Rush v. Rednour et al

Filing 22

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 5/17/2013:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
United States of America ex rel.
TERRANCE RUSH,
Petitioner,

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v.
DAVID A. REDNOUR, Warden,
Menard Correctional Center,
Respondent.

Case No. 11-cv-5950

Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Rush was first tried for first degree murder of Decotis Kincaid (“Kincaid”) in January
2008, but the jury reached a stalemate and a mistrial was declared. After a second jury trial,
Rush was found guilty of first degree murder and sentenced to seventy-five years imprisonment.
On August 26, 2011, Rush filed this instant petition for writ of habeas corpus. Rush argues that
his 14th Amendment due process rights were violated because he was not found guilty beyond a
reasonable doubt and because the trial court abused its discretion in allowing an officer to testify
that an eye witness feared him. For the following reasons, Rush’s petition for writ of habeas
corpus is denied.
Background
For purposes of a habeas petition, the factual findings of the state appellate court are
presumed to be correct. 28 USC § 2254(e)(1). Accordingly, the facts here are taken from the
Illinois Appellate Court’s recitation of the facts in its direct review of Rush’s case.
On September 7, 2006, Betty Hunt (“Hunt”) testified that at 11:27 pm, while eating in her
backyard, she heard gunshots coming from O’Halloren Park. Hunt ran to an alley located
adjacent to her garage, at the rear of her property, to check if her sons were around. Hunt later
learned that they were at a gas station on 85th Street. Hunt then saw petitioner Terrance Rush
(“Rush”) walking down the street with William Levell Young (“Levell”) who had his arm
against his chest. Hunt testified that she saw a car pull up and heard Rush say “my boy got shot”
before Rush aided Levell into the car which drove away. Hunt testified that she saw Rush with a
gun, walking toward the alley behind her house and that she saw another man run out of the
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alley. Hunt testified that the man stopped near her garage and Rush approached him pointing his
gun at him. Hunt testified that she went behind a tree, covered her eyes, and called her boyfriend
when she heard gunshots. Hunt saw the unknown man from the alley fall to the ground and
heard him ask her to call 911. When the police arrived, Hunt told them what she had witnessed.
Hunt did not see Rush shoot the man nor did she see where he went after the shooting.
The next morning, on September 8, 2006, Hunt went to police headquarters and
identified Rush as the shooter. Hunt also provided a written statement in which she recounted
seeing Rush point his gun at the head of the man and hearing the gun fired six times. At trial,
however, Hunt testified that she was high when she gave the written statement. Hunt also
claimed to be high when she appeared before a grand jury and gave testimony similar to her
prior written statement.
Levell also testified at trial. He testified that on the night of the shooting he was at
O’Halloren Park with Rush, a friend named “Rawlo,” and a man named “Boo.” Levell testified
that he did not see Rush with a gun, but that while at the park he heard gunfire and was shot in
the right forearm. Levell stated that he ran from the park toward Hermitage Avenue, and that he
ran into his friends at 84th Street and Hermitage Avenue. Levell claimed that his friends drove
him home and he denied seeing Rush after the shooting. Levell testified further that he gave a
statement concerning the shooting prior to trial. Levell later claimed at trial that he made the
statement up because he wanted to go home when questioned. In the statement, Levell had
stated that he saw Rush force a person to bend over a car parked on Wood Street and that Rush
had pointed a gun in the person’s face. In the statement, Levell further stated that he saw Rush
come into his friend Jeremy’s backyard and that Rush flagged down a ride for Levell after Levell
was shot at the park. Like, Hunt, on trial Levell later denied the truthfulness of both his
statement and his grand jury testimony.
Lamont Colbert (“Colbert”) testified at trial that he was in a parked car on the edge of
O’Halloren Park on the night of the shooting. Colbert testified that Rush, Levell, “Rawlo,” and
Kincaid, who was also known as “Boo,” were at the park and that there was a confrontation
between Kincaid and someone Colbert believed to be Rush. Colbert testified that Rawlo ran into
the park and shot Levell. Colbert then drove away from the park and testified that as he
approached 84th Street, he saw Kincaid crawling away from someone. Colbert saw the person
shoot Kincaid once as he crawled and Colbert testified that the gun was a gun that he had seen in
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Rush’s hand at the park. Colbert did not report what he had seen to the police until after he had
been arrested for residential burglary on September 30, 2006.
During the trial, a chief medical examiner for Cook County also testified that she
performed the autopsy of Kincaid’s body and that Kincaid had died of multiple gunshot wounds.
