McNary v. Handy et al
MEMORANDUM Opinion Signed by the Honorable Charles P. Kocoras on 6/9/2011. Mailed notice(vcf, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA ex rel.
MARCUS HARDY, Warden, Stateville
10 C 5185
CHARLES P. KOCORAS, District Judge:
This case comes before the Court on a petition for a writ of habeas corpus filed
by Petitioner Dishon McNary (“McNary”) pursuant to 28 U.S.C. § 2254. For the
reasons stated below, the petition is denied.
During the early morning hours of March 21, 1998, McNary was driving under
the influence of alcohol when he hit and killed a pedestrian and two individuals in
another motor vehicle. At approximately 1:50 a.m., Chicago Police Officer Jose
Martinez (“Officer Martinez”) saw McNary strike and kill the pedestrian and then
subsequently strike another motor vehicle killing two other individuals. Chicago Police
Officer Donald Branch also witnessed McNary’s car crashing into the other motor
vehicle. Shortly after the car accident, Chicago Police Officer Richard Hardesty
(“Officer Hardesty”) arrived on the scene and observed that McNary was semiconscious and his breath smelled of alcohol. McNary was transported to Cook County
Hospital by an ambulance.
At approximately 3:50 a.m., Officer Hardesty arrived at Cook County Hospital.
A doctor in the emergency room gave Officer Hardesty permission to speak with
McNary. Officer Hardesty observed that McNary was awake and lucid and lying on a
gurney with an I.V. in his arm. Officer Hardesty introduced himself to McNary and
informed McNary that he was investigating the accident. Officer Hardesty asked
McNary if he had been drinking and McNary, minimizing the amount of alcohol
consumed, said he had two beers and two shots. When questioned about how the
accident occurred, McNary stated “I seen the man standing in the middle of the street,
I beeped my horn, he did not move, I kept on going.” Officer Hardesty placed McNary
under arrest for driving under the influence of alcohol and read him the “Warning to
McNary was then administered blood and urine alcohol tests.
McNary’s blood alcohol level was .22 grams per deciliter.
On March 21, 1998 at approximately 8:00 a.m., Detective Theodore Ptak
(“Detective Ptak”) went to Cook County Hospital and received permission from the
attending physician to speak with McNary. Detective Ptak advised McNary of his
Miranda rights. According to Detective Ptak, McNary appeared to understand the
questions asked, did not appear shocked or confused, and did not complain of any pain.
Among other things, McNary told Detective Ptak that he struck a pedestrian but did not
stop because he knew he was drunk.
McNary was charged with aggravated reckless homicide and first degree murder.
At trial, McNary testified that he had been drinking since approximately 1:00 p.m. the
day before the accident. When asked whether he felt drunk, McNary testified “I was
feeling high, but I was feeling though that I can drive.” McNary acknowledged that he
hit something while driving, but stated that he kept driving because he did not know
what he hit. McNary testified that a suspicious car was following him, so that he ran
several red lights when he collided with the other motor vehicle. McNary said he did
not remember anything after the accident until he woke up in the hospital handcuffed
to the bed.
At the jury instruction conference, McNary’s counsel proposed a jury instruction
on voluntary intoxication. The trial court found that McNary was not intoxicated to
such an extent to deprive him of all reason and, therefore, the jury instruction on
voluntary intoxication was not warranted. The trial court instructed the jury on
aggravated reckless homicide as to all three victims and on first degree murder as to the
two victims in the motor vehicle.
On May 27, 1999, a jury in the Circuit Court of Cook County, Illinois, found
McNary guilty of two counts of first degree murder and one count of aggravated
reckless homicide. McNary was sentenced to a mandatory term of natural life for the
two murder convictions and a concurrent ten-year sentence for the aggravated reckless
homicide conviction. On September 28, 2001, the state appellate court affirmed. On
May 1, 2002, the state supreme court denied McNary’s petition for leave to appeal. On
May 23, 2002, McNary filed a post-conviction petition in the Circuit Court of Cook
County. On August 9, 2002, the trial court summarily dismissed the post-conviction
petition, finding it frivolous, patently without merit, and untimely. Because McNary’s
petition was timely, the state appellate court reversed and remanded. On remand,
McNary filed a supplemental post-conviction petition and, on October 31, 2006, the
trial court granted the State’s motion to dismiss both the original and supplemental postconviction petitions. On December 23, 2009, the state appellate court affirmed and, on
May 26, 2010, the state supreme court denied McNary’s petition for leave to appeal.
