Williams v. Pillow et al

Filing 20

MEMORANDUM Opinion and Order, Case Terminated Signed by the Honorable Sharon Johnson Coleman on 11/16/2011:Mailed notice(keg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.
BILLY WILLIAMS,
Petitioner,

Case No. 09 C 4920
Judge Sharon Johnson Coleman

v.
RICH PILLOW, Warden,
Jacksonville Correctional Center,
Respondent.

MEMORANDUM OPINION AND ORDER
Petitioner Billy Williams seeks relief by writ of habeas corpus relief under 28 U.S.C.
§2254 in connection with his state-court conviction for first degree murder and attempted firstdegree murder. For the reasons set forth below, Williams’ petition for writ of habeas corpus is
denied.
Background
On April 28, 1998, Williams pled guilty in a negotiated plea to the charges of firstdegree murder and attempted first-degree murder. (Respondent’s Exhibit A at K8.) The guilty
plea arose out of an incident on October 29, 1996, that resulted in the shooting death of Verneal
Thompson and a gunshot wound to the thumb of Christian Latham. At the hearing, the court
admonished Williams as follows: “The law requires that any sentence you receive on the attempt
murder of Christian Latham must be served consecutive to the sentence that you receive on the
first-degree murder . . .” Id. at K5. Pursuant to the negotiated plea agreement, Williams was
sentenced for thirty-two years for first-degree murder and for six years for attempted first-degree
murder, sentences to be served consecutively. Id. at K10. On June 15, 1998, Williams filed a pro

se motion to vacate his guilty plea. (Respondent’s Exhibit C at 1.) The trial court denied the
motion. Williams appealed and the Illinois Appellate Court reversed and remanded for the filing
of a new motion to vacate since the State conceded that the trial court’s sentencing
admonishment “did not comply with Supreme Court Rule 605(b).” (Respondent’s Exhibit B,
Appeal Order of June 6, 2003, at 2.)
Following remand, on February 8, 2001, Williams filed a new motion to vacate his guilty
plea, alleging that his consecutive sentences violated Apprendi v. New Jersey, 530 U.S. 466
(2000). (Respondent’s Exhibit E at C24.) The trial court again denied Williams’ motion to
vacate his guilty plea. (Respondent’s Exhibit F at A-16.) Williams again appealed, and the
Illinois Appellate Court reversed and remanded for the filing of a new motion to vacate because
defense counsel failed to strictly comply with Illinois Supreme Court Rule 604(b).
On April 6, 2004, Williams, through counsel, filed a third motion to vacate his guilty
plea, and filed an amended motion on May 10, 2004. (Respondent’s Exhibit J at 15.) In the
amended motion, Williams alleged that his consecutive sentences were improper absent a
finding that the attempted murder victim suffered severe bodily injury under People v. Whitney,
188 Ill.2d 91 (1999)1, and Apprendi v. New Jersey, 530 U.S. 466 (2000). Williams also alleged
ineffective assistance of counsel based on his attorney’s failure to file pre-trial motions to
suppress his custodial statements. At a May 10, 2004 hearing, the trial court once more denied
Williams’ motion. (Respondent’s Exhibit K at 57.) In denying the motion, the trial court found
that Williams’ plea to consecutive sentences was knowing and voluntary, and that his custodial
statements were made in the presence of a youth officer. The trial court also agreed with the

1 In People v. Whitney, the Illinois Supreme Court clarified the meaning of the consecutive sentences statute. The
court construed 730 ILCS 5/5-8-4(a) as requiring consecutive sentencing where the defendant has been convicted of
either a Class X or Class 1 felony and where he had inflicted severe bodily injuring during the commission of that
felony.188 Ill.2d 91, 98-99 (1999).

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State’s argument that People v. Whitney was distinguishable because Williams entered a
negotiated plea agreeing to the sentence. The Illinois Appellate Court affirmed, opining that
Williams’ conceded that the factors necessary to mandate consecutive sentences existed by
agreeing to the sentence as part of his plea. (Respondent’s Exhibit O at 6.)
On September 7, 2006, Williams filed a pro se petition for post-conviction relief.
(Respondent’s Exhibit S at C 028). In his post-conviction petition, Williams alleged ineffective
assistance of post-plea counsel based on his attorney’s failure to ensure the medical report of the
attempted murder victim were in the record, and that his consecutive sentence was void because
the medical report showed that the attempted murder victim suffered only a minor injury. Id. at
C 031. The trial court denied Williams’ petition for post-conviction relief. Id. at C 058.
On appeal, Williams argued that the trial court erred in summarily dismissing his postconviction petition because he had raised the gist of a constitutional claim based on ineffective
assistance of counsel where his attorney failed to introduce a copy of the alleged victim’s
medical report, which conclusively showed his consecutive sentences were void. (Respondent’s
Exhibit T at 10.)
The Illinois Appellate Court affirmed the dismissal of Williams’ post-conviction petition,
finding that Williams’ claim that his consecutive sentence is void was barred by res judicata
because there was no appreciable difference between his consecutive sentences claim raised on
direct appeal and his claim on collateral appeal. (Respondent’s Exhibit W, Appellate Order of
July 31, 2008.) However, the court went on to address the claim because Williams maintained
that the claim was not barred since he presented new evidence, i.e., the alleged victim’s medical
report, which showed he was not statutorily eligible for consecutive sentences. The court
disagreed, finding that the evidence of the medical report was available and known to the parties

