Fergerson v. Shaw et al

Filing 72

MEMORANDUM Opinion and Order Signed by the Honorable Matthew F. Kennelly on 2/22/2012 71 .Mailed notice(smm)

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

UNITED STATES OF AMERICA ex rel.
RAY FERGERSON,
Petitioner,
vs.
MIKE ATCHISON, Warden,
Respondent.

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Case No. 09 C 2105

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
An Illinois jury convicted Ray Fergerson of first-degree murder. The trial judge
sentenced him to a prison term of life without parole. Fergerson has petitioned this
Court for a writ of habeas corpus under 28 U.S.C. § 2254. He contends that the
prosecution withheld material exculpatory evidence from him and used perjured
testimony and that his trial and appellate counsel rendered ineffective assistance.
Respondent has moved to dismiss Fergerson’s petition as untimely and on the ground
that certain of his claims are not sufficiently specific. For the reasons stated below, the
Court denies respondent’s motion to dismiss.
Background
Willie Bibbs was murdered on June 14, 1981 on the south side of Chicago.
Prosecutors initially tried Earl Hawkins, a member of the El Rukn gang, for the murder,
and a jury acquitted him.
Prosecutors later charged Hawkins and a fellow gang member in an unrelated

double homicide. They were tried in a bench trial before Circuit Court Judge Thomas
Maloney. Before trial, Hawkins’s lawyer arranged to pay Maloney $10,000 to ensure a
not guilty verdict. People v. Hawkins, 181 Ill. 2d 41, 47, 690 N.E.2d 999, 1001 (1998).
The lawyer delivered $10,000 in cash to Maloney on the first day of the trial. Maloney,
however, was concerned about an ongoing FBI investigation into bribery in the Chicago
courts, so he returned the money. Maloney then found both defendants guilty. He
sentenced Hawkins to death on September 19, 1986. Id. at 45, 690 N.E.2d at 1001.
Chicago Police Detective Daniel Brannigan observed parts of Hawkins’s trial. He
was working with the federal government because the FBI suspected that Maloney was
accepting bribes. After the conclusion of the trial, Hawkins contacted Brannigan while
his appeal was still pending. He offered to help Brannigan, in exchange for getting help
himself.
In 1988, Fergerson and three other members of the El Rukn gang were tried for
the Bibbs murder. Hawkins testified against them as a witness for the prosecution. He
admitted that he wanted to benefit from his testimony but said that the government had
not promised him anything. The jury convicted Fergerson and the others on November
18, 1988.
After Fergerson’s conviction, he appealed to the Illinois Appellate Court, which
affirmed the conviction on June 4, 1993. Respondent claims that Fergerson did not file
a petition for leave to appeal (PLA) with the Illinois Supreme Court, and Fergerson does
not contest this fact. Fergerson’s exhibits, however, include a letter from his public
defender stating that the Supreme Court denied his PLA on October 6, 1993. Pet.’s
Resp. at 70.
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In 1991, a federal grand jury indicted Maloney for several bribery-related
offenses. Hawkins, who was still under a sentence of death, agreed to testify as a
witness against Maloney. At some point, Hawkins pleaded guilty to federal criminal
charges as part of plea agreement under which he also promised to cooperate with
federal and state authorities. Id. at 74, 77. A federal jury convicted Maloney on April
16, 1993. United States v. Maloney, 71 F.3d 645, 652 (7th Cir. 1995).
After Maloney was convicted, Hawkins initiated a post-conviction proceeding in
state court seeking to have his murder conviction vacated. On January 29, 1998, the
Illinois Supreme Court vacated Hawkins’s conviction and ordered a new trial. Hawkins,
181 Ill. 2d at 64, 690 N.E.2d at 1009. Prosecutors declined to seek the death penalty
on retrial, and Hawkins eventually pleaded guilty in exchange for a sentence that gave
him the possibility of parole when he turns seventy-two.
In early February 1998, Fergerson received a letter from his former public
defender telling him that Hawkins’s conviction had been vacated. The public defender
attached a newspaper article about Hawkins’s case. He suggested that Fergerson
seek post-conviction relief on the basis that prosecutors had not disclosed to him at the
time of his trial that Hawkins had tried to bribe a judge and was likely to have his
conviction overturned.
Fergerson filed a pro se petition for post-conviction relief in state court on March
25, 1998. The trial court dismissed the petition as frivolous on June 23, 1998.
Fergerson appealed, and the Illinois Appellate Court reversed in 2001. On remand, the
state trial court held an evidentiary hearing on Fergerson’s claims. The court denied
the petition after finding that Fergerson had not shown that prosecutors withheld any
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significant evidence. Fergerson appealed, and Illinois Appellate Court affirmed on April
18, 2008. The Illinois Supreme Court denied his PLA on September 24, 2008.
Fergerson filed a successive post-conviction petition in state court, and the trial
court denied it on March 6, 2009. Fergerson appealed. The Illinois Appellate Court
affirmed on November 24, 2010, and the Illinois Supreme Court denied his PLA on July
5, 2011.
Discussion
Respondent claims that two of Fergerson’s claims are insufficiently detailed and
that the entire petition is untimely.
A.

