Meyers v. Hutchinson

Filing 19

OPINION: The Petition of Joshua Meyers for Writ of Habeas Corpus under 28 U.S.C. § 2254 1 is DENIED. The Amended Petition for Writ of Habeas Corpus 16 is DENIED. Pursuant to Rule 11(a) of the Rules Governing Habeas Corpus Cases, the Court denies issuance of a certificate of appealability. The Clerk will enter Judgment and terminate this case. SEE WRITTEN OPINION. Entered by Judge Richard Mills on 09/20/2018. (SKN, ilcd)

E-FILED

Thursday, 20 September, 2018 11:11:46 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

JOSHUA MEYERS,

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Petitioner,
v.
JACQUELINE LASHBROOK,
Respondent.

Case No. 17-3011

OPINION
RICHARD MILLS, United States District Judge:
Joshua Meyers seeks a Writ of Habeas Corpus under 28 U.S.C. § 2254.
The Petition is denied.
I.

BACKGROUND

The Petitioner is in the custody of the Illinois Department of Corrections,
following a judgment entered by the Circuit Court of Sangamon County sentencing
him to 60 years imprisonment for first degree murder.
A. Evidentiary Motions and Trial Testimony
At trial, the Petitioner claimed he shot and killed Tyrone Jones in selfdefense. Two issues that arose at trial concerned whether (1) Petitioner could offer
testimony that the victim had been a suspect in the shooting death of Chris
Pudschun, which occurred only two weeks before Jones was killed; and (2) the
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prosecution could introduce evidence that Petitioner was involved in
manufacturing methamphetamine and was arrested following a stand-off with
police.
As for the first issue, the trial court prohibited the Petitioner from
introducing evidence that Jones had been considered a suspect, reasoning that the
circumstances of Pudschun’s death were unknown. However, the court held the
Petitioner could testify that Jones had bragged to him about killing Pudschun and,
if Petitioner so testified, could corroborate that Pudschun was in fact killed. The
Petitioner did not offer such testimony.
The trial court held that evidence concerning the circumstances of the
Petitioner’s arrest and his involvement in manufacturing methamphetamine was
relevant to the Petitioner’s consciousness of guilt and his motive for shooting
Jones, respectively. At trial, the prosecution presented testimony that police
attempted to execute a warrant for the Petitioner’s arrest several days after Jones
was killed but he refused to cooperate, resulting in a six-hour standoff. The police
officers were reluctant to enter and attempted to negotiate a peaceful surrender.
Eventually, the Petitioner came outside and was subdued with a beanbag gun.
The record shows that most of the events leading up to Jones’s death were
undisputed at trial. On the evening of August 3, 2003, Jones and Don Molton set
out to steal pills from pharmacies for the Petitioner to use in manufacturing
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methamphetamine. Initially, they stole the wrong pills. The Petitioner then drove
the two to another pharmacy for a second attempt, before abandoning Jones and
Molton there. Jones, accompanied by Molton, went to the Petitioner’s house and
angrily confronted him there. Jones was outside when the Petitioner came onto the
porch and shot him multiple times.
There was conflicting testimony as to what occurred in the moments just
before that shooting. Molton testified that Petitioner shot Jones without
provocation and continued shooting after Jones turned and ran. Brian Bauman,
who lived at the house with the Petitioner, testified Jones had started to approach
the Petitioner aggressively and reached down toward his belt or waistline before
the Petitioner pulled a pistol from his belt and shot him. The Petitioner, in his
statement to police and his trial testimony, claimed that Jones had made a move
towards him and put his hand in his pocket. However, Bauman and the Petitioner
both acknowledged they did not see Jones with a weapon at the time of the
altercation.
The medical examiner testified Jones suffered two gunshot wounds, one to
his abdomen and one to his back.
The jury convicted the Petitioner of first degree murder. The Petitioner’s
60-year sentence included a 25-year enhancement for discharging a firearm.

