Rice v. Roberson et al

Filing 23

OPINION AND ORDER Signed by the Honorable Sara L. Ellis on 9/4/2018: Denying petitioner's petition for writ of habeas corpus and the Court declines to certify any issues for appeal under 28 U.S.C. § 2253(c). Mailed notice (mw,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DUANE RICE,
Petitioner,
v.
JASON GARNETT, Chief of Parole,
Respondent.

1

)
)
)
)
)
)
)
)
)

No. 13 C 2824
Judge Sara L. Ellis

OPINION AND ORDER
Petitioner Duane Rice, who is currently on parole,2 is serving a ten-year sentence for
being an armed habitual offender. Rice has petitioned this Court for a writ of habeas corpus
under 28 U.S.C. § 2254, arguing that the evidence was insufficient to convict him of being an
armed habitual offender and that his trial and appellate counsel were ineffective for failing to
argue this claim. Respondent requests that the Court deny Rice’s petition on the basis that the
Illinois Appellate Court’s decision rejecting both claims was not contrary to or an unreasonable
application of Supreme Court precedent. For the following reasons, the Court denies Rice’s
petition.

1

The Court substitutes Jason Garnett, the chief of parole for the Illinois Department of Corrections, as the
Respondent, because Rice is currently on parole and so Christianson is the “state officer who has
custody” of Rice. Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District
Courts.

2

Rice filed his petition while serving his sentence at the Lincoln Correctional Center. A review of the
Illinois Department of Corrections inmate locator indicates that he was released on parole on November
15, 2016. As he remains on parole, Rice continues to satisfy the “in custody” requirement. See Jones v.
Cunningham, 371 U.S. 236, 240–43, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963) (a person on parole satisfies
the custody requirement).

BACKGROUND
The Court presumes that the state court’s factual determinations are correct for the
purposes of habeas review because Rice has not pointed to clear and convincing evidence to the
contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The
Court thus adopts the state court’s recitation of the facts and begins by summarizing the facts
relevant to the petition.
In December 2008, following a bench trial in the Circuit Court of Cook County, Illinois,
the trial court judge convicted Rice of being an armed habitual offender and sentenced him to ten
years’ imprisonment. On direct appeal, Rice argued that the State failed to prove his guilt
beyond a reasonable doubt because the police officer’s testimony that he saw Rice with a firearm
was “uncorroborated and unbelievable.” Ans. at Ex. A p. 1. The Illinois appellate court
affirmed Rice’s armed habitual offender conviction and sentence on November 19, 2010.3 The
Illinois Supreme Court declined Rice’s petition for leave to appeal (“PLA”).
On June 17, 2011, Rice filed a pro se post-conviction petition pursuant to 725 Ill. Comp.
Stat. 5/122-1, et seq. in the Circuit Court of Cook County. That petition alleged that trial and
appellate counsel were ineffective for failing to contest the sufficiency of the State’s evidence of
gun possession because neither counsel challenged the State’s failure to introduce the gun,
photographs of the gun, or any evidence relating to the gun’s chain-of-custody. Id. Ex. O at p.
C17. The trial court denied the petition, finding that: (1) appellate counsel did challenge the
sufficiency of the evidence; (2) the state appellate court found that the evidence supported
conviction; (3) trial counsel challenged the State’s evidence by calling witnesses, including Rice

3

The appellate court vacated Rice’s convictions for two counts of unlawful use of a weapon by a felon
(“UUW”) and two counts of aggravated UUW based on the one-act, one-crime principle that holds only
the conviction on the most serious offense should stand when all convictions are based on a single act.
Ans. at Ex. A pp. 1-2, 7.

2

himself; and (4) petitioner did not explain how the chain-of-custody was tainted or why such a
challenge would have been successful. Id. at pp. C46–47. Rice’s appointed counsel for the
appeal of that denial filed a motion to withdraw as counsel pursuant to Pennsylvania v. Finley,
481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987), asserting there were no arguable bases
for relief. The Illinois appellate court affirmed the denial of the petition, finding “no issue of
arguable merit.” Id. at Ex. B p. 2. The Illinois Supreme Court denied Rice’s PLA on March 27,
2013.
On April 15, 2013, Rice filed the instant pro se petition for writ of habeas corpus.
LEGAL STANDARD
A habeas petitioner is entitled to a writ of habeas corpus if the challenged state court
decision is either “contrary to” or “an unreasonable application of” clearly established federal
law as determined by the United States Supreme Court or if the state court decision “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)(1)–(2). A state court decision is “contrary to” clearly
established federal law “if the state court arrives at a conclusion opposite to that reached by this
Court on a question of law” or “if the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the
Court].” Williams v. Taylor, 529 U.S. 362, 404–05, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).
An “unreasonable application” of federal law occurs if the state court correctly identified the
legal rule but unreasonably applied the controlling law to the facts of the case. See id. at 407.

