Dibble v. Brookhart

• Decision Date: 06 July 2020
• Docket Number: Case No. 18-cv-609-SMY
• Parties: TERRY DIBBLE, # B81130, Petitioner, v. DEANNA BROOKHART, Respondent.
• Court: U.S. District Court — Southern District of Illinois

TERRY DIBBLE, # B81130, Petitioner, v. DEANNA BROOKHART, Respondent.

Case No. 18-cv-609-SMY

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

July 6, 2020

MEMORANDUM AND ORDER¹

YANDLE, District Judge:

Following a jury trial in St. Clair County, Illinois, Petitioner Terry Dibble was convicted of the first-degree murder of Billy Barker and was sentenced to 45 years imprisonment. He is now in the custody of the Illinois Department of Corrections at Lawrence Correctional Center.

Dibble filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He raises the following grounds in his Amended Petition (Doc. 14):

1. His conviction violates the Due Process clause of the 14th Amendment because the jury was instructed on a felony murder theory that was unsupported by the evidence and returned a general verdict that may have rested on that theory.

2. The prosecution's use of Christopher Mathis' prior consistent statements to rehabilitate his credibility violated due process, and the two attorneys who represented Dibble at trial were ineffective in failing to object.

3. The state's closing argument violated due process in that the prosecutor vouched for the credibility of witnesses Christopher Mathis and Preston Arnsperger and falsely implied that they had no motive to lie because they had already been convicted and sentenced, and trial counsel were ineffective in failing to object to these improper comments.

4. Trial counsel were ineffective in failing to:

(a) object to the felony murder charge;

(b) object to the felony murder jury instructions;

(c) argue that the evidence did not support an instruction on felony murder based on burglary;

(d) object to the prosecution's closing argument urging a finding of guilt based on the felony murder theory; and

(e) tender an instruction defining the term "building" as used in the burglary statute.

5. Trial counsel's opening statement constituted ineffective assistance in that it:

(a) contradicted Dibble's exculpatory statements;

(b) suggested that the evidence would show that Dibble drove Mathis and Arnsperger to Barker's house but waited in the car while they went in; and

(c) amounted to a concession that Dibble was guilty under accountability principles.

6. Trial counsel were ineffective in that they stipulated that Mathis and Arnsperger would not be impeached with the fact that their plea agreements included the state's promise not to charge them with the unrelated murder of Nelson Steinhauer.

7. Trial counsel were ineffective in that they failed to interview Mathis and Arnsperger before trial and instead apparently assumed that they would testify in accordance with the statements they had made to the police.

8. Trial counsel were ineffective in failing to properly impeach Arnsperger with his prior inconsistent statement claiming that he saw Dibble shoot Barker.

9. Trial counsel were ineffective in that they failed to tender jury instructions on:

(a) accomplice-witness testimony; and

(b) the substantive admissibility of certain prior inconsistent statements.

10. The state's notice of intent to instruct the jury on theories of first-degree murder that were not charged in the indictment violated due process.

11. The state violated due process by allowing Mathis and Arnsperger to testify to an incomplete version of their plea deals which omitted that, in return for their testimony against Dibble, the State would not charge them with the Steinhauer murder.

12. Appellate counsel was ineffective in failing to argue on direct appeal that the evidence was insufficient to support findings of guilt on the intentional, knowing, and strong probability theories of murder.

13. Appellate counsel was ineffective in failing to argue on direct appeal that the evidence was insufficient to find Dibble guilty under an accountability theory.

14. Appellate counsel was ineffective in failing to raise on direct appeal claims of due process and ineffective assistance of counsel as set forth in Grounds 4(c), 4(d), 4(e) and 10-13.

Respondent filed a Response (Doc. 16)² and Dibble filed a Reply (Doc. 28). With leave of Court, Respondent filed a Sur-Reply (Doc. 32) to which Dibble responded (Doc. 35). For the following reasons, Dibble's request for habeas relief is DENIED.

RELEVANT FACTS AND PROCEDURAL HISTORY

State Trial Proceedings³

Dibble was indicted in 1996 for the first-degree murder of Billy Barker. According to the Indictment, "on or about the ninth day of November 1993, while committing the forcible felony of burglary, [Dibble], without lawful justification, shot Billy Barker in the head with a shotgun, causing the death of Billy Barker." Before trial, the State filed a notice of intent to submit jury instructions on multiple alternative theories of first degree murder as set forth in the then-applicable version of 720 ILCS § 5/9-1(a)(1) through (a)(3) (intentional, knowing, and strong probability of death or great bodily harm, and felony murder). (Doc. 17-1, pp.1, 3).

