United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON UNITED STATES DISTRICT JUDGE.
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.
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.
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
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. Id.
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.
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.
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).
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).
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
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).
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.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