U.S. ex Rel. Tate v. Garnett

Full title: UNITED STATES ex rel. GROVER TATE, Petitioner, v. JASON GARNETT, Warden…

Court: United States District Court, N.D. Illinois, Eastern Division

Date published: Dec 22, 2004

Case No. 04 C 4229 (N.D. Ill. Dec. 22, 2004)

Opinion

Case No. 04 C 4229.

December 22, 2004

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge

Before the Court is Petitioner Grover Tate's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the reasons discussed below, Tate's petition is denied.

I. BACKGROUND

A. Trial Evidence

Tate does not challenge the statement of facts set forth in the Illinois Appellate Court opinions on direct and post-conviction appeal, and thus those facts are presumed correct for purposes of the Court's review. See 28 U.S.C. § 2254(e)(1); Ward v. Hinsley, 377 F.3d 719, 721 (7^th Cir. 2004). The Court, therefore, adopts the underlying facts set forth by the Appellate Court of Illinois, First Judicial District. See People v. Tate, No. 1-91-1803 (1^st Dist. Oct. 12, 1993) (unpublished order); People v. Tate, 305 Ill.App.3d 607, 238 Ill.Dec. 722, 712 N.E.2d 826 (1^st Dist. 1999); People v. Tate, No. 1-00-2014 (1^st Dist. March 6, 2003) (unpublished order).

Evidence at trial indicates that on August 30, 1989, Keith Johnson and his cousin, Neil Hudson, were walking to a store around 50^th Place and St. Lawrence Avenue in Chicago, Illinois, when they encountered three women whom they knew as Toya, Tanya, and Pamela. See Tate, 305 Ill.App.3d at 608. While Toya and Johnson exchanged insults, Tate and another man walked around the corner and Tanya started yelling, "Here come my Folks. Here come my Folks." Id. Tate hugged Tanya, and Johnson and Hudson continued toward the store. Id. When they were returning from the store, Johnson and Hudson walked by Tate, who was wearing a hat which had the word "June" and a six-point star on it. Id. Tate shouted, "What did you all say to me? What you say? What you say?" Id. Neither Johnson nor Hudson responded to Tate, who then began to follow Johnson and Hudson. Id. Shortly thereafter, Johnson and Tate started arguing with each other. Id. Tate picked up a baseball bat and Johnson picked up a golf club. Id. Johnson then swung the club as Tate swung the bat, but they did not hit each other. Id. After their argument ended, Tate stated, "I knew I should have brought my pistol out with me." Id.

Johnson and Hudson continued walking to 724 East 50^th Place where they sat on the porch with Tara Louis and Nikita Wilson. Id. at 609. Johnson, Hudson, Louis, and Wilson saw a maroon Thunderbird slowly drive by the house. Id. At approximately 8:30 p.m., Johnson saw Tate, who no longer was wearing the "June" hat, and his friend standing at the corner under a street light. Id. Tate reached into his jacket, drew out a pistol, and fired it toward the porch. Id. As Tate was running away, Johnson heard Tate yell "I am going to kill you, mother fucker." Id. Johnson heard four more shots fired and sustained two gunshot wounds. Id.

That same evening, Odessa Nunn was in her apartment at 718 East 50th Place at approximately 8:35 p.m. when she heard six or seven gunshots. Shortly thereafter, she heard glass breaking. Id. She found then Hudson outside of her kitchen and brought him inside her house, where he eventually died. Id.

Earlier that day, Ernest Crossley, a friend of Johnson's and Hudson's, was sitting on his front porch when he saw a red Thunderbird stop in the middle of the street and Tate and another man get out of the car. Id. At that time, Tate was wearing a hat that had the word "June" and a six-point star on it. Id. Around thirty minutes later, Crossley went to 718 East 50^th Place where he was sitting on a porch visiting friends when he saw Tate and the other man running. Id. Tate stopped next to a street light and shot toward the porch at 724 East 50^th Place. Id. Tate then walked toward 724 East 50^th Place and continued shooting. Id. At this time, Tate was not wearing a hat. Id.

