Ursery v. Gates et al

Filing 31

ORDER ADOPTING 26 REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Fernandez Ursery; denying 27 MOTION to Appoint Counsel filed by Fernandez Ursery and denying 29 MOTION to Appoint Counsel filed by Fernandez Ursery. Petitioner's claims are dismissed with prejudice and the Court DENIES a certificate of appealability. Signed by Chief Judge David R. Herndon on 6/27/2013. (mtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

FERNANDEZ URSERY,
Petitioner,
v.
RICK HARRINGTON,1
Respondent.

Case No. 10-cv-537-DRH-DGW
MEMORANDUM AND ORDER

HERNDON, Chief Judge:
I.

Introduction

Before the Court is a Report and Recommendation (R&R) (Doc. 26) of
United States Magistrate Judge Donald G. Wilkerson, issued pursuant to 28
U.S.C. § 636(b)(1)(B), recommending denial of petitioner Fernandez Ursery’s §
2254 habeas petition, dismissal of this matter, and denial of a certificate of
appealability (COA).
The R&R was sent to the parties, informing them of their right to file
“objections” within fourteen days of service of the R&R. Since the filing of the
R&R,

Ursery

has

filed

four

documents.

First,

a

document

titled,

“Recommendation,” construed as a motion to appoint counsel which includes
vague objections to certain factual findings of the R&R (Doc. 27). Second, a
1

Rick Harrington is substituted as the respondent herein, see Rule 2(a) of the Rules Governing
Section 2254 cases in the United States District Courts; Fed. R. Civ. P. 25(d)(1); Bridges v.
Chambers, 425 F.3d 1048, 1049-50 (7th Cir. 2005). The Clerk is instructed to change the
docket sheet accordingly.

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document titled, “Motion for Objection Thereto” (Doc. 28). Ursery requests that
the Court file a written objection to the R&R. However, this document does not
contain specific objections to the R&R. Third, Ursery filed another “Motion for
Appointment of Counsel” (Doc. 29). And finally, Ursery again filed a document
titled, “Motion to File Written Objection Thereto,” without any inclination as to
what portion of the R&R Ursery finds objectionable (Doc. 30).
Generally, this Court will only undertake de novo review of specifically
objected-to portions of the R&R. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b);
SOUTHERN DISTRICT OF ILLINOIS LOCAL RULE 73.1(b); Willis v. Caterpillar, Inc., 199
F.3d 902, 904 (7th Cir. 1999); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir.
1992). The Court need not conduct a de novo review of the findings of the R&R
for which no objections are made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985).
Instead, the Court can simply adopt these findings after review for clear error.
See Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). Although
Ursery has not made specific objections, except his objections to certain findings
of fact stated in the R&R, it seems clear to the Court that his intention in filing
multiple documents titled, “Motion to File Written Objection,” was to object to the
R&R’s legal conclusion that his claims should be dismissed. Thus, the Court shall
review the R&R’s overall legal conclusions de novo.
II.

Findings of Fact

Ursery seemingly objects to the R&R’s statement that Ursery “was found
guilty of first-degree murder” (Doc. 27, p. 2). A review of the record clearly
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demonstrates Ursery was in fact found guilty of first-degree murder in the
shooting death of Henry Carpenter (Carpenter). Secondly, construing Ursery’s
“objections” as liberally as possible, he generally objects to the R&R’s findings of
fact, as he takes issue with the R&R’s factual finding, as characterized by Ursery,
“that the state did not have evidence to charge Fernandez Ursery with murder at
the commencing[sic] the prosecution until [Shawn Pruitt (Pruitt)] made a
statement” (Doc. 27, p. 2). It seems Ursery is alluding to his claim that his Illinois
speedy trial rights were violated by the trial court. In summarizing the Illinois
Court of Appeals’ decision affirming Ursery’s conviction, the R&R states,
[T]he Court noted that Petitioner was initially charged with
aggravated discharge of a firearm and aggravated unlawful use of a
weapon and was only charged with murder three months later, after
he had made an exculpatory statement to the jailhouse informant
[Pruitt]. The Court held that Petitioner’s speedy trial rights (which
provides that Petitioner should be brought to trial within 120 days of
detention) were not violated because the murder charge was not
known (even though it may have been suspected) at the time of the
arrest.
(Doc. 26, p. 2). A review of the Illinois Court of Appeals’ decision demonstrates
this is an accurate summary of the appellate court’s finding that Ursery’s speedy
trial rights were not violated. Ursery was initially charged on May 21, 2002. Pruitt
acknowledged on June 24, 2002, that he gave a written statement to the police
about Ursery’s confession to Carpenter’s murder. Thus, on August 26, 2002, the
State added the first-degree murder charge against Ursery. The appellate court
found that while the State might have suspected that Ursery had planned to kill
Carpenter, it was not until Ursery “bragged” to Pruitt in June 2002 that the State’s

