Sallis v. Harrington et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 11/25/2015. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMOTHY SALLIS,
Petitioner,
v.
KIM
Case No. 14 C 6880
Judge John Robert Blakey
BUTLER, 1
Respondent.
MEMORANDUM OPINION AND ORDER
Petitioner Timothy Sallis brings a Petition for Writ of Habeas Corpus
(“Petition”) [6] pursuant to 28 U.S.C. § 2254, challenging his convictions entered in
the Circuit Court of Cook County. Petitioner is serving a 40 year prison term for
first degree murder and a 7 year prison term for robbery, to run consecutively, and
he is presently housed at Menard Correctional Center. For the following reasons,
this Court denies the Petition, and declines to issue a certificate of appealability.
I.
Legal Standard
Federal review of state court decisions under § 2254 is limited. With respect
to a state court’s determination of an issue on the merits, habeas relief can be
granted only if the decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law,” or “was based on an unreasonable
Kim Butler became the Warden of Menard Correctional Center after Petitioner filed his
Petition. Accordingly, Warden Butler is Petitioner’s current custodian and the proper
respondent in this habeas action. Rule 2(a) of the Rules Governing § 2254 Cases in the
United States District Courts; Fed. R. Civ. P. 25(d); Rumsfeld v. Padilla, 542 U.S. 426, 43435 (2004).
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determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2); see also Harrington v. Richter, 562 U.S. 86,
100 (2011).
This Court presumes that the state court’s account of the facts is
correct, and Petitioner bears “the burden of rebutting the presumption of
correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1); see also
Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012).
II.
Background and Procedural History
This Court begins by summarizing the facts and procedural posture from the
state court record [15] (attaching Exhibits A to N). This Court presumes that the
state court’s factual determinations are correct for the purposes of habeas review as
Petitioner does not contest them or point to clear and convincing contrary evidence.
28 U.S.C. § 2254(e)(1).
A.
Trial
Petitioner was convicted of first degree murder and robbery. The trial court
sentenced Petitioner to 40 years in prison for the murder and 10 years in prison for
the robbery, to run consecutively. The robbery sentence was reduced to seven years
on appeal, as discussed below.
The testimony at trial established that Petitioner beat Bradley Sterrett to
death after an altercation in Sterrett’s apartment involving a dispute over payment
for sexual favors.
Petitioner also stole electronics from Sterrett’s apartment,
including Sterrett’s cell phone.
After the beating, Petitioner visited his friend,
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Darrieck Jones. Petitioner told Jones that Sterrett attacked him and Petitioner hit
him back and “knocked him out.”
Jones testified that he took Sterrett’s cell phone from Petitioner and used it
to make personal phone calls. The police traced the phone calls, which led back to
Jones. Jones told the police several fabricated stories of how he acquired Sterrett’s
cell phone, but, after becoming a suspect in Sterrett’s murder, Jones told the police
about Petitioner’s altercation with Sterrett.
The police began searching for Petitioner and found him at one of his known
residences—an apartment. A detective saw Petitioner when someone else opened
the apartment door. The detective entered the apartment, arrested Petitioner and
read him his rights.
The detective noticed that Petitioner’s shoes had “reddish
brown stains on them.” The stains were later determined to be Sterrett’s blood.
At the police station, almost immediately after detectives finished reading
Petitioner his Miranda rights, he said, “you guys must be homicide detectives.”
Petitioner told the detectives that he knew that this was “about the guy that was
beat up at 3200 N. Lake Shore Drive,” the address of Sterrett’s apartment. He then
told the detectives that he agreed to perform sexual favors for Sterrett for money.
After completing the act, Sterrett refused to pay him. The two then “struggled.”
Petitioner said he hit Sterrett 20 times with his hands and feet until Sterrett was
unconscious.
Petitioner said he stole money from Sterrett’s pocket along with
electronic equipment, including the cell phone.
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Petitioner agreed to give a videotaped statement to the Assistant State’s
Attorney about the events preceding the physical altercation, which was played for
the jury at trial. In addition to recounting his version of events, Petitioner said that
he had not been mistreated or threatened in any way.
Petitioner took the stand at trial. He testified that Sterrett attacked him, hit
him four or five times, and tried to choke him. Petitioner first testified that he hit
Sterrett five or six times, but on cross-examination, Petitioner admitted that he hit
Sterrett 16 times with all of his force. Petitioner also backtracked from his video
confession, claiming that a detective kicked and choked him and made him admit to
stealing Sterrett’s electronics.
B.
Direct Appeal
Petitioner appealed, raising only sentencing errors. 5/17/07 Brief (Ex. B).
