Spears v. Butler

Filing 21

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 8/5/19.Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHNNY SPEARS,
Petitioner,
v.
FRANK LAWRENCE, Acting Warden,
Menard Correctional Center,
Respondent.

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18 C 373
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Johnny Spears has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). Frank Lawrence,1 Acting Warden of Menard Correctional Center
(“Respondent”), contends that Spears’s claims are procedurally defaulted, meritless,
or noncognizable. For the following reasons, the petition [1] is denied.
Factual Background2
Spears was charged and convicted of the murder of Octavious Dandridge,
which occurred at the intersection of Chicago and St. Louis Avenues in Chicago,

Rule 2(a) of the Rules Governing Section 2254 habeas cases provides that the proper
respondent is the state officer having custody of the petitioner. See Bridges v. Chambers, 425
F.3d 1048, 1049 (7th Cir. 2005). Frank Lawrence is currently the Acting Warden of Menard
Correctional Center. Accordingly, the Court substitutes him as Respondent pursuant to
Federal Rule of Civil Procedure 25(d).
1

Pursuant to 28 U.S.C. § 2254(e)(1), the state courts’ recitations of fact are
presumptively correct. See Sumner v. Mata, 449 U.S. 539, 547 (1981). Accordingly, the Court
adopts the factual account as provided in Resp’t Ex. A, People v. Spears, No. 1-10-1914, 2012
IL App (1st) 101914-U (Ill. App. Ct. Aug. 2, 2012), ECF No. 13-1.
2

Illinois, on April 22, 2008. Resp’t Ex. A at 2. On that day, Spears, Charles Munyi,
Owen Turner, and Rodney Turner3 walked Spears’s stepbrother Jerrell Dillard to a
nearby bus stop. Id. at 2, 9. As they walked back, they encountered Dandridge and
his friend Deon Richard. Id. at 2. Spears and Dandridge got into a verbal altercation,
and Dandridge was shot. Id.
At trial, the State’s case rested on four witnesses who identified Spears as the
shooter—Munyi, Richard, Owen, and DeAngelo Jones. Id. at 3–9. Munyi, however,
was the only witness who gave a positive identification at trial; Richard, Owen, and
Jones all recanted their prior statements accusing Spears of the murder.

Id.

Accordingly, the State called as witnesses several police officers and prosecutors to
prove up the prior inconsistent statements identifying Spears. Id. The defense, by
contrast, theorized that Munyi was the shooter, and attempted to prove that fact
through cross-examination of the State’s witnesses. Id. at 2. The defense also called
Dillard to support its theory. Id. at 9–10.
I.

Richard’s Testimony and Prior Inconsistent Statements
Richard testified that he met with police and an Assistant State’s Attorney

(“ASA”) on April 24, 2008. Id. at 3. At that time, Richard made a statement, which
the ASA recorded and Richard signed. Id. According to that statement, Richard and
Dandridge were standing near the intersection of Chicago and St. Louis Avenues
when Richard saw two men pass by. Id. One, whom Richard referred to as “Shorty,”

The Illinois Appellate Court’s decision does not clarify whether Rodney is a first or
last name. Other documents in the record, however, clarify that “Rodney” is Rodney Turner.
See Resp’t Ex. C, State’s Direct Appeal Br. at 1, ECF No. 13-3. The Court refers to Rodney
and Owen Turner by their first names for clarity.
3

