Gardner v. Barnett

• Decision Date: 10 December 1999
• Docket Number: No. 98-1314,98-1314
• Parties: (7th Cir. 1999) CLARENCE GARDNER, Petitioner-Appellant, v. PAUL BARNETT, Warden, Danville Correctional Center, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 915

199 F.3d 915 (7th Cir. 1999)

CLARENCE GARDNER, Petitioner-Appellant, v. PAUL BARNETT, Warden, Danville Correctional Center, Respondent-Appellee.

No. 98-1314

In the United States Court of Appeals For the Seventh Circuit

Argued January 12, 1999

Reargued En Banc September 22, 1999

Decided December 10, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 6840--Suzanne B. Conlon, Judge.

Before Posner, Chief Judge, and Bauer, Cudahy, Coffey, Flaum, Easterbrook, Ripple, Manion, Kanne, Rovner, Diane P. Wood, Evans and Williams^*, Circuit Judges.

Bauer, Circuit Judge.

Joseph Waites, the student manager of the Calumet High School football team, was shot and killed when he and other members of the football team got into a street fight with local gang members. Clarence Gardner ("Gardner"), one of the gang members, was charged with first degree murder based upon a theory of accountability. He was tried, convicted and sentenced to 35 years in prison by a jury in the Circuit Court of Cook County. Claiming error in the court's voir dire process and error by the court in failing to permit him a brief recess in the trial to gain the attendance of a witness, Gardner appealed his conviction to the Illinois Appellate Court. The Illinois Appellate Court affirmed the conviction, and the Illinois Supreme Court denied his petition for leave to appeal. See People v. Gardner, 282 Ill.App.3d 209, 217 Ill.Dec. 940, 668 N.E.2d 125 (1st Dist. 1996); 168 Ill.2d 606, 219 Ill.Dec. 569, 671 N.E.2d 736 (1996). Gardner's petition for habeas corpus to the District Court was also denied. See Gardner v. Barnett, 1998 WL 2838 (N.D. Ill.). He appealed and a panel of this Court reversed, but upon the granting of Respondent's Petition for Rehearing that Order was vacated. This Court heard the matter en banc and now affirms the District Court's denial of Gardner's petition for habeas corpus relief.

I. BACKGROUND

Gardner does not challenge the Illinois Appellate Court's statement of facts. Those facts are entitled to a presumption of correctness and we adopt them here. Kines v. Godinez, 7 F.3d 674, 677 (7th Cir. 1993), cert. denied, 510 U.S. 1200, 114 S.Ct. 1314, 127 L.Ed.2d 664 (1994).

On October 28, 1993, Joseph Waites was fatally shot. The unfortunate events which led to his death began around 4:55 p.m. that day. Petitioner-Appellant Clarence Gardner was at 79th Street and Carpenter. The area of 79th and Carpenter, just a few blocks from the Calumet High School, was the territory of the Gangster Disciples and the Black Disciples, affiliated gangs. Beyond that was the territory of the rival gangs, the Vice Lords and the Blackstones. In between the gangs' territory was the neutral area between 79th Street and Calumet High. It was around this edge of the Gangster Disciples' territory and the neutral territory that the fight erupted.

As Gardner was at 79th and Carpenter, a car with two of his friends, "Tony" and "Meechie," drove up. Gardner, Tony and Meechie are all members of the Gangster Disciples. Tony and Meechie waved Gardner over to the car and got out to talk to him when he reached them. As they stood there they saw Joseph Waites and several other members of the Calumet High School football team walking down 80th and Carpenter. The group was walking toward Morgan, toward the Blackstone's territory. Meechie asked Gardner and Tony if the players were "hooks," i.e. whether they were members of the Blackstone gang. Neither Gardner nor Tony replied.

The three ran to the corner of 80th and Carpenter where they were joined by a fourth person, Andre Bridges. Bridges was a Black Disciple. The four then went to 80th and Morgan, where eleven or twelve members of the football team were present. Gardner asked one of the football players what was going on and was told that the football players were "having an egg fight." He replied "oh" and walked back toward 80th and Carpenter with the other three Disciples.

There were about fifteen Black Disciples waiting at the corner of 80th and Carpenter when Gardner, Tony, Meechie and Bridges got back. Immediately, Meechie and Tony ran back to Meechie's car and drove down Carpenter to 80th, where they parked the car in the middle of the block. Meechie got out and began walking toward the football players. His hands were in his pockets¹.

