Golden v. Lamb
Filing
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MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 7/22/2016. The Court denies Golden's Petition for Writ of Habeas Corpus 1 and declines to issue a certificate of appealability. Civil case terminated. Mailed notice (lk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ERIC GOLDEN,
Petitioner,
v.
NICHOLAS LAMB, Assistant Warden,
Stateville Correctional Center,
Respondent.
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No. 15 C 8538
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Petitioner Eric Golden was convicted of two counts of solicitation of murder for hire on
January 5, 2005, following a jury trial in Cook County, Illinois. Golden is currently serving his
sentence at the Stateville Correctional Center. Golden filed a Petition for Writ of Habeas Corpus1
pursuant to 28 U.S.C. § 2254. For the following reasons, the Court denies Golden’s petition and
declines to issue a certificate of appealability.
I. BACKGROUND
A. Factual Background2
Golden married Chresse Ridley, a Chicago Police Officer, on January 3, 2002. (See Dkt.
No. 24-3 at 2). Their marriage deteriorated quickly after Golden began drinking and became
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Assistant Warden Nicholas Lamb was originally named as the respondent in Golden’s petition. However, Randy
Pfister is Golden’s custodian as the current Warden at Stateville Correctional Center and is therefore substituted as
the proper respondent. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (“[T]he default rule is that the proper
respondent is the warden of the facility where the prisoner is being held . . . .”); see also Fed. R. Civ. P. 25(d) (“An
action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to
hold office while the action is pending. The officer’s successor is automatically substituted as a party.”).
2
The Court adopts the underlying facts set forth by the Illinois Appellate Court in People v. Golden, --- Ill. App. 3d
---, No. 1-05-0099 (1st Dist. 2006) (unpublished) because Golden does not present clear and convincing evidence
challenging those facts. See 28 U.S.C. § 2254(e)(1); see also Bolton v. Akpore, 730 F.3d 685, 687 (7th Cir. 2013)
(“Factual determinations by state courts are presumed to be correct in federal habeas corpus proceedings, and the
applicant has the burden of rebutting that presumption by clear and convincing evidence.”).
“hostile” to Ridley, including attempting to run her off the highway on July 18, 2002 and
physically assaulting her on September 6, 2002. (Id.)
While in jail awaiting trial for domestic battery, Golden met James Howze and stated that
he wanted to “get rid” of Ridley and asked if Howze knew anyone “on the outside” to kill her.
(Id.) Golden offered to pay half of a $100,000 life insurance policy after Ridley was killed. (Id.
at 3). He proceeded to write down Ridley’s home address, location of a skating rink where she
worked, hours she would be there, vehicle description, and license plate number. (Id.) Howze
went to police and agreed to work with them in the investigation. (Id.)
After pleading guilty to domestic battery, Golden was released on probation. (Id.) Once
released, he phoned his former cell mate, Malcom Reed, to ask him to give Howze his phone
number. (Id.) Howze contacted Golden at this number on March 26, 29, and April 1, 2003. (Id. at
4). Detective Washburn listened in on first conversation and the following two conversations
were recorded. (Id.) In these conversations, Golden stated that he wanted to go forward with the
“demonstration” (murder) and Howze told Golden he would have “Rico” (Officer Rahman
Mohammed) contact him to arrange it. (Id.) Golden met with Officer Mohammed on March 29,
2003 and again on April 1, 2003. (Id.) During these meetings, the two set April 5, 2003 as the
“hit” date and discussed payment and strategies to avoid being caught. (Id. at 4–5). Golden also
gave Officer Mohammed a napkin with Ridley’s address, make of her car, and license plate
number. (Id.)
Golden was arrested on April 7, 2003 at his apartment. (Id. at 5). He was interviewed by
detectives three times that day and was read his Miranda rights on each occasion. (Id.) In the
third interview, he admitted approaching Howze about murdering Ridley; giving him the paper
containing her identifying information; claiming to have a $100,000 life insurance policy on her;
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giving Reed his telephone number; and speaking with Officer Mohammed twice to discuss the
details of the plot. (Id. at 6). That evening, assistant State’s Attorney Nick D’Angelo also
interviewed Golden, again reading him his Miranda rights. (Id. at 7). Ultimately, on January 5,
2005, Eric Golden was sentenced to concurrent forty-year sentences for solicitation of murder for
hire. (See Dkt. No. 24-1 at 169).