3

ANALYSIS
I.

Sufficiency of the Evidence Due Process Claim
Rice brings a due process claim alleging that because the State did not introduce the gun

itself, photographs of the gun, or any explanation of the chain-of-custody of the gun, there was
insufficient evidence to convict him of being an armed habitual offender. Respondent argues
that the Illinois appellate court’s rejection of this claim was not contrary to, or an unreasonable
application of Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The
Court agrees.
A federal court may grant habeas relief on a § 2254(d) claim if the state court’s decision
was “contrary to” or “involved an unreasonable application of” clearly established Supreme
Court precedent. See Harrington v. Richter, 562 U.S. 86, 100, 131 S. Ct. 770, 786, 178 L. Ed. 2d
624 (2011). The Court assesses the reasonableness of the state court’s decision, not the
adequacy of its reasoning, and the Court may only grant relief “where there is no possibility that
fairminded jurists could disagree that the state court’s decision conflicts with this Court’s
precedents.” Id. at 102. Therefore, the question on this claim is not whether this Court disagrees
with Illinois court’s application of Jackson to the possession evidence, but whether that court’s
decision was “so lacking in justification” that it presents “an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 102–
103 (“It bears repeating that even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.”).
On direct appeal, the appellate court rejected Rice’s argument that the police officer’s
testimony that he observed Rice in possession of a gun was insufficient for a conviction.
Although the Illinois court did not explicitly decide this as an issue of federal constitutional law,

4

it applied the standard found in Jackson when considering the claim and the case it cited, People
v. Sutherland, 860 N.E.2d 178, 217, 223 Ill. 2d 187, 307 Ill. Dec. 524 (2006), adopts Jackson.4
Under Jackson, there is no due process violation if, when the evidence is viewed in the light
most favorable to the State, “any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” 443 U.S. at 319. This makes challenging the sufficiency
of the evidence a “daunting task.” United States v. Bailey, 510 F.3d 726, 733 (7th Cir. 2007)
(“To be irrational, a verdict must not rest on any evidence, regardless of how it is weighed, from
which the trier of fact could find guilt.” (internal quotation marks omitted) (citation omitted)).
Under Illinois law, a conviction for being an armed habitual offender requires a finding of, in
relevant part, possession of “any firearm after having been convicted a total of 2 or more times of
any combination of”: (1) a forcible felony, (2) unlawful use of a weapon by a felon, or (3) a class
three or higher felony under the Illinois Controlled Substances Act. 720 Ill. Comp. Stat. 5/241.7(a). Rice only contests the sufficiency of the State’s evidence of possession. He does not
question the State’s introduction of certified copies of his prior convictions for a class one
delivery of a controlled substance felony and unlawful use of a weapon by a felon.
The appellate court found “nothing inherently implausible” in the police officer’s
testimony that he saw the butt of a gun poking out from Rice’s waistband when he was a half a
block away. Ans. at Ex. A p. 5. The court further found that the testimony of another police
officer, Officer Jones, who testified that Rice admitted to possessing the gun and stated, “it is a
war out there” to explain why he possessed the gun corroborated the testimony of the first police
officer Id. at pp. 5–6. The court stated that the fact that Officer Jones did not see Rice in

4

Respondent does not argue that Rice failed to fairly present his claims, including this one, to the state
courts. See O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999) (a
petitioner must fairly present his claims to all levels of the Illinois courts to avoid procedural default).
Therefore, the Court will consider his claims on their merits.

