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Atterberry v. Korte

United States District Court, N.D. Illinois

November 9, 2017

Early A. Atterberry, (M06143), Petitioner,
v.
Jeff Korte, Warden, Western Illinois Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          CHARLES R. NORGLE, United States District Judge

         Petitioner Early A. Atterberry, a prisoner confined at the Dixon Correctional Center, brings this pro se habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his aggravated criminal sexual abuse, and criminal sexual assault convictions from the Circuit Court for the Twelfth Judicial Circuit Court, Will County, Illinois. For the reasons set forth below, the Court denies the petition on the merits.

         1. Petitioner's State Court Proceedings and Habeas Corpus Petition Claims

         Petitioner was convicted of sexually abusing his 13-year-old daughter. Illinois v. Atterberry, 2011 IL App (3d) 090505-U, 2011 WL 10457943, at *1 (111. App. Ct. Sept. 21, 2011). He had sex with her on ten different occasions, and inappropriately touched her chest and vagina beneath her clothes ten other times in 2007. Id. The victim testified at trial that Petitioner assaulted her when other family members were out of the home, or at night when everyone else was sleeping. Id. She ultimately reported the abuse to her mother and other family members. Id. The mother reported the abuse to the police. Id.

         The mother also testified at trial. Id. She explained that the victim's behavior changed during the time period when the assaults occurred. Id. The victim became more withdrawn, dressed in layers before going to bed, and slept in her mother's room at times. Id.

         Following a jury trial, Petitioner was convicted of criminal sexual assault, and aggravated criminal sexual abuse. Id. at *2. The court imposed a ten-year sentence for the criminal sexual assault, and a consecutive five-year sentence for the aggravated criminal sexual abuse. Id.

         On direct appeal in the Appellate Court of Illinois, Petitioner argued that the trial court erred in admitting an uncharged 2005 event to show his propensity to commit sex offenses under Section 115-7.3 of Illinois's Code of Criminal Procedure (725 ILCS 5/115-7.3) because his conduct did not constitute a criminal offense.[1] (Dkt. 7-7, pg. 40.) He also argued that the jury should have received a limiting instruction regarding this evidence. Id. at 43-44.

         The state appellate court found that introduction of the evidence was error, but the error was harmless. Atterberry, 2011 IL App (3d) 090505-U, 2011 WL 10457943, at *2-*3. The appellate court also found that Petitioner's attorney failed to request a limiting instruction at trial, and Petitioner failed to raise the issue in his post-trial motion. Id. at *3. Consequently, the appellate court reviewed the limiting instruction issue under plain error standard because the issue was not properly preserved. Id. The appellate court concluded that trial counsel's failure to seek a limiting instruction did not constitute plain error. Id. at *4.

         Petitioner filed a petition for leave to appeal (PLA) in the Supreme Court of Illinois arguing that the appellate court misapplied the harmless error standard. (Dkt. 7-1, pgs. 17-20.) The PLA did not raise trial counsel's failure to request a limiting instruction. Id. The Supreme Court of Illinois denied Petitioner's PLA. Illinois v. Atterberry, No. 113223, 963 N.E.2d 247 (111. Jan. 25, 2012) (Table).

         Petitioner then filed a postconviction petition under Illinois's Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., raising ineffective assistance of trial and appellate counsel, prosecutorial misconduct, judicial misconduct, and sufficiency of the evidence claims. (Dkt. 7-3, pgs. 19-46.) The trial court denied Petitioner's postconviction petition. (Dkt. 7-3, pgs. 47-51.)

         Petitioner's postconviction appeal to the Appellate Court of Illinois was limited to a single issue of judicial bias. (Dkt. 7-7, pg. 86.) Petitioner argued that the trial court judge's bias against him was demonstrated by a prior ruling by the same judge in an unrelated case against a different Defendant named Weber in 2004. Id. at 89. In Weber's 2004 case, the trial judge had excluded the introduction of prior bad act evidence regarding the sexual abuse of two girls. Id. Petitioner argued that the fact that the trial judge excluded the prior bad act evidence in Weber's case, while admitting it in his case, demonstrated judicial bias. Id. at 91.

         The appellate court held the judicial bias claim was not raised in the postconviction petition, but instead was asserted improperly for the first time on appeal. Illinois v. Atterberry, No. 2015 IL App (3d) 130456-U, 2015 WL 2028270, at *2 (111. App. Ct. Apr. 28, 2015). The appellate court also ruled that, assuming arguendo, even if the postconviction petition could be read to raise the judicial bias claim, that claim would be barred by forfeiture because Petitioner was required to raise this claim on direct appeal. Id.

         Petitioner then brought a PLA in the Supreme Court of Illinois raising his judicial bias claim. (Dkt. 7-1, pgs. 44-54.) The Supreme Court of Illinois denied Petitioner's PLA. Illinois v. Atterberry, 39 N.E.3d 1004 (111. Sept. 30, 2015) (Table). Petitioner filed the present habeas corpus petition in this Court following completion of his state postconviction proceedings.

         Petitioner raises five [2] claims in the present habeas corpus petition:

Claim One: The prosecution made inflammatory opening and closing jury statements that were based on wrongfully admitted evidence, and failed to disclose witness background, depriving the jury of ...

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