Williams v. Butler
Filing
110
ORDER DISMISSING CASE: The Court DENIES and DISMISSES petitioner's § 2254 habeas petition with prejudice, DENIES petitioner's 50 MOTION for Judgment on the Pleadings, and OVERRULES the 108 OBJECTIONS TO AND APPEAL OF MAGISTRATE JUDGE DECISION and AFFIRMS Magistrate Judge Proud's Orders. The Court further DENIES petitioner a Certificate of Appealability. The Clerk shall enter judgment accordingly. Signed by Judge David R. Herndon on 11/9/16. (lmp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BOBBY O. WILLIAMS,
Petitioner,
vs.
Civil No. 15-cv-457-DRH-CJP
JEFF HUTCHINSON,
Respondent.
MEMORANDUM and ORDER
HERNDON, District Judge:
In 1996, a jury in St. Clair County, Illinois, convicted Bobby O. Williams of
first degree murder. He was sentenced to death, but his sentence was vacated
and later commuted. He was then resentenced to life imprisonment.
Williams
filed an amended petition for habeas relief pursuant to 28 U.S.C. §2254, Doc. 17.
This matter is now before the Court on petitioner’s Motion for Judgment on
the Pleadings (Doc. 50), as well on as the merits of the amended petition.
Grounds Asserted for Habeas Relief
The amended petition raises the following grounds:
A.
The trial judge erred in excluding Gerald Simpson’s statement to the
police indicating that Gerald was the second man (the non-shooter)
in the surveillance video, and that the shooter was a man named
Fred.
B.
(1) Trial counsel was ineffective in failing to file a second motion to
quash arrest and suppress evidence and in failing to request a
second suppression hearing based on exceptional circumstances, and
(2) appellate counsel was ineffective in failing to raise trial counsel’s
Page 1 of 28
ineffectiveness. 1
C.
There was insufficient evidence presented to the extended term
qualifying jury to establish that petitioner was the person who
actually murdered Sharon Bushong during the course of an armed
robbery.
D.
The judge who sentenced petitioner to life imprisonment was biased.
E.
Petitioner’s life sentence violates equal protection. 2
Relevant Facts and Procedural History
1.
Facts
The state court’s factual findings are presumed to be correct unless
rebutted by clear and convincing evidence, which petitioner has not done. 28
U.S.C. §2254(e).
In his reply, petitioner suggests that the presumption of correctness applies
only to the facts related to claim A because the Supreme Court of Illinois only
ruled on that claim.
See, Doc. 48, pp. 2-3.
His suggestion is the result of
incorrectly conflating the §2254(e) presumption of correctness of facts with the
rule that the habeas court reviews the opinion of the last state court to decide the
merits of a particular claim. See, e.g., Bolton v. Akpore, 730 F.3d 685, 687 (7th
Cir. 2013), in which the Seventh Circuit looked to the factual findings set forth by
the state courts both on direct appeal and in postconviction proceedings.
The following description of the basic facts of the case are taken from the
1
Respondent framed this ground slightly differently in his answer, Doc. 32. The Court describes
the ground as it is framed by petitioner in his reply, Doc. 48, pp. 5-6.
2
The amended petition referred to the Eighth Amendment and the proportionate penalties clause
of the Illinois constitution. However, in his reply, petitioner denies that he is asserting either an
Eighth Amendment claim or a claim under the proportionate penalties clause. See, Doc. 48, Ex.
1, pp. 2-3.
Page 2 of 28
Supreme Court of Illinois’ decision affirming petitioner’s conviction but vacating
his death sentence on the initial direct appeal, People v. Williams, 737 N.E.2d 230
(Ill. 2000). A copy of the opinion is attached to Doc. 33 at Ex. 1, p. 1. 3
Shortly before 1 a.m. on November 3, 1994, Sharon Bushong was shot to
death during a robbery of the Convenient Food Mart at 9618 West Main
Street in Belleville, Illinois. At the time of her death, Bushong was working
in the convenience store as the sole clerk. The principal pieces of physical
evidence recovered from the crime scene were a surveillance videotape that
had been recorded by the store's security cameras, and a spent cartridge
case that had been fired from a .380–caliber pistol. Several fingerprints
were collected from the convenience store, but none matched defendant's.
In addition, a .380–caliber bullet was recovered from Bushong's body
during her autopsy.
The surveillance videotape was played for the jury at trial and is part of the
record on appeal. . . . .The videotape is recorded in black and white and
has no sound. . . .
The surveillance videotape shows two African–American males entering the
convenience store . . . . One of the men is wearing shorts and a short-sleeve,
dark-colored shirt with piping or thin stripes around the collar, shoulders,
sleeves and bottom. He is wearing only one, ankle-high sock. He is also
wearing some type of light-colored garment, possibly boxer shorts, over his
head. The second man is wearing a baseball cap, and is covering his face
with his hands and shirt. Neither man's face is visible at any time.
The individual with the garment over his head can be seen on the videotape
taking Bushong behind the store counter and then standing to Bushong's
right as she opens the cash register drawer. After Bushong opens the
drawer, the man raises his left hand and shoots Bushong in the head.
Bushong immediately falls to the ground. The man then shifts the gun to
his right hand and removes the money from the cash register drawer with
his left hand. During this time, the second man, who is on the public side of
the store counter, can be seen leaning over and reaching into a display rack
filled with potato chips. After the shooter removes the money from the cash
register, the two men leave the store.
