Opinion
No. 97 C 2992
May 16, 2000
OPINION and ORDER
Before the court is Petitioner Michael Long's Petition for Writ of Habeas Corpus. For the following reasons, the court denies the Petition.
I. Background
After a jury trial in the circuit court of Cook County, Illinois, the jury convicted Petitioner Michael Long of two counts of armed robbery and sentenced him to imprisonment for his natural life as a habitual offender. Long is currently in the custody of Roger D. Cowan, Warden of Menard Correctional Center, Menard, Illinois. Long now argues, in his Petition for Writ of Habeas Corpus ("Petition"), that: (1) the arresting police officers' perjured testimony at a hearing to quash arrest and suppress his subsequent oral statement violated his constitutional rights; (2) his oral inculpatory statement was coerced and should have been suppressed pursuant to the "fruits of the poisonous tree" doctrine; and (3) he was denied his Sixth Amendment right to the effective assistance of trial counsel. (See Pet.) Before the court addresses the Petition, it recounts the facts, many of which are taken verbatim from the decision of the Illinois Appellate Court on Long's direct appeal from his conviction. (See Ex. A.) A. Background Facts
When Long filed his Petition, Thomas F. Page was the Warden of Menard Correctional Center. Cowan has since replaced Page as warden of that facility.
Unless otherwise noted, all Exhibits to which the court refers are those Exhibits provided by Respondent.
Prior to trial, Long filed a motion to quash his arrest and suppress his statement to the police. In this motion, Long argued that the police officers had unlawfully entered his residence without a warrant, and that neither consent nor exigent circumstances justified their warrantless entry into his home to arrest him.
At the hearing on his motion to quash arrest and suppress statements, Long testified that on the date of his arrest, he lived in the first-floor apartment of a two-flat house in Chicago. His girlfriend, Christina White, had been living with him for approximately two months and rented the apartment. Long's mother and sister lived in the second-floor apartment.
Long further testified that shortly before 9:00 p.m. on the date of his arrest, he was watching television in the living room at the rear of the apartment. His girlfriend, Christina, had just left the apartment to go to the store on the corner. Long's sister, Charmaine, came down the rear stairs to talk to Christina. Long told Charmaine that Christina had just gone to the store but would return shortly. He let Charmaine out the back door, locked it, and then returned to the couch to watch television. At that time, he saw a shadow on the wall between the kitchen and the living room. Long recalled that it was exactly 9:00 p.m., because he looked at a clock in the living room. As he started to look around the corner, at least five or six men ran up to him, pointed guns at his face, said "police officers," and then handcuffed him. The officers searched the entire apartment including cabinets and drawers, When he asked if they had an arrest or search warrant, they said they did not need either one. Long testified that Charmaine, who was on her way back upstairs, immediately returned and began knocking on the back door to be let in. Before he was taken from the apartment by the officers, Christina returned and brought him his coat from the closet. Long testified that neither he nor anyone else consented to the police entry into the apartment or gave them permission to search it.
Following Long's testimony, defense counsel stated that the defense rested on Long's Motion to Quash and Suppress. The State then presented the testimony of two police officers. Officer Peter Ciaccio of the Oak Lawn Police Department testified that he and his partner, along with several officers of the Chicago Police Department, went to Long's home to arrest him for the armed robbery of a White Hen Pantry store in Oak Lawn that had occurred a few days earlier. Officer Ciaccio stated that he did not attempt to obtain a warrant for Long's arrest, a process that would have taken six to eight hours.
At this point in the opinion, the Illinois appellate court stated, "It is undisputed that the officers had probable cause to arrest [Long], as two individuals had given incriminating statements to police that implicated Petitioner in the White Hen Pantry robbery." (Ex. A at 3.) Long does not dispute that two individuals gave incriminating statements to the police.
Officer Ciaccio and another officer, Officer Gricus, then testified to the following: that they knocked on the door of Long's residence at approximately 9:00 p.m.; a young woman, who at some point later stated that she lived there with Long, opened the door; after identifying themselves as police officers and informing the woman that they were looking for Long, the woman said, "come in," or "step in;" and the officers then entered the apartment, saw Long watching television, and arrested him.