5

possession of the gun was not significant because officers had already taken Rice into custody
and recovered the gun by the time Officer Jones arrived on the scene. The appellate court
credited the factual findings of the trial court that assessed the officers’ credibility and testimony
and refused to disturb that finding. Viewing the evidence in the light most favorable to the State,
any reasonable trier of fact would have found these officers’ statements supported possession.
See Jackson, 443 U.S. at 319. The appellate court’s finding upholding the same was, therefore,
not unreasonable. Rice is not entitled to federal habeas relief on this claim.
Rice argues that the evidence was insufficient to convict him because the State did not
introduce the gun or photographs of the gun, or any testimony about the chain-of-custody.
However, the appellate court’s decision is not unreasonable simply because the State did not
introduce this evidence at trial. The court was well within the bounds of Illinois law to find
sufficient evidence of gun possession based on eyewitness testimony alone. See People v.
Washington, 969 N.E.2d 349, 356, 2012 IL 107993, 360 Ill. Dec. 539 (2012) (“given [the
victim/eyewitness’s] unequivocal testimony and the circumstances under which he was able to
view the gun, the jury could have reasonably inferred that defendant possessed a real gun”);
People v. Lee, 876 N.E.2d 671, 675–76, 376 Ill. App. 3d 951, 315 Ill. Dec. 359 (2007) (victims’
testimony sufficient to establish defendant committed the robbery while carrying a firearm); see
also United States v. Buggs, 904 F.2d 1070, 1076 (7th Cir. 1990) (“The fact that the gun was not
produced at trial or that the witnesses did not have an opportunity to examine closely the weapon
does not prevent conviction of a firearm offense) (federal gun possession charge); United States
v. Hayes, 919 F.2d 1262, 1265 (7th Cir. 1990) (testimony that witnesses delivered firearms to
defendant sufficient to establish possession) (same).

6

In response, Rice seeks to distinguish Buggs, on the basis that the witness in Buggs
described the gun at issue, while no one provided a description of the gun in his case. Rice’s
attempt to distinguish Buggs fails because the Illinois Supreme Court has upheld firearm
possession convictions based solely on eyewitness testimony. See, e.g., Washington, 969
N.E.2d at 356. The appellate court’s affirmance of Rice’s conviction based on the eyewitness
testimony of two officers was not so lacking in justification that it constitutes a constitutional
violation. See Harrington, 562 U.S. at 102–103.
Rice also cites three Illinois cases to argue that Illinois courts require the State to prove
actual or constructive possession of the gun for an armed habitual criminal conviction. See
Reply at 1–2. The first case, People v. Lipscomb-Bey, analyzes the “substantial step” aspect of
an attempted armed habitual criminal conviction and so does not address Rice’s contention about
the failure to produce the gun. 982 N.E.2d 240, 2012 IL App (2d) 110187, 367 Ill. Dec. 562
(2012). The second, People v. Ross, upholds an armed habitual criminal conviction when
constructive possession was proven by evidence the gun was found in plain view in the car the
defendant had been driving. 947 N.E.2d 776, 781, 407 Ill. App. 3d 931, 349 Ill. Dec. 762
(2011). The constructive possession conviction in Ross was based only on eyewitness testimony,
which supports the appellate court’s reliance on the same in Rice’s case. See 947 N.E.2d at 779–
80 (summarizing state’s evidence). Similarly, in Rice’s third case, People v. Nesbit, the court
upheld the jury’s finding of knowledge and possession of a firearm based on the officers’
testimony as to the location of the gun in the car. 924 N.E.2d 517, 526–27, 398 Ill. App. 3d 200,
338 Ill. Dec. 311 (2010). None of these cases undercut the appellate court’s reasonableness in
upholding the conviction based on the officers’ testimony.
The Court thus denies Rice’s due process claim based on the sufficiency of the evidence.

7

II.

Ineffective Assistance of Trial and Appellate Counsel Claim
Rice also brings a claim for ineffective assistance of his trial and appellate counsel for

failing to contest the sufficiency of the evidence on the same grounds discussed above.
Respondent argues the appellate court’s rejection of this claim was not contrary to or an
unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984). For the reasons discussed below, the Court agrees.
To demonstrate ineffective assistance of counsel, Rice must show that his counsel’s
performance “fell outside the wide range of professionally competent assistance” and that “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” See Allen v. Chandler, 555 F.3d 596, 600 (7th Cir.
2009) (internal quotation marks omitted). On habeas review, the Court does not evaluate trial
counsel’s performance de novo; rather it determines whether the state court’s application of
Strickland was unreasonable. See Harrington, 562 U.S. at 101. The Court must give “deference
and latitude” to the state court’s decision. Id. “The bar for establishing that a state court’s
application of the Strickland standard was ‘unreasonable’ is a high one, and only a clear error in
applying Strickland will support a writ of habeas corpus.” Allen, 555 F.3d at 600.
On post-conviction appeal, the appellate court found this claim failed because Rice’s trial
and appellate counsel challenged the sufficiency of the evidence. Ans. at Ex. O pp. C46–47.
Although counsel did not challenge the failure to admit the gun, photographs of the gun, or
chain-of-custody evidence, the appellate court was reasonable in finding no prejudice when
counsel challenged the sufficiency of the evidence in other ways. As discussed above,
considering Illinois precedent upholding gun possession cases based only on eyewitness
testimony, counsels’ failure to argue this point was unlikely to have changed the outcome of the