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B. Direct Appeal
The Petitioner filed a direct appeal. His primary issues on appeal were that
(1) the admission of evidence that he was engaged in methamphetamine production
violated Illinois law; and (2) the prosecutor erred in closing argument. The Illinois
Appellate Court affirmed his conviction and sentence.
The Petitioner filed a petition for leave to appeal (PLA) to the Illinois
Supreme Court, reiterating the same claims. The PLA was denied on May 31,
2017.
The Petitioner filed a petition for writ of certiorari that the United States
Supreme Court denied on November 5, 2007. See Meyers v. Illinois, 552 U.S.
1016 (2007).
C. State Post-Conviction Proceedings
On March 31, 2008, the Petitioner filed a post-conviction petition pursuant
to 725 ILCS 5/122-1 in the state trial court. The petition was later amended
through counsel. The Petitioner raised the following issues: a) his statement was
obtained in violation of his right to counsel, and trial counsel was ineffective for
failing to raise this issue; b) the prosecution violated Brady v. Maryland, 373 U.S.
83 (1963), by failing to disclose that two detectives involved in Petitioner’s case,
Jim Graham and Paul Carpenter, were allegedly being investigated for misconduct
in unrelated cases; and c) appellate counsel was ineffective for failing to argue that
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the trial court erred in excluding evidence that Jones was a suspect in the
investigation into Pudschun’s death. Initially, the Petitioner’s pro se petition
asserted that his sentence enhancement violated the rule in Apprendi v. New Jersey,
530 U.S. 466 (2000). However, the amended petition withdrew that argument and
asserted only the enhancement violated state law.
The trial court dismissed the petition in March of 2014.
The Petitioner appealed and appointed counsel filed a brief arguing that
post-conviction counsel had provided unreasonable assistance by adopting the
Petitioner’s Brady claim without submitting additional support for it. The
counseled brief asked only that the case be remanded “for compliance with Illinois
Supreme Court Rule 651(c),” which sets out the duties of appointed postconviction counsel.
After counsel’s brief was filed, the Petitioner moved to file a supplemental
pro se brief that incorporated the remaining issues raised in his post-conviction
petition. The appellate court denied his request and affirmed the judgment of
dismissal in March OF 2016.
The Petitioner filed a pro se PLA, arguing that post-conviction counsel
performed unreasonably by failing to adequately support this claim. The Illinois
Supreme Court denied the PLA on September 28, 2016.

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D. Federal habeas petition
The habeas petition raises several grounds: (1) ineffective assistance of trial
counsel based on counsel’s failure to challenge the admission of the Petitioner’s
statement; (2) the prosecution violated the Petitioner’s due process rights and
Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose that investigating
detectives Jim Graham and Paul Carpenter were being investigated for misconduct
in other cases; (3) the Petitioner’s trial was unfair and due process rights were
violated because of certain trial court rulings: a) excluding evidence that victim
Tyrone Jones was a suspect in the shooting death of Chris Pudschun two weeks
earlier (claim three); and b) admitting evidence that Petitioner was engaged in
methamphetamine production (claim six); (4) the enhancement of Petitioner’s
sentence based on his discharge of a firearm violated Apprendi v. New Jersey, 530
U.S. 466 (2000); and (5) appellate counsel was ineffective for failing to raise
claims one, three and five.
On May 26, 2017, the Court received the Petitioner’s motion to supplement
his habeas petition with an additional claim that the prosecutor erred in closing
argument. The Petitioner apparently mailed the document on May 19, 2017. In a
docket entry of May 30, 2017, the Court granted the motion.
II.

