counsel's professional error, the result of the proceeding would have
been different,” id. at 694.

Petitioner’s appellate counsel raised three issues on direct
appeal: (1) the trial court erred in allowing the state to disclose
a crucial witness on the eve of trial without granting the defense a
continuance; (2) the first degree murder conviction should be reduced
to involuntary manslaughter; and (3) Martin’s fifty-year sentence was
excessive and should be reduced. In his post-conviction petition,
Petitioner raised a total of eleven claims, five of which the post—
conviction court determined had been waived when Petitioner failed to
raise them on direct appeal. As a result of the post-conviction
court’s finding, this Court also found that those five claims were
procedurally defaulted and denied habeas relief on those claims.

While this Court found that the decision of Petitioner's
appellate counsel to limit the direct appeal to three issues did not
satisfy the Strickland test, it concedes that reasonable jurists
could find its assessment “debatable or wrong.” Slack, 529 U.S. at
484. As a result, the Court grants Petitioner’s request for a COA as
to this claim.

Procedurally Defaulted Claims

This Court turns next to Petitioner’s request for a COA on
claims three through seven, as they are related to his request for a
COA on his ineffective assistance of appellate counsel claim. As
discussed above, this Court found that claims three through seven

were procedurally defaulted because Petitioner had failed to raise

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In this case, Petitioner’s sentence fell within the sentencing
range established by Illinois law for first degree murder. See 735
ILCS 5/5/8/1(a) (1) (proscribing a range of twenty to sixty years in
prison for first degree murder). This Court saw nothing in the
record to indicate an abuse of discretion sufficient to make
Petitioner’s final claim cognizable on federal habeas. See Ewing v.
California, 123 S. Ct. 1179, 1186 (2003) (“federal courts should be
reluctant to review legislatively mandated terms of imprisonment”

(internal quotation marks omitted)). While Petitioner’s sentence
fell at the high end of the sentencing range, the Court does not
believe that reasonable jurists could find that a fifty-year sentence
for first degree murder was either unconstitutionally extreme or
grossly disproportionate. As a result, this Court denies
Petitioner’s request for a COA on this claim.

CONCLUSION

For the foregoing reasons, Petitigner’s Motion for Issuance of
a Certificate of Appealability is DENJED as to /the Excessive Sentence
claim and GRANTED as to all other cjaims.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Date: 4, Zh



without granting the defense a continuance; (3) whether the trial
court abused its discretion when it permitted the State, on cross-
examination of Petitioner, to ask questions about other crimes that
the State could not prove; (4) whether the trial court abused its
discretion by allowing the weapon from an earlier incident involving
Petitioner and the victim to go to the jury during deliberations; (5)
whether the State committed prosecutorial misconduct when the
prosecutor knowingly introduced and argued perjured testimony at
trial to establish intent; (6) whether the State committed
prosecutorial misconduct when the prosecutor told the jury how it
should weight the evidence at trial, which had a burden-shifting
effect on the defense; (7) whether Petitioner was denied his Sixth
Amendment right to effective assistance of counsel at trial; and (8)
whether Petitioner’s fifty-~year sentence was excessive.
Ineffective Assistance of Appellate Counsel

Petitioner argues that he was denied his Sixth Amendment right
to effective assistance of counsel when counsel on direct appeal
failed to raise several claims of merit and failed to present all of
the relevant facts in the issues that were raised. To establish
ineffective assistance of counsel, Petitioner must show, under the
standards articulated by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), that (i) his “counsel’s
representation fell below an objective standard of reasonableness,”

id. at 688, and (ii) “there is a reasonable probability that, but for



them on direct appeal. Petitioner, however, asserts that the
ineffective assistance of his appellate counsel caused this
procedural default. It is well accepted that “[a]ttorney error that
constitutes ineffective assistance of counsel is cause to set aside
a procedural default.” Franklin v. Gilmore, 188 F.3d 877, 883 (7th
Cir. 1999) (citing Coleman v. Thompson, 501 U.S. 722, 753-54 (1991)).
Therefore, by granting a COA on the ineffective assistance of
appellate counsel claim, this Court must also grant a COA as to
whether these claims were procedurally defaulted.
Witness Disclosure

Petitioner’s second habeas claim is that the trial court abused
its discretion when it permitted the State to disclose a critical
witness, Shannon Carr, on the eve of trial and then refused to grant
a continuance to the defense so that it could prepare for her
testimony. A state trial court’s failure to grant a continuance is
usually only cognizable on federal habeas if the error caused the
trial to be fundamentally unfair, in violation of a federal
constitutional right. Search v. Greer, 768 F.2d 906, 912 (7th Cir.
1985). This Court found that Petitioner’s claim failed to meet this
standard and was, therefore, noncognizable on a petition for federal
habeas relief. The Court based its finding on the fact that the
State had timely informed the defense that it would call a witness,
Officer Mullins, to testify about the same events testified to by
Shannon Carr, and on the fact that the defense was provided an

opportunity to interview Shannon before she testified. Under these

~5-



* Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge jarry i Sitting Judge if Other
or Magistrate Judge Hi D. Leinenweber than Assigned Judge
CASE NUMBER. 01 C 7657 DATE 4/2/2003
CASE USA ex rel. Alfred Martin vs. Guy Pierce
TITLE
[In the following box (a) indicate the party filing the motion. ¢.g., plaintiff, defendant, 3rd party plaintitT, and (b) state briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY:
qd) im Filed motion of [ use listing in “Motion” box above.]