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asked Dandridge “what did he say,” and when Dandridge responded that he was not
looking for trouble, an argument ensued. Id. Shorty then grabbed a black gun from
his waistband and shot at Dandridge. Id. Dandridge ran, but Shorty pursued him
and shot seven or eight more times, hitting Dandridge in the back and neck. Id. At
the time he gave the statement, Richard identified Spears as the shooter from a photo
array, and identified Dillard as Spears’s companion. Id. at 3–4. Richard was familiar
with Spears and knew that Spears lived in the area. Id. at 4.
At trial, Richard acknowledged that he had made these statements and
identifications, but recanted them. Id. at 4. He testified that, although he was at the
scene, he heard only gunshots and did not see the shooter. Id. He stated that police
had forced his statement, and that he had made the statement based on neighborhood
gossip. Id. He also stated that he was angry about his friend’s murder and wanted
to see someone convicted. Id.
The State presented three witnesses to prove up Richard’s prior inconsistent
statements—Chicago police sergeant Daniel Gallagher, ASA Joy Tolbert Nelson, and
ASA Patrick Keane. Id. at 4–5. Gallagher and Nelson were present for Richard’s
police-station interview, and verified that he had made the statement. Id. Keane
testified that Richard had given the same story to the grand jury. Id. at 5. All three
witnesses testified that Richard’s prior statements had not been coerced.

Id.

Richard’s statement to police and grand-jury testimony were then admitted as
substantive evidence pursuant to 725 Ill. Comp. Stat. 5/115-10.1. Id. at 11.

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II.

Owen Turner’s Testimony and Prior Inconsistent Statements
Owen testified that he had spoken to the police several days after the shooting

and had given a signed statement on June 20, 2008. Id. at 5. In that statement, he
identified himself, Rodney, Munyi, and Spears from a photo taken by a pod camera
and stated that they were coming back from dropping off Dillard at the bus stop. Id.
Owen also stated that Spears had exchanged words with Dandridge, whom Owen
similarly identified in a photo. Id.
Owen acknowledged at trial that he had given this statement, but recanted
and offered a different story suggesting that Munyi had been responsible for the
shooting. Id. He testified that, when he and the others walked Dillard to the bus
stop, he saw Dillard take something from his waistband and hand it to Munyi. Id.
Owen, Rodney, Munyi, and Spears then walked near the intersection of Chicago and
St. Louis Avenues, but Munyi and Spears lagged a few feet behind.

Id. at 6.

According to Owen, Rodney then said that “Ghost”—referring to Munyi—was arguing
with someone. Id. The group continued to walk, when Owen heard gunshots. Id.
On cross-examination, Owen said that he saw Munyi with the gun, which was black
with a pearl handle. Id. Later, Owen saw Munyi and Jones in the alley with a
shovel, burying the gun. Id.
The State presented two witnesses to prove up Owen’s prior inconsistent
statements—Chicago police detective Donald Hill and ASA Jose Villareal. Id. Hill
had interviewed Turner at the police station on June 20, and Villareal took Turner’s
statement in the presence of Hill the next day. Id. Both testified to Owen’s prior

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statement and said Owen had made no mention of seeing Dillard pass something to
Munyi, of Munyi and Dandridge arguing, or of seeing Munyi with the gun after the
shooting.

Id.

Owen’s prior statements were admitted as substantive evidence

pursuant to 725 Ill. Comp. Stat. 5/115-10.1. Id. at 11.
III.

Jones’s Testimony and Prior Inconsistent Statements
Jones testified at trial that he previously had given testimony to the grand

jury. Id. at 6. Before the grand jury, Jones had testified that Spears had telephoned
him shortly after the murder, asking him to retrieve a gun. Id. Jones agreed, and
he, Munyi, and Owen retrieved the gun and buried it. Id. at 7. A few days later,
Jones asked Spears, “[w]hat would make you do something stupid like [that]?” and
Spears responded, “[i]f the shoe was on the other feet he would have did me in.” Id.
But Jones recanted his grand jury testimony at trial, revising certain details
and adding new ones. Id. at 6–7. He testified that after Spears had called him, Munyi
also called him and asked him to help “get rid” of a gun. Id. at 7. Furthermore, he
testified that his conversation with Spears actually referred to Munyi. Id.
The State called two witnesses to prove up Jones’s prior statement—Detective
Hill and ASA Keane, both of whom had interviewed Jones before his grand-jury
appearance.

Id.

