Opinion
Case No. 99 C 7080
January 9, 2001
MEMORANDUM OPINION AND ORDER
Ahmad Morgan ("Morgan" or "Petitioner") seeks a writ of habeas corpus against Vienna Correctional Center Warden, William Barham, pursuant to 28 U.S.C. § 2254. Following a bench trial in the Circuit Court of Cook County, Morgan was convicted of two counts of residential burglary and sentenced to two eight-year sentences to be served concurrently. Morgan's post-conviction petition was denied in April of 1998. The Appellate Court affirmed the conviction on May 10, 1999. On October 6, 1999, the Illinois Supreme Court denied Petitioner's leave to appeal. Petitioner filed this writ of habeas corpus on October 27, 1999, raising three grounds for relief, as set out and discussed below. For the reasons stated herein, Morgan's Petition for Writ of Habeas Corpus is DENIED.
BACKGROUND
The factual findings of a state trial or appellate court are presumed true in a federal habeas proceeding unless the petitioner can rebut the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Morgan has not challenged the Appellate Court's summary of facts. Accordingly, the following facts are drawn from the Appellate Court's opinion affirming Morgan's conviction as well as the other exhibits submitted by the Respondent.
On February 10, 1997, Chicago Police Officer, Donald Eichler, stopped Petitioner, who was walking down the street carrying two bags. Eichler asked Morgan what was in the bags. Petitioner told Eichler that the bags contained his property and kept walking. Eichler asked Petitioner to step up against his car, performed a pat-down search, and asked Morgan to accompany him to the station. At the time he was stopped, Petitioner was carrying a VCR, a "boom-box," and 80 compact discs. During the encounter, Morgan also told Officer Eichler that he had previously sold ten compact discs at a nearby record exchange at 925 W. Belmont. Petitioner was then released and allowed to take the property with him. Officer Eichler testified that he stopped Petitioner because he was carrying a "boom box" and was an African-American in a predominantly white neighborhood.
On March 15, 1997, Officer Steven Miller approached Petitioner in a store in Chicago. When Miller asked Petitioner his name, Petitioner ran into Miller, knocking him to the ground. Miller chased Petitioner and apprehended him a short distance away. Petitioner was arrested for battery and transported to the police station where he gave a statement to Officer Eichler implicating himself in the burglaries.
The trial court ruled that the police had unlawfully detained Petitioner on February 10th and suppressed any statements given, evidence recovered, or observations made as a result of the arrest. However, the trial court held that the March 15th arrest was legal because Officer Miller had probable cause to arrest Petitioner for battery. The trial court refused to suppress any evidence gathered as a result of the March 15th arrest.
At trial, Officer Eichler testified that on February 13, 1997, he received a call regarding the burglaries. In response to that call, he went to a record resale shop and recovered ten compact discs.
One of the burglary victims later identified the compact discs as part of a collection that had been stolen from his apartment. He recognized them from the scratches and initials on the cases. Defendant objected to this testimony at trial on the grounds that it was the fruit of an illegal stop and search. The trial court overruled the objection. Defendant challenged the decision again in his post-trial motion. The trial court held that recovery of the compact discs on February 13th was not related to the unlawful stop of defendant on February 10th because the telephone tip received on February 13th constituted an "independent source."
Petitioner raises three grounds for relief in his petition for habeas corpus: (1) a violation of due process arose because he was not allowed to inspect the stolen property as it was returned to the victims; (2) a violation of due process arose because a continuance was not granted; and (3) his counsel at the suppression hearing was ineffective.
DISCUSSION
I. Standard of Review
A federal court will not grant habeas corpus relief on any claim adjudicated on the merits by a state court unless: (1) the state court applied a United States Supreme Court doctrine unreasonably to the facts of the case; or (2) the state court's decision relied on an unreasonable reading of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). For relief based on an unreasonable application of Supreme Court doctrine, the state court's decision must be both incorrect and unreasonable. Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000). In reviewing Morgan's Petition for Writ of Habeas Corpus, the Court limits itself to the issues raised by Petitioner in his writ.
