Blake v. Hardy, Case No. 10-cv-238-DRH

• Decision Date: 16 September 2013
• Docket Number: Case No. 10-cv-238-DRH
• Parties: SAMUEL PAUL BLAKE, Petitioner, v. MARCUS HARDY, Respondent.
• Court: U.S. District Court — Southern District of Illinois

SAMUEL PAUL BLAKE, Petitioner, v. MARCUS HARDY, Respondent.

Case No. 10-cv-238-DRH

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

DATED: September 16, 2013

MEMORANDUM AND ORDER

HERNDON, Chief Judge:

I. Introduction

This case is before the Court on a petition for writ of habeas corpus (Doc. 1). Respondent has filed a response to the petition (Doc. 22). Petitioner has filed a reply (Doc. 37). Based on the following, the Court DENIES and DISMISSES petitioner's habeas petition (Doc. 1).

II. Background

A. Procedural Background

1. Facts

Petitioner is currently incarcerated in the Stateville Correctional Center where he is serving a natural life sentence for four counts of predatory criminal sexual assault and a term of ten years imprisonment for a criminal sexual assault (Doc. 22 Ex. A).

Petitioner was charged in Randolph County on four counts of predatory criminal sexual assault of a child and one count of criminal sexual assault (Doc. 22 Ex. A, B). Petitioner was charged with sexually assaulting his stepdaughters, M.P. and P.G. It was alleged that petitioner had sexual intercourse with P.G. during the time periods of September 2000 through October 2000, November 2000 through December 2000, and January 2001 respectively (Id. at p. 2). It was also alleged that petitioner had sexual intercourse with M.P. during August 2000 through September 2000 (Id.). The criminal sexual assault count alleged that petitioner had sexual intercourse with M.P. during the period of January 31, 2001 through February 2001, after M.P. turned thirteen (Id).

At trial, Randolph County Sheriff's Office Detective Donald Krull testified that during a March 29, 2001 interview with P.G., P.G. told him that petitioner had sexual intercourse with her and that she had seen him have sexual intercourse with M.P (Doc. 22 Ex. B at p. 2). She also stated petitioner took nude photos of her and M.P., but destroyed them, and that she once had sexual intercourse with petitioner while on his mail truck route in Monroe County (Id.).

M.P. testified at trial that petitioner had sexual intercourse with her in his bed, on the couch, in the basement, and on his mail truck route. She testified that she once saw petitioner having sexual intercourse with P.G. and that petitioner took M.P.'s clothes off and threatened her (Id.). P.G. also testified about her sexual encounters with petitioner. She testified that she had sexual intercourse with Petitioner on his bed and couch (Id.). She also identified a third sexual encounterwith Petitioner which occurred on a day her mother took her brother to the doctor and to Wal-mart to get a prescription refilled (Id.).

Petitioner's wife and mother of the victims testified that she believed her daughters' allegations were false and made out of anger that petitioner made them do their homework and objected to their being around older boys. Petitioner's wife also testified that petitioner was with her on the day she took her son to the doctor (Id.). Petitioner was found guilty on all five counts and sentenced to natural life (Id. at p.3).

2. State Court Proceedings

After petitioner's guilty verdict, he appealed his sentence to the state appellate court, arguing that 720 ILCS 5/12-14.1(b)(1.2), the provision requiring a sentence of natural life for predatory criminal sexual assault convictions involving two or more children was unconstitutional under the proportionate penalties clause of the Illinois Constitution (Doc. 22 Ex. A at p. 3). The Illinois Appellate Court affirmed petitioner's sentence (Doc. 22 Ex. A). Petitioner filed a petition for leave to appeal (PLA) to the Illinois Supreme Court, but the supreme court denied his PLA on December 3, 2003 (Doc. 22 Exs. F & G).

On September 15, 2003, petitioner filed a post-conviction petition pursuant to 725 ILCS 5/122-1, et seq, and a petition for relief from judgment under 735 ILCS 5/2-1401 (Doc. 22 Ex. H). Petitioner, by his counsel, then filed an amended post-conviction petition (Doc. 22 Ex. I). In the petition, petitioner raised the following issues:

(1) Trial counsel was ineffective in:

a. refusing to give an opening statement;

b. failing to properly cross-examine state witnesses;

c. giving a closing argument that was prejudicial to Petitioner;

d. failing to file proper motions;

e. failed to preserve errors in trial in effective motion for new trial;

f. failed to introduce exculpatory DNA evidence;

g. failed to present available evidence to support defense;

(2) Petitioner was denied a fair trial by the prosecutor's following actions:

a. gave his personal opinion;

b. made improper comments not based on the evidence;

c. caused a Brady violation;

d. allowed perjured testimony to go uncorrected;

(3) Petitioner was denied a fair trial and equal protection under the law when:

a. the trial court granted the State's motion for allowance of evidence of other crimes;

b. the trial court erred in granting the State's motion to continue which violated petitioner's right to a speedy trial;

c. the trial court erred by allowing State's hearsay testimony;

d. the trial court erred in sentencing petitioner under an unconstitutional method of determining the maximum sentence;

(4) The direct appeal's counsel was ineffective in:

a. failing to raise the issue of ineffective assistance of trial counsel;

b. failing to raise the issue of prosecutor's inappropriate comments and actions during trial; and

c. failing to make proper arguments to raise constitutional issues involved with the suppression of evidence by state's attorney and public defender.