Jones’s prior statement was admitted as substantive evidence

pursuant to 725 Ill. Comp. Stat. 5/115-10.1. Id. at 11.
IV.

Munyi’s Testimony and Cross-Examination
Most important to the State’s case was Munyi, who testified at trial that he

saw Spears shoot Dandridge. Id. at 8. According to Munyi, he had been at Spears’s

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house with Rodney, Owen, and Spears, and the group decided to walk three blocks
with Dillard to the bus stop because Dillard did not feel safe going alone. Id. After
Dillard boarded the bus, the group walked back. Id. Rodney and Owen cut across a
vacant lot, but Munyi and Spears remained on the sidewalk, where they ran into
Dandridge and his friends. Id. Munyi said that Dandridge began threatening Spears,
labeling him a “snitch.” Id. Spears then pulled out a “long-nosed black revolver with
a white handle” from his waist, and shot Dandridge in the head. Id. Dandridge tried
to run, but Spears shot him several more times. Id.
Munyi stated that, days later, he saw the same gun being passed around at the
residence of Rodney and Jones. Id. He testified that the last time he saw the gun
was in that house and that he did not know what happened to it afterwards. Id. He
denied having anything to do with getting rid of the gun. Id.
Before Munyi’s cross-examination, the trial court held a meeting in chambers,
and defense counsel sought permission to inquire into an armed robbery with which
Munyi had been charged. Id. at 8–9. Counsel claimed that, in the robbery, Munyi
and Jones had used the same gun that was used in Dandridge’s shooting. Id. at 9.
Counsel argued that this line of inquiry was relevant to impeach Munyi’s testimony
that he saw the gun only once a few days after the shooting, and to corroborate
testimony that Munyi had helped to bury the gun. Id. The court asked whether
counsel could specifically “link” the gun used in the murder to the gun used in the
robbery, to which counsel responded that Jones had told him the guns were the same.
Id.

The court denied permission to conduct cross-examination to that effect,

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concluding that if counsel could not “prove it up with certainty,” the court would not
“get into this other case.” Id.
V.

Dillard’s Testimony
Dillard testified on Spears’s behalf and stated that he had asked Spears to

walk with him to the bus stop for his safety. Id. Dillard did not want to travel alone
because there had been a confrontation with Dandridge earlier, and Dandridge was
“patrolling” the area. Id. Dillard asked Munyi for a gun, and Munyi handed him a
black revolver with a long barrel and white handle. Id. The group, which included
Munyi, Spears, Rodney, and Owen, then proceeded to the bus stop, where Dillard
handed the gun back to Munyi. Id.
On cross-examination, Dillard admitted to lying to police about Spears’s
whereabouts after the shooting. Id. at 9–10. Furthermore, the State called Detective
Hill, who rebutted Dillard’s testimony by stating that Dillard had not told police that
he had borrowed a gun from Munyi. Id. at 10. Finally, the State called Munyi as a
rebuttal witness; Munyi denied giving Dillard the gun or taking it from him, and said
he had not possessed a gun that evening. Id.
The jury found Spears guilty of first-degree murder and determined that he
had personally discharged the gun that caused Dandridge’s death. Id. Spears filed
a motion for a new trial, arguing again that he should have been allowed to crossexamine Jones and Munyi regarding their alleged use of the murder weapon in a later
armed robbery. Id. The trial court denied Spears’s motion and sentenced him to 45
years of imprisonment. Id.

