Clay v. Lawrence

Filing 35

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 10/15/2020. Petitioner Jerry Clay's Petition for Writ of Habeas Corpus 15 is denied. The Court declines to issue a certificate of appealability. See Opinion for further details. Mailed notice(lk, )

Case: 1:19-cv-06892 Document #: 35 Filed: 10/15/20 Page 1 of 12 PageID #:680

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JERRY CLAY,
Petitioner,
v.
FRANK LAWRENCE, Acting Warden,
Menard Correctional Center,
Respondent.

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No. 19 C 6892
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Petitioner Jerry Clary seeks, pursuant to 28 U.S.C. § 2254, a writ of habeas corpus for
alleged violations of his constitutional rights. For the reasons set forth below, his Petition (Dkt. 15)
is denied.
BACKGROUND
On December 22, 1998, three men entered a currency exchange and then left. (Dkt. 19-1 at
1.) One man re-entered the currency exchange when Terry Madden entered carrying a green bag
and $60,000 from an armored truck. (Id.) Madden worked for United Armored at the time. (Id.)
When Madden entered, he was shot and killed by a man who fled in a blue compact car after
seizing the bag with cash. (Id.) Madden died minutes later. (Id.) Although several employees of
the exchange saw the shooting, no one could remember much about the shooter’s appearance. (Id.)
Witnesses described the men who entered the exchange only as “male blacks.” (Id.) Police found
a wallet on the sidewalk near the exchange. (Id.) Inside, an officer found Petitioner’s identification
and a temporary permit for a Chevy van registered in the name of Theotis Coleman. (Id.)
The officers at the police station traced the address on the registration for the van and set
up surveillance near the address. (Dkt. 19-1 at 1.) Around 2:30 p.m., Jerry Clay (“Petitioner”) got
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into a brown car with a woman and a child and left from that address. (Id. at 2.) The officers
stopped the car, asked Petitioner his name, placed him under arrest, and brought him to the police
station. (Id.) Later, one of the detectives learned that the Illinois State Police had recovered a
United Armored duffel bag from an expressway ramp, which contained straps for money linked to
the currency exchange, the victim’s lock bag, and a letter addressed to Veronica Clay. (Id.)
The officers read Petitioner his Miranda rights and he agreed to speak to them. (Dkt. 19-5
at 2–3.) Petitioner had $2,000 in cash on his person at the time of his arrest. (Id.) Upon further
surveillance of the address where he was arrested, Petitioner’s cousin was arrested with $8,000 in
cash sewn into his clothing. (Id.) After being told that his previous polygraph test indicated
deception and that a duffel bag with currency exchange papers and a letter addressed to Veronica
Clay had been discovered, Petitioner identified Veronica Clay as his sister. (Id. at 2.)
The officers then went to Veronica Clay’s residence and entered her apartment without a
warrant. (Id. at 2, 5.) At the apartment, the officers found keys with tags to the various currency
exchange locations and left with the keys. (Id. at 3.) When officers interviewed Petitioner again
and confronted him with the discovery of the keys, he waived his Miranda rights and admitted to
his involvement in the robbery as the look-out. (Id. at 6, 10.) Petitioner also named the shooter and
the getaway driver. (Dkt. 19-1 at 2.)
The trial court denied Petitioner’s motion to suppress the arrest for lack of probable cause
based primarily on the found wallet with the identification. (Id.) The trial court also permitted the
prosecution to present evidence of another unsolved armored car robbery that had occurred six
months prior to the one at trial. Petitioner and a co-defendant agreed to simultaneous trials. (Dkt.
19-1 at 2.) Separate juries tried Petitioner and a co-defendant in a joint proceeding. (Id.) The trial
court admitted into evidence Petitioner’s oral statements to the police and the cash found on his

