U.S. ex rel. Cabrera v. Page, 97 C 2990.
| Citation | 172 F.Supp.2d 966 |
| Decision Date | 31 October 2001 |
| Docket Number | No. 97 C 2990.,97 C 2990. |
| Parties | UNITED STATES of America ex rel. William CABRERA, Petitioner, v. Thomas F. PAGE, Warden, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
William G. Cabrera, Tamms, IL, pro se.
Steven Joseph Zick, Darryl Belmonte Simko, Lisa Anne Hoffman, Illinois Atty. General's Office, Chicago, IL, for Thomas F. Page.
Petitioner William Cabrera challenges his convictions for murder, robbery and burglary entered in the Circuit Court of Cook County, Illinois. The court grants the writ.1
Under 28 U.S.C. § 2254(d), a federal court may not grant a prisoner's habeas corpus petition unless the state court's adjudication of the claim either "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding." When considering the § 2254 petition, this court will presume that any state court factual determinations are correct unless the petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Before reviewing the state court's decision, however, this court must determine whether the petitioner fairly presented his federal claims to the state courts, as any claim not presented to the state's highest court is deemed procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Wilson v. Briley, 243 F.3d 325, 326 (7th Cir.2001); Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir.1996). A federal court may not grant habeas relief on a defaulted claim unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate 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, 115 L.Ed.2d 640 (1991); Anderson v. Cowan, 227 F.3d 893, 899 (7th Cir.2000).
On April 13, 1983, a jury convicted Petitioner of murder, burglary and robbery. On May 5, 1983, the trial judge imposed extended sentences for all three offenses, 60 years for murder and 14 years in prison for burglary and robbery, all sentences to run concurrently. The Illinois Appellate Court affirmed Petitioner's conviction on June 20, 1985, but found the trial court erred in imposing extended term sentences for the burglary and robbery convictions and shortened them to seven years each. People v. Cabrera, 134 Ill.App.3d 526, 89 Ill.Dec. 427, 480 N.E.2d 1170 (1st Dist. 1985) ("Cabrera I"). The Illinois Supreme Court affirmed on April 16, 1987. People v. Cabrera, 116 Ill.2d 474, 108 Ill.Dec. 397, 508 N.E.2d 708 (1987) ("Cabrera II"). The United States Supreme Court denied certiorari November 2, 1987. Cabrera v Illinois, 484 U.S. 929, 108 S.Ct. 297, 98 L.Ed.2d 257 (1987).
Petitioner filed a pro se post-conviction petition which was dismissed as untimely on May 28, 1992. The Illinois Appellate Court affirmed the denial of the post-conviction petition on December 31, 1992, and the Illinois Supreme Court denied Petitioner leave to appeal on June 3, 1993. On August 14, 1992, Petitioner filed his first federal habeas corpus petition, which was dismissed without prejudice for failure to exhaust state court remedies on October 29, 1993, apparently on the mistaken belief that Petitioner's post-conviction proceedings were still pending. The present petition for habeas corpus was received April 24, 1997.2 The petition was originally assigned to Judge Alesia of this court. On January 22, 1998, it was reassigned to Judge Andersen and on September 5, 2000 to the undersigned.
Evidence at trial showed that on the night of February 10, 1981, the offices of the Assyrian National Foundation in Chicago were broken into, money was stolen, and Yoel A. Keena, a 74-year old man staying as a guest at the Foundation, was killed as a result of strangulation and battery with a blunt instrument.
At the crime scene detectives found a receipt for travelers' checks issued in Keena's name. Tracing Keena's checks, they learned that they had been used to purchase clothing at the "Different Circle" store in the Century Mall in Chicago. The police questioned the assistant sales manager, Derrick Moore, and learned that three men had come into the store together at about 8 p.m. on February 11 and a man later identified as Ruben Lopez purchased a red jacket, a white shirt with a Popeye logo, and a necktie using a traveler's check, and an identification card bearing Lopez' picture had been used. Moore watched the men go together to another store and emerge with more merchandise.