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from the start of the proceedings. The court further stated that if Williams’ sentence was void, it
may be collaterally attacked at any time. Yet, the court held that Williams’ sentence was merely
voidable rather than void because the law at the time of his sentence was unsettled as to the
imposition of consecutive sentences under 730 ILCS 5/5-8-4(a)(i)(West 1998). The court
distinguished People v. Whitney based on Williams’ negotiated plea, which pre-dated the Illinois
Supreme Court’s clarification of the statute in Whitney. Thus, any error in the imposition of
Williams’ consecutive sentence was at most a mistake of law or fact, rendering the sentence
voidable rather than void. The Illinois Supreme Court denied Williams’ petition for leave to
appeal his motion for post-conviction relief.
Habeas Petition
Williams filed the instant pro se habeas corpus petition pursuant to 28 U.S.C. §
2254(d)(1). This court construes pro se allegations liberally. See McGee v. Bartow, 593 F. 3d
556, 565-66 (7th Cir. 2010). Williams alleges that his due process rights and his right to effective
assistance of counsel were violated when his attorney failed to incorporate into the trial and
appellate court proceedings the medical records of the alleged attempted murder victim
(Christian Latham), which allowed the trial court and appellate court to impose and affirm the
unlawful consecutive sentence.
Legal Standard
The Antiterrorism and Effective Death Penalty Act (AEDPA) provides for federal relief
of habeas corpus when, as a result of a state court decision, a criminal defendant is “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The
statute exists to ensure the fundamental fairness of states’ criminal adjudications. Williams v.
Taylor, 529 U.S. 362, 375 (2000). The applicant must have exhausted all state-based remedies.

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28 U.S.C. § 2254(b). To obtain relief under § 2254, it is not enough to demonstrate that a state
court’s decision was clearly erroneous. Badelle v. Correll, 452 F.3d 648, 655 (7th Cir. 2006). A
writ may only be granted if the state court, adjudicating the claim on the merits, resulted in a
decision that unreasonably applied “clearly established federal law, as determined by the
Supreme Court of the United States.” § 2254(d)(1) (Emphasis added).
Accordingly, to obtain a writ of habeas corpus, “a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fair-minded disagreement.” Harrington v. Richter, 131 S.Ct. 770, 786 (2011). Under habeas
review, a state court’s decision lacks justification if it is “well outside the boundaries of
permissible differences of opinion.” Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002). The
federal court considering a habeas corpus petition reviews the decision of the last state court to
rule on the merits of Williams’ claim. McCarthy v. Pollard, 656 F.3d 478 (7th Cir. 2011).
Accordingly this Court reviews the Illinois Appellate Court’s decision affirming summary
dismissal of Williams’ post-conviction petition. (People v. Williams, No. 1-06-3364, July 31,
2008).
Discussion
1. Due Process Claim
Williams claims that the trial court violated his due process rights under the Fourteenth
Amendment by imposing consecutive sentences that Williams asserts were not authorized by
Illinois law at the time of his plea. For his claims to be considered by this court, Williams must
have given the Illinois state courts, a fair opportunity to act on his claims. O'Sullivan v. Boerckel,
526 U.S. 838, 844 (1999). “Fair presentment ‘requires the petitioner to give the state courts a