Following the testimony of the police officers, defense counsel moved for a continuance in order to locate Long's girlfriend, Christine. The trial court granted the motion. When the hearing reconvened, the defense did not call Christine, but called Long's sister, Charmaine, as a witness. Charmaine testified that on the day of Long's arrest, she lived with her mother in the second-floor apartment and Long was living on the first floor with Christina. Between 8:30 and 9:00 p.m., Charmaine went downstairs to talk to Christina. Long told her that Christina had just gone to the store, and Charmaine left through the back door and returned to the upstairs apartment. She did not see Christina at that time.
Approximately 20 minutes later, Charmaine went back down the stairs and began knocking and then pounding on the back door. After five minutes, someone opened the door. Charmaine then saw six or eight police officers, noted that the apartment had been ransacked (it had not been in that condition when Charmaine saw it 20 minutes before), and did not see Christina. Charrnaine surmised that Christina returned from the store after Charmaine returned to the first floor to find her brother arrested. Lois Long, Michael Long's mother, also testified. She stated that at around 9:00 p.m., she descended the residence's rear stairway, saw numerous officers within the first-floor apartment, and saw that the officers were arresting Long.
After this testimony, the defense rested. After arguments by counsel, the trial court stated that it found credible the police testimony to the effect that they entered the apartment with the voluntary consent of the young woman who rented it. On this basis, the court denied Long's motion to quash the arrest and suppress his statement.
Long was then prosecuted for the armed robbery of the manager and attendant of a Union 76 Gas Station in Evergreen Park, Illinois, that occurred at approximately 3:45 p.m. on December 19, 1985. The manager of the gas station testified, as did the gas station attendant. The State was allowed to introduce into evidence at Long's trial the circumstances of the armed robbery of a cashier at a White Hen Pantry store in Oak Lawn that occurred a few days later, on December 22, 1985.
The gas station owner and attendant, as well as the cashier of the White Hen Pantry, identified at trial the items of clothing worn by their assailants and the weapon used during the robberies. It was established that these items had been recovered by police from the residence of a man named Eric Petrouskas.
At trial, the court admitted into evidence an oral incriminating statement made by Long while he was in custody at a police station following his arrest. In this statement, Long said that he participated in the armed robbery of the gas station and the White Hen Pantry with the assistance of Petrouskas and Long's brother, Scott Long. While at the police station following his arrest, Long also signed a written statement incriminating himself in both robberies, and testimony was admitted into evidence to show that Long had signed such a written account of the incidents. However, the trial court refused to admit the written statement into evidence, because it included references to armed robberies other than those occurring at the gas station and the White Hen Pantry.
In his defense at trial, Long presented the testimony of his sister, Susan Green, his mother, Lois Long, and a neighbor, Brenda Garcia. Each of these witnesses testified that on the date and time of the gas station robbery, Long was stringing Christmas lights on the outside of the house in which Long, his girlfriend, and his family lived. All of these witnesses also testified that on the date and time of the White Hen Pantry robbery, Long was playing cards with them in the apartment of his mother.
Based upon this evidence, Long was found guilty and convicted of the armed robbery of the manager and attendant at the Union 76 Gas Station. He was sentenced to natural life imprisonment as a habitual offender. (See Ex. A at 1-8.)
B. Post Trial Proceedings
On direct appeal to the Illinois Appellate Court, the public defender representing Long raised the following three arguments:
1. the trial court erred in denying his motion to quash his warrantless arrest and suppress his subsequent inculpatory statement as the fruit of an illegal arrest, because Long was arrested in his home and without a warrant, exigent circumstances, or voluntary consent to enter;
2. he was denied effective assistance of counsel at the hearing on his motion to quash; and
3. he was denied effective assistance of counsel at his trial.
(See Ex. A.) The Illinois appellate court rejected these claims and affirmed the conviction. (See id.)
