Childs v. Butler

• Decision Date: 16 June 2014
• Docket Number: Case No. 11-cv-688-DRH-SCW
• Court: U.S. District Court — Southern District of Illinois
• Parties: CHARLES CHILDS, Plaintiff, v. KIM BUTLER, Warden, Menard Correctional Center, Defendant.

CHARLES CHILDS, Plaintiff, v. KIM BUTLER, Warden, Menard Correctional Center, Defendant¹.

Case No. 11-cv-688-DRH-SCW

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

Signed: June 16, 2014

MEMORANDUM AND ORDER

HERNDON, Chief Judge:

I. Introduction

This case is before the Court on a petition for writ of habeas corpus (Doc. 1). Respondent has filed a Response (Docs. 14 & 15) and Amended Response (Doc. 19) to the petition. Respondent later filed a supplemental Exhibit to the Response (Doc. 28). Petitioner has filed a Reply (Doc. 37). Respondent has filed a Sur-Reply (Doc. 41). Based on the following, the Court DENIES and DISMISSES petitioner's habeas petition (Doc. 1).

II. Background

A. Procedural Background

1. Facts

Petitioner is currently incarcerated at Menard Correctional Center where he is serving a fifty-year prison term for one count of first degree knowing murder (Doc. 15 Ex. A).

Petitioner was charged in Peoria County with three counts: aggravated discharge of a firearm, first degree murder, and felony murder based on aggravated discharge of a firearm (Id.). The following facts regarding the acts that lead to petitioner's conviction on this charge is taken from the Order on Appeal from the Circuit Court of the 10th Judicial Circuit (Id.).

On August 19, 2000, petitioner was picked up by Marcus Risby and Joseph Griffin in their car. At the time, petitioner had a semi-automatic rifle with him which was wrapped in a sheet (Doc. 15 Ex. A at p. 2). Risby explained that he had an earlier encounter with Mitchell McGee and that he was going to "check" McGee, which Griffin testified at trial meant he was7 going to question him (Id. at pp. 2-3). Risby dropped Griffin off and Risby and petitioner went to find McGee, stopping at a house where Risby had previously seen McGee (Id. at p. 3). Risby and petitioner walked to the back of the house and Risby instructed petitioner to stay at the back of the house and then at the count of five to shoot at the house (Id.). Risby walked to the front of the house and petitioner shot his semi-automatic rifle into the house for ten seconds (Id.). One of the bullets ricocheted and hit Risby in the head, killing him (Id.).

At the trial, the owner of the house testified that she was at home with her two grandchildren when the shooting started and was awakened by the gunfire(Id.). Neither she nor her grandchildren were injured (Id.). Forensic pathologists testified that the bullet that killed Risby had traveled some distance and ricocheted. Petitioner's semi-automatic rifle fired 25 of 27 cartridges, which were found in the backyard (Id.). A pistol was found near Risby with ten rounds that had not been fired. The pistol had Risby's fingerprints on it (Id.). At the trial, petitioner also testified and confirmed the facts but added that he thought the home was empty at the time that he fired into the house. He testified that upon approaching the house, Risby did not see McGee's house and assumed he was not home. He stated that he would not have fired into the house if he believed people were inside (Id.). Petitioner was found guilty on all three counts and was sentenced to 50 years in prison on the first degree murder charge only.

2. State Court Proceedings

a. Direct Appeal

After petitioner's guilty verdict, petitioner appealed raising the following claims on direct appeal:

(1) Petitioner was not guilty of first degree knowing murder because the prosecution failed to prove beyond a reasonable doubt that petitioner knew that the house was occupied when he fired his gun into it. Likewise, petitioner did not commit aggravated discharge of a firearm and was not guilty of felony murder;

(2) Petitioner's conviction of felony murder was improperly premised on aggravated discharge of a firearm because that felony has no independent felonious intent and it is not a forcible felony under the felony murder statute;

(3) The prosecution improperly shifted the burden of proof on the element concerning whether Petitioner knew the building wasoccupied;

(4) The trial court improperly considered three victim impact statements in violation of state law; and

(5) The trial court abused its discretion in sentencing petitioner to a fifty-year prison term.

(Doc. 15 Ex. B).