Sufficiency of petition
A habeas petition must “specify all the grounds for relief available to the

petitioner” and “state the acts supporting each ground.” Rule 2(c), Rules Governing
Section 2254 Cases in the United States District Courts. Notice pleading is insufficient
in habeas corpus proceedings. United States ex rel. Anderson v. Hardy, 779 F. Supp.
2d 816, 826 (N.D. Ill. 2011). Respondent argues that the Court should dismiss
Fergerson’s claims that the prosecution used perjured testimony and withheld material
exculpatory evidence in violation of his due process rights because his petition violates
Rule 2(c) by failing to set out sufficient facts to support those claims. See Adams v.
Armontrout, 897 F.2d 332, 333–34 (8th Cir. 1990) (district court properly dismissed
petition that merely referred generally to the state court record to support six claims).
Fergerson states in his petition that the prosecution withheld material exculpatory
evidence in violation of his due process rights. Brady v. Maryland, 373 U.S. 83, 87

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(1963). The petition does not, however, indicate what evidence the prosecution
suppressed. Similarly, Fergerson does not include any facts related to his perjury claim
in the petition beyond the statement that “the state[’]s witness in chief” committed
perjury. Pet. at 7. The petition does not identify who the state’s witness in chief was by
name. Standing alone, Fergerson’s habeas petition does not sufficiently describe his
Brady or perjury claims. See United States ex rel. Holland v. Rednour, 761 F. Supp. 2d
776, 785 (N.D. Ill. 2010) (denying perjury and Brady violation claims because petition
provided no facts to support them).
Fergerson’s response to respondent’s motion to dismiss, however, sufficiently
indicates the factual basis for his Brady and perjury claims. See Carter v. Ryker, No. 10
C 3783, 2011 WL 589687, at *10 (N.D. Ill. Feb. 9, 2011) (noting that petitioner’s claim
did not comply with Rule 2(c), but using petitioner’s reply to understand factual basis
and address claim on the merits); Etienne v. Weber, No. 97 C 5647, 1999 WL 417354,
at *3 (N.D. Ill. June 16, 1999) (denying under Rule 2(c) claim that was not supported by
either habeas petition or supporting memorandum). The response makes clear that
Fergerson believes that Hawkins’s testimony at Fergerson’s trial, particularly Hawkins’s
statements that he had no deal with the government and expected to be executed, was
false and the prosecution knew it. Likewise, the response reflects that Fergerson’s
Brady claim is that the prosecution withheld evidence related to the fact that Hawkins
was working with government investigators and had attempted to bribe Maloney.
In short, the response contains is sufficient factual detail so that the Court is not
required to “review the entire state court record . . . to ascertain whether facts exist

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which support relief.” Adams, 897 F.2d at 333. Respondent has “a meaningful
opportunity to answer [petitioner’s] allegations,” and the Court will be able to address
the merits of the claim. United States ex rel. Beyah v. Gramley, No. 98 C 1865, 1998
WL 867411, at *11 (N.D. Ill. Dec. 3, 1998). Indeed, even before receiving Fergerson’s
response, respondent was able to surmise the facts on which Fergerson based his
Brady claim and incorporate them into the timeliness argument.
“Pro se habeas petitions . . . are to be afforded generous interpretation and
construed liberally.” Jones v. McKee, No. 8 C 4429, 2010 WL 3522947, at *5 n.6 (N.D.
Ill. Sept. 2, 2010). Considering Fergerson’s habeas petition and response to the motion
to dismiss in this light, he has provided sufficient facts to describe his Brady and perjury
claims.
B.