Long then filed a timely petition for leave to appeal to the Illinois Supreme Court, arguing:
1. the appellate court incorrectly applied an attenuation analysis to the use of the statements obtained after his arrest; and
2. the appellate court incorrectly determined that the police had obtained voluntary consent to enter his apartment.
(See Ex. B.) On April 3, 1991, the Illinois Supreme Court denied Long's petition for leave to appeal. (See Ex. C.)
Almost four years later, on January 4, 1995, Long filed a petition for relief pursuant to the Illinois Post Conviction Hearing Act, 735 Ill. Comp. Stat. 5/122-1, et seq. (See Ex. D.) In his postconviction petition, Long raised the following arguments:
1. he was denied his right to due process when the State knowingly presented false testimony at the pretrial hearing on his motion to quash his arrest and statement;
2. he was denied his right to be free of "illegal government activity" and coercion when his statements were not suppressed pursuant to the "fruit of the poisonous tree" doctrine;
3. he was denied his right to remain silent and to have an attorney present during his custodial interrogation because "the interrogating officers should have realized that he was high on drugs and alcohol" and could not make rational decisions;
4. he was denied his right to effective assistance of counsel because defense counsel did not adequately prepare for trial and failed to discover and call crucial witnesses;
5. he was denied due process and a fair trial because the State failed to prove his guilt beyond a reasonable doubt; and
6. he was denied his rights pursuant to the First, Sixth and Fourteenth Amendments because, on direct appeal, his attorney failed to consolidate the instant case with an appeal from his conviction in another case.
(See Ex. D.) The trial court dismissed the postconviction petition as untimely (see Ex. F at 1), although that order is not contained in the record. Subsequently, on or around August 23, 1996, Long appealed the dismissal to the Illinois Appellate Court (See Ex. E), which affirmed the trial court's dismissal as untimely on December 22, 1998. (See Ex. F.)
On March 2, 1999, Long filed a petition for leave to appeal the dismissal of his postconviction petition to the Illinois Supreme Court, omitting several arguments raised below, but raising the following:
1. he was denied due process when the State knowingly presented false testimony at his hearing to quash his arrest and statement;
2. he was denied his right to be free from "illegal governmental activity," when his coerced statements were not suppressed pursuant to the "fruit of the poisonous tree" doctrine; and
3. he was denied effective assistance of counsel because his counsel failed to adequately prepare for trial and failed to discover and call crucial defense witnesses.
(See Ex. G.) On June 2, 1999, the Illinois Supreme Court denied Long's petition for leave to appeal (See Ex. H), thus concluding his state court causes of action.
Prior to the conclusion of his state court direct and postconviction appeals, however, Long initiated his claims in federal court. On the 21st or 22nd day of April 1997, Long sent his first petition for writ of habeas corpus to the clerk of the federal court of the Northern District of Illinois, which was received in the clerk's office on April 24, 1997. In this petition, Long raised the same issues as in his state postconviction proceeding. On August 4, 1997, this court dismissed this petition without prejudice because of Long's pending postconviction petition in state court (which, as noted above, was untimely). The court granted Long leave to refile his petition within 60 days of the conclusion of his state postconviction proceedings.
On March 17, 1999, after Long filed for leave to appeal his postconviction petition to the Illinois Supreme Court and before the Court denied the petition, Long sought reinstatement of his habeas petition pursuant to the court's August 4, 1997 Order, and sought to amend his Petition, instanter. In his amended Petition, Long raised the following three issues:
1. he was denied his right to due process when the State presented false testimony at the hearing on his motion to quash and suppress;
2. he was denied his right to be free from "illegal governmental activity," when his coerced statements were not suppressed pursuant to the "fruit of the poisonous tree" doctrine; and
3. he was denied effective assistance of counsel because his counsel failed to adequately prepare for trial and failed to discover and call crucial defense witnesses.
(See Pet.) On March 23, 1999, this court stayed Long's habeas corpus proceedings pending the Illinois Supreme Court's ruling on his pending appeal. After the Illinois Supreme Court denied Long's petition on June 2, 1999, the court ordered Respondent to answer the Petition.
