I. SENTENCING ISSUES

Issues (17) - (26), (31)- (32): Sentencing Issues

Petitioner’s claims regarding his sentence are moot. On January 11, 2003, former Governor
George Ryan commuted petitioner’s sentence from death to natural life in prison. (State’s Ex. O.)
The Illinois Supreme Court has held that any issues concerning a defendant’s commuted death
sentence are now moot. People v. Lucas, 203 Ill.2d 410, 418-19 (2002).

Ill. ISSUES RAISED ON STATE POST-CONVICTION REVIEW

Issue (27): Deni: ight To Be Present At Critical Stage

In Claim 27, petitioner claims that he was denied his Fourteenth Amendment right to be
present at a critical stage of his trial when he was excluded from the in-chambers voir dire of fifteen
prospective jurors, three of whom served on the jury. This issue was not raised on direct appeal to
the INinois Supreme Court, and petitioner also failed to raise this issue in his appeal to the Illinois
Supreme Court from denial of his petition for state post-conviction relief. (State’s Ex. Tat 24-31.)
Thus, this court is barred from hearing this claim.

Petitioner did raise a related issue in his post-conviction appeal — that his appellate counsel
was ineffective on direct appeal for failing to raise what is now titled Claim 27. The State brought
this related claim to the attention of this court and argued that raising this ineffective assistance of
counsel claim could not save the Fourteenth Amendment issue from being waived. This ineffective
assistance of counsel claim is not raised by petitioner as cause for default of the Fourteenth
Amendment issue.

The State argues that the issue of whether petitioner’s appellate counsel was constitutionally

defective for failing to raise the Fourteenth Amendment issue is not the same as the whether the

19


laboratory; (13) the court’s pre-trial order barring petitioner from arguing that the state had destroyed
evidence, and related rulings, denied petitioner the right to present a defense; (14) evidence that
police consulted with the State’s Attorney’s office and obtained a search warrant in a court of law
denied petitioner a fair trial by insinuating another judge and prosecutor believed petitioner was
guilty; (15) cross-examination of a defense witness, who was employed by the City of Chicago,
about whether she violated a City rule requiring employees to live in the city by residing in the City
of Schaumburg, was improper; and (16) prosecutorial misconduct during closing argument denied
petitioner a fair trial.

Issues (8)-(9) : Evidentiary Rulings

Petitioner alleges that evidence presented during his trial relating to the victim’s religious
beliefs, including the fact that she taught Sunday school, met her roommate through a church referral
service, and had planned to attend church the day she was killed, denied him a fair trial. The Illinois
Supreme Court ruled that this evidence was admissible character evidence relevant to whether the
victim was a trusting person who would allow the petitioner to enter her apartment. (State’s Ex. E
at 28.) Petitioner next claims that photographs admitted into evidence showing the victim after
paramedics had torn open her dress denied petitioner a fair trial. The Illinois Supreme Court ruled
that the photographs were admissible because they showed the cause and manner of death, explained
the location and condition of the crime scene, and were relevant to corroborate the testimony of
several witnesses. (State’s Ex. E at 29.) Furthermore, the Court ruled the jury was not misled by
the fact that the photographs showed the top half of the victim’s dress unbuttoned because the
paramedic testified that he had unbuttoned the victim’s dress when he arrived on the scene, and that

in all other respects the photographs accurately portrayed the scene. (Id.)

13


a

AO 450(Rev, 5/85)Judgment in a Civil Case
SS

United States District Court
Northern District of Iinois

Eastern Division

USA ex rel PEEPLES JUDGMENT IN A CIVIL CASE
v. Case Number: 02 C 7253
BRILEY

Oo Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.

a Decision by Court. This action came to trial or hearing before the Court. The issues
have been tried or heard and a decision has been rendered.

TT IS HEREBY ORDERED AND ADJUDGED that the petition for habeas relief is denied in
its entirety. This action is dismissed in its entirety.

Michael W. Dobbins, Clerk of Court

Date: 12/16/2003 ” So

J. Smith, Députy Clerk



involved an unreasonable application of, clearly established Federal Law, as determined by the
Supreme Court of the United States,” or (2) “that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
“The relevant decision, for purposes of this assessment, is the decision of the last state court to rule
on the merits of the petitioner’s claim.” McFowler v. Jaimet, No. 03-1162, slip op. at 17 (7th Cir.
Nov. 13, 2003).

With respect to the first prong of § 2254(d) “relief may be granted if the petitioner shows
that, despite identifying the correct rule of law, the state court unreasonably applied it to the facts of
the case.” Harding v. Walls, 300 F.3d 824, 827-28 (7th Cir. 2002) (citations omitted). An
unreasonable application of federal law is not, however, the same as an incorrect application, and
only the former will result in the grant of habeas. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002).
Petitioner maintains the burden of demonstrating that the state court decision was unreasonable. Id.

