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Moseley v. Smith

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

August 19, 2019

KIMBERLY SMITH, Warden, Taylorville Correctional Center, Respondent. Finding Evidence Argument Misstatement Evidence


          Robert W. Gettleman United States District Judge.

         Petitioner Antoine Moseley is in the custody of the Illinois Department of Corrections. After a bench trial in 2009, a state court judge convicted petitioner of one count of aggravated battery and two counts of aggravated criminal sexual assault. The Illinois Appellate Court affirmed his convictions and the Illinois Supreme Court denied him leave to appeal. He fled a postconviction petition in state court. The trial court denied it, the Illinois Appellate Court summarily affirmed, and the Illinois Supreme Court again denied leave to appeal.

         Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254, arguing that his custody violates the Constitution of the United States. His habeas corpus application presents six categories of claims: (1) the State put him twice in jeopardy; (2) the State concealed evidence that was favorable to him; (3) the trial prosecutor vouched for the complaining witness's credibility and exaggerated her injuries; (4) the evidence was insufficient to convict him; (5) his lawyers at every level were ineffective; and (6) the cumulative effect of these errors deprived him of a fundamentally fair trial.

         For the reasons described below, the court denies petitioner's application for a writ of habeas corpus and declines to issue a certificate of appealability. The court holds that:

1. The State has waived the requirement that petitioner exhaust his state court remedies.
2. For all but one claim, the State has waived the defense of procedural default. The State asserts that petitioner has procedurally defaulted his claim that his lawyer was ineffective for failing to call Detective Fanning as a defense witness.
3. This court's review is de novo for: (1) petitioner's double jeopardy claim; (2) petitioner's Brady claims; (3) whether petitioner procedurally defaulted his claim that his lawyer should have called Detective Fanning; and (4) petitioner's claim that his state postconviction lawyer was ineffective.
4. This court's review is deferential under 28 U.S.C. § 2254(d) for petitioner's other claims.
5. Petitioner procedurally defaulted his claim that his lawyer should have called Fanning.
6. All of petitioner's claims fail. The claims reviewed under the deferential standard of 28 U.S.C. § 2254(d) would fail even if reviewed de novo.
7. Petitioner has not made a substantial showing that his constitutional rights were denied.


         The trial court found facts at trial and on postconviction review that petitioner has not rebutted by clear and convincing evidence. This court thus presumes those facts true, 28 U.S.C. § 2254(e)(1), and summarizes them below.

         Doe testifies that petitioner beat and sexually assaulted her

         Doe was the complaining witness.[*] She testified that on May 18, 2005, she and petitioner met and exchanged phone numbers. Petitioner called Doe that night and persuaded her to go out with him. Petitioner and his cousin, Zuke, picked her up from her home around 10 p.m. and drove to a liquor store, a pizzeria, and a bar. Petitioner and Zuke drank scotch and vodka. Petitioner tried to get Doe to drink. She drank one cup of vodka.

         Petitioner drove Zuke home. Doe asked petitioner to take her home. He tried to touch her breasts and legs. She pushed him away and got out of the car. He persuaded her to get back in, saying, “Come on. I'll take you home.” He drove to a secluded location nearby and forced her into the back seat. He punched her in the face five times and choked her with both hands around her neck. Doe was screaming, crying and trying to stop him. Petitioner said, “Shut the fuck up or I'll kill you.” He turned her onto her stomach and pulled down her pants. Hoping to stop him from raping her, she laughed and said, “I just hope you don't catch something.” She heard him open a condom wrapper. Petitioner used his penis to contact her anus and vagina.

         Doe was so scared that she urinated in the back seat. Petitioner pushed Doe out of his car face first. She hit a pole. She suffered trauma and swelling to her face, nose, cheeks, and chin; she bled from her nose, mouth, hand, and legs. A tooth was pushed back and became crooked. She lost three fingernails. DNA testing later showed that Doe left blood and at least one of her fingernails in petitioner's car.

