United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE EDMOND E. CHANG, UNITED STATES DISTRICT JUDGE.
Maury filed this amended petition for a writ of habeas corpus
under 28 U.S.C. § 2254. See R. 9, Am. Habeas
Pet. at 1. He challenges his 2011 Illinois state
conviction on two counts of predatory criminal sexual
assault. See Id. For the reasons discussed, this
Court denies Maury's petition and declines to issue a
certificate of appealability.
reviewing a petition for habeas corpus under § 2254, a
federal court must presume that the factual findings of the
state court that decided the merits of the case are correct.
See 28 U.S.C. § 2254(e)(1); Coleman v.
Hardy, 690 F.3d 811, 815 (7th Cir. 2015). The petitioner
can overcome this presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1). Because
Maury has not presented clear and convincing evidence to
rebut this presumption, this Court adopts the facts set forth
by the Illinois Appellate Court on direct review.
See R. 20, State Court Record Exh. A, Direct Review
Opinion. The state court record lodged with this Court also
supplements the facts. See Rules Governing Section
2254 Cases in the United States District Courts, Rule 5
(2010); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir.
2002); United States ex rel. Parish v. Hodge, 73
F.Supp.3d 895, 899 n.1 (N.D. Ill. 2014).
Arrest and Trial
and A.M. lived with their grandmother, Catherine M., in 2003.
See Direct Review Opinion ¶ 3. Sometime that
year, Robert Maury-Catherine's boyfriend-moved into
Catherine's home. See Id. In the summer of 2003,
Maury sexually assaulted T.M. (who was eleven years old at
the time), by forcing her to engage in oral sex. See
Id. ¶ 11. On a separate occasion that summer, Maury
beat AM. (who was ten) and sexually assaulted him by forcing
him to engage in oral sex. See Id. ¶ 12. These
assaults followed an attempt earlier that summer in which
Maury had asked for oral sex from T.M. and she had run away
to avoid it. See Id. ¶ 11. T.M. testified that
Maury made threats against her life if she told anyone about
the assault, and AM. testified that Maury had beaten him on
prior occasions. See Id. ¶¶ 11-12. The
children did not tell Catherine about the assaults and
threats. See id.
Investigation and Arrest
after Maury assaulted her, T.M. reported the assault to her
mother, Tashnia M., who did not live with the children.
See Id. ¶ 11. Tashnia confronted Catherine, who
denied the accusations. See Id. ¶ 13. Tashnia
then called the police. See Id. Detective Nolan of
the Chicago Police Department began investigating the crimes
in July 2003. See Id. ¶ 14. He spoke with both
children and arranged for them to do a
“victim-sensitive interview” with Karen Stelnicki
at the Chicago Children's Advocacy Center in August 2003.
See Id. He watched that interview through a two-way
mirror but did not participate. See Id. In February
2004, Maury was arrested. See id.
First Trial and Remand
State first tried Maury for the assault of T.M. in the
Circuit Court of Cook County. See Id. ¶ 6. In
2006, a jury convicted Maury of predatory criminal sexual
assault of T.M., and the court sentenced him to natural life
imprisonment. See Id. The case for assaulting A.M.
continued to pretrial motions in 2008. See Id.
¶ 7. On direct appeal in 2009, however, the Illinois
Appellate Court vacated Maury's first conviction and
remanded for a new trial because the trial court had allowed
in too much prior-crimes evidence. See Id. ¶ 8;
see also People v. Maury, 982 N.E.2d 287
(Ill.App.Ct. Mar. 31, 2009) (Table).
trial court agreed to join the two assault cases in 2009.
See Direct Review Opinion ¶ 9. Shortly before
the jury trial, Maury made a request to proceed pro
se. See Id. ¶ 10. The trial judge warned
him of the seriousness of that step. See Id. Maury
met with his counsel, and at the next status hearing,
“[Maury] agreed to continue to be represented by
defense counsel.” Id. The court held a jury
trial on both counts of predatory criminal sexual assault in
2011. See Id. ¶ 11.
trial, T.M. and A.M. testified to the sexual assaults
described above. See Id. ¶¶ 11-12. Tashnia
testified to her confrontation with Catherine and her
interactions with the police. See Id. ¶ 13. She
also testified that the children received counseling from the
Department of Child and Family Services (DCFS) with the help
of Catherine Byrne, a DCFS child protection investigator.
See Id. Detective Nolan testified about his
investigation. See Id. ¶ 14. Antoinette Murray,
a woman who had previously been sexually assaulted by Maury,
gave prior-crimes evidence. See Id. ¶ 15. She
testified that Maury, who was her mother's boyfriend at
the time, had repeatedly forced her to engage in oral sex at
the age of fourteen or fifteen in 1986. See Id. The
State then rested. The trial court admonished Maury of his
right to testify, and Maury elected not to testify. See
Id. ¶¶ 16, 63.
trial counsel called two witnesses. First, he called
Catherine Byrne, who testified that she had visited the
children on behalf of DCFS but had not provided counseling or
other services. See Id. ¶ 17. Then, he called
John Crivellone, a private investigator, who testified about
photographs he had taken of the defendant, including
photographs of Maury's genitals that allegedly
contradicted the children's testimony. See Id.
¶ 18. During closing argument, the prosecutor commented
on why the children did not remember certain collateral
details of the assaults. See Id. ¶ 39. In January
2011, the jury convicted Maury on both counts. See
Id. ¶ 19.
