Brown v. No Respondent named
Filing
35
MEMORANDUM Opinion and Order Signed by the Honorable Matthew F. Kennelly on 10/22/2012:(mb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
United States of America ex rel.
BRANDON BROWN,
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Petitioner,
vs.
MARC HODGE, Warden,
Lawrence Correctional Center,
Respondent.
Case No. 11 C 1281
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
An Illinois judge convicted Brandon Brown on charges of possession of a stolen
motor vehicle (PSMV) and aggravated PSMV and sentenced him to prison terms
totaling fifteen years. Brown has petitioned this Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Respondent contends that all of Brown’s claims are
procedurally defaulted. For the reasons stated below, the Court agrees that Brown’s
claims are procedurally defaulted and therefore denies his petition.
Background
A.
State court proceedings
1.
Aggravated PSMV trial (Case No. 06 CR 18675)
On May 17, 2006, Skyway Chevrolet employee Donna Lee called the Chicago
police to report the theft of a 2006 Cadillac Escalade. Officer Eric Rashan responded to
the call. After learning that the car was equipped with an OnStar navigation system,
Rashan located the vehicle about an hour later, at 8224 South Saginaw. He knocked
on the door of the house where the car was parked, but no one answered. Rashan
called Lee, who arrived with other Skyway employees to retrieve the Escalade.
Rashan testified that he returned to the South Saginaw house on August 3, 2006.
Brown answered the door. Rashan arrested Brown after learning that he had an
outstanding traffic warrant. Later that day, Lee viewed a line-up and identified Brown as
the man who had stolen the Escalade. A grand jury then indicted Brown for aggravated
PSMV. Brown was released on bond. Brown originally retained counsel, but after his
bond was revoked and his bail bond money was returned to his ex-girlfriend, who had
posted the bond, Brown had no other funds to pay an attorney, so the court appointed a
public defender.
In February 2008, the court held a bench trial on Brown’s aggravated PSMV
charge. At the trial, Lee testified that she saw a man she identified as Brown at the
Skyway Chevrolet dealership lot, looking at the Escalade. After a series of attempted
ruses, Brown eventually tricked Lee into leaving him. When Lee returned, Brown had
left, her desk drawer was open, and the Escalade’s keys were missing. Lee looked
outside and saw Brown running toward the Escalade. He turned to look at her and then
hopped into the car and drove away. Lee immediately told the dealership manager to
call the police, and Officer Rashan arrived at the dealership shortly afterward. Lee gave
Rashan a physical description of the man she had seen and informed him that the
Escalade was equipped with an OnStar navigation system. About an hour later,
Rashan notified Lee that he had located the Escalade, and she went with other Skyway
employees to 8224 South Saginaw to retrieve it. Finally, Lee testified that on August 3,
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2006, Rashan contacted her again to ask her to come to the police station to view a
line-up. Lee testified that she identified Brown as the man who had stolen the Escalade
from Skyway Chevrolet in May 2006.
On cross-examination, Lee admitted that although the man she identified as
Brown had given her his name when she first approached him in May 2006, she could
not remember the name later that day when Officer Rashan arrived at the dealership.
Lee also gave testimony about the clothing Brown had been wearing that conflicted with
the description she had given to Rashan in 2006. Lee accounted for this by stating that
she sees “thousands of customers a day. That part is kind of foggy.” Ex. Z at Y-38.
Officer Rashan testified that on August 3, 2006, he was patrolling the South
Saginaw area when he saw a suspicious-looking car parked in the same location where
the Escalade had been located three months earlier. When he knocked on the door to
the house where the car was parked, Brown answered. Rashan asked his sergeant to
run Brown’s name through a police database, which showed that Brown had an
outstanding traffic warrant. Rashan arrested Brown on the warrant and brought him to
the police station. Rashan testified that because Brown substantially matched the
description of the car thief that Lee had given him in May, he contacted Lee to have her
view a line-up that included Brown. After Lee identified Brown, Rashan asked him
about Skyway Chevrolet. Brown admitted that he had been there and had spoken to a
female salesperson, although he denied stealing the car.
On cross-examination, Rashan admitted that the car and car keys were never
dusted for fingerprints. He also admitted that Brown never signed a statement and that
he (Rashan) had not reported Brown’s oral statement to the state’s attorney.
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The court found Brown guilty of aggravated PSMV, determining that Lee was a
credible witness even though there were some inconsistencies between the description
of Brown’s clothing she gave to Officer Rashan in May 2006 and her testimony in court.
Specifically, the court noted that Lee’s identification was credible and was corroborated
by the fact that Brown answered the door to the house where the car had been found
three months earlier. The court stayed sentencing pending the resolution of Brown’s
second case.