On March 11, 2011, McNary filed an amended petition for a writ of habeas corpus,
which is presently before this Court. On April 15, 2011, Marcus Hardy, the Warden at
Stateville Correctional Center, (“Hardy”) filed an answer to McNary’s petition.
A district court may entertain an application for a writ of habeas corpus on behalf
of a state prisoner who is in custody in violation of the Constitution or laws of the
United States. 28 U.S.C. § 2254(a). A court may award habeas relief if the state court’s
decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States” or
“was based on an unreasonable determination of the facts in light of the evidence
presented.” 28 U.S.C. § 2254(d). A state court decision is “contrary to” clearly
established federal law if it applies a rule that contradicts the governing law or it arrives
at a result different from a Supreme Court case with materially indistinguishable facts.
Price v. Vincent, 538 U.S. 634, 640 (2003). The state court’s decision constitutes an
unreasonable application of clearly established federal law if the state court applied the
governing law in an objectively unreasonable manner. Bell v. Cone, 535 U.S. 685, 699
(2002) (explaining that “it is not enough to convince a federal habeas court that, in its
independent judgment, the state-court decision applied [the governing law]
incorrectly”). In evaluating a habeas petition, the court presumes that all factual
determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). The
petitioner, however, can rebut the presumption with clear and convincing evidence. Id.
McNary asserts four claims in his habeas petition: (1) ineffective assistance of
trial counsel; (2) McNary’s involuntary statements to Detective Ptak were improperly
admitted at trial; (3) ineffective assistance of appellate counsel; and (4) the natural life
sentencing statute, as applied, violates the Eighth Amendment.1
As a preliminary matter, this Court denies McNary’s request for an evidentiary hearing
because McNary does not satisfy the standard in Section 2254(e)(2).
Ineffective Assistance of Trial Counsel
McNary claims his trial counsel rendered ineffective assistance because he failed
to present certain evidence at a suppression hearing. McNary argues that the testimony
of several witnesses would have shown that his statements to Officer Hardesty were
inadmissible because he was in custody at the time and not given Miranda warnings.
According to McNary, trial counsel failed to present three witnesses, including McNary,
McNary’s sister, and Officer Martinez, who would have demonstrated that McNary was
in custody at the time he was questioned by Officer Hardesty.
To prevail on a claim for ineffective assistance of counsel, the petitioner must
demonstrate that (1) counsel’s performance fell below an objective standard of
reasonableness under the circumstances and (2) the deficient performance resulted in
prejudice. Strickland v. Washington, 466 U.S. 668, 690, 694 (1984). To establish
prejudice, the petitioner must prove that there is a reasonable probability that the
proceeding would have had a different result but for the unprofessional errors. Id. at
When evaluating counsel’s performance, the court is highly deferential to
counsel’s judgments. Id. at 689-91. Failure to raise a meritless argument does not
constitute ineffective assistance of counsel. Stone v. Farley, 86 F.3d 712, 717 (7th Cir.
Applying the Strickland test, the state appellate court found that McNary could
not establish that counsel’s failure to call the three witnesses resulted in prejudice.
First, the state court noted that McNary did, in fact, testify at the suppression hearing.
McNary testified that he did not remember anything from the time he ran a red light the
night of the accident until 10:00 a.m. the next morning when he woke up in the hospital.
McNary also testified that he did not remember meeting Officer Hardesty. Based on
McNary’s testimony, the state court found that trial counsel reasonably did not ask
McNary whether he believed he was free to leave when Officer Hardesty questioned
him. Second, the state court found that counsel acted reasonably in failing to call
McNary’s sister as a witness because counsel had no knowledge of McNary’s sister’s
testimony, that she saw McNary handcuffed to the bed, until after the trial court had
ruled on the motion to suppress. The state court concluded that the sister’s testimony,
in light of the overwhelming evidence that McNary was not in custody, would have had
minimal impact on the outcome of the suppression hearing. Finally, the state court,
relying on Stansbury v. California, found that counsel was not ineffective for failing to
call Officer Martinez to testify at the hearing because Officer Martinez’s subjective
view, that he placed McNary in custody at the scene of the accident, was irrelevant to
the custody determination. Stansbury v. California, 511 U.S. 318, 323 (1994) (“Our
decisions make clear that the initial determination of custody depends on the objective
circumstances of the interrogation, not on the subjective views harbored by either the
interrogating officers or the person being questioned.”). For these reasons, the state
court held that McNary was not denied effective assistance of counsel when counsel
failed to call the three witnesses at the suppression hearing.
