here. Fortier raised this claim in his first appeal from his conviction, as noted in the opinion of
the Appellate Court of Mlinois: “Following a bench trial in the circuit court of Cook County,
defendant was convicted of residential burglary and sentenced to 15 years imprisonment.
Defendant raises these issues on appeal: (1) the State failed to prove him guilty beyond a
reasonable doubt...” People v. Fortier, No 89-CR-26423, at 1 (IL App. Ct. July 20, 1992), The
appellate court went on to undertake an independent analysis of the evidence, and concluded that
it was sufficient to conclude that Fortier was guilty beyond a reasonable doubt. fd. at 4.
Furthermore, this issue may be moot based on the current facts. The court can see in the
table at 852 N.E.2d 243 that a petition for leave to appeal to the Ilinois Supreme Court in
Fortier’s Case No. 1-04-3577 was recently denied. The court does not have access to any
additional information conceming the basis of the decision, and therefore presumes that it was
denied on the basis of untimeliness or res judicata, in accordance with the court’s assessment of
Fortier’s claims. Because Fortier’s attempts to argue that the court made errors of law and fact
regarding this claim all fail, and he makes no new arguments to support his claims, his motion to

reconsider the court’s denial of a stay is denied.

4. Fortier’s Request to Reconsider his Objection to the Admission of Sally A. Swiss’s
Affidavit into Evidence and the Denial of his Motion for Leave to Proceed with
Discovery
Fortier essentially has two arguments regarding his ineffective assistance of counsel

claim, which he uses to dispute the admissibility of Ms. Swiss’s affidavit and to support his

entitlement to discovery. These are the same two arguments that Fortier has made several times

before, albeit with more verbiage: (1} Swiss’s affidavit is incomplete and evasive because she

does not provide details regarding her job history between 1992 and 1995, and (2) she prejudiced



factual basis underlying them”). The court has undertaken a review of the record, including
Fortier’s own filings that include documents from the state court proceedings, and has found no

discrepancies. Fortier’s motion for authentication and identification of records is denied.

6. Order

For the reasons stated above, Fortier’s motion to reconsider the court’s denial of his
motion for a stay [Docket Number 67] is denied; his motion for authentication and identification
of records [# 67] is denied; his motion to reconsider his objection to the admission of Swiss’s
affidavit into evidence [# 67] is denied without prejudice; and his motion to reconsider his
request for leave to proceed with discovery [# 67] is denied without prejudice with the exception
that the attomey general is ordered to supplement the affidavit of Sally Swiss within 30 days in
accordance with the above outlined instructions. If the supplemented affidavit shows good cause
for allowing additional discovery, Fortier is directed to file a motion to that effect including
specific, narrowly targeted discovery requests within 45 days of his receipt of the affidavit.

Otherwise, the court will consider the case to be ready for final disposition.

Dated: September Qu, 2006 ENTER:_ie#-29 eK GE

OAN HUMPHREY LEFKOW
United States District Judge



fundamental way.” Fortier overlooks a key qualification of this proposition. Later in Flores, the
court makes clear that a defendant may file a second or subsequent post-conviction petition
raising claims of ineffective assistance of appellate counsel on/y where those claims could not
have been raised in a prior post-trial proceeding. Flores, 606 N.E.2d at 1086. Because Fortier
could have raised this issue in a prior post-trial proceeding, and did in fact raise it in his first
appeal from his conviction, Flores does not provide him with an exception to his timeliness and
res judicata issues.

Fortier next argues that the respondent waived the procedural default defense. The court
has rejected this argument several times. In its Order of March 20, 2003, the court said that it
“agyees with petitioner that respondent addresses for the first time petitioner’s argument that he
overcomes his procedural default on his claim that the state failed to prove he was guilty beyond
a reasonable doubt [in the respondent's surreply].” Order of March 20, 2003, Docket Number
37, at 2. The court said that it would “not find this to constitute a waiver by the respondent under
§ 2254(b)(3), particularly given that respondent subsequently filed a surreply to these
arguments.” /d. The court found this claim to be procedurally defaulted in its Order of Dec. 19,
2003, and reviewed that reasoning in its Order of August 10, 2005. See Docket Number 43;
Docket Number 66, Fortier has not shown that the court made a manifest error, and he makes no
new arguments for why the state waived procedural default.

