counsel! did cross-examine Hladik and that the record did not otherwise support an ineffective
assistance claim. (/d.) With respect to Petitioner's remaining allegations, the Appellate Court
observed that those matters were outside the record and beyond the scope of its review. (/d.) That
court concluded that its careful review of the record revealed no issues of arguable merit and it
therefore granted appellate counsel's motion for leave to withdraw. (Id. at 5.)

The Illinois Supreme Court denied leave to appeal on January 29, 2001. (Order of the
Supreme Court of the State of Illinois dated January 29, 2001, Exhibit E to Respondent's Answer.)
Petitioner filed no further state court proceedings. He filed the instant petition for writ of habeas
corpus on June 29, 2001, raising the same claims he raised in the Illinois Appellate Court and the
Illinois Supreme Court on direct appeal.

STANDARD OF REVIEW

Section 2254 of the Anti-Terrorism and Effective Death Penalty Act entitles a prisoner to
a writ of habeas corpus if he is being held in prison pursuant to a state court judgment obtained in
violation of the Constitution. 28 U.S.C. §§ 2254; Williams v. Taylor, 529 U.S. 362, 375, 120 S. Ct.
1495, 1504 (2000); Lowery v. Anderson, 225 F.3d 833, 838 (7th Cir.2000). With respect to any
claim that was adjudicated on the merits in state court proceedings, a federal court will not grant
a writ of habeas corpus unless that state decision (1) was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court of the United
States; or (2) 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. 28 U.S.C. §§ 2254(d)(1), (2);
Winters v. Miller, 274 F.3d 1161, 1165 (7th Cir. 2001); Hough v. Anderson, 272 F.3d 878, 889 (7th
Cir. 2001). This court, however, will not address the merits of a habeas corpus petition unless the
petitioner can show that he has exhausted his state remedies and avoided procedural default. U.S.

ex, rel. Bell v. Pierson, 267 F.3d 544, 551 (7th Cir. 2001).


For the above reasons, the petition for writ of habeas corpus is denied.

Dated: May 16, 2002

ENTER:

Rarer Te Mere ——

REBECCA R. Paice
United States Distrittdudge


rejected this claim on its merits, observing that the trial court believed Hladik’s testimony and that
the testimony of a single law enforcement officer was sufficient to support a narcotics conviction.
(lll. App. Ct. Order at p. 3, Exhibit C to Respondent’s Answer, citing People v. Bradford, 187 Ill.

App. 3d 903, 543 N.E.2d 918 (1st Dist. 1989).)

Because the Illinois Appellate Court considered and rejected this claim on its merits, this
court will not grant habeas relief on this claim unless the Appellate Court's decision was either
contrary to, or an unreasonable application of, federal law, or was based on an unreasonable
determination of the facts in light of the evidence. 28 U.S.C. §§ 2254(d)(1) & (2). Petitioner did
not attempt to show that the decision was contrary to federal law. Rather, he criticized Hladik’s
testimony and expressed his disagreement with the Appellate Court's conclusion, arguably
indicating that he found the decision to have been an unreasonable application of the facts. As
Petitioner himself acknowledged, however, the testimony of a single witness was sufficient to
convict him (Petition at 3), and his protests that the trial and appellate courts should not have
believed Officer Hladik’s testimony are insufficient to disturb the result. This court notes, in any
event, that Petitioner’s challenges to Hladik’s account go to collateral matters. Even if the court
shared Petitioner’s hunch that Officer Hladik could not have gone unnoticed, or that he could not
have removed a sewer cover without tools or assistance, such (hypothetical) doubts would not
disturb the conclusion that Hladik’s testimony was otherwise sufficient both to establish that
Petitioner was observed engaging in unlawful drug transactions, and to support his conviction for

that conduct.
Ineffective Assistance of Counsel

Petitioner's second claim for habeas relief is that his trial counsel was ineffective for failing
“to present any type of defense,” for not investigating the crime scene as Petitioner wished, and

for telling Petitioner he did not need to testify because the court would not believe Hladik’s story.