Also that evening at approximately 7:30 p.m., Gregory Jackson was preparing to use the telephone located at 50^th Place and Champlain Avenue when he saw Johnson swinging a golf club and Tate swinging a bat. Id. Jackson testified that Hudson was also present, but that he was not involved in the fight. Id. The dispute lasted about ten seconds and then Tate ran away. Id. Jackson further testified that Tate was wearing a hat that had "June" and a six-point star on it. Id. Jackson testified that he had known Johnson for about twelve years and that he had known Hudson for about fifteen years. Id. Approximately 35 minutes later, Jackson was driving his car around 50^th Place and Champlain when he saw Tate. Id. Jackson told Tate to go back where he came from and to stay out of trouble. Id. at 609-10. According to Jackson, Tate replied, "These mother fuckers started this shit and I am going to finish it. I am a real gangster." Id. at 610.

Although Tate did not testify at trial, during the State's case-in-chief he was required to display a tattoo to the jury which included a six-point star. Id. At the conclusion of the State's evidence, Tate stated that he had conferred with his mother and attorney in deciding not to testify on his own behalf. Id.

B. Procedural Background

Following a jury trial in the Circuit Court of Cook County, the jury found Tate guilty of first degree murder and attempted first degree murder. The trial court sentenced Tate to concurrent 40 and 30 year prison terms. On direct appeal, Tate argued that (1) he was denied a fair trial when the State had him display his tattoo of the six point star to the jury, (2) he was denied a fair trial by the State's improper closing argument, and (3) the trial court abused its discretion by imposing excessive sentences. On October 12, 1993, the Illinois Appellate Court affirmed Tate's convictions and sentences. (R. 16-1, Rules Governing Section 2254 Cases, Rule 5, Ex. A.)

On November 4, 1993, Tate filed a Petition for Leave to Appeal the Illinois Supreme Court in which he raised two claims (1) the appellate court erred in finding that he was not denied a fair trial when the State had him display his tattoo of a six point star to the jury, and (2) the appellate court erred in finding that he was not denied a fair trial by the State's improper closing argument. (Ex. B.) The Illinois Supreme Court denied Tate's petition for leave to appeal on February 4, 1994. (Ex. C.)

On April 9, 1992, Tate filed a petition for post-conviction relief in the Circuit Court of Cook County pursuant to the Illinois Post Conviction Hearing Act. See 725 ILCS 5/122-1. Tate brought the following claims in his post-conviction petition (1) ineffective assistance of trial counsel for failure to file a motion to reduce sentences, and (2) another ineffective assistance of counsel claim encompassing nineteen different allegations, including that counsel was ineffective for failing to interview alibi witnesses Tanya Hall, Geraldine Tate, and Sherrie Huntley. (Ex. D.) On March 5, 1997, the Circuit Court of Cook County denied Tate's post-conviction petition without conducting an evidentiary hearing. (Ex. E.)

Tate then appealed the denial of his post-conviction petition to the Illinois Appellate Court arguing that the trial court erred in denying an evidentiary hearing to determine whether trial counsel was ineffective for failing to present three alibi witnesses. (Ex. F.) On March 31, 1999, the Illinois Appellate Court, First District, reversed and remanded the case to the Circuit Court for an evidentiary hearing on the alibi issue. (Ex. G.)

After the Circuit Court conducted the evidentiary hearing concerning the alibi witnesses, the trial court denied Tate's request for relief under the Post Conviction Hearing Act. (Ex. H.) Tate appealed the Circuit Court's denial on October 1, 2001, raising the following claims (1) the Circuit Court erred in finding that Tate's trial counsel was not ineffective for failing to present the alibi witnesses, and (2) the Circuit Court erred in excluding relevant evidence supporting Tate's argument that his trial counsel was ineffective. (Ex. H.) On December 4, 2001, Tate filed a pro se supplemental brief which the Illinois Appellate Court struck from the record. (Ex. J.) On March 6, 2003, the Illinois Appellate Court, First District, affirmed the Circuit Court's dismissal of post-conviction relief. (Ex. K.) On March 27, 2003, Tate filed a petition for rehearing that the Illinois Appellate Court denied. (Ex. M.)