II. Discussion
A. Timeliness Under the Antiterrorism and Effective Death Penalty Act
The court first addresses the timeliness of the Petition. As the Seventh Circuit has recently iterated:
Statutes of limitations for collateral relief in federal court are part of the Antiterrorism and Effective Death Penalty Act ["AEDPA"]. A one-year period for most state prisoners begins on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review".28 U.S.C. § 2244(d)(1)(A). . . .
The AEDPA took effect on April 24, 1996, and we stated in Lindh v. Murphy, 96 F.3d 856, 865-66 (7th Cir. 1996), reversed on other grounds, 521 U.S. 320 (1997), that no petition filed by April 23, 1997, may be dismissed as untimely.Freeman v. Page, ___ F.3d ___, No 99 C 2825, 2000 WL 311161, at *1 (7th Cir. Mar. 28, 2000). The Freeman court also stated that armed with the knowledge that his state collateral postconviction petition was, in all likelihood, untimely, "all [petitioner] had to do in order to protect his interests was to file his federal petition any time before April 24, 1997." Id. at *4.
In the instant cause of action, the court notes that Long's original habeas petition was not filed with the district court clerk until April 24, 1997. Furthermore, Long had no "properly filed" state collateral challenge between April 24, 1996 and April 24, 1997 which would have tolled the AEDPA's one-year limitation. See generally id. at *3-*4 However, "for statute of limitations purposes, a [habeas] petition is deemed filed when given to the proper prison authorities and not when received by the district court clerk" Jones v. Bertrand, 171 F.3d 499, 501-02 (7th Cir. 1999) (citing Houston v. Lack, 487 U.S. 266 (1988)). Long dated his original habeas petition April 21, 1997, and its envelope is postmarked April 22, 1997. Thus, Long timely filed his habeas petition. See id.
B. Procedural Bars
Section 2254(c) requires a habeas petitioner to exhaust state court remedies prior to filing suit in federal court. See O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). "Section 2254(c) provides that a habeas petitioner `shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.'" Id., 526 U.S. at 844 (1999) (quoting 28 U.S.C. § 2254(c)). That Court stated:
because the exhaustion doctrine is designed to give the state courts a frill and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, we conclude that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.Id. at 845; see also Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999) ("To meet the exhaustion requirement, an applicant must have raised all of his claims during the course of the state proceedings, presenting each claim fully and fairly to the state courts.") (quoting Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992)). With respect to Illinois procedure, the O'Sullivan Court provided:
Here, Illinois's established, normal appellate review procedure is a two-tiered system. Comity, in these circumstances, dictates that [habeas petitioner] Boerekel use the State's established appellate review procedures before he presents his claims to a federal court . . . [A] petition for discretionary review in Illinois's Supreme Court is a normal, simple, and established part of the State's appellate review process. In the words of the statute, state prisoners have "the right . . . to raise" their claims through a petition for discretionary review in the state's highest court. § 2254(c). Granted, [Boerckel] has no right to review in the Illinois Supreme Court, but he does have a "right . . . to raise" his claims before that court. That is all § 2254(c) requires.O'Sullivan, 526 U.S. at 845. Thus, after rejecting two of Boerckel's arguments, the Court concluded:
Boerekel's amended federal habeas petition raised three claims that he had pressed before the Appellate Court of Illinois, but that he had not included in his petition for leave to appeal to the Illinois Supreme Court. There is no dispute that this state court remedy — a petition for leave to appeal to the illinois Supreme Court — is no longer available to Boerokel; the time for filing such a petition has long past. See Ill. Sup. Ct. Rule 315(b). Thus, Boerckel's failure to present three of his federal habeas claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural default of those claims. See Coleman v. Thompson, 501 U.S. at 731-732; Engle v. Isaac, 456 U.S. 107, 125-126, n. 28 (1982).Id. at 848 (emphasis added).