Timeliness
Under 28 U.S.C. § 2244(d)(1),
A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from filing
by such State action;
...
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.

Respondent contends that Fergerson’s judgment became final on June 25, 1993,
twenty-one days after the denial of his direct appeal, when the time to file an affidavit of
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intent to file a PLA expired. Ill. Sup. Ct. Rule 315(b) (1993) (amended 2006). At the
latest, Fergerson’s judgment became final when the Illinois Supreme Court denied any
PLA that he filed, which his public defender stated occurred on October 6, 1993. Pet.’s
Resp. at 70. Because his judgment became final before the effective date of the
Antiterrorism and Effective Death Penalty Act (AEDPA), April 24, 1996, Fergerson
benefitted from a one-year grace period after AEDPA’s effective date, and thus he
could have filed a habeas corpus petition until April 24, 1997. Araujo v. Chandler, 435
F.3d 678, 680 (7th Cir. 2005). Fergerson did not file his first state post-conviction
petition until March 25, 1998, after the limitations period for a federal habeas petition
had already expired, so the state petition did not toll his limitations period. De Jesus v.
Acevedo, 567 F.3d 941, 943 (7th Cir. 2009). Accordingly, if the beginning of
Fergerson’s limitations period is set by subsection 2244(d)(1)(A), his petition is
untimely.
Fergerson contends that the beginning of his limitations period should be
determined by subsection 2244(d)(1)(B) or 2244(d)(1)(D) because the state impeded
his ability to file the petition or the factual predicates of his claims were not available to
him through the exercise of due diligence. Subsection 2244(d)(1)(B) covers situations
in which the state creates an impediment that prevents a petitioner from filing any
habeas corpus petition. Moore v. Battaglia, 476 F.3d 504, 506–08 (7th Cir. 2007)
(inadequate law library could constitute impediment preventing petitioner from filing);
Lloyd v. Vannatta, 296 F.3d 630, 632–33 (7th Cir. 2002) (considering whether state’s
failure to provide trial transcript was an impediment that prevented petitioner from filing);

