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Maury v. Pfister

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

November 29, 2017

ROBERT MAURY, Petitioner,
v.
RANDY PFISTER, WARDEN, STATEVILLE CORRECTIONAL CENTER, Respondent.

          MEMORANDUM OPINION AND ORDER

          HONORABLE EDMOND E. CHANG, UNITED STATES DISTRICT JUDGE.

         Robert Maury filed this amended petition for a writ of habeas corpus under 28 U.S.C. § 2254.[1] See R. 9, Am. Habeas Pet. at 1.[2] 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.

         I. Background

         In 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).

         I. Factual Background

         A. Arrest and Trial

         1. The Crimes

         T.M. 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.

         2. Investigation and Arrest

         The day 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.

         3. First Trial and Remand

         The 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).

         4. Second Trial

         The 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.”[3] Id. The court held a jury trial on both counts of predatory criminal sexual assault in 2011. See Id. ¶ 11.

         At the 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.

         Maury's 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.[4] See Id. ¶ 39. In January 2011, the jury convicted Maury on both counts. See Id. ¶ 19.

         5. Motions for New Trial

         Shortly 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.

         B. Direct Review in State Court

         1. Direct Appeal to the Illinois Appellate Court

         Maury 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 ¶ 66.

         The 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.

         The 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 ¶¶ 40-43.

         The 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.

         2. Petition for Leave to Appeal to the Illinois Supreme Court

         Next, 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.[5] 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.

         C. State Postconviction Review

         1. Postconviction in the Circuit Court of Cook County

         In May 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.

         2. Postconviction Appeal to the Illinois Appellate Court

         Maury 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. ΒΆ 6. It summarily dismissed the appeal because it ...


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