Finally, Tate filed a petition for leave to appeal the denial of his post-conviction claims to the Illinois Supreme Court in which he raised the following arguments (1) trial counsel was ineffective for failing to raise the issue of wrongful arrest, and (2) post-conviction appellate counsel provided "incompetent representation." (Ex. N.) On October 7, 2003, the Illinois Supreme Court denied Tate's petition for leave to appeal. (Ex. O.)

On June 24, 2004, Tate filed the present habeas corpus petition with the Court. Construing his pro se habeas petition liberally, see Calhoun v. DeTella, 319 F.3d 936, 943 (7^th Cir. 2003), Tate asserts the following claims (1) ineffective assistance of trial counsel based on counsel's failure to raise the issue of misidentification and failure to challenge the sufficiency of the evidence, (2) ineffective assistance of post-conviction appellate counsel, and (3) the trial court erred at the post-conviction evidentiary hearing.¹

1 In his reply brief, Tate also alleges that certain trial evidence was tainted due to his warrantless arrest. Tate has waived this claim, however, because he brought it for the first time in his reply brief to the Court. See Carter v. Tenant Co., 383 F.3d 673, 679 (7^th Cir. 2004).

II. LEGAL STANDARDS

A. Habeas Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief cannot be granted unless the state court's decision was contrary to, or an unreasonable application of law clearly established by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). In Williams, the Supreme Court explained that a state court's decision is "contrary to" clearly established Supreme Court law "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 confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours." See id. at 405.

Under the "unreasonable application" prong under Section 2254(d)(1), a habeas petitioner must demonstrate that although the state court identified the correct legal rule, it unreasonably applied the controlling law to the facts of the case. See Williams, 529 U.S. at 407. To be considered "unreasonable" under this standard, a state court's decision must lie "well outside the boundaries of permissible differences of opinion." See Hardaway v. Young, 302 F.3d 757, 762 (7^th Cir. 2002).

B. Procedural Default

A petitioner's failure to present a constitutional claim to the highest state court to which he may appeal in the manner required by state law results in a procedural default preventing a federal court from deciding the claim on collateral review. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (petitioner must give state court full and fair opportunity to resolve federal constitutional claims before federal habeas court can review them). A petitioner may overcome procedural default by demonstrating cause for the default and actual prejudice as a result of the alleged violation of federal law, or by showing that failure to consider the claims will result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).

III. DISCUSSION

1. Ineffective Assistance of Trial Counsel

A. Ineffective Assistance of Counsel Claims

Tate claims that his trial counsel provided constitutionally ineffective assistance of counsel because he failed to investigate and present evidence at trial challenging the State's identification evidence. Tate also contends that there was insufficient evidence presented to find him guilty of first degree murder and attempted first degree murder.

First, Tate failed to present his claim that trial counsel failed to present a misidentification defense in his direct appeal to the Illinois Appellate Court. Further, he failed to present this claim in his subsequent petition for leave to appeal to the Illinois Supreme Court. Although Tate brought various claims of ineffective assistance of counsel in his first post-conviction petition, he did not raise the issue of misidentification. In any event, Tate did not appeal this issue to the post-conviction Illinois Appellate Court. In sum, Tate raises this issue for the first time in his habeas petition, and thus his claim is procedurally defaulted. See Boerckel, 526 U.S. at 845. Tate has not explained why he did not present this issue in his direct appeal, post-conviction appeals, or petitions for leave to appeal, and therefore, he has failed to demonstrate cause for the default. See Coleman, 501 U.S. at 750. Further, he has not argued or established the "fundamental miscarriage of justice" exception. Id. Therefore, the Court is procedurally barred from considering the merits of Tate's ineffective assistance of trial counsel claim based on counsel's failure to present a misidentification defense.

