Fergerson v. Shaw et al

Filing 83

MEMORANDUM Opinion and Order Signed by the Honorable Matthew F. Kennelly on 9/18/2012. Mailed notice(vcf, )

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. For
the reasons stated below, the Court denies Fergerson’s petition and declines to issue a
certificate of appealability.
Background
A.

Murder and trial
Willie Bibbs was murdered on June 14, 1981 on 43rd Street in Chicago. In

October 1981, police arrested Earl Hawkins for the murder. Hawkins was a member of
the El Rukn gang and had been identified as present at the scene. Hawkins was tried,
and a jury acquitted him in 1982.

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. See 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. After a jury found no mitigating circumstances, Maloney sentenced Hawkins to
death on September 19, 1986. Id. at 45, 690 N.E.2d at 1001.
Chicago Police Detective Daniel Brannigan observed some of Hawkins’s trial.
Brannigan was working with the federal Bureau of Alcohol, Tobacco, and Firearms
(ATF) to investigate the El Rukns. As part of that work, he observed Hawkins’s trial
because the FBI suspected that Hawkins or his codefendant might attempt to bribe
Maloney. 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. Brannigan met with Hawkins. Brannigan later stated that he refused to make
any promises to Hawkins but told Hawkins that any cooperation would be presented to
the prosecutors.
In 1988, Fergerson and other members of the El Rukn gang were tried for the
Bibbs murder. Hawkins testified against them as a witness for the prosecution. He
stated that Jeff Fort, the leader of the El Rukns, held a meeting at which he ordered
gang members to shoot up 43rd Street and a bar located there as part of a dispute with
another gang. Hawkins acted as a lookout to tell the shooters that the coast was clear
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and to watch for police. According to Hawkins, Fergerson was one of the three
shooters and was to use a machine gun. At the scene, Hawkins stood on 43rd Street
while the three shooters made their way down an alley to the street carrying guns and
wearing ski masks. Hawkins saw one of the shooters, whom he identified as Derrick
Kees, peek around the corner of the alley twice and then fire five or six shots at Bibbs.
The shooters then ran back down the alley.
At trial, Hawkins testified that he had been sentenced to death for murder and
that his appeal in that case was before the Illinois Supreme Court. He acknowledged
that his testimony as a prosecution witness in the Bibbs case could be advantageous to
him should the Supreme Court reverse his death sentence. Hawkins also revealed that
he had been charged in another double homicide that prosecutors had chosen not to
prosecute, likely because of his cooperation. Defense counsel also showed that
Hawkins had lied about his role in the Bibbs murder when he was tried for the murder.
Hawkins admitted that he had continued to lie about the Bibbs murder after his acquittal
for the murder until he was sentenced to death for the double homicide and presumably
needed help from the police. Hawkins admitted that he wanted to benefit from his
testimony but said that the government had not promised him anything. The jury did
not hear any evidence related to Hawkins’s bribe of Maloney, because Fergerson and
the other defendants were unaware of it and received any information about it from the
prosecution.
Several witnesses corroborated parts of Hawkins’s testimony. Two witnesses to
the shooting identified Hawkins as a person who had been pacing back and forth on
43rd Street and nodded into the alley immediately prior to the shooting. They also
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stated that they had seen someone shoot Bibbs from the alley, but they were unable to
identify any of the shooters. Two other former members of the El Rukn gang testified
as well. Trammel Davis stated that he had seen Fergerson and other defendants at a
meeting with Fort on the day of Bibbs’s murder and that Fergerson had held a machine
gun. Anthony Sumner testified that he drove the shooters to the scene while another
gang member drove the guns separately. He saw Fergerson get the machine gun out
of the trunk of the other car and go down the alley with the other two shooters. Sumner
stated that he saw the shooters peer out of the alley twice and heard gun shots. The
shooters then ran back to his car, and he drove them away.
The jury convicted Fergerson on November 18, 1988.
B.

Appeal and post-conviction proceedings
After Fergerson’s conviction, he appealed to the Illinois Appellate Court along

