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Ellison v. Dorethy

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

June 27, 2017

BENNIE ELLISON
v.
STEPHANIE DORETHY.

          MEMORANDUM OPINION

          SAMUEL DER-YEGHIAYAN, District Judge

         This matter is before the court on Petitioner Bennie Ellison's (Ellison) pro se petition for writ of habeas corpus (Petition) brought pursuant to 28 U.S.C. § 2254. For the reasons stated below, the Petition is denied.

         BACKGROUND

         Ellison was convicted in two state court criminal actions, No. 09 CR 6863 and 09 CR 6542. In 09 CR 6863, Ellison was convicted of possession of narcotics with the intent to deliver and sentenced to a ten-year term of imprisonment. Ellison appealed that decision, was re-sentenced, and received a six-year term of imprisonment. On July 27, 2016, Ellison filed a petition for post-conviction relief in the trial court. On September 19, 2016, the trial court denied Ellison's petition for relief. Ellison did not appeal or attempt to appeal the trial court's order. In 09 CR 6542, Ellison plead guilty to being an armed habitual criminal and was sentenced to a six-year term of imprisonment. Ellison appealed and the state appellate court dismissed the appeal for lack of jurisdiction. On June 30, 2016, Ellison filed a post-conviction petition in the trial court. On July 11, 2016, the trial court dismissed Ellison's petition for post-conviction relief. Ellison did not file a petition for leave to appeal (PLA) with the Illinois Supreme Court. The matter is currently pending in state appellate court where briefing is ongoing. On January 24, 2017, Ellison filed the instant petition.

         LEGAL STANDARD

         An individual in custody pursuant to state court judgment may seek a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which provides the following:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) 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). The decision made by a state court is deemed to be contrary to clearly established federal law “‘if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts.'” Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009)(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). The decision by a state court is deemed to involve an unreasonable application of clearly established federal law “‘if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case.'” Emerson, 575 F.3d at 684 (quoting Bell, 535 U.S. at 694).

         DISCUSSION

         This court has liberally construed Ellison's pro se filings. See Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir. 2004)(stating that “[a]s [the plaintiff] was without counsel in the district court, his habeas petition [wa]s entitled to a liberal construction”); Greer v. Board of Educ. of City of Chicago, III., 267 F.3d 723, 727 (7th Cir. 2001)(indicating that a court should “liberally construe the pleadings of individuals who proceed pro se”). Ellison asserts in the Petition that his appellate counsel was ineffective because counsel “concealed” documents in Ellison's appeals from state court convictions.

         I. Procedurally Defaulted Claims

         Respondent argues that Ellison's claims are procedurally defaulted and there is no justification to excuse the default.

         A. Procedural Default

         Respondent contends that Ellison failed to raise his claim through one complete round of the state court appellate review process. A district court “cannot review a habeas petitioner's constitutional issue unless he has provided the state courts with an opportunity to resolve it ‘by invoking one complete round of the state's established appellate review process.'” Byers v. Basinger, 610 F.3d 980, 985 (7th Cir. 2010)(quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). If a habeas petitioner failed to “properly assert[] his federal claim at each level of state court review, ” the petitioner is deemed to have “procedurally defaulted that claim.” Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008)(quoting Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004)); see also Johnson v. Hulett, 574 F.3d 428, 431 (7th Cir. 2009)(stating that “[t]o obtain federal habeas review, a state prisoner must first submit his claims through one full round of state-court review, ” and that “[t]he penalty for failing to fully and fairly present [] arguments to the state court is procedural default”). A petitioner, in exhausting his state court remedies, has “‘the duty to fairly present his federal claims to the ...


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