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Kennebrew v. Lashbrook

United States District Court, S.D. Illinois

December 13, 2017

REGINALD KENNEBREW Petitioner,
v.
JACQUELINE LASHBROOK Respondent.

          MEMORANDUM AND ORDER

          HERNDON UNITED STATES DISTRICT JUDGE.

         Reginald Kennebrew (Petitioner), proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (hereinafter § 2254). He challenges his conviction in Winnebago County, Illinois for aggravated criminal sexual abuse. He contends the trial judge violated Illinois law when he permitted the jurors to view a witness's videotaped interview in the jury room, rather than in open court, and that his trial counsel was ineffective for not contesting the judge's ruling. Petitioner also contends his appellate and post-conviction counsel were ineffective. (Doc. 1). For the following reasons, Petitioner's writ of habeas corpus under § 2254 is denied.

         Background

         In August 2008, the State of Illinois (the State) filed a three-count indictment against Petitioner, charging him with three felony counts: (1) predatory criminal sexual assault of a child for penis-to-anus contact; (2) predatory criminal sexual assault of a child for hand-to-vagina contact; and (3) aggravated sexual abuse for touching the victim's buttocks with his hand for purposes of sexual gratification or arousal. People v. Kennebrew, 2014 IL App (2d) 121169, ¶ 3.

         At Petitioner's trial, the State played a videotaped interview between the victim and a children's center. Id. at ¶ 8. During deliberations, the jury sent a note to the court requesting to view the video. Id. at ¶ 13. Petitioner objected, arguing that granting the jury's request would essentially place the victim and the interviewer in the jury room. Id. The court overruled the objection, likening the video to a transcript. Id.

         The jury convicted Petitioner of all three counts, and the court sentenced him to consecutive terms of 15, 15, and 5 years. Id. at ¶ 14. Petitioner filed a direct appeal, arguing (1) the State failed to prove his guilt beyond a reasonable doubt of predatory criminal sexual assault and (2) section 115-10 of Illinois' Code of Criminal Procedure of 1963 is unconstitutional because it violates the confrontation clause.[1] Id.

         The Illinois Appellate Court reversed Petitioner's conviction of predatory criminal sexual assault because it found insufficient evidence of penile penetration, a necessary element of the crime. Id. The State filed a petition for leave to appeal (PLA) to the Illinois Supreme Court. Id. The supreme court denied review but remanded the case to the appellate court to consider whether there was sufficient evidence of aggravated criminal sexual abuse. Id. On remand, the appellate court found sufficient evidence of aggravated criminal sexual abuse and determined it is a lesser-included offense of predatory criminal sexual assault. Id. The appellate court remanded the case to the trial court for resentencing. Id.

         In June 2012, while awaiting sentencing, Petitioner filed a post-conviction petition under Illinois' Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)). He argued, in part, that (1) the trial court abused its discretion in permitting the jury to view the videotaped interview; (2) his trial counsel was ineffective for failing to cross-examine a witness; and (3) “his appellate counsel was ineffective on his direct appeal for not arguing that the trial court should not have admitted the [videotaped interview] because it violated the confrontation clause.” Id. at 18-20; (Doc. 1, p. 4). The trial court dismissed the petition as frivolous and patently meritless. Id. at ¶ 15. The appellate court affirmed the trial court's dismissal, ¶ 33, and Petitioner did not file a PLA to the Illinois Supreme Court.

         On July 6, 2015, Petitioner filed the instant § 2254 petition in this Court, advancing three grounds for habeas relief: (1) his trial counsel was ineffective for not objecting to the court allowing the jury to review the videotaped interview during deliberations in the jury room; (2) his appellate counsel was ineffective for not arguing the same on appeal; and (3) his post-conviction appellate counsel was ineffective for also not raising the issue during post-conviction proceedings. (Doc. 1, pp. 8-10).

         This Court conducted a preliminary review of Petitioner's § 2254 petition and summarily dismissed his third argument, citing 28 U.S.C. § 2254(i): “The ineffectiveness or incompetence of counsel during Federal or State post-conviction proceedings shall not be a ground for relief in a proceeding arising under Section 2254.” Although Petitioner's remaining claims appeared to be procedurally defaulted, the Court permitted them to proceed to determine whether cause and prejudice, or a miscarriage of justice excuse the default. (Doc. 7, p. 4).

         Analysis

         28 U.S.C. § 2254 permits persons in custody pursuant to a state court judgment to bring a petition for a writ of habeas corpus “on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Before a federal court can entertain a petition brought under § 2254, principles of comity mandate a petitioner give the State an opportunity to address his constitutional claims by “invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

         Under Illinois' two-tiered appeals process, a petitioner must present his claims to an intermediate appellate court and to the Illinois Supreme Court, or in post-conviction proceedings. Id. at 843-46. Otherwise, his claims are procedurally defaulted and he cannot later raise them in a § 2254 petition. Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013).

         Petitioner, here, concedes he failed to present his claims for one complete round of state review. Petitioner did not raise his ineffective assistance of trial counsel argument on direct review or in his Illinois post-conviction petition.[2]Although he raised an ineffective assistance of appellate counsel argument in his post-conviction proceedings, he did not present the claim to the Illinois Supreme Court by filing a PLA. These claims are therefore ...


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