8

case. See Schaff v. Snyder, 190 F.3d 513, 527 (7th Cir. 1999) (“Because the underlying claim
that trial defense counsel was constitutionally ineffective was at best a weak one, we cannot say
that appellate defense counsel was constitutionally ineffective in failing to raise it on direct
appeal.”). Therefore, it was reasonable for the Illinois appellate court to find that the
performance of both trial and appellate counsel did not fall below an objective standard, as
required by Strickland.
The Court denies Rice’s claim of ineffective assistance of trial and appellate counsel.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the Court must issue or
deny a certificate of appealability when it enters a final order adverse to a petitioner. With
respect to claims of constitutional violations denied on their merits, a habeas petitioner is entitled
to a certificate of appealability only if he can make a substantial showing of the denial of a
constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029, 154 L. Ed. 2d
931 (2003) (citing 28 U.S.C. § 2253(c)(2)). To make a substantial showing, the petitioner must
show 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, 120 S. Ct.
1595, 146 L. Ed. 2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct.
3383, 77 L. Ed. 2d 1090 (1983)). The requirement of a certificate of appealability is a threshold
issue and a determination of whether one should issue neither requires nor permits full
consideration of the factual and legal merits of the claims. “The question is the debatability of
the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at
342.

9

For the reasons stated above, the Court finds that there can be no showing of a substantial
constitutional question for appeal, as reasonable jurists would not find this Court’s rulings
debatable. See Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011) (citing Slack, 529 U.S. at
484–85)). Accordingly, the Court declines to issue a certificate of appealability.
CONCLUSION
For the foregoing reasons, Rice’s petition for a writ of habeas corpus pursuant to 22
U.S.C. § 2254 is denied and the Court declines to certify any issues for appeal under 28 U.S.C.
§ 2253(c).
Rice is advised that this is a final decision ending his case in this Court. If Rice wishes to
appeal, he must file a notice of appeal with this Court within thirty days of the entry of judgment.
See Fed. R. App. P. 4(a)(1). Rice need not bring a motion to reconsider this Court’s ruling to
preserve his appellate rights. Motions for reconsideration serve a limited purpose and are only
appropriate to bring to the Court’s attention a manifest error of law or fact or newly discovered
evidence. Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000). A
motion for reconsideration “is not appropriately used to advance arguments or theories that could
and should have been made before the district court rendered a judgment.” County of McHenry
v. Ins. Co. of the W., 438 F.3d 813, 819 (7th Cir. 2006) (citation omitted) (internal quotation
marks omitted); see also Matter of Reese, 91 F.3d 37, 39 (7th Cir. 1996) (a Rule 59(e) motion
does not “enable a party to complete presenting his case after the court has ruled against him”
(quoting Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995))).
However, if Rice wishes the Court to reconsider its judgment, he may file a motion under
Federal Rule of Civil Procedure 59(e) or 60(b). Any Rule 59(e) motion must be filed within 28
days of the entry of this judgment. See Fed. R. Civ. P. 59(e). The time to file a motion pursuant

10

to Rule 59(e) cannot be extended. See Fed. R. Civ. P. 6(b)(2). A timely Rule 59(e) motion
suspends the deadline for filing an appeal until the Rule 59(e) motion is ruled upon. See Fed. R.
App. P. 4(a)(4)(A)(iv). Any Rule 60(b) motion must be filed within a reasonable time and, if
seeking relief under Rule 60(b)(1), (2), or (3), must be filed no more than one year after entry of
the judgment or order. See Fed. R. Civ. P. 60(c)(1). The time to file a Rule 60(b) motion cannot
be extended. See Fed. R. Civ. P. 6(b)(2). A Rule 60(b) motion suspends the deadline for filing
an appeal until the Rule 60(b) motion is ruled upon only if the motion is filed within 28 days of
the entry of judgment. See Fed. R. App. P. 4(a)(4)(A)(vi).

Dated: September 4, 2018

______________________
SARA L. ELLIS
United States District Judge

11