with his codefendants. The court affirmed the conviction on June 4, 1993. People v.
Fort, 248 Ill. App. 3d 301, 320, 618 N.E.2d 445, 459 (1993). It is unclear whether
Fergerson filed a petition for leave to appeal (PLA) with the Illinois Supreme Court.
Respondent states that he has confirmed with the Supreme Court that Fergerson did
not file a PLA separate from his codefendants, but Fergerson has produced a letter
from his public defender stating that the Supreme Court denied his PLA on October 6,
1993. Pet.’s Resp. to Mot. to Dismiss at 70. At any rate, Fergerson states that he does
not challenge any decision of the Illinois courts on direct appeal.
In October 1989, Hawkins pled guilty to federal criminal charges as part of plea
agreement under which he also promised to cooperate with federal and state
authorities. In 1991, a federal grand jury indicted Maloney for several bribery-related
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offenses. Hawkins, who was still under an Illinois sentence of death, agreed to testify
as a witness against Maloney. A federal jury convicted Maloney on April 16, 1993. See
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,
despite several equitable arguments by the prosecution that Hawkins was not entitled to
a new trial, 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 initially sought the
death penalty against Hawkins in his second trial. After losing an interlocutory appeal in
the Illinois Appellate Court involving an evidentiary issue related to Hawkins’s
codefendant, but winning the issues that affected Hawkins, prosecutors reached a plea
agreement with Hawkins in exchange for his testimony against his codefendant. See
People v. Hawkins, 326 Ill. App. 3d 992, 762 N.E.2d 46 (2001). Hawkins pled guilty in
exchange for a sentence that gave him the possibility of parole when he turns seventytwo.
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

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25, 1998. His only claim was that the prosecution had suppressed material
impeachment evidence in violation of his due process rights. See Brady v. Maryland,
373 U.S. 83, 87 (1963). The trial court dismissed the petition as frivolous on June 23,
1998. Fergerson appealed with the assistance of counsel, and the Illinois Appellate
Court reversed in 2001.
On remand, the state trial court held an evidentiary hearing on Fergerson’s
claims. Fergerson, with the assistance of counsel, presented two claims: the
prosecution had violated Brady by failing to disclose that it knew that Hawkins had
attempted to bribe Maloney and had knowingly allowed Hawkins to give perjured
testimony when he said he had no deal to cooperate with the authorities. The trial court
denied the petition after finding that Fergerson had not shown that prosecutors withheld
any significant evidence or that Hawkins had a deal or understanding with the
prosecution at the time of the trial. Fergerson appealed, raising the same two issues
and contending that his post-conviction counsel had been ineffective in failing to call
Hawkins to testify. The Illinois Appellate Court affirmed on April 18, 2008. Fergerson
filed a PLA with the Illinois Supreme Court raising the same three issues. The court
denied his PLA on September 24, 2008.
Fergerson filed a pro se successive post-conviction petition in state court, and
the trial court denied it on March 6, 2009. Fergerson appealed, but his brief challenged
only the costs and fees imposed by the trial court. The Illinois Appellate Court affirmed
on November 24, 2010. Fergerson filed a PLA with the Illinois Supreme Court
challenging the fees, and the court denied his PLA on May 25, 2011.

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Discussion
In his habeas petition, Fergerson asserted four claims: the prosecution
suppressed material impeachment evidence related to Hawkins bribe of Maloney; the
prosecution knowingly allowed Hawkins to give perjured testimony; and he received
ineffective assistance of trial and appellate counsel because counsel failed to
investigate and determine that Hawkins had bribed Maloney and was committing
perjury. In his response to respondent’s motion to dismiss, Fergerson appeared to
assert that his trial counsel was also ineffective for failing to call six eyewitnesses. On
February 12, 2012, the Court determined that any such claim based on actions that
Fergerson was aware of at the time of his trial would be untimely. See 28 U.S.C. §
2244(d)(1). In his reply in support of his habeas petition, Fergerson also appears to
assert that his post-conviction counsel in state court provided ineffective assistance in
several ways. Ineffectiveness of post-conviction counsel, however, is not a ground for
relief under section 2254. Id. § 2254(I).
Respondent contends that Fergerson’s perjury and ineffective assistance of trial
and appellate counsel claims are procedurally defaulted. Respondent also contends
that all of the claims fail on the merits.
A.

Procedural default
“To obtain federal habeas review, a state prisoner must first submit his claims

through one full round of state-court review.” Johnson v. Hulett, 574 F.3d 428, 431 (7th
Cir. 2009). The petitioner “must have fairly presented the substance of [his] claims to
the state courts by articulating both the operative facts and applicable law that [he]