B. Procedural Background
Golden, through his appellate counsel, appealed his conviction to the Illinois Appellate
Court on February 24, 2006. (Dkt. No. 24-4). Appellate counsel argued only that trial counsel
was ineffective for failing to move to quash Golden’s arrest. (Id. at 7). Counsel claimed the
statements Golden made to police after his arrest would not have been admitted if the arrest was
quashed. (Id. at 8). There were no other issues raised in the direct appeal. (Id. at 3).
The Illinois Appellate Court affirmed Golden’s conviction on October 16, 2006. (Dkt.
No. 24-3 at 12). In determining whether trial counsel was ineffective for failing to move to quash
the arrest, the Court considered whether counsel’s performance was deficient and, if it was,
whether the deficiency prejudiced Golden. (Id. at 7; See Strickland v. Washington, 446 U.S. 668
(1984)). The Court concluded both that the statements would have been admissible even if the
arrest had been quashed because police had probable cause to arrest Golden and that trial counsel
was therefore not ineffective because Golden was not prejudiced by his failure to move to quash
the arrest. (Dkt. No. 24-3 at 9, 11); See New York v. Harris, 495 U.S. 14, 21 (1990).
On November 20, 2006, Golden filed a pro se petition for leave to appeal to the Supreme
Court of Illinois. (Dkt. No. 24-6). The petition for leave to appeal was denied on January 24,
2007. (Dkt. No. 24-7).
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On November 5, 2007, Golden filed a pro se petition for post-conviction relief
with the Circuit Court of Cook County raising numerous claims. (Dkt. No. 24-8 at 33). The
Circuit Court denied him relief. Golden filed a Notice of Appeal to the Appellate Court of
Illinois on February 15, 2012 and an appellate defender was appointed to represent Golden. (Id.
at 150).
On May 21, 2013, appointed counsel filed an appeal on Golden’s behalf settinggsetting
forth the one claim that he chose to present: the trial court erred in admitting evidence of other
crimes. (Dkt. No. 24-10 at 4). Appointed appellate counsel chose to raise the single claim and did
not raise any of the other issues from Golden’s prior pro se petition to the Circuit Court. (Id.)
Months later, Golden filed a a pro se motion on January 8, 2014 seeking leave to supplement the
brief submitted by his appointed lawyer with additional arguments. (Dkt. No. 24-13). Although
the Appellate Court initially granted Golden’s pro se motion, the State filed a motion to strike it
arguing that it was improper because it violated the rule against hybrid representation and
informed the Court that they were never given notice of the filing. The Appellate Court granted
the State’s motion, reversed its previous ruling that allowed for the supplemental filing and
denied leave to Golden to file his pro se supplemental brief on January 28, 2014. (Dkt. No. 2417). The Appellate Court affirmed the Circuit Court’s dismissal of the post-conviction petition
on the one issue raised by counsel, holding that the other crimes evidence was merely collateral
and thus not prejudicial. (Dkt. No. 24-18 at 3).
On January 30, 2015, Golden filed a pro se petition for leave to appeal to the Supreme
Court of Illinois. (Dkt. No. 24-19 at 3). Golden raised the same issues he raised to the Circuit
Court in his petition for post-conviction relief. (Id. at 4–6). However, Golden did not appeal the
issue of admission of other crimes evidence, the sole issue that had been properly presented to
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the Appellate Court. (Id.; Dkt. No. 24-10 at 4). The Supreme Court of Illinois once again denied
Golden’s petition for leave to appeal. (Dkt. No. 24–20).
Golden now petitions for writ of habeas corpus under 28 U.S.C. § 2254. (Dkt. No. 1). He
presents the following grounds for relief:
1. there was insufficient evidence to find him guilty beyond a reasonable doubt;
2. the jury pool was not a fair cross-section of the community and his trial counsel
failed to challenge this in a written motion;
and his appellate counsel failed to raise the issue;
3. his trial counsel was ineffective when he failed to question jurors about bias toward
gangs;
4. his trial counsel was ineffective in misinforming him about his right to testify;
5. law enforcement questioned him prior to giving him his Miranda warnings and his
requests for an attorney were denied;
6. the jury was prejudiced by other-crimes evidence;
7. his appellate counsel was ineffective for failing to raise the issue of the introduction of
other-crimes evidence on direct appeal; and
8. his trial counsel was ineffective for failing to move to quash his warrantless arrest.