Doc. 33, Ex. 1, p. 7.
The Court uses the document, exhibit and page numbers assigned by the CM/ECF electronic
filing system.
3
Page 3 of 28
An FBI forensic photographic examiner testified that his analysis indicated
that the shooter on the videotape was six feet, one inch to six feet, two inches tall.
Evidence established that Williams was six feet, two inches tall and that he was
left-handed. Doc. 33, Ex. 1, p. 7.
Williams was arrested on February 15, 1995, for a crime other than the
murder of Sharon Bushong. At the time of his arrest, he had a .380-caliber pistol
in his jacket. An Illinois State Police forensic firearms examiner testified that the
cartridge case found in the convenience store and the bullet recovered from the
victim’s body were fired from the pistol taken from Williams.
Doc. 33, Ex. 1, p.
7.
Witness Michael Cook testified that he had seen Williams wearing the same
shirt as the shooter in the video and wearing only one sock. Cook and two other
witnesses testified that they had seen Williams with a .380-caliber pistol that
resembled the one taken from Williams during the summer and winter of 1994
and in January 1995. Doc. 33, Ex. 1, p. 8.
Witness Fred Jones, a friend of Williams, testified that, on November 3 or
November 4, 1994, Williams told him that Williams “and a couple more boys went
up in Belleville to rob the convenience store and they shot the lady.” Jones also
said that Williams was wearing the same shirt as worn by the shooter in the video
when he made that statement. Doc. 33, Ex. 1, p. 8.
Defendant’s cousin, Andrew Towns, testified that Williams told him that
Williams “and some more people robbed a liquor store or convenience store. And
Page 4 of 28
while they were running out the store, [defendant] yelled, ‘Don't forget the chips,’
to another person.” Towns also testified that Williams said “he shot the bitch”
who worked at the convenience store. Doc. 33, Ex. 1, p. 9.
Additional facts related to the statement of Gerald Simpson will be
described later in this Memorandum and Order.
2.
State Court Proceedings
On his initial direct appeal to the Supreme Court, Williams argued, as is
relevant here, that the trial court erred in excluding the statement of Gerald
Simpson in which Simpson said that he was the second man in the video and that
the shooter was a man named Fred. Petitioner’s Brief, Doc. 33, Ex. 1, pp. 31-39.
Petitioner’s motion for rehearing again raised the exclusion of Gerald Simpson’s
statement. Doc. 33, Ex. 2, pp. 39-42. The Supreme Court denied rehearing.
After petitioner was resentenced to life imprisonment, he appealed, raising
the following relevant points:
1.
The State failed to prove that petitioner was eligible for an extendedterm sentence because it failed to prove beyond a reasonable doubt
that “actually” killed Sharon Bushong.
2.
The judge at petitioner’s resentencing was biased against him and
should have been replaced.
3.
Petitioner’s life sentence violates equal protection.
Petitioner’s Brief, Doc. 33, Ex. 2, pp. 47-56.
The Illinois Appellate Court affirmed petitioner’s conviction and sentence.
Doc. 33, Ex. 3, p. 117. Petitioner filed a PLA, raising the three points described
above. Doc. 33, Ex. 4, p. 2. Leave to appeal was denied. Doc. 33, Ex. 4, p. 41.
Page 5 of 28
Williams then filed a postconviction petition.
He raised the following
relevant arguments in his counseled brief on appeal from the dismissal of the
petition:
1.
The petition stated the gist of a constitutional claim of ineffective
assistance of trial and appellate counsel in failing to argue that the
trial court should have conducted a second hearing on his motion to
quash arrest and suppress evidence because new, important
evidence was discovered at trial that had not been presented in the
original proceedings on the motion.
Petitioner’s Brief, Doc. 33, Ex. 6, pp. 23-24.
The Appellate Court affirmed the dismissal of the postconviction petition.
Doc. 33, Ex. 6, p. 109. Through counsel, petitioner filed a PLA raising two points
regarding the Appellate Court’s application of the Illinois postconviction statue.
Neither point asserted the ineffective assistance of trial or appellate counsel. Doc.
33, Ex. 7, pp. 11-24.
Leave to appeal was denied on March 25, 2015. Doc. 33, Ex. 7, p. 28.
Law Applicable to §2254 Petition
1.
Substantive Law
This habeas petition is subject to the provisions of the Antiterrorism and
Effective Death Penalty Act, known as the AEDPA.
“The Antiterrorism and
Effective Death Penalty Act of 1996 modified a federal habeas court's role in
reviewing state prisoner applications in order to prevent federal habeas ‘retrials’
and to ensure that state-court convictions are given effect to the extent possible
under law.” Bell v. Cone, 122 S.Ct. 1843, 1849 (2002).
Habeas is not yet another round of appellate review.
Page 6 of 28
28 U.S.C. §2254(d)
restricts habeas relief to cases wherein the state court determination “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 “a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.”
A judgment is “contrary to” Supreme Court precedent if the state court
“contradicts the governing law set forth in [Supreme Court] cases. “ Coleman v.
Hardy, 690 F.3d 811, 814 (7th Cir. 2012), citing Williams v. Taylor, 120 S. Ct.
1495, (2000).
A state court decision is an “unreasonable application of” clearly
established law “if the state court identifies the correct governing legal principle
from [the Supreme] Court's decisions but unreasonably applies that principle to
the facts of the prisoner's case.” Id.