Motions for New Trial
after the trial, Maury's trial counsel filed a motion for
new trial under 725 ILCS 5/116-1 (1964). See Id.
¶ 20. Maury filed his own pro se motion, in
February 2011, for a new trial on the grounds of ineffective
assistance of counsel. See Id. He claimed that his
counsel (1) failed to investigate Tashnia and the
children's motives to lie; (2) failed to interview and
call Catherine at trial; (3) did not listen to him throughout
the case; and (4) forced him to decide prematurely whether to
testify. Id. Under People v. Krankel, 464
N.E.2d 1045 (Ill. 1984), the trial court held a hearing in
February 2011 to determine if there was enough evidence of
ineffective assistance to justify appointing Maury new
counsel to argue his motion for new trial. See Id.
The trial court denied Maury's request for new counsel,
denied Maury's pro se motion for new trial, and
denied Maury's counseled motion for new trial. See
Id. The court sentenced Maury to mandatory life
imprisonment, and Maury filed notices of appeal through
counsel. See Id. ¶¶ 20-21.
Direct Review in State Court
Direct Appeal to the Illinois Appellate Court
presented three grounds for relief on direct appeal to the
Illinois Appellate Court (he was represented by appellate
counsel). R. 20, State Court Record Exh. B, Direct Appeal Br.
at 2. First, Maury argued that the trial court denied him his
Sixth Amendment right to proceed pro se. See
Id. Second, he argued that the prosecutor improperly
bolstered the victims' testimony during the State's
closing argument. See Id. Third, Maury argued that
the trial court improperly denied his request for new counsel
to argue his motion for new trial after the Krankel
hearing. See Id. at 2, 22-23. The appellate court
denied relief on all three grounds. Direct Review Opinion
appellate court rejected Maury's first ground for relief
(that he wanted to proceed pro se) because Maury had
forfeited this issue by failing to raise it in a motion for
new trial. See Id. ¶ 26; see also People v.
Herron, 830 N.E.2d 467, 472-73 (Ill. 2005). The
appellate court also held that there was no plain error
because Maury never clearly asserted his right to proceed
pro se. See Direct Review Opinion
¶¶ 29-31. Both times Maury requested to proceed
pro se, he did not clearly and unequivocally waive
the right to counsel, and he abandoned both requests soon
after making them. See Id. ¶¶ 30-31.
appellate court held that Maury also forfeited his
improper-bolstering claim by failing to object at trial and
by failing to include it in his motion for a new trial.
See Id. ¶ 37; see also Herron, 830
N.E.2d at 472-73. The appellate court further held that there
was no plain error because the prosecutor's remarks were
premised on reasonable inferences from the record and also
were an invited response to defense counsel's contentions
in closing argument. See Direct Review Opinion
appellate court rejected Maury's third claim, holding
that there was no error in not appointing new counsel after
the Krankel hearing, even under de novo
review. See Id. ¶ 49. The appellate court
rejected each of Maury's arguments. First, it held that
trial counsel had effectively prepared for the trial and that
the witnesses' alleged motives to lie were speculative.
See Id. ¶ 51. Second, it held that trial
counsel employed a reasonable trial strategy in not calling
Catherine and, even if that was a mistake, it was harmless.
See Id. ¶¶ 53, 55. Third, it held that
trial counsel had listened to Maury's concerns and
adequately prepared for trial. See Id. ¶ 59.
Fourth, it held that-although Maury was improperly forced to
choose whether to testify before the start of the
defense's case-in-chief-the error was harmless because
the State presented overwhelming evidence and Maury was
convicted at his first trial despite testifying. See
Id. ¶ 63. The appellate court denied relief on all
counts. See Id. ¶ 66.
Petition for Leave to Appeal to the Illinois Supreme
Maury filed a counseled Petition for Leave to Appeal to the
Illinois Supreme Court. See R. 20, State Court
Record Exh. E, Direct Review PLA at 2. Maury raised two
arguments in his petition. First, he argued that he had been
denied his right to proceed pro se. See Id.
Second, he argued that the trial court improperly denied his
right to new counsel after the Krankel
hearing. See Id. He did not raise the
improper-bolstering claim. See Id. The Illinois
Supreme Court denied leave to appeal. See R. 20,
State Court Record Exh. F, Denial of Direct Review PLA at 1.
State Postconviction Review
Postconviction in the Circuit Court of Cook County
2014, Maury filed a pro se petition for
postconviction relief, 725 ILCS 5/122-1, in the Circuit Court
of Cook County. R. 20, State Court Record Exh. G,
Postconviction Appellate Opinion ¶ 4. The petition
asserted five claims of ineffective assistance of counsel.
See Id. Maury claimed that trial counsel was
ineffective by (1) failing to interview and call Brenda
Forehand of DCFS, (2) failing to interview and call Karen
Stelnicki of the Chicago Children's Advocacy Center, (3)
failing to cross-examine Detective Nolan about bias against
Maury, and (4) failing to properly contest the admission of
prior-crimes evidence. See Id. Maury also claimed
his appellate counsel was ineffective for failing to raise
those four issues on direct appeal. See Id. The
court dismissed the petition as “frivolous and patently
without merit.” Id.
Postconviction Appeal to the Illinois Appellate
appealed all five claims to the Illinois Appellate Court, and
counsel was appointed to represent him. See Id. But
then the appointed counsel filed a motion under
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), to
withdraw from the representation on the grounds that the
appeal was frivolous. See Id. ¶ 5. The
appellate court granted that motion. See Id. ¶
6. It summarily dismissed the appeal because it