Colley v. Peters

• Decision Date: 07 December 1992
• Docket Number: No. 91-1264.,91-1264.
• Citation: 814 F. Supp. 1390
• Parties: Donald COLLEY, Petitioner, v. Howard PETERS, III, Respondent.
• Court: U.S. District Court — Central District of Illinois

814 F. Supp. 1390

Donald COLLEY, Petitioner, v. Howard PETERS, III, Respondent.

No. 91-1264.

United States District Court, C.D. Illinois.

December 7, 1992.

Arthur J. Inman, Peoria, IL, for petitioner.

Steven J. Zick, Asst. Atty. Gen., Chicago, IL, Karen Alice Kloppe, Atty. Gen., Arleen Floren, Asst. Atty. Gen., Springfield, IL, for respondent.

ORDER

McDADE, District Judge.

Presently before the Court are Petitioner Donald Colley's Original (Doc.# 4) and Amended Petitions (Doc.# 17) for a Writ of Habeas Corpus.¹ The question presented for review is whether Petitioner's trial and appellate counsel were ineffective in violation of the Sixth Amendment and specifically, whether the allegedly suggestive pretrial identification procedures used by the police in violation of the Fourteenth Amendment's due process clause were cured by an independently reliable in-court identification. Although the Court reaches the merits of Colley's claims, the Original Petition, Counts I and II, and the Amended Petition, Count III, are DISMISSED with prejudice pursuant to 28 U.S.C. § 2254(a).

I. PROCEDURAL HISTORY

Petitioner, Donald Colley, filed his Original Petition for Habeas Corpus on October 3, 1991. In this Petition, Colley raised the following three claims.

(1) Petitioner was not proven guilty of aggravated criminal sexual assault beyond a reasonable doubt where the aggravating factor of bodily harm did not occur until after the sexual assault.

(2) Extended term sentences were erroneously imposed where the victim was not shown to be physically handicapped and the Petitioner's conduct was neither brutal nor heinous.

(3) Petitioner received ineffective assistance of counsel when his attorney filed an Anders' brief on appeal from the denial of his post-conviction petition.

Counts I and II of the Original Petition allege violations of state law, not federal due process rights guaranteed to Petitioner by the Constitution or laws of the United States and therefore do not state a constitutional claim reviewable by a habeas court under 28 U.S.C. § 2254(a).² Thus, only amended Count III will be reviewed by the Court.

Regarding amended Count III, Respondent answered and asserted that Colley could not mount an ineffective assistance of counsel challenge to his post-conviction representation because there is no constitutional right to assistance of counsel in state collateral proceedings. The Court dismissed Colley's ineffective assistance claim but gave him leave to amend to try to put before the Court the claims underlying the ineffective assistance claim, namely, that (1) the conviction was obtained in violation of Colley's due process rights resulting from Colley being subjected to a suggestive pretrial identification by the victim; (2) the arrest was executed in violation of the rights afforded to him under the Fourth and Fourteenth Amendments without the aid of an arrest warrant and/or probable cause; (3) his conviction was based upon perjured testimony and fabricated evidence; (4) he was denied effective assistance of trial counsel; and, (5) he was denied effective assistance of counsel on his first appeal as of right.

Colley filed an amended Count III of his Petition in which he stated the following grounds for relief.

A. Petitioner was denied due process by reason of an unduly prejudicial, suggestive pretrial identification procedure.

B. Petitioner was arrested without warrant for arrest and without any probable support for arrest in violation of rights secured to him under the IV and XIV Amendments to the United States Constitution.

C. Petitioner's trial counsel was ineffective:

1. Trial counsel did not pursue the issue in A. and B. above;

2. Trial counsel did not adequately prosecute Petitioner's rights to protect him from inadequate evidence.

D. Petitioner's original appellate counsel did not present the foregoing claims so that petitioner could obtain appellate protection of the rights denied him in the trial court.

Colley did not raise the claims contained in the Amended Petition (Count III) on direct appeal. He did raise the claims in a petition for post-conviction relief. In its Answer to the Amended Petition, Respondent moved for summary dismissal of Count III on the grounds that Petitioner had procedurally defaulted his post-conviction claims on appeal,³ directing the Court's attention to the Original Habeas Petition. In the Original Petition, Colley briefly stated that his post-conviction appeal was based on two trial court errors:

(1) dismissal of the post-conviction petition without the appointment of counsel;

(2) dismissal of the post-conviction petition without an evidentiary hearing.

