Ellison v. Dorethy

Filing 25

MEMORANDUM OPINION Signed by the Honorable Samuel Der-Yeghiayan on 6/27/2017: Mailed notice (mw, )

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

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v.
STEPHANIE DORETHY.

No. 17 C 638

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Petitioner Bennie Ellison’s (Ellison) pro se
petition for writ of habeas corpus (Petition) brought pursuant to 28 U.S.C. § 2254.
For the reasons stated below, the Petition is denied.

BACKGROUND
Ellison was convicted in two state court criminal actions, No. 09 CR 6863 and
09 CR 6542. In 09 CR 6863, Ellison was convicted of possession of narcotics with
the intent to deliver and sentenced to a ten-year term of imprisonment. Ellison
appealed that decision, was re-sentenced, and received a six-year term of
imprisonment. On July 27, 2016, Ellison filed a petition for post-conviction relief in
the trial court. On September 19, 2016, the trial court denied Ellison’s petition for
relief. Ellison did not appeal or attempt to appeal the trial court’s order. In 09 CR

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6542, Ellison plead guilty to being an armed habitual criminal and was sentenced to a
six-year term of imprisonment. Ellison appealed and the state appellate court
dismissed the appeal for lack of jurisdiction. On June 30, 2016, Ellison filed a postconviction petition in the trial court. On July 11, 2016, the trial court dismissed
Ellison’s petition for post-conviction relief. Ellison did not file a petition for leave to
appeal (PLA) with the Illinois Supreme Court. The matter is currently pending in
state appellate court where briefing is ongoing. On January 24, 2017, Ellison filed
the instant petition.

LEGAL STANDARD
An individual in custody pursuant to state court judgment may seek a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, which provides the following:
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.
28 U.S.C. § 2254(d). The decision made by a state court is deemed to be contrary to
clearly established federal law “‘if the state court applies a rule different from the
governing law set forth in [Supreme Court] cases, or if it decides a case differently
than [the Supreme Court has] done on a set of materially indistinguishable facts.’”
Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009)(quoting Bell v. Cone, 535 U.S.
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685, 694 (2002)). The decision by a state court is deemed to involve an unreasonable
application of clearly established federal law “‘if the state court correctly identifies
the governing legal principle from [Supreme Court] decisions but unreasonably
applies it to the facts of the particular case.’” Emerson, 575 F.3d at 684 (quoting
Bell, 535 U.S. at 694).

DISCUSSION
This court has liberally construed Ellison’s pro se filings. See Perruquet v.
Briley, 390 F.3d 505, 512 (7th Cir. 2004)(stating that “[a]s [the plaintiff] was without
counsel in the district court, his habeas petition [wa]s entitled to a liberal
construction”); Greer v. Board of Educ. of City of Chicago, Ill., 267 F.3d 723, 727
(7th Cir. 2001)(indicating that a court should “liberally construe the pleadings of
individuals who proceed pro se”). Ellison asserts in the Petition that his appellate
counsel was ineffective because counsel “concealed” documents in Ellison’s appeals
from state court convictions.

I. Procedurally Defaulted Claims
Respondent argues that Ellison’s claims are procedurally defaulted and there is
no justification to excuse the default.

A. Procedural Default
Respondent contends that Ellison failed to raise his claim through one
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complete round of the state court appellate review process. A district court “cannot
review a habeas petitioner’s constitutional issue unless he has provided the state
courts with an opportunity to resolve it ‘by invoking one complete round of the
state’s established appellate review process.’” Byers v. Basinger, 610 F.3d 980, 985
(7th Cir. 2010)(quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). If a
habeas petitioner failed to “properly assert[] his federal claim at each level of state
court review,” the petitioner is deemed to have “procedurally defaulted that claim.”
Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008)(quoting Lewis v. Sternes, 390
F.3d 1019, 1025 (7th Cir. 2004)); see also Johnson v. Hulett, 574 F.3d 428, 431 (7th
Cir. 2009)(stating that “[t]o obtain federal habeas review, a state prisoner must first
submit his claims through one full round of state-court review,” and that “[t]he
penalty for failing to fully and fairly present [] arguments to the state court is
procedural default”). A petitioner, in exhausting his state court remedies, has “‘the
duty to fairly present his federal claims to the state courts.’” Malone, 538 F.3d at
753 (stating that fair presentment includes “‘the petitioner . . . assert[ing] his federal
claim through one complete round of state-court review, either on direct appeal of his
conviction or in post-conviction proceedings’”)(quoting Lewis, 390 F.3d at 1025).

In both cases, Ellison failed to raise his habeas claims through one complete
round of state court review. Ellison did not present this claim alleging that his
counsel concealed portions of the record on direct appeal. (R Ex. I). Nor did Ellison
present the claim in his post-conviction petition or subsequent appeal. (R Ex. I).
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Therefore, Ellison’s claims are procedurally defaulted. The court also notes that
even if Ellison’s claim was not procedurally defaulted, the claim lacks any merit.
See Wyatt v. United States, 574 F.3d 455, 457-58 (7th Cir. 2009)(citing Strickland v.
Washington, 466 U.S. 668, 687-88 (1984))(explaining elements for an ineffective
assistance of counsel claim and stating that a “movant must overcome the strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance”). The record reflects that the State presented ample
evidence upon which Ellison could be found guilty beyond a reasonable doubt.

B. Justification to Excuse Default
Respondent also argues that there are no facts in this case that provide a
justification to excuse the default of Ellison’s claims. A procedurally defaulted claim
can still be considered by a district court “if a petitioner can show cause and
prejudice or a fundamental miscarriage of justice.” Coleman v. Hardy, 628 F.3d 314,
318 (7th Cir. 2010); see also Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir.
2010)(stating that “[a] federal court on collateral review will not entertain a
procedurally defaulted constitutional claim unless the petitioner can establish cause
and prejudice for the default or that the failure to consider the claim would result in a
fundamental miscarriage of justice”); Holmes v. Hardy, 608 F.3d 963, 968 (7th Cir.
2010)(stating that a “way to avoid procedural default is to show actual innocence,
that is, to show that in light of new evidence, it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable
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doubt”)(internal quotations omitted)(quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)); Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010)(stating that “default
could be excused if [the petitioner] can establish cause and prejudice, or establish
that the failure to consider the defaulted claim will result in a fundamental
miscarriage of justice”). In the instant action, Ellison has not provided facts showing
that he was prevented from properly presenting his claims in the state system in order
to avoid the procedural default. Ellison has not shown cause and prejudice. Nor has
Ellison shown actual innocence or a fundamental miscarriage of justice that would
excuse the procedural default.

II. 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 the
applicant.” Id. A district court should only issue a certificate of appealability “if the
applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). The petitioner must also 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
(2000)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In the instant action,
Ellison has not made a substantial showing of the denial of a constitutional right as to
any claims presented in his Petition. Nor has Ellison shown that reasonable jurists
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could debate whether the Petition should have been resolved in a different manner or
that the issues presented in the Petition deserve encouragement to proceed further.
Therefore, should Ellison decide to appeal this court’s ruling, this court finds that a
certificate of appealability would not be warranted, and is denied.

CONCLUSION
Based on the foregoing analysis, the Petition is denied.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: June 27, 2017

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