Thomas v. McCann et al

Filing 52

OPINION and Order Entered by the Honorable Charles R. Norgle, Sr on 6/17/2014. Mailed notice (tlm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
United States of America ex rel.
TONY THOMAS,
Petitioner,
07

cY

6443

V.

Honorable Charles R. Norgle

RANDY PFISTER,I
Respondent.

OPINION AND ORDER
Before the Court is Petitioner Tony Thomas's (ooThomas") Petition for Writ of Habeas
Corpus by a Person in State Custody pursuant to 28 U.S.C. 5 2254. For the following reasons,
Thomas's petition is denied.

T. BACKGROUND

A.

Facts

A

state court's factual findings are oopresumed to be correct" on federal habeas corpus

review unless the petitioner rebuts this "presumption of correctness by clear and convincing

evidence." 28 U.S.C. $ 225a(e)(1). The Court takes the following facts from the relevant

Illinois state court opinions. Following a jury trial in the Illinois state court, Thomas was
convicted of first degree murder for the fatal shooting of Khatim Shakir (the "victim"). The trial
court sentenced Thomas to 50 years' imprisonment for the murder, and an additional mandatory
term of 25 years' imprisonment pursuant to 730Ill. Comp. Stat. 5/5-8-l(a)(1)(d)(iii), for a total

I Although formerly
in the custody of Mike Atchison ("Atchison"), Warden of the Menard Correctional
Center, Petitioner is currently in the custody of Randy Pfister ("Pfister"), Warden of the Pontiac
Correctional Center. Thus, Pfister is substituted for Atchison as the named defendant pursuant to Rule
2(a) of the Rules Governing Section 2254 Cases in the United States District Courts and Federal Rule of
Civil Procedure 25(d).

sentence

of 75 years' imprisonment. Thomas's conviction and sentence were affirmed on direct

appeal.

The evidence produced at trial established that on the evening of September 22,2001, the

victim was at a party in Chicago, Illinois with his girlfriend, Vanessa Perez ('oPerez"), Fernando
Cota ("Cota"), Henry Igunbor ("Henry"), and Joe Igunbor ("Joe"). The group left the party to go

to a liquor store at the corner of Belmont and Sheffield where they met up with Gregory Hoyos
("Hoyos"), who is a member of the Latin Kings street gang. While Hoyos was outside of the

liquor store, a man, who was later identified as Thomas, approached Hoyos and stated "what's
up, motherfucker, G.D.," which indicated that Thomas was a member of the Ganger Disciples, a

rival street gang. Hoyos testified that he "shook him off' and ignored Thomas. Shortly
thereafter, Cota and the victim, who had been a member of the Latin Kings, walked towards

Hoyos. The victim and Hoyos "shook up the crown" or shook hands using the Latin King's
handshake. Thomas then approached Hoyos and the two exchanged heated words, during which
Thomas identified himself as a "King killer," which meant that he killed members of the Latin

Kings. Thomas then pulled a gun from his waistband and pointed it at Hoyos. Thomas fired the
gun four to five times while Hoyos and the victim ran across the street. The victim, who was
behind Hoyos, yelled that he had been

hit.

When the group retumed, they found the victim

collapsed in the street in a pool of blood. The shooting was reported to Detective Tony Villardita

of the Chicago Police Department at 2:25 a.m. on September 23, 20OL Within days of the
shooting, Perez, Cota, Henry, Joe, and Hoyos positively identified Thomas as the shooter in both

a photo array and a live line-up. Later, the five witnesses made in-court identifications of
Thomas at his trial.

In addition, Officer John Massi ("Massi") of the Chicago Police Department testified that
earlier that evening between 11:30 p.m. and 12:00 a.m., he came upon a group, including
Thomas, in a heated conversation at the corner of Belmont and Sheffield. Massi told the group

to disperse, although some remained. At one point, Massi spoke with one of the individuals,
who was later identified as Thomas, who told Massi that he o'wasn't about to take any shit off
anyone" and that

"if

of

any of the local gangbangers fuck with me, I'm going to come back with my

shit and blow them away." Massi once again asked the group to leave the area. Thomas then got

into a taxi cab with four other people and left the area. A few days later Massi identified Thomas
from a photo array as the man who he had spoken to that evening.