The state appellate court affirmed Petitioner's verdict and sentence on October 17, 2011 (Doc. 15 Ex. A). Petitioner filed a petitioner for leave to appeal (PLA) to the Illinois Supreme Court on claims (1) and (3) and the supreme court denied his PLA on February 6, 2002 (Doc. 15 Exs. E and F).

b. Post-Conviction Proceedings

On August 6, 2002, petitioner filed a post-conviction petitioner pursuant to 725 ILCS 5/122-1, et seq., in the Circuit Court of Peoria County (Doc. 15 Ex. G). In that petition, petitioner raised the following issues:

(1) Trial counsel was ineffective in:

a. failing to investigate petitioner's claim that the Peoria Police Department denied him counsel by telling him that he did not need an attorney because he was being charged only with involuntary manslaughter;

b. failing to move to quash arrest in light of the denial of petitioner's right to counsel;

c. failing to investigate petitioner's claim that he was tricked by the police into giving a videotaped statement;

d. failing to move to suppress the videotaped statement;

e. failing to investigate petitioner's claim that he was intoxicated at the time of the offense;f. failing to investigate whether petitioner's ability to recall details from the shooting precluded a defense of voluntary intoxication;

g. failing to advise petitioner that he could have asserted a voluntary intoxication defense;

h. failing to allow petitioner to testify about his consumption of liquor and marijuana shortly before the shooting;

i. failing to allow other witnesses to testify about petitioner's consumption of alcohol and marijuana prior to the shooting;

j. failing to present evidence from the coroner and pathologist showing that the victim had been drinking and ingesting drugs shortly before he was killed;

k. failing to call Detective Grow to testify about petitioner's statements, while in police custody, about his intoxication at the time of the offense; and

l. failing to object to the court's refusal to answer the jury's request to define the word "occupied' in the jury instructions.

(2) appellate counsel on direct appeal was ineffective for failing to:

a. argue that the trial court erred when it failed to answer the jury's request to define the word "occupied"; and

b. argue that trial counsel was ineffective for failing to object to the trialcourt's refusal to answer the jury's request to define the word "occupied."

(Doc. 15 Ex. G)

The trial court denied the post-conviction petition on September 30, 2003 (Doc. 15 Ex. H). Petitioner appealed to the state appellate court, raising two grounds: (1) he was entitled to an evidentiary hearing for claim that the Peoria Police Department deprived him of counsel; and (2) trial counsel was ineffective forfailing to file a motion to suppress his statement on that ground (Doc. 15 Exs. I, J, and K). The state appellate court reversed the case on August 11, 2005 for an evidentiary hearing (Doc. 15 Ex. L). The appellate court found that petitioner's petition as well as his affidavit alleged acts by the Peoria police department that, if proven, could have led to a successful motion to suppress (Doc. 15 Ex. Q at pp. 27-28). The appellate court also found that if petitioner's videotaped statements were suppressed, the state's case would have been weakened (Id.). The court, however, expressed no opinions on the merits of petitioner's claims and instead remanded the case back to the trial court for an evidentiary hearing (Id.).

The trial court held an evidentiary hearing at which the following testimony was heard (the following evidence comes from the appellate court's recitation of the evidentiary hearing):

At the hearing, Lillie Childs, petitioner's aunt, testified that on August 22, 1999 she received a call from petitioner in the late afternoon as it was "kind of dark" (Doc. 15 Ex. Q at p. 28). Petitioner informed Lillie Childs that he was being questioned for murder and asked her to obtain counsel for him (Id.). He informed her that he had not given the police a statement, but he did not indicate that he told the police he wanted an attorney (Id.). After receiving his call, Lillie Childs went to petitioner's mother's house, Mary Childs, where she told her about the phone call from petitioner (Id.). Mary Childs also testified that her sister came by the house on August 22, 1999 early in the afternoon (Id.). She telephoned a couple of attorneys after Lillie left and on another day retained James Shadid torepresent petitioner (Id.).

Petitioner's wife also testified that she saw petitioner on August 20, 1999 and that he was drunk. She saw him at approximately 10:00 p.m. and he was "sloppy drunk." (Id. at p. 29). She saw him again at approximately 1:00 a.m. and he was smoking marijuana and drinking (Id.).

Petitioner also testified at the evidentiary hearing. He testified that he was arrested on August 22, 1999 at approximately 4:00 a.m. and was taken to the police station where he was questioned by Officer Javier Grow (Id). Between 4:00 a.m. and 8:00 a.m. petitioner was questioned by Detective Jerry Wolland, who informed him of his Miranda rights, but petitioner did not provide him with a statement. Instead, he told him he did not know of Risby's death (Id.). He was then questioned by Grow at approximately 8:00 a.m. Detective Pat Rabe was also present (Id.). Petitioner was informed of Risby's death and he maintained that he did not know anything. Petitioner testified that he spoke with them on and off for four and a half hours (Id.). Rabe also read petitioner his Miranda rights and petitioner testified that he interrupted Rabe and stated he wanted an attorney (Id.). He again requested an attorney when Rabe finished with the Miranda rights (Id.). He also asked for a...