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meaningful opportunity to pass upon the substance of the claims later presented in federal
court.’” Dellinger, 301 F.3d at 764 (quoting Chambers v. McCaughtry, 264 F.3d 732, 737 (7th
Cir. 2001). Failure to fairly present the claims to the state courts results in procedural default
barring federal review. Id. Procedural default ordinarily precludes federal review of the merits of
a habeas claim when either “(1) that claim was presented to the state courts and the state-court
ruling against the petitioner rests on adequate and independent state-law procedural grounds, or
(2) the claim was not presented to the state courts and it is clear that those courts would now
hold the claim procedurally barred.” Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004).
In his habeas petition, Williams asserts claims of a due process violation under the
Fourteenth Amendment. However, Williams consistently argued that his consecutive sentences
are void because the trial court lacked the statutory authority to impose a consecutive sentence
based on Illinois law. Although Williams raised the issue as violating Apprendi v. New Jersey2
in his second and third motions to vacate, he did not continue to pursue Apprendi as a basis for a
U.S. Constitutional violation, and the Illinois Appellate Court did not address the issue of
Apprendi. Even if Williams had continued to claim that his consecutive sentences violated
Apprendi, that argument would fail because Apprendi is not retroactive and Williams’ sentence
predates the ruling. See Dellinger, 301 F.3d at 765, n.6.
Although he is now seeking federal habeas review by framing his claim as a violation for
due process, it is essentially a recharacterization of his claim that the state court lacked the
authority to impose consecutive sentences. As evident from the record and from his habeas
petition, Williams is asking this Court to find that the Illinois courts misapplied the Illinois
2 In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that any fact other than a prior
conviction which increases the maximum statutory penalty for a crime must be submitted to a jury, and proven
beyond a reasonable doubt. The Illinois Supreme Court has held that consecutive sentences do not constitute a single
sentence for one offense and thus, where the defendant is not sentenced in excess of the statutory maximum for each
separate offense, there is no Apprendi violation. People v. Carney, 196 Ill. 2d 518 (2001).

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sentencing statute by imposing consecutive sentences without finding that the attempted murder
victim suffered a severe bodily injury as required by 730 ILCS 5/5-8-4(a). However, a federal
district court may not review state courts’ interpretations of state law. Curtis v. Montgomery, 552
F.3d 578, 582 (7th Cir. 2009). “[A]n error in . . . the application of state sentencing rules, does
not present a cognizable claim for federal habeas relief.” Dellinger, 301 F.3d at 764. Williams’
claim is now procedurally defaulted because the Illinois Appellate Court had an opportunity to
address the validity of Williams’ consecutive sentences on both direct and collateral appeal and
that court found that Williams’ consecutive sentences did not violate Illinois law. Accordingly,
Williams’ petition for habeas relief is denied on that issue.
2. Effective Assistance of Counsel
Williams also claims violation of his Sixth Amendment right to the effective assistance of
counsel because his attorney failed introduce into evidence medical records of Williams’
attempted first-degree murder victim. Specifically, Williams argues that the victim’s medical
report was crucial to support his motions to vacate since it established that the attempted murder
victim suffered only a minor injury to his thumb, rather than a severe injury as required by 730
ILCS 5/5-8-4(a). Williams therefore asserts that his attorney’s failure to submit the medical
report in support of Williams’ motions to vacate his guilty plea was unreasonable and prejudiced
the outcome of his efforts to vacate his guilty plea.
The Sixth Amendment to the U.S. Constitution guarantees criminal defendants assistance
of counsel, which the Supreme Court has interpreted to mean the effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to be deemed ineffective, the
attorney’s conduct must be sufficiently unreasonable that it deprives the defendant of a fair trial.

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Id. at 687. Under Strickland, Williams must show that but for “counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id.
There is no evidence that Williams’ attorney’s conduct was unreasonably deficient. The
Illinois Appellate Court affirmed summary dismissal of Williams’ post-conviction petition
finding that he failed to raise the gist of a constitutional claim. Although it found Williams’
claim of ineffective assistance of counsel was barred by res judicata, the court went on to hold
that Williams’ consecutive sentence was not contrary Illinois law. The court further stated that
counsel’s failure to introduce the medical report did not render the sentence void. In so holding,
the court noted that Illinois law regarding consecutive sentences under 730 ILCS 5/5-8-4(a) was
unsettled at the time of Williams’ plea. Failing to argue an unsettled legal claim does not
constitute ineffective assistance of counsel. See, e.g., Smith v. Singletary, 170 F.3d 1051, 1054
(11th Cir. 1999) (observing that, “[T]he rule that an attorney is not liable for an error of
judgment on an unsettled proposition of law is universally recognized...,” citing Ronald E.
Mallen & Jeffrey M. Smith, Legal Malpractice § 17.1 at 497).
Moreover, as the Illinois Appellate Court noted, the relevant information with regard to
the severity of the injury was a part of the record at the time of the plea even if the medical
report itself was not. Thus, Williams cannot show that the outcome would have been different if
counsel had introduced the medical report. Because the law concerning consecutive sentencing
was in flux at the time of the plea agreement and Williams has not shown the result would have
been different, counsel cannot be said to have been ineffective. Accordingly, this Court finds that
the state court’s ruling is not inconsistent with Supreme Court holdings. See Cullen v. Pinholster,
131 S. Ct. 1388, 1402, 179 L. Ed. 2d 557 (2011).

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Conclusion
For the reasons set forth above, Williams’ petition for relief by writ of habeas corpus [1]
is denied.
IT IS SO ORDERED.

Dated: 11/16/2011

Entered:_____________________________
Sharon Johnson Coleman

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