2.
PSMV trial (No. 07 CR 13320)
On June 2, 2007, Brown was arrested while out on bond in his 2006 case.
Officer John Sullivan testified that he arrested Brown after he tried to flee from a 2004
Ford Mustang that had been reported stolen nearly seven months earlier. Brown was
charged with PSMV and other offenses relating to a license plate found on the Mustang.
As indicated above, the trial court appointed the a public defender to represent Brown.
At Brown’s bench trial in May 2008, Sullivan testified that he and his partner,
Officer Brian Glim, were responding to a call about a noise disturbance when they saw
a red Mustang convertible driving toward them. After learning that the car had been
reported stolen, Sullivan stopped the Mustang and ordered the driver out of the car. He
identified the driver as Brown. Sullivan testified that Brown ran away from the officers
and that when they gave chase, Brown “stiffened up in an aggressive manner.” Ex. Z at
BB-20. Sullivan stated that the officers sprayed Brown with Mace and arrested him.
After giving Brown Miranda warnings, Sullivan asked him “something along the lines of
why are you driving a stolen car.” Id. at BB-22. According to Sullivan, Brown
responded: “I knew it was stolen. I didn’t steal it. My boy took it. I was just using it.”
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Id. On cross-examination, Sullivan admitted that Brown did not sign any statement
admitting that he knew the Mustang was stolen.
The court found Brown guilty of PSMV and granted defense counsel’s motion for
a directed finding of not guilty on the other charges. On June 17, 2008, the court
sentenced Brown to consecutive prison terms of eight years on the aggravated PSMV
conviction (No. 06 CR 18675) and seven years on the PSMV conviction (No. 07 CR
13320).
3.
Appeal and post-conviction proceedings
Brown appealed his convictions to the Illinois Appellate Court, which
consolidated the two cases into a single appeal. People v. Brown, No. 1-08-1883 & 108-2095 (cons.) (Ill. App. Ct. July 1, 2010) (unpublished). On appeal, Brown asserted
three claims: (1) the prosecution failed to prove him guilty of aggravated PSMV beyond
a reasonable doubt (No. 06 CR 18675); (2) his term of mandatory supervised release
was incorrectly calculated based on an improper classification of his convictions; and (3)
he was not given the proper amount of credit for the time he had been incarcerated prior
to his two convictions. On July 1, 2010, the appellate court affirmed the trial court’s
rulings on the first two issues and agreed with Brown on the third issue, giving him
additional credit for time served. Brown then filed a petition for leave to appeal (PLA)
with the Illinois Supreme Court, raising only the mandatory supervised release issue.
The court denied the PLA. People v. Brown, No. 110846, 238 Ill. 2d 656, 942 N.E.2d
456 (Table) (Nov. 24, 2010).
While his direct appeal was pending, Brown filed a pro se petition for postconviction relief, alleging that his public defender at trial had been constitutionally
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ineffective in four respects: (1) failing to ask the “right questions,” (2) failing to visit
Brown in jail to discuss his case, (3) failing to investigate and call a witness for Brown
that came to court on his behalf, and (4) failing to take action when he learned that
Brown had been threatened. Brown also said he was innocent, stating that “these [sic]
guys who committed this crime threaten[ed] to kill me if I told anybody.” Ex. AA at 32–
33. Brown’s petition contained only the number of his second case (No. 07 CR 13320),
but the petition discussed events that had occurred in the first case (No. 06 CR 18675).
Brown also listed his sentence as fifteen years, the total sentence for both convictions.
Ex. AA at 31.
The trial court summarily dismissed Brown’s post-conviction petition on June 26,
2009, six days before the appellate court affirmed Brown’s convictions on direct appeal.
The trial court found Brown’s post-conviction petition to be “frivolous and patently
without merit.” Id. at 28. The court addressed Brown’s claim that trial counsel was
constitutionally ineffective for failing to investigate or call a witness on his behalf, based
on Brown’s failure to include an affidavit from the potential witness or “explain the
significance of the witness’[s] testimony.” Id. The court did not expressly address
Brown’s claim that counsel was ineffective for failing to visit him at the jail to discuss his
case or take action after learning that Brown had been threatened. The court discussed
only the procedural posture of Brown’s second trial, and its analysis of Brown’s claim
makes no mention of Brown’s aggravated PSMV conviction.
Brown appealed to the Illinois Appellate Court. The Office of the State Appellate
Defender was appointed to represent him. In March 2010, appointed counsel sought
leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). Ex. J, K.
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Counsel stated that Brown had not set out a colorable claim of ineffective assistance.