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see Ramirez v. Yates, 571 F.3d 993, 1001 (9th Cir. 2009) (impediment must have
“altogether prevented him from presenting his claims in any form, to any court”
(emphasis in original)). Fergerson does not actually contend, however, that the state
impeded his ability to file a habeas corpus petition. Rather, he contends that he was
not aware of the facts on which his claims are based—specifically, the prosecution’s
alleged concealment of facts concerning Hawkins—until his former public defender sent
him a letter and news story in February 1998. Thus, his real argument is that the time
the limitations period began to run should be determined under 28 U.S.C. §
2244(d)(1)(D).
To determine whether a habeas petition is timely under subsection
2244(d)(1)(D), the Court “must consider two issues, first, the date on which [petitioner]
discovered the factual predicate of his claim, and second, whether [petitioner] exercised
due diligence in discovering this information.” Moore v. Knight, 368 F.3d 936, 939 (7th
Cir. 2004). Section 2244(d)(1)(D) does not “require the maximum feasible diligence,
but only due, or reasonable diligence.” Id. at 940 (internal quotation marks omitted).
Respondent does not contest Fergerson’s contention that he did not actually discover
the factual predicate of his claim until February 1998. Instead, respondent argues that
Fergerson could have discovered Hawkins’s bribe and participation in Maloney’s
criminal trial earlier if he had been diligent.
The details of Hawkins’s involvement in Maloney’s prosecution were discussed
by the Seventh Circuit in its November 29, 1995 decision affirming Maloney’s
conviction. See Maloney, 71 F.3d at 651–54. The court discussed how Hawkins’s
lawyer had arranged to pay $10,000 to Maloney for a not guilty verdict and that
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Maloney later returned the money. Id. at 651. The Seventh Circuit also discussed
evidence that the United States Attorney’s Office had given preferential treatment to
Hawkins and other members of the El Rukns who cooperated, including “facilitat[ing]
drug usage, sexual liaisons, and extensive personal phone calls,” as well as the fact
that this evidence was never disclosed to Maloney’s defense lawyers. Id. at 653. The
decision noted that several federal district court judges had ordered new trials in other
cases involving the testimony of cooperating El Rukn witnesses because this evidence
had not been disclosed. Id. at 652. Respondent also notes that the facts upon which
Fergerson bases his claims were available even earlier, because the district court
issued an unpublished opinion in Maloney’s case discussing Hawkins’s cooperation.
See United States v. Maloney, No. 91 CR 477, 1994 WL 96673, at *2–3 (N.D. Ill. Mar.
23, 1994).
Respondent contends that at the latest, the facts necessary to Fergerson’s
claims were available when the prison library received the volume of the Federal
Reporter containing the Seventh Circuit’s Maloney decision. An affidavit from a
litigation coordinator, Lora Haven, at the Stateville Correctional Center (where
Fergerson was incarcerated) states that the law library received a copy of that volume
on March 29, 1996. Resp. Ex. J.
The Court’s inquiry into due diligence, however, “should take into account that
prisoners are limited by their physical confinement.” Moore v. Knight, 368 F.3d at 940
(prisoner acted with due diligence even though he waited more than a year for friend
who was not imprisoned to investigate allegations that jury had ex parte

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communications with judge); accord Ryan v. United States, 657 F.3d 604, 607 (7th Cir.
2011) (in section 2255 case, prisoner could have been diligent even if it took two
months to learn that attorney had not filed appeal). “Unlike the general population
which has greater access to court opinions, prisoners must rely exclusively upon the
prison law library to discover information contained in new cases.” Easterwood v.
Champion, 213 F.3d 1321, 1323 (10th Cir. 2000).
Even though a copy of the Federal Reporter volume containing the Maloney
decision was in the prison library, Fergerson had no reason to know that this
volume—or, for that matter, any material in the library—contained information that
would allow him to bring the claims in his habeas corpus petition. Respondent’s
argument essentially would require that a petitioner read every volume of each case
reporter in the prison library as it arrives or face a finding of lack of diligence. That
might not even be physically possible, because prisoners lack unlimited access to the
prison library. In any event, this is not required for a prisoner to be considered to have
exercised due diligence. See Wilson v. Beard, 426 F.3d 653, 661 (3d Cir. 2005) (due
diligence did not require prisoner to monitor local news twelve years after conviction
when there was no reasonable basis to conclude that local news would provide
information on prisoner’s case); Poole v. Woods, No. 08-cv-12955, 2011 WL 4502372,
at *17 (E.D. Mich. Aug. 9, 2011) (“[T]his Court does not equate reasonable diligence
with requiring petitioner to regularly scour the Detroit Free Press and Michigan Court
Reporters more than a half-decade after his direct appeal was exhausted in the offchance that something unforeseeable yet useful to his case would be found.”).