At trial, Thomas presented an alibi

defense, arguing that he was on the south side

of

Chicago when the shooting occurred on the north side at Belmont and Sheffield. Thomas
testified that he lived on South Troy Street with his mother, Frances Thomas, on the south side

of

Chicago; however, police officers testified that Thomas initially told them that he lived on the
700 block of West Waveland on the north side. In any event, Thomas stated that, on September

22,2001, he met with his girlfriend, Delilah Cruz ("Cruz") at his mother's house and they left
together at approximately 4:00 p.m. to take the train to Gill Park, which is located at Irving Park
and Broadway on the north side. Thomas said that he and Cruz left the park around 10:30 p.m.

or 11:00 p.m. to go to the liquor store on the corner Belmont and Sheffield. Once there, Thomas
got into an argument with local members of the ooBelmont and Sheffield" Gangster Disciples,
which was a different branch of the gangthat he associated with in Gill Park. Officer Massi
arrived to break up the altercation, and Thomas argued with him, and was eventually told to
leave the area. According to Thomas, he, Cruz, and three other men then got into a taxi, and
returned to Gill Park.

At approximately 12:30 a.m., Thomas

said that he paid a man named Pablo to drive him

and Cruz back to his mother's house. However, Pablo only took them as far as 63rd Street and

Yale, and refused to drive them further. After fighting with Pablo, Thomas and Cruz decided to
take the bus. Once on the bus, however, Cruz yelled at Thomas and exited the bus. Thomas said

that he followed her because she had his cellphone. They argued and, according to Cruz's
testimony, Thomas tried to hit her, so she told him that she was calling the police. Thomas then
ran away, and he said that he paid someone at a nearby gas station $7 to drive him the rest of the

way to his mother's house. Cruz testified that meanwhile the police arrived and she made a
police report approximately an hour later at 1:15 a.m. The police report was never admitted into
evidence.
Thomas testified that he arrived home at 2:00 a.m. and his mother's boyfriend answered
the door. He then proceeded to argue with his mother for approximately forty-five minutes, after

which he called his sister, Melody Kinsey ("Kinsey"), and the mother of his child, Shonnette
Ringgold ("Ringgold"), to see

if

he could stay with

her.

Thomas said that he stayed at his

mother's house and fell asleep. Thomas's mother testified on direct examination that Thomas
arrived home at2:30 a.m., they argued, he made a few phone calls, and then he went to bed. His
mother had also told investigators at one point that Thomas arrived home at exactly 2:37 a.m.
On cross-examination however, his mother admitted that she originally told police that she went

to bed around 10:30 p.m. and did not

see Thomas

until 5:00 a.m. the next morning. Kinsey

testified that she received a call from Thomas at 3:00 a.m., but admitted on cross examination
that she originally told the police that she received a call at exactly 2:37 a.m. Ringgold testified

that she received a call from Thomas around 2:00 or 3:00 a.m., but that he never came over.
Lastly, Thomas's uncle, Samuel Colbert ("Colbert"), who lived at the house, testified that on the

4

evening in question, he had been drinking with a friend and returned home early. Colbert said
that he was watching a movie when Thomas returned home, although he did not know what time

it was.

He then watched as Thomas and his mother argued for "some hours." On cross-

examination however, Colbert admitted that he originally told the police and an assistant state's
attorney that he had been out with a woman that evening and did not return home until 7:00 a.m.,
and that Thomas did not return until 9:00 a.m. The prosecution called rebuttal witnesses who
also testified as to what Thomas's family members originally told investigators. Ultimately, the

jury found Thomas guilty of first degree murder.

B. Procedural History
Thomas filed a direct appeal raising several claims for relief, including an argument that
the trial court erred by failing to hold a fitness hearing before

trial.