Dibble's conviction "rested primarily on the testimony of [Preston] Arnsperger and [Christopher] Mathis" who testified that Dibble drove them to Barker's home in Cahokia, Illinois,for the purpose of stealing drugs. Arnsperger and Mathis did not know Barker, but Dibble knew him and knew that marijuana and cocaine would be in the house. Dibble told Arnsperger and Mathis that Barker would not be home because he always spent his evenings in a tavern. Dibble brought along a shotgun and the three entered the house through a window. Arnsperger and Mathis went into a bedroom to look for drugs and Dibble went into a different part of the house. Arnsperger and Mathis heard a male voice that was not Dibble's say words to the effect of "Freeze, I've got a .45." They then heard Dibble say "similar words" and heard an immediate shotgun blast. Arnsperger and Mathis left the house through the same window and Dibble came out of the house shortly thereafter. Barker was found dead the next day, having been shot in the eye with a shotgun. Marijuana and money were found in plain view and nothing had apparently been taken from the house. Dibble did not testify or present any evidence at trial. (Doc. 17-1, p. 2-3).

Arnsperger and Mathis agreed to plead guilty to felony murder and to testify against Dibble in return for the State's agreement not to seek sentences in excess of 60 years against them. The State also agreed not to charge them with respect to the disappearance and death of Nelson Steinhauer, which occurred on the same night as the Barker murder. (Doc 17-25, p. 3).

The jury was instructed on intentional, knowing, strong probability, and felony murder. Regarding the felony murder theory, the jury was instructed that a person commits burglary when he enters a building without authority with the intent to commit a theft therein. The jury was not instructed that "building" as defined by the burglary statute did not include a "dwelling place."⁴ Dibble did not object to the instructions. The jury returned a general verdict finding Dibble guilty of first-degree murder without specifying under which theory it convicted him. (Doc. 17-1, pp. 3-4).⁵

Direct Appeal

Dibble raised the following points on appeal that are relevant to the instant action:

1. He was denied a fair trial because the jury was instructed on felony murder based on burglary, but Barker's death took place in his home and residential burglary could not support a charge of felony murder.

2. He was denied a fair trial by the prosecution's use of Christopher Mathis' prior consistent statements to rehabilitate his credibility.

3. He was denied a fair trial by the state's closing argument regarding the credibility of witnesses Christopher Mathis and Preston Arnsperger.

4. Trial counsel were ineffective in thirteen respects, including failing to object to the felony murder charge and instructions, allegedly conceding petitioner's guilt under accountability principles in opening statement, failing to impeach Mathis and Arnsperger with the State's promise not to charge them in the Steinhauer case, failing to perfect impeachment of Arnsperger by proving up certain prior inconsistent statements, failing to object to the prosecution's allegedly improper closing argument comments, and failing to request a jury instruction on accomplice-witness testimony.

(Doc. 17-11). His conviction was affirmed and Dibble filed a Petition for Leave to Appeal (PLA) raising the first point and eight of the thirteen allegations of ineffective assistance. (Doc. 17-14). The Illinois Supreme Court denied the PLA in January 2001. (Doc. 17-15).

First Postconviction Petition

Dibble's first postconviction petition was dismissed at the first stage, but the appellate court reversed the ruling. (Doc. 17-16). Counsel was then appointed for Dibble, who ultimately filed a Fourth Amended Petition which incorporated a pro se petition previously filed by Dibble. (Doc. 17-20). On appeal from the dismissal of that petition, through different counsel, Dibble raised the following points:

1. The postconviction petition court improperly weighed facts and disregarded well-pleaded facts regarding affidavits from two jail inmates which Dibble asserted established that Arnsperger and Mathis admitted setting Dibble up to take the blame for the Barker murder.

2. Postconviction counsel had been ineffective.

(Doc. 17-21). The appellate court affirmed the dismissal in November 2016. (Doc. 17-25). Dibble's pro se PLA raised claims that had not been included in his counsel's appellate brief and the Illinois Supreme Court denied the PLA in March 2017. (Docs. 17-26 and 17-27).

LAW APPLICABLE TO SECTION 2254 PETITION

This habeas petition is subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254, which "...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...