Little v. Brannon
Filing
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MEMORANDUM Opinion and Order. The Court denies Little's petition for a writ of habeas corpus. Morever, because he has not made a substantial showing of the denial of a constitutional right, the Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2). This case is terminated. Signed by the Honorable Jorge L. Alonso on 7/20/2015. Notice mailed by judge's staff (ntf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PRIEST LITTLE,
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Petitioner,
v.
CHRISTINE BRANNON, Warden,
Danville Correctional Center,
Respondent.
No. 15 C 1470
Judge Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
In 2009, Priest Little was convicted of drug-induced homicide and sentenced to thirty years
in prison. He has filed a petition pursuant to 28 U.S.C. § 2254 to set aside his conviction and
sentence. For the reasons set forth below, the Court denies the petition.
Background
In 2009, a jury convicted Little of drug-induced homicide for the death of Danielle Nicholas.
(See Gov’t Ex. A, People v. Little, No. 2-10-0083, 2011 Ill App (2d) 100083-U, at *11 (Ill. App. Ct.
Sept. 13, 2011).) He appealed, arguing that:
(1) he was deprived of a fair trial when the State was allowed to introduce and argue
victim-impact evidence; (2) the trial court erred in admitting other-crimes evidence;
(3) prosecutorial misconduct occurred during closing statements, warranting reversal
of his conviction or a new trial; (3) [sic] there was insufficient evidence to prove him
guilty beyond a reasonable doubt; (4) he received ineffective assistance of counsel
when his trial counsel failed to tender an accomplice-witness jury instruction; and
(5) the trial court improperly considered an element of the offense as an aggravating
factor when sentencing him to 30 years, warranting a reduction in sentence or a new
sentencing hearing.
(Id. at *1.) The appellate court affirmed the conviction and sentence. (Id.)
Little filed a petition for leave to appeal to the Illinois Supreme Court, raising three issues:
(1) whether victim impact evidence may be admitted without prejudice to the
defendant in a non-capital case, (2) whether the act of taking a packet of heroin from
someone, removing a portion of the heroin and then passing it back constitutes a
“delivery” of heroin under Illinois law, (3) whether it is proper for a prosecutor to
argue that a police officer is more credible because of his status as a police officer.
(See Gov’t Ex. F, Pet. Leave Appeal at 2.) His petition was denied. (See Gov’t Ex. G, People v.
Little, No. 113202 (Ill. Mar. 28, 2012).)
In January 2013, Little filed a petition for post-conviction relief, arguing that his trial counsel
was ineffective for not calling an alibi witness or moving to dismiss the indictment. (See Gov’t Ex.
H, Pet. Post-Conviction Relief at 18-19.) In October 2013, Little filed an amended petition in which
he added the claim that the trial court denied him effective assistance of counsel by failing to appoint
a lawyer to litigate Little’s pro se motion for a new trial. (See Gov’t Ex. I, Am. Pet. Post-Conviction
Relief at 19.) In November 2013, Little filed a second amended petition, in which he added the
claim that his counsel was ineffective for failing to move to dismiss the indictment on the grounds
that a preliminary hearing was not held within thirty days of Little’s arrest. (See Gov’t Ex. J, Second
Am. Post-Conviction Pet. at 19.) In November 2014, the trial court dismissed the second amended
petition. (See Gov’t Ex. M, People v. Little, 09 CF 234 (Cir. Ct. Lake Cnty. Nov. 20, 2014).) Little
did not appeal the dismissal.
Discussion
Little’s first claim is that the trial court violated his due process rights by admitting victim
impact evidence and argument. The government contends that habeas review of this claim is barred
because the state court resolved it on the independent and adequate state ground of waiver. See
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Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir. 2010) (“When a state court resolves a federal
claim by relying on a state law ground that is both independent of the federal question and adequate
to support the judgment, federal habeas review of the claim is foreclosed.”). “A state law ground
is independent when the court actually relied on the procedural bar as an independent basis for its
disposition of the case.” Id. at 592. “A state law ground is adequate when it is a firmly established
and regularly followed state practice at the time it is applied.” Id. A habeas court will review a
claim decided on an independent and adequate state ground only if the petitioner shows cause for
and prejudice from the procedural default. Id. at 594-95.