For habeas relief, McNary must prove that the state court’s decision was contrary
to, or involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States.2 28 U.S.C. § 2254(d)(1). The
state court decision is contrary to clearly established federal law if it applies a rule that
contradicts the governing law or it arrives at a result different from a Supreme Court
case with materially indistinguishable facts. Price, 538 U.S. at 640. Here, the state
court applied the correct governing standard, the Strickland test, and McNary cites no
Supreme Court case with materially indistinguishable facts and a different result from
his case. Thus, the state court’s decision is not contrary to clearly established federal
law. Alternatively, the state court’s decision constitutes an unreasonable application
of clearly established law if the state court applied Strickland in an objectively
unreasonable manner. Bell, 535 U.S. at 699. This Court only determines whether the
state court applied Strickland in an objectively unreasonable manner and does not
evaluate counsel’s performance de novo. See id. McNary, arguing that his counsel was
ineffective under Strickland, fails to satisfy the standard for habeas relief which requires
McNary to demonstrate that the state court’s application of Strickland was objectively
McNary’s claim cannot be based on Section 2254(d)(2), that the state court unreasonably
determined the facts in light of the evidence presented, because McNary’s claim is based on
counsel’s failure to present all of the evidence.
unreasonable. Based on the state court’s reasoning described above, this Court cannot
conclude that its application of Strickland was objectively unreasonable. Accordingly,
this Court denies McNary habeas relief based on trial counsel’s ineffective assistance.
Voluntariness of McNary’s Statement to Detective Ptak
McNary claims that the trial court improperly admitted an involuntary statement
he made to Detective Ptak at the hospital.3 Specifically, McNary asserts that his
statement was involuntary because of his physical, medical, and mental condition.
In evaluating the voluntariness of a confession, a court must consider the totality
of the circumstances. Connor v. McBride, 375 F.3d 643, 651 (7th Cir. 2004) (citing
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). A confession is involuntary
only if circumstances demonstrate that police coercion or overreaching overbore the
accused’s will and caused the confession. Connor, 375 F.3d at 651 (citing Dickerson
v. United States, 530 U.S. 428, 434 (2000)). Courts have considered many factors,
including the youth of the accused, lack of education, low intelligence, lack of any
advice to the accused of his constitutional rights, the length of the detention, the
repeated and prolonged nature of the questioning, and the use of physical punishment
such as the deprivation of food or sleep. Schneckloth, 412 U.S. at 226. Courts also
McNary’s claim is limited to his statement to Detective Ptak because McNary procedurally
defaulted any claim relating to the voluntariness of his statement to Officer Hardesty by failing to
raise the issue in his direct appeal. Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004)
(explaining that a claim is procedurally defaulted when the habeas petitioner failed to present the
claim to the state courts and the opportunity to raise the claim in state court has passed).
consider the accused’s physical condition at the time of the questioning. Mincey v.
Arizona, 437 U.S. 385, 400-01 (1978). Even if the state court’s ruling was incorrect,
the decision is constitutional as long as it was reasonable (i.e., within the boundaries of
permissible differences of legal opinion). Connor, 375 F.3d at 651.
The state appellate court evaluated the totality of the circumstances surrounding
McNary’s statement to Detective Ptak. The state court noted that a doctor allowed
Detective Ptak to interview McNary at 8:00 a.m. on the morning of the accident and
again a few hours later. McNary appeared to understand the questions asked and did
not appear shocked or confused. Although McNary had a broken arm, a damaged knee,
and an I.V. in his arm, he did not complain of any pain. The state court explained that
McNary was not subjected to lengthy interrogations, not physically abused or
threatened, not promised anything for his confession, and did not testify that his will
was overborne. Based on the totality of the circumstances, the state court concluded
that McNary’s statement was voluntary even though McNary had received pain
McNary argues that the state court decision was contrary to clearly established
federal law because the court reached a different conclusion from the Supreme Court
in the indistinguishable cases of Mincey, 437 U.S. 385 and Beecher v. Alabama, 408
U.S. 234 (1972). The state court found that Mincey and Beecher were factually
dissimilar. The defendant in Mincey had been shot only a few hours before the
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interrogation and, at the time of the interrogation, the defendant was in the intensive
care unit. Mincey, 437 U.S. at 398. During the interrogation, the defendant complained
of unbearable pain in his leg. Id. The defendant was unable to speak and his written
answers were not entirely coherent. Id. at 398-99. Moreover, the defendant explained
several times that he was confused or unable to think clearly and the interrogation
ceased only during intervals when the defendant lost consciousness or received medical
treatment. Id. at 400-01. Based on the totality of the circumstances, the Supreme Court
held that the defendant’s will was overborne and, thus, his statement was involuntary.