On February 23, after looking through police "mug shots," Moore identified a photograph of Petitioner as one of the men present with Lopez when he cashed the check, and the police arrested Petitioner in his home. After waiving his Miranda rights, Petitioner then gave a series of statements, first denying any knowledge of the cashing of the check or the murder, then later telling the detectives that Lopez had approached him with the checks, saying that he had found them in the alley. Petitioner changed his story again, and said that Lopez told him he had obtained the checks by "ripping off a place" next to a dog-grooming parlor, and Lopez and he then went to the shopping mall and cashed the checks.
Searching Lopez's apartment with the consent of his mother and sister, police found a white shirt with a Popeye logo which Petitioner identified as one of the items purchased with the stolen traveler's checks. Continuing the search, the police found an identification card that Derrick Moore later identified as the card used by Lopez in cashing the traveler's checks. Detectives later found the red jacket that had been purchased at the "Different Circle" store.
On February 26 Petitioner made yet another even more incriminating statement, telling the detectives that the night before the checks were cashed he and Lopez had entered the Foundation through a broken window in the office. Once inside, Lopez told him to "search in the front" of the Foundation. Petitioner found a metal cash box, pried it open, and took the $40 in it. Petitioner said that while he was in the front office, Lopez went to the back of the Foundation where he found the victim, who had been awakened by the intrusion. Petitioner saw Lopez strike the victim twice. Petitioner then went to the back room and searched the victim's pockets, finding the traveler's checks. He and Lopez then left the premises, Lopez taking the traveler's checks and the defendant keeping the $40. Petitioner stated that on the following day, Lopez told him that he was going to cash the traveler's checks; if Petitioner came along, Lopez would buy something for him. Petitioner agreed, and several items of clothing were purchased with the checks, including a red jacket. Petitioner then signed a written statement to this effect, and signed a consent to search his apartment again, where the police found the two pairs of pants Lopez had bought for Petitioner.
Petitioner raises six claims: (1) Petitioner was denied the right to trial by a fair and impartial jury because post-conviction juror polling indicated possible dissent; (2) the state failed to prove beyond a reasonable doubt that Petitioner entered the building where the crime occurred with an intent to commit robbery; (3) probable cause did not exist for Petitioner's warrantless arrest; (4) the Illinois legislature failed to provide Petitioner with adequate and meaningful notice of changes in Illinois' post-conviction relief statute, thereby denying Petitioner due process of law, and also deprived Petitioner of access to the courts in violation of the First Amendment; (5) ineffective assistance of appellate counsel; and (6) Petitioner was denied due process of the law because the Illinois felony murder statute holds a person responsible for another's actions without proof of the elements of first degree murder. Respondent concedes that Petitioner has exhausted all state court remedies, but asserts that Petitioner has procedurally defaulted his fourth and sixth claims.
While polling the jury after the guilty verdict, the following exchange occurred:
THE COURT: I'm going to ask you this question, and I want you to pay attention to it. Was this and is this now your verdict, Miss Cancinelli [sic]?
MS. CANCINELLI3 [sic] [juror]: Can I say what I have to say, or do I have to give a yes, or no answer?
MS. CANCINELLI [sic]: Yes.
Cabrera I, 89 Ill.Dec. 427, 480 N.E.2d at 1172. Petitioner argues that the trial court's refusal to provide this juror with an opportunity to express any possible disagreement with the verdict calls the jury's unanimity into question. Petitioner notes that after the polling was complete, the trial court denied his counsel's request that Ms. Ciancanelli's statements be put on the record, and that Ms. Ciancanelli gave a sworn statement, in the presence of a court reporter, stating that at the time of the polling she had wished to recant her guilty verdict. Both the Illinois Appellate and Supreme Courts found Petitioner's claim without merit.
The Illinois Appellate Court first noted that the Sixth Amendment of the United States Constitution guarantees a trial by an impartial jury, and that "[e]ssential to that guarantee is the...
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...his legal papers to another inmate who proved to be untrustworthy does not satisfy the "cause" requirement. See Cabrera v. Page, 172 F.Supp.2d 966, 983-84 (N.D. Ill. 2001)("mistakes of a prison law clerk" do not constitute "cause" for procedural default), rev'd on other grounds, 324 F.3d 52......