In the case at bar, Long's January 4, 1995 filing of his post conviction petition in the trial court was untimely. (See Ex. F at 1.) The appellate court affirmed the trial court's dismissal, finding that Long failed to allege sufficient facts to demonstrate that his delay in filing was not due to his culpable negligence. (See id. at 3-4.) Thus, it follows that Long failed to timely present those arguments to the Illinois Supreme Court. Indeed, no Illinois court ever reached the merits of the postconviction petition because it was untimely filed. (See id.; Ex H.) Accordingly, Long procedurally defaulted those issues raised in his postconviction petition.
Additionally, "`[W]hen a state court has declined to address a prisoner's federal claims because the prisoner ha[s] failed to meet a state procedural requirement,' the independent and adequate state grounds doctrine bars federal review of that state court judgment." Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Schaff v. Snyder, 190 F.3d 513, 524 (7th Cir. 1999); Franklin v. Gilmore, 188 F.3d 877, 881 (7th Cir. 1999)). The independence of a state court's decision depends on state law, and a state court's decision is independent if the state court "actually relied on the procedural bar as an independent basis for its disposition of the case." Thomas, 201 F.3d at 1000 (quoting Harris v. Reed, 489 U.S. 255, 261-62 (1989)); see also Trest v. Cain, 522 U.S. 87, 89 (1997); Lambrix v. Singletary, 520 U.S. 528, 523 (1997). Finally, "in order for the state judgment to bar federal habeas review, the last state court to render a judgment in the case must have `clearly and expressly state[d] that its judgment rests on a state procedural bar.'" Thomas, 201 F.3d at 1000 (quoting Jenkins v. Nelson, 157 F.3d 485, 491 (7th Cir. 1998) (other citations omitted)).
In Long's case, the Illinois trial court dismissed the postconviction petition as untimely, and the appellate court affirmed. (see Ex. F.) While the Illinois Supreme Court cursorily denied Long's petition for leave to appeal without explanation, (see Ex. H), this denial is not a judgment. Thus, the appellate court's affirmance of the trial court's dismissal on untimely grounds rests solely on a state procedural bar. Long clearly failed to timely present his postconviction claims to the state courts, and because the Illinois courts disallowed those claims on that basis, those claims are procedurally barred.
Having determined that Long's postconviction claims are procedurally barred, the court addresses the issues that Long properly and timely presented to the Illinois Supreme Court on direct appeal: (1) whether the Illinois appellate court properly utilized an attenuation analysis in its determination that Long's oral inculpatory statement was admissible; and (2) whether the Illinois appellate court correctly determined that the police officers received consent to enter Long's residence. (See Ex. 2.) Pursuant to his first argument, one not raised in his Petition, Long argues that People v. White, 512 N.E.2d 677 (1987) applies to the instant case, and not New York v. Harris, 495 U.S. 14 (1990). (See Ex. 2 at 11-16.) As for his second argument, he merely disputes the factual finding that the officers received consent to enter Long's residence. (See id. at 17-18.) As such, Long never raised before the Illinois Supreme Court: (1) that the police officers perjured themselves (see Pet. at 1-8); (2) that his oral inculpatory statement was coerced (see id. at 8); or (3) that his trial counsel was ineffective. (See Pet. at 9-10.) As such, those claims are waived.
1. Cause and Prejudice
Despite this waiver, "[f]ederal courts may only review defaulted claims if the petition shows cause for failure to raise them at the appropriate time and actual prejudice which resulted from such failure," Rodriguez, 193 F.3d at 917 (citing Wainwright v. Sykes, 433 U.S. 72, 91 (1977)). In his Petition, however, Long does not mention his defaulted claims or argue cause and prejudice. In his Response to Respondent's Answer, Long argues merely that "cause existed and . . . it prejudiced [him]." ( See Resp. to Answer ¶ 9.) Long states that ineffective assistance of counsel can serve as cause and prejudice, (see id.), and argues, "If this court determines that the post [sic] issues should have been presented to the appellate court then it should also find that counsel was ineffective for not presenting those issues independently." (See id.) However, appellate counsel's failure to bring all potential cognizable claims on direct appeal to the Illinois appellate court fails to establish cause for Long's failure to timely file his pro se postconviction petition.See Smith v. Robbins, ___ U.S. ___, 120 S.Ct. 726, 765 (Jan 19, 2000) ("In Jones v. Barnes, 463 U.S. 745 (1983), we held that appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal."). Long's assertion that the police officers lied when they testified that they received consent to enter his residence does not establish cause for his failure to timely file his postconviction petition. (See Resp. to Answer at 2-4.) Similarly, Long's claim that appellate counsel should have argued that the officers perjured themselves on direct appeal fails to establish cause; as seen below see discussion infra, pp. 17-20. Long fails to demonstrate that the officers lied.