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person. (Id.) The court’s instructions to the jury included an instruction about legal accountability
for acts of another. (Id. at 3.) The jury found Petitioner guilty of first-degree murder and armed
robbery and sentenced him to concurrent terms of fifty years and thirty years in prison, respectively.
(Id.)
On appeal, the Illinois Appellate Court found that the police lacked probable cause to arrest
Petitioner. (Dkt. 19-1 at 6.) The court remanded the matter to the trial court to determine whether
intervening circumstances attenuated Petitioner’s oral statements from the illegal arrest. (Id. at 7.)
On remand for a new trial, the trial court determined that Petitioner’s oral statements were
sufficiently attenuated from his illegal arrest and were admissible at retrial. (Dkt. 19-5 at 1.) At the
retrial on November 17, 2006, a jury again found Petitioner guilty of first-degree murder and armed
robbery. (Dkt. 19-11 at 1.) The trial court again sentenced him to concurrent terms of fifty years
for first-degree murder and thirty years for armed robbery. (Id.)
Petitioner appealed to the Illinois Appellate Court and argued that: (1) his inculpatory
statements and the discovery of cash on him were not attenuated from the illegal arrest and should
have been suppressed; (2) the prosecution committed misconduct that was prejudicial to Petitioner
and denied him of a fair trial; (3) the trial court erred in giving partial jury instructions prior to
opening statements; (4) the trial court erred in holding severed but simultaneous trials for Petitioner
and a co-defendant; and (5) Petitioner’s sentence for first-degree murder was excessive. (Dkt. 192 at 2–5.) The Illinois Appellate Court affirmed Petitioner’s convictions and sentences. (Dkt. 196 at 25–45.) Petitioner subsequently filed a petition for rehearing, which the Appellate Court
denied. (Id. at 70.)
On May 5, 2015, Petitioner filed a Petition for Leave to Appeal (PLA) with the Illinois
Supreme Court. (Dkt. 19-6.) Petitioner argued that: (1) the Illinois Appellate Court created a

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conflict of law when it ignored its own precedent and held that Petitioner could not challenge the
use of illegally obtained evidence to dissipate the taint of the illegal arrest; and (2) the Illinois
Appellate Court created a conflict when it directly contradicted its own prior determination that
the police engaged in flagrant misconduct. (Id. at 12–20.) The Illinois Supreme Court denied the
PLA. (Id. at 71.)
On April 6, 2016, Petitioner filed a pro se petition for state post-conviction relief. (Dkt. 198.) Petitioner argued that: (1) the police improperly accepted his waiver of the Fifth Amendment
right to counsel; (2) his trial and appellate counsel were ineffective for failing to require the Court
to read the accountability jury instruction prior to opening statements; (3) his trial and appellate
counsel were ineffective for failing to argue that the police improperly detained Petitioner without
receiving a Gerstein hearing 1; and (4) there was inordinate delay in his direct appeal. (Id. at 4–11.)
On June 21, 2016, Circuit Court of Cook County dismissed the petition. (Id. at 12.)
On appeal of the dismissal of his petition, Petitioner’s counsel filed a motion to withdraw
pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). 2 (Dkt. 19-9.) In response to the motion,
Petitioner reasserted the claims from his postconviction petition and additionally alleged that: (5)
the short statutory deadline for postconviction petitions prevents pro se petitioners from
investigating claims and presenting complete petitions; (6) trial counsel was ineffective for failing
to obtain police misconduct histories for each of the arresting and testifying officers in his case;
(7) the trial judge was biased because he used to be a prosecutor “in close proximity to disgraced
Chicago Police Commander Jon Burge”; and (8) postconviction appellate counsel was ineffective.

1

A Gerstein hearing is a preliminary hearing to determine whether the police had probable cause to arrest someone
without a warrant. See Gerstein v. Pugh, 420 U.S. 103 (1975).
2
Finley provides that defendants do not have a right to counsel in a collateral appeal. A lawyer appointed to represent
a defendant in a collateral appeal may file a Finley brief explaining that the lawyer believes the case lacks arguable
merit. Carrion v. Butler, 835 F.3d 764, 771 (7th Cir. 2016).

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(Dkt. 19-10 at 4–13; Dkt. 19-11 at 2–3.) The Illinois Appellate Court granted the motion for
Petitioner’s counsel to withdraw as counsel and affirmed the judgment of the trial court. (Dkt. 1911 at 4.)
On December 7, 2018, Petitioner filed an appeal as a matter of right or, in the alternative,
leave to appeal in the Supreme Court of Illinois. (Dkt. 19-11. at 5.) Petitioner argued that: (1) the
six month filing requirement of the Illinois Post-Conviction Hearing Act is unconstitutional
because it deprives Petitioner of due process under the Fourteenth Amendment; (2) the appellate
judges erred in refusing to recuse themselves; (3) the appellate court denied Petitioner due process
by not explaining why it would not review his motion; (4) neither the circuit court nor the appellate
court applied the liberal construction rule; and (5) the trial judge was biased against Petitioner. (Id.
at 6–16.) The Supreme Court denied the petition. (Id. at 17.) The instant Petition followed.
DISCUSSION
I.

