U.S. ex rel. Galvan v. Gilmore, 97 C 2939.

• Decision Date: 11 March 1998
• Docket Number: No. 97 C 2939.,97 C 2939.
• Citation: 997 F.Supp. 1019
• Parties: UNITED STATES of America ex. rel. John GALVAN, Petitioner, v. Jerry GILMORE, Respondent.
• Court: U.S. District Court — Northern District of Illinois

997 F.Supp. 1019

UNITED STATES of America ex. rel. John GALVAN, Petitioner, v. Jerry GILMORE, Respondent.

No. 97 C 2939.

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

March 11, 1998.

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Daniel W. Pisani, Kathleen T. Zellner and Associates, Naperville, IL, Kathleen T. Zellner, Naperville, IL, for Petitioner.

Bridget Linda Field, Arleen C. Anderson, Illinois Atty. Gen.'s Office, Criminal Appeals Div., Chicago, IL, for Respondent.

MEMORANDUM AND ORDER

MORAN, Senior District Judge.

John Galvan, a prisoner at Pontiac Correctional Center, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For reasons discussed below, the petition is denied.

BACKGROUND¹

On September 21, 1986, at approximately 4 a.m., a fire swept through a house on 24th Place in Chicago. Two young men, trapped in an attic bedroom, died. Investigators suspected arson.

Nine months later, in June 1987, the police spoke to Rene Rodriguez, who told them that he and two of his friends, Jose Ramirez and Francisco Partida, were watching the fire on September 21, 1986, when he saw Galvan, Galvan's brother and another person named "Michael" also watching the fire.

The police then spoke to Jose Ramirez, who told them that seconds before the fire started he saw the defendant with a person named "Michael" and two other men walking together about a half block away from the house on 24th Place. Two of them turned around and looked at Ramirez. He recognized the defendant and Michael, who put the hood of his sweatshirt over his head when Ramirez looked at him. Within seconds of seeing the four men walk away, Ramirez heard an explosion and screams, and saw the house on fire. The police showed Ramirez photographs, and he identified a picture of Michael Almendarez as the "Michael" he saw walking away from the house on the morning of the fire.

Michael Almendarez was brought to the station to be interviewed. The police advised him of his constitutional rights and told him that Ramirez said he saw him in the alley shortly before the fire started. Within three to five minutes after questioning began, Almendarez stated that Galvan and Francisco Nanez told him in October 1986 that they started the fire. He said that Nanez threw a beer bottle full of gasoline at the house and when it did not ignite, Galvan lit it with a cigarette. Almendarez said he was not at the scene on the morning of the fire.

The police then arrested Galvan without a warrant, took him to the station, and advised him of his constitutional rights. Within an hour, Galvan admitted that he, Francisco Nanez, and Arthur Almendarez, Michael's brother, started the fire because they believed that rival gang members lived in the house. He said the gang members had shot at him weeks earlier and he wanted to scare them. He told the police that Almendarez and Nanez bought the gasoline, put it in an empty beer bottle, and put a cloth in the top of the bottle. Nanez lit the cloth and threw the bottle at the house, but it did not ignite. Galvan then threw a cigarette at the side of the house and started the fire.

Before trial, Galvan filed motions to quash his arrest and suppress evidence. At a hearing on the issue of probable cause, the court ruled that the information Michael Almendarez gave the police was reliable and corroborated, and that there was probable cause to arrest the defendant.

At trial, two alibi witnesses testified that Galvan was asleep at his grandmother's house on the morning of the fire. Galvan also testified that he was at his grandmother's house and that he signed his confession under duress.

On June 26, 1990, Galvan was convicted by a jury of aggravated arson and the murder of the two persons who died in the fire. He was sentenced to natural life imprisonment. He appealed his conviction to the Appellate Court of Illinois (No. 1-90-2094), raising the following issues for review: (1) the court erred in denying a motion to suppress his statement; (2) the court improperly excluded evidence during the hearing on the motion to suppress which showed lack of probable cause; (3) the court improperly limited the cross examination of the detective who questioned Galvan; (4) the prosecutor improperly argued that witnesses feared Galvan; (5) the prosecutor presented improper and prejudicial evidence; (6) the court erred in denying Galvan the opportunity to offer evidence of motives of other persons to commit the arson; (7) the aggravated arson statute is unconstitutional; and (8) the statute mandating a life sentence is unconstitutional. The appellate court affirmed the conviction on March 31, 1993, People v. Galvan, 244 Ill. App.3d 298, 185 Ill.Dec. 257, 614 N.E.2d 391 (1st Dist.1993), and denied rehearing on May 31, 1993. Galvan filed a motion for leave before the Illinois Supreme Court, which was denied on October 6, 1993. People v. Galvan, 152 Ill.2d 567, 190 Ill.Dec. 898, 622 N.E.2d 1215 (1993).