The Appellate Court reduced Petitioner’s robbery sentence from 10 to 7 years and
ordered that Petitioner be given an additional 63 days of credit for time served in
pre-trial custody. People v. Sallis, No. 1-06-0301 (Ill. App. Ct. Nov. 30, 2007) (Ex.
A). There is no record evidence that Petitioner filed a Petition for Leave to Appeal
to the Illinois Supreme Court after the Appellate Court’s decision.
C.
Post-Conviction Proceedings
On May 16, 2008, pursuant to 725 ILCS 5/122-1, Petitioner filed a Petition
for Post-Conviction Relief with the Circuit Court of Cook County. 5/16/08 Petition
(Ex. M at C14-C23). Petitioner raised 17 grounds for relief, including that trial
counsel was ineffective for failing to object to the admission of the videotaped
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statements taken without adequate Miranda warnings. Id. Petitioner made no
allegation that trial counsel was ineffective for failing to move to quash Petitioner’s
arrest and suppress post-arrest evidence on the ground that the police lacked
probable cause to arrest him.
On August 19, 2010, following appointment of
counsel, Petitioner filed an Amended Petition for Post-Conviction Relief. 8/19/10
Amended Petition (Ex. M at C80-C97). The State moved to dismiss the Petitions
and, on July 15, 2011, the Circuit Court granted the State’s motion. 7/15/11 Hr’g
Tr. at S39-S49 (Ex. N).
Petitioner appealed, arguing that post-conviction counsel did not meet the
assistance required by Illinois Supreme Court Rule 651(c) and Martinez v. Ryan,
132 S. Ct. 1309 (2012), because post-conviction counsel failed to assert that direct
appeal counsel was ineffective for failing to assert that trial counsel failed to move
to quash Petitioner’s arrest and suppress post-arrest evidence on the ground that
the police lacked probable cause to arrest him. 8/14/12 Brief (Ex. E). On September
16, 2013, the Appellate Court affirmed the Circuit Court of Cook County, finding
that post-conviction counsel was not ineffective. People v. Sallis, 2013 IL App (1st)
1112302-U (unpublished) (Ex. D). In particular, the Court found that Petitioner
had not argued in his original Petition for Post-Conviction Relief that trial counsel
should have moved to quash the arrest and suppress evidence based on a lack of
probable cause, and post-conviction counsel was not obligated to add that new
argument in the Amended Petition for Post-Conviction Relief. Id. ¶¶ 26-28.
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On October 18, 2013, Petitioner filed a Petition for Leave to Appeal, raising
the same argument as before the Appellate Court. 10/18/13 Petition for Leave to
Appeal (Ex. I). The Illinois Supreme Court denied the Petition for Leave to Appeal
on January 29, 2014. People v. Sallis, No. 116769 (Ill. Jan. 29, 2014) (Ex. H).
III.
Analysis
Petitioner brings two claims in his Petition for Writ of Habeas Corpus. Both
fail. Claim 1 (ineffective assistance of trial counsel) was defaulted and no exception
applies; and Claim 2 (ineffective assistance of post-conviction counsel) is noncognizable.
A.
Claim 1: Ineffective Assistance of Trial Counsel
To avoid procedural default, state prisoners must give the state courts “one
full opportunity” to resolve any constitutional issues by “invoking one complete
round of the State’s established appellate review process.” O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999). This means that Petitioner must raise any issues at “each
and every level in the state court system,” including levels at which state review is
discretionary.
Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004).
If
Petitioner asserts a claim for relief that he did not present in the first instance to
the state courts, the claim is procedurally defaulted and “federal courts may not
address those claims unless the petitioner demonstrates cause and prejudice or a
fundamental miscarriage of justice if the claims are ignored.” Byers v. Basinger,
610 F.3d 980, 985 (7th Cir. 2010).
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Here, Petitioner argues that his trial counsel was ineffective for failing to
move to quash Petitioner’s arrest and suppress his post-arrest statements on the
ground that the police lacked probable cause to arrest him. Petitioner, however, did
not raise this argument anywhere in his direct appeal.
Nor did he raise the
argument in his post-conviction proceedings, collectively, (1) the Petition for PostConviction Relief and Amended Petition for Post-Conviction Relief to the Circuit
Court of Cook County, (2) the ensuing appeal to the Illinois Appellate Court and (3)
the Petition for Leave to Appeal to the Illinois Supreme Court.