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Direct Appeal
On appeal, Spears, who was represented by counsel, contended that the prior
inconsistent statements of Richard, Owen, and Jones were inadmissible, prejudicial,
and unduly cumulative. Id. at 10–11. He also argued that the trial court denied him
the right to confront his accusers by not allowing him to cross-examine Munyi and
Jones about their subsequent use of the murder weapon. Id. at 14. Finally, he argued
that the trial court violated Illinois Supreme Court Rule 431(b), which requires the
trial court to ask certain questions of the jury before trial. Id. at 18.
The Illinois Appellate Court affirmed Spears’s conviction and sentence. First,
the court found that Spears’s failure to object to the admission of the prior
inconsistent statements at trial had resulted in forfeiture. Id. at 10. Reviewing for
plain error, the court found none. Id. Second, the court held that, because trial
counsel had not made an adequate offer of proof regarding Munyi’s later use of the
gun, Spears’s Confrontation Clause claim was waived. Id. at 15–17. And, even if the
claim had not been waived, the court “question[ed]” the relevance of Spears’s
proposed cross-examination, concluding that Spears had adequately informed the
jury of his theory of defense. Id. at 17–18. Finally, the court determined that Spears
had forfeited his claim under Rule 431(b) and had not established plain error. Id. at
18–20.
Spears moved for rehearing based on the same issues, but the Illinois Appellate
Court denied his petition.

Resp’t Ex. E, Pet’r Direct Appeal PLA App’x, Order

Denying Rehearing, ECF No. 13-5.

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Spears filed a petition for leave to appeal (“PLA”) in the Illinois Supreme Court,
raising the issues of the prior inconsistent statements and his proposed crossexamination. See Resp’t Ex. E, Pet’r Direct Appeal PLA at 4, ECF No. 13-5. The
Illinois Supreme Court denied the PLA on March 27, 2013. Resp’t Ex. E, People v.
Spears, No. 115373 (Ill. Mar. 27, 2013), ECF No. 13-5.
Postconviction Proceedings
Spears filed a pro se postconviction petition in February 2014, raising two
claims. See Resp’t Ex. G, Postconviction Finley Mot. at 10–11, ECF No. 13-7. First,
he claimed that trial counsel was ineffective for failing to challenge the indictment
against him on the grounds that it was based on perjured testimony—namely,
Richard’s and Jones’s grand-jury testimony. Id. at 10. Second, he argued that
appellate counsel was ineffective for attacking only the inconsistency of three of the
State’s prior witness statements, and failing to assert that the statements amounted
to perjury. Id. at 11.
The trial court summarily dismissed Spears’s postconviction petition and
motion to reconsider. See id. at 11–12. Spears filed a notice of appeal, and counsel
was appointed. See id. at 12. Postconviction appellate counsel, however, filed a
motion pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), asserting that the
appeal presented no arguable issues of merit. See id. at 13. Spears responded,
arguing that the issues in his petition stated colorable claims for postconviction relief.
See generally Resp’t Ex. H, Pet’r Resp. Finley Mot., ECF No. 13-8.

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The Illinois Appellate Court granted counsel’s motion and affirmed the denial
of the petition. Resp’t Ex. I, People v. Spears, No. 1-15-1772 (Ill. App. Ct. Feb. 15,
2017), ECF No. 13-9. Spears filed a PLA, which the Illinois Supreme Court denied.
Resp’t Ex. J, Pet’r Postconviction PLA and Order Denying PLA, ECF No. 13-10.
Federal Habeas Claims
In his federal habeas petition, Spears essentially reargues the claims
presented on direct appeal. First, he contends that his rights under the Confrontation
Clause were violated by the trial court’s refusal to allow him to cross-examine Munyi
and Jones about Munyi’s later possession of the gun used to kill Dandridge (Ground
One). Second, Spears contends that the trial court violated Illinois Supreme Court
Rule 431(b), resulting in an unfair trial (Ground Two). Third, Spears argues that he
was denied a fair trial by the use of prior inconsistent statements because they were
either inadmissible or unduly cumulative (Ground Three).
Legal Standard
A writ of habeas corpus will be granted only if the petitioner demonstrates that
he is “in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Under AEDPA, the Court may not grant habeas relief
unless the state court’s decision on the merits was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States, or the state-court decision is based on an
unreasonable determination of the facts. 28 U.S.C. § 2254(d).