The Illinois Appellate Court

rejected Thomas's arguments and affirmed his judgment and conviction on June 17, 2004.
Thomas's petition for leave to appeal ("PLA") to the Illinois Supreme Court was denied on
November 24,2004.
Thomas filed his first, state post-conviction petition on April 27,2005. Thomas argued,

inter olia, that he was actually innocent in light of newly discovered evidence showing that
Robert Pinkston ("Pinkston") had committed the murder for which Thomas was convicted. The

newly discovered evidence consisted of a letter from his attorney to the assistant state's attorney
from January 12,2005, which stated the following:

I am writing you concerning the case of People v. Tony Thomas,

Case # OI-CR25695 which went to trial in front of Judge James Linn and a jury.
I have recently received hearsay information from someone who works in the
neighborhood of the homicide that the beat officer, John Massi, was informed by
some of the various neighborhood gang members that Tony Thomas did not
commit the homicide and that a drug dealer named Robert Pinkston did.
Obviously, this information was not known to me at the time of the trial.

Due to the evidence which has Tony Thomas battering his girlfriend on 63rd
Street shortly before this homicide on Belmont Avenue, I would appreciate it if
Pinkston could be looked into.
Second Am. Pet. for Writ of Habeas Corpus Person in State Custody, at p.

denied the post-conviction petition on May 4,

19. The trial court

2005. The state appellate court affirmed

February 7, 2007, finding that the unauthenticated letter containing layers

insufficient

of

hearsay was

to show actual innocence, particularly in light of the overwhelming

presented against Thomas at

trial.

See State Court Record Ex.

on

evidence

M, at p. 5. The Illinois Supreme

Court denied a PLA on May 31,2007.

On November 6, 2007, Thomas filed a motion for leave to file a successive postconviction petition

in the

state

court. Thomas

argued that the state withheld exculpatory

evidence, which showed that Pinkston committed the murder, in violation of Brady v. Maryland,

373 U.S. 83 (1963). The court denied his motion on December 11, 2007. The appellate court
affirmed the denial of Thomas's motion for leave to file a successive petition on March 30, 2010.
The appellate court found that Thomas failed to show the requisite cause necessary to allow the

frling of a successive post-conviction petition under Illinois law because the record established
that he was aware of his potential Brady claim, but nevertheless failed to properly present it in

his initial post-conviction petition. Thomas filed a PLA which was denied by the Illinois
Supreme Court on November 24,2010.

Several years earlier, on November 74, 2007, Thomas sent this Court his first S 2254

petition, which was eventually filed on January 25, 2008. On February 4, 2008, the Court
granted Thomas's motion to stay his $ 2254 proceedings while he exhausted the remainder of his
state court remedies.

6

In the interim, on August 28, 2008, Thomas filed a lawsuit in

state court seeking

declaratory relief regarding a request for documents that he had made to the Chicago Police
Department pursuant to the Freedom of Information Act

("FOIA"). The trial court dismissed

Thomas's suit on September 11, 2008. Thomas appealed, but because he had filed in the wrong
venue, his motion to voluntarily dismiss was granted on May

6,2010. Meanwhile, Thomas

pursued his FOIA motion in the proper state court venue.
On June 7,2011, Thomas filed a renewed motion to stay the instant proceedings or to file
an amended $ 2254 petition. On June 15,2011, the Court granted Thomas's motion to continue

the stay while he pursued his state court remedies, but denied his motion to file an amended

petition. Thomas then filed another motion to continue the stay, brought by way of a status
report, which the Court denied, thereby lifting the stay of the instant proceedings on Octob er 24,

201t.

Although the Court once again denied Thomas leave to file an amended petition, he

nevertheless filed an amended petition on November 17,2011, which the respondent answered.

However, on February 27,2012, the Court granted Thomas's motion to reconsider staying the
proceedings because the state appellate court had granted him leave to

file alate notice of appeal

on November 29, 2011. Thomas was ordered to submit status reports regarding the stay every
ninety days.

Ultimately, on June 20,2013, the Court lifted the stay in the proceedings for the final

time. After Thomas agreed to voluntarily dismiss several of his claims, the Court granted him
leave to

file an amended 5 2254 petition on September 24, 2013. Now, in the year 2014,

Thomas's petition for a writ of habeas corpus is fully briefed and before the Court.

