Dunlap v. Jackson
Filing
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OPINION entered by Judge Richard Mills on 5/12/2014. The Petition of Joseph Teen Dunlap for a Writ of Habeas Corpus, d/e 1 is DENIED. The Motion to Amend, d/e 29 is DENIED AS MOOT. The Court declines to issue a certificate of appealability. (MAS, ilcd)
E-FILED
Tuesday, 13 May, 2014 11:19:27 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOSEPH TEEN DUNLAP,
Petitioner,
v.
DONALD GAETZ,
Respondent.
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Case No. 10-cv-3293
OPINION
RICHARD MILLS, U.S. District Judge:
Pending is the Petition of Joseph Teen Dunlap for a Writ of Habeas
Corpus under 28 U.S.C. § 2254. For the following reasons, the Petition is
denied.
I.
In January 2006, Mary Hughes was a drug addict, and her drug of
choice was crack cocaine. Her life was spinning out of control. She was on
probation for drug offenses and there was a pending petition to revoke her
probation.
On January 12, 2006, Hughes was arrested by the Illinois State Police.
Between that date and February 6, 2006, she worked as a confidential
source for the State Police. She apparently participated in controlled
purchases during that time period, and was paid between $200 and $300
for her work. This payment was made in January 2006. After February 6,
2006, the Illinois State Police was unable to maintain contact with Hughes,
and stopped using her as a confidential source due to difficulty maintaining
contact with her.
During February 2006, Hughes began working for the Bloomington
Police Department as a confidential source.
The Bloomington Police
Department (BPD) contacted the State Police to find out more about her
previous work as a confidential source, and learned that the State Police
was not interested in using her any more because they could not maintain
contact with her.
No reference to her work for the State Police was
included in the investigative reports maintained by BPD.
On March 22, 2006, the BPD arranged for Hughes to make a series
of controlled purchases of heroin from Petitioner Dunlap. BPD officers
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photocopied the currency that would be used as buy money, recording the
serial numbers. Hughes engaged in three controlled purchases during that
day.
Later in the day, officers executed a search warrant at the apartment
where the controlled purchases had taken place. Petitioner Dunlap ran out
of the apartment building's back exit.
Officers discovered a baggy
containing heroin in a back staircase leading to the back exit. When
Dunlap was searched, officers found $400 in his pocket. Serial numbers on
the bills matched those of the pre-recorded buy money.
On March 29, 2006, a grand jury charged Dunlap with two counts of
unlawful possession of a controlled substance with intent to deliver, two
counts of unlawful possession of a controlled substance, and three counts
of unlawful delivery of a controlled substance. In June 2006, Dunlap was
tried in the Circuit Court of McLean County, Illinois.
It appears that the BPD never informed the prosecutors that Hughes
had worked as a confidential source for the State Police prior to working for
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their department. At the trial, the lead officer testified that his department
had not paid Hughes for her work as a confidential source.
Hughes also testified at trial regarding her activities as a confidential
source. During cross-examination, she was asked the following question:
"during your work as a confidential source from February to whenever, have
the police given you any money in return for your services?" Hughes
responded in the negative.
She was also asked the following question: "What else do you do for
money?" She testified that she had worked at J & J Concessions. She was
then asked "What else have you done over the last year?" Hughes testified
that she had worked "doing hair," and had worked as an exotic dancer.
During the trial, the jury learned that Hughes had been arrested on
January 12, 2006, February 2, 2006, and May 27, 2006, and that she was
facing up to three years on a probation violation, and up to six years related
to the May 2006 arrest. In addition, it was revealed that Hughes had
regularly used marijuana and crack cocaine in violation of her confidential
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source agreement, and that she had smoked crack cocaine with Dunlap
during a controlled purchase on March 22, 2006.
On June 14, 2006, the jury found Dunlap guilty on all counts.
Following the trial, the defense learned that Hughes had previously worked
as a confidential source for the State Police. On August 18, 2006, the
defense filed a post-conviction motion requesting a judgment of acquittal,
or alternatively, a new trial. In the motion, the defense argued that they
had not been informed of her confidential work for the State Police, and
that Hughes' trial testimony was inconsistent with these newly-discovered
facts. The defense asserted that by failing to disclose this other confidential
work, the prosecution had committed violations of the standards for
disclosing evidence set out in Brady v. Maryland, 373 U.S. 83 (1963).
A hearing was held on September 25, 2006. At the hearing, a State
Police officer testified regarding Hughes' work as a confidential source.
