Hayes v. Martin

Filing 6

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 4/3/2013. (ph, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA ex rel.)
CURMILLER HAYES #M10616,
)
)
Petitioner,
)
)
v.
)
)
ALLAN MARTIN, Warden,
)
)
Respondent.
)

No.

13 C 2278

MEMORANDUM OPINION AND ORDER
Counsel for Curmiller Hayes (“Hayes”) has just filed a
Petition for Writ of Habeas Corpus (“Petition”) on Hayes’ behalf,
pursuant to 28 U.S.C. §2254,1 to challenge Hayes’ conviction on a
charge of aggravated battery with a firearm on which he is now
serving a 10-year sentence.

That is the only charge on which

Hayes was convicted, with the jury having found him not guilty of
charges of attempt murder and aggravated battery of John Wilson
(“Wilson”) and not guilty of the attempt murder of John
Morrissette (“Morrissette,” who was the asserted victim of the
aggravated battery involved in the guilty verdict).
Hayes’ appeal to the Illinois Appellate Court for the First
District was unsuccessful (the opinion on appeal is reported at

1

Hayes’ counsel has mysteriously (and quite mistakenly)
asserted that the Petition has been brought “pursuant to 28
U.S.C. §1746,” although that statute has nothing at all to do
with habeas corpus.

2011 IL App. (1st) 100127, 961 N.E.2d 311 (1st Dist. 2011)),2
after which the Illinois Supreme Court denied leave to appeal on
March 28, 2012.

No effort was made by Hayes to seek certiorari,

nor has he sought collateral review in the state court system.
Finally, the legal ground that Hayes advances in the current
Petition was presented to and decided by the Illinois Appellate
Court, so that there is no procedural impediment to this Court’s
consideration of the Petition’s merits.
Hayes’ sole predicate for invoking federal habeas relief is
the asserted constitutional inadequacy of representation by his
trial counsel in failing to urge, as the basis for presenting
evidence that victim Morrissette had previously been arrested for
pulling a gun on Wilson at the same club where Morrissette worked
as a bouncer and where the offense of conviction occurred, that
the arrest evidenced Morrissette’s violent nature--a ground
recognized in People v. Lynch, 104 Ill.2d 194, 470 N.E.2d 1018
(1984) as applicable where a criminal defendant claims selfdefense (as Hayes did at his trial).

Hayes’ counsel had instead

argued for admission of that same evidence--which it will be
noted was of the arrest, not a conviction, of Morrissette--as
demonstrating bias on Wilson’s part so as to challenge the
credibility of his trial testimony.

2

But that argument was not

Further citations to that opinion will refer only to the
N.E.2d reporter.
2

persuasive to the trial judge, and so the arrest was not admitted
into evidence.
According to Hayes’ counsel, trial counsel’s failure to
advance the Lynch-based argument ran afoul of the seminal
decision in Strickland v. Washington, 466 U.S. 668 (1984), so as
to meet the standard for habeas relief set out in Section
2254(d)(1).

But this Court’s threshold review of the Petition in

light of the Illinois Appellate Court’s treatment of the matter,
a review called for by Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts (“Section 2254
Rules”), demonstrates the groundlessness of the Petition--not
only did the Appellate Court correctly cite to Strickland, but
its analysis on that score was unimpeachable.
This Court apologizes for the following lengthy quotation
from the Appellate Court’s opinion (961 N.E.2d at 321-22), but
there is really no better way to demonstrate the thoughtful
treatment of the issue by that court.

Here is the relevant

portion of the Appellate Court opinion (note particularly the
evaluation in the last paragraph):
Lynch held that when the defendant raises self-defense
as a theory in the case, evidence showing the victim's
aggressive and violent character is relevant to support
the defendant's version of the facts when conflicting
accounts of the occurrence exist. Lynch, 104 Ill.2d at
200, 83 Ill.Dec. 598, 470 N.E.2d 1018. Although
convictions for violent crimes are reasonably reliable
evidence of violent character, mere evidence of a
victim's arrest is generally not sufficient “since it
does not indicate whether the victim actually performed
3

any of the acts charged.” People v. Ellis, 187
Ill.App.3d 295, 301, 134 Ill.Dec. 913, 543 N.E.2d 196
(1989); Lynch, 104 Ill.2d at 201, 83 Ill.Dec. 598, 470
N.E.2d 1018. However, a prior altercation or arrest
without a conviction can sufficiently prove violent
character if it is supported by firsthand testimony as
to the victim's behavior. People v. Cook, 352
Ill.App.3d 108, 128, 287 Ill.Dec. 235, 815 N.E.2d 879
(2004).
Here, the evidence of Morrissette's arrest may have
been sufficient because Wilson was on the stand
testifying firsthand as to the incident. However,
counsel's theory of the case was that all of the
State's witnesses had lied and therefore their
testimony that Hayes was the aggressor in the shooting
lacks reliability. If counsel wanted to admit this
evidence to show Morrissette's violent character, he
would have had the unenviable task of arguing to the
jury on one hand that Wilson is a liar, but when it
comes to the circumstances surrounding Morrissette's
arrest, he is telling the truth. Instead, counsel
decided to present the evidence under a rationale that
was consistent with his theory of the case. This court
will not second-guess counsel's exercise of judgment
and trial strategy.
Furthermore, the jury had before it even more
persuasive evidence of Morrissette's violent character.
Morrissette himself testified that he had a 2006
conviction for burglary and a 2008 conviction for
aggravated unlawful use of a weapon. See Cook, 352
Ill.App.3d at 128, 287 Ill.Dec. 235, 815 N.E.2d 879 (a
conviction, as opposed to an arrest, is “persuasive
proof” that the victim committed the violent crime).
He admitted that he kept a gun in the DJ booth and he
did not hesitate to shoot at Hayes even though he was
not supposed to handle or possess a weapon. The
evidence of Morrissette's arrest to show his violent
character is merely cumulative of that already
presented to the jury, and thus, Hayes was not
prejudiced by the failure of counsel to present
Wilson's testimony. People v. Whiting, 365 Ill.App.3d
402, 415, 302 Ill.Dec. 510, 849 N.E.2d 125 (2006)
(Gilleran Johnson, J., dissenting). Since Hayes cannot
satisfy the prejudice prong of Strickland, his
ineffective assistance claim cannot stand.

4

In light of the Strickland standards and the Appellate
Court’s handling of the matter, it simply cannot be said that its
adjudication “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” (Section 2254(d)(1)).
In sum, “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).

That being so, the

same Rule 4 mandates dismissal of the Petition, and this Court so
orders.3

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

April 3, 2013

3

In addition to seeking habeas relief, Hayes’ counsel has
asked that Hayes be permitted to proceed without payment of costs
or fees. That motion is denied, because the total fee payable
for filing a federal habeas petition that challenges a state
court conviction or sentence is the modest sum of $5. Hayes’
counsel is ordered to remit that amount to the Clerk of this
District Court forthwith. Other procedural aspects of relief
that have been requested by Hayes’ counsel are denied as moot.
5