DISCUSSION

A. Petitioner’s Supplemental Claim
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The United States Supreme Court has held that “[a]n amended habeas
petition . . . does not relate back (and thereby escape AEDPA’s one-year time
limit) when it asserts a new ground for relief supported by facts that differ in both
time and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S.
644, 650 (2005).
The limitations period expired on May 7, 2017, or twelve days before the
Petitioner mailed the motion to supplement his habeas petition. Accordingly, it
was untimely. The Petitioner claims that the supplemental claim relates back in
that it is included among the due process violations, all of which cumulatively
prejudiced him at trial. However, the Court finds that the supplemental claim
regarding prejudicial evidence offered by the prosecution is its own “stand alone”
claim and not one which is dependent on other claims. Accordingly, the claim is
untimely and the Petitioner has provided no basis for equitable tolling.
B. Procedural Default
A petitioner seeking relief under § 2254 must properly exhaust his state court
remedies. 28 U.S.C. § 2254(b). “Under “Section 2254’s exhaustion requirement,
the petitioner must assert his federal claim through one complete round of statecourt review, either on direct appeal or in post-conviction proceedings.” Pole v.
Randolph, 570 F.3d 922, 934 (7th Cir. 2009). This includes filing a PLA in the
Illinois Supreme Court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845-46 (1999).
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The petitioner must present the operative facts and the legal principles pertaining
to each claim. See Pole, 570 F.3d at 934.
Procedural default due to failure to exhaust a claim in state court can result
in two primary ways. A claim that is not “fairly presented” “throughout at least
one complete round of state-court review, whether on direct appeal of his
conviction or in post-conviction proceedings” may be procedurally defaulted.
Clemons v. Pfister, 845 F.3d 816, 819 (7th Cir. 2017). “Procedural default can
also occur if the state court rejects a federal claim based on a state procedural rule
that is both independent of the federal question and adequate to support the
judgment.” Id.
(1) Claims that should have been Raised on Direct Appeal
The failure in a post-conviction proceeding to raise a claim which could
have been addressed on direct appeal constitutes procedural default, resulting in
forfeiture of those claims. See People v. Erickson, 161 Ill.2d 82, 87 (1994).
It is apparent that three of the Petitioner’s habeas claims are based on the
trial record, including (1) his claim that trial counsel was ineffective for failing to
argue that his statement was obtained in violation of his right to counsel; (2) his
claim that the trial court erred in excluding evidence that Jones was a suspect in a
shooting; and (3) his Apprendi claim. Because the state courts would hold these
claims to be procedurally barred, the Court concludes that they are defaulted.
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Additionally, the record shows that Petitioner failed to exhaust these issues
in his post-conviction proceedings. Although the Petitioner also raised an
Apprendi claim in his pro se post-conviction petition, he withdrew that argument in
his amended petition and it was never presented to the state court for adjudication.
The Petitioner claimed in his post-conviction petition that trial counsel was
ineffective in not arguing that his statement was obtained in violation of his right to
counsel. However, he did not pursue that issue in his post-conviction appeal.
Additionally, the Petitioner claimed in his post-conviction petition that appellate
counsel was ineffective for failing to challenge the exclusion of evidence that
Jones was a suspect in a shooting. Because he failed to properly pursue a claim
that appellate counsel was ineffective in his post-conviction appeal, the Petitioner
has also defaulted that issue.
(2) Habeas Claims related to Arguments addressed on Direct Appeal
Two of the Petitioner’s claims relate to issues he raised on direct appeal. In
state court, the Petitioner challenged the admission of evidence concerning
methamphetamine production based solely on state evidentiary law. He did not
argue that the trial court violated federal constitutional law. The Petitioner also
asserts here—as he did on direct appeal--that the prosecutor erred in closing
arguments. Both of those claims are defaulted.

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The Petitioner contends here that the admission of evidence concerning
methamphetamine production violated his right to due process. He did not raise
that issue in state court. Rather, the Petitioner challenged the admission of that
evidence based only on state evidentiary law. The Petitioner was required to raise
the issue in state court in order for it to be preserved for federal habeas review. See
Duncan v. Henry, 513 U.S. 364, 366 (1995) (“If a habeas petitioner wishes to
claim that an evidentiary ruling at a state court trial denied him the due process of
law guaranteed by the Fourteenth Amendment, he must say so, not only in federal
court, but in state court.”). The Court concludes that, by failing to raise a federal
constitutional claim in state court, the Petitioner has defaulted his claim of federal
constitutional error in admitting the evidence of methamphetamine production.
As noted, the Petitioner did assert on direct appeal that the prosecutor erred
in closing arguments. However, the Illinois Appellate Court held that it was
procedurally barred. The claim is defaulted here because Illinois law requires the
Petitioner to object to the arguments contemporaneously and to pursue the issue
through a post-trial motion. See People v. Enoch, 122 Ill.2d 176, 186 (1988).
Because the Petitioner did neither, the state appellate court found that the issue was
forfeited on appeal. Accordingly, this Court concludes that the claim relating to
the prosecutor’s closing argument is also defaulted here.