Second, Tate's sufficiency of the evidence claim, which is packaged as an ineffective assistance of counsel claim, is also procedurally defaulted. See Boerckel, 526 U.S. at 845. This claim was not presented in his direct appeal or in his subsequent petition for leave to appeal the Illinois Supreme Court. In addition, this claim was not included in his post-conviction appeals and subsequent petitions for leave to appeal. Again, Tate does not attempt to establish cause and prejudice. See Coleman, 501 U.S. at 750. Although Tate states that he is wrongfully incarcerated due to his actual innocence, he does not give the Court any basis for this statement or argument in support of this claim.² Therefore, Tate has not established the fundamental miscarriage of justice exception. See id. As such, Tate has procedurally defaulted his sufficiency of the evidence claim.

2 The Court also notes that Tate makes this statement for the first time in his reply brief to the Court, and thus any such argument is waived. See Carter v. Tenant Co., 383 F.3d 673, 679 (7^th Cir. 2004).

2. Ineffective Assistance of Post-Conviction Appellate Counsel

Next, Tate argues that his post-conviction appellate counsel was ineffective for raising only one claim to the Illinois Appellate Court. It is well-established, however, that there is no constitutional right to counsel in collateral proceedings such as state court post-conviction appeals. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Johnson v. Daley, 339 F.3d 582, 586 (7^th Cir. 2003). Therefore, Tate's ineffective assistance of post-conviction appellate counsel claim is not a cognizable claim on habeas review. Howard v. O'Sullivan, 185 F.3d 721, 725 (7^th Cir. 1999).

B. Trial Court Error at Post-Conviction Hearing

Tate's final habeas argument is that the post-conviction trial court erred by (1) denying a "chamber conference" during the evidentiary hearing, (2) denying his motion to substitute the judge, (3) ignoring the fact that his trial counsel did not turn over work product to the State Appellate Defender as trial counsel claimed, (4) preventing Tate from eliciting the fact that trial counsel did not demand the disclosure of the "tipster," (5) finding trial counsel was not ineffective for failing to offer alibi evidence, (6) finding trial counsel was not ineffective for failing to present that Tate was left-handed, and (7) barring inquiry into trial counsel's conflict of interest based on Tate's claims that he did not agree with trial counsel's handling of his case.

In conducting habeas review, the Court is limited to deciding whether a conviction violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a). Tate's claim that the trial court erred based on evidentiary and procedural rulings does not amount to a federal claim. Instead, these claims are based on allegations that the state court erred in applying Illinois substantive and procedure law. As such, these claims are not cognizable on habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"); see also Perruquet v. Briley, 390 F.3d 505 (7^th Cir. 2004) ("errors of state law in and of themselves are not cognizable on habeas review"). Under the circumstances, habeas relief is only warranted if the state court's erroneous rulings were so prejudicial that they compromised Tate's due process right to a fundamentally fair trial. Anderson v. Sternes, 243 F.3d 1049, 1053 (7^th Cir. 2001); Howard, 185 F.3d at 723.

In his reply brief, Tate argues that the trial court had a "blind eye" and "deaf ear" concerning his constitutional rights. This argument alone, however, does not established that the trial court's errors were of such magnitude that they took on a constitutional dimension. See Howard, 185 F.3d at 723. Indeed, it is questionable whether the trial court erred in the first instance. Because these claims are state evidentiary and procedural claims, Tate's final habeas claim is not cognizable on habeas review.

C. Rule 5 of the Rules Governing Habeas Corpus Cases Under § 2254

Finally, Tate claims that because the State did not provide the evidentiary hearing transcript in its Rule 5 submissions, the State has somehow erred. Rule 5, however, does not require full production of the state trial record; instead, it requires that the State provide "such portions of the transcripts as the [State] deems relevant." See U.S. ex rel Green v. Greer, 667 F.2d 585, 590 (7^th Cir. 1981). Because full production of the record is not required under Rule 5, the State has not erred by omitting the evidentiary hearing transcript from its Rule 5 submissions.

IV. CONCLUSION

For these reasons, the Court denies Tate's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.