Dingus v. Butler et al

Filing 36

MEMORANDUM Opinion and Order. Signed by the Honorable Milton I. Shadur on 11/2/2016:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.
ANTHONY DINGUS (#R-44941),
Petitioner,
v.
KIMBERLY BUTLER, Warden, 1
Respondent.

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Case No. 16 C 1875

MEMORANDUM OPINION AND ORDER
Anthony Dingus ("Dingus") has filed a 28 U.S.C. § 2254 ("Section 2254") Amended
Petition for Writ of Habeas Corpus ("Petition") 2 to challenge his conviction for murder and the
resultant 50 year sentence. In accordance with Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts ("Section 2254 Rules"), this Court promptly reviewed
the Petition and its attachments. For the reasons stated in this memorandum opinion and order,
Dingus' Petition is denied on all counts and this action is dismissed.

1

Although Warden Butler was sued as the custodian of the petitioner when this action
was filed, that role is now filled by Menard Correctional Center Warden Jeff Hutchinson, who is
ordered to be substituted as the proper respondent (Fed. R. Civ. P. (“Rule”) 25(d)).
2

In fact, as stated later in the section captioned Procedural History, Dingus had initially
filed a pro se Section 2254 petition. Because this Court found that the answer filed in response
to his submission plainly posed issues with which layman Dingus could not reasonably be
expected to cope, it enlisted an experienced criminal defense lawyer to file a reply on his
behalf -- and that counsel expanded Dingus’ originally asserted contentions in the Petition.

Facts
Section 2254(d) makes the state court's findings of fact presumptively correct in any
federal habeas proceeding. In this instance the factual background stated in the Illinois Appellate
Court's opinion on direct review (People v. Dingus, 2015 IL App. (1st) 132087-U, ¶ 18, appeal
denied 39 N.E.3d 1006 (Ill. 2015)) reflects the record fully and fairly. That factual background
will be summarized briefly here.
Dingus was charged with first degree murder, aggravated unlawful use of a weapon and
reckless discharge of a firearm in connection with the May 25, 2002 shooting death of Raymond
Delgado ("Delgado"). At the May 2005 jury trial Delgado's cousin Jason Soto ("Soto") testified
that he went with Delgado to meet friends for a party. Soto said that he and Delgado went
outside at about 2:30 a.m., heard an occupant in a car yell "Ambrose" and saw a bottle thrown
from the car. Soto explained "Ambrose" was the name of a local gang.
Soto then said he saw an individual walk toward Delgado, and when the two were 5 to 10
feet apart Soto saw a flash of light and heard "two pops." Another friend called 9-1-1 as Soto
waited with Delgado. Officers arrived on the scene to find Delgado lying on the ground next to
Soto, with no weapon in sight.
Joseph Lopez ("Lopez") testified that a short time earlier he was drinking with friends,
including Dingus, in the backyard of the Francisco Perez residence and that "something" caused
them to leave the backyard. Lopez saw Perez holding a pink-handled chrome gun, with which he
fired two warning shots as Delgado approached the group. Lopez testified that Perez then
handed the gun to Dingus, who pointed the gun at Delgado and fired two shots, causing Delgado
to fall to the ground. Dingus then handed the gun to Lopez, who testified that he then hid the
gun in a pile of logs behind a garage and heard Dingus saying "I got him Maldonado." Lopez
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explained that "Maldonado" is a member of the Ambrose gang. Pablo Medina ("Medina")
corroborated most of Lopez's testimony, adding that he heard Dingus say "Ambrose killer" as a
statement of intent, although he said he never saw Dingus shoot Delgado. Both Lopez and
Medina were impeached with testimony they provided to the grand jury, but not as to Dingus’
statements quoted in this paragraph -- as to those, their testimony before the grand jury was the
same as that before the trial jury.
Dingus then testified that he fired the gun and then gave it to Lopez, denying that he said
"Ambrose killer" before firing the shots. Dingus was questioned on cross-examination as to the
tear drop tattoos on his face, being asked several times if they signified that he had "done
something" for his gang, which he denied. There was one objection to the questioning, based on
its repetitiveness. Dingus argued that he fired the shots in self-defense, but he conceded that
Delgado had not fired at him and that he had not warned Delgado that he was armed.
After the close of evidence and closing arguments, the jury found Dingus guilty of first
degree murder and the trial court sentenced him to 50 years' imprisonment. After the Illinois
Appellate Court upheld the conviction and sentence on direct appeal, Dingus filed a petition for
leave to appeal, which was denied. Then over the next four years Dingus filed four versions of
state post-conviction petitions with the help of multiple attorneys. His final petition alleged both
(1) ineffective assistance of trial counsel in several respects, including the failure to object to the
questioning regarding Dingus' tear drop tattoos, and (2) ineffective assistance of appellate
counsel due to that counsel's purported failure to argue, on direct appeal, trial counsel's
constitutionally deficient performance.