Ex. J at 9. Appointed counsel’s brief discussed the history of both cases and noted that
the two cases had been consolidated on direct appeal. In discussing the merits of
Brown’s post-conviction petition, counsel made no mention that the petition had
included only the case number from his second trial.
On May 9, 2010, Brown responded to counsel’s Finley motion, giving a number
of details about both of his trials that he believed warranted relief in his post-conviction
appeal. Ex. L. Brown reiterated the claim in his post-conviction petition that trial
counsel was ineffective for failing to contact or call a specific witness on his behalf,
basing these allegations on events that occurred in his first trial. Brown also asserted a
number of claims that he had not included in his post-conviction petition: (1) trial
counsel was unconstitutionally ineffective for failing to move to suppress Brown’s
statement in his first trial; (2) appellate counsel was unconstitutionally ineffective for
failing to argue ineffective assistance of trial counsel on direct appeal; (3) the
prosecution presented false testimony at both of his trials; (4) the prosecution failed to
prove him guilty beyond a reasonable doubt; and (5) there were several irregularities
surrounding his arrest and Lee’s lineup identification in connection with his first trial. Ex.
I at 3.
On June 9, 2011, the appellate court granted appointed counsel leave to
withdraw and affirmed the dismissal of Brown’s post-conviction petition. Ex. I. The
court referenced the claims included in Brown’s response to the Finley motion, stating:
In his response, defendant contends that his trial counsel failed to
investigate a witness and file a motion to suppress. Defendant also
contends that appellate counsel refused to raise a claim of ineffective
assistance on direct appeal. He further argues that the State presented
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false testimony at trial, he was not proven guilty beyond a reasonable
doubt, and there were numerous irregularities surrounding his arrest and
the subsequent lineup identification.
Id. at 3. The court did not refer directly to the fact that many of these claims appeared
for the first time in Brown’s response, nor did it discuss the fact that some of the claims
concerned Brown’s first trial and others concerned the second one. The court
concluded as follows:
We have carefully reviewed the record in this case, the aforesaid
memorandum, and defendant’s response, and find no issues of arguable
merit. Therefore, the motion of the State Appellate Defender for leave to
withdraw as counsel is granted, and the judgment of the circuit court of
Cook County is affirmed.
Id. The court’s order referenced the numbers of both of Brown’s cases as well as the
number for the consolidated appeal.
Brown twice petitioned the appellate court for rehearing. In his first petition,
Brown reiterated many of his previously-mentioned claims but also included new claims:
he asserted that his trial and appellate counsel were unconstitutionally ineffective for
failing to provide him with discovery materials and that trial counsel was
unconstitutionally ineffective for failing to obtain a recording of the noise disturbance
complaint that preceded Brown’s 2007 arrest. Finally, Brown claimed without
explanation that his Fourth Amendment rights had been violated. Ex. M.
In his second petition for rehearing, Brown again repeated many of his claims.
He also included allegations that the arresting officers in both of his cases illegally
searched and seized him in violation of his Fourth Amendment rights and that trial
counsel was ineffective in his first trial for failing to secure video surveillance footage
from Skyway Chevrolet. Ex. P. The court denied both of Brown’s petitions for
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rehearing. Ex. N, Q.
Brown attempted to file a PLA with the Illinois Supreme Court for his postconviction petition. The record includes a September 29, 2011 letter from the court
clerk’s office to Brown, explaining that it was returning his PLA unfiled because “the
print on the 10th page of your document (page flagged) becomes illegible at the bottom
of the page.” Ex. R. The letter set a deadline of November 18, 2011 to resubmit his
PLA.
Brown attempted to refile the PLA, but on December 28, 2011, the clerk’s office
again returned his attempted filing, this time because it was disorderly, was missing two
appellate court decisions, and was untimely. Ex. S. The clerk’s letter indicated that he
would need to resubmit a compliant petition along with a motion for leave to file a late
PLA. In January 2012, Brown filed a motion requesting an extension to file a PLA and a
motion for leave to file a late petition. The clerk again wrote to Brown, advising him that
the court was rejecting his motion for an extension and returning his motion for leave to
file a late petition because it was not accompanied by the PLA petition itself. Ex. T.
When Brown subsequently attempted to file a PLA a third time, the court again returned
the filing, explaining that “the time has lapsed . . . to file a timely petition to this Court.”
Ex. U. The record submitted by respondent does not contain any of these attempted
filings, presumably because the court had returned them to Brown without making
copies.
B.