The scope of federal review of state court
decisions on habeas is “strictly limited” by 28 U.S.C. § 2254(d)(1). Jackson v.
Frank, 348 F.3d 658, 661 (7th Cir. 2003). The unreasonable application standard
is “a difficult standard to meet.” Id., at 662.
Even an incorrect or erroneous
application of the federal precedent will not justify habeas relief; rather, the state
court application must be “something like lying well outside the boundaries of
permissible differences of opinion.” Id., at 662 (internal citation omitted).
2.
Timeliness, Exhaustion and Procedural Default
Respondent concedes petitioner has exhausted state remedies and that the
amended habeas petition was timely filed. Doc. 32, p. 8. He argues that some of
petitioner’s grounds are procedurally defaulted.
Page 7 of 28
A habeas petitioner must clear two procedural hurdles before the Court
may reach the merits of his habeas corpus petition: exhaustion of remedies and
procedural default. Bolton v. Akpore, 730 F.3d 685, 694-696 (7th Cir. 2013).
Before seeking habeas relief, a petitioner is required to bring his claim(s) through
“one complete round of the State’s established appellate review process” because
“the exhaustion doctrine is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are
presented to the federal courts.” O’Sullivan v. Boerckel, 119 S.Ct. 1728, 1732
(1999); see also 28 U.S.C. §2254(c).
Under the Illinois two-tiered appeals
process, petitioners such as Williams must fully present their claims not only to
an intermediate appellate court, but also to the Illinois Supreme Court, which
offers discretionary review in cases such as this one. Id. at 1732-1733.
Analysis
1.
Motion for Judgment on the Pleadings
Fed. R. Civ. P. 12(c) provides that “After the pleadings are closed--but early
enough not to delay trial--a party may move for judgment on the pleadings.”
“A motion for judgment on the pleadings may be granted only if the moving
party clearly establishes that no material issue of fact remains to be resolved and
that he or she is entitled to judgment as a matter of law.” National Fidelity Life
Insurance Company v. Karaganis, 811 F.2d 357, 358 (7th Cir. 1987).
The
standard for deciding a motion for judgment on the pleadings is analogous to the
standard for deciding a motion for summary judgment, except that the Court may
Page 8 of 28
consider only the content of the pleadings. Alexander v. City of Chicago, 994 F.2d
333, 336 (7th Cir. 1993).
The Federal Rules of Civil Procedure are not necessarily applicable in
habeas cases. Rule 12 of the Rules Governing Section 2254 Cases in the United
States District Courts states that ”The Federal Rules of Civil Procedure, to the
extent that they are not inconsistent with any statutory provisions or these rules,
may be applied to a proceeding under these rules.”
This Court concludes that a motion for judgment on the pleadings is not a
good fit in a habeas case, for two reasons. First, the language of Fed. R. Civ. P.
12(c) suggests that a motion for judgment on the pleadings is a device to narrow
and dispose of issues, where appropriate, without the necessity of trial.
See,
Federal Practice & Procedure, Civil §1368 (3d Ed.) (A 12(c) “motion may be
helpful in disposing of cases in which there is no substantive dispute that
warrants the litigants and the court proceeding further, thereby easing crowded
trial dockets in the federal district courts. . . . “) Of course, there is no trial in the
typical habeas action brought under §2254, and there is seldom a dispute as to
the facts, given the presumption of correctness created by §2254(e). Further, a
habeas court is not engaged in fact finding; rather, habeas review is generally
limited to the facts as developed in the state courts.
Secondly, the standard for deciding a motion for judgment on the pleadings
(judgment is to be granted in the moving party’s favor only if that party is entitled
to judgment as a matter of law) adds nothing to the process already inherent in a
Page 9 of 28
habeas case. Habeas cases are decided by judges, not juries, and the judge is to
enter judgment in favor of the party who is entitled to judgment as a matter of
law.
This Court has failed to uncover a Seventh Circuit case that applies Fed. R.
Civ. P. 12(c) in a habeas action. However, other district courts in this circuit have
considered that issue and the analogous issue of whether a motion for summary
judgment is appropriate in a habeas case, and have determined that it is not. See,
Truly v. Robert, 2008 WL 4449882, at *7 (N.D. Ill. Sept. 30, 2008)(motion for
judgment on the pleadings and motion for summary judgment not applicable);
Gilyard v. Sternes, 2004 WL 719261, at *2 (N.D. Ill. Mar. 31, 2004)(“The issues
presented in habeas petitions rarely require further factual development outside
of the state court record, which the Respondent is obliged to file with its Answer.
Consequently, summary judgment motions in habeas cases do not narrow and
isolate factual issues for trial as they do in other civil cases.”); Brookhouse v.
Ahitow, No. 97 C 642, 1997 WL 445936, at *2, n.2
(N.D. Ill. Aug. 1,
1997)(summary judgment procedure not applicable). This Court agrees with the
reasoning of these cases.
Because the Court concludes that Fed. R. Civ. P. 12(c) is not consistent with
28 U.S.C. §2254 or the Rules Governing Section 2254 Cases in the United States
District Courts, the Court concludes that Fed. R. Civ. P. 12(c) is not applicable in
this habeas case. Therefore, petitioner’s Motion for Judgment on the Pleadings
(Doc. 50) is DENIED. However, the Court will consider the arguments set forth in
Page 10 of 28
petitioner's motion in deciding the merits of his habeas petition.