Although the officer initially characterized Hughes as "unreliable," upon
further questioning by the court, he explained that Hughes' confidential
source work was good, but that she would not answer her phone, or return
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messages, and they had difficulty contacting her. There was no evidence
that BPD officers were aware that Hughes had been paid by the State
Police.
The court ruled that Hughes had not lied. It noted that the question
regarding receiving money as a confidential source specifically asked about
being paid for work from February 2006 onward, when she was exclusively
working for the BPD. The court also concluded that the question about
what she had done for money over the last year probably was interpreted
to reference actual employment, and that her response would not have been
improper.
The court also found that the evidence established that the
prosecutors were not informed of Hughes' work for the State Police until
after the trial had concluded.
Finally, the court concluded that had this additional information been
available it would not have impacted the outcome of the trial, because it
merely showed that Hughes had worked as a confidential source for the
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State Police for a month, and that nothing about her work for the State
Police would have caused any serious impeachment. The court noted in its
oral ruling that Ms. Smith was already significantly impeached and that the
evidence against Dunlap was significant:
Miss Hughes in this case was significantly impeached with
the fact that she was in most respects a fairly miserable human
being with a drug habit who had violated her confidential
source agreement, who had used illegal drugs and been arrested
and had even been high and used cocaine during busts, and for
the life of me I can't really see how questioning her about these
other few buys with the State Police Task Force would have
done anything that would have made her testimony any more
incredible.
The problem with this case from the Defendant's
viewpoint is not that he was not able to significantly impact the
credibility of this witness, which I believe Mr. Lewis did an
excellent job bringing out every point about that. The problem
is, as the State has pointed out in its argument, is the
corroboration of Miss Hughes' testimony that is available in the
evidence in this case, and without that corroboration, I don't
think we would be sitting here today because I think with the
evidence that was presented, the jury wouldn't have believed her
without substantial corroboration and the fact is that this is
basically a buy/bust situation, and the Defendant is caught
running from scene and he has the drugs in his pocket and the
drugs are thrown down on the path he left, and everything
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involved about the situation is just substantial corroboration for
what Miss Hughes said and was able to overcome the obvious
weaknesses in her testimony and that being able to ask her
about a couple of other buys for which she got a couple hundred
dollars back in January, how that would have impacted the
verdict in this case, I just can't see that it would have, and so
the motion is going to be denied.
Although the defendant was convicted of seven counts, the trial court
only sentenced him on five counts, imposing one sixteen-year sentence, and
four six-year sentences, all to run concurrently.
Dunlap filed a direct appeal, but did not raise any issue related to
Hughes' testimony or her work for the State Police. Instead, he alleged that
the trial court had erred in failing to give him monetary credit for the 191
days he spent in pretrial custody. The Appellate Court of Illinois, Fourth
District, affirmed the judgment, but directed the trial court to amend the
sentencing order to reflect a monetary credit. No further action was taken
on direct appeal.
On October 14, 2008, Dunlap filed a state post-conviction petition
in the trial court. He alleged that the prosecution had violated Brady
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because they had not disclosed Hughes' work as a confidential source for
the State Police. He further alleged that the prosecution had violated the
principles set out in Napue v. Illinois, 360 U.S. 264 (1959), because they
had failed to correct Hughes' testimony that was allegedly false. Finally,
Dunlap alleged that his appellate attorney had been ineffective for failing
to raise these issues on direct appeal.
On January 7, 2009, the post-conviction petition was dismissed by the
Circuit Court of McLean County in a four-page order. The court ruled that
the Brady and Napue issues raised were barred by the doctrines of res
judicata and waiver, because the defendant had failed to raise them in his
direct appeal. Regarding the effectiveness of appellate counsel, the court
concluded that failure to raise these issues did not fall below an objective
standard of reasonable representation because there was no reasonable
probability that raising the issues on appeal would have changed the
outcome.
The defendant appealed the decision, raising more or less the same
issues. On May 28, 2010, the Appellate Court of Illinois, Fourth
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District, issued a sixteen-page order affirming the trial court decision. That
court ruled as follows: "Here, defendant filed a direct appeal but failed to
raise any issue with respect to the State's disclosure of information relating
to Hughes. As a result, that claim has been forfeited." The court then
rejected Dunlap's claims on the merits, essentially adopting the reasoning
and conclusions of the trial court.
Dunlap filed a petition for leave to appeal with the Supreme Court of
Illinois, which was denied on September 29, 2010.
It does not appear that Dunlap ever challenged his conviction or
sentence in the Supreme Court of the United States.
Dunlap initiated this action on November 10, 2010, raising the Brady
and Napue claims. The case was initially assigned to then-Chief Judge
Michael P. McCuskey. Judge McCuskey then assigned the case to U.S.