The court notes that Long does not raise, as he did in his appeal of the dismissal of his postconviction petition, that he was prevented from timely filing his postconviction petition because his counsel failed to consolidate his appeals and a lockdown prevented him from timely filing. (See Ex. F. at 2-5.)
Moreover, the case at bar is similar to the recent case of Britz v. Cowan, 192 F.3d 1101 (7th Cir. 1999). In that case, the Seventh Circuit stated:
[Habeas petitioner] Britz argues that his trial lawyer was ineffective because he failed to present admissible evidence of Britz's insanity and thus comply with the state's interpretation of its rule. But Britz failed to make this argument in the direct appeal from his conviction, and Illinois law requires that a challenge to the effectiveness of trial counsel be made in the direct appeal if, as here, the basis for the challenge is apparent from the trial record. People v. Britz, 673 N.E.2d [300,] 306-07 [(Ill. 1996)]; People v. Orange, 659 N.E.2d 935, 942-43 (Ill. 1995); People v. Hampton, 651 N.E.2d 117, 120 (Ill. 1995); People v. Keener, 655 N.E.2d 294, 298 (Ill.App. 1995). And so to bring the issue before us he argues that that waiver was a denial of effective assistance of counsel on appeal. But this issue too has been waived, whether as an independent ground for relief or as a basis for good cause to overlook a procedural default, by not having been made in the state postconviction proceedings, Murray v. Carrier, 477 U.S. 478, 489, (1986); Momient-El v. DeTella, 118 F.3d 535, 541-42 (7th Cir. 1997); Wyldes v. Hundley, 69 F.3d 247, 253-54 (8th Cir. 1995), or in the district court. Eaglin v. Welborn, 57 F.3d 496, 498 (7th Cir. 1995) (en banc); Everette v. Roth, 37 F.3d 257, 261 n. 15 (7th Cir. 1994); Moss v. Lockhart, 971 F.2d 77, 81 (8th Cir. 1992). He made it for the first time in this appeal.See Britz, 192 F.3d at 1103. Similar to Britz, in the case at bar, Long never argues that his counsel on direct appeal was ineffective until he responded to Respondent's Answer. (See Resp. to Answer.) Accordingly, Long fails to establish cause for his defaulted claims.
The court notes that Long never argues, but apparently presumes, that if he demonstrates that the officers lied, prejudice automatically results. While, the court recognizes the weight of Long's inculpatory statements introduced at trial, given that Long fails to establish cause, it need not address whether prejudice resulted from his postconviction claims being procedurally barred. Thus, the court thus turns to whether Long was subjected to a fundamental miscarriage of justice.
2. Fundamental Miscarriage of Justice
Absent a showing of cause, "a defaulted claim is reviewable only if refusal to consider it would result in a `fundamental miscarriage of justice,' that is, where `a constitutional violation has probably resulted in the conviction of one who is actually innocent. . . .'"Rodriguez, 193 F.3d at 917 (quoting Murray v. Carrier, 477 U.S. 478, 495-96 (1986) and citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). This standard "requires a petitioner to show that it is more likely than not that `no reasonable juror' would have convicted him." Rodriguez, 193 F.3d at 917 (citing Schlup v. Delo, 513 U.S. 298, 329 (1995)); Britz, 192 F.3d at 1103. While never couching his argument in "fundamental miscarriage" terms, Long's arguments can be construed to be this: that the officer's perjured testimony about receiving consent to enter his apartment caused Long's false confession that resulted in the conviction of an innocent man. As seen below, however, Long fails to demonstrate that the officers lied. See discussion infra pp. 17-20. Thus, Long fails to demonstrate that his trial resulted in the conviction of one who is actually innocent and fails to revive his defaulted claims.