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evidence indicated that Ursery committed murder. Accordingly, the murder was
not subject to compulsory joinder, and Ursery’s right to a speedy trial on the
murder count was not violated. See People v. Ursery, 848 N.E.2d 146, 155 (Ill.
App. Ct. 2006) (citing 720 ILCS 5/3-3(b) (West 2002)). As the Court has reviewed,
to the best of its ability, Ursery’s specific objections to the R&R’s findings of fact,
it ADOPTS the R&R’s findings of fact as its own and will not recite them fully
here. The Court refers the reader to the R&R for a more complete summary of the
factual and procedural background of these proceedings.
III.

Legal Conclusions

Ursery’s petition raises the following claims:
1. Trial counsel was ineffective for failing to file a motion to suppress
evidence obtained in violation of the Fourth Amendment.
2. Trial counsel was ineffective for failing to review certain
fingerprint evidence.
3. Trial counsel was ineffective for failing to investigate the
possibility of another suspect in the crime.
4. Trial counsel was ineffective for failing to submit fingerprint
evidence to an expert.
5. Trial counsel was ineffective with respect to a “right to compulsory
process.”
6. His speedy trial rights were violated and trial counsel was
ineffective for failing to raise this claim.
7. Trial counsel was ineffective for failing to move for dismissal on
double jeopardy grounds.
8. Trial counsel was ineffective for failing to review or present
evidence regarding Pruitt’s criminal history.
9. An unclear claim regarding the weapon used in the crime.
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10. Trial counsel was ineffective for failing to object to a discovery
violation involving a glove.
The standards of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254, govern this Court’s review of Ursery’s claims. Under
the AEDPA, a petitioner must demonstrate that the state court reached a decision
on the merits of a claim that was either (1) “contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States,” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” Martin v. Grosshans, 424 F.3d 588, 590 (7th Cir. 2005) (citing 28
U.S.C. § 2254(d)).
“A state petitioner seeking a writ of habeas corpus in federal court must
first exhaust the remedies available to him in state court, 28 U.S.C. §
2254(b)(1)(A), thereby giving the State the opportunity to pass upon and correct
alleged violations of its prisoners' federal rights.” Cheeks v. Gaetz, 571 F.3d 680,
685 (7th Cir. 2009) (citations and internal quotations omitted). Specifically, a
habeas petitioner must fully and fairly present his federal claims through one full
round of state-court review before he files his federal habeas petition.

See

O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999); Gray v. Hardy, 598 F.3d
324, 327 (7th Cir. 2010). “[W]hen a petitioner has exhausted his state court
remedies and failed to properly assert his federal claims at each level of review,
those claims are procedurally defaulted.” Woods v. Schwartz, 589 F.3d 368, 373

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(7th Cir. 2009). Procedural default precludes federal court review of a petitioner's
habeas claims. See Ward v. Jenkins, 613 F.3d 692, 696 (7th Cir. 2010).
The R&R finds Ursery’s claims 1-5, 7, 8, 9, and 10 are procedurally
defaulted as they were not presented through one full round of state court review.
In thoroughly reviewing the record, the Court is in agreement. On direct review,
Ursery raised only two claims in both the Illinois Appellate and Supreme Courts:
(1) that the State violated his statutory speedy-trial right; and (2) that his trial
counsel was ineffective for failing to move for dismissal based on that violation.
Ursery, 848 N.E.2d. at 154-55; (Doc. 18-4, p. 1-2); (Doc. 18-14, p. 3).
Of the claims Ursery advanced on post-conviction review, none are
preserved. The sole claim Ursery raised at all three levels of state court review
was Ursery’s claim that Pruitt’s “perjured” testimony that he was on a probation
for a misdemeanor rather than a felony violated his right to due process (Doc. 1815, p. 259); (Doc. 18-1, p. 12); (Doc. 18-11, p. 5). The Illinois Appellate Court
held he “forfeited” this claim according to Illinois procedural law because Ursery
failed to raise it on direct appeal, despite his ability to do so. Moreover, the
appellate court went on to note that the record before the trial court established
that the “State had not falsely represented the nature of Pruitt’s Boone County,
Missouri, conviction and that defense counsel was aware of that fact.” (Doc. 1810, pp. 5-6). Thus, a claim by Ursery alleging that Pruitt’s “perjured” testimony
referenced above violated his right to due process would not be reviewable here.
Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir. 2009) (“[W]hen a state refuses to

