Boyce v. Lemke et al

Filing 5

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 3/14/2013.(pcs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA ex rel.)
ANTOINE BOYCE #R-51888,
)
)
Petitioner,
)
)
v.
)
)
MICHAEL LEMKE, Warden,
)
)
Respondent.
)

No.

13 C 1923

MEMORANDUM OPINION AND ORDER
Antoine Boyce (“Boyce”) has just submitted a 28 U.S.C.
§22541 Petition for Writ of Habeas Corpus (“Petition”), utilizing
the Clerk’s-Office-supplied form made available to prisoners who
seek to challenge their state court convictions and sentences on
federal constitutional grounds (Boyce is serving a 50-year term
on a first-degree murder conviction and sentence that date back
to the spring of 2006).

As always, this Court has conducted the

preliminary review of the Petition called for by Rule 4 of the
Rules Governing Section 2254 Cases in the United States District
Courts (“Section 2254 Rules”), and this memorandum opinion and
order sets out the results of that threshold examination.
Because of the nearly seven-year gap between Boyce’s state
court sentencing and the current filing, this Court has looked
first at the issue of the Petition’s timeliness in terms of the
one-year period of limitation prescribed by Section 2244(d).

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All further references to Title 28's provisions will
simply take the form “Section--.”

When account is taken of the time occupied by Boyce’s exhaustion
of his direct appeal rights (see Section 2244(d)(1)) and by the
tolling that Section 2244(d)(2) provides during the pendency of
state post-conviction proceedings, the Petition has come in under
the limitations wire (though not by much).

This opinion

therefore turns to the substance of Boyce’s claims.
On that score this Court has obtained the May 2, 2012
Summary Order issued by the Illinois Appellate Court for the
First Judicial District in its Case No. 1-11-0583, in which that
court affirmed the Circuit Court’s summary disposition of Boyce’s
state post-conviction petition.

Because that brief order did not

identify the grounds that Boyce had advanced in his state
petition and this Court did not have a copy of that petition, it
was unable to ascertain whether Boyce has “exhausted the remedies
available in the courts of the State” (Section 2254(b)(1)(A)).
For present purposes, then, this Court has made the assumption
most favorable to Boyce’s standing in federal court--that the
answer to that inquiry would be “yes.”
Even on that most favorable assumption, however, the present
Petition plainly fails to demonstrate that Boyce “is in custody
in violation of the Constitution or laws or treaties of the
United States” (Section 2254(a)).

Here are the three grounds on

which Boyce seeks to rely as the predicate for federal relief:
Ground one: Antoine Boyce was denied due process of
law under the Fourtheenth [sic] Amendment to the United
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States to a jury trial and to present a defense when
trial court refused to allow a second degree murder
instruction.
Ground two: Antoine Boyce was denied due process of
law under the Fourtheenth [sic] Amendment to the united
States when trial court permitted the improper
admission of evidence that Mr. Boyce participated in an
armed robbery.
Ground three: Antoine Boyce was denied due process of
law under the Fourtheenth [sic] Amendment to the United
States when trial court allowed the state to improperly
amend the indictment when the jury was instructed on
accountability.
Simply to recite those claims shows that each is solely a matter
of state law that implicates no federal constitutional
question--in other words, that Boyce has failed to meet the
standard prescribed by Section 2254(d):
An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim
that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim-(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.
That being the case, “it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to
relief in the district court” (Section 2254 Rule 4).

And as that

rule teaches, “the judge must dismiss the petition” (id.), and

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this Court does so.

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

March 14, 2013

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