2.
Merits of the Petition
The first ground concerns the exclusion of Gerald Simpson’s statement.
This issue was considered by the Supreme Court on Williams’ first direct appeal,
and the facts related to that issue are set forth in that court’s opinion.
Petitioner was arrested for the murder of one Carlos Robertson in February
1995. He was indicted on that offense in March 1995. He was indicted on the
Sharon Bushong murder in January 1996. His trial on the Robertson murder
charge resulted in a mistrial in July 1996. Ex. 1, p. 11.
The murders of Sharon Bushong and Carlo Robertson were connected as
follows:
At the aggravation-mitigation phase of the sentencing hearing, the State
introduced evidence that defendant [petitioner Williams] had murdered a
second individual, Carlos Robertson, shortly after murdering Bushong.
Robertson's body was discovered by police in his Washington Park home in
the afternoon of November 3, 1994. Robertson had been shot twice in the
head with different guns. Ballistics evidence established that one of the
guns used to kill Robertson was the same .380–caliber weapon that had
been used to murder Bushong and that had been taken from defendant at
the time of his arrest in February 1995.
Fred Jones testified again for the State at the aggravation-mitigation stage of
sentencing. . . . Jones explained that sometime after midnight, on
November 3, 1994, defendant, Carvon Jones, and Ricardo Spratt picked
Jones up in defendant's car. Jones stated that defendant picked him up
because he wanted Jones to help “get [defendant] inside Carlos Robertson's
house.” According to Jones, defendant said that Robertson and two others,
Ricardo Spratt and Gerald Simpson, had been with him when he robbed
the convenience store in Belleville and “shot the lady.” Defendant also said
that Robertson and Simpson had driven off without him after the robbery
and murder. . . . When Robertson opened the door, defendant and Spratt
rushed in. Defendant and Spratt then shot and killed Robertson for having
abandoned defendant at the Belleville convenience store.
Page 11 of 28
Ex. 1, p. 10.
Gerald Simpson, a cousin and roommate of Carlos Robertson, gave a
statement to the police on November 4, 1994, after having been questioned by the
police about the death of Carlos Robertson. Ex. 1, p. 12. This is the statement at
issue in petitioner’s first ground for habeas relief. The Illinois Supreme Court
described the statement:
In his statement, Simpson explained that he, Carlos Robertson, and a man
named “Fred” drove from Washington Park to Belleville around midnight
on November 2, 1994. According to Simpson, Fred told him that they were
going to Belleville to meet some women. When the group reached Belleville,
Fred, who was driving, pulled into a convenience store. He then told the
others that he was going to rob the store. Simpson asked him whether he
was “for real.” Fred started laughing and told Simpson to “come on.” Fred
and Simpson got out of the car while Robertson stayed behind. Fred put
something that looked like boxer shorts over his head, and told Simpson to
“look out for him” as he and Simpson entered the store. Once they were
inside the store, according to Simpson, “Fred started behind the counter
and told the white girl to open up the cash register. The white girl opened
up the cash register, Fred shot the white girl once, * * * in the head. She fell
to the floor and Fred took the money out of [the] cash register. Fred stuffed
all of the money into his pants pocket.” While Fred was robbing the store,
Simpson tried to cover his face with his hands because he had seen a
security camera when he entered the store. After robbing the store, Fred,
Simpson and Robertson returned to Washington Park. Later, Fred
murdered Robertson after the two had an argument.
Ex. 1, p. 12.
Simpson did not give Fred’s last name in that statement, but he later said it
was Fred Hoffman who shot Sharon Bushong. Hoffman was arrested, but was not
charged, in part because he was shorter than the height of the shooter in the
videotape as determined by the FBI forensic examiner.
Simpson then gave
another statement in which he again admitted that he was at the convenience
Page 12 of 28
store when Sharon Bushong was murdered, but said that the shooter was
Dewayne Willis. Willis was not charged because he had a firm alibi. Ibid.
Before trial, petitioner moved for permission to introduce the November 4,
1994, statement by Gerald Simpson.
He argued that the statement was
admissible under the statement-against-penal-interest-rule. The trial court denied
the motion. Ibid.
On habeas review, the federal court assesses the decision of the last state
court to rule on the merits of the claim. Simpson v. Battaglia, 458 F.3d 585, 592
(7th Cir. 2006). Here, that is the decision of the Supreme Court of Illinois on the
first direct appeal.
Pursuant to 28 U.S.C. §2254(d)(1), petitioner is entitled to habeas relief
only if he establishes that the state court’s decision was contrary to or an
unreasonable application of clearly established federal law, as determined by the
Supreme Court. The analysis under 28 U.S.C. § 2254(d) looks to the law that
was clearly established by Supreme Court precedent at the time of the state
court's decision. Wiggins v. Smith, 123 S. Ct. 2527, 2534 (2003).
The state court correctly identified Chambers v. Mississippi, 93 S. Ct. 1038
(1973), as the applicable Supreme Court precedent, and correctly summarized
the holding of Chambers, i.e., that an out of court statement by a third party
admitting to a crime may be admitted under the statement-against-penal-interest
exception to the hearsay rule where the statement has sufficient indicia of
reliability. The state court correctly identified several factors for consideration,
Page 13 of 28
including whether the statement was against the declarant’s penal interest,
whether it was corroborated by other evidence, and whether the declarant was
available for cross examination, and noted that these factors are “indicia” rather
than “hard and fast requirements. Ex. 1, p. 12.