On May 28, 1992, the Court ordered the Respondent to provide the appellate court transcripts of Petitioner's postconviction appeal to determine whether he had procedurally defaulted the claims presented in his post-conviction petition. Having reviewed those transcripts, it appears evident that Petitioner did not procedurally default his claims; nor did he fail to exhaust them.⁴ The Attorney General's assertion that Petitioner procedurally defaulted his post-conviction claims on appeal is erroneous.⁵ Procedural default occurs only when the absence of available state remedies or a state procedural rule precludes further state review of an unexhausted federal claim.⁶ Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Engle v. Isaac, 456 U.S. 107, 125-26 n. 28, 102 S.Ct. 1558, 1570-71 n. 28, 71 L.Ed.2d 783 (1982); See also Nutall v. Greer, 764 F.2d 462, 465 (7th Cir.1985); Resnover v. Pearson, 965 F.2d 1453 (7th Cir.1992); Lane v. Richards, 957 F.2d 363, 366 (7th Cir.1992) ("a procedural bar to relief in state court means that there is no available state corrective process within the meaning of 28 U.S.C. § 2254 and thus establishes exhaustion.").

However, one look at the Anders' brief filed on appellate review of the post-conviction petition reveals that the claims in amended Count III were exhausted, because they were presented to the appellate court and denied review. The fact that the state appellate court did not independently address the merits of each claim is irrelevant. A claim is exhausted so long as the briefs presented to the state court included the claim. Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989); Wallace v. Duckworth, 778 F.2d 1215, 1223 (7th Cir.1985). Federal law only requires a petitioner to fairly present the substance of his constitutional claims to the highest state court, giving this court a "full and fair opportunity" to rule on the merits of federal claims. See Farrell v. Lane, 939 F.2d 409, 410 (7th Cir.1991); Engle v. Isaac, 456 U.S. 107, 125-26 n. 28, 102 S.Ct. 1558, 1570-71 n. 28, 71 L.Ed.2d 783 (1982). The appellate court dismissed the post-conviction petition,⁷ and the Illinois Supreme Court affirmed.⁸ Therefore, because Colley exhausted his federal claims, no procedural default issues exist.

II. THE FACTS

Because the constitutional claims presented by amended Count III turn on the facts, the Court first reviews the record. In doing so, the Court expressly finds that an evidentiary hearing is not necessary since the essential facts necessary to resolve Colley's constitutional claims are provided by the trial record. Matta-Ballesteros v. Henman, 896 F.2d 255, 258-59 (7th Cir.1990); Resnover v. Pearson, 965 F.2d 1453, 1457 (7th Cir.1992).

Petitioner, Donald Colley, was indicted for the armed robbery and aggravated criminal sexual assault of Mary Logan on March 7, 1988. He was found guilty and sentenced to 40 years in prison.

The relevant facts at trial were as follows. At approximately 4 a.m. on March 7, 1988, Mary Logan, a crippled woman, (R. 6) was forcefully raped (R. 19), robbed (R. 26-27), and cut with a knife (R. 24-25). After the rape, the assailant allowed Logan to go to the bathroom "for about a minute," where the light was on. (R. 21-23).⁹ She testified that her head was down, but she was able to look up once and see his face. (R. 22). After she left the bathroom, the assailant hit her in the right eye (R. 23) and threatened to kill her if she refused to give him money. (R. 23). She said she had no money, and they struggled. (R. 23). He then took her downstairs to the kitchen, turned the gas on, closed a window, took a pocketknife and cut her twice on the neck and once on her chin. (R. 23-25). He again demanded money with threats. She then told him her rent money was under her pillow. (R. 26). After taking the money, he set her bedroom dresser and chest on fire and left the house. (R. 26-27).

Logan called her neighbors for help and then called the police. (R. 28-29). When the police arrived, she told them that she had been raped, robbed, and cut with a knife, adding that the assailant had also taken her jewelry. (R. 29-30). Apparently, Logan described the assailant to Mrs. Tidwell, her neighbor, and the neighbor gave Officer Allen the initial description of the suspect, because Logan was too "upset" to do more than approximate the assailant's size. (R. 64-65) (Officer Adams R. 83-84).

Mary Logan was then taken by ambulance to St. Francis Hospital. (R. 65). At the hospital, Officer Allen was able to obtain from her a description of the assailant by asking her to compare the assailant's size to his own. She described him as a "large" black male, about 5'10, 180 pounds (the officer's size), with short black hair, in his early 20's with a thin moustache, a goatee, and a missing tooth on the right side of his mouth. (R. 70). At trial, she gave the same description. (R. 21-22).

On March 7th, at 9 a.m., the morning of the crime, Logan was taken to the Peoria police department to look at pictures of suspects. (R. 30). On cross-examination she said she positively identified Colley in one of the pictures she was shown (R. 50), but on direct-examination did not admit to making a positive identification until March 8th. (R....