Brown’s habeas corpus petition
On February 23, 2011, while the state courts’ review was ongoing, Brown filed a
pro se habeas corpus petition in this Court. The Court stayed the petition pending
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resolution of Brown’s state court proceedings. After those proceedings concluded, the
Court lifted the stay, and Brown filed an amended petition.
In his amended petition, Brown asserts six claims. First, Brown alleges that his
Fourth Amendment rights were violated because the arresting officer in both of his
cases searched and arrested him without probable cause. Second, Brown contends
that he was denied due process because those same arresting officers gave false
testimony at his trials. Third, Brown argues that his due process rights were also
violated because his attorneys failed to give him access to the discovery materials he
requested. Fourth, Brown contends that the prosecution failed to prove him guilty
beyond a reasonable doubt in either of his trials. Fifth, Brown contends that his trial
counsel rendered ineffective assistance by failing to: (1) investigate or call two specific
witnesses; (2) obtain video surveillance footage from Skyway Chevrolet in the first case;
(3) investigate alleged conflicts in the prosecution’s evidence presented at his second
trial; (4) provide Brown with discovery materials in both cases; and (5) file a motion to
suppress his post-arrest statement in his aggravated PSMV case. Brown also contends
that his appellate counsel was unconstitutionally ineffective for failing to: (1) investigate
or contact the exculpatory witnesses in both cases; (2) investigate Brown’s claims that
the arresting officers gave perjured testimony in both trials; (3) provide Brown with
discovery materials during his appeal; and (4) assert a claim of trial counsel’s
ineffectiveness on direct appeal.
Standard of Review
Before a federal court may address the merits of a habeas corpus petition from a
state prisoner, the petitioner must give each level of the state’s courts a fair opportunity
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to review his federal claims. 28 U.S.C. § 2254(b)(1)(A); Baldwin v. Reese, 541 U.S. 27,
32 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999). If, in resolving a
petitioner’s constitutional claim, a state court relies on a state procedural ground that is
independent of the federal question and adequate to support the judgment, the claim is
procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 729 (1991); Moore v.
Bryant, 295 F.3d 771, 774 (7th Cir. 2002). If a claim has been procedural defaulted, a
federal court will not address the merits of the claim unless the petitioner can
demonstrate both cause for and prejudice from the default or that a miscarriage of
justice will occur if the Court fails to address the merits. See, e.g., Woods v. Schwartz,
589 F.3d 368, 373 (7th Cir. 2009).
Discussion
Respondent contends that Brown procedurally defaulted all of his claims by
failing to file a PLA challenging the dismissal of his post-conviction petition. Brown does
not directly address the procedural default issue but merely asks the Court to look at his
case. Respondent, in turn, offers no argument on the merits of any of Brown’s claims.
The Court concludes that although Brown’s failure to file a PLA does not amount to a
procedural default, Brown has nevertheless procedurally defaulted all of his federal
claims and can provide no excuse sufficient to permit the Court to reach the merits of
his claims.
A.
Brown’s rejected PLA petitions
When dealing with a state procedural rule, the Court will defer to the state court’s
decision “when that rule is applied in a consistent and principled way, but a rule that is
infrequently, unexpectedly, or freakishly applied is not an adequate state ground that
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bars federal habeas review.” Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir.
2000). The adequacy of a state procedural bar is a question of federal law, not state
law. Lee v. Kemna, 534 U.S. 362, 375 (2002).
Illinois Supreme Court Rule 315, which governs the filing of PLAs, is an
established rule that is, no doubt, commonly applied. But although a violation of a firmly
established and regularly followed state rule ordinarily forecloses review of a federal
claim, there are “exceptional cases in which exorbitant application of a generally sound
rule renders the state ground inadequate to stop consideration of a federal question.”
Id. at 376; see also Smith v. Winters, 337 F.3d 935, 937 (7th Cir. 2003) (“[W]hen the
application [of a state rule] is so surprising, unanticipated, unprecedented,
unforeseeable, and indeed freakish as not to be foreseeable by the petitioner, its
existence will not block him from pressing his federal claims in his federal habeas
corpus proceeding.”).
Brown made three separate attempts to file a PLA challenging the denial of his
post-conviction petition. Each time he was rebuffed by the Illinois Supreme Court, who
“acknowledge[d] receipt” but nevertheless returned his petitions unfiled. Ex. R, S, U.