A state procedural default of any federal claim will bar federal habeas relief unless the
petitioner demonstrates cause and actual prejudice or where review is necessary to correct a
fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 748 (1991).

ANALYSIS

Petitioner presents thirty-three separate claims for habeas relief by directing the court to the
portion of his habeas petition that lists the issues he previously presented to the Illinois courts on
direct and post-conviction review. (Pet. at 5.) With a few exceptions, this court will address
petitioner’s claims in the same order he presents them. Petitioner claims he raised the first twenty-
seven issues on direct review. These claims are analyzed in three separate sections: (I) issues raised

)
on direct review, (II), sentencing issues, and (III) issues raised on state post-conviction review.


underlying Fourteenth Amendment issue actually constitutes a constitutional violation, and,
therefore, that this court is barred from reviewing the Fourteenth Amendment issue because of

failure to exhaust state court remedies. In support, the State points out that an ineffective assistance
i

of appellate counsel claim arises out of the Sixth “T and is controlled by the two part
Hi

analysis set forth in Strickland v, Washington, 466 U.S, 668

raises arises out of the Fourteenth Amendment with th analysis focusing on whether the defendant

984), while the issue petitioner now

was denied a fair and just proceeding because of his absenc¢

See Kentucky v. Stincer, 482 U.S.
| M
730, 745 (1987). Citing to the Seventh Circuit’s decision in Momient-E] v. DeTella, 118 F.3d 535,

538-39 (7th Cir. 1997), the State argues that for a claim to have been fairly presented to the state
courts, and thus not waived for purposes of federal habeas review, both the same operative facts and
controlling legal principles must be submitted to the state courts. Thus, according to the State, the
fact that the two claims are distinguished by different legal theories, one being the Fourteenth
Amendment and the other being the Sixth Amendment, requires the conclusion that the presentment
of the Sixth Amendment ineffective assistance of counsel issue did not also present the underlying
Fourteenth Amendment claim to the state courts.

This court agrees with the State’s conclusion. Comity dictates that “when a prisoner alleges
that his continuing confinement for a state court conviction violates federal law, the state court
should have the first opportunity to review this claim and provide any necessary relief.” O’Sullivan
y. Boerckel, 526 U.S. 843, 844-45 (1999). This court cannot now rule on petitioner’s alleged
Fourteenth Amendment claim because he did not give the state courts a full and fair opportunity to
address the issue. Furthermore, petitioner does not allege cause or prejudice for this procedural

default, nor does he make a showing of actual innocence. Therefore, this court is barred from

20


defense desired to introduce impermissibly impinged on petitioner’s right to present a defense and
violated due process of law. This issue was not raised on direct appeal, nor was it raised on state
post-conviction review. Thus, this claim is defaulted, and petitioner makes no attempt to assert
cause, prejudice or a fundamental miscarriage of justice.
CONCLUSION

This court is barred from reviewing the issues raised in claims (14), (15), (27), (30), and part
of (11) because they were procedurally defaulted in the Illinois courts. This court cannot address
what are numbered claims (16), (29), or (33) because the petitioner failed to provide the basic factual
background necessary to evaluate whether a constitutional violation occurred. Claims (17) - (26),
(31), and (32) all involve petitioner’s previously imposed death sentence, which has now been
commuted, and, therefore, those claims are moot. Petitioner has failed to establish that the Illinois
Supreme Court’s rulings with respect to the remaining issues he raises are either contrary to, or an
unreasonable application of, clearly established federal law. Accordingly, the petition for habeas

relief is denied in its entirety.

Oe
'S F. HOLDERMAN
Inited States District Judge

DATE: December 16, 2003

22


hair. (State’s Ex. E at 32.) The tests were never done because petitioner refused to provide hair
samples, unless experts other than those employed by the State Crime Laboratory performed the
tests. (1d.) In his direct appeal to the Illinois Supreme Court, petitioner alleged that the trial court’s
refusal to allow an expert other than one employed by the State Crime Laboratory to test the hair
samples violated the Fourteenth Amendment of the United States Constitution. In support of that
assertion, petitioner cited to Miller v, Pate, 386 U.S. 1 (1967). The holding in that case, however,
rested on the fact that the prosecution knowingly presented false physical evidence. Id. at 6-7.
Petitioner points to no clearly established federal law that is contrary to, or would render
unreasonable, the Illinois Supreme Court’s decision. Thus, habeas relief is denied on this ground.