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claims entitle [him] to relief.” Id. “A 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.” Gonzales v. Mize, 565 F.3d 373, 380
(7th Cir. 2009) (internal quotation marks omitted). When a claim is procedurally
defaulted, it cannot be reviewed in federal court “unless the petitioner can demonstrate
both cause for and prejudice from the default or that a miscarriage of justice will occur if
[the Court does] not consider his claims.” See Woods v. Schwartz, 589 F.3d 368, 373
(7th Cir. 2009).
Fergerson never presented claims of ineffective assistance of trial or appellate
counsel to the state courts at any level, much less through one full round of state-court
review. In his direct appeal, Fergerson did not raise any issues related to
ineffectiveness of his trial counsel. Fort, 248 Ill. App. 3d 305–06, 618 N.E.2d 445,
459–50. In his initial post-conviction petition and the resulting evidentiary hearing,
Fergerson raised only his Brady and perjury claims, and he added a claim of
ineffectiveness of post-conviction counsel when appealing denial of that petition. In his
second post-conviction petition, Fergerson again did not claim that his trial and
appellate counsel had been ineffective. On appeal from denial of that petition, he
argued only that the trial court’s decision to impose costs on him should be overturned.
Fergerson contends that he can show cause for failure to present his ineffective
assistance claims to the state courts. “Cause for a default is ordinarily established by
showing that some type of external impediment prevented the petitioner from
presenting his claim.” Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010) (internal

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quotation marks omitted). Fergerson appears to contend that he did not discover
certain evidence demonstrating Hawkins’s perjury—in particular, Hawkins’s plea
agreement with the federal government and his federal grand jury testimony—until it
was too late to present his ineffectiveness claims to the state courts. Both Hawkins’s
plea agreement and his grand jury testimony, however, were available and known to
Fergerson in time for his post-conviction counsel to submit them as evidence before the
2005 evidentiary hearing in state court, and he did so. Resp. Ex. M at 88, 123.
Because Fergerson was able to use these documents to support his argument that
Hawkins had committed perjury at his trial, there is no good reason why he could not
have used the documents to contend and argue at the same time that his trial and
appellate counsel were ineffective.
Fergerson also cites the case of Martinez v. Ryan, 132 S. Ct. 1309 (2012), in
which the Supreme Court stated that “[i]nadequate assistance of counsel at initialreview collateral proceedings may establish cause for a prisoner’s procedural default of
a claim of ineffective assistance at trial.” Id. at 1315. The Court based its decision on
the fact that in Arizona, the state where the petitioner had been convicted, defendants
cannot raise claims of ineffective assistance of trial counsel until collateral, postconviction proceedings. Id. at 1316–19. The Court need not consider whether Martinez
would apply to an Illinois prisoner’s federal habeas corpus petition, because Fergerson
has not argued that his post-conviction counsel was ineffective for failing to raise
ineffectiveness of trial and appellate counsel or that such ineffectiveness is cause to
excuse his default. Fergerson argues that his post-conviction counsel was ineffective
because he failed to call Hawkins at the evidentiary hearing, failed to ask the trial judge
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to recuse himself, failed to call the trial judge as a witness, and failed to present
documentary evidence of Hawkins’s perjury. All of these contentions, however, appear
to be arguments in favor of granting his habeas petition. Fergerson does not offer them
to excuse his failure to present his trial and appellate ineffective assistance claims to
the state courts.
Fergerson also contends that the Court should consider his defaulted claims
because failure to consider them “would result in a fundamental miscarriage of justice,
namely, in a conviction of one who is actually innocent.” Woods, 589 F.3d at 373
(internal quotation marks omitted). A petitioner asserting actual innocence, however,
“must demonstrate his innocence. Indeed, he comes before the habeas court with a
strong—and in the vast majority of the cases conclusive—presumption of guilt.” Id. at
377 (emphasis in original; internal quotation marks, brackets, and citation omitted). “To
rebut this presumption, [he] must make a credible claim, supported by new, reliable
evidence of his innocence. He must establish that in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id.
(citation and internal quotation marks omitted).
Fergerson’s new evidence does not demonstrate that no reasonable jury would
have voted to find him guilty beyond a reasonable doubt. His new evidence further
impeaches Hawkins by showing that he bribed a judge. The new evidence also
suggests that Hawkins may have perjured himself when he talked about being under a
death sentence and agreed with the prosecutor’s statement that he could not be
executed twice, on the theory that Hawkins knew he was likely to have his conviction
and death sentence reversed because of Maloney’s bias. Trial Tr. at 4131, 4274. This
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evidence certainly reflects that Hawkins had a motive to lie and had a history of
corrupting the judicial process. Hawkins had already been significantly impeached at
Fergerson’s trial, however. The evidence at trial showed that Hawkins had lied about
his role in the Bibbs murder for several years, until, after a death sentence was
imposed, he decided that it was in his interest to cooperate with police. The evidence
at trial also showed that Hawkins had been implicated in two different double homicides
and spent time in prison for another killing he had committed in his teens. Id. at
4198–4200, 4217–18, 4224–25. Any reasonable juror would have understood that
Hawkins had a motive to help the prosecution in Fergerson’s case.
Nothing about the new impeachment evidence against Hawkins demonstrates
that no reasonable juror would have chosen to believe his story that Fergerson was one
of the three intended shooters the night of the Bibbs murder and that he had carried a
machine gun. Id. at 4104, 4116–17. Hawkins’s testimony about the shooting was
supported by that of Sumner, who also said that Fort had ordered Fergerson to take a
machine gun and shoot up 43rd Street and that Fergerson had walked down the alley
with the other two shooters and carried a machine gun. Id. at 4515, 4517–18, 4526–28.
In light of this evidence, even if Fergerson’s new evidence had further impeached
Hawkins, there is no basis to say that no reasonable juror would have voted to find
Fergerson guilty.
In sum, the Court concludes that Fergerson’s ineffective assistance of trial and
appellate counsel claims are procedurally defaulted and that the default is not excused
under the actual innocence exception.
Respondent also contends that Fergerson’s perjury claim is procedurally
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defaulted. Respondent concedes that Fergerson presented this claim to the state trial
court in his post-conviction petition. Fergerson contended that Hawkins had a deal or
expectation of a deal with federal and state authorities at the time of Fergerson’s trial
and that “[t]he State knowingly misled the jury by adamantly stating that there was no
deal, thus violating Fergerson’s due process rights.” Resp. Ex. M at 46.
Respondent contends, however, that this perjury claim was not presented in
Fergerson’s appeal from denial of his post-conviction petition or his PLA. The Court
disagrees. The facts Fergerson cited in his appeal briefs leave no doubt that he was
contending that the prosecution knowingly allowed Hawkins to give perjured testimony.
Fergerson’s appeal brief noted that Hawkins testified that he had not asked Brannigan
for any help in getting off death row, and Fergerson’s PLA stated that Hawkins testified
that he had received no promises about what might happen if he won his appeal.
Resp. Ex. P at 6, Resp. Ex. T at 6. The briefs then alleged that Hawkins was already
receiving benefits from his testimony, including that he had been placed in federal
custody instead of state custody and that Brannigan had told him that his cooperation
would be presented to state and federal prosecutors. Resp. Ex. P at 17–18; Resp. Ex.
T 14–15. Fergerson’s briefs therefore make it clear that he was, in fact, asserting a
claim that the prosecution allowed Hawkins to give perjured testimony. Accordingly,
Fergerson fairly presented his perjury claim at levels of the state post-conviction
process. This claim is not procedurally defaulted.
B.

