United States District Court, N.D. Illinois
Early A. Atterberry, (M06143), Petitioner,
Jeff Korte, Warden, Western Illinois Correctional Center, Respondent.
MEMORANDUM OPINION AND ORDER
CHARLES R. NORGLE, United States District Judge
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
Petitioner's State Court Proceedings and Habeas Corpus
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.
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more withdrawn, dressed in layers before going to bed, and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.
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.
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. (Dkt. 7-7, pg. 40.) He also
argued that the jury should have received a limiting
instruction regarding this evidence. Id. at 43-44.
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.
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,
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.)
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.
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
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
raises five  claims in the present habeas corpus
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 ...