Gordon v. Jones
| Decision Date | 08 April 2020 |
| Docket Number | No. 18 C 5020,18 C 5020 |
| Parties | BLAKE GORDON, Petitioner, v. ALEX JONES, Warden, Menard Correctional Center Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Blake Gordon, a state prisoner, petitions pro se for a writ of habeas corpus under 28 U.S.C. § 2254. (Dkt. 1.) In his petition, Gordon raises seven constitutional claims. He contends that: (1) the trial court erred by admitting his police statement; (2) the prosecution asked its witness a leading question; (3) the trial court judge took on the role of the prosecutor; (4) the trial judge failed to state that the defendant is presumed innocent, overruled the petitioner's repeated objections, and answered questions for the prosecution's witness; (5) he received ineffective assistance of counsel when his trial attorney failed to both "investigate into the allegations of first degree murder" and call character witnesses; (6) he received ineffective assistance of counsel when his appellate attorney failed to raise an ineffective counsel claim against his trial attorney; and (7) the trial judge failed to advise Gordon of his right to a speedy trial, making the "continuance ... not by agreement." (Dkt. 1 at 6-6b.)
All claims except the fifth are procedurally defaulted. Gordon failed to submit these claims for one complete round of State appellate review. The fifth claim, ineffective assistance of trial counsel, does not overcome the highly deferential standard of habeas review. Therefore, this Court denies the petition.
In 2011, a jury convicted Gordon of the first degree murder of Dominique Conyers and the attempted first degree murder of Victor Barton in connection with an August 2008 shooting in Cook County, Illinois. Gordon, who was on mandatory supervised release at the time of the shooting and has three prior convictions, received consecutive 50- and 10-years' sentences in the Cook County Circuit Court. See People v. Gordon, 2017 IL App (1st) 151506-U, 2017 WL 3926908, at *1 ("Gordon II"), appeal denied, 94 N.E.3d 642 (Ill. 2018).
The evidence at trial established that during the overnight hours between August 19 and 20, 2008, Gordon fired multiple gunshots at a dark blue vehicle containing rival gang members Conyers, Barton, and Tracy Smith. See People v. Gordon, 2014 IL App (1st) 110664-U, 2014 WL 2442570, at *1 ("Gordon I"), appeal denied, 20 N.E.3d 1258 (Ill. 2014). Conyers, sitting in the backseat, died from his gunshot wounds; Barton, in the front-passenger seat, was injured. Gordon II, 2017 WL 3926908, at *1. Gordon received a 50-year sentence for the first degree murder of Conyers and a consecutive 10-year sentence for the attempted first degree murder of Barton. Id.
Gordon testified at trial that he acted in self-defense. Id. Gordon testified that at 10:35 p.m. on the night of the shooting, a dark blue vehicle drove past him a block away from where the shooting ultimately occurred. Gordon I, 2014 WL 2442570, at *3. The vehicle's occupants flashed gang signs that were disrespectful to Gordon's gang, the Mafia Vice Lords. Id. Around midnight, a dark blue vehicle containing Smith, Conyers, and Barton approached Gordon's location with its lights off, which led Gordon to believe that a drive-by shooting was about to occur. Id. at *4. Gordon further testified that he saw someone in the car's backseat pointing a silver and black gun in his direction. Id. Fearing for his life, Gordon ran to a nearby porch, retrieved a gun, and fired it multiple times at the dark blue vehicle. Id.
After Gordon testified, his lawyer sought to bolster the self-defense theory by proving Smith's propensity for violence. To that end, Gordon's lawyer tried to call a police officer, Officer McDermott, to testify about his arrest of Smith on January 19, 2010. Id. Immediately prior to that arrest, as Officer McDermott pursued Smith on foot, Smith tossed a handgun to his cousin and told his cousin to shoot Officer McDermott. Id. However, the trial court excluded Officer McDermott's testimony for three reasons: (1) Smith's confrontation with Officer McDermott occurred after Gordon's 2008 shooting; (2) Smith was not a victim of Gordon's 2008 shooting; and (3) Gordon did not testify that Smith was the initial aggressor in the 2008 shooting. Id.
Gordon's lawyer also examined Jeremy Powell, who witnessed the shooting. Id. at *2. Powell testified to Gordon's self-defense theory and Conyers' propensity for violence, but cross-examination revealed that Powell's trial testimony contradicted his statements to the grand jury. Id. at *3. When the prosecution attempted to introduce the grand jury transcript to impeach Powell, Gordon's lawyer objected on the ground that the impeachment was already perfected. Id. The trial court agreed. Id.