The state court first considered whether Gerald Simpson’s statement was
against his penal interest. The court noted that Simpson was tried separately
from Williams, and the state used Simpson’s statement against Simpson at his
trial. 4
The court concluded that Simpson’s statement was against Simpson’s
penal interest insofar as he admitted that he accompanied Fred into the
convenience store after Fred told him that he was going to rob the store, and
further admitted that Fred told Simpson to “look out for him” as they entered the
store.
However, the state court further determined that other parts of the
statement were not against Simpson’s penal interest; what petitioner wanted
admitted was the part of the statement that identified Fred as the shooter, and
that part, the court concluded, was not against Simpson’s penal interest. In fact,
Simpson’s references to Fred all sought to portray Fred as the more culpable
party, and, as such, were self-exculpatory as to Simpson. The state court also
noted that there was “absolutely nothing in the record to corroborate” Simpson’s
identification of Fred as the shooter. Fred was identified as Fred Hoffman, but
Fred Hoffman was excluded because he was not tall enough. A few days after
giving his statement, Simpson identified Dewayne Willis as the shooter. Willis was
In footnote 2, the Illinois Supreme Court noted that Simpson’s trial ended in a mistrial, and the
record before it did not reveal whether he was retried. See, Ex. 1, p. 29.
4
Page 14 of 28
excluded because he had a firm alibi.
The state court thus concluded that
Simpson’s statement that Fred was
the shooter was
not given under
circumstances that provided “considerable assurance” of its reliability, citing a
state court case that quoted Chambers. Ex. 1, pp. 13-14.
Petitioner argues that the state court unreasonably applied Chambers
because portions of Simpson’s statement were corroborated by the videotape.
See, Doc. 49, Ex. 1, pp. 3-4. However, the details that were corroborated, such as
Simpson’s clothes and the fact that the shooter had boxer shorts on his head,
were irrelevant to the identification of Fred as the shooter.
The value of the
statement in William’s defense was that it identified Fred, and not Williams, as the
shooter.
The state court correctly found that the identification of Fred as the
shooter was completely uncorroborated. Further, the record indicated that it was
not true. Fred Hoffman was excluded because he was too short. And, Simpson
contradicted his statement only a few days later by identifying Dewayne Willis,
another identification that proved to be false.
Petitioner also argues that Simpson’s statement was reliable because it was
self-incriminating.
Doc. 49, Ex. 1, pp. 13-16.
However, the state court’s
determination that the identification of Fred as the shooter was not incriminating
to Simpson was reasonable. The state court’s application of Chambers was not
incorrect, much less unreasonable. See, Carson v. Peters, 42 F.3d 384, 386 (7th
Cir. 1994), noting that “Portions of inculpatory statements that pose no risk to the
declarants are not particularly reliable; they are just garden variety hearsay.”
Page 15 of 28
Petitioner also makes much of the fact that the state used Simpson’s
statement against Simpson at Simpson’s trial. Doc. 49, Ex. 1, pp. 16-18; Ex. 2,
pp. 1-2. However, the statement was admissible at Simpson’s trial to show that
Simpson participated in the robbery and was accountable for the murder of
Sharon Bushong. As the state court correctly pointed out that, the identity of the
shooter was immaterial in Simpson’s trial.
Ex. 1, p. 14.
The identity of the
shooter was the issue at Williams’ trial, and Simpson’s statement was not reliable
on that point. See, Carson, 42 F.3d 386 (“If a statement is reliable enough to
condemn its author, how can it be too unreliable to use when it cuts against the
prosecutor? The answer is that different parts of a statement may have radically
different degrees of reliability.”)
The Supreme Court recently reiterated that the standard for showing that
the state court unreasonably applied clearly established federal law is
“intentionally difficult to meet” and requires a showing 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.” Woods v. Donald, 135 S.
Ct. 1372, 1376 (2015)(internal citations omitted). Petitioner has not come close
to meeting that high standard here.
In addition, this Court agrees with
respondent that the exclusion of Simpson’s statement was not prejudicial to
petitioner. Simpson’s statement was extremely weak evidence as to the identity of
the shooter, since Simpson falsely identified two people.
Page 16 of 28
The second ground (ineffective assistance of trial and appellate counsel) is
procedurally defaulted. Williams raised ineffective assistance of counsel in his
postconviction petition and on appeal from the dismissal of the petition, but did
not raise it in his PLA.
The PLA, which was filed by counsel, raised only two issues. First, that the
trial court’s sua sponte dismissal without prejudice of his first postconviction
petition, filed while his first direct appeal was pending, was error under state law.
Secondly, that the Appellate Court disregarded the Illinois Postconviction Hearing
Act in refusing to consider petitioner’s claim of ineffective assistance because
petitioner failed to provide factual support for his assertions, such as a transcript.
Doc. 33, Ex. 7, p. 13.
Petitioner argues that the PLA fairly presented his Sixth Amendment
ineffective assistance of counsel claim because it “briefly provide[d] facts to
support those claims” and because the PLA cited to the Appellate Court decision,
which, in turn, cited Strickland v. Washington. 104 S.Ct. 2052 (1984). See, Doc.
49, pp. 15-16. This Court disagrees.