(Id. at 7–12, 15–42).
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs petitions for
writs of habeas corpus filed after April 24, 1996. Benefiel v. Davis, 357 F.3d 655, 659 (7th Cir.
2004). Under the AEDPA, habeas relief cannot be granted unless the state court’s decision was
contrary to, or an unreasonable application of, federal law clearly established by the Supreme
Court. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 403 (2000). Under
the “contrary to” prong of this standard, a habeas petitioner must show that “the state court
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confront[ed] facts that are materially indistinguishable from a relevant Supreme Court precedent
and arrive[d] at a result opposite [to the Court's].” Id. at 405. Under the “unreasonable
application” prong, a habeas petitioner must show that although the state court identified the
correct legal rule, it unreasonably applied the controlling law to the facts of the case. See id. at
407. “This reasonableness determination is quite deferential, such that a state decision may stand
as long as it is objectively reasonable, even if the reviewing court determines it to be
substantively incorrect.” Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir.2005); see also
Williams, 529 U.S. at 410 (an unreasonable application of federal law is different from an
incorrect application of federal law). A state court's decision must lie “well outside the
boundaries of permissible differences of opinion” to be found objectively unreasonable. Watson
v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009) (internal citation omitted); see also Simpson v.
Battaglia, 458 F.3d 585, 592 (7th Cir. 2006) (to be reasonable, a state court's decision must be
“at least minimally consistent with the facts and circumstances of the case.”).
As a threshold matter, Golden’s claims must clear two procedural hurdles: exhaustion of
remedies and procedural default. Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995).
Exhaustion is satisfied where the habeas petitioner has presented his claims to the highest state
court for a ruling on the merits or no state remedies remain available to the petitioner at the time
his habeas petition is filed. Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009). This
requirement provides the State an “‘opportunity to pass upon and correct’ alleged violations of
its prisoners’ federal rights.” Duncan v. Harvey, 513 U.S. 364, 365 (1995) (per curiam) (quoting
Picard v. Connor, 404 U.S. 270, 275 (1971)). “To provide the State with the necessary
‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state court
(including a state supreme court with powers of discretionary review), thereby alerting that court
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to the federal nature of the claim.” Bolton, 730 F.3d at 694-95 (quoting Baldwin v. Reese, 541
U.S. 27, 29 (2004) (internal citations omitted)). However, failure to exhaust a claim does not
necessarily preclude the claim. Where “‘state remedies remain available to a habeas petitioner
who has not fairly presented his constitutional claim to the state courts, the exhaustion doctrine
precludes a federal court from granting him relief on that claim: although a federal court now has
the option of denying the claim on its merits, 28 U.S.C. § 2254(b)(2), it must otherwise dismiss
his habeas petition without prejudice so that the petitioner may return to state court in order to
litigate the claim.’” Id. at 696 (quoting Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir. 2004)).
Procedural default, meanwhile, occurs where the petitioner fails to fairly and properly
raise an issue on direct appeal or post-conviction review, or where the state court relies on a state
procedural bar as an independent basis for its disposition of the case. Caldwell v. Mississippi,
472 U.S. 320, 327 (1985). Of course, like exhaustion, procedural default does not necessarily
terminate the petitioner’s claim. See House v. Bell, 547 U.S. 518, 536 (2006). This Court may
still hear a petitioner’s procedurally defaulted claims if he can demonstrate both cause and
prejudice resulting from procedural default, or that a fundamental miscarriage of justice would
occur if this Court refused to hear his claims because he is actually innocent. Id.
In this case, all of Golden’s claims fail because they are meritless or procedurally
defaulted. Those that are procedurally defaulted are not excused because Golden has failed to
show cause for the default and he has not presented any new evidence establishing that it is
“more likely than not” that no reasonable juror would have convicted him in light of the new
evidence. See Holmes v. Hardy, 608 F.3d 963, 967-68 (7th Cir. 2010).