         Doe kicked her pants of and ran. She had memorized the make and model of petitioner's car and the license plate. She called 9-1-1 from her cell phone and gave that information to the operator. Police arrived and took Doe to a hospital, where evidence was collected, including swabs from her vagina and anus. By then it was early morning on May 19, 2005. At the hospital, Doe received many calls from petitioner. He said that he was sorry and begged her not to call the police. He offered money. She asked him to bring him the purse and keys that she had left in his car-or money for the keys. Petitioner came to the hospital with a money order for $99. He was arrested later that afternoon.

         Dr. Maloney testifies that Doe's injuries were consistent with sexual assault

         Dr. William Maloney examined Doe. The State called him as an expert in emergency room medicine. Dr. Maloney testified that Doe arrived at the hospital at 3:35 a.m., distraught but alert. She said that about an hour before, she was assaulted by a man who hit her in the face and tried to penetrate her vagina and rectum. She was unsure if it was his finger or penis. She thought the man put on a condom and ejaculated, but she was not sure. She denied drinking alcohol.Dr. Maloney opined that Doe's injuries were consistent with her statement. Those injuries included nasal tenderness, soft tissue swelling, a swollen left cheek, trauma to her face, and dried blood in her nose. A pelvic exam showed a small, linear abrasion between her vagina and the anus, close to the anus, arriving from the anal area.

         Dr. Maloney took two sets of notes. One set was made electronically and had templates for patient complaints. On that set, Dr. Maloney did not check positive for laceration, discharges, or blood on the rectum. He had neglected to check positive for laceration. His other set of notes documents Doe's anal abrasion in writing and on a diagram.

         Petitioner testifies that he beat but did not sexually assault Doe

         Petitioner testified that he picked Doe up for a date. She drank beer and a pint of vodka. They kissed and tried to have intercourse, but he could not get an erection. He asked her to perform oral sex. She refused. She uttered vulgarities, poked him in the face, and urinated in his car. Petitioner punched her in the face and struck her nose with the palm of his hand, causing her nose to bleed. Blood was “faying out of her mouth.” Petitioner told Doe to “get the fuck out” of his car, grabbed her by her neck, and threw her out of the car in the rain, “face first, ” into a pole. He brought her a money order at the hospital. He did not want his wife to find out what happened.

         The trial judge convicts petitioner of battery and sexual assault

         The trial judge found that the night started as a consensual date. After petitioner drove Zuke home, he and Doe kissed for about an hour and a half. Doe drank that night but was not drunk: she gave the 9-1-1 operator details about petitioner's car, clothes, height, weight, and tattoos; all those details were accurate and corroborated by other evidence. She could not have remembered those details so accurately if she had been drunk.

         The trial judge disbelieved petitioner's testimony that Doe poked him in the face and called him names. The judge found that petitioner felt entitled to oral sex because he had spent time and money on her. He asked her for oral sex. She refused. He got angry and punched her in the face. Blood few out of her nose. He choked her with both hands around her neck and said to “shut the fuck up” or he would kill her. He pinned her and held her face down. She heard him open a condom wrapper. He penetrated her anus with his penis, causing an abrasion starting from her rectum and ending between her anus and vagina. Petitioner did not penetrate her vagina.

         The trial judge also disbelieved petitioner's testimony that he and Doe were engaged in mutual combat. Petitioner sustained no injuries-no marks, blood, bruises, or swelling. Doe's injuries were severe. Photos showed cuts and bruises on her face and red marks around her neck. Her nose was swollen and felled with dry blood. Her lips and cheeks were swollen and bloody. Her tooth was broken. Her hands and fingers were bruised and bloody, as were her legs and knees. She lost three fingernails. Her blood was found in the back of petitioner's car on the seat, window, and door handle. The judge found that Doe tried to stop petitioner from sexually assaulting her and that she struggled for her life.

