Gullenss v. Grissom

DELARGO L. GULLENS, Petitioner, v. TERRY GRISSOM, ^[1] Respondent.

No. 20-cv-470-DWD

United States District Court, S.D. Illinois

September 7, 2021

MEMORANDUM AND ORDER

DAVID W. DUGAN, UNITED STATES DISTRICT JUDGE

Petitioner Delargo L. Gullens, currently incarcerated at Vienna Correctional Center, is serving a thirty-year sentence for two drug-related offenses (Doc. 25-1, p. 1; Doc. 25-8, pp 102-103). He has petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons discussed below, the Court will deny his petition.

Background

For the purposes of habeas review, the Court presumes that the state courts' factual determinations are correct unless Petitioner rebuts this presumption by clear and convincing evidence, which Petitioner has not done. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The following summary of the facts is derived from the state court opinions and is supplemented where appropriate from the state court record. See People v. Gullens, 2015 IL App (4th) 130357-U (Mar. 2, 2015) (Doc. 25-1) (affirming Petitioner's conviction on direct appeal); People v. Gullens, 2019 IL App (4th) 180483-U (July 1, 2019) (Doc. 25-3) (affirming the dismissal of Petitioner's post-conviction petition).^[2]

I. Trial, Conviction, and Sentencing

At Petitioner's trial, the State presented testimony from several law-enforcement officials, and two individuals: Oliva Hester and Jeffrey Harris (Doc. 25-1, pp. 1-2). The testimony revealed that on August 30, 2012, law-enforcement agents executed a search warrant on the residential trailer home owned by Olivia Hester (Doc. 25-1). When police knocked on the front door and announced their presence, an officer-located at the rear of the home-observed Petitioner run from the front kitchen area into a rear bedroom (Id.). Upon entering by force, police arrested three adults later identified as Petitioner, Jeffrey Harris, and Kayla Freeman (Id.). Police seized 212 plastic bags holding a fine white powder from the kitchen countertop; the parties later stipulated that this was 15.7 grams of heroin (Id.).

Olivia Hester, the owner of the trailer home, testified that she lived in the trailer with Jeffrey Harris and his girlfriend Kayla Freeman (Doc. 25-1, p. 2). Hester met Petitioner in May 2012 and began selling Petitioner's heroin with Jeffrey Harris (Id.). In exchange, Petitioner promised to pay Hester's monthly lot fee (Id.). The heroin was not sold from Hester's home, although it was kept there, and packaging sometimes occurred there (Id.). At various times during August 2012, Hester heard Petitioner and Harris talking about heroin and observed them handling small plastic bags of heroin in her home (Id.).

Jeffrey Harris, who was arrested with Petitioner on August 30, 2012 testified that he was introduced to Petitioner in June 2012 by Petitioner's brother, Keith (Doc. 25-1, p. 2). In July 2012, Harris moved into Olivia Hester's home (Id.). Harris initially sold cocaine that Keith provided, but later sold heroin that Petitioner supplied (Id.). Harris stored the heroin in Hester's home, and explained that Petitioner agreed to pay Hester's monthly rent in exchange for her allowing Harris to reside in her home (Id.). Harris kept one third of the heroin-sale proceeds and gave Petitioner the remainder (Id.). According to Harris, on August 30, 2012, he and his girlfriend, Freeman, and Petitioner arrived at Hester's home, where Harris observed 20 bags of heroin on the kitchen countertop (Id.). Harris and Freeman went into a bedroom located at the front of Hester's residence (Id.) After hearing a bang on the front door, Harris exited the bedroom and saw Petitioner sitting at the kitchen countertop with "many more bags of heroin than the 20 bags he had earlier observed" (Id.). Petitioner ran into "the back room" of the trailer, and Harris was placed under arrest (Id.). Harris stated that his involvement with Petitioner was to sell drugs, and that Keith and Petitioner "call[ed] the shots." (Id.).

During Harris' re-cross-examination by Petitioner's counsel Stuart Goldberg, the following exchange took place:

[GOLDBERG]: Did you see the police when they came in the house?

[HARRIS]: Yeah.

[GOLDBERG]: And did you ever see them find a bag that you say my client mysteriously took out of a car?

[HARRIS]: First of all, I never said [defendant] had a bag.

[THE STATE]: Objection.

THE COURT: Hold on. Watch your questions. You are asking questions assuming facts not in evidence, and even the witness figured it out.

[GOLDBERG]: I was just getting dizzy. [Harris] keeps moving around.

THE COURT: Now that remark is stricken; and that is completely improper, counsel.

[HARRIS]: Come on, man.