II. Due Process
Petitioner makes two due process arguments in his Petition for Writ of Habeas Corpus. First, he argues that he was denied the opportunity to inspect the stolen compact discs or use them for impeachment purposes even though testimony regarding identification of the stolen compact discs was introduced at trial. (The discs had been returned to the original owners after they were recovered but before Petitioner was arrested on March 15, 1997). Secondly, Petitioner argues that the trial judge's denial of his request for a continuance after Petitioner became aware that he would not be able to inspect the compact discs or use them at trial constituted an independent violation of his due process rights. Both of Petitioner's due process arguments fail.
Petitioner makes no attempt to challenge the legal reasoning employed by the Appellate Court in its decision. The Appellate Court noted that "testimony regarding the compact discs was used only to corroborate defendant's confession and did not establish an element of the crime since proof that property was taken was not necessary to support conviction for burglary. See e.g., People v. Ybarra, 156 Ill. App.3d 996, 1004 (1987). At any rate, police officers do not have "an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337 (1988). Where the evidentiary material is only "potentially useful," the failure to preserve that material does not constitute a denial of due process unless a criminal defendant can show bad faith on the part of the police. Id. Petitioner has shown neither that production of the compact discs would be more than "potentially useful" to his case nor any bad faith on behalf of the police in returning the property before Petitioner was arrested. Lastly, Petitioner was given ample opportunity to cross-examine the witness who identified the discs. Therefore, this Court affirms the Appellate Court's disposition of this claim.
In his second claim, Petitioner argues that the trial court's rejection of his request for a continuance after he was told by the police that they no longer retained the stolen compact discs constituted a violation of due process. He contends that the Appellate Court failed to address this issue. However, the Appellate Court's finding that there was no due process violation meant that there was no prejudice which the trial court needed to cure with a continuance. In his petition for leave to appeal to the Supreme Court, Petitioner had argued "[a]t the very least, the court should have granted defense counsel a continuance in order to cure the prejudice suffered by the defendant." ( Id. at 12). Because there was no prejudice to be cured, the trial judge had no obligation to grant a continuance to protect Petitioner's due process rights.
III. Ineffective Assistance of Counsel
In order to prove that his counsel was ineffective, Morgan must establish that: (1) his counsel's representation fell below an objective standard of reasonableness; and (2) a reasonable probability existed that, but for his lawyer's alleged errors, the outcome of his case would have been different. Washington v. Smith, 219 F.3d 620, 627 (7th Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687-688 (1984)). Morgan contends that his counsel's failure to argue that discovery of the stolen compact discs at Record Exchange derived from the illegal February 10th arrest at the time of the suppression hearing constituted ineffective assistance of counsel. (Pet. 6). The Appellate Court declined to consider the reasonableness of Petitioner's representation, instead, finding that no prejudice had arisen from the failure to oppose evidence concerning the recovery of the compact discs since this evidence was properly admitted. (Order of the Ill. App. Ct. at 6). The Appellate Court affirmed the trial court's holding that the compact discs were recovered as the result of a tip independent of the arrest. The Petitioner has failed to challenge the holding of the Appellate Court that this evidence was properly admitted. Therefore, he cannot show that he was prejudiced by his counsel's failure to make the argument earlier. This Court affirms the Appellate Court's finding that Petitioner has failed to show prejudice and, therefore, denies his claim based on ineffective assistance of counsel.
CONCLUSION
For the reasons stated herein, Morgan's Petition for Writ of Habeas Corpus is DENIED.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.IT IS HEREBY ORDERED AND ADJUDGED that Petitioner, Ahmad Nyere Morgan's Petition For Writ of Habeas Corpus is denied for the reasons stated herein. Enter Memorandum Opinion And Order.