Merits of the Brady claim
A person convicted in state court may obtain a writ of habeas corpus on a claim

that was adjudicated on its merits in state court only if the state court’s adjudication of
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the claim “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 presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1), (2); Griffin v. Pierce, 622 F.3d 831, 841 (7th Cir.
2010). In considering a claim in a habeas corpus petition, “a determination of a factual
issue made by a State court shall be presumed to be correct,” and the petitioner has
“the burden of rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
“A state court’s decision is contrary to clearly established federal law if the state
court applies a rule different from the governing law set forth in Supreme Court cases,
or if it decides a case differently than the Supreme Court has done on a set of
materially indistinguishable facts.” Woods, 589 F.3d at 377 (brackets and internal
quotation marks omitted). A decision “is an unreasonable application of clearly
established federal law if it correctly identifies the governing legal principle but
unreasonably applies it to the facts of the particular case.” Id. at 378 (internal quotation
marks omitted). The petitioner must show that the state court’s decision “was so
erroneous as to be objectively unreasonable.” Id. (internal quotation marks omitted).
Finally, a state court decision is considered to be based on an unreasonable
determination of the facts in light of the evidence presented if the petitioner is able to
rebut, by clear and convincing evidence, the presumption of correctness that applies to
state court fact-finding. See Miller-El v. Dretke, 545 U.S. 231, 240 (2005). “A state
court’s determination that a claim lacks merit precludes federal habeas relief so long as
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fairminded jurists could disagree on the correctness of the state court’s decision.”
Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (internal quotation marks omitted).
Fergerson contends that the prosecution suppressed impeachment evidence in
violation of his due process rights. In particular, he contends that the prosecution
concealed evidence that Hawkins had bribed Maloney and had a deal or understanding
with federal and state officials to testify in exchange for their assistance with his death
penalty case.
A Brady violation can be broken down into three basic elements: (1) the
evidence at issue is favorable to the accused, either being exculpatory or
impeaching; (2) the evidence must have been suppressed by the
government, either willfully or inadvertently; and (3) there is a reasonable
probability that prejudice ensued—in other words, materiality. Evidence is
suppressed when (1) the prosecution failed to disclose the evidence in
time for the defendant to make use of it, and (2) the evidence was not
otherwise available to the defendant through the exercise of reasonable
diligence.
Carvajal v. Dominguez, 542 F.3d 561, 566–67 (7th Cir. 2008) (citations and internal
quotation marks omitted).
The state appellate court adopted the reasoning and factual findings of the state
trial court in denying Fergerson’s Brady claim. Resp. Ex. S at 5–7. The trial court
reasoned that any claim that the prosecution had suppressed evidence failed because
the prosecution had not possessed the information and evidence that Fergerson
claimed it failed to disclose. Specifically, the state trial court found that at the time of
Fergerson’s trial, Brannigan was not aware of Hawkins’s bribery of Maloney, and the
prosecution had not agreed to and did not know of any deal or benefits given or
promised to Hawkins. Resp. Ex. S at 5–7.
The trial court based its decision on Brannigan’s testimony at the evidentiary
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hearing that he had not been aware of the bribe. The court found that this testimony
was not contradicted by statements Brannigan had given before Fergerson’s trial.
Resp. Ex. O at 5–7. The court also found that there was no evidence that Hawkins
actually had a deal or understanding with the government at the time of the trial. It
credited Brannigan’s testimony at the evidentiary hearing that he had made no
promises to Hawkins and noted that the Illinois prosecutors defended Hawkins’s death
sentence even after his bribe of Maloney was revealed and began to retry Hawkins
after the Illinois Supreme Court overturned the initial conviction. The Court concludes,
for the described below, that Fergerson has not shown by clear and convincing
evidence that the state court’s factual findings are incorrect.
At the evidentiary hearing, Brannigan stated that at the time of Fergerson’s trial,
he knew there had been an attempt to bribe Maloney during Hawkins’s trial, but he did
not know whether the attempt had been successful. Resp. Ex. DD(26) at 192–93.
Brannigan stated that the FBI’s investigation of Maloney was entirely separate from his
work on the El Rukn gang and that even the federal agents with whom he worked did
not know anything about a potential bribe. Id. at 198–99. Brannigan stated that he had
no access to information or reports from the FBI’s investigation. Id. at 200. Brannigan
admitted that he was asked to observe Hawkins’s trial before Maloney because the FBI
believed a bribe might be attempted. He said, however, that he had observed the trial
for only one or two days because it would look natural for an investigator connected to
the El Rukns to observe the trial for that amount of time. Brannigan stated that at the
time, he had no idea whether a bribe had occurred and knew no specifics. Id. at
202–03. 216–17. The state trial court found Brannigan’s statements credible.
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Fergerson contends that at a pretrial hearing, Brannigan gave contradictory
answers regarding whether he had any notes from interviews with Hawkins related to
the bribe. The statements, though ambiguous, are not clearly contradictory. Brannigan
initially stated that he knew that notes from interviews with Hawkins about a bribe
existed, but he attempted to distinguish between knowing the notes existed and having
access to them. Trial Tr. at 213. Brannigan later clarified that he had no access to
notes regarding any interviews, stating that “I am almost certain I do not have any such
notes. I would not have investigated that nor handled that.” Id. at 216. The state trial
court concluded that the first statement did not show that Brannigan had access to any
notes about the bribery or that he knew about it.
The Illinois Supreme Court, in overturning Hawkins’s conviction, stated that