Claim One: Suppression of Oral Statements
In Claim One, Petitioner argues that his oral statements to the police should have been

suppressed because the police obtained these statements when he was arrested and detained
without probable cause in violation of his Fourth Amendment rights. (Dkt. 15 at 5.) A court may
not grant a state prisoner federal habeas corpus relief on the ground that a party obtained evidence
introduced at trial through an unconstitutional search and seizure if the state courts provided an
opportunity for full and fair litigation of the Fourth Amendment claim. Stone v. Powell, 428 U.S.
465, 494 (1976). A full and fair hearing constitutes more than an opportunity to present one’s
claims to state court. Monroe v. Davis, 712 F.3d 1106, 1114 (7th Cir. 2013). A state court process
that amounts to a sham would not constitute a full and fair hearing. Cabrera v. Hinsley, 324 F.3d
527, 531–32 (7th Cir. 2003); Hampton v. Wyant, 296 F.3d 560, 563–64 (7th Cir. 2002). Courts do

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not review the underlying court’s decision on the merits, but instead evaluate whether there has
been a subversion of the hearing process or a failure to apply the appropriate case law.
Cabrera, 324 F.3d at 531–32; Hampton, 296 F.3d at 563–64.
Petitioner had a full and fair hearing on his Fourth Amendment claim. On direct appeal,
the appellate court analyzed the facts of the case and found that the police lacked probable cause
to arrest Petitioner. (Dkt. 19-1 at 6.) The appellate court then remanded the case to determine
whether Petitioner’s statements were sufficiently attenuated from the illegal arrest. (Id. at 7.) The
trial court found that the evidence was sufficiently attenuated and the appellate court affirmed the
conviction. (Dkt. 19-6 at 69.) The appellate court did not subvert the hearing process by
disregarding the importance of a hearing to determine attenuation. The appellate court remanded
the case to the trial court. (Id. at 7.) When the appellate court reviewed the decision regarding
attenuation, it applied the law and found that the Brown factors 3 all weighed in favor of attenuation.
(Dkt. 19-6 at 44, 59.) Thus, Petitioner cannot obtain federal habeas corpus relief on this basis
because Petitioner has already had a full and fair hearing for his Fourth Amendment claim.
II.

Fifth Amendment Claims
In Claim Two, Petitioner alleges that the admission at trial of his coerced and fabricated

confession violated his Fifth Amendment rights and that the jury convicted him in part based on
this confession. (Dkt. 15 at 5.)
Before a state prisoner pursues federal habeas relief, the petitioner must exhaust his
remedies in state court in order to give the state system a full and fair opportunity to consider the
constitutional objections. See 28 U.S.C. § 2254(b)(1)(A); Johnson v. Pollard, 559 F.3d 746, 751

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Brown v. Illinois, 422 U.S. 590 (1975) (Courts consider four factors in determining whether a confession was the
product of an illegal arrest: (1) the proximity in time between the arrest and the confession, (2) the presence of
intervening circumstances, (3) the purpose and flagrancy of police misconduct, (4) whether Miranda warnings were
given.).

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(7th Cir. 2009). A habeas petitioner must present his constitutional claims through one full round
of state court review, either on direct appeal of his conviction or in post-conviction proceedings.
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Mulero v. Thompson, 668 F.3d 529,
536 (7th Cir. 2012). A petitioner challenging his conviction in Illinois must have first "appealed
to the Illinois Appellate Court and presented the claim in a [PLA] to the Illinois Supreme Court."
Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007). If a petitioner exhausts state court remedies
but fails to properly assert his constitutional claims at each level of review, he procedurally defaults
on those claims. See O'Sullivan, 526 U.S. at 848; Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir.
2009).
Petitioner failed to raise Claim Two in one complete round of state appellate review.
Petitioner did not raise the claim regarding the admission of his coerced and fabricated confession
in the appellate court or in a PLA to the Supreme Court. (See Dkt. 19-2 at 2–5; Dkt. 19-6 at 12–
20.) In state postconviction proceedings, Petitioner brought a different Fifth Amendment claim—
namely, that the police improperly accepted his waiver of his Fifth Amendment right to counsel.
(See Dkt. 19-8 at 4–11.) Petitioner procedurally defaulted on Claim Two because Petitioner failed
to give the state courts a full and fair opportunity to consider his objection at each level of review.
Petitioner also argues that the trial court violated his due process rights by instructing the
jury on accountability prior to opening statements (Claim Four), that the prosecutor’s improper
statements during closing arguments denied Petitioner a fair trial (Claim Five), that the joint trial
with Petitioner’s co-defendant violated the Fourteenth Amendment (Claim Six), and that
Petitioner’s sentence violated the Eighth Amendment (Claim Seven). (Dkt. 15 at 5–6.) 4 The record
reflects that Petitioner procedurally defaulted on these claims. Petitioner raised Claims Four, Five,