II.
A.

DISCUSSION

Standard of Decision

"[A] district court shall

entertain an application for a writ of habeas corpus in behalf of a

person in custody pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or law or treaties of the United States." 28 U.S.C.
$ 225a@). "Federal habeas relief from a state-court criminal judgment is not easy to come by
because the Antiterrorism and Effective Death Penalty

Act of 1996 (the 'AEDPA') requires

[federal courts] to defer to a great extent to the decisions of the state courts." Kamlager v.

Pollard, 715 F.3d 1010, 1015 (7th Cir. 2013) (internal quotation marks and citation omitted).
Section 2254(d) sets ahighhurdle forhabeas relief. See Cullenv. Pinholster, 131 S. Ct. 1388,
1398 (2011). Pursuant to the AEDPA, "a writ of habeas corpus shall not be granted unless the
state-court adjudication 'resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the
United States' or 'resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence' before the state court." McElvanev v. Pollard , 735 F.3d 528, 532

(7th Cir. 2013) (quoting 28 U.S.C. $ 2254(d). For purposes of habeas relief, the Court reviews

"'the last reasoned opinion on the claim"' from the state court. Woolley v. Rednour, 702 F.3d

4ll,

421 (7th Cir. 20T2) (quoting Ylst v. Nlllnqmaker, 501 U.S. 797 , 803 (1991)).

"Generally, a petitioner must raise a claim in state court before raising
habeas

it

on federal

review. This exhaustion requirement includes raising both the broad claim . . . but also

the specific arguments and ooperative facts' within that claim." McNarv v. Lemke, 708 F.3d
905,919 (7th Cir. 2013) (internal quotation marks and citations omitted). 'oA habeas petitioner
who has exhausted his state court remedies without properly asserting his federal claim at each

level of state court review has procedurally defaulted that claim." Lewis v. Sternes, 390 F.3d
1019, 1026 (7th Cir. 2004). "Procedural default generally precludes a federal court from
reaching the merits of a habeas claim when the claim was not presented to the state courts and

it

is clear that the state courts would now find the claim procedurally barred." Bolton v. Akpore,
730 F.3d 685, 696 (7th Cir. 2013). A claim is also considered procedurally defaulted if the state

court denied a claim based "on a state law ground that is independent ofthe federal question and
adequate to support the

In either

judgment." Coleman v. Thompson, 501 U.S. 722,729 (1991).

case, however, "[p]rocedural default may be excused

. . . if the petitioner

can

show both cause for and prejudice from the default, or can demonstrate that the district court's

failure to consider the claim would result in a fundamental miscarriage ofjustice." Bolton, 730
F.3d at 696. *A prisoner may demonstrate cause for a procedural default by showing 'that some

objective factor external to the defense impeded . . . efforts to comply with the State's procedural

rule."'

Crank v. Duckworth, 969 F.2d 363, 365 (7th Cir. 1992) (quoting Mul::ay

U.S. 478, 488

(1985).

v. Canier, 477

"Prejudice means, an effor which so infected the entire trial that the

resulting conviction violates due process." Smith v. McKee, 598 F.3d 374,382 (7th Cir. 2010)
(internal quotation marks and citation omitted). Lastly, in order to demonstrate a fundamental
miscarriage ofjustice, a habeas petitioner must show "that aconstitutional violation has probably
resulted in the conviction of one who is actually innocent" such that "no reasonable juror would
have convicted [the petitioner] in the light of the new evidence." Id. at 387 (internal quotation
marks and citation omitted).

B. Thomas's Claims
In the instant motion, Thomas

raises three grounds

for relief: (1) that the trial court

violated his right to due process by failing to hold a fitness hearing because there was a bona fide

9

doubt as to his fitness to stand trial; (2) that the prosecution committed a Brady violation when it

failed to disclose that a Chicago police officer had been informed by local gang members that
Pinkston was the actual shooter; and (3) that he is actually innocent based on five different pieces

ofevidence.