Issue (13): Trial Court’s Ruling Denied D lant Right t ent a Defens

Petitioner argues that he was denied a fair trial because the blood samples taken from the
victim’s apartment were not properly maintained, thereby preventing petitioner from conducting
certain tests on the blood that petitioner argues may have exculpated him. Petitioner further argues
that he was denied a fair trial because the trial judge prevented him from arguing to the jury that the
prosecution had “destroyed” the evidence, but allowing petitioner to tell the jury that certain tests
could not be performed on the blood because it was not properly maintained by the government. The
Illinois Supreme Court, citing to Arizona v. Youngblood, 488 U.S. 51 (1988), affirmed the ruling
of the trial judge to allow the introduction of the blood evidence and to prohibit the petitioner from
arguing the state had “destroyed” the evidence because petitioner was unable to show bad faith on
the part of the government. (State’s Ex. E at 33-34.) Furthermore, the Illinois Supreme Court
explained that the petitioner was given a fair and adequate opportunity to defend himself against the

State’s allegations because he was allowed to, and in fact did, argue to the jury that certain tests were

17


had been the victims of violent crimes, the trial judge erred by not specifically asking those
venirepersons whether the perpetrators of the crimes were African-American. The Illinois Supreme
Court ruled that the trial court did not abuse its discretion by probing whether these venirepersons
could remain fair without specifically asking about racial prejudice. Petitioner points to no clearly
established federal law that is either contrary to the Illinois Supreme Court’s ruling, or that would
render it unreasonable, and this court is aware of no clearly established federal law that requires a
trial judge specifically to question venirepersons with close family members who are the victims of
crime about the race of the offender absent the “special circumstances” described above. Thus,
petitioner’s request for habeas relief on this third ground is denied.

Issues (4)-(7): Excusal of Venirepersons for Cause

In claims 4 through 7, petitioner alleges he was denied his constitutional rights because of
various errors made by the trial judge regarding for cause and peremptory challenges.

With regards to petitioner’s fourth claim, the Illinois Supreme Court ruled that petitioner was
not deprived of a fair trial because the trial judge excused for cause a news reporter. The Court ruled
that the trial judge was correct in excusing the reporter because it was possible that journalists would
be called to testify during the trial, and the reporter expressed self-doubt as to his ability to be
impartial regarding journalist testimony. (State’s Ex. E at 20.) Petitioner points to no federal law
that would render this ruling unreasonable. Petitioner’s request for habeas relief on this fourth
ground is denied.

In his fifth claim, petitioner alleges that the prosecutors at his trial violated his equal
protection rights by utilizing a peremptory challenge and a “sham” for cause challenge to exclude

two African-American jurors, First, the Illinois Supreme Court rejected petitioner’ s claim regarding


venirepersons if they had been influenced by this and related remarks, denied petitioner his right to
an impartial jury; and (7) the trial court abused its discretion by excusing for cause two prospective
jurors who knew from newspaper reports that the state was seeking the death penalty.

Issue (1): Constitutionality of Venire Selection

The Illinois Supreme Court ruled that petitioner failed to show that the Cook County jury
selection procedures result in systematic underrepresentation of African-Americans in the district
where petitioner was tried. In doing so, the Court first cited to Taylor v. Louisiana, 419 U.S. 522,
528 (1975), which held that the Sixth Amendment requires a petit jury to be drawn from a fair cross-

section of the community. The Court then cited Duren v. Missouri, 439 U.S. 357, 364 (1979), to set

forth the standard for establishing a prima facie violation of the fair cross-section requirement: (1)
the group allegedly excluded is a distinctive group in the community; (2) the underrepresentation of
that group in venires, from which juries are selected, is not fair and reasonable in relation to the
number of such persons in the community; and (3) the underrepresentation is due to the systematic
exclusion of that distinctive group in the jury selection process.

As a preliminary matter, the Illinois Supreme Court, relying heavily on Davis v. Warden,

Joliet Correctional Institution at Stateville, 867 F.2d 1003 (7th Cir. 1989), rejected petitioner’s

assertion that the “community” to which the fair cross-section analysis should refer is the whole of
Cook County, and not just the northern half as is prescribed by Cook County Circuit Court Rule 0.4.
Petitioner presents no clearly established federal law, as determined by the Supreme Court, nor is
this court aware of any such law, that would result in the Illinois Supreme Court’s decision refusing
to invalidate Cook County Circuit Court Rule 0.4 being either contrary to or an unreasonable

application of clearly established federal law. The Illinois Supreme Court then determined that there


This court is barred from reviewing the issues raised in claims (14), (15), (27), (30), and part
of (11) because they were procedurally defaulted in the Illinois courts. This court will also not
address what are numbered claims (16), (29), or (33) because the petitioner fails to provide the basic
factual background necessary to evaluate whether a constitutional violation occurred. Claims (17) -
(26), (31) and (32) all involve petitioner’s previously imposed death sentence, which has now been
commuted, and, therefore, these claims are moot. Petitioner has failed to establish that the Illinois
Supreme Court’s rulings with respect to the remaining issues he raises are either contrary to, or an
unreasonable application of, clearly established federal law.

