Erwin v. Atchinson et al
Filing
25
MEMORANDUM Opinion and Order, Signed by the Honorable Harry D. Leinenweber on 11/7/2013. (ea, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA, ex
rel. DEAUNTE ANDRE ERWIN,
Petitioner,
Case No. 12 C 9454
v.
Hon. Harry D. Leinenweber
RICK HARRINGTON, Warden, Menard
Correctional Center,
Respondent.
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Deaunte Andre Erwin’s Petition
for a Writ of Habeas Corpus.
For the reasons stated herein, the
Petition is denied and the Court declines to issue a Certificate of
Appealability.
I.
BACKGROUND
Petitioner Deaunte Erwin (the “Petitioner”) is incarcerated by
the state of Illinois and is in the custody of Warden Rick
Harrington (the “Respondent”).
His incarceration stems from a
murder and armed robbery that took place in 2003.
Petitioner was
convicted in a jury trial in state court in which the jury found
that Petitioner discharged a firearm during the murder. Petitioner
had
made
incriminating
statements
to
law
enforcement,
prosecutors introduced those statements at trial.
and
The trial court
sentenced Petitioner to twenty-five years for first degree murder,
an additional twenty years for personal discharge of a firearm
during the murder, and another ten years for each of two armed
robberies.
Petitioner pursued a direct appeal and a full round of postconviction proceedings, all to no avail.
The Illinois courts that
heard Petitioner’s claims all agreed with the trial court that
Petitioner’s confession was admitted properly.
The state courts
held that Petitioner had not been denied effective assistance of
counsel at either his trial or direct appeal.
Petitioner then
brought this Petition for a Writ of Habeas Corpus.
II.
ANALYSIS
Petitioner’s claims are based on ineffective assistance of
both trial and appellate counsel and the trial court’s failure to
suppress an allegedly coerced confession.
Respondent agrees that,
with the exception of one ground within the ineffective assistance
claim, Petitioner has exhausted his state court remedies for these
claims because no state court avenues remain by which he may
present them.
In addition, none of these claims is barred by the
statute of limitations or by non-retroactivity principles.
A.
Ineffective Assistance of Counsel
1.
Inadequate Cross-Examination
Petitioner alleges that trial counsel neglected to conduct an
adequate cross-examination of an assistant state’s attorney about
a timeline related to Petitioner’s custodial request for counsel.
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On
direct
appeal,
Petitioner’s
appellate
counsel
raised
this
ineffective assistance ground, but then withdrew the allegation
after concluding that the argument had no factual basis.
F.
Exs. E,
Petitioner did not raise this argument in either of his post-
conviction appellate briefs.
See, Exs. K, M.
To present his case in federal court, a habeas petitioner must
first assert his federal claim through one complete round of statecourt
review,
either
on
direct
appeal
or
in
post-conviction
proceedings. 28 U.S.C. § 2254(b)(1)(A). “Adequate presentation of
a claim to the state courts requires the petitioner to present both
the operative facts and the legal principles that control each
claim.”
Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009).
Because appellate counsel withdrew this argument, Petitioner’s
claim fails this requirement and is barred procedurally.
Petitioner does not acknowledge this default and does not
present any excuse for it.
Petitioner could have argued that this
Court’s failure to review his claims would result in a “fundamental
miscarriage of justice.”
301 (7th Cir. 1997).
See, Patrasso v. Nelson, 121 F.3d 297,
This Court sees no apparent fundamental
miscarriage of justice, and declines to make Petitioner’s arguments
for him.
1999).
See, Franklin v. Gilmore, 188 F.3d 877, 884 (7th Cir.
Petitioner’s ground is defaulted and does not entitle
Petitioner to habeas relief.
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2.