Given that Long defaulted the majority of his claims, and construing Long's Petition liberally, the court finds that Long raises only one claims in his Petition that he properly raised before the Illinois Supreme Court: that the appellate court incorrectly determined that the police had obtained voluntary consent to enter his apartment. (See Ex. B.)
C. Merits
The Antiterrorism and Effective Death Penalty Act of 1996 amended 28 U.S.C. § 2254(d). That section now provides:
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)(1), (d)(2); see also, Williams v. Taylor, ___ U.S. ___, No. 98-8384, 2000 WL 385369, at *22 (Apr. 18, 2000); Schaff, 190 F.3d at 521-22. As the Supreme Court stated in Williams:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
___ U.S. ___, 2000 WL 385369, at *1.
The "contrary to" clause of 2254(d)(1) relates to questions of law, which the court reviews de novo. See Schaff, 190 F.3d at 521-22. The "unreasonable application" clause of § 2254(d)(1) refers to the state court's determination of the facts, and is a mixed question of law and fact, to which the court grants deference to any reasonable state court decision. See id. at 522-23 (noting that the state court's ruling will stand if "it is one of several equally plausible rulings") (quoting Hall v. Washington, 106 F.3d 742, 748 (7th Cir. 1997)). The "unreasonable determination" language of § 2254(d)(2) relates to pure questions of fact. See 28 U.S.C. 2254(d)(2); cf Hall v. Washington, 106 F.3d 742, 752 (7th Cir. 1997).
The contested fact in this case is the trial court's finding that officers who arrested Long received consent to enter his residence. (See Resp. to Answer at 4 ("Every issue presented in petitioners post conviction petition hinge on the factual finding that the officers committed perjury to justify their illegal entry, illegal search and seizure and that petitioners statement was in fact fruit of a poisonous tree.").) As stated by the appellate court on Long's direct appeal, "the trial court stated that it found credible police testimony to the effect that they entered the apartment with the voluntary consent of the young woman who rented it." (See Ex. A at 6.) Significantly, determinations of factual findings in a state court are presumed correct, and the petitioner has the burden of rebuffing such presumptions by clear and convincing evidence. See 28 U.S.C. 2254(e)(1). See 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 554-56 (1981);see also Rodriguez v, Peters, 63 F.3d 546, 554 (7th Cir. 1995) ("Factual findings that have been decided by the state trial or appellate courts are presumptively correct") (quoting Montgomery v. Greer, 956 F.2d 677, 680 (7th Cir. 1992), cert. denied, 506 U.S. 972 (1992)). Thus, the court presumes that the officers received voluntary consent to enter Long's apartment, and it Long's burden to rebut this presumption with clear and convincing evidence.
Long offers the following argument in an attempt to rebut the presumption that the trial court was correct:
In the instant case, Petitioner was denied due process of law when the State knowingly utilized perjured testimony from the arresting officers. These officers testified that Christina White the petitioner's girlfriend let them into the house and then left. First, this testimony in itself is incredulous. No person would leave an unattended baby alone in a house or leave when her boyfriend, the father of her child was being arrested. Second the description of the interior of the house given by the police upon entering it is incorrect. The kitchen is in the front of the apartment — the living room and couch are in the back of the apartment. . . . Third, the testimony of petitioner's sister who was standing on the back porch and the police themselves verify that entry into the house was through the front door, not the back door.
The affidavit of Christina White, trial testimony from petitioner's mother and sister and the "offer of proof" made as to the testimony of a disinterested, unbiased witness (Raul Bautos), coupled with the arresting officers own testimony that they had no intent of obtaining an arrest warrant or could provide a description of the interior of the residence demonstrates that the police did not arrest petitioner in the front room of the house which is the kitchen, but rather arrested him in the back of the house. Furthermore, it demonstrates that the police knowingly and intentionally made false statements about being invited into the residence.