I. ISSUES RAISED ON DIRECT REVIEW

A, PRETRIAL ISSUES

Petitioner has raised the following pretrial issues in his petition for habeas relief: (1) the
Cook County jury selection system deprived petitioner of equal protection and the right to a venire
that represented a fair cross-section of the community; (2) the trial court’s refusal to question
prospective jurors about possible racial bias denied petitioner his right to an impartial jury and fair
trial; (3) the trial court’s refusal to question two specific jurors about racial prejudice after it was
disclosed that those jurors had close relatives who had been the victims of crime where the offenders
may have been African-American, denied petitioner his right to an impartial jury and fair trial; (4)
the trial court abused its discretion by excusing for cause a prospective juror because he was a news
reporter; (5) the prosecutor’s use of a peremptory challenge, coupled with a sham for cause
challenge, to exclude two African-American jurors, violated petitioner’s equal protection rights; (6)
the trial court’s refusal to exclude for cause a prospective juror who believed that the prosecutor’s

hands were tied by the rules of evidence, and the court’s additional refusal to ask the remaining


not performed because the state failed to properly maintain the blood. Petitioner has failed to show
how this ruling is either contrary to, or an unreasonable application of, clearly established federal
law. Therefore, habeas relief is denied as to this issue.

Issue (14): Evidence Regarding the Warrant

In Claim 14 petitioner alleges that evidence at trial establishing that the police had consulted
with a State’s Attorney and obtained a search warrant in a court of law, denied him a fair trial
because it insinuated that another prosecutor and another judge thought that the petitioner was guilty.
Citing to well recognized Illinois precedent, the Illinois Supreme Court held that this claim was
waived because petitioner failed to object at trial and also failed to include the issue in his post-trial
motion. (State’s Ex. E at 29-30.) Thus, this court is barred from reviewing this claim. Furthermore,
petitioner makes no attempt to establish, nor can this court find, cause, prejudice or a fundamental
miscarriage of justice.

Issue (15): Cross-Examination of Defense Witnes:

In Claim 15 petitioner alleges that the trial judge erred in allowing the State to cross-examine
a defense witness regarding the fact that she violated City of Chicago employee rules requiring
residence within City limits because the State introduced no testimony to support the insinuation of
misconduct. The Illinois Supreme Court held that this issue was waived because petitioner failed
to include the issue in his post-trial motion. (State’s Ex. E at 34.) Thus, this court is barred from
reviewing this claim. Furthermore, petitioner makes no attempt to establish, nor can this court find,

cause, prejudice, or a fundamental miscarriage of justice.

18


Issues (2)-(3): Trial Judge’s Refusal to Voir Dire Regarding Racial Bi

The Illinois Supreme Court ruled that petitioner was not denied an impartial jury by the trial
judge refusing to question the jurors regarding racial bias. In making its ruling, the Court noted that
the Supreme Court of the United States in Ristaino v. Ross, 424 U.S. 589, 596-97 (1976), explained
that a trial judge is required to question venirepersons regarding racial prejudice if “special
circumstances” exist that suggest a constitutionally significant likelihood that racial prejudice might
infect a defendant’s trial. The Illinois Supreme Court also noted, quoting Turner v. Murray, 476 U.S.
28, 33 (1986), that the mere fact that the defendant is African-American and the victim is white does
not constitute a “special circumstance.” Thus, the Illinois Supreme Court ruled that the trial judge
did not err in refusing specifically to question the venirepersons regarding racial bias because the
only factor that petitioner could point to in the record to establish “special circumstances” was the
fact that the victim was white and he was African-American.

The I}inois Supreme Court also recognized that Turner held that a capital defendant accused
of an interracial crime is entitled to have venirepersons questioned regarding racial prejudice. Id.
at 36-37. However, the Court noted that this “special circumstance” from Turner did not exist during
the guilt phase of a trial, but only during the sentencing phase of a trial. Thus, the Iinois Supreme
Court ruled that Turner was inapplicable to petitioner’s case because he had waived a sentencing
jury.

The Illinois Supreme Court’s holding in regard to petitioner’s second claim was neither
contrary to, nor an unreasonable application of, clearly established federal law, and, therefore,
petitioner is denied habeas relief on this ground.

Finally, petitioner claims that when two venirepersons testified that close family members


Minute Order Forni (0897)

a

United States District Court, Northern District of Iinois

x
Name of Assigned Judge Sitting Judge if Other
-_ Magistrate Judge James F. Holderman than Assigned Judge
CASE NUMBER 02 C 7253 DATE 12/16/2003
CASE USA ex rel PEEPLES vs. BRILEY
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY:
¢ 1 i) Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
lay Oo Answer brief to motion due. . Reply to answer brief due.
@ o Ruling/Hearing on set for at
(8) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) oO Pretrial conference[held/continued to] {set for/re-set for] on set for at :
0) Oo Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
: OFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1)  FRCP41(a)(2).
(do) [Other docket entry] Pursuant to Memorandum Opinion and Order entered this day, the petition
Mi for habeas relief is denied in its entirety.
i
(1) +o {For further detail see order attached to the original minute order.]
! ‘No notices required, advised in open court,
No notices required, umber of notices
Notices mailed by judge's staff. pec 17 2003
Notified counsel by telephone. date docketed
wv. | Docketing to mail notices. 4?
| MAO 450 form. 1anoa 19141S10 "S'n af sf
Copy to judge/magistrate judge, Wu313

date muiled notice

Stel Wd 91 93060

courtroom
deputy's
initials

“y¥

SURE REE

central Clerk's Office

mailing deputy initials



had its hands tied by the rules of evidence and that the jury should be able to hear anything.