         The trial judge found petitioner not guilty on eight counts and guilty on the other five. Petitioner's lawyer moved for a new trial on the five counts of conviction; the judge vacated two. Petitioner was convicted of three counts:

Count 4: aggravated criminal sexual assault causing bodily harm (rectal tearing), 720 ILCS 5/12-14(a)(2) (2003);
Count 9: aggravated criminal sexual assault while committing or attempting to commit another felony (aggravated battery), 720 ILCS 5/12-14(a)(4) (2003); and
Count 12: aggravated battery causing great bodily harm (punching Doe's face), 720 ILCS 5/12-4(a) (2003).

         The trial judge merged the sexual assault counts and sentenced petitioner to eighteen years imprisonment-fourteen years for the two counts of sexual assault and four years for the one count of aggravated battery.


         Petitioner seeks a writ of habeas corpus. When deciding a claim raised in a habeas corpus application, the federal court reviews the last state court decision “that provide[s] a relevant rationale.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). Te federal court may grant the application for habeas corpus only if the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, or was based on an unreasonable determination of facts.” Mertz v. Williams, 771 F.3d 1035, 1039-40 (7th Cir. 2014) (quotation marks omitted); 28 U.S.C. § 2254(d)(1)-(2). If for a given claim there has been no decision on the merits, the federal habeas court applies the pre-Anti-Terrorism and Effective Death Penalty Act standard-de novo. Cafey v. Butler, 802 F.3d 884, 894 (7th Cir. 2015); 28 U.S.C. § 2243.

         Because petitioner has no lawyer, the court construes his pleadings liberally. Wyatt v. United States, 574 F.3d 455, 459 (7th Cir. 2009). Petitioner's application for a writ of habeas corpus presents 36 claims. The State agrees that all 36 claims have been exhausted and thus expressly waives the requirement that petitioner exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A); 28 U.S.C. § 2254(b)(3); see Eichwedel v. Chandler, 696 F.3d 660, 671 (7th Cir. 2012). And because the State asserts the defense of procedural default against only one of petitioner's claims, it has otherwise waived that defense. See Bonner v. DeRobertis, 798 F.2d 1062, 1066 n.3 (7th Cir. 1986).

         Petitioner's claims fall into six categories: (1) double jeopardy; (2) failure to disclose favorable evidence; (3) prosecutorial misconduct; (4) sufficiency of the evidence; (5) ineffective assistance of counsel; and (6) cumulative error. The last state court decision providing a relevant rationale is the postconviction court's denial of relief under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-2. The court holds that all of petitioner's claims fail. Whether reviewed de novo or under the deferential standards of 28 U.S.C. § 2254(d), none of petitioner's claims entitles him to a writ of habeas corpus.

         1 Double jeopardy (Claim 1)

         Petitioner first claims that the Fifth Amendment's double jeopardy clause barred the State from prosecuting him on Count 4 of the indictment. Counts 3 and 4 charged petitioner with committing aggravated criminal sexual assault, causing bodily harm. ILCS 720 5/12-14(a)(2). The counts differed in the bodily harm alleged: Count 3 alleged “a broken nose and facial contusions”; Count 4, “rectal tearing.” The trial judge acquitted on Count 3 and convicted on Count 4. Petitioner argues that once the trial judge acquitted him on Count 3, the double jeopardy clause barred the State from prosecuting him on Count 4.

         Te court reviews petitioner's double jeopardy claim de novo. See Cafey, 802 F.3d at 894 (7th Cir. 2015). No. state court ever decided petitioner's double jeopardy claim on the merits. The state postconviction court rejected it “as a result of sheer inadvertence, ” not “based on the intrinsic right and wrong of the matter.” Johnson v. Williams, 568 U.S. 289, 302-03 (2013). It held that petitioner's double jeopardy claim “was made on direct appeal, so is res judicata and frivolous as it has no basis in law or fact.” But the postconviction court's premise was incorrect. The Illinois Appellate Court on direct appeal did not reject a double jeopardy claim; it rejected a claim that the verdicts on Counts 3 and 4 were legally inconsistent under state law. See Illinois v. Moseley, No. 1-09-1452, at ¶¶ 28-30, 2011 WL 9692681, at *6 ( Ill. App. 2011).

