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Papaleo v. Lashbrook

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

July 29, 2019

PETER PAPALEO, Petitioner,
v.
JACQUELINE LASHBROOK, Warden, Menard Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          ROBERT M. DOW, JR., JUDGE

         This matter is before the Court on Petitioner Peter Papaleo's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [1]. For the reasons explained below, the habeas petition [1] is respectfully denied. The Court declines to certify any issue for appeal pursuant to 28 U.S.C. § 225(c)(2) and directs the Clerk to enter judgment against Petitioner and in favor of Respondent. Civil case terminated.

         I. Background

         A. State Court Proceedings

         In 2007, a Cook County grand jury returned indictments that charged Petitioner with a number of crimes in two cases: No. 07 CR 9559 and No. 07 CR 9560. People v. Papaleo, 70 N.E.3d 235, 237-38 (Ill.App.Ct. 2016). In May 2010, Petitioner filed a motion to suppress in both cases, and a motion to dismiss in No. 07 CR 9560 asserting that a detective had offered perjured testimony to the grand jury. Id. at 238.

         After holding an initial hearing on both the motions to suppress and the motion to dismiss on August 2, 2010, the Court scheduled a second day of hearing for August 30 because the detective in question was unavailable. Id. On August 27, 2010, the State again convened a grand jury, which after hearing testimony from a different detective, returned an indictment for four new charges that generated criminal case No. 10 CR 15617. Id. In light of this new indictment, at the August 30, 2010 pre-trial hearing on 10 CR 15617 the states attorney informed the court that the State intended to “nol-pros” both 2007 indictments, although the record does not indicate when or if the State dismissed the 2007 indictments. Id. Shortly thereafter, Petitioner moved to dismiss the 2010 indictment. Id. at 239. He argued that the State was aware of the alleged misrepresentation during the 2007 grand jury proceedings and had secured the 2010 indictment “‘to circumvent [his] due process rights' and ‘stop [him] from proceeding and prevailing on his Motion to Dismiss.'” Id.

         The Illinois Appellate Court detailed the Circuit Court's handling of those motions in its opinion denying Petitioner's post-conviction petition on appeal,

At the hearing on [Petitioner's] motion to dismiss the 2010 indictment, the State called Detective Mendez as its only witness. Detective Mendez admitted that when she testified before the grand jury in April 2007, she did not know whether G.G. suffered a torn hymen. She believed, nonetheless, that her grand jury testimony was otherwise accurate. The State then asked Detective Mendez whether she “intentionally lie[d] to the Grand Jury about [G.G.'s] injuries so * * * [she] could receive an indictment * * *?” Detective Mendez answered “no.” On cross-examination, Detective Mendez acknowledged that during the April 2007 grand jury, she answered “yes” when asked by the State whether G.G. suffered a torn hymen.
The court found that Detective Mendez made “a misrepresentation before the Grand Jury when she agreed that there was a torn hymen.” However, the court found that the misrepresentation was not “intentional, ” “knowing, ” or “sinister, ” based on Detective Mendez's “flippant, cavalier demeanor.” The court expressed doubt as to whether Detective Mendez was “bright enough to have intentionally misled a Grand Jury” and explained Detective Mendez “thinks it's apparently okay to just say yes to whatever questions are asked of her.”
Continuing, the court, citing People v. Oliver, 859 N.E.2d 38 (2006), noted that to obtain dismissal of an indictment as a result of a due process violation, a defendant must show that the violation caused “substantial prejudice.” The court found that defendant made “absolutely no showing of prejudice” because physical injury (such as a torn hymen) is not an element of sexual assault, and the State had sufficient evidence to reindict [Petitioner] without Detective Mendez's testimony. The court then denied [Petitioner's] motion to dismiss.

Papaleo, 70 N.E.3d at 239.

         The case then proceeded to a jury trial in which the jury found Petitioner guilty. Id. Petitioner received a sentence of 50 years imprisonment and 20 years of mandatory supervised release. Id. On direct appeal, Petitioner only argued that his MSR term should have been an indeterminate term of three years to life, which the State conceded, and the Illinois Appellate Court ordered the “defendant's mittimus be corrected to reflect that his MSR term was an indeterminate period of three years to life.” Id. Petitioner did not file a petition for leave to appeal (“PLA”) in the Illinois Supreme Court.

         B. State Collateral Proceedings

         On February 21, 2014, Petitioner filed a pro se postconviction petition. Id. Petitioner argued, among other things, that appellate counsel had rendered ineffective assistance by failing to argue that trial counsel had been ineffective when he did not prevent the State from dismissing the 2007 indictment before the court ruled on defendant's motion to dismiss in No. 07 CR 9560. Id. The Circuit Court summarily dismissed the postconviction petition as ...


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