Regarding the refusal to excuse for cause, petitioner cites to no clearly established federal
law whatsoever to argue that the Illinois Supreme Court’s ruling was in error. Furthermore, in his
direct appeal to the Illinois Supreme Court, petitioner cited no federal case law for the proposition
that the trial judge was required to excuse the juror and only once cited to the Sixth Amendment of
the United States Constitution, as it was interpreted by an Illinois court, for the proposition that a
defendant has the right to an impartial jury. (State’s Ex. A 120-23.) The Illinois Supreme Court
agreed with the trial judge’s refusal to excuse the juror for cause, noting that the juror stated that he
believed in the presumption of innocence, that he understood that the State had the burden to prove
the defendant guilty beyond a reasonable doubt, and that he could be fair to both sides. Finally, the
Illinois Supreme Court noted that petitioner’s allegations against the juror were mere fears and not
evidence. Petitioner also alleges that his constitutional rights were violated when the trial judge
refused to question the venirepersons regarding any prejudice that may have arisen because of the
juror’s remarks regarding the rules of evidence and related remarks.” Petitioner only alleges that his
rights were violated by the judge’s refusal to question the venirepersons regarding allegedly
prejudicial remarks, and makes no claim regarding the actual comments. Petitioner points to no
clearly established federal law to support his argument that the trial judge’s refusals to act resulted
in constitutional error. Petitioner has made no showing that this ruling is contrary to, or an
unreasonable application of, clearly established federal law, thus, habeas relief on this ground is
denied.

Inhis seventh claim, and last attack on the trial judge’s actions during selection of the venire,

*These related remarks were presumably made by the trial judge. (State’s Answer at 36.)
ll


the for cause challenge because that juror was the reporter who had expressed self-doubt as to his
ability to be impartial regarding journalist testimony. Petitioner does not dispute these facts, and
does not otherwise explain how this for cause challenge denied petitioner his equal protection rights
given the fact that the Illinois Supreme Court ruled the for cause challenge rested on a race neutral
basis. Thus, petitioner’s request for habeas relief with regard to the for cause challenge is denied.

After a jury was selected, the prosecutor at petitioner’s trial peremptorily excused an African-
American woman who was a prospective alternate juror. The trial judge refused a request from
defense counsel to have the prosecutor explain the use of the peremptory challenge on the basis that
defense counsel failed to establish a prima facie case of purposeful discrimination. The Illinois
Supreme Court, citing to Batson v. Kentucky, 476 U.S. 79, 90 (1986), refused to grant petitioner
relief on this claim because the Court held that the trial judge’s finding that the petitioner failed to
make out a prima facie case of purposeful discrimination was not against the manifest weight of the
evidence. In making this ruling, the Illinois Supreme Court noted that the prosecution used a total
of eight peremptory challenges and that only one of these challenges, which petitioner now contests,
was used against an African-American. (State’s Ex. E at 27.) Petitioner points to no facts or
circumstances raising the inference that this juror was excused because of her race. Petitioner’s
request for habeas relief is denied on this ground.

In his sixth claim, petitioner alleges that the trial court erred in refusing to excuse a juror for
cause and that the court’s refusal to ask the remaining venirepersons if they had been influenced by
the juror’s comments denied petitioner his right to an impartial jury. Specifically, in his direct appeal
petitioner complained that he had been forced to use a peremptory challenge because the trial judge

refused to excuse for cause a prospective juror who stated that he thought the prosecution sometimes

10


was a 2.46% disparity between the percentage of African-American registered voters in the northern
half of cook county and the percentage of African-American venirepersons reporting for jury duty.
Based upon these findings, the Court determined that a 2.46% disparity was insufficient to
demonstrate an unfair or unreasonable underrepresentation of African-Americans from petitioner’s
venire. In doing so, the Court noted that the disparity in petitioner’s case was much less than the
39.5% and 43% differences that the United States Supreme Court found significant in Duren, 493
USS. at 362-63, and Taylor, 419 U.S. at 424, respectively. Thus, the Court held that petitioner had
failed to satisfy the second element of a Duren prima facie case. The Court also ruled that petitioner
failed to meet the third element of a Duren prima facie case because venirepersons were chosen
from voter registration lists, which the Court ruled to be a facially neutral method of selecting a
venire.

