Lewis v. Lane

• Citation: 832 F.2d 1446
• Decision Date: 09 December 1987
• Docket Number: Nos. 87-1103,87-1171,s. 87-1103
• Parties: Cornelius LEWIS, Petitioner-Appellee, v. Michael LANE and James Thieret, Illinois Department of Corrections, Respondents-Appellants. Cornelius LEWIS, Petitioner-Appellant, v. Michael LANE, Director of the Illinois Department of Corrections, and James Thieret, Warden of Menard Correctional Center, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1446

832 F.2d 1446

Cornelius LEWIS, Petitioner-Appellee, v. Michael LANE and James Thieret, Illinois Department of

Corrections, Respondents-Appellants.

Cornelius LEWIS, Petitioner-Appellant, v. Michael LANE, Director of the Illinois Department of

Corrections, and James Thieret, Warden of Menard

Correctional Center, Respondents-Appellees.

Nos. 87-1103, 87-1171.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 1987.

Decided Nov. 4, 1987.

Rehearing Denied Dec. 9, 1987.

J. Steven Beckett, Reno O'Byrne & Kepley, Champaign, Ill., for petitioner-appellee.

Jack Donatelli, Asst. Atty. Gen., Chicago, Ill., for respondents-appellants.

Before CUMMINGS, CUDAHY, and COFFEY, Circuit Judges.

CUMMINGS, Circuit Judge.

Petitioner, Cornelius Lewis, his sister, Bernice Lewis, and Willie Sangster were indicted in Macon County, Illinois, on February 21, 1979, and charged with the offenses of murder, armed robbery, and aggravated kidnapping in connection with the robbery of the Citizens National Bank in Decatur, Illinois, on December 14, 1978, during which a bank security guard was shot and killed. Sangster's case was continued and petitioner and his sister Bernice were tried together. A jury found both guilty of all three charges. Petitioner was subsequently sentenced to death for murder. Bernice was sentenced to concurrent prison terms of forty years for murder, thirty years for armed robbery, and thirty years for aggravated kidnapping.

The Illinois Supreme Court on direct appeal affirmed petitioner's conviction and death sentence. People v. Lewis, 88 Ill.2d 129, 58 Ill.Dec. 895, 430 N.E.2d 1346 (1981). The Supreme Court of the United States subsequently denied certiorari. Lewis v. Illinois, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308. Petitioner then sought post-conviction relief in the Illinois courts. See Ill.Rev.Stat. ch. 38, p 122-1 et seq. An Illinois circuit court denied post-conviction relief, and the Illinois Supreme Court again on direct appeal affirmed the lower court's order. People v. Lewis, 105 Ill.2d 226, 85 Ill.Dec. 302, 473 N.E.2d 901 (1984). Certiorari was again denied. Lewis v. Illinois, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153.

On November 13, 1985, the Illinois Supreme Court granted petitioner a stay of execution pending his filing a petition for a writ of habeas corpus. The stay was subsequently extended to cover the outcome of the federal habeas corpus proceedings which were commenced pursuant to 28 U.S.C. Sec. 2254 on March 31, 1986. The habeas petition challenged both the conviction and the death sentence. Petitioner claimed that his conviction had been obtained in violation of his right under the Sixth Amendment to effective assistance of counsel. He further claimed that his Sixth Amendment right to effective assistance of counsel had also been denied during the sentencing phase of his case. Finally, he claimed that the Illinois Death Penalty Act, Ill.Rev.Stat. ch. 38, p 9-1, was unconstitutional under the Eighth and Fourteenth Amendments.

The district court held that petitioner had failed to demonstrate ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, during the guilt phase of his trial. See United States ex rel. Lewis v. Lane, 656 F.Supp. 181 (C.D.Ill.1987). However, the court held that he had been denied his Sixth Amendment right to effective assistance of counsel during the sentencing phase of his prosecution and accordingly issued a writ of habeas corpus vacating the death sentence and ordering resentencing. In light of its holding with regard to petitioner's sentencing, it did not reach the constitutionality of the Illinois Death Penalty Act. Respondent appeals the court's grant of the writ of habeas corpus ordering resentencing. Petitioner cross-appeals the district court's denial of relief as to his conviction. We affirm.

I.

28 U.S.C. Sec. 2254(d) provides that the factual findings of a state court are presumed to be correct in a federal habeas corpus proceeding. See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722. Like the district court, we adopt the Illinois Supreme Court's following statement of facts in People v. Lewis, 88 Ill.2d 129, 136-41, 58 Ill.Dec. 895, 898-90, 430 N.E.2d 1346, 1349-51 (1981):

"The testimony of the principal witnesses was as follows. Jodi Myers testified that, at 6:45 a.m. on the morning of the crime, she noticed two or possibly three persons in a maroon Monte Carlo automobile in the parking lot of the day-care center where she worked. As she walked near the Monte Carlo, a black man seated in the driver's seat (whom she later identified from a line-up as Maurice Farris) lowered his sun visor.