Fortier also argues that the court erred by making factual findings that are not fairly
supported by the record. As an example, Fortier says that (he court was mistaken when it found
that he had previously presented his claim that his conviction was secured by the use of a
standard of proof below that of reasonable doubt, and that he failed to appeal that claim to the

Illinois Supreme Court when he had the opportunity. The court did not make an error of fact



him in his appeal by allegedly not raising and by “purposefully concealing” the claim that he was
convicted using a standard of proof below reasonable doubt. Fortier’s Resp. to Resp’t’s Answer,
Docket Number 32, at 5; Fortier’s Mot. to Stay Habeas Corpus Proceedings, Docket Number 61,
at |-2; Fortier’s Mot. for Reh’g, Docket Number 67, at paragraphs 21, 27.

Swiss represented Fortier in his first appeal to the Appellate Court of Ilinois, which was
decided on July 20, 2002. Her affidavit says that she worked as an appellate defender for the
Office of the State Appellate Defender until July 31, 2002. Fortier apparently believes that she
was negotiating with the Illinois Attorney General’s office while also representing him on appeal,
resuiting in her providing him with ineffective assistance of counsel. He has provided, however,
no evidence of that beyond his incorrect assertion, discussed below, that she refused to bring a
constitutional claim on his behalf and that a conflict of interest must have been her reason.

Swiss's affidavit is directly relevant to his claim and is admissible. It explains that Swiss
took a job with the [Illinois Attorney General in 1995, years after she was finished representing
Fortier. It also staies that at no time during her negotiations with the Iinois Attorney General
did she discuss any past clients or any of her work performed on cases during her tenure with the
Office of the State Appellate Defender from 1990-1992. Fortier complains, as he has in his
previous filings, that Swiss’s affidavit is incomplete or evasive due to the absence of discussion
of her job history between July 31, 1992 and 1995.

Fortier also renews his request for discovery on his ineffective assistance of counsel
claim. As the “foundation” of that claim, he relies on his assertion that Swiss “concealed and
refused to raise the constitutional violation that his conviction was secure[d] by the use of a
standard of proof other than proof beyond a reasonable doubt and... a possible conflict may have

been the reason.” Fortier’s Mot. for Reh’g, at 7. Despite Fortier’s vague assertions that the



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

United States of America
ex rel. TODD FORTIER a/k/a
AARON MCCROY (#N-51882),

Petitioner,

No. 00 € 7058
Judge Joan H. Lefkow

¥S.

KEVIN L, WINTERS,
Warden,
Western Illinois Correctional Center

Respondent,

MEMORANDUM OPINION AND ORDER

Petitioner Todd Fortier a‘k’a Aaron McCroy (‘Fortier’) filed a motion to stay habeas
corpus proceedings and objection to the admission of Sally A. Swiss's affidavit as evidence, and
motion for leave to proceed with discovery on November 29, 2004. The court denied his motion
in its Order of August 10, 2005. See Docket Number 66. Fortier filed the present motion for
rehearing and authentication and identification of records on August 23, 2005, which the court
construes to be a motion to reconsider its Order of August 10, 2005.

Background

Fortier was convicted of residential burglary in the Circuit Court of Cook County
following a bench trial that concluded in 1991. He was sentenced to 15 years in prison. Fortier’s
Pet. for Writ of Habeas Corpus, Docket Number 1, at 2. Since that time, he has asserted various

Uians

garding his conviction to several different courts, including the following 5 claims that

he raises in his federal habeas petition: (1) his conviction was based on a standard of proof less



record is being misconstrued and that the respondent is misleading the court about the state court
procedurai history, it is plain from Fortier’s own submissions that Swiss did in fact raise the
standard of proof claim in his first appeal. People v. Fortier, No 89-CR-26423, at 1 (Ill. App. Ct.
July 20, 1992): see also Letter from Swiss to Fortier dated May 8, 2002, Ex. D to Fortier’s Pet.
for Habeas Corpus of Nov. 7, 2000 (“I received your letter, I have filed a reply brief arguing the
reasonable doubt issue in a manner similar to what you have suggested in your letter.”).

In the interest of moving this case to resolution, the court will order the attomey general
lo supplement Swiss’s affidavit with additional information about her job history, including
specific details regarding when she applied to and negotiated with the attorney general’s office
for employment and what she did during the 1992-1995 time frame. Fortier’s request to
reconsider his objection to the admission of Swiss’s affidavit is denied without prejudice, as is
his motion to reconsider his request for leave to proceed with discovery, with the exception of the

additional information that the attorney general is now ordered to provide.