The second and third petitions were returned because they were untimely, and there is
no basis to question that particular application of Rule 315. The court rejected Brown’s
first petition, however, solely because the writing on the bottom of the tenth page of the
petition was illegible. Ex. R. Rather than accepting the PLA and simply disregarding
any argument it could not read on that part of that page, or instructing Brown to refile a
readable copy of the page, the clerk of court returned Brown’s entire PLA petition
unfiled. Though there is indisputably a proper purpose for Rule 315’s requirement that
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a PLA set out the arguments the petitioner is making, it is difficult to see how Brown’s
error rendered his entire petition unsuitable. See Lee, 534 U.S. at 378 (looking to the
purpose of the state procedural rule to determine whether the application of that rule in
petitioner’s case served a perceivable state interest).
The text of Rule 315 does not contain any requirement that every part of a PLA
must be completely legible. And no published Illinois decision indicates that a PLA that
is partially illegible is subject to rejection in its entirety. The only mention of legibility
associated with Rule 315 is found in the 1984 Committee Comments to the rule, noting
that PLAs do not need to be printed, but “may be reproduced in other clearly legible
forms.” Ill. Sup. Ct. R. 315, 1984 cmts. This suggests that the court clerk’s refusal to
file and wholesale return of Brown’s PLA based on the illegibility of one portion of one
page was a “surprising, unanticipated, unprecedented, unforeseeable, and indeed
freakish” application of an otherwise well-established state procedural rule. Smith, 337
F.3d at 937. Like the petitioner in Lee, Brown “substantially, if imperfectly” complied
with the state procedural rule. For this reason, the state court’s decision is not an
adequate state-law ground precluding the Court from addressing the merits of Brown’s
claims. Lee, 534 U.S. at 366, 377 (finding that “nothing would be gained by requiring”
habeas petitioner to comply perfectly with state procedural rule). The Court therefore
rejects respondent’s argument that all of Brown’s claims procedurally defaulted when
the state court refused to accept and file his PLA.
The Court notes that the state court record does not contain the partially illegible
petition. Thus, the Court cannot determine with certainty what claims Brown asserted
in the PLA. For purposes of the discussion that follows in the remainder of this
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decision, the Court will assume that Brown asserted in the PLA all of the claims he has
included in his federal habeas corpus petition.
This does not end the Court’s procedural default analysis, however. If the Illinois
Appellate Court, the last court to render a judgment on Brown’s claims, rejected claims
due to Brown’s failure to comply with relevant state procedural rules, “the state court’s
refusal to adjudicate the claim . . . qualifies as an independent and adequate state
ground for denying federal review.” Cone v. Bell, 556 U.S. 449, 465 (2009); see also
Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (stating that when the last state court to
render a judgment on petitioner’s claims finds a procedural default based on state law,
that claim cannot ordinarily be reviewed in federal court). The Court will make this
assessment separately for each of Brown’s claims.
B.
Fourth Amendment claims
Brown contends that that the arresting officers violated his Fourth Amendment
rights when they arrested him in 2006 and 2007. Brown alleges that Officer Rashan did
not in fact arrest him at 8224 South Saginaw but instead searched and detained him
several houses down the street, where Brown was standing with two to three other
individuals. Brown contends that the officer arrested him because he would not provide
information about a certain gang member. He also alleges that on June 2, 2007, he
was not driving a Ford Mustang as Officer Sullivan testified but instead was standing
with his ex-girlfriend when the arresting officers approached him. The Mustang, he
says, was parked nearby. As with his first arrest, Brown contends that the officers
searched him only after he refused to give them information about a specific gang
member. He states that during their search, the arresting officers recovered a photo of
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him standing next to a red Mustang, which he contends was not the car parked nearby.
Brown alleges that when the officers discovered the Mustang parked nearby was stolen
and he would not tell them who had stolen it, they arrested him for PSMV. He argues
that the searches and seizures were conducted without probable cause and were thus
unconstitutional.
Brown’s Fourth Amendment claims are not cognizable in a federal habeas
petition. With respect to Brown’s claims that his 2006 and 2007 arrests were illegal, it is
well established “that illegal arrest or detention does not void a subsequent conviction.”
Gerstein v. Pugh, 420 U.S. 103, 120 (1975). In other words, “an illegal arrest . . . is an
insufficient ground, standing alone, upon which to vacate a conviction in federal habeas
proceedings.” Sanders v. Israel, 7171 F.2d 422, 423 (7th Cir. 1983); see also Hawkins
v. Montgomery, No. 10 C 0384, 2011 WL 4431175, at *2 (N.D. Ill. Sept. 22, 2011).
Brown’s claims that the police unlawfully searched him prior to his arrests
similarly fail. “[W]here the State has provided an opportunity for full and fair litigation of
a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus
relief on the ground that evidence obtained in an unconstitutional search or seizure was
introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976). Illinois clearly
provides an opportunity for criminal defendants like Brown to resolve Fourth
Amendment claims, and in any event, a petitioner cannot claim a denial of the
opportunity for full and fair litigation of his claim if he fails to raise and preserve the claim
in state court (which Brown did not do). United States ex rel. Bostick v. Peters, 3 F.3d
1023, 1027 (7th Cir. 1993); see also United States ex rel. Redding v. Godinez, 900 F.