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(3) Habeas Claims in Post-Conviction Petition
In his post-conviction petition, the Petitioner raised claims that could not
have been raised on direct appeal, including his Brady claim and his ineffective
assistance of counsel claim. In his counseled brief, however, the Petitioner argued
only that post-conviction counsel provided “unreasonable assistance” under state
law by failing to offer further support for his Brady claim. The Petitioner sought to
remedy only an alleged state law violation and requested a remand to develop the
record on his Brady claim. By challenging only post-conviction counsel’s
performance, the Petitioner has forfeited review of the trial court’s ruling on the
merits of his claims. See People v. Cotto, 2016 IL 119006, 51 N.E.3d 802, 811
(2016).
For similar reasons, the Court finds that the Brady claim embedded in the
post-conviction counsel argument was not “fairly presented” to the Illinois
Appellate Court for purposes of federal habeas review. “[A]n assertion that one’s
counsel was ineffective for failing to pursue particular constitutional issues is a
claim separate and independent of those issues.” Lewis v. Sternes, 390 F.3d 1019,
1026 (7th Cir. 2004). If a petitioner “fully set[s] out the factual legal bases” for the
embedded claim and “provide[s] the state courts with the opportunity to address
the underlying issue,” then the issue is not procedurally defaulted. However, the
Petitioner did not do that with his Brady claim.
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The Petitioner did attempt to file a pro se supplemental brief in the Illinois
Appellate Court which included all of his post-conviction claims. However, this
did not avoid a default. Although the Petitioner stated he wanted to supplement
and not supplant the brief then on file, Illinois courts prohibit that type of “hybrid
representation” in which a defendant files a pro se brief to supplement counsel’s
filing. See Clemons v. Pfister, 845 F.3d 816, 819-20 (7th Cir. 2017). The Court
concludes that, because the Illinois Appellate Court’s rejection of a pro se
supplemental brief is based on an adequate and independent state ground, see id. at
820, the claims in the Petitioner’s rejected pro se filing are procedurally defaulted.
(4) Whether Petitioner can show Cause for Defaults
“An adequate and independent state law ground does not, however,
absolutely preclude review of a procedurally defaulted claim during federal habeas
review.” Promotor v. Pollard, 628 F.3d 878, 885 (7th Cir. 2010). There is an
equitable exception if the Petitioner establishes “cause and prejudice for the
default” or establish that a fundamental miscarriage of justice will ensue if the
defaulted claim is not considered. Id.
In certain instances, counsel’s ineffectiveness may provide cause to excuse a
default. “Meritorious claims of ineffective assistance can excuse a procedural
default.” Richardson v. Lemke, 745 F.3d 258, 272 (7th Cir. 2014). However,
those claims must be preserved and properly exhausted. See id. Because he
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defaulted his appellate-counsel claim on post-conviction appeal, the Petitioner
cannot rely on appellate counsel’s alleged deficiency to excuse the defaults that
occurred on direct appeal.
The Petitioner’s assertion that appellate counsel was ineffective would be
without merit. Appellate counsel raised five issues on appeal. The Petitioner
cannot establish that his defaulted claims are “clearly stronger,” as he must do to
establish deficient performance. See Makiel v. Butler, 782 F.3d 882, 898 (7th Cir.
2015).
Additionally, because the Petitioner has no constitutional right to an attorney
in a state post-conviction proceeding, he cannot claim the ineffective assistance of
counsel in such proceedings. See Coleman v. Thompson, 501 U.S. 722, 752-53
(1991). Accordingly, the Petitioner has no viable claim that the alleged deficient
performance of his post-conviction counsel excuses the default of his postconviction claims.
C. Merits of claims
(1)
Assuming that the Petitioner’s Brady claim was not procedurally defaulted,
the Court finds that it is nevertheless without merit. Because the Illinois Appellate
