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Brown v. Calloway

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

November 29, 2017

STEVEN BROWN, Petitioner,
v.
VICTOR CALLOWAY, Warden, Danville Correctional Center, Respondent.

          MEMORANDUM OF OPINION

          CHARLES P. KOCORAS UNITED STATES DISTRICT COURT JUDGE

         Before the Court is Petitioner Stephen Brown's (“Brown”) Petition for Writ of Habeas Corpus (“Petition”). For the following reasons, Brown's Petition is denied, and the Court declines to issue Brown a certificate of appealability (“COA”).

         BACKGROUND

         The following facts are drawn from the Illinois Appellate Court's statement of facts on direct appeal. People v. Brown, 2014 IL App (1st) 121750-U (unpublished). Because Brown has not contested the state appellate court's findings nor rebutted them with clear and convincing evidence, the court's findings are “presumed to be correct.” 28 U.S.C. § 2254(e)(1).

         In 2009, Brown was convicted following a bench trial in the Circuit Court of Cook County, Illinois, of predatory criminal sexual assault, aggravated criminal sexual assault, and additional convictions later vacated on direct appeal. Acting pro se pretrial, Brown filed motions alleging Miranda, ex post facto, and double jeopardy violations, alongside an allegation that the State failed to give him adequate notice of the charges. The trial court denied his ex post facto and double jeopardy claims on the merits and scheduled a hearing for the Miranda claims. The Miranda hearing was struck after Brown accepted representation of counsel, who withdrew all pro se motions.

         The victim (“L.W.”), Brown's granddaughter, who was nine years old at the time of the offense, testified that on February 9, 2007, she, her ten-year-old sister (“D.W.”), and their younger brother spent the afternoon with Brown, an electrician, at several of his worksites. This was not unusual, according to L.W. At one work site that afternoon, Brown told L.W.'s siblings to stay in the car while he took L.W. alone into a building. Once inside, Brown put his coat on the floor and ordered L.W. to lay down on the coat. Brown took off his pants, instructed L.W. to remove her pants, and then got on top of her, where he “put his long thing” on her “private part.” Brown was breathing heavily and touched his private part to L.W.'s for a few minutes. L.W. never saw Brown's penis, but she confirmed that she felt it.

         Brown stopped rubbing against L.W. when he got up to answer a call on his cell phone from D.W. Brown and L.W. got dressed and began walking to the car. As they walked, Brown looked at L.W., put a finger over his mouth, and told her, “don't tell nobody.” L.W. did not speak to her siblings in the car-ride about the episode.

         Once home, L.W. told her mother (“Geneva”), who is also Brown's daughter, what happened. Geneva took L.W. to the hospital, where she underwent an examination and reported what happened to medical personnel, police officers, and Children's Advocacy Center employees.

         D.W. confirmed L.W.'s testimony that Brown took the children to the work site that day and brought L.W. into the building alone. As D.W. waited, her mother called her cell phone. D.W. told Geneva that Brown was in a building with L.W. and that they had been there for a long time. D.W. also confirmed that L.W. talked to Geneva when they arrived home. When D.W. asked her sister what happened, L.W. pointed to her “private part” and responded that Brown was “feeling on her” and “made her lay on him.”

         Geneva confirmed that Brown picked up her children that day and took them to do some repairs at her uncle's church. When Brown did not return the children at the expected time, Geneva called Brown and D.W. on their cell phones. When Brown dropped off the children, Geneva asked him why he did not answer the phone, why he was gone so long, and why he was alone with L.W. in a building. Brown provided no direct answers. After he left, Geneva took L.W. to the hospital.

         Barbara Doherty (“Doherty”), a registered nurse with sexual assault training, testified that she examined L.W. at the hospital. L.W. informed Doherty that Brown removed both of their pants, instructed her to lie on top of him, and then kissed her on her lips. Brown then kept “pushing” his private parts against L.W.'s, “touching the outside of her private parts” with his “private parts.” Doherty collected L.W.'s clothing, vaginal, anal, and inner thigh swabs, and a blood sample. Doherty noted that L.W. arrived at the hospital without underwear and had what appeared to be dried secretions on her inner thighs. Doherty provided all of the samples in a sealed sexual assault kit to a Chicago police officer.