In the subsequent presentence investigation report (PSI), the defense introduced several mitigating facts. According to the PSI, Gordon was raised by his mother. Gordon II, 2017 WL 3926908, at *1. He attended school only as far as the eighth grade and achieved a fourth-grade proficiency. Id. Gordon attempted suicide approximately 10 times and, in 2010, attempted to hang himself with his bed sheets. Id. He completed a drug rehabilitation program while incarcerated and did not consume alcohol. Id. Gordon has two children and the PSI stated that he enjoyed spending time with them. Id. The PSI also stated that Gordon was a member of the Mafia Vice Lords gang. Id.
At sentencing, the State raised several aggravating arguments. Gordon was on "parole" at the time of the shooting and had three prior felony convictions. Id. at *2. The State argued that Gordon "love[d] guns" and that he committed a "senseless gang-related murder." Id. Conyers' mother also read an impact statement. Id. at *1. She stated that Conyers' unborn son would never have a father, while Gordon would have "the opportunity and pleasure" to see his children grow. Id.
Gordon's trial counsel responded that he should receive the minimum sentence "under the circumstances." Id. at *2. He was a student with special-education needs who tested at a fourth-grade proficiency level. Id. As for Gordon's prior convictions, the defense stated that one was for gun possession and that he was sentenced to "boot camp" for the other two. Id.
At sentencing, the trial court stated that Gordon had "chances upon chances to no avail." Id. The court outlined Gordon's criminal history: several juvenile cases, several gun-related convictions, and this 2008 shooting of Conyers while on "parole." Id. The court noted the effect of Gordon's actions on both his family and Conyers'. Gordon received a sentence of 50 years for first-degree murder and 10 years for attempted first-degree murder. Id. at *1.
Between 2014 and 2017, Gordon appealed the trial court's holdings twice, first directly and then in pro se postconviction proceedings. The state appellate court affirmed the trial court's rulings both times. See Gordon I, 2014 WL 2442570, at *1; Gordon II, 2017 WL 3926908, at *1. Each appeal gave rise to a PLA; the Illinois Supreme Court denied both. See 20 N.E.3d 1258 (Ill. 2014) (denying Gordon I); 94 N.E.3d 642 (Ill. 2018) (denying Gordon II). Finally, in 2018, Gordon filed this petition.
Gordon appealed his trial court conviction, raising two arguments. First, he contended that the trial court abused its discretion by barring evidence related to Smith and Conyers' propensity for violence. Gordon I, 2014 WL 2442570, at *1. Second, he asserted that the trial judge erred by admitting a witness's grand jury testimony as substantive evidence and allowing the prosecutor to misrepresent that evidence during closing arguments. Id. The state appellate court affirmed Gordon's conviction. Id.
Gordon's argument for Smith's propensity for violence rested on Officer McDermott's excluded testimony. Id. at *4. However, the state appellate court noted that Officer McDermott testified about violent acts Smith committed in 2010, 17 months after the 2008 shooting. Id. Therefore, the court found that Officer McDermott's testimony was not relevant to proving Smith's propensity for violence prior to the 2008 shooting. Id. at *5. The court explained that, given the irrelevance of the testimony, its exclusion did not reach the arbitrary, fanciful, or unreasonable threshold for abuse of discretion. Id. (citing People v. Rivera, 986 N.E.2d 634, 646 (Ill. 2013)).
In the same appeal, Gordon argued that the trial court abused its discretion when it sustained the State's objection to Powell's testimony that Conyers had previously shot him. Id. at *6. However, the state appellate court held that Gordon forfeited this argument by failing to include it in his motion for a new trial. Id.
Gordon alternatively argued for two theories of ineffective assistance of counsel. Gordon argued that his trial attorney failed to argue for the admission of Powell's testimony and failed to make an offer of proof as to Powell's testimony. Id. The court, citing Strickland v. Washington, 466 U.S. 668 (1984), held that counsel's strategy was neither unreasonable nor prejudicial to Gordon. Though Powell's testimony spoke to Conyers' propensity for violence, the court held that Powell was not a credible witness. Gordon I, 2014 WL 2442570, at *7. Powell was affiliated with the same gang as Gordon, had prior convictions, and his prior testimony to the grand jury was inconsistent. Id. Given this history, the appellate court held that Powell's testimony would not have been a persuasive vehicle for introducing evidence of Conyers' propensity for violence to the jury and concluded that it was not reasonably probable that Powell's testimony would have changed the outcome of Gordon's trial. Id. Thus, the appellate court held that Gordon's trial counsel's failure to argue in support of Powell's testimony did not likely prejudice Gordon, and he was...
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