Supp. 945, 948–49 (N.D. Ill. 1995). In short, Brown’s Fourth Amendment claims are not
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cognizable in this case.
C.
Due process claims
1.
Counsel’s failure to provide Brown with discovery materials
Brown claims that he was denied due process of law due to his trial and
appellate counsels’ failure to provide him with the discovery material that he requested.
Brown raised this allegation for the first time in his first petition for rehearing before the
Illinois Appellate Court. “[A]n appellant does not fully and fairly present a federal claim
to the state courts when he raises that claim for the first time in a petition for rehearing
before the state appellate court.” Lewis v. Sternes, 390 F.3d 1019, 1031 (7th Cir.
2004). Brown provides no explanation for his failure to raise this issue in a proper
fashion and does not attempt to show cause and prejudice with regard to the default.
The Court rejects the claim based on Brown’s unexcused procedural default.
2.
False testimony
Brown claims that he was denied due process because Officers Rashan and
Sullivan provided false testimony at his trials. The Court assumes for purposes of
discussion that this allegation states a viable due process claim. See United States v.
Kaufman, 783 F.2d 708, 709 n.5 (7th Cir. 1986); Holleman v. United States, 721 F.2d
1136, 1139 (7th Cir. 1983); Smith v. Page, No. 95 C 5129, 1998 WL 25197, at *1 (N.D.
Ill. Jan. 7, 1998). Even if the claim is potentially viable on the merits, however, it has
been procedurally defaulted. Brown did not include this claim in his post-conviction
petition filed in the state trial court. Rather, he asserted the claim for the first time when
he responded to his appointed appellate counsel’s Finley motion seeking leave to
withdraw. Under Illinois law, “[a]ny claim of substantial denial of constitutional rights not
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raised in the original or an amended [post-conviction] petition is waived.” 725 ILCS
5/122–3.
This state procedural bar is “not immortal,” however; “[i]f the last state court to be
presented with a particular federal claim reaches the merits, it removes any bar to
federal-court review that might otherwise have been available.” Ylst, 501 U.S. at 802.;
see also Cone, 556 U.S. at 468 (“Although we have an independent duty to scrutinize
the application of state rules that bar our review of federal claims, we have no
concomitant duty to apply state procedural bars where state courts have themselves
declined to do so.”) (internal citations omitted).
The state appellate court rejected Brown’s opposition to his appointed counsel’s
Finley motion but did not clearly explain why. It stated that it had reviewed the record,
the Finley motion, and Brown’s response, and it said there were “no issues of arguable
merit.” See Ex. I at 3. But that does not mean that the appellate court rejected Brown’s
newly-asserted claims on their merits rather than on the rather obvious basis that he
has not asserted them in his post-conviction petition (which was part of the appellate
record). When the basis for a state court’s ruling it is unclear from the face of the ruling,
a federal court considering a habeas corpus petition “look[s] to the nature of the
disposition and the surrounding circumstances to determine whether the state court
relied on an independent and adequate state law ground in disposing of the claim.”
Woods, 589 F.3d at 375. The Court concludes that the appellate court’s statement that
it found no issues of arguable merit is not enough to construe the decision to be meritsbased as to both the issues that Brown had presented in his post-conviction petition and
the claims he identified for the first time in his Finley response. The more reasonable
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and thus the more likely basis was that the court concluded the newly-asserted claims
lacked merit because Brown had forfeited them. See Lewis v. Sternes, 390 F.3d 1019,
1024, 1031 (7th Cir. 2004) (“[W]e reject the notion that a petitioner fairly presents his
federal claim to the state courts when he raises that claim for the first time in an
appellate brief after his lawyers has filed a motion to withdraw under Finley.”). The
Court concludes that the claim was procedurally defaulted.
D.
Sufficiency of the evidence
Brown alleges that the State failed to prove him guilty beyond a reasonable doubt
in either of his two trials. With respect to Brown’s second trial, Brown raised this claim
for the first time in his first petition for rehearing. As indicated above, “[a]n appellant
does not fully and fairly present a federal claim to the state courts when he raises that
claim for the first time in a petition for rehearing before the state appellate court.” Id. at
1031. Brown has procedurally defaulted this claim.
Turning to Brown’s first trial, he challenged the sufficiency of the evidence at trial
and on appeal to the Appellate Court. But his PLA filed in the Illinois Supreme Court
omitted this claim. This claim is thus procedurally defaulted as well.