Failure to Request a Separate Verdict Form
Petitioner argues that trial counsel should have requested
that the trial court provide the jury with separate verdict forms,
and that appellate counsel was ineffective for failing to make that
argument
on
Petitioner’s
direct
appeal.
argument
as
Respondent
to
concedes
inadequate
that
unlike
cross-examination,
Petitioner’s separate jury form argument was presented adequately
to the state court.
Resp. Br. at 16-18; see also, Ex. K at 17.
The state court reviewed this claim and determined that
Petitioner’s trial and appellate counsel did not provide inadequate
assistance.
This Court cannot grant the writ unless the state’s
adjudication of the claim either:
1.
resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
2.
resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
The state appellate court set forth accurately the rule
governing ineffective assistance of counsel:
the petitioner must
show that counsel’s performance fell below an objective standard of
reasonableness and that the deficiencies in counsel’s performance
resulted in prejudice.
U.S. 668 (1984).
Ex. N at 7; Strickland v. Washington, 466
The court noted that appellate courts reject
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routinely the “separate verdicts” argument.
Ex. N at 10.
The
court held that appellate counsel was not ineffective because
counsel’s failure to raise losing arguments was not unreasonable.
Id.
That state court decision was not “contrary to clearly
establish federal law” because it applied the rule from Strickland
accurately.
Nor was it unreasonable. As the Supreme Court has recognized,
omitting losing arguments on appeal is a “hallmark of effective
appellate advocacy.”
Smith v. Murray, 477 U.S. 527, 536 (1986).
In addition, trial counsel’s decision not to request separate
verdict forms could have been strategic:
providing the jury with
two forms might have given the jury the idea to pick and choose
rather than acquit outright, which would be inconsistent with
counsel’s theory that the government had failed to prove that
petitioner was at the scene of the crime.
The appellate court’s
decision finding that counsel was not ineffective was reasonable,
and thus Petitioner is not entitled to habeas relief on this claim.
3.
Mentioning a Lie Detector Test
Petitioner argues that trial counsel was ineffective for
mentioning, in his opening remarks, that a police officer wanted
Petitioner to take a lie detector test. Trial counsel explained in
court that he intended to show that Petitioner was read his Miranda
rights for the first time only when he requested a polygraph
examination, which would have strengthened his argument that the
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confession was coerced.
To show that counsel was ineffective,
Petitioner must show that counsel’s performance fell below an
objective standard of reasonableness and that the deficiencies in
counsel’s
performance
resulted
in
prejudice.
Strickland
v.
Washington, 466 U.S. 668 (1984).
The state appellate court resolved this issue on Strickland’s
performance prong.
It pointed to
an unequivocal statement of trial counsel’s
strategy, since [counsel] told the court he
raised the issue to emphasize the length of
time that passed after the arrest and before
police informed Erwin of his constitutional
right to remain silent and to have the help of
an attorney.
Ex. N at 10-11.
Counsel deemed it important to try to undermine
the confession, the strongest evidence against Petitioner.
By
mentioning the polygraph test, counsel was following a sound
strategy
designed
to
provide
the
jury
with
context
for
the
confession.
Because trial counsel was not ineffective, appellate counsel,
who raised and vigorously litigated Petitioner’s coerced confession
claim
on
direct
appeal,
was
not
ineffective
for
failing
to
challenge trial counsel’s reference to the lie detector test in the
opening statements.
Johnson v. Thurmer, 624 F.3d 786, 793 (7th
Cir. 2010) (because trial counsel was not deficient, appellate
counsel was not ineffective for failing to raise those arguments
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that were “comparably weaker” than the claims that appellate
counsel did raise).
The
appellate
court’s
application
of
Strickland
was
not
unreasonable, and this Court cannot grant habeas relief on this
ground.
B.
Coerced Confession
1.
Fourth Amendment
Petitioner appears to argue that his Fourth Amendment rights
were violated when the authorities did not bring him before a
magistrate until sixty-eight hours after his arrest, and that his
confession should have been suppressed for this reasons.