An issue is not fairly presented to a state court “if that court must read
beyond a petition or a brief (or a similar document) that does not alert it to the
presence of a federal claim in order to find material, such as a lower court
opinion in the case, that does so.”
(2004).
Baldwin v. Reese, 124 S. Ct. 1347, 1351
The Appellate Court’s citation to Strickland does not constitute fair
presentment of the Sixth Amendment claim to the Supreme Court. Here, the PLA
Page 17 of 28
clearly asked the Supreme Court to review the Appellate Court’s application of
state law (the Illinois Postconviction Hearing Act), and not the substantive federal
law issue of whether counsel had rendered ineffective assistance.
Petitioner also argues that his ineffective assistance claim was not
adjudicated on the merits in state court because the Appellate Court
misconstrued the nature of his ineffective assistance claim in the first instance
and denied him a “full and fair hearing.” He reasons that he is entitled to a de
novo review of his ineffective assistance of counsel claim here. Doc. 49, Ex. 2, p.
6, et seq. He is incorrect.
First, petitioner’s argument is contradicted by the record. The Appellate
Court did, in fact, adjudicate petitioner’s claim on the merits. See, doc. 33, Ex. 6,
pp. 115-120. Putting that fact aside, petitioner’s argument assumes that a failure
of the state court to address an argument would relieve him of the burden of
presenting that argument for one full round of state court review. He is incorrect.
A claim that has not been presented for one full round of state court review is
procedurally defaulted and cannot be considered on habeas review. O’Sullivan,
119 S.Ct. at 1732-1733. As was explained above, the PLA sought review only of
the Appellate Court’s application of state law; it did not present a substantive
Sixth Amendment claim of ineffective assistance of counsel. Therefore, Williams’
claim of ineffective assistance of counsel is defaulted and cannot be considered
here.
Petitioner’s third claim is that the state failed to prove to the extended-term
Page 18 of 28
qualifying jury that he was the person who actually murdered Sharon Bushong, in
violation of his “liberty interest” and Apprendi v. New Jersey, 120 S.Ct. 2348
(2000). Doc. 17, p. 39. At page 48 of his amended petition, he complains that the
state did not prove that he actually and intentionally killed Sharon Bushong. And,
at page 8 of his motion for judgment on the pleadings, Doc. 50, petitioner argues
that his “liberty interest” claim was not adjudicated on the merits in state court
and should therefore be reviewed de novo here.
Respondent argues, correctly, that the claim that the state did not prove
that he intentionally (as opposed to actually) killed Sharon Bushong was not
presented for one full round of state court review. This Court agrees. The claim
that was presented in state court was that the State failed to prove that petitioner
was eligible for an extended-term sentence because it failed to prove beyond a
reasonable doubt that “actually” (not “intentionally”) killed Sharon Bushong.
Petitioner’s Brief, Doc. 33, Ex. 2, pp. 47-56.
Petitioner’s suggestion that he is entitled to de novo review of his “liberty
interest” claim is incorrect. Rather, that claim is defaulted because it was raised
only in his reply brief on his second direct appeal, Doc. 33, Ex. 3, p. 65. In any
event, the “liberty interest” argument adds little to the Apprendi argument.
Petitioner’s death sentence was vacated on his first direct appeal and was
then commuted by the governor. The state filed a notice that it intended to seek
an extended-term sentence, and a jury was empaneled to determine whether one
of the statutory aggravating factors was present.
Page 19 of 28
The essence of both the
Apprendi and “liberty interest” arguments is that the state did not present
sufficient evidence to this jury to prove beyond a reasonable doubt that Williams
actually killed Sharon Bushong.
The Appellate Court considered this claim on petitioner’s second direct
appeal. The Appellate Court noted that, on his first direct appeal, the Supreme
Court determined that the evidence presented at trial was sufficient to support the
jury’s verdict finding him guilty of first-degree murder.
At the extended-term
sentencing hearing, certified copies of the indictment charging petitioner with first
degree murder and of the original jury’s verdict finding him guilty of first degree
murder were introduced into evidence, along with the videotape showing the
murder and robbery. The jury found that petitioner was eligible for an extendedterm sentence because he murdered Sharon Bushong in the course of another
felony, pursuant to 720 ILCS 5/9-1(b)(6) (1994). 5 The Appellate Court concluded
that Apprendi was satisfied by the submission of the indictment and the original
jury’s verdict because a “rational jury could have found the qualifying factor based
upon the indictment and the guilty verdict.” Doc. 33, Ex. 3, pp. 127-131.
Petitioner presents no Supreme Court authority for the proposition that the
state was prohibited from relying on the indictment and the trial jury’s verdict to
prove to the enhanced-sentence jury that he actually killed Sharon Bushong in the
court of another felony. Apprendi, of course, did not consider that precise issue.
The Seventh Circuit has held that Apprendi does not require the state to prove
Petitioner elected to be sentenced under the 1994 version of the statute, which has since been
amended. See, Doc. 34, Ex. 6, pp. 40-41.
5
Page 20 of 28
facts already found by the guilt phase jury for a second time to an enhancedsentence. Mack v. McCann, 530 F.3d 523, 536-537 (7th Cir. 2008).
The jury at petitioner’s trial was instructed that, in order to find petitioner
guilty of first degree murder, it must first find that he “performed the acts which
caused the death of Sharon Bushong.” Jury Instruction, Doc. 34, Ex. 5, p. 10. It
follows, then, that the trial jury found that petitioner actually killed Sharon
Bushong. There is no Supreme Court precedent for the argument that the state
was required to start from scratch with the extended-term sentence jury rather
than relying on the trial verdict to prove that petitioner actually killed Sharon
Bushong.