Habeas relief is only available to a petitioner who has exhausted his state remedies by
presenting his claims fully and fairly to the state courts. 28 U.S.C. §§ 2254; O'Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). In O'Sullivan, the Supreme Court explained that "[blecause the
exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to the federal courts, . . . state prisoners
must give the state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State's established appellate review process." 526 U.S. at 845. In Illinois,
"one complete round" is finished once the petitioner has presented his claims, whether on direct
appeal or on post-conviction review, at each stage of the appellate process, up through and
including the Illinois Supreme Court. See id. at 847-48.

Where a petitioner has procedurally defaulted on his claims, a federal court will review such
defaulted claims only if the petitioner can show: (1) cause for failure to raise the claim, and actual
prejudice resulting therefrom; or (2) that refusal to consider the defaulted claim would result in a
fundamental miscarriage of justice, meaning that the constitutional violation "has probably resulted
in the conviction of one who is actually innocent." Edwards v. Carpenter, 529 U.S. 446, 451 (2000);
Anderson v. Cowan, 227 F.3d 893, 899-900 (7th Cir. 2000); Murray v. Carrier, 477 U.S. 478, 496

(1986).
Sufficiency of the Evidence

Petitioner’s first claim for habeas relief is that there was insufficient evidence for the trial
court to have found him guilty beyond a reasonable doubt. He complains that his conviction was
based entirely on the improbabie testimony of Officer Hladik. (Petition at 3.) As previously noted,
Petitioner urges that Hladik’s testimony was unbelievable, for example, because a white man could
not have gone unnoticed in that particular neighborhood, and also because itis unlikely that Hladik

could have removed the sewer lid alone, without tools. (/d. at 4.) The Illinois Appellate Court


Petitioner’s claim on the merits is most likely foreclosed.

If, however, the Appellate Court meant to reject these arguments on the merits (meaning
that this court could consider whether the Appellate Court’s decision was contrary to federal law
or based on unreasonable facts) the result would be no different. Significantly, Petitioner has not
argued that the Appellate Court's decision was contrary to federal law, or that it relied on an
unreasonable determination of the facts. Instead, Petitioner requests a hearing to develop the
facts underlying his claims that were outside the record pursuant to 28 U.S.C. § 2254(e)(2).
(Petitioner's Response to Respondent's Answer at p. 4.) This court will not grant an evidentiary
hearing on this claim unless Petitioner shows that it relies on “(i) a new rule of constitutional law.
.. that was previously unavailable; or (ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2). Petitioner does not
argue the former. Nor does he suggest that this claim is based on facts that could not previously
have been uncovered. To the contrary, the claim is based on conversations to which he was a
party, a factual predicate that had already been discovered because he made the same claim on
his direct appeal. Notably, even now, with the benefit of appointed counsel, Petitioner has not
submitted so much as his own affidavit concerning the alleged conversations with trial counsel.
Petitioner has not shown either that the Appellate Court's decision, to the extent it was a decision
on the merits, was contrary to federal law or based on an unreasonable determination of the facts,

or that he is entitled to an evidentiary hearing.

3(...continued)
1270, 1272 (7th Cir. 1990). Furthermore, as discussed herein, Petitioner has not shown fault with
the Appellate Court's decision sufficient to warrant habeas relief.

8


Minute Orde? (06/97) 7 wae

United States District Court, Northern District of Illinois

Name of Assigned Jud; Re . Pallmeyer Sitting Judge if Other
or Magistrate Judge A. than Assigned Judge

CASE NUMBER 01 C 5085 DATE 5/16/2002
CASE Alfred Maye vs. Dennis Hockaday
TITLE

[In the following box (a) indicate the patty filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:
DOCKET ENTRY:
qd) Oo Filed motion of { use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) Oo Answer brief to motion due. . Reply to answer brief due
(4) Oo Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) i) Pretrial conferencefheld/continued to] [set for/re-set for] on set for at :
(7) Oo Trial[set for/re-set for] on at
(8) im) {Bench/Jury triat] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) O General Rule21 CFRCP41(a)(1) (1 FRCP41(a)(2).
Ca [Other docket entry] Enter Memorandum Opinion And Order. Petition for writ of habeas corpus
is denied.
di) @ [For further. detail see order attached to the original minute order.]
No notices required, advised in open court.
3
No notices required. veambe of notes
v | Notices mailed by judge’s staff.
wot May 1% 2002
(otified counsel by telephone, tte docketed
Docketing to mail notices.
Y | Mail AO 450 form.