Hawkins “testified that he brought the fact of the bribe to the attention of the Cook
County State’s Attorney’s and United States Attorney’s offices in 1987.” Hawkins, 181
Ill. 2d at 55, 690 N.E.2d at 1005. In Fergerson’s case, the Illinois Appellate Court found
that this statement was not contradictory to Brannigan’s testimony at the evidentiary
hearing that he knew that there was a bribery investigation involving Hawkins’s case,
but not any specifics. The court concluded that the prosecution in Fergerson’s case did
not know any specifics about Hawkins’s involvement at the time. Resp. Ex. S at 8–9.
The Court is required to presume the state appellate court’s factual finding is correct.
Furthermore, to the extent that Brannigan’s testimony at the evidentiary hearing and
Hawkins’s testimony in his own case are in conflict, it would hardly be unreasonable for
a state court to credit Brannigan’s version over Hawkins’s. Indeed, the very basis of
Fergerson’s petition is a contention that Hawkins lied.
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The Court makes no independent judgment regarding Brannigan’s credibility.
That is not the issue here. Rather, the Court upholds the state court’s finding in this
regard because that finding is presumed correct, and Fergerson has not presented
clear and convincing evidence to contradict it.
The state court also concluded that the prosecution at his trial did not know of
any deal or understanding with Hawkins and therefore could not have suppressed such
information. Fergerson has not presented clear and convincing evidence sufficient to
rebut this finding. The state court found that Hawkins had appeared before a federal
grand jury to testify about the El Rukns in April 1989 and pled guilty to federal offenses
in October 1989. The court noted that nothing suggested that he had a deal with
federal authorities in 1988, at the time of Fergerson’s trial. Resp. Ex. M at 206, 208;
Resp. Ex. O at 8. The court further noted that Hawkins’s federal plea agreement
expressly imposed no limits on state prosecutors in their ability to seek to uphold
Hawkins’s death sentence and allowed them to continue to seek the death penalty if his
initial conviction were overturned. Resp. Ex. M at 91–92; Resp. Ex. O at 9. The court
also noted that Brannigan had testified at both the trial and the evidentiary hearing that
he offered Hawkins no deal in exchange for testimony. Resp. Ex. O at 10. At trial,
Brannigan stated that “I emphatically told him I was not authorized to make any
promises to him.” Trial Tr. at 4776. At the evidentiary hearing, Brannigan confirmed
that he had told Hawkins that “we would welcome cooperation, but we can’t make any
promises,” although he acknowledged that Hawkins wanted to get off of death row.
Resp. Ex. DD(26) at 165, 188. The state court also noted that Hawkins, in his grand
jury testimony after the conclusion of the Fergerson trial, had stated that no law
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enforcement agency had made him any promises with regard to his testimony or his
cooperation in El Rukn investigations. Resp. Ex. M at 127.
Finally, the state trial court noted that state prosecutors had vigorously pursued
the death penalty against Hawkins. The court noted that this made it unlikely that they
had any implicit agreement to confer a benefit upon Hawkins in exchange for his
testimony. After Hawkins’s bribe of Maloney became public, the prosecution sought to
uphold Hawkins’s death sentence in an appeal to the Illinois Supreme Court, conceding
that Hawkins had not received a fair trial but arguing that for equitable reasons he was
not entitled to a new one. Hawkins, 181 Ill. 2d at 52, 690 N.E.2d at 1004. At the
evidentiary hearing in Fergerson’s case, a prosecutor who had worked on Hawkins’s
second trial stated that the prosecution continued to seek a death sentence for Hawkins
after he was granted a new trial. Resp. Ex. DD(26) at 269. The plea agreement that
Hawkins eventually received came after an evidentiary ruling by the state appellate
court in his codefendant’s favor, and it required only that Hawkins testify against his
codefendant in that case. Id. at 273. The prosecutor stated that the plea agreement
had nothing to do with Hawkins’s testimony in Fergerson’s case and that no federal or
state law enforcement official asked the prosecution to give Hawkins consideration for
any testimony or cooperation he had given. Id. at 272–73.
Fergerson contends that Hawkins’s federal plea agreement, which is also signed
by state prosecutors, demonstrates that there was an agreement at the time of
Fergerson’s trial in 1988. Resp. Ex. M at 93. The plea agreement is undated, but it
references Hawkins’s “testimony before the Special April 1987 Grand Jury.” Id. at 88.
Fergerson seems to contend that this means Hawkins’s testimony before the grand jury
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occurred in April 1987, before his trial. Contrary to Fergerson’s assertion, however, the
Special April 1987 Grand Jury did not hear testimony only in April 1987. Indeed, the
only evidence in the record of Hawkins testifying before the Special April 1987 Grand
Jury is a transcript dated April 27, 1989. Id. at 123. In that testimony, Hawkins stated
that he had already testified against Fergerson in the Bibbs murder case. Id. at
175–76. In addition, Hawkins’s federal plea agreement is signed by Cecil Partee in his
capacity as Cook County State’s Attorney. Id. at 93. Contemporaneous newspaper
stories show that Partee did not become state’s attorney until April 25, 1989. See
Charles Mount & Thomas Hardy, Partee starts as state’s attorney amid doubts he can
be elected, Chicago Tribune, Apr. 26, 1989, at C8; Charles Mount, County board picks
Partee Republicans vow challenge, Chicago Tribune, Apr. 25, 1989, at C1. Thus, the
evidence demonstrates that Hawkins entered into the plea agreement at some point
after he testified before the grand jury in April 1989. This was well after his testimony
against Fergerson.
The Court also notes that the jury in Fergerson’s case did hear evidence of the
dealings between Brannigan and Hawkins that provided a motive for Hawkins to falsify
his testimony. Testimony that was adduced at Fergerson’s trial showed jurors that
Hawkins hoped for a benefit through testifying and that he had not sought to testify until
he was in trouble because of his death sentence. The fact that this evidence came in
calls into serious doubt whether the additional evidence that Fergerson contends the
prosecution did not disclose was material. Carvajal, 542 F.3d at 567 (“Evidence is
material if there is a reasonable probability that, had the evidence been disclosed to the