[GOLDBERG]: * * * Did you have occasion on August 31st, 2012, at 5:35 hours to have an audio-videotaped interview on that day?

* * *

[HARRIS]: Yeah.

[GOLDBERG]: Did you have occasion to tell the officer that my client took a bag from that house, out of the car into the house?

[HARRIS]: They asked me was there anything-yeah.

[GOLDBERG]: You told an officer that my client brought something into that house?

* * *

[HARRIS]: They asked me what * * * happened that day, and I told them.

[GOLDBERG]: And you say my client brought a bag in the house?

[HARRIS]: No, I never said bag.

* * *

[Defendant] told me to pop the trunk; and [defendant] got something out of the trunk. I don't know what it was. How could I say it was a bag?

[GOLDBERG]: How could you say it was a bag to the 12 ladies and gentlemen now if you can't say it then?

THE COURT: Counsel approach.

[HARRIS]: I didn't say it was a bag.

* * *

(The following proceedings were had outside the hearing of the jury.)

THE COURT: [The court does not] know what the problem is, but you are saying stuff that was not testified to. There was never any testimony that [Harris] saw a bag being taken out of the trunk. That's about the fourth time you've asked [Harris], and he keeps correcting you.

* * *

[Harris] was asked and said I don't know what it was, but you keep asking him.

[GOLDBERG]: I thought I heard him say bag. I'll ask him.

THE COURT: Hold on. [The court does not] want one more improper question from you or [the court] will hold you in contempt. You are doing nothing but throwing garbage into this trial.

(The following proceedings were had in the presence and the hearing of the jury.)

THE COURT: The objection is sustained. You may ask another question."

(Doc. 25-1, pp. 2-3).

Following Harris' testimony, the State rested, and the jury was released for the remainder of the day. (Doc. 25-1, p. 3). After the jury left the courtroom, Petitioner moved for a directed finding, which the court denied (Doc. 25-1, p. 3). Petitioner's counsel addressed the Court: "[Y]our honor, in my entire career, I've never been threatened with contempt during a trial. I find that this has a very oppressing feeling on the defense for me trying to advocate for my client. I heard the word bag." (Id.). The Court responded:

[Y]ou are a much better lawyer than the questions that are coming out of your mouth today; and you were talking about evidence, or you are asking questions assuming facts that are not in evidence; and you did it a lot today; and [the court knows] darn well that you know better than that. So when you start asking questions assuming facts not in evidence, twisting evidence, twisting facts, twisting testimony, [the court is] going to get upset; and [the court is] going to make sure that you understand what the rules are. You crossed the line when you made that little comment about his testimony going back and forth. You know you crossed the line then about * * * Harris's testimony going back and forth. It's rolling all around. I can't keep track of his testimony.

(Id.). Goldberg clarified "Oh, I meant his moving. That's what I meant." (Doc. 25-1, p. 4). The Court explained that Goldberg's testimony implied that Harris was "going back and forth", and admonished Goldberg, telling him that "lines [were] being crossed" and that "[Goldberg was] better than that." (Id.).

The next day Petitioner presented his case, during which Harris also testified about a telephone conversation he had with Petitioner through a third party on September 1, 2012 (Id.). In that conversation, Petitioner told Harris that "You might as well take the bullet for this." (Id.). And with regard to Hester, Defendant told Harris to "throw that little bitch under the bus." (Id.). Petitioner further directed Harris to tell the police that Petitioner had no involvement with heroin, and that Petitioner was in the bathroom at the time police entered Hester's home to conduct their search. (Id.). As rebuttal evidence, the Government played a recording of the entire September 1, 2012 phone conversation between Petitioner and Harris (Id.).

The jury convicted Petitioner of possession with intent to deliver a controlled substance (15 grams or more but less than 100 grams of a substance containing heroin) and possession of a controlled substance (15 grams or more but less than 100 grams of a substance containing heroin) (Doc. 25-1, pp. 4-5).

On January 22, 2012, Petitioner filed a motion for a new trial (Doc. 25-1, p. 5; Doc. 25-7, pp. 108-111). Petitioner's counsel argued, in part, that Petitioner was not afforded a fair trial because of the Court's statements towards his counsel, which he described as "enmity and rancor." (Doc. 25-1, p. 5). The trial court denied Petitioner's motion finding that it was time barred in violation of the 30-day limit mandated in 725 ILCS 5/116-l(b) because the motion was filed 57 days after the jury's verdict (Id.; Doc. 25-7, pp. 117-125). The trial court also addressed the merits of Petitioner's arguments, finding that Petitioner...