4

In response to Respondent’s brief, Petitioner admitted to procedural default for Claims Four, Five, Six, and Seven.
(Dkt. 33 at 5.)

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Six, and Seven in the Illinois Appellate Court but did not raise them in a PLA to the Supreme
Court. (See Dkt. 19-6 at 12–20.) 5 Thus, Petitioner procedurally defaulted on Claims Four, Five,
Six, and Seven because he failed to present these claims in one full round of state court review.
III.

Miscellaneous Claims: Three, Eight, Nine, Ten, and Eleven
Petitioner also alleges that the trial judge was biased (Claim Three); that Illinois’s statutory

deadline for filing postconviction petitions violates the Fourteenth Amendment (Claim Eight); that
his counsel’s decision to include only one issue in the direct appeal PLA constructively denied him
his right to counsel (Claim Nine); that trial counsel was ineffective for failing to investigate the
police or presenting evidence that the police abused suspects (Claim Ten); and that the trial judge
denied Petitioner a timely direct appeal in violation of his due process and equal protection rights
(Claim Eleven). (Dkt. 15 at 5–9.) 6 Indeed, Petitioner did not raise Claims Three, Eight, Nine, Ten,
and Eleven on direct appeal, nor did he present them in the postconviction petition. (See Dkt. 192 at 2–5); (Dkt 19-6 at 12–20); (Dkt. 19-8 at 4–11). He also failed to raise Claims Nine, Ten, and
Eleven in his postconviction PLA. (See Dkt. 19-11 at 6–16.) Although Petitioner raised Claims
Three and Eight in his response to his lawyer’s Finley brief and brought these claims in a PLA to
the Supreme Court, a petitioner does not fairly present his federal claim to the state courts when
he raises that claim for the first time after his lawyer has filed a motion to withdraw under Finley.
See Lewis v. Sternes, 390 F.3d 1019, 1031 (7th Cir. 2004); (See Dkt. 19-19 at 4–13; Dkt. 19-11 at
6–16.). Thus, Petitioner procedurally defaulted on Claims Three, Eight, Nine, Ten, and Eleven.

5

In the postconviction petition and appeal, Petitioner focused on the ineffectiveness of counsel for failing to object to
the jury accountability instruction before opening statements, which is different from the underlying constitutional
claim. (See Dkt. 19-8 at 4–11; Dkt. 19-10 at 4–3.)
6
In response to Respondent’s brief, Petitioner concedes that he procedurally defaulted on Claims Three, Eight, Nine,
Ten, and Eleven. (Dkt. 33 at 6.)

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IV.

Claim Twelve: Inability to Timely Assert Rights
In Claim Twelve, Petitioner argues that (a) the appointment of ineffective counsel; (b) the