III. DISCUSSION
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Golden’s first seven claims are procedurally defaulted because he never fairlynever
fairly presented them though one complete round of the state’s appellate process. See Smith v.
McKee, 598 F.3d 374, 382 (7th Cir. 2013) (requiring petitioner to have presented claims to both
the Illinois Appellate Court and the Illinois Supreme Court to avoid procedural default). Claims
(1), (2), (3), (4), (5), and (6) are procedurally defaulted because they were never properly raised
to the Illinois Appellate Court. Although he attempts to circumvent this procedural default by
alleging that he did present the claims, in truth, while represented by counsel, Golden attempted
to file a pro se brief containing these six claims. (Dkt. No 24-14). However, litigants represented
by counsel are generally prohibited from also filing documents pro se. See People v. Moore, 189
Ill.2d 521, 533 (2000); see also Coleman v. Thompson, 501 U.S. 722, 757 (1991) (holding that
where a brief was rejected based on a state rule requiring it to be filed within thirty days of the
judgment, the claim raised in that brief were procedurally defaulted based on an independent and
adequate state procedural rule). The Appellate Court rejected the hybrid representation and did
not permit the brief. Therefore, these six claims, which Golden attempted to raise pro se while
he was represented by counsel, were never fairly presented to the Illinois Appellate Court.
Illinois courts have discretion to relax the rule against hybrid representation; however,
even discretionary state procedural rules can be the basis for barring habeas review. Beard v.
Kindler, 558 U.S. 53, 60 (2009) (“[A] discretionary state procedural rule can serve as an
adequate ground to bar federal habeas review.”). Therefore, these six claims are procedurally
defaulted because the Illinois Appellate Court declined to hear each on the independent and
adequate state law ground that they violated the rule against hybrid representation.
Claim (7) is similarly procedurally defaulted because it was never raised to the Illinois
Supreme Court. Although Golden sought leave to appeal from the Illinois Supreme Court, his
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petition to that Court did not raise the claim that appellate counsel was ineffective for failing to
directly appeal the trial Court’s admission of evidence of other crimes evidence. (Dkt. No. 2419). The petition did allege ineffective appellate counsel, but did not list admission of other
crimes evidence as a basis for claiming ineffective appellate counsel. (Id. at 23–25). In the
petition to the Illinois Supreme Court, Golden argued that the trial court erred in admitting other
crimes evidence, but he did not frame this argument as a result of ineffective appellate counsel.
(Id. at 18).
By failing to raise any of claims (1) through (7) in a complete round of state court review,
including both the Illinois Appellate Court and the Illinois Supreme Court, before raising them in
a federal habeas petition, Golden denies the Illinois court system the opportunity to “address and
correct [the] alleged violation[]” and jeopardizes principles of comity and federalism. Coleman,
501 U.S. at 731. Therefore, Golden’s first seven claims are procedurally defaulted.
This Court cannot review procedurally defaulted claims on the merits unless Petitioner
demonstrates cause and prejudice for the default, or shows that this Court’s failure to consider
the claim would result in a fundamental miscarriage of justice. Crockett v. Hulick, 542 F.3d
1183, 1193 (7th Cir. 2008). To qualify for the exception for miscarriage of justice, the “habeas
petitioner must show that it is more likely than not that no reasonable juror would have convicted
him in light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995). Golden makes no
attempt to argue the ‘fundamental miscarriage of justice’ exception and the Court will not
consider it. Crockett, 542 F.3d at 1193 (holding petitioner’s failure to raise an argument for
either exception precludes a federal court from considering it).