This
argument cannot provide an independent basis for relief because
Fourth Amendment claims are not cognizable on federal habeas review
where the State has provided an opportunity for full and fair
litigation of the claim.
Stone v. Powell, 428 U.S. 465, 493-94
(1976).
The state court heard Petitioner’s arguments and rejected
them.
It
found
that
there
was
no
undue
delay
in
bringing
Petitioner before a magistrate, and concluded that suppression was
not warranted on that basis.
Ex. V at DD4-19.
This surely was a
full and fair litigation of the claim, and Petitioner does not
contend otherwise.
This ground for relief is barred.
2.
Fourteenth Amendment
Petitioner argues that the circumstances of his interrogation
and custody rendered his confession involuntary.
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He points to
allegedly coercive detention conditions.
He argues that he was
forced to spend most of the forty-four hours following his arrest
in an interrogation room, was interrogated intermittently by at
least six different detectives and state’s attorneys, received only
two meals, and was forced to sleep two nights on a metal bench with
no bedding.
Petitioner also argues that his family and friends
were trying to contact him, and that he asked to speak with a
lawyer
long
before
he
made
any
incriminating
statements.
Petitioner posits that, under these circumstances, his confession
was coerced, in violation of his Fourteenth Amendment right to due
process.
The state court heard this claim on the merits.
Therefore,
this Court’s review of Petitioner’s habeas claim is limited to
whether that state decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
28 U.S.C.
§ 2254(d)(1).
The appellate court identified correctly that, in evaluating
the voluntariness of a confession, the court considers the totality
of the circumstances surrounding the confession.
Ex. A at 15;
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).
court noted
many
of the
relevant
factors,
which
The state
include
the
defendant’s age, intelligence, education, experience, and physical
condition at the time of the interview.
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Ex. A at 15.
The state
court explained that features of the interrogation – including its
duration, whether or not it was abusive, and whether or not it was
accompanied by Miranda warnings – are relevant considerations as
well.
Id.
The state court’s decision was not “contrary to”
clearly established Federal law because the court identified the
correct test and the relevant factors.
Williams v. Taylor, 529
U.S. 362, 405 (2000).
The state appellate court not only applied the proper rule,
but also did so reasonably.
The court undertook an exhaustive
analysis of each of the factors.
Ex. A at 15-19.
For example, the
court explained that, when he made the statement, Petitioner was a
physically healthy, reasonably intelligent, and literate twentyfour year old adult with experience with law enforcement who could
express himself and understand the circumstances of his custody.
Id.
The court noted that, several times, Petitioner was informed
of his Miranda rights.
Id. at 16.
The interrogation was somewhat
drawn out, but delays were justified by the complexity and severity
of the crime under investigation, in addition to the fact that
Petitioner himself was responsible for some of the delays.
at
18.
Petitioner’s
factual
assertions
regarding
Id.
allegedly
inappropriate treatment conditions were uncorroborated and deemed
not
credible,
a
determination
that
28 U.S.C. 2254(d)(2).
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this
Court
must
respect.
Because the state court’s resolution of this claim was not an
unreasonable application of federal law, Petitioner’s claim for
habeas relief must be denied.
III.
CERTIFICATE OF APPEALABILITY
To obtain a certificate of appealability, Petitioner must make
a “substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253.
He has made such a “substantial showing” if
“reasonable jurists could debate whether . . . the petition should
have been resolved in a different manner or that the issues
presented
were
adequate
to
deserve
encouragement
to
proceed
further.”
Resendez v. Knight, 653 F.3d 445, 446 (7th Cir. 2011).
This Court’s application of the procedural bars in 28 U.S.C. § 2254
and Stone is routine and beyond debate.
The Court declines to
issue a Certificate of Appealability.
IV.
CONCLUSION
For the reasons stated herein, the Petition for a Writ of
Habeas Corpus is denied.
The Court also declines to issue a
Certificate of Appealability.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:11/7/2013
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