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In response the State filed a motion to dismiss the final amended petition, which the trial
court granted. Dingus then appealed the decision, and the Illinois Appellate Court upheld the
dismissal. Thereafter the Illinois Supreme Court again declined to hear the case.
Procedural History
On February 1, 2016 Dingus filed a pro se petition for a writ of habeas corpus. After then
respondent Butler filed an answer to that motion, this Court appointed able and experienced
counsel John Beal (“Beal”) to act on Dingus’ behalf and ordered a reply. On August 30, 2016
Beal filed the Section 2254 Petition on behalf of Dingus (choosing to file a superseding Petition
with leave of this Court, rather than simply submitting a reply to respondent Butler's answer).
That Petition set out three main contentions, first that the trial court erroneously barred Dingus
from introducing evidence of prior acts of violence directed at him by Ambrose gang members,
next that the trial court erroneously barred defense witness Tiffany Rynkiewicz ("Rynkiewicz")
from testifying and lastly that Dingus’ trial lawyer rendered ineffective assistance of counsel
when he failed to object to cross examination of Dingus by the state's attorney about the tear
drop tattoos. Attorney Beal also added as an overarching claim that the trial judge was
assertedly biased throughout the proceedings in regard to jury tampering, sentencing and general
attitude during the trial.
In response to the Petition, counsel for the respondent Warden asserted that all claims
were procedurally defaulted except for the claim that Dingus’ trial counsel had been ineffective
in failing to object during the tear drop tattoos questioning. On that score the answer went on to
argue that although the tear drop issue was adequately preserved, that claim has failed on its
merits.