Instead, Golden contends that post-conviction counsel failed to properly raise the claims
present in his habeas petition to the Illinois Appellate Court. (Dkt. No. 1 at 5). Thus, Golden
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attempts to show cause by claiming ineffective assistance of post-conviction counsel. This
argument fails, however, because Golden does not have a right to counsel in state postconviction proceedings and a claim of ineffective assistance does not constitute cause to excuse
procedural default. See Coleman, 501 U.S. at 757; Howard v. O’Sullivan, 185 F.3d 721, 725 (7th
Cir. 1999); Cawley v. DeTella, 71 F.3d 691, 695-96 (7th Cir. 1995). Only in rare occasions may
post-conviction counsel’s failure to raise an ineffective assistance of trial counsel claim excuse
procedural default. See Martinez v Ryan, 132 S. Ct. 1309, 1320 (2012) (in states where “claims
of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding,
a procedural default will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel
or counsel in that proceeding was ineffective.”); see also 28 U.S.C. § 2254(i) (“[t]he
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 § 2254.”). In other
words, ineffective assistance of post-conviction counsel will excuse default where state law
“does not offer most defendants a meaningful opportunity to present a claim of ineffective
assistance of trial counsel on direct appeal.” Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013)
(citations omitted). Here, no such excuse exists because Golden had a meaningful opportunity to
present his claim for ineffective assistance of trial counsel under Illinois law.
Collateral proceedings are not the first opportunity to raise an ineffective assistance of
trial counsel claim in Illinois. See People v. Miller, 2013 IL App (1st) 111147, at ¶ 40 (Ill. App.
Ct. 2013). Golden had the opportunity to present his ineffective assistance of trial counsel claims
on direct review, however he failed to do so with respect to any reference to trial counsel’s
performance in claims (1) through (7). (See Dkt. No. 24-4). He cannot show cause to excuse the
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default of these claims and, accordingly, the Court will not address prejudice. See Promotor v.
Pollard, 628 F.3d 878, 887 (7th Cir. 2010).
Claim (8), ineffective trial counsel for failure to quash warrantless arrest, fails on the
merits. Relief is only available to petitioner if he can show that the state court acted contrary to
or unreasonably applied Supreme Court precedent or unreasonably determined the facts. See 28
U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 403–07 (2000); Miller-El v. Cockrell, 537
U.S. 322, 324 (2003) (“[F]actual determination will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the state-court proceeding.”).
Golden contends that trial counsel was ineffective for failing to move to quash the arrest because
police arrested him without a warrant, and thus the motion would have had a reasonable
probability of success. (Dkt. No. 1 at 39-40).
The Illinois Appellate Court, however, correctly applied federal law when it found that
trial counsel’s failure to quash the arrest did not rise to the level of ineffective assistance of
counsel because the outcome of the case likely would have been the same. See Strickland, 466
U.S. at 693–94 (describing that conduct of ineffective counsel must consist of serious errors, plus
prejudice to the defendant); (Dkt. No. 24-3 at 7–8.). Warrantless, nonconsensual entry into a
home for the purpose of a routine felony arrest violates the Fourth Amendment. See Payton v.
New York, 445 U.S. 573, 585 (1980). However, if there is probable cause to arrest a suspect,
statements made after an arrest, even if in violation of Payton, are not barred by the exclusionary
rule. See New York v. Harris, 495 U.S. 14, 21 (1990).
Golden does not now, nor has he ever contended that police lacked probable cause to
arrest him. And, indeed, the Illinois Appellate Court examined the record and affirmatively
established that probable cause arose from Golden’s conversations with undercover Officer
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Mohammed. (Dkt. No. 24-3 at 4). Because the statements Golden made to police would have
been admissible based on probable cause even if his counsel had moved to quash his arrest, he
was not prejudiced by trial counsel’s failure to raise the issue and that failure does not rise to the
level of ineffective assistance of counsel. The Appellate Court did not unreasonably apply
federal law nor make unreasonable factual determinations in reaching this result.
IV. CERTIFICATE OF APPEALABILITY
A petitioner may not appeal the final order in a habeas corpus proceeding where the
detention complained of arises out of process issued by a state court unless the court issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(a). A certificate of appealability may only
issue if an “applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “When a district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim,” a certificate of appealability
should issue only when the prisoner shows “both that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Golden has not made a substantial showing of the
denial of a constitutional right: reasonable jurists would not debate whether the challenges in his
habeas petition should been resolved differently or determine that Golden deserves
encouragement to proceed further with his habeas claims. See Rutledge v. United States, 230
F.3d 1041, 1047 (7th Cir. 2000). The Court declines to issue a certificate of appealability.
CONCLUSION
For the reasons stated, Golden’s Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 is denied and the Court will not issue a certificate of appealability.
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Date: 7/22/2016
_______________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
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