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“A federal habeas court may issue the writ under the ‘contrary to’ clause if the
state court applies a rule different from the governing law set forth in [the Supreme
Court’s] cases, or if it decides a case differently than [the Supreme Court has] done
on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002).
“An ‘unreasonable application’ occurs when a state court ‘identifies the correct
governing legal principle from [the Supreme Court’s] decisions but unreasonably
applies that principle to the facts’ of petitioner’s case.” Rompilla v. Beard, 545 U.S.
374, 380 (2005) (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003)).
Clearly established federal law consists of the “holdings, as opposed to the
dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court
decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams v. Taylor, 529
U.S. 362, 412 (2000)). The state court is not required to cite to, or even be aware of,
the controlling Supreme Court standard, as long as the state court does not contradict
that standard. Early v. Packer, 537 U.S. 3, 8 (2002). The Court begins with a
presumption that state courts both know and follow the law. Woodford v. Visciotti,
537 U.S. 19, 24 (2002). Moreover, the Court’s analysis is “backward-looking.” Cullen
v. Pinholster, 131 S. Ct. 1388, 1398 (2011). The Court is limited to reviewing the
record before the state court, as well as the Supreme Court precedent in existence, at
the time of the state-court decision. Id.; Greene v. Fisher, 132 S. Ct. 38, 44 (2011).
“AEDPA’s standard is intentionally ‘difficult [for Petitioner] to meet.’” Woods
v. Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting White v. Woodall, 572
U.S. 415, 419 (2014); Metrish v. Lancaster, 569 U.S. 351, 352 (2013)). “As a condition

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for obtaining habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562
U.S. 86, 103 (2011). This “highly deferential standard . . . demands that state-court
decisions be given the benefit of the doubt.” Woodford, 537 U.S. at 24 (internal
quotation marks omitted).

Put another way, habeas corpus is a “guard against

extreme malfunctions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal.” Harrington, 562 U.S. at 102–03 (internal
quotation marks omitted). “Under § 2254(d), a habeas court must determine what
arguments or theories supported, or . . . could have supported, the state court’s
decision; and then it must ask whether it is possible fairminded jurists could disagree
that those arguments or theories are inconsistent with the holding in a prior decision
of th[e] [Supreme] Court.” Id. at 102.
Analysis
I.

Ground One
Respondent argues that Ground One—which concerns Spears’s right to cross-

examine Munyi about his alleged possession of the murder weapon—is procedurally
defaulted. Spears disagrees and points out that he raised this issue throughout the
proceedings in his direct appeal.
A claim is procedurally defaulted if the petitioner failed to fairly present it at
each level of state-court review, including in a petition for leave to appeal before the

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state supreme court. Guest v. McCann, 474 F.3d 926, 929–30 (7th Cir. 2007) (citing
O’Sullivan v. Boerckel, 526 U.S. 838, 842–46 (1999)). Additionally, a state prisoner’s
habeas claim may not be entertained by a federal court when “(1) a state court [has]
declined to address a prisoner’s federal claims because the prisoner ha[s] failed to a
meet a state procedural requirement,” and “(2) the state judgment rests on
independent and adequate state procedural grounds.” Walker v. Martin, 562 U.S 307,
316 (2011) (quoting Coleman v. Thompson, 501 U.S. 722, 729–30 (1991)) (internal
quotation marks omitted).

A state procedural rule is “adequate” if it is “firmly

established and regularly followed.” Id. (quoting Beard v. Kindler, 558 U.S. 53, 60–
61 (2009)). And a state procedural rule is “independent” if the state court “actually
relied on the state procedural rule as an independent basis for the disposition of the
case.” Kaczmarek v. Rednour, 627 F.3d 586, 592 (7th Cir. 2010).
If a claim is procedurally defaulted, a petitioner is not entitled to habeas relief
unless cause exists for the default and actual prejudice was suffered, or a
fundamental miscarriage of justice resulted in the conviction despite the petitioner’s
actual innocence.