         Petitioner's double jeopardy claim fails on de novo review. The double jeopardy clause barred the State from putting him “twice . . . in jeopardy of life or limb.” It did not bar the State from prosecuting him under alternative theories in the same trial. See Schad v. Arizona, 501 U.S. 624, 631-32 (1991). The State was free to argue that petitioner caused both a broken nose and rectal tearing. What the double jeopardy clause barred was “relitigation between the same parties of issues actually determined at a previous trial . . . .” Ashe v. Swenson, 397 U.S. 436, 441-42 (1970) (emphasis added). There was no relitigation and no previous trial. The State presented two theories in a single trial. That single trial did not put petitioner twice in jeopardy. See Williams v. Warden, 422 F.3d 1006, 1010-12 (9th Cir. 2005) (rejecting a similar double jeopardy claim).

         2 State's failure to disclose favorable evidence (Claims 3 and 4)

         Petitioner next claims that the State failed to disclose two oral statements. A criminal defendant's right to due process of law requires the State to disclose favorable evidence “material to the defendant's guilt or punishment.” Sims v. Hyatte, 914 F.3d 1078, 1087 (7th Cir. 2019); Brady v. Maryland, 373 U.S. 83, 87 (1963). Favorable evidence includes impeachment evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). Evidence is material when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. The State need not disclose “who it plans to call to testify” or “what evidence it plans to present.” United States v. Agyemang, 876 F.2d 1264, 1270 (7th Cir. 1989).

         Citing Brady, petitioner claims that the State failed to disclose two oral statements: (1) Dr. Maloney's statement that his first set of physician's notes was incorrect; and (2) Doe's statement that she was “certain” that petitioner penetrated her anus and vagina with his penis. Te court holds that neither of petitioner's Brady claims entitles him to a writ of habeas corpus.

         2.1 Dr. Maloney's oral statement that his physician's notes were incorrect

         Petitioner first claims that the State failed to disclose a statement made by Dr. Maloney. After examining Doe, Dr. Maloney completed two sets of physician's notes. One set had preprinted patient complaints that he could mark positive or negative-the doctor testified that he “erroneously did not check the laceration one and make it positive.” He documented Doe's abrasion in the other set of notes. On re-cross examination, Dr. Maloney testified that he and the prosecutor had discussed the discrepancy:

Q. Did you tell the Assistant State's Attorney in this case, Ms. Welkie, that in fact you had come upon this epiphany that you had made a mistake with respect to the reports generated on May 19th, ‘05, that they were incorrect?
A. We discussed it. And I told her I thought it was incorrect.

         After the doctor finished testifying, petitioner's lawyer objected to what he believed was “a clear discovery violation, ” stating that he “never received . . . anything memorializing or codifying the fact that a State's witness had been interviewed . . . with respect to the preparation of his notes . . . .” The prosecutor responded that there were no such notes because her conversation with Dr. Maloney happened that morning. The trial judge declined to find a discovery violation. She reasoned that the conversation's timing was irrelevant: petitioner's lawyer had received the notes years before and “had ample time to try to clear that up with him [Dr. Maloney] before today.”

         Petitioner claims that the State violated his right to due process by failing to disclose Dr. Maloney's oral statement to the prosecutor. His right to due process was violated if the doctor's statement was: (1) favorable to the defense; (2) material; and (3) disclosed too late for the defense to make use of it. Sims, 914 F.3d at 1087 (7th Cir. 2019); United States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996). Because the state postconviction court inadvertently did not address this claim, this court reviews de novo. See Cafey, 802 F.3d at 894 (7th Cir. 2015). Petitioner's Brady claim fails on de novo review.


         Petitioner argues that Dr. Maloney's statement was undisclosed and would have affected the trial. Yet he admits that he “has never argued that Dr. Maloney's oral statement was favorable to the defense”-apparently not understanding that he must do so to make out a Brady claim. Tat is why it fails. Dr. Maloney's oral statement was not favorable to the defense. The doctor's first set of notes was ...

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