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adjudicate a petitioner's federal claims because they were not raised in accord
with the state's procedural rules, that will normally qualify as an independent and
adequate state ground for denying federal review. . . . Such claims are commonly
referred to as being procedurally defaulted.”) (citations omitted). Ursery’s claim
8, arguing that trial counsel was ineffective for failing to review or present
evidence regarding Pruitt’s criminal history is also procedurally defaulted as it
was not sufficiently raised before the state courts.
The Court is also in agreement with the R&R in finding that Ursery has not
sufficiently demonstrated the cause and prejudice necessary to excuse procedural
default. See Thompkins v. Pfister, 698 F.3d 976, 987 (7th Cir. 2012). By way of
explanation:
Cause for a default is ordinarily established by showing that some
type of “external impediment” prevented the petitioner from
presenting his claim. Prejudice is established by showing that the
violation of the petitioner's federal rights “worked to his actual and
substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.”
Id. (citing Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010)(emphasis in
original) (additional citations omitted)). While Ursery’s petition does not reference
cause or prejudice for his failure to raise his defaulted claims (and thus,
respondent was not able to address such allegations), Ursery’s reply cites his
appellate counsel’s failure to raise various claims he brings in his petition before
this Court as providing the “cause” necessary to excuse his default. The Court is
in agreement with the R&R that Ursery’s claim that his appellate counsel was
ineffective for failing to raise various issues was never raised through one full
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round of state court review. Thus, Ursery has also procedurally defaulted claims
related to his appellate counsel’s ineffectiveness. See Smith v. Gaetz, 565 F.3d
346, 352 (7th Cir. 2009) (“[T]he assertion of ineffective assistance as a cause to
excuse procedural default in a § 2254 petition, is, itself, a constitutional claim
that must have been raised before the state court or be procedurally defaulted.”)
(citation omitted). He has not shown cause and prejudice for this default.
Thus, as the R&R concludes, Ursery’s only remaining claims are his
assertions that his speedy trial rights were violated and that his trial counsel was
ineffective for failing to raise the claim. As to Ursery’s claim that his rights under
the Illinois Speedy Trial Act, 725 ILL. COMP. STAT. § 5/103-5; 720 ILL. COMP. STAT.
§ 5/3-3, were violated, the Court agrees that Ursery’s claim is not reviewable by
this Court. Ursery made no claim that his constitutional right to a speedy trial
was violated and this Court will not reevaluate a state-court determination of a
state-law question. Bloyer v. Peters, 5 F.3d 1093, 1098 (7th Cir. 1993) (a federal
court cannot reexamine state court determinations on state law questions in order
to grant habeas relief) (citing Estelle v. McGuire, 502 U.S. 62, 67-8 (1991); Reed
v. Clark, 984 F.2d 209, 210 (7th Cir. 1993)).
Ursery additionally alleges that his trial counsel was ineffective for failing to
raise a speedy trial claim. To succeed in an ineffective assistance of counsel claim,
a petitioner must demonstrate (1) his attorney’s performance “fell below an
objective standard of reasonableness,” and (2) “but for counsel’s unprofessional
errors the result of the proceeding would have been different.” Strickland v.

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Washington, 466 U.S. 668, 694 (1984).

To satisfy the first prong, “the Court

must determine whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent assistance.”
Id. at 690.