Id. at 401-02. Here, unlike the defendant in Mincey, McNary was awake and lucid,
never stated that he was confused or unable to think clearly, did not appear confused or
shocked, appeared to understand the questions asked, and never complained of pain.
The defendant in Beecher, accused of raping a woman, was shot in his leg by
police officers. Beecher, 408 U.S. at 234-36. Shortly after the police shot defendant,
he was surrounded by an angry mob, the police officers were holding a gun to his head,
and the chief of police allegedly threatened to kill him. Id. The police interrogated the
defendant only one hour after the gunshot had blown out most of the bone in the
defendant’s leg, while he was in extreme pain, and after a doctor gave the defendant two
large injections of morphine. Id. at 236. The Supreme Court found that the stream of
events were grossly coercive and rendered the defendant’s oral confession involuntary.
Id. Here, unlike the defendant in Beecher, McNary was not threatened by police and
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did not complain of any pain while speaking to Detective Ptak approximately six hours
after the accident. Moreover, McNary’s injuries, a broken arm and a damaged knee,
were not as serious as the Beecher defendant’s injury, a gunshot wound which had
blown out most of his leg. Because Mincey and Beecher are factually dissimilar from
McNary’s case, the state court did not reach a conclusion different from
indistinguishable Supreme Court cases.
Ineffective Assistance of Appellate Counsel
McNary claims that he received ineffective assistance of appellate counsel
because his appellate counsel failed to raise the following issues on his direct appeal:
(1) the trial court improperly refused to instruct the jury on voluntary intoxication; and
(2) insufficient evidence existed to support the jury’s verdict of first degree murder.
As discussed above, to prevail on a claim for ineffective assistance of counsel,
the petitioner must demonstrate that (1) counsel’s performance fell below an objective
standard of reasonableness under the circumstances and (2) the deficient performance
resulted in prejudice. Strickland, 466 U.S. at 690, 694. The court is highly deferential
to counsel’s judgments, id. at 689-91, and the failure to raise a meritless argument does
not constitute ineffective assistance of counsel, Stone, 86 F.3d at 717.
First, McNary contends that his appellate counsel rendered ineffective assistance
because he did not appeal the trial court’s refusal to instruct the jury on voluntary
intoxication. Under Illinois law, a trial court has “discretion to refuse to tender a
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defense instruction on intoxication where there is insufficient evidence for a jury to
reasonably find that the defendant was so intoxicated at the time of the crime that he
lacked the requisite mental state for the crime.” People v. Waldron, 580 N.E.2d 549,
566 (Ill. App. Ct. 1991) (holding instruction unwarranted when evidence indicated the
defendant was in control of his actions despite the ingestion of alcohol and drugs).
Evidence that a defendant had been drinking, alone, is insufficient to suggest that
defendant was so intoxicated as to negate the requisite mental state for murder and,
thus, to warrant an intoxication instruction. Id.
The state appellate court, applying Strickland, held that the appellate counsel was
not ineffective for deciding not to appeal the meritless jury instruction issue. The state
court explained that McNary was not entitled to an intoxication instruction because
McNary’s own statements established his ability to act knowingly and intentionally.
For instance, McNary told police that he saw the pedestrian, honked his horn, and kept
driving. McNary also lied to the police by minimizing the amount of alcohol he had
consumed. Further, McNary testified that, at the time he got in his car to drive, “I was
feeling high, but I was feeling though that I can drive.” The state court concluded that
these statements undermined McNary’s position that he was so intoxicated that he was
unable to act knowingly and intentionally while committing the crimes.
conclusion was not unreasonable. Thus, the state court did not unreasonably apply
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Strickland by holding that the appellate counsel’s decision not to appeal the jury
instruction issue was neither objectively unreasonable nor prejudicial.
Second, McNary contends his appellate counsel was ineffective because counsel
failed to argue on appeal that insufficient evidence existed to support the jury’s verdicts
of first degree murder. Due process requires the state to establish beyond a reasonable
doubt that a defendant committed each element of the charged offense. McFowler v.
Jaimet, 349 F.3d 436, 446 (7th Cir. 2003). When the defendant challenges the
sufficiency of the evidence to support a criminal conviction, the court must determine
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under Illinois law,
to sustain a conviction for knowing first degree murder, the state must prove that the
defendant was consciously aware that his conduct created a strong probability of death
or great bodily harm. People v. Alsup, 373 869 N.E.2d 157, 165 (Ill. App. Ct. 2007).
