United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OF OPINION
CHARLES P. KOCORAS UNITED STATES DISTRICT COURT JUDGE
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
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v. Brown, 2014 IL App (1st) 121750-U (unpublished).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. §
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
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
Claim 1 - Brown's Right to ...