The medical examiner testified that Kincaid’s gunshot wounds were consistent with a shooter
standing over the victim while shooting, but that not all of his wounds were consistent with the
victim lying on his stomach. The medical examiner testified that those wounds could be
consistent with the victim rolling over or moving from side to side. A Chicago police officer
who was one of the first investigators on the scene also testified that Hunt seemed afraid for her
sons’ safety because she saw the shooting and recognized the shooter as Rush who lived on her
block and grew up with her sons. Assistant State’s Attorneys also testified regarding their roles
in the case including taking statements from Hunt, Levell, and Colbert and questioning them
before the grand jury.
Rush was first tried for the first degree murder of Kincaid in January 2008, but the jury
reached a stalemate and a mistrial was declared. After a second jury trial, Rush was found guilty
of first degree murder and sentenced to seventy-five years imprisonment. Rush appealed his
case to the Appellate Court of Illinois, First Judicial District arguing: (1) that the circuit court
violated the Illinois Supreme Court Rule 431(b) by failing to establish that each prospective
juror understood and agreed with the four principles enunciated in People v. Zehr, 103 Ill. 2d
472; (2) that the State failed to prove him guilty beyond a reasonable doubt; (3) that he was
denied a fair trial when an officer testified about Hunt’s fears for her sons; and (4) that his
seventy-five year sentence was excessive in light of his potential for rehabilitation and lack of a
prior criminal history. The appellate court affirmed the circuit court’s judgment and Rush,
represented by counsel, filed a petition for leave to appeal in the Illinois Supreme Court. In his
petition for leave to appeal to the Illinois Supreme Court, Rush’s sole argument was that the trial
court’s failure to comply with the Illinois Supreme Court Rule 431(b) constituted plain error,
requiring reversal.
On August 26, 2011, Rush filed this instant petition for writ of habeas corpus. Rush
argues that his 14th Amendment due process rights were violated because he was not found
guilty beyond a reasonable doubt and because the trial court abused its discretion in allowing an
officer to testify that Hunt feared Rush.
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Legal Standard
Before a district court can address a habeas petition on its merits, a petitioner must have
both exhausted his state remedies and avoided any fatal procedural defaults. See 28 U.S.C. §
2254(b). If the claim comes from the Illinois state courts, the petitioner must have presented
each claim in the habeas petition to the Illinois Appellate Court and to the Illinois Supreme
Court in a petition for discretionary review. Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010)
(citing O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)). A petitioner’s failure to timely
present each habeas claim to the state’s appellate and supreme court leads to default, thus barring
the federal court from reviewing the claim’s merits. Id.
Discussion
Rush raised his claims that his due process rights were violated because (1) he was not
found guilty beyond a reasonable doubt and (2) a police officer was allowed to testify about
Hunt’s fear of Rush, on direct appeal. (Ex. A at 12, 14). However, Rush did not raise these
arguments in his petition for leave to appeal to the Illinois Supreme Court. (Ex. E). Rush’s sole
argument in his petition for leave to appeal was that the trial court’s failure to comply with
Illinois Supreme Court Rule 431(b) constituted plain error, requiring reversal. (Ex. E). A
habeas petitioner who has exhausted his state court remedies without properly asserting his
federal claims at each level of state court review has procedurally defaulted those claims.
Smith, 598 F.3d at 382. Because Rush failed to raise his present federal issues in a full round of
appellate review, they are procedurally defaulted or waived. United States ex rel. Lyles v.
Atchison, No. 12 C 2099, 2013 U.S. Dist. LEXIS 13048, at *6-7 (N.D. Ill. Jan. 31, 2013) (citing
Smith, 598 F.3d at 383).
Furthermore, Rush cannot cure this procedural default because he has not shown good
cause for the default, actual prejudice from the alleged error, or that failure to consider this claim
will result in a fundamental miscarriage of justice. See Badelle v. Correll, 452 F.3d 648, 661
(7th Cir. 2006). Ordinarily, cause for a default is established by showing that some type of
external impediment prevented the petitioner from presenting his federal claim to the state
courts. Lewis v. Sternes, 390 F.3d 1019, 1025-1026 (7th Cir. 2004). “Prejudice is established by
showing that the violation of the petitioner’s federal rights worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. (internal

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citation omitted). Rush has not argued or shown any such impediment or substantial
disadvantage.
Conclusion
Rush’s petition for writ of habeas corpus is denied.

IT IS SO ORDERED.
Date: May 17, 2013
____________________________
Sharon Johnson Coleman
United States District Judge

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