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defense, the result of the proceeding would have been different.” (internal quotation
marks omitted)).
Hawkins admitted during his testimony at Fergerson’s trial that he reached out to
Brannigan by writing a letter after he received the death penalty and that he had not
told police about the Bibbs murder even though he had previously been arrested for it.
Trial Tr. at 4153–54, 4198–4200. Hawkins read his letter at Fergerson’s trial, stating
that it said, “I write you in hope that in the best interest of you and I can talk hoping you
and I can come to some mutual understanding that benefit both of us.” Id. at 4205.
Brannigan admitted at the trial that he had received the letter from Hawkins and that he
had gone to meet Hawkins in prison on account of the letter. Id. at 4775–76, 4784.
Hawkins testified that he had many meetings with Brannigan. Id. at 4228.
Hawkins admitted before Fergerson’s jury that he wrote in the letter that he
wanted something, a “benefit.” Id. at 4205–06. He was evasive when defense counsel
asked him what exactly he wanted, but he conceded that he did not merely want to
have a friendly conversation with Brannigan. Id. Hawkins testified that he would do
almost anything to get off of death row. Id. at 4224. He refused to answer certain
questions that he feared would harm his appeal. Id. at 4179–80. He acknowledged
that if he won his death penalty appeal, he would likely be tried again, and that
someone from the state’s attorney’s office would prosecute him. Id. at 4254–55. He
also acknowledged that cooperating with the prosecution in Fergerson’s case could
help him, although he expressed skepticism that it could get him off of death row. Id. at
4289. Hawkins admitted that he had not been taken to court on the other double

