United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. HERNDON, UNITED STATES DISTRICT JUDGE.
currently incarcerated in Menard Correctional Center, brings
this habeas corpus action pursuant to 28 U.S.C. § 2254
requesting that the Court grant him an evidentiary hearing on
the issues raised by the Petition, and ultimately order a new
trial or release. (Doc. 1, p. 57).
was sentenced to 33 years' imprisonment on March 31, 2011
for first degree murder after a jury trial. (Doc. 1, pp.
1-2). He appealed on the grounds that 1) the state engaged in
prosecutorial misconduct by referring to a witness as a liar,
disparaging the evidence as “fiction” or
“good television, ” and by relying on speculative
evidence; 2) the state denied Petitioner a fair trial when it
introduced evidence that Petitioner possessed a gun more than
3 weeks prior to the murder; 3) the state denied Petitioner a
fair trial where it introduced evidence that Petitioner was
identified through a photo line-up, improperly implying that
Petitioner had a criminal record; 4) the state denied
Petitioner a fair trial when it sent evidence to the jury
that had not been admitted at trial; 5) the cumulative effect
of all of the above violations denied Petitioner a fair trial
and due process of law. (Doc. 1, p. 2). The appellate court
affirmed the conviction on March 19, 2013. Id. The
Illinois Supreme Court denied his petition for leave to
appeal on January 29, 2014. (Doc. 1, p. 3). Petitioner filed
a motion seeking post-conviction relief in the state court on
September 4, 2013. Id. That motion raised 2 issues:
1) trial counsel was ineffective for making an unfulfilled
promise to the jury that a particular witness would testify;
and 2) appellate counsel was ineffective for failing to raise
the effectiveness of trial counsel on appeal. (Doc. 1, p. 4).
That petition was denied on September 10, 2013. Id.
Petitioner filed a notice of appeal to the Illinois Appellate
Court Fifth Judicial District on September 24, 2013.
Id. His conviction was affirmed on September 26,
2016. Id. Petitioner requested leave to appeal from
the Illinois Supreme Court; his request was denied on January
25, 2017. (Doc. 1, p. 5).
Petition raises 6 grounds for relief. Petitioner alleges he
was denied effective assistance of counsel at trial in
violation of the Sixth Amendment because his trial counsel
promised to call Roy Dugan, whom Petitioner alleges actually
murdered the victim, during opening statement but then failed
to call him as a witness during trial, despite the fact that
Dugan was available to testify. (Doc. 1, pp. 9-17). Ground
Two alleges that that Petitioner was deprived of a fair trial
in violation of the Sixth and Fourteenth Amendments when the
state introduced evidence that tended to show the alleged bad
character of Petitioner by eliciting testimony that he was
seen with a gun 3 weeks prior to the murder. (Doc. 1, pp.
18-30). Next, Petitioner argues that the state engaged in
prosecutorial misconduct during rebuttal by referring to a
defense witness as a liar, disparaging the defense as
“fiction” or “good television, ” and
by relying on speculation to establish that Petitioner got
rid of the murder weapon prior to his arrest, thereby denying
Petitioner of his due process rights under the Sixth and
Fourteenth Amendments. (Doc. 1, pp. 31-38). Petitioner's
fourth ground alleges that he was denied a fair trial in
violation of the Sixth and Fourteenth Amendments where the
state introduced evidence that Petitioner's photo was
already in the East St. Louis Police Department's
database, suggesting that Petitioner had a criminal record,
which was otherwise not admissible at trial. (Doc. 1, pp.
39-43). Ground Five alleges that the trial court erred by
sending back evidence to the jury during their deliberations
that had not been admitted at trial. (Doc. 1, pp. 44-49).
Finally, Petitioner alleges that the cumulative effect of
these errors taken together denied him of a fair trial in
violation of the Fourteenth Amendment. (Doc. 1, pp. 50-56).
of the Rules Governing § 2254 cases in United States
District Courts provides that upon preliminary consideration
by the district court judge, “[i]f it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court,
the judge must dismiss the petition and direct the clerk to
notify the petitioner.”
Petitioner has alleged that his constitutional rights were
repeatedly violated during his state court trial, thus
suggesting he is in custody in violation of the Constitution
and properly invoking § 2254. The Petition also appears
to be both exhausted and timely. For these reasons, the Court
orders a Response so that it may consider the issues raised
by the Petition, and any other issues Respondent would like
to raise, on a more developed record.
HEREBY ORDERED that Respondent shall answer the petition or
otherwise plead within thirty days of the date this order is
entered. This preliminary order to respond does not, of
course, preclude the State from making whatever waiver,
exhaustion, or timeliness argument it may wish to present.
Service upon the Illinois Attorney General, Criminal Appeals
Bureau, 100 West Randolph, 12th Floor, Chicago, Illinois
60601 shall constitute sufficient service.
FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause is referred to United States Magistrate Judge Clifford
J. Proud for further pre-trial proceedings.
FURTHER ORDERED that this entire matter be REFERRED to United
States Magistrate Judge Clifford J. Proud for disposition, as
contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. §
636(c), should all the parties consent to such a
is ADVISED of his continuing obligation to keep the Clerk
(and each opposing party) informed of any change in his
whereabouts during the pendency of this action. This
notification shall be done in writing and not later ...