Despite Petitioner not having made his present claim as a standalone claim
to any state court, which ordinarily results in a procedural default, the Seventh
Circuit has found an alternate basis in certain cases for avoiding default and
proceeding to the merits where Petitioner’s claim in federal court was embedded in
an ineffective assistance of counsel claim in state court. Malone v. Walls, 538 F.3d
744, 754-55 (7th Cir. 2008); see also Long v. Butler, No. 13-3327, ___ F.3d ___, 2015
WL 6500128, at *4-5 (7th Cir. Oct. 27, 2015); McGee v. Bartow, 593 F.3d 556, 567
n.9 (7th Cir. 2010). Malone and its progeny show that this Court can reach the
merits of certain claims that, while not presented as standalone claims to the state
courts, were embedded in another claim. Here, in the post-conviction proceedings
before the Illinois Appellate Court and Illinois Supreme Court (but not the Circuit
Court of Cook County, as discussed below), Petitioner argued that his postconviction counsel was ineffective for failing to include in the Amended Petition for
Post-Conviction Relief that appellate counsel was ineffective for not arguing that
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trial counsel was ineffective for failing to move to quash Petitioner’s arrest and
suppress his post-arrest statements because the police lacked probable cause to
arrest him. Ineffective assistance of trial counsel thus is an embedded claim.
This argument, at first glance, may avoid procedural default and allow this
Court to reach the merits of Petitioner’s embedded ineffective assistance of trial
counsel claim under Malone. But Petitioner has not overcome another obstacle. To
reach the embedded claim, Petitioner should have presented his ineffective
assistance of post-conviction counsel claim through one full round of state review,
e.g., Malone, 538 F.3d at 755, and Lewis, 390 F.3d at 1026-27, but he did not do so.
Petitioner did not present his ineffective assistance of post-conviction counsel claim
(and, in turn, the embedded ineffective assistance of trial counsel claim) to the
Circuit Court of Cook County in his post-conviction proceedings.
Indeed, that
deficiency was the basis of Petitioner’s appeal to the Appellate Court. Sallis, 2013
IL App (1st) 1112302-U, at ¶¶ 16, 26-28 (Ex. D).
Thus, Petitioner has a “one
complete round” problem.
Perhaps Petitioner could argue, although he has not done so here, that postconviction counsel’s ineffectiveness created the requisite “cause and prejudice” to
excuse a procedural default. Byers, 610 F.3d at 985. Ordinarily, post-conviction
counsel’s ineffectiveness cannot excuse a procedural default. Coleman v. Thompson,
501 U.S. 722, 753-54 (1991).
While the Supreme Court has crafted a narrow
exception to Coleman for states that effectively prohibit ineffective assistance
claims on direct appeal, see Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013);
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Martinez v. Ryan, 132 S. Ct. 1309, 1318-20 (2012), this narrow exception does not
apply in Illinois under the circumstances here. Long, 2015 WL 6500128, at *12;
accord Murphy v. Atchison, No. 12-3106, 2013 WL 4495652, at *22 (N.D. Ill. Aug. 9,
2013) (collecting cases). Under Illinois law, when an ineffective assistance of trial
counsel claim is based on the trial record, the claim is waived unless brought on
direct appeal. People v. Smith, 745 N.E.2d 1194, 1201 (Ill. 2000). That is the case
here, where trial counsel’s purported failure to quash Petitioner’s arrest and
suppress his post-arrest statements is based on the trial record. See 8/14/12 Brief at
20-27 (Ex. E).
For these reasons, Petitioner’s ineffective assistance of trial counsel claim is
procedurally defaulted, and no exception saves it.
B.
Claim 2: Ineffective Assistance of Post-Conviction Counsel
Petitioner also argues that post-conviction counsel was ineffective.
This
argument, however, is barred by § 2254(i), which provides that the “ineffectiveness
or incompetence of counsel during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a proceeding arising under section
2254.” See also Szabo v. Walls, 313 F.3d 392, 396-97 (7th Cir. 2002).
IV.
Certificate of Appealability
Under § 2253(c)(2), a “certificate of appealability may issue … only if the
applicant has made a substantial showing of the denial of a constitutional right.”
An applicant has made a “substantial showing” when “reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
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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) (internal quotations omitted).
Here, this Court concludes that
Petitioner has not made a substantial showing of the denial of a constitutional right
or that reasonable jurists would debate the resolution of his claims. Accordingly,
this Court declines to issue a certificate of appealability.
V.
Conclusion
The Petition for a Writ of Habeas Corpus [6] is denied. This Court declines to
issue a certificate of appealability. The Clerk is directed to: (1) modify the case
caption to reflect that Kim Butler is the proper respondent; and (2) enter a Rule 58
Judgment in favor of Respondent and against Petitioner. Civil case terminated.
Dated: November 25, 2015
Entered:
____________________________
John Robert Blakey
United States District Judge
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