Long apparently argues that the events of his arrest could not have occurred the way the officers testified because that would mean that Christina, after giving the officers consent to enter apartment, left the apartment and left her baby uncared for while Long was being arrested.
(Pet. at 6-7.) Long also offers four pieces of evidence to support these contentions. First, Long offers a not-to-scale drawing of his apartment floorplan, (see Ex. G attachment.), and argues that the arresting officers' testimony of where the officers found Long once inside his residence does not jibe with the drawing. In his Petition, Long provides several excerpts of the officers' testimony from the suppression hearing, but the suppression hearing transcript is not provided. (See Pet. at 3-5.) These excerpts provide the testimony on direct and cross examination of Officers Ciaccio and Gricus. (See id.) Long argues that the testimony that the officers found him watching television right when they entered the front door (see Resp. to Answer, Ex. A at 3-5)), cannot be truthful because, according to Long's diagram, the television is located in the rear of the apartment. (See Ex. G attachment.)
How detailed and accurate the officers described the floorplan of the apartment during the suppression hearing, however, did not appear to be an issue at the hearing and is not an issue now. Long's counsel on cross-examination did not question in detail the officer's description of the apartment's floorplan and what exactly the officers witnessed when they entered the apartment. (See Resp. to Answer at 3-5.) Long cannot point to inaccuracies (if indeed they are) in undeveloped testimony to demonstrate that the officers lied. Even if the court accepts Long's admittedly inaccurate diagram as admissible evidence, it cannot find that the diagram shows that the officers lied about the apartment's floorplan or the way the arrest occurred. Moreover, even if the officers failed to accurately describe the apartment's floorplan and the exact manner in which they found Long inside his apartment, it does not follow that the officers perjured themselves about receiving consent to enter the apartment. Thus, that Long's diagram (see Ex. G attachment) may not exactly fit with the officers' undeveloped testimony does not establish, by clear and convincing evidence, that the officers lied about the consent.
Long also offers the June 29, 1987 affidavit of Christina White (Long's girlfriend at the time of his arrest) who was living with him at the time. (See Ex. G. attachment.) The affidavit states, basically, that she was not at home between 8:45 p.m. and 9:00 p.m. on December 23, 1985 (apparently the date of Long's arrest), and never consented for anyone, much less police officers, to enter the residence. (See id. ¶ 2.) Given that Long, his sister, and his mother all testified that no one consented to the officers entering Long's apartment, it is highly unlikely that the testimony of Long's girlfriend would have made the difference either at the suppression hearing or at trial. As the appellate court found, "the trial court stated that it found credible police testimony to the effect that they entered the apartment with the voluntary consent of the young woman who rented it." (Resp. to Answer at 6.) Thus, the testimony of Christina, Long's girlfriend and cohabitant at the time of Long's arrest, does not demonstrate by clear and convincing evidence that the trial court's conclusions were wrong. (See id.)
Finally, in his Petition, Long asserts that:
a second impartial and unbiased witness whom plaintiff has been unable to locate due to his incarceration will testify that he watched the police officers enter the apartment without anyone present to let them in. (Witness Raul Bautos). Mr. Bautos will testify to the fact that the police stopped him and questioned him in the street in front of petitioner's apartment because he looked like the petitioner. Mr. B autos stood there and watched the police enter petitioner's apartment. No one opened the door and let them in as the police testified at the suppression hearing.
(Pet. at 1-2.) But these bare contentions, unsupported by Mr. Bautos' affidavit or anything else, do not demonstrate by clear and convincing evidence that the trial court's determination was incorrect. In other words, even considered collectively, the diagram, the officers' testimony, Christina's affidavit, and Mr. Bautos' possible testimony do not overcome the presumption that the trial court was correct when it found that the officers had consent to enter Long's residence. Thus, Long's argument that the officers did not have consent to enter his apartment fails on its merits.
III. Conclusion
For the foregoing reasons, the court denies Long's Petition for Writ of Habeas Corpus.
IT IS SO ORDERED.