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Similarly, due diligence does not require that Fergerson locate and read all unpublished
opinions of federal district courts, particularly when there is no evidence that the prison
library even possessed copies of the opinions.
Respondent has provided no information available to Fergerson that would have
put him on notice that a court had said something about Hawkins that might enable
Fergerson to challenge his conviction. Respondent’s argument is tantamount to
requiring a prisoner to hunt through haystacks trying to figure out whether one of them
might contain a needle. Due diligence does not require this. On the present record,
there is no basis upon which the Court can find that Fergerson could have discovered
the facts forming the basis for his claims with due diligence before he received the letter
from his former attorney telling him that Hawkins’s conviction had been vacated.
Respondent argues that in Easterwood, the Tenth Circuit decided that a prisoner
could have found facts contained in a court decision by exercising due diligence once
the library had received a copy of that decision. 213 F.3d at 1323. In that case,
however, no party argued that the limitations period under section 2244(d)(1)(D) began
to run at any time after the prison library received a copy of the decision. The petitioner
had been convicted when the jury believed an expert witness who testified that the
petitioner was not insane at the time of the crime and was competent to stand trial. Id.
at 1322–23. A Tenth Circuit case, not related to the petitioner’s case, stated that the
expert was suffering from untreated bipolar disorder and his diagnostic judgment was
not trustworthy. Id. at 1323. The district court determined that petitioner’s limitations
period began to run as soon as the Tenth Circuit decision was issued. Id. When the
petitioner appealed, he argued only that his limitations period should not begin to run
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until the prison library received a copy of the Tenth Circuit decision. Id. The court
agreed, and remanded the case.
Thus in Easterwood, the court only recognized that due diligence could not
require a prisoner to gain access to a court decision before the prison library received a
copy. The court did not determine whether due diligence required a prisoner to read
every court reporter that the prison library received, because the prisoner did not argue
that it did not. See also Poole, 2011 WL 4502372, at *15–17 (recommending finding
that prisoner who learned of factual basis for claim from reading court decision in prison
library was diligent, but noting that due diligence does not require scouring court
reporters).
Respondent argues that even if the statute of limitations for Fergerson’s Brady
claim does not begin until February 1998, the rest of the petition is not timely. See
Pace v. DiGuglielmo, 544 U.S. 408, 416 n.16 (2005) (suggesting that timeliness under
section 2244(d)(1)(D) is determined separately for each claim); Fielder v. Varner, 379
F.3d 113, 118–20 (3d Cir. 2004) (holding that limitations periods under section
2244(d)(1)(D) are determined on a claim-by-claim basis because most statutes of
limitations work in that manner and otherwise a late accruing claim would allow older
untimely claims to be heard). Three of Fergerson’s other claims, however, also depend
on the knowledge that Hawkins was working with federal investigators and that he had
bribed Maloney. Fergerson’s perjury claim is that at his trial, Hawkins falsely testified
that he had no deals with the government and expected to die on death row and that
the prosecution knew the testimony was false. One of Fergerson’s ineffective

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assistance of trial counsel claims is that his counsel was ineffective because he did not
investigate enough to realize that the prosecution was using perjured testimony and
concealing exculpatory evidence. Fergerson’s ineffective assistance of appellate
counsel claim is that his appellate counsel did not raise the issue of ineffectiveness of
trial counsel. All of these claims depend on Fergerson’s knowledge of facts, Hawkins’s
involvement in the government investigation of Maloney and the vacating of Hawkins’s
conviction, that Fergerson could not have discovered with the exercise of due diligence
until after he received the letter from his former public defender.
Fergerson first learned of the factual basis for these claims via a letter dated
February 6, 1998. Pet.’s Resp. at 72. He filed his first petition for state post-conviction
relief on March 25, 1998. That petition tolled the limitations period until September 24,
2008, when the Illinois Supreme Court denied his PLA. Fergerson then filed his habeas
corpus petition on April 6, 2009. Only 241 days passed in which the limitations period
was not tolled, and thus Fergerson’s claims relating to Hawkins’s testimony are timely.
Fergerson also appears to contend that his trial counsel was ineffective because
he failed to call at trial six eyewitnesses who saw what happened at the scene of the
Bibbs’s murder. Unlike the claims related to Hawkins’s testimony, this information was
available to Fergerson through the exercise of due diligence at the time of his trial.
Fergerson provides a page from the trial transcript in which an attorney states that
defense investigators cannot find six witnesses. Pet.’s Resp., Ex. 1 at 25. The Court
concludes that the limitations period for any claim Fergerson brings in this regard is
determined by subsection 2244(d)(1)(A) and the limitations period expired on April 24,
1997.
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Conclusion
For the reasons stated above, the Court denies respondent’s motion to dismiss
[doc. no. 56], except with regard to petitioner’s apparent claim of ineffective assistance
due to trial counsel’s failure to call eyewitnesses. Respondent is directed to answer the
remaining claims on the merits by no later than March 29, 2012. Petitioner is directed
to reply to the response by no later than April 2, 2012.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: February 22, 2012

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