Cora v. Hardy

Filing 61

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 2/14/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA ex rel.)
TREMAYNE CORA #B79855,
)
)
Petitioner,
)
)
v.
)
)
MICHAEL LEMKE,1 Warden,
)
)
Respondent.
)

No.

11 C 9230

MEMORANDUM ORDER
Oscar Wilde, famous for his ironic aphorisms, said this
through one of his characters in Act III of Lady Windermere’s
Fan:
In this world there are only two tragedies. One is not
getting what one wants, and the other is getting it.
Assistant Attorney General David Iskowich, after having
successfully persuaded this Court to turn 180 degrees from the
course taken in its January 22, 2013 ruling that had viewed an
evidentiary hearing as called for in resolving the 28 U.S.C.
§2254 Petition filed by Tremayne Cora (“Cora”), has moved for
clarification of this Court’s ensuing January 31, 2013 memorandum
order (“Order”) that denied Cora’s Petition and dismissed this
action.

In so doing, attorney Iskowich correctly pointed out

that the Order had not spoken to all of the four grounds advanced

1

Because Michael Lemke has succeeded Marcus Hardy as the
Warden at Stateville Correctional Center, this case caption has
reflected his substitution as respondent (see Fed. R. Civ. P.
25(d).

by Cora in his pro se Petition (see the attached two pages).
This memorandum order is intended to cure that flaw.

But

before turning to that task, this Court believes that some
explanation (though not offered as justification for the
omission) is appropriate.
As soon as this Court received Cora’s self-prepared
Petition, it adhered to its uniform practice of reviewing and
analyzing that Petition,2 and it quickly determined that the only
one of the four grounds advanced by Cora that appeared
potentially viable was the fourth one.

But because the Petition

also posed some problems and raised some questions that needed
attention before the merits could be addressed, this Court
launched on a series of memorandum orders to deal with such
threshold questions.
That close oversight of the case began with the issuance of
a sua sponte memorandum order of January 5, 2012 inquiring into
the timeliness of Cora’s petition, then continued with a February
3 follow-up of that memorandum order when Cora’s criminal defense
lawyer in the state case failed to respond and with another
February 24 follow-up when this Court learned that the

2

That practice is indeed “uniform,” because this Court
follows it in all cases newly assigned to its calendar. But the
practice is especially appropriate in habeas cases, because it is
expressly prescribed by Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts (“Section 2254
Rules”).
2

nonresponding counsel had recently died.

Next this Court issued

a March 12 memorandum order that confirmed the Petition’s
timeliness and ordered an Answer by the Attorney General’s Office
(see Section 2254 Rule 4).
When that 35-page Answer was filed on May 17, this Court’s
prompt review tended to confirm this Court’s initial take on
Cora’s arguments, but it was clear that Cora would need
professional legal assistance in providing the reply contemplated
by Section 2254 Rule 5.

Accordingly this Court swiftly appointed

attorney Standish Willis to that post, and his full-scale work on
the case ultimately produced an extensive work product.
When this Court’s review of both sides’ submissions led to a
conclusion that confirmed its initial reaction that Cora’s fourth
ground for relief appeared to have the only potential for
success, it focused on that ground and issued its January 22,
2013 memorandum order that called for an evidentiary hearing
involving witness Tamika Day, rather than this Court’s following
the stay-and-abey procedure that attorney Willis had sought.
That in turn led to the final act in the convoluted drama, with
Assistant Attorney General Iskowich persuading this Court that no
such evidentiary hearing was appropriate and that the Petition
should simply be dismissed on the merits--but in so ruling this
Court failed to note that it had never memorialized in written
form its conclusions as to the failure of Cora’s other three

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grounds.
This review of the bidding has occupied more space and time
than this Court had contemplated.

But with that background, this

memorandum order turns to treating those other three grounds.
Ground One was dead in the water from the very outset.

Its

attempted invocation of the Fourth Amendment was barred by the
seminal 36-year-old decision in Stone v. Powell, 428 U.S. 465,
481-82 (1976) because, as taught by that controlling authority:
We hold, therefore, that where the State has provided
an opportunity for full and fair litigation of the
Fourth Amendment claim, the Constitution does not
require that a state prisoner be granted federal habeas
corpus relief on the ground that evidence obtained in
an unconstitutional search or seizure was introduced at
his trial.
Cora had clearly been provided that opportunity by the state
judiciary, so that Ground One failed.
Ground Two was also closed to Cora, this time because the
trial court’s rulings as to cross-examinations of eyewitness
Timothy Reason (“Reason”) plainly did not run afoul of the Sixth
Amendment’s Confrontation Clause.

Cora’s trial counsel was given

considerable leeway in inquiring into Reason’s drug dealing, and
as to drug usage--which Reason denied in any event--there was
nothing to indicate that he was impaired at the time of the fatal
shooting so as to raise any question as to the credibility of his
eyewitness testimony.

Nothing in the trial court’s handling was

“contrary to” federal law as established by United States Supreme

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Court teaching, and the Illinois Appellate Court’s treatment of
that issue was both factually and legally reasonable.
Ground Three was a total non-starter, because the Illinois
Appellate Court’s conclusion (“After a review of the record in
the light most favorable to the prosecution, we conclude that a
rational trier of fact could have found defendant guilty beyond a
reasonable doubt”) was unimpeachable in the terms expressly in
slightly different verbiage in another seminal United States
Supreme Court decision, Jackson v. Virginia, 443 U.S. 307, 319
(1979).

And there too the Appellate Court’s analysis and

conclusion were both factually and legally reasonable.
In sum, the preceding analysis, coupled with what was held
in the January 31, 2013 memorandum order dispatching Ground Four,
confirms the propriety of this Court’s total dismissal of Cora’s
Petition.

And finally, as to the potential for issuance of a

certificate of appealability (“COA”) as called for by Section
2254 Rule 11(a), it is equally clear that none of the issues
raised by Cora (including the submissions by his appointed
counsel) satisfies the showing required by 28 U.S.C. §2253(c)(2).
Hence this Court denies issuance of a COA.

Cora may of course

seek a COA from our Court of Appeals under Fed. R. App. 22.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

February 14, 2013
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