On September 14, 1995, Galvan filed a petition for post-conviction hearing, for vacation of sentence and for a new trial. On March 29, 1996, Galvan was granted leave to file an amended petition for post-conviction relief, in which he argued that (1) he was denied the effective assistance of trial counsel, and (2) the state knowingly used perjured testimony. The trial court dismissed the petition without an evidentiary hearing, finding that the petition was not timely filed under 725 ILCS 5/122. On March 12, 1997, the appellate court affirmed the dismissal. He did not file a petition for leave to appeal.

Instead, on April 24, 1997, he filed the instant petition for writ of habeas corpus, arguing that (1) he was denied effective assistance of counsel (Claim I); (2) he was denied due process of law when the prosecution knowingly used perjured testimony (Claim II); (3) his Fourth Amendment rights were violated when the police arrested him without probable cause (Claim III); (4) his Fifth, Sixth and Fourteenth Amendment rights were violated when the state trial court excluded certain evidence of motive (Claim IV); (5) his Fifth and Sixth Amendment rights were denied when the state trial court excluded evidence relevant to the issue of probable cause (Claim V); and (6) his right of confrontation was denied when the prosecution presented statements made by non-testifying witnesses (Claim VI).

DISCUSSION

I. Statute of Limitations and Procedural Default

Before we reach the merits of the claims advanced we must determine whether the petitioner has cleared various procedural hurdles. First, we must determine the applicability of the one-year limitations period set forth in 28 U.S.C. § 2244(d). The Antiterrorism and Effective Death Penalty Act of 1996(Act), amended 28 U.S.C. § 2244 to place a one-year limitation on the filing of a petition for a writ of habeas corpus under § 2254.² In Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996), rev'd on other grounds, ___ U.S. ___, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (en banc), the Seventh Circuit found that prisoners who sought to challenge state court judgments made final prior to April 24, 1996 (the effective date of the Act), had a "reasonable time" after that date to file § 2254 petitions. Lindh, 96 F.3d at 866. The reasonable time set by the court followed the amendment to § 2244 and gave such prisoners until April 23, 1997, to file their petitions. Id.

Normally, we would apply the grace period set forth in Lindh in order to determine whether Galvan filed this habeas petition on or before April 23, 1997 (in this case he was a day late). However, since § 2244(d) does not affect this court's subject matter jurisdiction over habeas petitions, see Calderon v. United States District Court, 128 F.3d 1283, 1288 (9th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998); Parker v. Bowersox, 975 F.Supp. 1251, 1252 (W.D.Mo.1997), the state can waive the § 2244(d) timeliness issue by failing to raise it. See, e.g., Anderson v. Flexel, Inc., 47 F.3d 243, 247 (7th Cir.1995) (finding that defendant waived statute of limitations defense by his failure to timely raise the issue). Therefore, since the state did not raise the § 2244(d) limitations argument in this case, we find that it has been waived.

Next, we turn to the issue of procedural default, which the state contends bars our review of several of Galvan's habeas claims. "Before a federal court may review the merits of a claim raised by a state prisoner in a habeas petition, the petitioner must fulfill the procedural requirements set by state law for seeking judicial review in the state courts." Lemons v. O'Sullivan, 54 F.3d 357, 360 (7th Cir.1995), cert. denied, 516 U.S. 993, 116 S.Ct. 528, 133 L.Ed.2d 434 (1995). Forfeiture of a claim under § 2254 "is a question of a state's internal law: failure to present a claim at the time, and in the way, required by the state is an independent state ground of decision, barring review in federal court." Hogan v. McBride, 74 F.3d 144, 146 (7th Cir.1996). Procedural default may occur in one of two ways. First, the petitioner may fail to raise fairly and properly an issue on direct appeal or post-conviction review. Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir.1995). Alternatively, procedural default occurs when the state court clearly relies on a state procedural bar as an independent basis for its denial of relief. Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). A petitioner may raise a procedurally defaulted claim in a habeas proceeding only by showing good cause for the default and actual prejudice stemming from the default. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

The state argues that Galvan has procedurally defaulted his claims of ineffective assistance of counsel (Claim I), perjury/due process violation (Claim II), wrongful exclusion of evidence (Claim V),...