Everett v. Barnett

• Decision Date: 04 December 1998
• Docket Number: No. 97-2565,97-2565
• Citation: 162 F.3d 498
• Parties: Terry EVERETT, Petitioner-Appellant, v. Paul BARNETT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 498

162 F.3d 498

Terry EVERETT, Petitioner-Appellant, v. Paul BARNETT, Respondent-Appellee.

No. 97-2565.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 28, 1998.

Decided Dec. 4, 1998.

Francis C. Lipuma (argued), Chicago, IL, for Petitioner-Appellant.

Michael M. Glick (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before COFFEY, RIPPLE, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

Terry Everett appeals from the denial of his petition for a writ of habeas corpus.

On April 6, 1987, Jarvis Hollingsworth and Everett were indicted for murder, conspiracy, armed violence, and solicitation of murder, growing out of the death of Darryl Walker on January 28, 1987. It is undisputed that Hollingsworth is the one who actually pulled the trigger. But 3 days before the murder, Everett told his girl friend, Dawn Benson, that he was angry with Walker for stealing his VCR and using it to obtain cocaine, and that he would have Walker killed for $200. Hollingsworth was arrested on March 30 and implicated Everett in the scheme.

At about 11 a.m. on March 31, 1987, Everett was arrested at work and interrogated on and off over a 13-hour period. In the trial court, he claimed that statements he made during that time should be suppressed. The judge thought otherwise, and trial began on January 11, 1989. There were six witnesses, including Darryl Pledger, who observed events immediately after the shooting, which occurred in a street below his apartment window. Everett claims that only three of the witnesses provided evidence against him. The testimony of Officer Rowan focused on Everett's false exculpatory statements. Everett's girlfriend, Dawn Benson, testified about conversations between Everett and Hollingsworth about plans to kill Walker. A county medical examiner testified that Walker was killed by gunshots but that he also had blunt trauma injuries that could have been caused by being run over by a vehicle, which corroborated Everett's confession that he ran over Walker with his car. In contrast with these witnesses, Everett thinks Pledger's testimony actually helped him. Pledger testified that he did not see Everett at the crime scene, and that he did not see any vehicles in the area. Everett was convicted of conspiracy. But the jury did not reach a verdict as to murder, and a mistrial was declared on that count.

On February 23, 1989, a second jury trial was held on the murder charge, which was premised on an "accountability" theory under Illinois law, and on the reinstated solicitation charge, which had been withdrawn by the prosecution on January 10, 1989, just prior to the first trial. Everett was convicted of both. He was sentenced on March 22 for conspiracy, solicitation, and murder convictions, receiving 6 years, 15 years, and 40 years, respectively, to be served concurrently, but consecutive to a previous sentence for armed violence and aggravated battery.

Everett appealed and lost. People v. Everett, 228 Ill.App.3d 1054, 170 Ill.Dec. 775, 593 N.E.2d 664 (1992). He also filed a postconviction motion, which the trial court denied. He exhausted his state court remedies and, on May 10, 1995, he filed the present petition for a writ of habeas corpus.

In denying the petition on May 14, 1997, the district court relied on our decision in Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996), and applied the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to the claims. After the district court's decision, however, we have all learned that the AEDPA does not apply to noncapital cases when the petition is filed prior to the Act's effective date. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Because the AEDPA contains provisions which alter the analysis of habeas petitions brought under 28 U.S.C. § 2254, Everett contends that we must, therefore, send this case back to the district court for a proper analysis. We disagree. The issues presented in this case and the record as it exists allows us to evaluate Everett's claim. See Patrasso v. Nelson, 121 F.3d 297 (7th Cir.1997); Aliwoli v. Gilmore, 127 F.3d 632 (7th Cir.1997). It follows that our references to 28 U.S.C. § 2254(d) are to the version of the statute in effect prior to the AEDPA.

Everett argues that his confession was not voluntary because of such factors as the length and circumstances of the interrogation and the alleged failure to give him warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The ultimate issues of whether a confession is voluntary and whether a waiver of Miranda rights is voluntary are issues of law reviewed de novo. United States v. D.F., 115 F.3d 413 (7th Cir.1997); Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Watson v. DeTella, 122 F.3d 450 (7th Cir.1997); Henderson v. DeTella, 97 F.3d 942 (7th Cir.1996), cert. denied, 520 U.S. 1187, 117 S.Ct. 1471, 137 L.Ed.2d 683. The determination of the historical facts is the proper domain of the trial court. United States v. D.F. As we said in Henderson, frequently the State and the petitioner offer conflicting testimony as to what the historical facts were. Thus, even though the ultimate issue of voluntariness is a question of law, the state court's determination regarding factual issues are presumed correct under 28 U.S.C. § 2254(d).

The issue in this case is a factual one--what happened during the interrogation. Everett claims to have been interrogated at least three times over a period of 13 hours. He says that he was not given his Miranda rights when he was arrested and that he nevertheless asked to call his attorney but was not allowed to make the call. Further, he says that even in their testimony the police officers contradicted one another about when Miranda warnings were given, thus casting doubt on the entire police version of events: one testified that no warnings were given during the second period of questioning, whereas the other said that warnings were given. During the interrogation Everett claims to have been denied food and water. Not surprisingly, the police see it somewhat differently. The police claim Everett was given his Miranda warnings. According to the officers, Everett was allowed a telephone call but, rather than calling an attorney, he called his girl friend, informing her of the exculpatory story he had given the police and hoping that she would corroborate it. After he finally called his attorney he invoked his right to remain silent, and no further questioning took place. The officers say that the initial interview lasted 45 minutes and that at that time Everett denied any involvement in the murder. Approximately 2 hours later, the police obtained Everett's written consent to search his vehicle; after the automobile was searched, Everett gave another exculpatory statement. At about 11:45 p.m. he was questioned again, and again given Miranda warnings. This time he gave an inculpatory statement, after which he requested counsel and was allowed to call an attorney at 1 a.m. After this time, when an assistant state's attorney arrived to question him, Everett refused to answer questions.

An evidentiary hearing was held in the state trial court on November 10, 1988, on Everett's motion to suppress his statements. The trial judge heard testimony from Detective Michael Rowen, Detective John Duffy, and Mr. Everett; he considered stipulations and heard argument from counsel. Following the hearing he made the following findings: Everett was arrested at his job at the Social Security Administration at about 11 a.m. on March 31. He made three statements; two were exculpatory and one, made at about 11:15 or 11:30 at night, was inculpatory. Specifically, when Everett was arrested Officer Rowen notified Everett that he was being questioned about a homicide and advised him of his Miranda rights; further, Miranda warnings were repeated at about 5 p.m. when questioning resumed after a break during which Everett's car-which remained at the Social Security Administration--was searched. At about...