The Illinois Supreme Court also denied petitioner’s equal protection claim ruling that
petitioner failed to establish a prima facie case. Specifically, the Court cited to Castaneda v. Partida,
430 U.S. 482, 494-95 (1977), and ruled that petitioner had failed to meet the second and third
elements of a prima facie case in that he failed to establish a substantial underrepresentation over a
significant amount of time, and a discriminatory purpose. The basis of the Court’s ruling was that
a2.46% disparity was neither a substantial underrepresentation nor proof ofa discriminatory purpose
and that utilizing voter registration lists was a facially neutral procedure. Petitioner has made no
attempt to dispute the Illinois Supreme Court’s factual findings, nor does petitioner point to any
contrary law. The Illinois Supreme Court’s holding was not unreasonable in light of clearly

established federal law, and, therefore, petitioner is denied habeas relief on this ground.


reviewing this claim.

Issue (28):Courtroom Security

Petitioner next alleges that the constant presence of two courtroom deputy sheriffs stationed
behind him during the course of the trial, and the fact that one of those deputy sheriffs escorted
petitioner to the witness stand and stood behind him while he testified, denied petitioner his Sixth
Amendment right to a fair trial, The Illinois Supreme Court, citing the decision in Holbrook v.
Flynn, 475 U.S. 560 (1986), explained that the United States Supreme Court has held that the
deployment of security personnel in a courtroom is not the type of inherently prejudicial practice that
should be permitted only when justified by an essential state interest specific to trial. (State’s Ex.
Lat37.) The Court in Holbrook rejected the defendants argument that the presence of armed guards
seated behind him throughout the trial was inherently prejudicial. Just as in Holbrook, the jury in
petitioner’s case was able to draw a wide range of inferences from the presence of the security
guards. Holbrook, 475 U.S. at 569. Petitioner has failed to establish that the Illinois Supreme
Court’s ruling is either contrary to, or an unreasonable application of, clearly established federal law.
Thus, petitioner’s habeas petition is denied as to this ground.

Issue (29), (33): Ineffecti’ is! e]

Petitioner argues that his trial and appellate counsel were ineffective. These claims are
without any specific factual support. Petitioner bears the burden of establishing that he is entitled
to habeas relief. This court cannot address vague, general claims without any factual basis.

Issue (30):

Petitioner alleges that the trial court’s ruling, which would have allowed the state to introduce

irrelevant and highly prejudicial evidence in response to exculpatory fingerprint evidence that the

21


his wristwatch.

Peeples testified that he spent the day in his apartment and that the wound on his hand had
occurred when he attempted to open a still-frozen package of pork chops. After cutting himself,
Peeples testified he lay down and fell asleep. He awoke to the police knocking on his door. He did
not answer because he was not on the lease, and he feared that his fiancee would lose her security
deposit if it was discovered that he was living there. He also testified that he attempted to leave the
apartment through the bedroom window because he saw smoke and fire. On cross-examination
Peeples testified to his belief that the police broke into his apartment and set the fires to force him
to come out.

During the pendency of Peeples’s post-conviction appeal, the State and Peeples entered into
an agreement for forensic DNA testing of the blood recovered from the victim’s apartment. (State’s
Ex. L at 21.) The Illinois State Forensic Science Center determined that the blood taken from the
victim’s apartment matched Peeples’s DNA profile and could not have come from the victim. (Id.)
At Peeples’s request, the blood was tested by an independent laboratory that concluded neither the
processing nor the conclusions reached by the State laboratory were in error. (d.)

STANDARD OF REVIEW

“The Antiterrorism and Effective Death Penalty Act of 1996 [(“AEDPA”)] modified a federal
habeas court’s role in reviewing state prisoner applications in order to prevent federal habeas
‘tetrials’ and to ensure that state-court convictions are given effect to the extent possible under the
law.” McFowler v, Jaimet, No. 03-1162, slip op. at 17 (7th Cir. Nov. 13, 2003) (citing Bell v. Cone,
535 U.S. 685, 693 (2002). Under the AEDPA, habeas relief will only be granted when a petitioner

establishes that the proceedings in state court resulted in a decision (1) “that was contrary to, or


This court’s role is not to evaluate whether the Illinois Supreme Court was correct in

affirming the trial court’s admission of the evidence. Howard v. O’Sullivan, 185 F.3d 721, 723 (7th

Cir. 1999). Even if the Illinois courts were wrong in admitting the evidence, habeas relief is only
proper if the evidentiary error was of such magnitude that it took on a constitutional dimension in
that it was so prejudicial that it comprised the petitioner’s due process right to a fundamentally fair
trial. Id, at 723-24 (citations omitted). “This means that the error must have produced a significant
likelihood that an innocent person has been convicted.” Id, (citations omitted). Petitioner points
to no law establishing that the Illinois Supreme Court erroneously admitted this evidence, much less
any clearly established federal law that would render the Court’s ruling unreasonable. Moreover,
given the overwhelming evidence of guilt presented at petitioner’s trial, including the fact that blood
matching the victim’s type was found on a knife in petitioner’s apartment and that his blood type
matched blood in her apartment, and the fact that post-trial testing concluded that the blood in the
victim’s apartment matched petitioner’s DNA type, petitioner cannot successfully argue that the
admitted evidence, even if in error, produced a significant likelihood that an innocent person has
been convicted. Therefore, habeas relief as to grounds eight and nine is denied.