To satisfy the second prong, a petitioner must demonstrate to a

“reasonable probability” that without the unprofessional errors, “the result of the
proceeding would have been different.” Id. at 696.
In Ursery’s case, the Illinois Appellate Court found that because the murder
offense was not “known to the proper prosecuting officer at the time of
commencing the prosecution,” it was not subject to compulsory joinder and thus
Ursery’s right to a speedy trial on the murder count was not violated. Ursery, 848
N.E.2d. at 55. The appellate court did not directly address whether Ursery’s trial
counsel was justified in declining to move for a speedy trial, because a motion to
discharge would not have been successful. Id. Thus, in essence, the Illinois
Appellate Court found Ursery’s trial counsel was not ineffective for failing to move
for relief which would not have been granted. This decision of the Illinois
Appellate Court was not “contrary to” or “an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). Because Ursery’s murder charge was not required
to be joined to the weapons charges, a motion to discharge for a violation of the
Illinois Speedy Trial Act would have been futile. Thus, the appellate court’s
decision was not in error under the analysis of Strickland. See Stone v. Farley,
86 F.3d 712, 717 (7th Cir. 1996) (“Failure to raise a losing argument, whether at

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trial or on appeal, does not constitute ineffective assistance of counsel.”);
Strickland, 466 U.S. at 694. Thus, Ursery has not presented a claim capable of
providing him the relief he seeks. Accordingly, the Court ADOPTS the R&R’s
recommendation that Ursery’s § 2254 petition be DENIED.
IV.

Appointment of Counsel

After the filing of the R&R, Ursery filed two documents which the Court
construes as motions to appoint counsel (Docs. 27, 29). As the Court has
previously informed Ursery, a litigant is not entitled to appointed counsel in a
federal post-conviction proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555
(1987); Powell v. Davis, 415 F.3d 722, 727 (7th Cir. 2005). The Criminal Justice
Act, 18 U.S.C. § 3006A(a)(2)(B), authorizes a district court to appoint counsel for
a petitioner seeking habeas relief under 28 U.S.C. § 2254. This section requires
the district court to determine that the appointment of counsel would serve “the
interests of justice” and that the petitioner is “financially eligible.” See 18 U.S.C. §
3006A(a)(2). Appointing counsel for pro se petitioners in habeas cases is a power
commended to the discretion of the district court in all but the most
extraordinary circumstances. Winsett v. Washington, 130 F.3d 269, 281 (7th Cir.
1997).
Ursery’s indigence aside, the Court finds counsel is not required “in the
interests of justice” at this late juncture. The majority of Ursery’s claims are
procedurally barred and the rest are clearly without merit. Counsel’s assistance at
an earlier stage would not have changed this result. The Court and respondent

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were able to determine the gist of Ursery’s claims without assistance of counsel.
Further, concerning Ursery’s request for an evidentiary hearing, the Court finds
that pursuant to Rule 8(a) of the Rules Governing § 2254 Cases, a hearing is not
warranted, as petitioner's claims are either procedurally defaulted or facially
without merit. Thus, on the basis of the above, the Court finds appointment of
counsel would not serve “the interests of justice” in this instance. Thus, Ursery’s
motions for appointment of counsel (Docs. 27, 29) are DENIED.
V.

Certificate of Appealability

Lastly, “[t]he district court must issue or deny a certificate of appealability
(COA) when it enters a final order adverse to the applicant.” Rule 11(a), Rules
Governing § 2254 Cases. A COA may issue only if the applicant has made a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). When the Court denies a petitioner's § 2254 petition on the merits and
not merely for procedural reasons, the Supreme Court has found “the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate
that reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). When the district court denies a petition on procedural grounds, a COA
should issue when the petitioner shows, at least, 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. Id. In this case, Ursery has not

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made the requisite showing under § 2253(c)(2). Ursery’s claims are either
procedurally defaulted, without a sufficient showing of cause and prejudice, or
clearly without merit. Reasonable jurists would not debate these findings. Thus,
the Court ADOPTS the R&R’s recommendation that the Court DENY Ursery a
COA.
VI.

Conclusion

For the reasons discussed herein, the Court ADOPTS the findings of the
R&R (Doc. 26) over Ursery’s general objections (Doc. 27, 28, and 30). Ursery’s
requests for appointment of counsel are also DENIED (Docs. 27, 29). Thus,
Ursery’s § 2254 petition (Doc. 1) is DENIED. Accordingly, Ursery’s claims are
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Signed this 27th day of June, 2013.

David R. Herndon
2013.06.27
15:33:47 -05'00'
Chief Judge
United States District Court

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