E.
Ineffective assistance of appellate counsel
Brown alleges ineffective assistance of appellate counsel on four grounds: (1)
appellate counsel failed to investigate or contact exculpatory witnesses that Brown
identified in each of his cases; (2) appellate counsel failed to investigate Brown’s claims
that the arresting officers in both of his criminal trials gave perjured testimony; (3)
appellate counsel failed to provide Brown with the discovery materials that he
requested; and (4) appellate counsel failed to raise a Sixth Amendment claim that trial
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counsel was unconstitutionally ineffective.
Brown’s direct appeal was not decided until July 1, 2010, six days after his postconviction petition was denied. Ex. H. Brown claims that he filed his post-conviction
petition when he did at the direction of his appellate defender. Ex. M. The petition did
not include any claim of ineffective assistance by appellate counsel. Brown presented
his claim that appellate counsel was ineffective for failing to argue trial counsel’s
ineffectiveness for the first time in his May 9, 2011 response to the Finley motion filed
by his appellate counsel in his post-conviction case. He alleged ineffective assistance
of appellate counsel on the remaining grounds for the first time in his first petition for
rehearing, which he filed on June 24, 2011.
Brown procedurally defaulted parts one, two, and three of his ineffective
assistance claim (as identified above) because he did not assert them in state court at
any point before his petition for rehearing on appeal. See Lewis, 390 F.3d at 1031.
Brown likewise procedurally defaulted the fourth part of his ineffective assistance claim,
concerning appellate counsel’s failure to argue trial counsel’s ineffectiveness.
Specifically, he failed to raise the claim at all levels in the state court system in
connection with his post-conviction petition. See Johnson v. Loftus, 518 F.3d 453, 455
(7th Cir. 2008). Even if the Court assumes that Brown included the claim in his
attempted PLA, he did not present the claim at the trial court level in his post-conviction
petition.
Brown does not attempt to show cause and prejudice with regard to these
defaults. Rather, he merely contends that his lawyers have been “railroading” him. This
is insufficient to excuse the default.
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F.
Ineffective assistance of trial counsel
Brown’s final claim is that trial counsel was ineffective for failing to: (1) obtain
video surveillance footage from the car dealership where the Cadillac Escalade was
stolen; (2) provide him with discovery materials in both of his cases; (3) file a motion to
suppress his oral statement in his first trial; (4) investigate allegedly conflicting evidence
that the prosecution presented in his second trial; and (5) investigate, interview, or call
to the stand two exculpatory witnesses to testify on his behalf. The Court finds that
Brown has procedurally defaulted all of these contentions.
1.
Grounds 1–4
The first time that Brown alleged that his trial counsel was ineffective on grounds
one and two was in his petitions to the Illinois Appellate Court seeking rehearing. As
indicated above, constitutional claims that are initially presented to the state courts in
this manner are considered to have been procedurally defaulted. Lewis, 390 F.3d at
1031. Brown has not presented any argument for cause and prejudice to excuse the
default.
Brown initially alleged that counsel in his first trial was ineffective for failing to file
a motion to suppress when he filed his response opposing appellate counsel’s Finley
motion seeking leave to withdraw. Brown procedurally defaulted this claim as well, as
discussed in connection with his due process claim based on the arresting officers’
allegedly false testimony.
Finally, Brown contends that trial counsel was ineffective when he failed to take a
photograph of the Mustang that he was convicted of possessing and compare it with the
photographs of a Mustang that the prosecution introduced into evidence. Brown never
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presented this argument to any state court. He procedurally defaulted this claim as
well.
2.
Failure to investigate, interview, or call exculpatory witnesses
Brown’s final claim is that his trial counsel rendered unconstitutionally ineffective
assistance by failing to investigate two exculpatory witnesses and to call them to testify
on Brown’s behalf. Brown first presented this claim to the trial court in his postconviction petition filed on June 3, 2009. The trial court dismissed Brown’s claim, noting
that he did not include an affidavit from any potential witness or “explain the significance
of this witness’[s] testimony.” Ex. AA at 28.
The Illinois Post Conviction Hearing Act provides that a post-conviction petition
“shall have attached thereto affidavits, records, or other evidence supporting its
allegations or shall state why the same are not attached.” 725 ILCS 5/122-2. The
purpose of section 122-2 is to show that a defendant’s post-conviction allegations “are
capable of objective or independent corroboration.” People v. Collins,
202 Ill. 2d 59, 67, 782 N.E.2d 195, 199 (2002).
When a post-conviction petitioner asserts, as Brown did, ineffective assistance
based on trial counsel’s failure to call or contact certain witnesses, Illinois courts have
routinely held that a petitioner must “attach to his petition affidavits showing the potential
testimony of such witnesses and explain the significance of their testimony.” People v.