1. Fuilure to Conduct a Fitness Hearing
First, Thomas argues that because there was a bona fide doubt as to his fitness to stand

trial, the trial court violated his Fourteenth Amendment right to due process when it failed to
conduct a fitness hearing. "'Where there is substantial reason to doubt the defendant's fitness,
due process obligates the trial judge sua sponte to order a competency hearing." Sturegon v.
Chandler, 552 F.3d 604, 612 (7th Cir. 2009) (internal quotation marks and citations omiued).
Thomas raised this issue on direct appeal, and it was rejected by the Illinois appellate court. As
discussed above, the decision of the Illinois appellate court on this issue

will not be disturbed

unless its decision "'resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the
United States' or oresulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence' before the state court." McElvaney, 735 F.3d at 532 (quoting 28

U.S.C. 5 2254(d)).

"A state court decision is contrary to clearly established

federal law

if

the

court applies a rule that plainly contradicts the Supreme Court's governing rule or if it comes to a

result different than did the Supreme Court on substantially identical
Richardson, No. 13-1833,2014 U.S. App. LEXIS 8615,

facts." Avila

v.

at*6 (7th Cir. May 7,2014) (citing

Williams v. Taylor, 529 U.S. 362,405-06 (2000).

At a court appearance prior to trial, Thomas's attorney

requested a clinical behavioral

examination of Thomas to determine his fitness to stand trial, as well as to determine his sanity at

l0

the time of the offense. Counsel informed the court that Thomas was on medication during one

of his visits to the jail, that he had been receiving psychiatric treatment while in custody, and that
he had received psychiatric treatment in the past but was no longer taking medication. Counsel

further told the court that Thomas was unable to cooperate with him and that he was unsure how
much Thomas understood. The court then granted Thomas's request for a fitness examination.
The court received the report from Thomas's fitness exam on May 20,2002. The report
found that Thomas was fit to stand trial, he understood the charges against him, he was able to
comprehend the nature of the courtroom proceedings, he correctly defined the roles of various

courtroom personnel, he displayed the capacity to assist his attorney in his defense, and he was
sane at the time

of the incident and not under the influence of psychotropic medication. After

reviewing the report the following discussion took place:

THE COURT: * 'e {< We have an indication by the Psychiatric Institute that after
examination, according to Doctor Guzman [sic] he is both fit for trial and was
sane at the time of the offense. What request is being made?
{' * * We were waiting for any discovery. The only thing I am
[State's Attorney]:
waiting for is an answer from the defense.
!f**

[Defense Counsel]: Mr. Thomas indicates to me as he was brought up [sic] on the
last court date, he wishes to go pro se. Obviously you have to admonish him and
ask him if this is truly his desire.
State Court Record Ex. A, at p. 18. The court then discussed Thomas's request to proceed pro
se, and took a short recess. When the case was recalled, Thomas's attorney asked

for a jury trial.

On appeal, Thomas argued that the trial court expressed a bona fide doubt as to his fitness

to stand trial by granting his request for a fitness examination, and thus, the court erred by failing
to hold a fitness hearing. The appellate court applied the Illinois standard with respect to fitness
to stand trial.

11

In Illinois, a defendant is presumed fit to stand trial and is considered unfit only if
his mental or physical condition prevents him from understanding the nature and
purpose of the proceedings against him or assisting in his own defense. When a
bonafide doubt as to defendant's fitness to stand trial exists, the court must order
a fitness hearing to resolve the question of fitness before the case proceeds any
further.
People v. Hill, 803 N.E.2d 138, 143 (Ill. App. Ct. 2003) (internal citations omitted). The Illinois
standard for fitness comports with the constitutional obligations of due process. See Dusky v.

United States, 362 U.S. 402, 402 (1960) ("[T]he test must be whether [the defendant]
suffrcient present ability

to

consult with his lawyer with

understanding-and whether he has

a

reasonable degree

of

has

rational

a rational as well as factual understanding of the

proceedings against him." (internal quotation marks and citation omitted)); see also Sturgeop v.

Chandler, 552 F.3d 604, 610 (7th Cir. 2009). Thus, the appellate court did not unreasonably
apply federal law with respect to the fitness standard. Nor did the decision of the appellate court

involve an unreasonable determination of the facts before

it.