(5) Petitioner was entitled to a new trial based on newly discovered evidence, which made his conviction unreliable and in violation of the 14th Amendment (namely cell phone bills, letter from Dr. Walls stating petitioner was present on January 22, 2001 at doctor's appointment, and receipts from Wal-mart pharmacy showing dates and times of prescriptions filled on January 22, 2001).

(Doc. 22 Ex. H at pp. 11- 16; Ex. I at pp.2-3). The petition was denied by the trial court (Doc. 22 Ex. J). Petitioner appealed the trial court's denial to the state appellate court, where he was represented by the Office of the Appellate Defender (OSAD). Counsel moved to withdraw, finding no reasonable argument in support of the appeal (Doc. 22 Exs. B & K).

Petitioner responded to the motion to withdraw, arguing that his claims had merit. He specifically pointed out the following claims:

(1) trial court denied his due process rights to have a hearing on hispost-conviction petition;

(2) the prosecutor during the trial:

a. withheld exculpatory DNA evidence;

b. improperly gave his personal opinion during closing arguments;

c. allowed perjured testimony to go uncorrected;

(3) Petitioner's trial counsel was ineffective in:

a. failing to investigate;

b. failing to call alibi witnesses;

c. failing to obtain and present physical evidence to support defense's theory;

d. failing to obtain exculpatory DNA evidence;

e. failed to call expert witness to testify about DNA results;

f. failed to impeach with prior inconsistent statements;

g. failed to preserve errors in motion for new trial;

h. failed to give opening statement;

(4) newly discovered evidence shows that someone other than petitioner had sexual intercourse with victims showing that he was actually innocent;

(5) post-conviction counsel was ineffective in failing to call witnesses to verify the evidence in the petition;

(6) trial court violated his rights to fair trial by:

a. granting the State's motion to continue which violated his right to a fair trial; b. allowing state to present other crimes evidence;

c. allowing hearsay testimony;

d. imposing an unconstitutional sentence.

(Doc. 22 Ex. L). The appellate court granted the motion to withdraw and affirmed the trial court's judgment on the post-conviction petition (Doc. 22 Ex. B).

Petitioner then filed a petition for leave to appeal (PLA) with the Illinois Supreme Court. His petition there argued:

(1) the trial court denied him due process by stating that the hearing on this petition was held when it was not held;

(2) the trial counsel was ineffective in:

a. failing to investigate available defense;

b. failing to obtain evidence to prove falsity of the charge;

c. failing to impeach witnesses with inconsistent statements;

d. failing to obtain and enter exculpatory DNA evidence;

e. failing to file motions addressing the DNA evidence;

f. failing to address the state's request for a continuance;

(3) trial court denied his rights by:

a. granting state's motion for continuance which violated his right to speedy trial

b. constitutionality of the sentence imposed;

(4) the prosecutor denied his due process rights by:

a. withholding DNA evidence which violated Brady; b. gave his personal opinion during closings;

(Doc. 22 Ex. M). The Supreme Court denied the PLA (Doc. 22 Ex. N).

B. Habeas Petition

On April 1, 2010, petitioner filed the instant habeas petition. Petitioner raised the following issues in his petition, as set forth by respondent in his responsive brief:

(1) trial counsel was ineffective for failing to:

a. investigate and obtain pertinent available evidence;

b. call alibi witnesses;

c. file certain pre-trial and post-trial motions;

d. give an opening statement;

e. give an effective closing argument;

f. properly cross-examine state witnesses;

(2) petitioner's right to fair and impartial trial was violated when the prosecutor:

a. withheld DNA results from defense in violation of Brady v. Maryland, 373 U.S. 83 (1963);

b. gave his personal opinion during closing argument;

c. allowed false testimony to go uncorrected;

d. delayed trial to obtain "non-material" DNA results;

e. failed to ascertain origin of DNA evidence;

(3) the trial court violated petitioner's rights by granting the state'smotions:

a. to allow other crimes evidence;

b. for a continuance to obtain DNA test results;

c. to allow hearsay evidence;

(4) the trial court abused its discretion and violated

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