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homicide that he was implicated in since starting to cooperate with authorities, and he
acknowledged that even with one death sentence, avoiding a second was desirable.
Id. at 4193–96, 4287–88.
At Fergerson’s trial, Hawkins refused to state unequivocally that he contacted
Brannigan in hopes of getting help with his death sentence, stating only that he “wanted
to talk to [Brannigan].” Id. at 4206. Hawkins claimed that he had not asked Brannigan
for anything and had not been promised anything. Id. at 4232–34. As counsel for the
various defendants repeatedly pointed out to the jury, however, no reasonable person
could have thought that Hawkins suddenly began cooperating with police shortly after
receiving a death sentence, after years of lying about his own role in Bibbs’s murder
and concealing the roles of his fellow El Rukns, for any reason other than wanting help
in avoiding execution.
In short, the jurors had substantial evidence of Hawkins’s motives for
cooperating with the prosecution at all. It is highly questionable whether the evidence
that Fergerson contends was concealed was material.
The Court concludes that Fergerson has not shown by clear and convincing
evidence that the state court’s finding that no impeachment information was
suppressed was incorrect. The state court’s conclusion that there was no Brady
violation therefore was not based on an unreasonable determination of the facts. Nor
did the decision unreasonably apply federal law.
C.

Merits of the perjury claim
Fergerson contends that the prosecution knowingly allowed Hawkins to give