As discussed above, the appellate

court's factual determination is presumed correct unless rebutted by clear and convincing
evidence. 28 U.S.C. $ 225a(e)(1). The court found that, "[a]lthough the [trial] court did not
expressly state that it found defendant fit, by proceeding with trial, the court implicitly found no

bonafide doubtastodefendant'sfitness." StateCourtRecordEx.A, atp. 19. Thisfindingis
wholly supported by the evidence, and therefore, is presumed to be correct. The record shows
that the trial court and the parties reviewed Thomas's fitness evaluation which concluded, inter

alia, that Thomas was indeed sane at the time of the offense, fit to stand trial, capable of
participating in his defense, and able to communicate with his attorney. The trial court then
asked the parties

if they had any requests with

respect to the

report. The prosecution deferred to

counsel for Thomas, who abandoned the issue of fitness as resolved, and moved on to having a

trial date set. In addition, the appellate court notes that the trial court had the benefit of
t2

communicating with Thomas regarding his right to proceed pro se, and that in doing so, Thomas
demonstrated a clear understanding of the proceedings which created no doubt as to his fitness to
stand

trial.

Indeed, Thomas has amply demonstrated his fitness and comprehension of the legal

proceedings against him through his many pro se filings before all levels of the state court and

this Court. Because the decision of the Illinois appellate court was not contrary to federal law or
based upon an unreasonable determination of the facts, Thomas's petition for habeas relief on

this issue is denied.

2. Bradv Violation
Next, Thomas argues that his constitutional rights were violated because the

state

violated Brady by failing to disclose that a Chicago police officer had been informed by local
gang members that Pinkston committed the murder, not Thomas. The state argues that, among
other things, this claim is procedurally baned because it was dismissed by the state court on an
independent and adequate state-law ground. See Coleman, 501 U.S. at729.

Thomas first raised his purported Brady claim in his motion to file a successive postconviction petition in state court, which the trial court denied. On appeal, the court affirmed and
found that Thomas was unable to establish cause for failure to bring the claim in his initial postconviction petition as required by the Illinois statute governing post-conviction procedures. See
725

lll. Comp. Stat. 51122-1(f) ("Only

one petition may be filed by a petitioner under this Article

without leave of court. Leave of court may be granted only if

a

petitioner demonstrated cause for

his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice

results from that

failure.").

Because Thomas's Bradv claim was dismissed based on an

independent and adequate state law, his claim is likewise procedurally defaulted on federal
habeas review.

13

Procedural default, however, can be excused

"if

the petitioner can show both cause for

and prejudice from the default, or can demonstrate that the district court's failure to consider the

claim would result in a fundamental miscarriage of justice." Bolton, 730 F.3d at 696. With
respect to cause, Thomas may "demonstrate cause for a procedural default by showing that some

objective factor external to the defense impeded . . . efforts to comply with the State's procedural

rule." Crank,

969 F.2d at 365 (internal quotation marks and citation omitted). Thomas claims

that he did not have sufficient evidentiary support to include his Brady claim in his first post-

conviction petition before the state court because he did not know from whom his attorney
received the information about Pinkston. When he filed his motion for a successive petition,

Thomas argued that he now had an affidavit

to support his claim, which was previously

unavailable. The affrant, attorney Gayle Thorn, said that "in the course of her investigation, she
spoke

with [Thomas's] trial counsel who told her that

a man named George or Jorge

who worked

in the neighborhood told him that Officer Massi was informed by some gang members that
Pinkston committed the murder." State Court Record Ex. U, at

p. 12. As the appellate court

found, this affidavit contains nothing more than another layer of hearsay on top of his trial
attorney's original letter to the assistant state's attorney, which he attached to his first postconviction petition. More importantly, Thomas fails to explain how he was impeded from
producing an affidavit from Officer Massi or from the person who told Officer Massi that
Thomas did not commit the murder-assuming that person had personal knowledge

of

the

events. Accordingly, Thomas fails to establish cause to overcome the procedural default of his
Brady claim.