Buelow v. Dickey, 847 F.2d 420, 425 (7th Cir. 1988) (citing

Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Murray v. Carrier, 477 U.S. 478, 496
(1986)).
The Illinois Appellate Court, in denying Ground One, concluded that it was
waived based on trial counsel’s failure to set forth an adequate offer of proof. The
rules concerning offers of proof are firmly established in Illinois. For instance, in
People v. Tabb, the Illinois Appellate Court explained:

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When a line of questioning is objected to or denied by the trial court, the
defendant must set forth an offer of proof either to convince the trial
court to allow the testimony or to establish on the record that the
evidence was directly and positively related to the issue of bias or motive
to testify falsely. A formal offer of proof is typically required; however,
an informal offer of proof, involving counsel’s summary of what the
proposed evidence might prove, may be sufficient if specific and not
based on speculation or conjecture.
870 N.E.2d 914, 923–24 (Ill. App. Ct. 2007) (citing People v. Phillips, 542 N.E.2d 814,
821 (Ill. App. Ct. 1989)). Failure to set forth an adequate offer of proof results in
waiver of the issue. People v. Andrews, 588 N.E.2d 1126, 1131 (Ill. 1992).
Citing these rules, the Illinois Appellate Court agreed with the trial court
(1) that Spears’s counsel had not made a formal offer of proof, and (2) that counsel’s
informal offer of proof—consisting only of his conversations with Jones and Munyi
about what their testimony might reveal—was speculative. See Resp’t Ex. A at 16–
17. Based upon this, the court held that Spears had “waived his claim for review.”
Id. at 17.
Federal courts have found the offer-of-proof rule to be an adequate basis on
which to deny habeas relief. See United States ex rel. Veal v. DeRobertis, 693 F.2d
642, 647–50 (7th Cir. 1982) (concluding that the petitioner had procedurally defaulted
by failing to make an offer of proof under Illinois law, but remanding for a
determination of cause and prejudice); United States ex rel. Starks v. O’Sullivan,
No. 97 C 3246, 2002 WL 485368, at *7 (N.D. Ill. Mar. 29, 2002) (finding procedural
default based on the petitioner’s failure to make an offer of proof). What is more, the
Illinois Appellate Court’s holding that Spears had waived his Confrontation Clause
claim provided an independent basis for its judgment. Although the court went on to
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discuss the relevance of Spears’s proposed cross-examination, this was a mere side
note, or, at most, a second independent basis for the judgment. Accordingly, the Court
concludes that the Illinois Appellate Court addressed Ground One on an adequate
and independent state procedural ground.
Spears, in reply, makes two arguments against the application of procedural
default. First, he notes that he had raised the cross-examination issue throughout
his direct appeal. Second, Spears argues that, on direct appeal, the State did not
argue procedural default, and thus waived it. But Spears misunderstands the nature
of the procedural default at issue—the Court does not conclude that the claim is
procedurally defaulted due to Spears’s failure to raise it in the state courts. Moreover,
it is of no moment that the Illinois Appellate Court decided the claim on procedural
grounds despite the State’s failure to raise an argument to that effect. Rather, the
question for the Court is whether the Illinois Appellate Court decided the claim on
an adequate and independent state ground, no matter how it came to do so. Because
the court here did apply a state procedural ground, i.e., Spear’s failure to provide an
adequate offer of proof, the claim is procedurally defaulted. See Walker, 562 U.S at
316.4
Spears has not argued that there is any cause for the procedural default or
prejudice arising from it.