5. Fortier’s Motion for Authentication and Identification of Records

Fortier makes several general assertions that the respondent is attempting to mislead the
court regarding the procedural history of the case and to provide the court with false documents.
He claims that the court used a “completely different Illinois state court procedural history” when
issuing its Order of August 10, 2005. Fortier’s Mot. for Reh’g, Docket Number 67, at 3. Fortier
has made such general accusations before. See, e.g., Fortier’s Resp. to Resp’t’s Answer to Pet.
For Writ of Habeas Corpus. Docket Number 32, at 2 (“the Respondent due to ignorance of the
factual basis of the claims presented in Petitioner's Habeas or a diliberate (sic) attempt to mislead

this Honorable Court, has mistated (sic) the procedural history of this case, the claims and the



than reasonable doubt; (2) his waiver of his right to confront and cross-examine the State’s
wilnesses was ineffective; (3) his waiver of his right to a jury trial was ineffective; (4) his
appellate counsel was ineffective; and (5) the trial court improperly applied an enhanced
sentence.

Based in part on the procedurat default of claims 1, 2, and 4, and on Fortier’s failure to
show that his appellate counsel was ineffective, this court denied Fortier’s petition in its entirety
on December 19, 2003. Mem. Op. And Order of Dec. 19, 2003, Docket Number 43. When
Fortier appealed, the Seventh Circuit determined that “[t]he only claim that presents a potential
constitutional issue is [Fortier’s] allegation that his attorney, Sally Swiss, provided him
ineffective assistance of counsel because she had a conflict of interest.” McCray v. Winters, No.
14-1289 at 1 (7th Cir. Aug, 3, 2004). Fortier then filed his November 29, 2004 motion to stay
habeas corpus proceedings and objection to the admission of Sally A. Swiss’s affidavit as

evidence, and motion for leave to proceed with discovery.

2, Standard for Reconsideration

A motion for reconsideration serves the limited function of correcting manifest errors of
law or fact or presenting newly discovered evidence, and whether to grant such a motion is
within the discretion of the court. Caisse Nationale Credit Agricole v. CBI indus., Inc., 90 F.3d
1264, 1269-70 (7th Cir. 1996). The problems that warrant a grant of such a motion are rare.
Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir, 1990)
{citation omitted). A motion for reconsideration also serves a valuable function where the court
“has patently misunderstood a party, or has made a decision outside the adversarial issues

presented to the Court by the parties, or has made an error not of reasoning but of apprehension.”



Bunk of Waunukee 906 F.2d at 1191 (quotation omitted). Reconsideration is not for rehashing

previously rejected arguments. Cuisse at 1270.

3. Fortier’s Request to Reconsider the Court’s Denial of his Motion to Stay

It is common for a federal habeas petitioner with unfinished business in state court to file
a federal habeas petition and then seek a stay of that petition for the duration of his state court
actions. US. v. Schomig, 2002 WL 519749, at *1 (N.D. Ill. April 5, 2002). The federal court
nas discretion to grant such a stay or, alternatively, to deny it and review the petition while the
state case is still pending. fd. at *2 (citing 28 U.S.C. 2254(b)(2); U.S. ex rel. Williams v.
Gilmore, 104 F. Supp. 2d 931, 931 (N.D. Ill. 2000). In both his November 29, 2004 motion and
his current motion, Fortier bases his argument for a stay on an attempt to return to the state courts
to complete the exhaustion of one of his claims: his claim that he was convicted using a standard
of proof below reasonable doubt. In the court’s Order of August 10, 2005, it explained the
reasons why this claim would be untimely and barred by res judicata in Hlinois courts, and
exercised its discretion to deny the stay.

Fortier now argues that the court was mistaken in interpreting the law. He relies on one
of the cases that the court cited, People v. Flores, 606 N.E.2d 1078, 1085, 153 Ill. 2d 264, 278
([l]. 1992), for the proposition that “where a petitioner, in a second or subsequent post-conviction
petition, raises a meritorious sixth amendment claim, considerations of finality provide an
insufficient basis for the courts to compromise the constitutional protections afforded a
post-cosietion petitioner under the Act and are, necessarily, overridden. Moreover, where a
defaulted claim stems from the incompetency of appellate counsel and results in prejudice to the

defendant, there can be no doubt that the proceeding on the first petition was deficient in a