Issues (10), (11), (16): Prosecutorial Misconduct

First, petitioner argues that it was constitutional error for the prosecutor at his trial to argue
that the victim was killed because she resisted petitioner’s attempt to rape her. The Illinois Supreme
Court ruled that considering the whole evidentiary record, particularly the facts that the victim had
punctuate defensive wounds on her abdomen indicating she had been backed through her apartment
possibly toward a bedroom, and that she had been found with her dress pulled up, concluded that the

prosecutor’s characterization of the evidence in closing argument was proper. (State’s Ex. E at 37-

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opening statements are not evidence and that it should disregard any statement not based on the
evidence. (Id.)

The Supreme Court of the United States has ruled that “it is not enough that the prosecutor’s
remarks were undesirable or even universally condemned.” Darden v. Wainwright, 477 U.S. 168,
181 (1986) (citation omitted). “The relevant question is whether the prosecutor’s comments so
infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id.

(citation omitted). In Darden, the Supreme Court of the United States ruled that while the

prosecutor’s closing argument that, inter alia, incorporated the word “animal” and implied that the
death penalty was the only means to prevent the defendant from committing future crimes, deserved
the condemnation it had received from every reviewing court, the comments also did not deprive the
defendant of a fair trial. Id, at 181-82. Petitioner has not shown that the Illinois Supreme Court’s
ruling was either contrary to, or an unreasonable application of, clearly established federal law.
Habeas relief in regards to the prosecutor’s alleged improper remarks during opening statements is
denied.

Inclaim 16, petitioner argues that prosecutorial misconduct during closing argument denied
him a fair trial. Petitioner makes no effort to elucidate to what misconduct he refers and provides
no factual support whatsoever for this claim. Because petitioner has not shown this court what
conduct might constitute a constitutional violation, habeas relief cannot be granted on this claim.

Issue (12); Refusal to Allow Independent Test of Hair I

The Illinois Supreme Court ruled that the petitioner was afforded a reasonable opportunity
to prepare his defense, despite the fact that the trial judge required the use of the State Crime

Laboratory for comparisons to be made between hair found in the victim’s hand and petitioner’s

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this apartment, which is located in Schaumburg, Illinois, with her roommate Pamela Killeen
(“Killeen”). Peeples and his fiancee, Vanessa Allen, lived in an apartment adjacent to the victim’s
apartment. Upon returning home on May 18, Killeen noticed a piece of paper towel stained with
blood wedged in her apartment door, which prevented the door from locking. After entering the
apartment Killeen found Dawn Dudovic lying on her back on the kitchen floor. The back of Ms.
Dudovic’s dress was pulled up to the buttocks, while the front of the dress was pulled up to the
waist, exposing her pantyhose and underwear.

Killeen immediately sought help. She pounded on the door of the apartment next door
where Peeples lived with his fiancee. No one answered. Killeen screamed for help because she
heard the sound of a radio or television inside Peeples’s apartment. After obtaining the help of
another neighbor, fire department paramedics and police were called to the scene and confirmed that
Dawn Dudovic was dead.

Peeples was arrested attempting to exit through a bedroom window approximately two hours
Jater, after police noticed smoke coming from the apartment where he resided. Peeples’s left hand
was bleeding profusely. Upon searching Peeples’s apartment, the police discovered that a dozen
small fires, consisting of small piles of items, including clothing, bedding, Peeples’s wallet, and a
knife with a stained wooden handle, had been burning.