Dean, 226 Ill. App. 3d 465, 468, 589 N.E.2d 888, 890 (1992); People v. Barr, 200 Ill.
App. 3d 1077, 1079, 558 N.E.2d 778, 780 (1990. In this case, the state trial court ruled
that Brown satisfied neither requirement. And though section 122-2 permits a petitioner
to offer other types of evidence to support a petition or an explanation of why he is
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unable to do so, Brown did not meet this alternative requirement either. See Ex. AA at
31-41 (Brown’s trial court post-conviction filings).
A petitioner’s failure to meet the requirements in 725 ILCS 5/122-2 amounts to a
procedural default of the petitioner’s federal claim. See, e.g., United States ex rel.
Smith v. Evans, No. 00 C 4482, 2009 WL 196301, at *11 (N.D. Ill. Jan. 26, 2009);
United States ex rel. Edwards v. Sternes, No. 04 C 1610, 2005 WL 3447773, at *3 (N.D.
Ill. Dec. 13, 2005); see also United States ex rel. Hampton v. Leibach, 347 F.3d 219,
242 (7th Cir. 2003) (characterizing petitioner’s failure to provide an affidavit as required
by the Post-Conviction Hearing Act as procedural default). Thus Brown’s last ineffective
assistance claim is procedurally defaulted.
G.
Excusing Brown’s procedurally defaulted claims
As indicated earlier, Brown has not offered a cause-and-prejudice argument as a
basis to excuse his procedural defaults. He does, however, repeatedly contend in his
filings that he is innocent. The Court will consider this as an argument that his
procedural defaults should be excused on the ground that failure to consider them
would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750.
To excuse his procedural defaults under the miscarriage-of-justice exception,
Brown “must show that ‘in light of new evidence, it is more likely than not that no
reasonable juror would find him guilty beyond a reasonable doubt.’” Coleman v. Hardy,
628 F.3d 314, 319 (7th Cir. 2010) (quoting House v. Bell, 547 U.S. 518, 537 (2006)).
The Court “consider[s] all of the evidence, old and new, and based on this total record,
make[s] a probabilistic determination about what reasonable, properly instructed jurors
would do.” Coleman, 628 F.3d at 319 (internal quotation marks omitted).
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Brown has not given the Court any new evidence to support his innocence claim.
He contends that he has two exculpatory witnesses, but he has not submitted anything
showing that they have knowledge that contradicts the evidence offered at his trials.
Brown contends that his lack of evidence is due to his inability to locate the witnesses.
This contention is insufficient to excuse him from the requirement of showing that with
his new evidence, it is more likely than not that no reasonable juror would have found
him guilty.
Brown claims that these witnesses would provide testimony that the arresting
officers in both of his cases lied about where they arrested him. Taking this as true for
present purposes, the witnesses’ claimed testimony would concern only the place of
Brown’s arrest, not his subsequent interaction with the arresting officers. A reasonable
jury would not necessarily have to draw from erroneous testimony by the arresting
officers about the location of the arrests the conclusion that Brown made statements in
which he impliedly admitted to possessing the stolen vehicles. This aside, a reasonable
jury could have found evidence sufficient to convict Brown based on Donna Lee’s lineup
identification in Brown’s aggravated PSMV case and the photographs depicting him
standing next to a Ford Mustang in his PSMV case. Given these circumstances,
Brown’s claimed exculpatory evidence is insufficient to demonstrate that “a
constitutional violation has probably resulted in the conviction of one who is actually
innocent.” Schlup v. Delo, 513 U.S. 298, 321 (1995).
H.
Certificate of appealability
When a district court enters a final judgment that dismisses a prisoner’s habeas
corpus petition, it must issue or deny a certificate of appealability (COA). Unless a court
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issues a COA, “federal courts of appeals lack jurisdiction to rule on the merits of
appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To
obtain a COA, the petitioner must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). A court should issue a COA if it
determines that “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.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
The Court’s determination that each of Brown’s claims is procedurally defaulted
and that these defaults are not excused is not fairly debatable. The Court therefore
declines to issue a certificate of appealability.
Conclusion
For the reasons stated above, the Court denies Brown’s petition for writ of
habeas corpus [docket no. 18] and declines to issue a certificate of appealability. The
Clerk is directed to enter judgment in favor of the respondent.
MATTHEW F. KENNELLY
United States District Judge
Date: October 22, 2012
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