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Procedural Framework
Before any federal court can address the merits of a Section 2254 petition, the petitioner
must have both exhausted state court remedies and avoided any procedural defaults (Bocian v.
Godinez, 101 F.3d 465, 468 (7th Cir. 1996)). Claims are exhausted "by either (a) providing the
highest court in the state a fair opportunity to consider the constitutional issue, or (b) having no
further available means for pursuing review of one's conviction in state court" (Wallace v.
Duckworth, 778 F.2d 1215, 1219 (7th Cir. 1985) (per curiam)). Because it is clear from the
procedural history here that Dingus has satisfied the second of those alternatives, this opinion
turns to the separate doctrine of procedural default.
While "failure to exhaust . . . refers only to issues that have not been presented to the state
court but still may be presented" (Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir. 1992)),
procedural default occurs either (1) when a state court has declined to address a prisoner's federal
claims because the prisoner failed to meet an independent and adequate state procedural
requirement (Coleman v. Thompson, 501 U.S. 722, 729-30 (1991)) or (2) when a claim could
have been but was not brought before a state court and can no longer be asserted in that forum
(Resnover, 965 F.2d at 1458).
After being barred on procedural default grounds, a claim will not be cognizable in a
federal habeas proceeding unless the petitioner can clear one of two hurdles established by
Coleman, 501 U.S. at 750:
We now make it explicit: In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is barred unless the prisoner
can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice.
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So it is necessary to determine at the outset which if any of Dingus' claims are procedurally
defaulted and whether Dingus may avoid that bar to any such claims by demonstrating either
cause and prejudice or a fundamental miscarriage of justice.
If a claim manages to survive the intricate procedural obstacles that may preclude relief
as a threshold matter, it must then satisfy Section 2254(d)'s stringent standard for granting habeas
claims that the state courts have considered and rejected on their merits:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim -(1) 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; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
Williams v. Taylor, 529 U.S. 362 (2000) has provided extensive input on the application of
Section 2254(d) -- and see also Washington v. Smith, 219 F.3d 620, 627-28 (7th Cir. 2000) in
that respect -- a subject to which this Court will return in the tear drop tattoos analysis.
Dingus has not challenged any determination of the facts as made by the Illinois courts.
Instead he contends that he is the victim of several unreasonable applications of the law. Section
2254(d) provides only limited review of state decisions in that regard, for its "'unreasonableness'
standard allows the state court's decision to stand if it is one of several equally plausible
outcomes" (Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997)).
This opinion turns now to consideration, through the necessary analytical filters, of each
of the grounds that Dingus now advances as entitling him to federal habeas relief. It is not aided
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in that respect by any attempted analysis in the Petition, because the total extent of Dingus'
argument for preservation of the claims is the ipse dixit in Petition ¶ 21 that all claims "are fully
preserved though the state court appellate process." To the contrary, nothing in the record
supports the preservation of most of the issues, nor has any argument been advanced to counter
the principle of procedural default. Instead this opinion finds, for the reasons stated below, that
the record calls for the denial of Dingus' motion without further briefing.
Claims Procedurally Defaulted
Dingus' arguments as to the trial court's asserted bias and its claimed erroneous exclusion
of both (1) evidence of prior acts of violence directed at Dingus by Ambrose gang members and
(2) testimony from Rynkiewicz can be dealt with first and in short compass, because all of those
arguments are unquestionably defaulted procedurally. That is so as to the bias claims because
they were not raised on direct appeal, and as to the erroneous exclusion contentions because
those were rejected on independent and adequate state grounds (see, e.g., Sturgeon v. Chandler,
552 F.3d 604, 611 (7th Cir. 2009)).
First, the claims of trial judge bias were simply not raised in the post-conviction filings
and were thus not preserved for consideration by this Court. And second, Dingus’ state court
arguments that the trial court erroneously excluded prior acts of violence from the Ambrose gang
toward Dingus and the testimony from Rynkiewicz cited only state evidence law and state
cases -- Dingus’ counsel failed to cite federal evidence law, federal cases or the federal
Constitution. But as to the concept of independent and adequate state grounds as a basis for
procedural default, Baldwin v. Reese, 541 U.S. 27, 29 (2004) teaches that a habeas petitioner
must clearly articulate the federal constitutional and factual bases for each claim at each level of
state court review to preserve the claims. In sum, all of those claims are procedurally defaulted.
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Applicability of Procedural Default Exceptions
That is not necessarily the end of the matter, for there are exceptions to the procedural
default rule that could possibly allow Dingus' claims to stand. As this opinion has said earlier,
Coleman's first potential exception to a procedural bar requires Dingus to show both that he had
cause for the default and that he suffered prejudice from the claimed constitutional violation.
Here there is no need to look at any possible prejudice, for in any event no identifiable cause
exists for not having preserved the issues. If any trial judge bias was at work (another
hypothetical matter that need not be explored), it could readily have been raised at that time, just
as opportunities were plentiful for Dingus to make federal arguments regarding unconstitutional
exclusions of evidence.
Nor has Dingus shown that he would suffer from a "fundamental miscarriage of justice"
because of a failure to entertain his due process claim. That second Coleman exception is
limited to the "extraordinary case, where a constitutional violation has probably resulted in the
conviction of one who is actually innocent" (Schlup v. Delo, 513 U.S. 298, 321 (1995)). Dingus
advances no claim of his actual innocence of the killing of Delgado (Steward v. Gilmore, 80 F.3d
1205, 1212 (7th Cir. 1996)), nor do his submissions suggest that. 3
In sum, Dingus has not demonstrated either cause and prejudice or a fundamental
miscarriage of justice to enable him to escape procedural default (see Perruquet v. Briley, 390
F.3d 505, 514-15 (7th Cir. 2004)). Those claims are thus denied without reaching their merits.

