson, 507 U.S. 619, 633 (1993) (quotation omitted). Habeas petitions are used as a “‘guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-103 (2011) (quotation omitted). To obtain relief, “a state petitioner must show that the state ...


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