{2) Oo Brief in support of motion due

@) oO Answer brief to motion due___. Reply to answer briefdue____-

(4) Oo Ruling/Hearing on setfor_ sat

(5) a Status hearing[held/continued to] [set for/re-set for]on___setfor___—_at.

(6) Oo Pretrial conference[held/continued to} [set for/re-set for]on__—__setfor_ ss at_—.

(7) a Trial(set for/re-set for]on__—_at

(8) QO [Bench/Jury trial] [Hearing] held/continuedto__—_at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) OLocal Rule 41.1 COFRCP41(a)(1) OG FRCP41(a)(2).

(10) i — {Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Petitioner’s Motion for
Issuance of a Certificate of Appealability is DENIED as to the Excessive Sentence claim and GRANTED
as to all other claims.

(1) @ [For further detail see order attached to the original minute order.] ave

No notices required, advised in open court. ,

lo notices requis
No notices required. umber of notices

Docuntent
Number.

Notices mailed by judge’s staff.

APR O7 2003

Notitied counsel by telephone, dockere.

J | Docketing to mail notices.

Mail AO 450 form.

INRAA Lantornen docketingA ply initials
Copy to judge/magistrate judge. ve 7 \
co . averted notice
courtroom - !
waP deputy’s
initials
L  Date/time received in
central Clerk's Otfice biting deputy initials



circumstances, this Court found that the trial court’s decision to
deny Petitioner’s motion for a continuance did not result in a
fundamentally unfair trial in violation of Petitioner’s
constitutional right.

Shannon Carr, however, was eleven years at the time of trial and
testified about an event that she witnessed almost five years
earlier. While she testified about the same general episode as
Officer Mullins, she was the only witness to testify about the events
that took place before Mullins arrived. Moreover, Shannon testified
about a previous altercation between the victim, her mother, and
Petitioner, testimony that was arguably quite damaging to the
Petitioner. Reasonable jurists could disagree with this Court’s
determination that the trial court’s denial of a continuance did not
prejudice Petitioner’s right to a fair trial and, as a result, this
Court grants Petitioner’s request for a COA as to this claim.

Excessive Sentence

Finally, Petitioner argues that his fifty-year sentence was
excessive in light of his lack of criminal history and his potential
for rehabilitation. The severity of a sentence that falls within the
range established by state law is not generally grounds for relief on
federal habeas corpus. Henry v. Page, 223 F.3d 477, 482 (7th Cir.
2000). If the sentence were “extreme” and “grossly disproportionate
to the crime,” Koo v. McBride, 124 F.3d 869, 875 (7th Cir. 1997),

however, it could constitute a constitutional violation.



IN THE UNITED STATES DISTRICT COURT F I L E D
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION APR -2 2003
 AUDGE HARRY
D.LEN
U; ENWEBER
UNITED STATES OF AMERICA, S. DISTRICT COURT JUDGE
ex rel. Alfred Martin,
Petitioner, Case No. 01 C 7657

v.
Hon. Harry D. Leinenweber
GUY PIERCE, Warden,

Respondent. DOCKETED

APR 0 7 2003

MEMORANDUM OPINION AND ORDER

On January 19, 1996, an Illinois jury convicted Petitioner
Alfred Martin (the “Petitioner”) of first degree murder. Petitioner
was sentenced to fifty years imprisonment. His direct appeal and
post-conviction petition were unsuccessful and on October 2, 2001,
Petitioner filed a pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This Court denied Petitioner’s habeas petition
on January 7, 2003. Presently before the Court is Petitioner’s
Motion for Issuancé of a Certificate of Appealability pursuant to
28 U.S.C. § 2253. For the following reasons, Petitioner’s motion is
granted in part and denied in part.

CERTIFICATE OF APPEALABILITY

In order to appeal a district court’s denial of habeas relief,
a state prisoner must seek and obtain a certificate of appealability
{a “COA”). 28 U.S.C. § 2253(c) (1) (A). A district court may issue a

COA “only if the applicant has made a substantial showing of the



denial of a constitutional right.” 28 U.S.C. § 2253(c) (2). In Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000), the Supreme Court set forth
the methodology to be used in evaluating a request for a COA. Where
a district court has rejected a petitioner’s constitutional claims on
the merits, “{t]he petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Id. at 484. Where a
district court has rejected a petitioner’s constitutional claims “on
procedural grounds without reaching the prisoner’s underlying
constitutional claim[s], a COA should issue when the prisoner shows,
at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id. The
Supreme Court, in Miller-El v. Cockrell, 123 S. Ct. 1029 (2003),
recently cautioned that a “COA does not require a showing that the
appeal will succeed,” id. at 1039, and explained that “a claim can be
debatable even though every jurist of reason might agree, after the
COA has been granted and the case has received full consideration,
that petitioner will not prevail,” id. at 1040.
r. TON

Petitioner seeks a COA as to the following issues: (1) whether
Petitioner was denied his Sixth Amendment right to effective
assistance of appellate counsel; (2) whether the trial court erred in
allowing the State to disclose a crucial witness on the eve of trial

-2-