3

There might perhaps be an argument (however attenuated) for self-defense on Dingus'
part, but that was argued unsuccessfully in the trial court, with there being more than ample
evidence for the jury to find that it was not the case for Dingus.
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Teardrop Tattoo Issue
That leaves for consideration only Dingus' claim that ineffective assistance of counsel
was provided to Dingus by his trial lawyer when he failed to object to Dingus' cross examination
by the state's attorney about two tear drop tattoos. And that contention, which seeks to relitigate
a claim adjudicated by the state courts on the merits, must meet one of the two earlier-quoted
strict requirements imposed by Congress in Section 2254(d). To come within the "contrary to"
branch of the first alternative, Conner v. McBride, 375 F.3d 643, 649 (7th Cir. 2004) has cited
the Supreme Court's Williams case to summarize the test:
First, a state court decision is "contrary to" federal law if the state court either
incorrectly laid out governing Supreme Court precedent, or, having identified the
correct rule of law, decided a case differently than a materially factually
indistinguishable Supreme Court case.
As for the "unreasonable application" requirement, Woods v. McBride, 430 F.3d 813, 817 (7th
Cir. 2005) (with citation to Williams, the source of the internal quotation, omitted) states the
demanding nature of the statutory test:
In the habeas context, an "unreasonable" application is more than simply an
"incorrect" application, so "a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or
incorrectly." Rather, in order to trigger grant of the writ, the state-court decision
must be both incorrect and unreasonable.
Indeed, the Supreme Court itself has more recently reemphasized the stringency of the
statutory standards. Here is what Burt v. Titlow, 134 S. Ct. 10, 16 (2013)(citations omitted) says
as to both Section 2254(d)(1) and Section 2254(d)(2):
AEDPA requires "a state prisoner [to] show that the state court's ruling on the
claim being presented in federal court was so lacking in justification that there
was an error . . . beyond any possibility for fairminded disagreement." "If this
standard is difficult to meet" -- and it is -- "that is because it was meant to be."
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We will not lightly conclude that a State's criminal justice system has experienced
the "extreme malfunctio[n]" for which federal habeas relief is the remedy.
In this instance there is a similarly high preference for deference when evaluating
whether a trial lawyer provided effective assistance. Under the seminal decision in Strickland v.
Washington, 466 U.S. 668, 690 (1984) Dingus must demonstrate that "in light of all the
circumstances, the identified acts or omissions were outside the wide range of professionally
competent assistance." Counsel's actions are reviewed with the strong presumption "that, under
the circumstances, the challenged action 'might be considered sound trial strategy'" (id. at 689,
quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Even an unreasonable error on the part
of counsel does not warrant setting aside a judgment "if the error had no effect on the judgment"
(id. at 691).
Dingus contends that his trial counsel's failure to object sufficiently as to the
prosecution's injection of the tear drop tattoos into the case sank to the level of unconstitutional
deficiency because of the dangerous implication that Dingus had committed other crimes.
Strickland, 466 U.S. at 690-91 calls for deference to strategic decisions by defense counsel, and
here this Court is not going to second-guess counsel's choices of how often to object. In its
response the State correctly points out that the decision not to object could have been reasonably
explained through a fear of making a likely unsuccessful objection and biasing the jury or by a
logical decision not to put extra stress on the tattoos.
Moreover, even if the performance of Dingus' counsel were to be viewed as deficient in
that respect, there is no realistic prospect that it prejudiced the outcome of his trial. Evidence of
his guilt was overwhelming, and any potentially available defenses were weak at best. And in
light of the particularly stringent standard for finding the state appellate court's decision
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unreasonable outlined previously, this Court must deny relief on the ground of ineffective trial
counsel on multiple grounds.
Conclusion
In sum, none of Dingus' contentions has survived analysis. This Court determines that no
evidentiary hearing is required (see Section 2254 Rule 8(a)) and that "it plainly appears" that
Dingus "is not entitled to relief in the district court" (Section 2254 Rule 4). Hence both the
Petition and this action must be and are dismissed (id.), and this Court denies a certificate of
appealability (Section 2254 Rule 11(a)). Dingus may seek such a certificate from the Court of
Appeals under Fed. R. App. P. 22.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: November 2, 2016

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