District Judge Sue E. Myerscough. Judge Myerscough had participated in
the underlying state appellate litigation as a justice of the Appellate Court
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of Illinois, and recused herself. The case was then transferred to the
undersigned.
II.
Dunlap's claims are procedurally defaulted, because the Appellate
Court of Illinois rejected his claims on procedural grounds. The U.S.
Court of Appeals for the Seventh Circuit has explained as follows:
Before a federal court can consider a petition for habeas corpus,
a petitioner must satisfy several procedural requirements. If the
claim comes from the Illinois state courts, the petitioner must
have presented each claim in the habeas petition to the Illinois
Appellate Court and to the Illinois Supreme Court in a petition
for discretionary review. As part of this requirement, a
petitioner must have fairly presented both the operative facts
and legal principles that control each claim to the state
judiciary. A petitioner's failure to fairly present each habeas
claim to the state's appellate and supreme court in a timely
manner leads to a default of the claim, thus barring the federal
court from reviewing the claim's merits. Also, a federal court
may not review a claim which was presented to the state courts
but which was rejected on an independent and adequate state
ground. A state law ground that provides the basis for a state
court decision is independent when the court actually relied on
the procedural bar as an independent basis for its disposition of
the case. A state law ground is adequate when it is a firmly
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established and regularly followed state practice at the time it
is applied.
Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010) (citations and
quotation marks omitted); see also Coleman v. Thompson, 501 U.S. 722,
750 (1991).
Dunlap's failure to raise his Brady and Napue claims on direct appeal
meant that these claims were rejected on the basis of waiver or forfeiture
when he raised them in his post-conviction proceedings.
This state
procedural bar has been held to be an independent and adequate state
ground for the purposes of procedural default. See Kaczmark v. Rednour,
627 F.3d 586, 592 (7th Cir. 2010).
Default can only be excused if a petitioner “can establish cause and
prejudice, or establish that the failure to consider the defaulted claim will
result in a fundamental miscarriage of justice.” Promotor v. Pollard, 628
F.3d 878, 887 (7th Cir. 2010) (citing Dretke v. Haley, 541 U.S. 386, 388
(2004).
The Court of Appeals has explained as follows:
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Cause for a default is ordinarily established by showing that
some type of “external impediment” prevented the petitioner
from presenting his claim. Prejudice is established by showing
that the violation of the petitioner’s federal rights worked to his
actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions.
Promotor, 628 F.3d at 887 (citations and quotation marks omitted).
Petitioner has not shown cause and prejudice for this default. The
Court finds that the procedural default will not result in a fundamental
miscarriage of justice.
The claims are denied.
III.
In the alternative, the Court would reject these claims on the
merits. The Court agrees with the reasoning and conclusions of the
Circuit Court of McLean County and the Appellate Court of Illinois,
Fourth District, in examining the merits of Dunlap's claims.
The prosecution was unaware of Hughes' activities with the State
Police at the time of trial. It does not appear that Hughes made any
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false statement during her testimony. Rather, she answered specific
questions asked her during cross-examination. In any event, had the
information concerning Hughes' work with the State Police been known,
it would not have impacted the outcome of the case.
Hughes had already been impeached significantly, but her
testimony about the controlled transactions was corroborated by the
other evidence in the case. Dunlap ran from the apartment building
during the raid, a baggie of heroin was found along the path of his
retreat, and the serial numbers and amount of money found in his
pocket matched the funds used by Hughes during the last controlled
purchase. The evidence against Dunlap was overwhelming.
IV.
“The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” Rule 11(a), Rules
Governing Section 2254 Proceedings. “A certificate of appealability may
issue . . . only if the applicant has made a substantial showing of the
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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “An applicant
has made a substantial showing where reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Arredondo v. Huibregste,
542 F.3d 1155, 1165 (7th Cir. 2000) (quotation marks omitted).
Reasonable jurists would not dispute that Dunlap is not entitled to
relief. Accordingly, the Court will not issue a certificate of appealability.
If Dunlap wishes to appeal this Court’s ruling, he must seek a certificate
of appealability from the Court of Appeals under Federal Rule of
Appellate Procedure 22.
V.
Ergo, the Petition of Joseph Teen Dunlap for a Writ of Habeas
Corpus [d/e 1] is DENIED. The Motion to Amend [d/e 29] is DENIED
AS MOOT.
The Clerk is directed to notify the Petitioner.
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The Court declines to issue a certificate of appealability.
IT IS SO ORDERED.
ENTER: May 12, 2014
FOR THE COURT:
/s/ Richard Mills
Richard Mills
United States District Judge
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