Copy to judge/magistrate judge.

date mailed notice

courtroom !
ETV deputy’s BTV
initials

Date/timg received in - :
central Clerk’s Office mailing deputy initials



(Petition at 6-7.) The Illinois Appellate Court rejected Petitioner's assertion that his trial counsel
did not present a defense after reviewing the trial record. (Ill. App. Ct. Order at p. 4., Exhibit C to
Respondent's Answer.) Again, because the Appellate Court rejected the merits of this claim, this
court will not grant habeas relief unless Petitioner shows that the decision was contrary to federal
law, or was based on an unreasonable application of the facts. 28 U.S.C. §§ 2254(d)(1) & (2).
Petitioner did not do either here, nor does this court believe that either argument would have

enjoyed any probability of success.

With respect to Petitioner’s two remaining allegations of ineffective assistance, the illinois
Appellate Court noted that these arguments were based on conversations between Petitioner and
his counsel and were, therefore, matters not in the record and beyond its scope of review. (Ill. App.
Ct. Order at 4, Exhibit C to Respondent's Answer.) The Appellate Court went on to state that it had
carefully reviewed the record and found no issues of arguable merit. (/d. at 4-5.) In an earlier order
in this case, this court expressed doubt about whether the Appellate Court had foreclosed habeas
review by expressly relying on a state procedural grounds for not reaching the merits of the claim,
or whether its statement about finding no issues of merit in the record meant that it intended to
reject this claim on the merits leaving it open to habeas review by this court or in a state post-
conviction proceeding. (October 30, 2001 Order, Docket No. 12.) The court finds the former more
likely, as the Appellate Court’s review of the record would not have Ied it to consider the merits of

Petitioner's claims that were based on conversations with his attorney.* Thus, a review of

8 The parties also dispute whether the Appellate Court's treatment of this claim means
that it has been procedurally defaulted. Petitioner urges that it was not defaulted, and that this
court should consider the merits. To the extent this claim was procedurally defaulted, Petitioner's
suggestion that the Appellate Court should have directed him to raise the claim in a post-conviction
petition does not constitute cause excusing the default. The Appellate Court was not obliged to tell
Petitioner the best way to raise his claims, he has no constitutional right to an attorney in state
post-conviction proceedings, and his pro se status does not establish cause for a procedural
default. See Coleman v. Thompson, 501 U.S. 722, 752 (1991); Henderson v. Cohn, 919 F.2d

(continued...)


to recovering the plastic bag from the sewer, Hladik testified that he lifted the sewer cover by
himself, without the aid of any tools, and that his partner held his legs while he reached down into
the sewer to retrieve the bag. (/d.) The parties stipulated that a forensic chemist would testify that
she tested the contents of one of the foil packets and determined that it was heroin. (/d. at 3.)
Cook County Circuit Court Judge Stuart E. Palmer found Petitioner guilty of possession of a
controlled substance with intent to deliver. (/d.)

On appeal to the Illinois Appellate Court, Petitioner urged that there was insufficient
evidence to convict him because the case against him was based solely on the improbable
testimony of Officer Hladik. (/d.) Specifically, Petitioner argued that it is unlikely that a white man
in an “all black neighborhood” would witness four narcotics transactions take place in the middle
of the day while no one else noticed him.? (/d.) Petitioner also argued that Hladik's claim that he
removed the sewer cover by himself, without any tools, is incredible. (/d.) Petitioner likewise
contends that it was not likely that a plastic bag would have been floating on the water in the sewer
without a current to wash it away. (/d.) The Appellate Court was unmoved by these arguments.
It noted that the trial court heard and believed Officer Hladik’s account, and furthermore, that its
own review of the record, considered in the light most favorable to the prosecution, revealed that
there was sufficient evidence to establish Petitioner's guilt beyond a reasonable doubt. (/d. at 4.)