He does, however, make a great deal of argument

Spears also could be said to argue in reply that the denial of his proposed crossexamination violated his right to present his theory of defense to the jury, in addition to his
rights under the Confrontation Clause. But the state court’s holding—that the crossexamination was properly denied due to an inadequate offer of proof—would govern this issue
as well. Accordingly, to the extent Spears seeks relief on this ground, it is denied.
4

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concerning his innocence. “Actual innocence” is a “narrow exception” to the general
rule requiring a showing of cause and prejudice to excuse a procedural default. Dretke
v. Haley, 541 U.S. 386, 388 (2004). But a court reviewing such a claim must “proceed
with caution.” Id. at 398 n.2. To meet the standard, a petitioner must demonstrate,
“based on new, reliable evidence, that ‘in light of new evidence, it is more likely than
not that no reasonable juror would find him guilty beyond a reasonable doubt.’”
Blackmon v. Williams, 823 F.3d 1088, 1099 (7th Cir. 2016) (quoting House v. Bell,
547 U.S. 518, 537 (2006)). In considering this standard, courts must “consider all the
evidence, both old and new, incriminating and exculpatory, without regard to
whether it would necessarily be admitted at trial.” Id. at 1101.
Spears’s petition does not rise to the level of showing actual innocence.
Although he presents a cogent alternative theory about Munyi being the real shooter,
he does not present any new evidence supporting that theory. Nor would his proposed
cross-examination suffice to prove his innocence. At best, it would establish that
Munyi had more involvement with the gun after the murder than what the jury had
previously heard. Still, as to the murder itself, the jury would be entitled to credit
the statements that Richard, Owen, and Jones made to the police and the grand jury,
as well as Munyi’s testimony. When multiple witnesses identify the same person,
actual innocence is a high bar to clear. See id. at 1101 (collecting cases).
For these reasons, the Court denies habeas relief as to Ground One.

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II.

Ground Two
Respondent claims that Ground Two, which asserts that the trial court violated

Illinois Supreme Court Rule 431(b), is not cognizable on habeas review.5
Rule 431(b), which codifies the Illinois Supreme Court’s holding in People v.
Zehr, 469 N.E.2d 1062 (Ill. 1984), requires the trial court to ask jurors whether they
understand and accept four principles of law:
(1) that the defendant is presumed innocent of the charge(s) against him
or her; (2) that before a defendant can be convicted the State must prove
the defendant guilty beyond a reasonable doubt; (3) that the defendant
is not required to offer any evidence on his or her own behalf; and (4)
that if a defendant does not testify it cannot be held against him or her.
Ill. Sup. Ct. R. 431(b). Spears contends that, although the trial court explained the
principles and asked the jurors if they accepted them, the court did not ask if the
jurors understood them.
Respondent is correct that “errors of state law in and of themselves are not
cognizable on habeas review.” Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004).
Still, this is not a categorical rule. Rather, “if a state court’s errors have deprived the
petitioner of a right under federal law,” the federal courts can intervene.

Id.

Specifically, “a state defendant does have a Fourteenth Amendment due process right
to a fundamentally fair trial.” Id. Spears raises exactly such a claim, contending that

Respondent contends that both Grounds Two and Three are noncognizable. The Court
notes that, as to both grounds, the Illinois Appellate Court found the issues forfeited and
reviewed them for plain error. Ordinarily, such a holding would support a finding of
procedural default. See Kaczmarek, 627 F.3d at 592. But procedural default is waivable,
Lewis v. Sternes, 390 F.3d 1019, 1029 (7th Cir. 2004), and the State has not argued it here.
Accordingly, the Court does not treat Grounds Two or Three as procedurally defaulted.
5

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the trial court’s failure to comply with Rule 431(b) violated his right to due process
and a fair trial.
The problem with Spears’s claim, however, is that there is no clearly
established federal law requiring the trial court to ask the specific questions
elucidated in Zehr. See Estelle v. McGuire, 502 U.S. 62, 68 (1991). Spears cites state
law, but even those cases make clear that not every violation of Rule 431(b) would
result in a denial of due process. Rather, as the Illinois Supreme Court has clarified,
“[d]efendants do not have a right to Rule 431(b)(4) questioning under either the
United States or the Illinois Constitution. . . . While the rule is designed to help
ensure that defendants are tried before a fair jury, we cannot say that Rule 431(b)(4)
questioning is indispensable to a fair trial.” People v. Glasper, 917 N.E.2d 401, 415–
16 (Ill. 2009); see also People v. Sebby, 89 N.E.3d 675, 694 (Ill. 2017) (“The key point
of Glasper . . . is unremarkable: A Rule 431(b) violation does not necessarily result in
a biased jury.”). Accordingly, Ground Two does not set forth any violation of clearly
established federal law, and it is denied. See also United States ex rel. Montgomery
v. Butler, 91 F. Supp. 3d 1021, 1023–24 (N.D. Ill. 2015) (rejecting a Rule 431(b) claim
as noncognizable on habeas review).
III.