The state need not prove that the defendant had the specific intent to kill or do great
bodily harm or that he knew with certainty that someone would die as a result of his
conduct. Id. (explaining that a defendant can be convicted of first degree murder even
if the death was caused unintentionally). Several defendants have been convicted of
first degree murder under Illinois law for the unintentional killing of a victim. See, e.g.,
Alsup, 869 N.E.2d at 163 (affirming first degree murder conviction of defendant who
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killed unwary motorist while leading police on a high-speed chase and deliberately
forcing oncoming vehicles off of the road); People v. Stevens, 757 N.E.2d 1281, 128990 (Ill. App. Ct. 2001) (affirming denial of motion to withdraw guilty plea to first
degree murder where defendant drove a stolen car at speeds in excess of 100 miles an
hour, weaved through traffic, refused to stop for marked police units, and drove into the
rear of the victim’s vehicle).
The state appellate court, applying Strickland, held that the appellate counsel was
not deficient for failing to raise the meritless argument that insufficient evidence
supported the jury’s first degree murder convictions. The state court held that sufficient
evidence supported the jury’s verdicts because a rational jury could find beyond a
reasonable doubt that McNary knew his conduct created a strong probability of death
or great bodily harm. McNary drove at a high rate of speed when he struck and killed
a pedestrian. After killing the pedestrian and while the police were pursuing McNary,
he continued to drive at an estimated speed of 80 to 90 miles per hour, passed cars by
driving into the lane of incoming traffic, and ran several red lights until he collided with
another vehicle, killing its two occupants. Based on these facts, the state court found
that sufficient evidence supported the jury’s verdicts. Because sufficient evidence
existed, the state court concluded that the appellate counsel was not deficient for failing
to raise the meritless argument that insufficient evidence supported the first degree
McNary fails to satisfy the standard for habeas relief and
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demonstrate that the state court’s application of Strickland was objectively unreasonable
or that the court’s decision was based on an unreasonable determination of the facts in
light of the evidence presented. Accordingly, this Court denies McNary habeas relief
on the ground that appellate counsel was ineffective.
Eighth Amendment Claim
McNary argues that the natural life sentence statute, as applied, violates the
Eighth Amendment’s prohibition against excessive and unusual punishment.4 Hardy
argues that McNary’s Eighth Amendment claim is procedurally defaulted. A petitioner
procedurally defaults on a claim unless he articulates both the operative facts and the
controlling legal principles on which his claim is based. Perruquet, 390 F.3d at 519
(finding petitioner procedurally defaulted due process claim where he cited only state
court cases in his state court briefs and failed to mention due process). Here, McNary
previously asserted in state court that the natural life sentence statute, as applied,
violates the Illinois Constitution, not the Eighth Amendment. Because McNary did not
rely on the Eighth Amendment in state court, McNary’s Eighth Amendment claim is
While McNary also argues that his trial and appellate counsel were ineffective for failing
to argue that the natural life sentence statute, as applied, was unconstitutional, McNary procedurally
defaulted this claim because he raised it for the first time in his habeas petition. Perruquet, 390 F.3d
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Even if this Court considered McNary’s procedurally defaulted claim on the
merits, McNary fails to cite any Supreme Court case demonstrating clearly established
federal law that a state statute mandating life imprisonment for the unintentional killing
of two victims violates the Eighth Amendment. See 28 U.S.C. § 2254(d)(1) (requiring
petitioner to demonstrate that the state court decision was contrary to, or involved an
unreasonable application of, clearly established law, as determined by the Supreme
Court). Further, as Hardy points out, the Eighth Amendment permits life imprisonment
for a single drug crime. Harmelin v. Michigan, 501 U.S. 957, 996 (1991) (upholding
a sentence of mandatory life imprisonment for the possession of more than 650 grams
of cocaine by a defendant who had no prior felony convictions). Given the Supreme
Court’s decision in Harmelin, it is logical to conclude that the Eighth Amendment also
permits life imprisonment for the killing of two individuals while drinking and driving.
Moreover, the Illinois legislature has decided that the commission of first degree murder
of more than one victim warrants a mandatory sentence of life imprisonment, 730 Ill.
Comp. Stat. 5/5-8-1(c)(2), and this Court cannot second-guess the legislature’s policy
choices. See Ewing v. California, 538 U.S. 11, 28 (2003) (stating that the Court does
“not sit as a ‘superlegislature” to second-guess” policy choices). Accordingly, this
Court denies McNary’s claim that the natural life sentence statute, as applied, violates
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For the foregoing reasons, this Court denies McNary’s petition for a writ of
Charles P. Kocoras
United States District Judge
Dated: June 9, 2011
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