         Doctor Nadhi Kukreja (“Kukreja”), a pediatric resident, testified that he performed a sexual assault examination on L.W. Kukreja confirmed that L.W. had recounted to him substantially the same account as she had to Doherty, that there was what appeared to be a moist smear on L.W.'s inner thigh, and that Doherty collected the samples as she testified to. Kukreja also noted no obvious signs of trauma or injury to L.W.

         Detective Greg Grandon (“Grandon”), a member of the Chicago Police Department's Special Investigations Unit, testified that he met with Brown the day after the assault. Grandon Mirandized Brown, who then agreed to speak with him. Brown denied any type of sexual conduct with L.W. and asserted that his daughter Geneva and his then-wife, Michelle Brown (“Michelle”), had fabricated the story. Brown stated that he believed Geneva and Michelle had taken a used condom of his and saved its contents in the refrigerator or freezer. Brown believed that Michelle had discovered his affairs with other women and speculated that she wanted to punish him. Brown was cooperative with Grandon and agreed to provide a buccal sample.

         Greg Didomenic, a forensic scientist and DNA coordinator for the Illinois State Police, testified that he obtained a sexual assault kit of L.W.'s and the swabs each tested positive for semen. Janet Youngsteadt, a forensic scientist with the Illinois State Police, testified that Brown's DNA could not be excluded as the male donor of the DNA found on L.W.'s vaginal swab and that Brown's DNA profile was conclusively determined to be present on L.W.'s rectal and inner thigh swabs.

         Brown called Michelle, his ex-wife and L.W.'s grandmother, as his only witness. Michelle testified that, on the evening of the assault, she drove to the hospital after receiving a call from her daughter Geneva. When Michelle returned home, she immediately had the locks changed. She also sought and obtained an order of protection against Brown, effectively prohibiting him from returning to their home, and initiated divorce proceedings. Michelle denied threatening to send Brown to jail, did not recall overhearing her daughter threaten Brown, and denied saving Brown's semen to plant as evidence against him.

         Except as to two not-guilty findings on charges of criminal sexual abuse and criminal sexual assault predicated on the use of force, after conducting a bench trial, the trial court found Brown guilty and sentenced him to concurrent prison terms of twenty-eight, fifteen, and seven years.

         On February 7, 2013, Brown's appellate counsel filed a brief seeking vacatur of six of Brown's seven convictions as violative of Illinois' one-act, one-crime doctrine. Appellate counsel also challenged as impermissible several factors the trial court considered at sentencing.

         On February 27, 2013, Brown requested permission to file a supplemental pro se brief, alleging: (1) his Miranda rights were violated; (2) the evidence was insufficient to support his conviction; (3) double jeopardy was violated per the civil order of protection that preceded his criminal charges; (4) indictment and ex post facto violations base on insufficient notice of the charges and Brown's contention that the Illinois Criminal Code was invalid; and (5) trial counsel was ineffective. On March 8, 2013, the state appellate court denied Brown's motion seeking leave to file the supplemental brief, noting that it had already received a counseled brief.

         On June 11, 2014, the Illinois Appellate Court rejected Brown's argument that the trial court had considered impermissible sentencing factors, but it vacated five of Brown's convictions and remanded for resentencing in light of the one-act, one-crime doctrine. On May 27, 2015, the Illinois Supreme Court denied Brown's petition for leave to appeal. Brown was resentenced on June 23, 2016, to concurrent prison terms of seventeen and seven years. Brown did not appeal from resentencing or seek collateral review in state court.

         On October 31, 2016, Brown filed a 28 U.S.C. § 2254 petition for writ of habeas corpus, forwarding eight claims: (1) he was denied the right to proceed pro se in his direct appeal; (2) the State failed to advise him of his Miranda rights; (3) the evidence was insufficient to support conviction; (4) his convictions violate the double jeopardy prohibition per the civil order of protection that preceded his criminal convictions; (5) his convictions violate the ex post facto clause because the Illinois Compiled Statutes are invalid; (6) the charging document failed to provide adequate notice of the charges; (7) he was denied effective assistance of trial counsel because (a) counsel had a conflict of interest, (b) counsel failed to properly investigate, (c) counsel's advice to waive Brown's right to testify and to a jury trial was deficient, and (d) counsel should have raised Claims 2, 4, 5, and 6 at trial; and (8) appellate counsel's failure to raise Claims 2 through 7 on direct appeal demonstrate ineffective assistance of counsel.

         DISCUSSION

         I. Claim 1 - Brown's Right to ...


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