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perjured testimony, particularly when he testified that he had not been promised
anything by prosecutors. Fergerson also argues that Hawkins gave perjured testimony
when, after a prosecutor stated that the state “[c]an’t kill you twice, can they?,” Hawkins
responded “[y]ou said it.” Id. at 4274. Fergerson contends that Hawkins perjured
himself by agreeing with this statement despite knowing that he was likely to have his
death sentence reversed because it was imposed by Maloney after he returned the
bribe. The context makes clear, however, that by making this statement, the prosecutor
was attempting to counter allegations that Hawkins’s second double homicide case had
not been prosecuted because of his cooperation and was not simply suggesting that
Hawkins was credible because he had nothing more to lose. Id. at 4274.
“A conviction obtained through the knowing use of false testimony violates due
process.” Morales v. Johnson, 659 F.3d 588, 606 (7th Cir. 2011). “To obtain a new
trial, a petitioner must establish that: (1) there was false testimony; (2) the prosecution
knew or should have known it was false; and (3) there is a likelihood that the false
testimony affected the judgment of the jury.” Id. Fergerson contends that Hawkins
falsely testified that he did not have a deal with prosecutors. The state trial court,
however, concluded that Hawkins did not have an agreement or understanding with
prosecutors at the time of Fergerson’s trial and therefore that Hawkins had not given
false testimony. The court also found that prosecutors did not know of Hawkins’s bribe
of Maloney, and that they did not know about any false testimony Hawkins gave
regarding the likelihood of his death sentence being overturned. It based its decision
on the evidence discussed above in relation to the Brady claim, in particular the facts
that state prosecutors had attempted to uphold Hawkins’s death sentence and retry him
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until long after Fergerson’s trial and that one prosecutor testified that Hawkins’s
eventual plea agreement had nothing to do with the testimony that he provided at
Fergerson’s trial. Resp. Ex. O at 14, 17–18.
The Court concludes that Fergerson has not presented clear and convincing
evidence sufficient to rebut the presumption of correctness that applies to the state
court’s finding. There is no evidence to indicate that Hawkins had any sort of
agreement with prosecutors at the time of Fergerson’s trial. As with the Brady claim,
Fergerson argues that Hawkins’s federal plea agreement shows that he had an
agreement with prosecutors at the time of Fergerson’s trial. Again, however, the
evidence, including the fact that the state’s attorney who signed the federal plea
agreement was not appointed until April 1989, reflects that Hawkins entered into the
agreement sometime well after Fergerson’s 1988 trial. Further, as the state court
noted, the federal plea agreement expressly allowed state prosecutors to continue to
pursue the death penalty for the double homicide for which Hawkins had been
convicted. Resp. Ex. M at 91–92. Although state prosecutors agreed in Hawkins’s
federal plea agreement not to prosecute Hawkins for any other crimes for the time
being, they reserved the right to prosecute him for other crimes, including other
murders, if his sentence for the double homicide was ever reduced to less than life
without parole. Id. In addition, the fact that state prosecutors had apparently stopped
pursuing conviction of Hawkins for the other double homicide was revealed at
Fergerson’s trial. Tr. Trans. at 4193–96.
Hawkins may have been lying at Fergerson’s trial when he agreed with the
prosecutor’s statement that, because he had received a death sentence, prosecution
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for any other crime did not matter to him. Id. at 4274. He conceivably may have
understood even then that his death sentence ultimately would be overturned because
of the Maloney episode. The state appellate court concluded, however, that Brannigan
and other state officials did not know that Hawkins had successfully bribed Maloney,
even if they had some idea that Hawkins was cooperating in a bribery investigation.
Resp. Ex. S at 8–9. This conclusion is consistent with Brannigan’s statements before
Fergerson’s trial and at the evidentiary hearing. Again, the Court makes no
independent judgment regarding Brannigan’s credibility. The point is that Fergerson
has not presented clear and convincing evidence to overcome the presumption of
correctness that federal courts give to state court fact finding when deciding habeas
petitions. Miller-El, 545 U.S. at 240. Because the evidence does not reflect that
prosecutors knew that Hawkins was testifying falsely, the state trial court did not
unreasonably apply federal law when it determined that the prosecution did not violate
Fergerson’s due process rights.
In addition, Hawkins testified at Fergerson’s trial that state prosecutors had made
no promises to him regarding retrial in the event that his appeal of his conviction was
successful. Tr. Trans. at 4274–75. The state trial court found that this testimony was
true on the basis of the state’s continued attempts to prosecute Hawkins. Fergerson
has not presented clear and convincing evidence sufficient to overcome the
presumption of correctness that applies to that finding. Hawkins accurately informed
the jury that even if he won his appeal, he would still be subject to retrial and had been
given no promises regarding retrial. Thus it is unlikely that any false testimony he gave
(without the prosecution’s knowledge) regarding the chance that his death sentence
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would be overturned “affected the judgment of the jury.” Morales, 659 F.3d at 606.
In sum, the Court concludes that Fergerson has not presented clear and
convincing evidence that the state courts’ factual findings were incorrect. Accordingly,
the state court did not base its decision on an unreasonable determination of the facts
and did not unreasonably apply federal law when it concluded that the prosecution did
not violate Fergerson’s due process rights.
D.

Certificate of appealability
When a district court enters a final judgment adverse to a habeas corpus

petitioner, it must issue or deny a certificate of appealability (COA). Rule 11(a), Rules
Governing Section 2254 Cases in the United States District Courts. To obtain a COA, a
petitioner must make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). The petitioner must show “that reasonable jurists could debate
whether (or . . . agree that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
omitted). When a district court denies a claim on procedural grounds, the petitioner
must show both 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.” Id.
Reasonable jurists could not debate that Fergerson’s ineffective assistance
claims are procedurally defaulted. In addition, given the deferential standard of review
applied to state court merits determinations and especially factual findings in a habeas

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corpus proceeding, the issues the Court addressed on the merits are not close. The
Court therefore declines to issue a certificate of appealability.
Conclusion
For the reasons stated above, the Court denies Fergerson’s habeas petition
[docket no. 8] and declines to issue a certificate of appealability. The Clerk is directed
to enter judgment in favor of the respondent.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: September 18, 2012

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