Shief v. Lashbrook, Case No. 17-cv-4570
| Decision Date | 23 April 2019 |
| Docket Number | Case No. 17-cv-4570 |
| Parties | ANTHONY SHIEF (R-47851), Petitioner, v. JACQUELINE LASHBROOK, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Petitioner Anthony Shief's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [1]. For the reasons stated below, the habeas corpus petition [1] respectfully is denied. The Court declines to certify any issue for appeal pursuant to 28 U.S.C. § 2253(c)(2) and directs the Clerk to enter judgment against Petitioner and in favor of Respondent. Civil case terminated.
I. Background
After a jury trial in 2002, Petitioner was convicted of first-degree murder for the fatal shooting of Leroy Willis. People v. Shief (Shief I), 2011 WL 9692703, at *1 . Petitioner was sentenced to a fifty-year prison term, with an additional twenty-five years for personally discharging a firearm. Id. Before trial, Petitioner's defense counsel filed two motions in limine relevant to this habeas petition. The first sought permission to ask Darrell Harvey, a state eyewitness who identified Petitioner as the shooter, about a pending DUI charge against him. Id. at 2. The second requested to call at trial a 911 operator to testify that Harvey was "possibly drunk" when he called 911. Id. The trial court denied both of Petitioner's motions. Id.
On appeal, Petitioner argued that (1) the trial court's refusal to allow him to impeach Harvey with his pending criminal charge violated his confrontation rights; (2) the trial court's refusal to allow him to introduce the 911 operator's comment that Harvey was "possibly drunk" violated his confrontation and due process rights; (3) his sentence was excessive; and (4) his mittimus should reflect a single conviction for murder rather than two. Id. at 4-6. The Illinois Appellate Court concluded that Petitioner forfeited the first two claims by omitting them from his post-trial motion, as was required by Illinois law. Id. at 4-5. The Appellate Court further concluded that neither claim raised a plain error. Id. The court rejected Petitioner's third claim as meritless but ordered that Petitioner's mittimus be corrected. Id. at 4-6. Petitioner sought leave to appeal from the Illinois Supreme Court on the first three claims. [15-1, at 112.] The Illinois Supreme Court denied Petitioner's leave to appeal on May 30, 2012. People v. Shief, 968 N.E.2d 1071 (Ill. 2012).
On November 30, 2012, Petitioner mailed a pro se post-conviction petition to the Clerk of the Circuit Court of Cook County.1 On December 11, 2012, the Clerk stamped the petition "received" but did not docket it. People v. Shief (Shief II), 62 N.E.3d 1154, 1159 (Ill. App. Ct. 2016). Petitioner inquired about the status of his petition multiple times. After receiving a request for a status update in September of 2013, the Clerk responded to Petitioner indicating that no petition had been filed. Id. Petitioner again mailed his post-conviction petition to the Clerk along with an explanation of the Clerk's failure to docket his petition. Id. The Clerk stamped the post-conviction petition "received" and docketed the petition on December 3, 2013. Id. "The petition raised four issues: (1) that the prosecution had knowingly presented perjured testimony at defendant's trial, (2) that the trial court erred in denying his motion to suppress identification testimony, (3) that the witnesses against defendant were not sufficiently credible to prove him guilty beyond a reasonable doubt, and (4) that his appellate counsel was ineffective for failing to raise these issues on direct appeal." Id. The Circuit Court summarily dismissed the petition, finding that the first three claims lacked merit and that, as a result, appellate counsel could not be ineffective for failing to raise the claims on direct appeal. Id. at 1159-60.
On appeal of the dismissal of his post-conviction petition, Petitioner argued that (1) he was entitled to proceed to second-stage review of his post-conviction petition because of the dilatory conduct on the part of the clerk's office in docketing his post-conviction petition and (2) appellate counsel was ineffective for failing to challenge on direct appeal the admissibility of certain gang evidence. Id. at 1160, 1164. With respect to the first argument, " Miller v. Harrington, 2013 WL 3834620, at *2 (N.D. Ill. July 24, 2013) (quoting Davis v. Lambert, 388 F.3d 1052, 1060 (7th Cir. 2004)). Petitioner argued that he was entitled to proceed to second-stage review of his post-conviction petitioner based on his reading of Section 122-1(b) and Section 122-2.1 of Illinois's Post-Conviction Hearing Act. Section 122-1(b) provides that "[t]he clerk shall docket the petition for consideration by the court * * * upon his or her receipt thereof and bring the same promptly to the attention of the court." 725 Ill. Comp. Stat. Ann. 5/122-1. Section 122-2.1 "states that, if the court does not dismiss thepetition within 90 days, 'the court shall order the petition to be docketed for further consideration.'" Shief II, 62 N.E.3d at 1161 (quoting 725 ILCS 5/122-2.1(b))). The Appellate Court rejected Petitioner's argument, concluding that the Clerk's noncompliance with Section 122-1(b) did not require advancement to second-stage proceedings under Section 122-2.1. Id.
With respect to Petitioner's second claim, the Appellate Court concluded that the argument was waived because it was not adequately raised in his post-conviction petition. Id. at 1165-66. The court further determined the argument lacked merit because the gang evidence was admissible. Id. at 1166-68. Petitioner sought leave to appeal to the Illinois Supreme Court on the first issue he raised on appeal and was denied review on November 23, 2016. People v. Shief, 65 N.E.3d 846 (Ill. 2016). Petitioner subsequently filed a motion for leave to file a pro se supplemental PLA instanter, arguing that post-conviction appellate counsel improperly omitted the second issue he raised on appeal from his PLA. [4, at 123-131.] The Clerk of the Illinois Supreme Court returned Petitioner's motion as unfiled. [Id. at 136.] Petitioner then filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254.
I. Legal Standards
Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas relief cannot be granted unless the state court's decision was contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court. See Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Warren v. Baenen, 712 F.3d 1090, 1096 (7th Cir. 2013). Habeas relief "has historically been regarded as an extraordinary remedy, a bulwark against convictions that violate fundamental fairness." Brecht v. Abrahamson, 507 U.S. 619, 633 (1993) (). This is because habeas petitions require the district court "essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Habeas relief under § 2254 is a "'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)). To obtain habeas relief in federal court, "a state petitioner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103. Habeas review does not give federal courts the opportunity to re-examine state decisions on state laws. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Federal habeas review is limited to violations of "the Constitution, laws, or treaties of the United States." Id. (citations omitted).
"A state petitioner seeking a writ of habeas corpus in federal court must first exhaust the remedies available to him in state court, 28 U.S.C. § 2254(b)(1)(A), thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Cheeks v. Gaetz, 571 F.3d 680, 685 (7th Cir. 2009) (internal quotations marks and citation omitted). In particular, a habeas petitioner must fully and fairly present his federal claims through one full round of state court review before he files his federal habeas petition. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999); Mulero v. Thompson, 668 F.3d 529, 536 (7th Cir. 2012). To fairly present a claim, the petitioner must include both the operative facts and the controlling legal principles on which the claim is based, and also must alert the state court that the claim raised is based on federal law. Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001); Sweeney v.Carter, 361 F.3d 327, 332 (7th Cir. 2004). "[W]hen a petitioner has exhausted his state court remedies and failed to properly assert his federal claims at each level of review those claims are procedurally defaulted." Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir. 2009). A claim also is procedurally defaulted "[w]hen a state court resolves a federal claim by relying on a state law ground that is both independent of the federal question and adequate...
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