constructive denial of trial and appellate counsel; (c) inadequate access to legal materials or inmate
law clerks; (d) the short 6-month statutory deadline for filing a postconviction petition in light of
a complex case; and (e) the loss or destruction of documents by correctional employees caused
prejudice and prevented him from asserting his rights in a full and timely manner. (Dkt. 15 at 9.)
Petitioner did not raise Claim Twelve in one full round of state court review, so he
procedurally defaulted on this claim. O’Sullivan, 526 U.S. at 845; see Mulero, 668 F.3d at 536. He
did not present claims of appointment of ineffective counsel and constructive denial of trial and
appellate counsel in a PLA to the Illinois Supreme Court. (See Dkt. 19-8 at 4–1); (Dkt 19-11 at 6–
16). Petitioner never raised claims of inadequate access to legal materials or inmate law clerks and
the loss or destruction of documents by correctional employees in direct appeal or postconviction
proceedings, much less a PLA. (See Dkt. 19-2 at 2–5); (Dkt. 19-6 at 12–20); (Dkt. 19-8 at 4–1);
(Dkt 19-11 at 6–16). Petitioner did present the claim about the short statutory deadline for filing a
postconviction petition in a Finley response and in a PLA to the Supreme Court in postconviction
proceedings. (See Dkt 19-11 at 6–16; Dkt. 19-10 at 4–3; Dkt. 19-11 at 2–3.) But again, a petitioner
does not fairly present a federal claim to state courts when he raises that claim for the first time
after his lawyer has filed a motion to withdraw under Finley. See Lewis v. Sternes, 390 F.3d at
1031. Thus, Petitioner procedurally defaulted on Claim Twelve because he failed to assert the
claim at every level of state court review.
V.

Exceptions to Procedural Default
A federal court may hear a habeas petitioner's procedurally defaulted claim under two

exceptions: (1) if he can demonstrate cause and prejudice for the default, or (2) if he can

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demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice
because he is actually innocent. See McQuiggin v. Perkins, 569 U.S. 383, 391–92 (2013); Crockett
v. Hulick, 542 F.3d 1183, 1193 (7th Cir. 2008).
To show cause and prejudice, Petitioner must show that there was an "'objective factor,
external to [Petitioner] that impeded [his] efforts to raise the claim in an earlier
proceeding.'" Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013) (quoting Smith v. McKee,
598 F.3d 374, 382 (7th Cir. 2010)). Examples of cause include: (1) interference by officials making
compliance impractical, (2) the factual or legal basis for the claim was not reasonably available to
counsel, or (3) ineffective assistance of counsel. Guest, 474 F.3d at 930 (citing McCleskey v. Zant,
499 U.S. 467 (1991)).
Petitioner suggests cause exists here because correctional employees denied him access to
legal resources and destroyed documents but he does not allege when or how this occurred. He
does not explain when and what kind of documents the correctional officers destroyed. Moreover,
Petitioner does not explain how these impediments would have prevented him from asserting
claims in one complete round of state proceedings. Petitioner fails to demonstrate how these vague
impediments made it impractical for him to assert his claims in earlier state proceedings.
Petitioner’s claim about the short statutory deadline for filing a postconviction petition is
equally unavailing. If Petitioner had claims he wanted to assert based on new evidence he
discovered after the postconviction petition filing deadline, Illinois law provides a mechanism for
asserting such claims. Under 725 ILCS 5/122-1(f), the petitioner may ask the state court for
permission to file a successive petition if he can identify an objective factor that impeded his ability
to raise the claim in the initial postconviction proceeding and show that his inability to raise the

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claim caused him prejudice. Petitioner failed to take advantage of this mechanism, so the filing
deadline does not provide good cause for his procedural defaults.
To show a fundamental miscarriage of justice, a petitioner must provide new evidence to
support a claim of actual innocence. McQuiggin, 569 U.S. 383 at 391–92; see also Schlup v. Delo,
513 U.S. 298, 324 (1995). Petitioner does even raise a fundamental miscarriage argument and the
court will not make that argument for him. See Franklin v. Gilmore, 188 F.3d 877, 884 (7th Cir.
1999) (“Franklin . . . does not make this argument and we will not make it for him.”). Petitioner
has not established a basis for raising defaulted claims before this Court.
VI.

Certificate of Appealability
Petitioner may not appeal the final order on a § 2254 petition unless the Court issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1)(a). A court may issue a certificate of
appealability only when "the applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). To obtain a certificate of appealability, Petitioner
must demonstrate that reasonable jurists would find it debatable whether his Petition states a valid
constitutional claim. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Petitioner has failed to make a substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2). Petitioner had a full and fair hearing of his Fourth Amendment claim, and
he procedurally defaulted on his remaining claims. Reasonable jurists would not debate whether
to resolve his claims differently. See Rutledge v. United States, 230 F.3d 1041, 1047 (7th Cir.
2000). The Court declines to issue a certificate of appealability.

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CONCLUSION
For the foregoing reasons, the Court denies the Petition [15] and declines to issue a
certificate of appealability.

____________________________________
Virginia M. Kendall
United States District Judge
Date: October 15, 2020

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