Court adjudicated the merits of the Brady claim when concluding that postconviction counsel performed adequately, the Petitioner must show that its
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adjudication was contrary to, or an unreasonable application of, clearly established
Supreme Court precedent, or unreasonable in light of the facts. See 28 U.S.C. §
2254(d). Any factual determination by the state court relevant to the claim is
presumed to be correct and must be rebutted by clear and convincing evidence.
See 28 U.S.C. § 2254(e)(1).
Under Brady, the prosecution has an “affirmative duty” to disclose evidence
that is favorable to the defendant and material to guilt or punishment. See United
States v. Bland, 517 F.3d 930, 933-34 (7th Cir. 2008). “Evidence is material if
there exists a reasonable probability that its disclosure to the defense would have
changed the result of the trial.” Id. at 934 (internal quotation marks omitted).
The state court determined, factually, that there was no Brady material for
the State to disclose. Although Detectives Graham and Carpenter eventually were
found guilty of misconduct and disciplined for their behavior in other cases years
after the Petitioner’s conviction, there were only rumors and allegations as to the
detectives’ misconduct at the time of the Petitioner’s trial. Vague allegations like
that would not have been admissible to impeach their credibility at trial. Based on
the evidence which existed at the time of the Petitioner’s post-conviction appeal,
the Court finds that the Illinois Appellate Court’s determination was particularly
reasonable. The Court further concludes that evidence concerning those potential
investigations was not Brady material.
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(2)
The Court also finds that, even assuming the argument regarding the
admission of evidence of methamphetamine production was preserved, the claim is
without merit. The Illinois Court held on direct appeal that there was no error,
particularly prejudicial error, in admitting evidence concerning the Petitioner’s
involvement in methamphetamine production, including evidence that Petitioner
was, at the time of his arrest, present at a house filled with items associated with
methamphetamine manufacturing. That “evidence was relevant to [the
Petitioner’s] consciousness of guilt, the circumstances of his arrest, and his motive
in shooting” Jones. There also was little risk of prejudice, given that Petitioner
admitted that he shot Jones. The Petitioner’s state of mind was a critical issue.
That turned on whether jurors believed the Petitioner’s claim that Jones acted
aggressively in the moments before he shot Jones, or Molton’s testimony to the
contrary. Because the evidence concerning methamphetamine manufacturing was
not particularly relevant to that issue, the Court concludes the claim—if
preserved—fails because the Petitioner cannot show prejudicial error.
III.

CONCLUSION

For the foregoing reasons, the Court finds that Petitioner’s claims are either
time-barred or procedurally defaulted. Even if the claims were not procedurally
barred, the Court concludes they are meritless.
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Pursuant to Rule 11(a) of the Rules Governing Habeas Corpus Cases under
Section 2254, the Court must “issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability, a petitioner must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The Court finds that reasonable
jurists would not find it debatable that Petitioner’s claims are time-barred,
procedurally defaulted and/or meritless. Therefore, the certificate of appealability
is denied.
Ergo, the Petition of Joshua Meyers for Writ of Habeas Corpus under 28
U.S.C. § 2254 [d/e 1] is DENIED.
The Amended Petition for Writ of Habeas Corpus [d/e 16] is DENIED.
Pursuant to Rule 11(a) of the Rules Governing Habeas Corpus Cases, the
Court denies issuance of a certificate of appealability.
The Clerk will enter Judgment and terminate this case.
ENTER: September 20, 2018
FOR THE COURT:
/s/ Richard Mills
Richard Mills
United States District Judge

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