"Mary Comerford testified that, after delivering her child to the same day-care center, she returned to her car, noticing two black persons in a maroon Monte Carlo parked next to her white Mercury automobile. When she entered her car, a black man wearing a ski mask appeared in her back seat and forced her to drive away, eventually taping her eyes and hands and placing her in the trunk of the Mercury.

"Kaye Pinkley, a teller at the Citizens National Bank, testified that decedent Bivens normally drove a van with five tellers from the bank's parking garage to an auto-banking facility. Shortly before 8 a.m. on December 14, as decedent was about to start the van in which the tellers were seated, a tall black man pulled the right front door open, leaned his elbows on the witness's legs, ordered the tellers to remain silent, and shot decedent, as the latter apparently reached for his gun. Then the gunman and another robber took three of the tellers' five briefcases containing money for the day and banking paraphernalia, ran to a light-colored Mercury and drove away. Teller Pinkley and two other tellers later identified items recovered from the Macon County landfill as items which had been in their briefcases that morning.

"Mr. and Mrs. Joseph Dennis from rural Macon County stated that, while sitting in their car near the Citizens National Bank, they saw two blacks park Mrs. Comerford's Mercury, enter the bank's parking garage, later return to the Mercury, with three black briefcases, and drive off. Gail Thompson, a florist, saw a black man or person dressed as a man, carrying a black briefcase in the vicinity of the parking lot near the bus station, where Norman Goenne, an office worker, saw the driver in a maroon Monte Carlo, waiting with the engine running at around 7:45 a.m.

"Maurice Farris testified that he and Willie Sangster (who according to the prosecution's theory was the mastermind of the robbery) surveyed the Citizens National Bank and the route to the home of Margaret Morgan, where defendant apparently was staying. On two mornings, Farris observed the tellers' routine. Sangster introduced defendant and his sister (using the names 'Denise' and 'Mingo') to Farris, who at trial estimated the sister's height as 5 feet 11 inches, defendant's as over 6 feet and his own as 5 feet 8 inches. The Lewises and he discussed plans for the robbery of the bank. Farris was to drive the car, the Lewises were to do the actual robbing, and Sangster was to get $10,000 'off the top' the day after the robbery, apparently for his role in planning. On the morning of December 13, when they had intended to carry out the plan, the Lewises and Farris were unable to steal a car for use in the robbery, but they did observe the tellers' routine and drove along the route to Mrs. Morgan's. The next morning defendant and his sister, with Farris driving, went to the daycare center in the Monte Carlo looking for a car to steal. Maurice lowered his sun visor to avoid being identified. Defendant left the car and concealed himself in the back seat of Mrs. Comerford's Mercury. When she entered the car he forced her to drive away and eventually took control of her car, forcing her to get into the trunk. Defendant's sister then left Fanis in the Monte Carlo, which had accompanied the Mercury, and sat on the passenger side of the front seat of the Mercury. Farris drove to a parking lot near the bus station, got some coffee at about 7:40, and waited with the motor running until defendant and his sister rejoined him, carrying one and two briefcases respectively. The Lewises concealed themselves on the floor of the maroon Monte Carlo. On the drive to Mrs. Morgan's, a siren prompted comments by the sister, and defendant stated, 'The guard went for his gun. I had to burn him.' Except for the possibility of a perjury prosecution, Farris received total immunity in return for his testimony.

"Mrs. Morgan testified that the Lewises had stayed with her beginning on December 12, 1978. On the morning of December 14, at about 8:05 or 8:10 a.m., she observed the defendants with three black briefcases. She asked Bernice Lewis whether Bernice knew that the bank had been robbed, to which Bernice, with defendant present, replied, 'Did he die?' Later that morning Mrs. Morgan saw both Lewises counting a large quantity of money on her coffee table, with black briefcases and 'blank money orders from the bank and money wrappers' present. Defendant gave Mrs. Morgan a paper sack to take to Willie Sangster at Jelk's Barbershop, where he worked. Later that day, Bernice Lewis and Mrs. Morgan went to a deteriorated section of Decatur to dispose of the black briefcases and a garbage bag containing two handguns, money wrappers, and other miscellaneous items. Subsequently Mrs. Morgan and two neighbors moved these things from the garbage cans, where Bernice Lewis and she had put them, to a 'dumpster.' Mrs. Morgan, Shirley Brummet (a neighbor), and the Lewises drove to the Davenport, Iowa, bus station, where defendant and his sister caught the bus to Des Moines. Mrs. Morgan eventually turned over to the FBI some money which she said included that given her by defendant. Mrs. Morgan testified that she discovered a .357-Magnum...