Petitioner’s fourth claim is that the judge who imposed the life sentence,
Judge John Baricevic, was prejudiced against him because the judge knew that a
jury had sentenced him to death and that the governor had commuted his death
sentence.
Once again, petitioner argues that this claim should be reviewed de novo
because the state court did not adjudicate it on the merits. He is incorrect. The
Appellate Court decided this issue on petitioner’s second direct appeal. Doc. 33,
Ex. 3, pp. 128-129.
The Court cited to People v. Del Vecchio, 544 N.E.2d 312 (Ill. 1989). Del
Vecchio cited relevant United States Supreme Court cases on disqualification of
judges for bias or prejudice:
The United States Supreme Court has recognized that the issue of judicial
disqualification does not necessarily involve a question of constitutional
Page 21 of 28
validity. The Supreme Court has stated that “matters of kinship, personal
bias, state policy, remoteness of interest would seem generally to be
matters merely of legislative discretion. [Citation.] But it certainly violates
the 14th Amendment and deprives a defendant in a criminal case of due
process of law to subject his liberty or property to the judgment of a court,
the judge of which has a direct, personal, substantial pecuniary interest in
reaching a conclusion against him in his case.” (Tumey v. Ohio (1927), 273
U.S. 510, 523, 47 S.Ct. 437, 441, 71 L.Ed. 749, 754; see Aetna Life
Insurance Co. v. Lavoie (1986), 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d
823; Ward v. Village of Monroeville (1972), 409 U.S. 57, 93 S.Ct. 80, 34
L.Ed.2d 267.) Another guiding principle on the issue of judicial bias is
whether the case involves a possible temptation such that the average
person, acting as judge, could not hold the balance nice, clear and true
between the State and the accused. (Tumey v. Ohio (1927), 273 U.S. 510,
532, 47 S.Ct. 437, 444, 71 L.Ed. 749, 758.) Recently, the Supreme Court
recognized that only under the most extreme cases would disqualification
on the basis of bias or prejudice be constitutionally required. Aetna Life
Insurance Co. v. Lavoie (1986), 475 U.S. 813, 821, 106 S.Ct. 1580, 1585,
89 L.Ed.2d 823, 832.
Del Vecchio, 544 N.E.2d at 316–17.
Thus, the Appellate Court was aware of the
federal nature of the claim and adjudicated the claim on the merits. The claim
must therefore be reviewed under 28 U.S.C. §2254(d)(1). Harrington v. Richter,
131 S. Ct. 770, 783 – 85 (2011).
Petitioner has not demonstrated that the Appellate Court’s decision was
contrary to or an unreasonable application of established federal law as
determined by the Supreme Court. Petitioner has not identified a Supreme Court
precedent holding that due process requires the removal of a judge who has
knowledge about a case similar to what Judge Baricevic knew here. At Doc. 50,
Ex. 3, p. 2, petitioner cites Liteky v. United States, 114 S.Ct. 1147 (1994), but
that case is not relevant here because it was decided on the basis of a federal
statute (28 U.S.C. §455(a)) and not on constitutional grounds.
Page 22 of 28
It is inconceivable that any judge to whom petitioner’s case was assigned for
resentencing would not be aware that Williams had been sentenced to death, that
his death sentence had been vacated by the Illinois Supreme Court, and that his
death sentence had been commuted by the governor. The state court concluded
that petitioner had not shown that knowledge of these fact caused Judge Baricevic
to be actually prejudiced against him.
Ex. 3, p. 128.
Petitioner has not
demonstrated that that conclusion was unreasonable.
Petitioner’s last point is that the Illinois sentencing statutes under which he
was sentenced violate equal protection. He argues that the statutes create three
different maximum sentences for first degree murder, and therefore they treat
similarly situated persons differently.
The Appellate Court decided petitioner’s equal protection claim in his
second direct appeal. The court rejected his claim because the statutory scheme
was reasonably related to the purpose of the legislature in enacting the statutes,
i.e., the protection of society from persons who kill during the commission of
violent crimes. Doc. 33, Ex. 3, pp. 137-138. Therefore, the claim is reviewed
deferentially under §2254(d)(1).
The state court applied a general equal protection analysis to the issue, and
petitioner has not demonstrated that the analysis was incorrect. Furthermore,
the United States Supreme Court has never held that sentencing statues which
permit different sentences for persons convicted of the same crime are
unconstitutional. In fact, Supreme Court precedent suggests the opposite:
Page 23 of 28
Sentencing judges are vested with wide discretion in the exceedingly
difficult task of determining the appropriate punishment in the countless
variety of situations that appear. The Constitution permits qualitative
differences in meting out punishment and there is no requirement that two
persons convicted of the same offense receive identical sentences.
Williams v. Illinois, 90 S. Ct. 2018, 2023 (1970). See also, Holman v. Page, 95
F.3d 481, 486 (7th Cir. 1996) (“[I]t is not unconstitutional for Illinois to give a
sentencing judge a choice between two statutes providing different penalties for
identical conduct”), overruled on other grounds by Owens v. United States, 387
F.3d 607 (7th Cir. 2004).
3.