Both independence and adequacy are present here. The state court clearly based its rejection
of Little’s victim impact claim on waiver, noting that “no objections [to such evidence or argument]
were made during trial” and that, because no error had occurred, the plain error exception did not
apply. (See Gov’t Ex. A, People v. Little, No. 2-10-0083, 2011 Ill App (2d) 100083-U, at *12-13
(Ill. App. Ct. Sept. 13, 2011).) Further, the waiver doctrine was well established and adhered to by
Illinois courts when the Little court made its decision in 2011. See People v. Brown, 705 N.E.2d
809, 820 (Ill. 1998) (“Defense counsel did not object to [the reference to victim-impact evidence in]
the prosecutor’s opening statement, and therefore the defendant’s belated objection must now be
considered waived.”); People v. Childs, 428 N.E.2d 185, 187 (Ill. App. Ct. 1981) (“The failure to
make a timely objection to allegedly improper remarks by the prosecutor effects a waiver of the
objection.”); cf. People v. Prince, 840 N.E.2d 1240, 1253 (Ill. App. Ct. 2005) (“Defendant contends
he was denied a fair trial by the admission of victim impact testimony from Shawanna Fields and
Jewell Barker. Defendant’s posttrial motion makes no reference to Jewell Barker and only a general
objection to victim impact testimony by Shawanna Fields, resulting in waiver of the objection on
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appeal.”). Thus, the Court can review this claim only if Little “can establish cause and prejudice for
the [procedural] default or that the failure to consider the claim would result in a fundamental
miscarriage of justice.” Kaczmarek, 627 F.3d at 591; see Dellinger v. Bowen, 301 F.3d 758, 767
(7th Cir. 2002) (explaining that the miscarriage of justice exception only applies to “situations where
the constitutional violation has probably resulted in a conviction of one who is actually innocent”).
Because Little has done neither, the Court denies habeas relief on his due process claim.
Little’s second claim is that his trial counsel was ineffective for failing to request an
accomplice instruction at trial. Little is entitled to habeas relief on this claim, as relevant here, only
if the state court’s decision on it was “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).
With respect to this claim, the state court said:
Defendant next argues that he was denied effective assistance of counsel when his
trial counsel failed to tender an accomplice instruction with respect to Barraza. . . .
Claims of ineffective assistance of counsel are judged under the standard set forth in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
which provided a defendant must show (1) that counsel’s performance fell below an
objective standard of reasonableness and (2) that there is a reasonable probability
that but for counsel’s errors, the result of the proceeding would have been different.
...
....
If a witness denies involvement but admits presence at the scene and could have been
indicted either as a principal or under a theory of accountability, the defendant is
entitled to the accomplice-witness instruction. . . . We reject defendant’s conclusory
assertion that the trial court would have been obligated to give [the accomplicewitness instruction] because no facts were adduced to suggest that Barraza was
involved in the commission of the crime with defendant. . . . Contrary to defendant’s
assertions, Barraza only admitted to accompanying [the victim] on her purchase and
sharing in the use of [the victim’s] heroin.
. . . . In this case, Barraza was never charged or threatened to be charged with the
crime of drug-induced homicide or any other delivery of heroin offense. . . . [T]here
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was simply no evidence to suggest that Barrazza delivered heroin to [the victim] or
somehow assisted defendant in the delivery of heroin to [the victim]. The passing
of the tin foil packet from defendant to [the victim] to Barraza, to inject first, and
back to [the victim] does not constitute “delivery” of heroin under the meaning of the
statute. . . . [The victim], in this case, did not relinquish possession when she
allowed Barraza to take some of the heroin to cook and inject first. Accordingly,
defendant’s argument that Barraza was an accomplice fails under the facts of this
case and thus his ineffective assistance of counsel claim also fails.
(Gov’t Ex. A, People v. Little, No. 2-10-0083, 2011 Ill App (2d) 100083-U, at *17 (Ill. App. Ct.
Sept. 13, 2011) (emphasis in original).)
The state court correctly identified the controlling legal standard, a point Little tacitly
concedes. (See Pet. at 30-31.) But Little argues that the court unreasonably applied it to the facts
of his case because, under Illinois law, “if defense counsel had tendered an accomplice instruction
with respect to Nicole Barraza, the trial court would have been obliged to give it.” (Id. at 31.)
However, as the above-quoted passage illustrates, the state court disagreed with Little, and that
court’s interpretation of state law is not subject to challenge under § 2254. See Bates v.
McCaughtry, 934 F.2d 99, 102 (7th Cir. 1991) (“State law means what state courts say it means. .
. . A claim that the state court misunderstood the substantive requirements of state law does not
present a claim under § 2254.”). In short, the state court’s decision on Little’s ineffective assistance
claim was not “contrary to” or “an unreasonable application of” Strickland. Accordingly, he is not
entitled to habeas relief on this claim.
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Conclusion
For the reason set forth above, the Court denies Little’s petition for a writ of habeas corpus.
Morever, because he has not made a substantial showing of the denial of a constitutional right, the
Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2). This case is
terminated.
SO ORDERED.
ENTERED: July 20, 2015
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HON. JORGE L. ALONSO
United States District Judge
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