Petitioner’s second claim on appeal was that he was denied the effective assistance of
counsel at trial because his counsel failed “to present any type of defense,” failed to conduct the
investigation Petitioner specifically requested, and advised Petitioner that he did not need to take
the stand in his own defense because the court would not believe Officer Hladik. (/d.) The

Appellate Court rejected the notion that Petitioner's counsel failed to present a defense, noting that

2 The court initially questioned the relevance of whether or not Officer Hladik had gone
unnoticed that day, but notes for clarity that Hladik testified that no one saw him conducting
surveillance. Thus, Petitioner argued this point to impeach Hladik’s testimony.

3


Court's decision foreclosed habeas review of Petitioner's ineffective assistance of counsel claims,
and appointed counsel to represent Petitioner. (Docket No. 12.) Upon review of the parties’
submissions since the October order, however, the court concludes that Petitioner is not entitled
to habeas corpus relief.

FACTUAL BACKGROUND'

Chicago police officer James Hladik testified at Petitioner's trial that he and his partner
conducted surveillance on the afternoon of April 21, 1999 in an area known for narcotics sales.
(Order of the Illinois Appellate Court dated August 24, 2000 (“Ill. App. Ct. Order”), p. 2, Exhibit C
to Respondent’s Answer.) According to Hladik, he witnessed Petitioner, on four separate
occasions, giving an individual a foil-wrapped packet in exchange for money. (/d.) When Hladik
and his partner approached Petitioner, he fled down an alley and dropped a plastic bag into an
open sewer, then raised his hands in the air. (/d.) Hladik testified that he detained Petitioner until
his partner arrived on the scene, and then removed the sewer cover and recovered the plastic bag.
(/d.) Hladik recounted that the plastic bag was floating on top of the water in the sewer, and that
there was no other debris in the sewer because water was not flowing through it at that time. (/d.)
The plastic bag contained 19 foil packets of a substance later determined to be heroin. (/d.) Hladik
and his partner arrested Petitioner and found $50 in a custodial search of his person. (/d.)

Petitioner’s attorney cross-examined Hladik, who explained that he and his partner
conducted the surveillance during the day, that he wore street clothes, and that he was the only
white person in the vicinity. (/d.) Hladik testified further on cross-examination that the transactions

he witnessed Petitioner conduct occurred within a few minutes of one another. (/d.) With respect

' A federal court reviewing a petition for writ of habeas corpus under 28 U.S.C. §§
2254 presumes the state court's factual findings are correct. 28 U.S.C. §§ 2254(e)(1); see also
Sumner v. Mata, 449 U.S. 539, 547 (1981). A petitioner has the burden of establishing by
convincing evidence that a state court's factual determinations are erroneous. See U.S. ex rel
Green v. Greer, 667 F.2d 585, 589 n. 6 (7th Cir.1981).


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ALFRED MAYE, )
Petitioner, }

v. } No. 01 C 5085
DENNIS HOCKADAY,
Respondent. }

MEMORANDUM OPINION AND ORDER

Petitioner Alfred Maye is currently serving a 10-year sentence at the Western Illinois
Correctional Center for his September 3, 1999 conviction for possession of a controlled substance
with intent to deliver. Petitioner's conviction was based almost exclusively on the testimony of
Chicago police officer James Hladik. Hladik testified that on April 21, 1999, while conducting
surveillance with his partner in a neighborhood known for narcotics sales, he saw Petitioner, on four
occasions within the span of a few minutes, give an individual a foil-wrapped packet in exchange
for money. Hladik further testified that he apprehended Petitioner after a short chase during which
Petitioner discarded a plastic bag into a sewer. Hladik recovered the plastic bag, which was later
revealed to contain heroin.

The trial judge found Petitioner guilty at a bench trial, and Petitioner appealed to the Illinois
Appellate Court. In response to his appellate counsel's Anders motion, Petitioner raised claims of
ineffective assistance of counsel and insufficient evidence. The Illinois Appellate Court granted the
Anders motion and upheld Maye’s conviction and sentence on August 24, 2000. The Illinois
Supreme Court denied leave to appeal the same two claims on January 29, 2001. Petitioner
declined to file a state post-conviction petition. Instead, he raised these claims in the instant
petition for writ of habeas corpus filed on June 29, 2001.

In an order dated October 30, 2001, this court questioned whether the Illinois Appellate

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