Cause and Prejudice; Actual Innocence
Petitioner has procedurally defaulted several of his claims.
Procedural
default can be overcome by a showing of cause and prejudice. Petitioner must
establish cause for his default and prejudice, or that failure to consider the claim
would likely result in a miscarriage of justice. Coleman v. Thompson, 111 S. Ct.
2546, 2565 (1991).
Williams has not made any attempt to show cause for his default or that
failure to consider his arguments would result in a miscarriage of justice. This
Court cannot make the cause and prejudice argument for him. Lee v. Foster, 750
F.3d 687, 694 (7th Cir. 2014).
Lastly, petitioner has not made a claim of actual innocence sufficient to
overcome his procedural default. McQuiggin v. Perkins, 133 S. Ct. 1924, 1931
(2013).
4. Objections to and Appeal of Magistrate Judge Decision (Doc. 108)
Page 24 of 28
Under FEDERAL RULE
OF
CIVIL PROCEDURE 72(a), the Court may modify or
reverse a magistrate judge on a non-dispositive issue upon a showing that the
magistrate judge’s decision is “clearly erroneous or contrary to the law.” A finding
is clearly erroneous when “the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.” Anderson v.
City of Bessemer, 470 U.S. 564, 573 (1985) (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948)); Weeks v. Samsung Heavy Indus.
Co., 126 F.3d 926 (7th Cir. 1997).
In applying this “clear error” standard, a district judge may overturn a
decision “only if the district court is left with the definite and firm conviction that
a mistake has been made.” Weeks v. Samsung Heavy Indus. Co. Ltd., 126 F.3d
926, 943 (7th Cir. 1997). Accordingly, the Court will affirm Judge Proud’s
decision unless his factual findings are clearly erroneous or his legal conclusions
are contrary to law. Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A); S.D. Ill. Local
Rule 73.1(a).
The Court finds that petitioner has not established that Judge Proud’s
orders were clearly erroneous or contrary to the law in this case. Specifically, in at
least four prior orders, this Court has explained that habeas review is generally
limited to materials that were before the state court and that, except in unusual
circumstances, an evidentiary hearing is precluded. Cullen v. Pinholster, 131 S.
Ct. 1388, 1398-1399 (2011). Simply because petitioner does not agree with the
law, the disagreement is not indicative of a mistake warranting reversal of the
Page 25 of 28
magistrate judge’s prior decisions. Therefore, based on the law of this Circuit, it is
clear that good cause has not been shown to warrant reversal of Judge Proud’s
Orders (Docs. 104-106). Petitioner failed to show that Judge Proud’s decisions
were clearly erroneous or contrary to law. Upon further review of the pleadings,
the Court also finds petitioner’s objections to be meritless. Thus the Court
OVERRULES the objections and AFFIRMS Magistrate Judge Proud’s Orders
(Docs. 104-106).
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, this Court
must “issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” A certificate should be issued only where the petitioner
“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§2253(c)(2).
In order for a certificate of appealability to issue, petitioner must show that
“reasonable jurists” would find this Court’s “assessment of the constitutional
claims debatable or wrong.”
See, Slack v. McDaniel, 120 S.Ct. 1595, 1604
(2000). Where a petition is dismissed on procedural grounds without reaching
the underlying constitutional issue, the petitioner must show both that reasonable
jurists 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.”
McDaniel, Ibid.
Page 26 of 28
Slack v.
Here, no reasonable jurist would find it debatable whether this Court’s
rulings on the substantive issues or on procedural default were correct.
Therefore, the Court denies a certificate of appealability.
Conclusion
Bobby O. Williams’ amended petition for habeas relief under 28 U.S.C.
§2254 (Doc. 17) is DENIED, as is his Motion for Judgment on the Pleadings
(Doc. 50).
The Court denies a certificate of appealability.
The Clerk of Court shall enter judgment in favor of respondent.
IT IS SO ORDERED.
DATE: November 9, 2016
Digitally signed by
Judge David R. Herndon
Date: 2016.11.09
15:09:12 -06'00'
United States District Court Judge
Page 27 of 28
Notice
If petitioner wishes to appeal the dismissal or denial of his petition, he may
file a notice of appeal with this court within thirty days of the entry of judgment.
Fed. R. App. P. 4(a)(1)(A). A motion for leave to appeal in forma pauperis should
set forth the issues petitioner plans to present on appeal. See Fed. R. App. P.
24(a)(1)(C).
A certificate of appealability is required to appeal from the dismissal or
denial of a §2254 petition. Rule 11 of the Rules Governing §2254 Cases requires
that, when entering a final order adverse to the petitioner, the district court must
issue or deny a certificate of appealability.
Here, the Court has denied a
certificate. In order to appeal the dismissal or denial of his petition, petitioner
must obtain a certificate of appealability from the court of appeals.
Petitioner cannot appeal from this Court’s denial of a certificate of
appealability. Further, a motion to reconsider the denial does not extend the time
for appeal. See, Rule 11(a).
Petitioner is further advised that a motion to alter or amend the judgment
filed pursuant to Federal Rule of Civil Procedure 59(e) must be filed no later than
28 days after the entry of the judgment—a deadline that cannot be extended. A
proper and timely Rule 59(e) motion may toll the thirty day appeal deadline.
Other motions, including a Rule 60 motion for relief from a final judgment, order,
or proceeding, do not toll the deadline for an appeal.
Page 28 of 28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?