Ground Three
Respondent also argues that Ground Three—which concerns the admission of

prior inconsistent statements by the recanting witnesses as well as the additional
testimony proving up those statements—cannot be the subject of habeas review.

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Ground Three, like Ground Two, presents an issue of state law that would
ordinarily not be reviewable in a habeas court: the admissibility of testimony and
prior recorded statements. See Estelle, 502 U.S. at 68. But, like Ground Two, Spears
argues that the admission of the statements violated his due-process right to a fair
trial. See Perruquet, 390 F.3d at 511.
The Supreme Court addressed the due-process considerations underlying
admission of a witness’s prior inconsistent statements as substantive evidence in
California v. Green, 399 U.S. 149 (1970).

In a footnote, the Court noted that

“considerations of Due Process . . . might prevent convictions where a reliable
evidentiary basis is totally lacking.” Id. at 163 n.15. Since then, the Seventh Circuit
has adopted a set of factors intended to safeguard against the possibility that
introduction of prior inconsistent statements will result in a baseless verdict. See
Vogel v. Percy, 691 F.2d 843, 846–47 (7th Cir. 1982). Under Vogel, a prior inconsistent
statement causes no constitutional problem, even when admitted as substantive
evidence, where: “(1) the declarant was available for cross-examination; (2) the
statement was made shortly after the events related and was transcribed promptly;
(3) the declarant knowingly and voluntarily waived the right to remain silent; (4) the
declarant admitted making the statement; and (5) there was some corroboration of
the statement’s reliability.” Id.
The admission of prior recorded statements pursuant to 725 Ill. Comp. Stat.
5/115-10.1 is sufficient to protect a defendant’s due-process rights. See Johnson v.
Washington, 119 F.3d 513, 519–22 (7th Cir. 1997) (citing approvingly to People v.

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Morales, 666 N.E.2d 839, 844–45 (holding that the requirements of the statute
adequately safeguard a defendant’s due-process rights as addressed in Green)); see
also United States ex rel. Skerrett v. Gaetz, No. 09 C 2222, 2010 WL 4825627, at *3
(N.D. Ill. Nov. 18, 2010). Accordingly, the testimony that was substantively admitted
in this case under that section—Richard’s statement to the police and grand-jury
testimony, Owen’s grand-jury testimony, and Jones’s grand-jury testimony—does not
raise a due-process concern.

Nor does the testimony of the police officers and

prosecutors, which was used to prove up the reliability of the prior recorded
statements and to impeach Richard, Owen, and Jones.
Spears has not cited to any controlling federal law establishing that the prior
inconsistent testimony used in his case could have denied him a fair trial.
Accordingly, Ground Three does not state a claim for a violation of Spears’s federal
rights, and Spears’s petition is denied on this ground.

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Conclusion
For the reasons provided, Spears’s petition for habeas corpus is denied.
Furthermore, the Court declines to issue a certificate of appealability. Spears has
not made a substantial showing that reasonable jurists could debate whether his
motion should have been resolved in a different manner. See 28 U.S.C. § 2253(c)(2);
Narvaez v. United States, 674 F.3d 621, 626 (7th Cir. 2011) (citing Slack v. McDaniel,
529 U.S. 473, 483–84 (2000)). Civil case terminated.
IT IS SO ORDERED.

ENTERED: 8/5/19
____________________________________
John Z. Lee
United States District Judge

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