At trial, a physician opined that the cut in Peeples’s left hand was made by an instrument
such as aknife. Evidence also established that Peeples was left-handed, and an autopsy revealed that
Dawn Dudovic died of multiple stab wounds. Furthermore, blood that matched Peeples’s blood
type, but not the victim’s, was collected from the victim’s apartment, and blood that matched the

victim’s type, but not Peeples’s, was found on the knife recovered from Peeples’s apartment and on


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
) porverg
UNITED STATES of AMERICA ex re. ) Dew
WILLIAM PEEPLES, ) se 17 2003
)
Petitioner, )
)
v. )
)
KENNETH R. BRILEY, Warden, ) No. 02 C 7253
)
Respondent. )
)
MEMO! P. ORDE!}

JAMES F, HOLDERMAN, District Judge:

On March 7, 1990, pro se petitioner William Peeples (“Peeples”) was convicted in an Illinois
Circuit Court of first degree murder, home invasion and aggravated arson, and was sentenced to
death for the murder conviction and to concurrent thirty-year terms of incarceration for the
convictions of home invasion and aggravated arson. On January 11,2003, Peeples’s death sentence
was commuted to natural life in prison. After exhausting the state post-conviction appellate process,
Peeples filed a petition for writ of habeas corpus with this court on June 5, 2003 pursuant to 28
U.S.C. § 2254. In this petition, Peeples asserts thirty-three separate grounds, which he claims entitle
him to habeas relief. For the following reasons, Peeples’s petition is denied in its entirety.

STATEMENT OF FACTS
On May 18, 1988, Ms, Dawn Dudovic was murdered in her apartment.' Ms. Dudovic shared

'These facts are taken from the opinion of the Illinois Supreme Court on direct appeal.
(State’s Ex. E at 1-6.)

2.>


petitioner asserts that it was constitutional error for the trial judge to excuse for cause two jurors who
knew that the state was seeking the death penalty. The Illinois Supreme Court had previously held
in People v. Lucas, 132 Ill. 2d 399 (1989) that “it [is] not an abuse of discretion for a trial judge to
exclude venirepersons for cause where they have learned that the defendant is eligible for the death
penalty but has waived a jury for sentencing” (State’s Ex. E at 21). The reasoning behind the holding
in Lucas is: “the exclusion of such venirepersons prevents the contamination of the venire and the
infection of the death penalty issue into jury deliberations. This sound exercise of discretion thus
avoids possible prejudice to either side and attempts to insure a fair trial.” (State’s Ex. E at 21, citing
Lucas 132 Ill. 2d at 425-26.) The Illinois Supreme Court refused petitioner’s request to overrule

Lucas. Presently, petitioner makes no attempt to argue that the rule laid out by the Illinois Supreme

Court in Lucas violates the United States Constitution. Furthermore, this court is aware of no clearly
established federal law that would render the Illinois Supreme Court’s decision unreasonable.
Therefore, habeas relief on this ground is denied.

B. TRIAL ISSUES

Petitioner sets forth among his claims eight alleged errors at his trial that he contends warrant
habeas relief: (8) irrelevant information about the victim denied petitioner a fair trial; (9) misleading
photos showing the victim after paramedics had torn open her dress denied petitioner a fair trial; (10)
prosecutorial misconduct insinuating, without foundation, that petitioner killed the victim because
she resisted his attempt to rape her denied petitioner a fair trial; (11) prosecutor’s opening remarks
to the jury, calling attention to the victim’s family and vilifying petitioner as a “human predator,”
and demeaning his right to a jury trial denied petitioner a fair trial; (12) the court denied petitioner

a fair trial by refusing to allow hairs received from the victim’s hand to be tested by an independent

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38.) Petitioner does not point to, nor is this court aware of, any clearly established federal law either
contrary to, or rendering unreasonable, the ruling by the Illinois Supreme Court that the prosecutor’s
inferences in closing argument were reasonable given the evidence. Thus, habeas relief is denied
as to this issue.

Petitioner also argues that statements by the prosecutor during opening statement referring
to the victim’s family, vilifying the defendant as a “human predator,” and demeaning his right to a
jury trial denied him a fair trial. Taking this last claim first, this court is barred from reviewing
petitioner’s allegation that the prosecution unconstitutionally demeaned his right to a jury trial. The
Illinois Supreme Court, citing well recognized Illinois precedent, held that any claim regarding this
alleged prejudicial remark was waived because petitioner had not objected to the allegedly improper
comment at trial. (State’s Ex. E at 35-36). Thus, this court is barred from reviewing this claim.
Furthermore, petitioner makes no attempt to establish, nor can this court find, cause, prejudice, or
a fundamental miscarriage of justice?

The Illinois Supreme Court ruled that petitioner suffered no prejudice when the prosecutor
included the victim’s family among the people he greeted at the opening of his argument. (State’s
Ex. Eat35.) The Illinois Supreme Court also refused to reverse petitioner’s conviction because the
prosecution stated that the evidence would establish that on the day the victim was killed the
petitioner was a “human predator,” ruling that the statement did not result in any substantial

prejudice to petitioner. (Id.) The Court stressed that the jury had been instructed at least twice that

3While petitioner makes no attempt to demonstrate a fundamental miscarriage of justice —
his habeas petition is nothing more than thirty-three separate grounds for relief laid out in single
sentences — this court notes that given the evidence at his trial, and the fact that post-trial DNA
testing established that his blood was present in the victim’s apartment, petitioner cannot prove
actual innocence in support of any of his defaulted claims.

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