Meechie charged the football players, grabbing one and igniting a full blown confrontation involving at least 50 youths. As this was happening, someone shouted "bust them folks" three or four times. "Bust them" is a street expression meaning "shoot them." Some of the football players began to flee. Joseph Waites tried to run away but as he was running, he fell, and was beaten by six Black Disciples. Gardner joined in and admittedly punched Joseph Waites in the chest three times. As Waites lay on the ground balled up, the Disciples continued beating him. The beating lasted until Meechie and Tony once again arrived in the car. Tony got out of the car with a .25 or a .22 automatic, approached Joseph Waites and told the other Disciples to move because he was "fitting to bust" Waites. Gardner understood this meant Tony was going to shoot Joseph Waites. Gardner said "bust him" and began to run away.

As Gardner was running away, Tony shot Joseph Waites four times. Gardner was later arrested and charged with first degree murder under a theory of accountability. In a statement given to the police, Gardner admitted the above facts and, importantly, the fact that he said "bust him" to Tony just before Tony shot and killed Joseph Waites.

Michael Waites (Joseph's brother) was present during the fight and testified at trial. Other members of the football team to testify at trial were Anthony Foster and Cantrell Davis. All three testified that the person shouting "bust them folks" as the brawl began was Clarence Gardner. Their individual testimonies further showed Clarence Gardner's involvement in and responsibility for Joseph Waites' death.

Michael Waites ("Michael") said that Gardner and ten to fifteen other gang members came up to the team. Gardner asked whether the players were "fitting to jump on some of his folks" and told Michael and another player to take off their hats, which they did. At this point, a blue car pulled up and stopped across the street. Two men got out. Gardner said to the two men "bust them folks." Gardner asked if the players were "hooks." The team said they were not and showed Gardner their football jerseys. Gardner, Michael testified, replied "fuck that shit, bust them." The driver of the car then swung at one of the players, and the other boy swung back. Gardner said "bust them" again and the team started to run. About five seconds later, Michael heard gunshots.

Anthony Foster ("Foster") testified that after telling Gardner they were not "hooks," Gardner told the driver of the blue car the team members were "hooks." Gardner then told the driver and his passenger to "bust at their ass." Foster knew that by this Gardner was telling the other gang members to shoot them.

Cantrell Davis similarly testified that Gardner told the car's driver and passenger the players were "hooks" even though they said they were not. He also testified that after that Gardner said "fuck that folks shoot them, pop at them, bust at them, bust at them."

Gardner presented only one witness at trial, a police officer called to impeach minor aspects of Michael's, Foster's and Davis' testimony. He would have called one additional witness, Luther Donald ("Donald"), but Donald failed to appear in court when his testimony would have been presented. The trial court refused to continue the case over the weekend so that Donald could be brought in. Gardner did not testify.

II. DISCUSSION

A. Standard of Review

Federal courts may grant a writ of habeas corpus when a person is held in custody under a state court judgment in violation of the United States Constitution. 28 U.S.C. sec.2254; Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir. 1996). In order to merit federal habeas relief, a petitioner must establish that the state court proceedings resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. sec.2254(d)(1). See also Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc) rev'd on other grounds 521 U.S. 320 (1997). Otherwise, a petitioner must demonstrate that the state court decision was based on an unreasonable determination of the facts, given the evidence presented during the state court proceedings. 28 U.S.C. sec.2254(d)(2). Where, as here, the district court denied habeas relief, we review the district court's findings of fact under a clearly erroneous standard and its legal conclusions de novo. Neumann v. Jordan, 84 F.3d 985, 987 (7th Cir. 1996).

B. Continuance

The trial began on Wednesday, February 15, 1995. By the middle of the afternoon on Friday, February 17th, the prosecution rested. After calling the police officer who had taken the witness' statements, the defense ran out of witnesses. Gardner's lawyer told the court he had one more witness, Luther Donald, a football player and friend of the victim. Donald had promised to be in court that day but had gone to school instead². Therefore, he requested a continuance to the next court day (which would have been Tuesday since Monday was a court holiday) in order to allow Donald to testify. When asked what Donald would testify to, defense counsel said:

We expect him to say that he was present with other football players and that he saw this car come up with two people in it. And that he heard the words at that point bust him or shoot him. That it came from one of the people in the car neither of whom were seen.

The trial judge denied the motion for a continuance, saying:

Let the record reflect that it is now 3:35. It appears to me...