t4

3. Actual Innocence
Finally, Thomas argues that he is actually innocent. To establish the requisite probability

of innocence, "the petitioner must show that it is more likely than not that no reasonable juror
would have convicted him in the light of the new evidence." Smith, 598 F.3d at 387-388
(internal quotation marks and citation omitted). It is unclear whether Thomas intends this as an
argument to establish a fundamental miscarriage ofjustice to overcome the procedural default

of

his Brady claim, or whether he argues it merely as a free-standing claim. See McQuiggin v.
Perkins, 133 S. Ct. 1924,

l93l

(2013) (regarding a fundamental miscarriage of justice, "a

credible showing of actual innocence may allow a prisoner to pursue his constitutional claims . . .

on the merits notwithstanding the existence of a procedural bar to
Thomas alleges that there are five items

relief'). In either case,

of evidence which support his innocence: (l)

the

January 12,2005 letter from his attorney to the assistant state's attorney describing the hearsay
information that he received after Thomas's trial which implicated Pinkston in the murder; (2) a

2007 affrdavit from Margaret Betts, wherein she describes a telephone conversation that she
overheard between Thomas and Detective Tony Villardita (whom she refers to as "Detective

Tony "Villdita") where Villardita allegedly told Thomas that Officer Massi was told by several
people that Thomas did not commit the murder; (3) a Chicago Police Department ("CPD") report

describing Cruz's complaint that Thomas slapped her after arguing over money, which lists the
date and time of the occurrence as approximately 1:15 a.m. on September 23,2001; (4) a CPD
Progress Report dated September 24,200I, which states that Cota, awitness and friend of the

victim, had described

a

picture of Pinkston as resembling the shooter as an "8" on a scale of 1 to

10, but that the shooter was a

little older; and (5) a CPD Supplementary Report which states that,

15

at one point, witnesses Percz and Hoyos said that the shooter had a dark complexion and a short

afro-style haircut.
As an initial matter, the Court notes that these evidentiary items are not newly discovered
as the majority were available

to Thomas at the time of trial, and all were available during the

post-conviction proceedings in state court. In any event, as the state court found, the letter from
Thomas's trial counsel to the assistant state's attorney is unsubstantiated and contains nothing

but hearsay. The affidavit of Margaret Betts fairs no better, as it is also based on layers of
uncorroborated hearsay. Thus, the first two evidentiary items, containing vague and unsupported
allegations are insufficient to establish actual innocence.

With respect to the police report memorializing Cruz's complaint that Thomas hit her,
Thomas argues that it proves his alibi defense that he was not on the north side of the city during

the shooting. The Cruz police report, however, lists the time of the battery as l:15 a.m., and the
shooting was called into police at2:25 a.m. At most, the report shows only where Thomas may

have been over an hour before the shooting. Furthermore, during trial, the jury heard Cruz's
testimony regarding the timing of this incident and heard other testimony in support of Thomas's

alibi defense-which the jury rejected. Accordingly, this evidence does not rise to the level of
that required to establish a claim of actual innocence.

As to the two remaining reports regarding

witnesses Cota, Hoyos, and Perez's

descriptions of the shooter, this asserted evidence likewise fails to establish Thomas's innocence.

Cota did not identifu Pinkston as the shooter; he merely said that he resembled the shooter, but
that the shooter was a little older. And while Hoyos and Perez may have incorrectly described

Thomas's complexion and haircut

in one report, they-along with Cota and two other

witnesses-positively identified Thomas as the shooter in a photo array, a live line-up, and in

t6

court.

Moreover, these witnesses testified at Thomas's

trial and were subject to

cross-

examination. In sum, Thomas's evidentiary items, whether viewed singularly or as a whole, fail

to establish his claim of actual innocence. Thus, this argument is insufficient to overcome the
procedural default of Thomas's Brady claim, and fails as a free-standing claim to the extent that
such a claim is cognizable.

III. CONCLUSION
For the foregoing reasons, Thomas's petition for habeas relief pursuant to $ 2254 is

denied.

Because Thomas can neither o'make

a substantial showing of the denial of

a

constitutional right," nor show 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," Slack v. McDaniel, 529

U.S. 473, 484 (2000), the Court denies a Certificate of Appealability.

IT IS SO ORDERED.

CHARLES RONALD NORGL
United States District Court

DATE: Iune 17,2014

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