Jones v. Butler, 14–1638.
| Citation | 778 F.3d 575 |
| Decision Date | 03 February 2015 |
| Docket Number | No. 14–1638.,14–1638. |
| Parties | Brian JONES, Petitioner–Appellant, v. Kim BUTLER, Warden, Respondent–Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
OPINION TEXT STARTS HERE
Jodi Garvey, Lisa Lundell Wood, Patrick W. Blegen, Blegen & Garvey, Chicago, IL, for Petitioner–Appellant.
Michael M. Glick, Sameena Mohammed, Office of the Attorney General, Chicago, IL, for Respondent–Appellee.
Before FLAUM, MANION, and KANNE, Circuit Judges.
Petitioner Brian Jones seeks post-conviction review of his convictions in Illinois state court for first-degree murder and first-degree attempted murder under 28 U.S.C. § 2254. He seeks relief on three separate grounds: that his convictions were based on insufficient evidence; that he received ineffective assistance from his trial and appellate counsel; and that his rights to due process were violated by the denial of a post-conviction petition. We affirm the district court's denial of habeas relief.
In § 2254 proceedings, federal courts are foreclosed from fact-finding. We therefore defer to the findings of the Illinois trial court, which have not been challenged and are presumed to be correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Harris v. Thompson, 698 F.3d 609, 613 (7th Cir.2012).
Brian Jones was tried in a bench trial for the first-degree murder of Kenneth Dunne and the first-degree attempted murder of Lance Priest. People v. Jones, No. 1–01–947, slip op. (Ill.App. Aug. 6, 2002). The trial focused on a shooting that took place at 91st Street and Ashland Avenue in Chicago during the early morning (1:45 a.m.) of August 17, 1998.
Priest served as the State's primary witness. He testified that Jones, whom he knew from the neighborhood as “Bird,” was a member of the Blackstones gang. Priest and Dunne were standing in front of a liquor store speaking to Raleigh Pritchett, who was sitting in his car. At that moment, Jones approached from a distance of seventy-five feet, and said “what's up folks.” After saying this, Jones, who was wearing jeans and a blue and white checkered shirt, reached into his waistband for a gun, whereupon Priest and Dunne immediately set off running. Jones opened fire. As he was running, Priest looked back momentarily and saw Jones shooting at them.
Dunne was fatally shot and fell to the ground. As Priest attempted to assist Dunne, he saw a red car approach, causing him to flee several blocks away. By the time Priest returned to Dunne, police officers had arrived. Priest described the shooter to the police, including that he wore a blue and white checkered shirt. Priest identified Jones from a photograph produced by the police. While speaking with the officers, he spotted Jones driving the red car and alerted the police, who started running towards the car as it drove away. A few hours later, the officers took Priest to the apartment of Lasandra Mathies, where they had apprehended Jones. There, Priest once again identified him as the shooter.
Chicago police officers Don Ordanas and Richard Maxwell corroborated Priest's account of the incident with the red car. The car, with its engine still warm, was found at a nearby vacant lot. Police found Jones shirtless and running down the back stairs of the building in which Lasandra Mathies's apartment was located. The officers identified Jones as the driver of the red car. They also recovered a blue and white checkered shirt from the apartment, which Sergeant Anita Medina identified as the shirt that Jones was wearing as he drove the car.
Raleigh Pritchett testified that he was sitting in his car speaking with Priest and Dunne at the time of the shooting. Pritchett stated that a man approached, said “what's up folks,” and began shooting. Altogether, the man fired nine or ten shots from a distance of fifteen to twenty feet. Despite the hour, the area was well-lighted, “like almost broad daylight.” Although he was unable to see the man's face, he described the shooter as a brown-skinned black man wearing blue jeans and a blue and white checkered shirt. Pritchett did not recognize the man and could not say from which direction the man approached.
Another witness, Sharee Jackson, testified that she saw Jones at the apartment of her cousin, Lasandra Mathies, on the night of the shooting. She described him as wearing a blue and white checkered shirt and carrying a black gun in his pants. At about 1 a.m., Jones left the apartment with Byron Manson to get cigarettes. Over the course of her testimony, Jackson offered various versions of a statement she heard Jones make when he returned home. On direct examination, she claimed that she heard Jones say “I shot a moe”—the term “moe” signifying a member of the Blackstones gang. On cross-examination, Jackson repeated this statement but acknowledged that she did not tell the police about this statement when she first spoke with them. When asked on re-direct examination what Jones's exact words were, Jackson said, “I shot a moe.” On re-cross examination, Jackson denied telling police that she heard Jones say “I shot the moe.”
On cross-examination, Steven Kramer, the defense counsel, elicited the following testimony from Jackson in an attempt to impeach Jackson about her statement:
[Assistant State's Attorney]: I think at this point I have to interject. Mr. Kramer's making himself a witness. Mr. Kramer has just I think made himself a witness, thereby rendering him unable to be the lawyer.
[Mr. Kramer]: I may have at this point, Judge.
[The Court]: I would agree. Although it's a little different than a jury.
[Mr. Kramer]: Exactly. That's what I would ask the court to consider. It is a bench trial.
[Assistant State's Attorney]: Then again we are going to have to object to discovery on behalf of defense. We had no knowledge of this alleged phone call or statement that were made to Mr. Kramer rendering him a witness. Had we had that in June when evidently this happened, perhaps something could have been done.
[Mr. Kramer]: Judge, I am taken by surprise by her response to be honest with this court. I didn't know it would be necessary to even get into asking that question. I am surprised by what her testimony is this afternoon.
After a break, the trial judge sustained the State's objection and prevented defense counsel from perfecting his impeachment testimony.
Detective Robert Lane testified that he interviewed and took a statement from Jackson several hours after the shooting. At that time, Jackson did not state that she heard Jones say, “I shot him, moe,” or, “I shot the moe.” Jackson, though, did say that Jones left the apartment two times that night, but could not recall whether he left with anyone. Jackson also stated that she saw Jones with a gun.
Lasandra Mathies provided alibi testimony for Jones, stating that he was at her apartment on the night of the shooting. Around midnight, she left with Jones to buy beer from a store and they returned immediately afterward. She testified that Jones again left the apartment at 3 a.m. with Byron Manson to purchase cigarettes. He did not have a gun on him when he left, but he did have marijuana. When Jones returned, he told her that the police chased him. Mathies admitted to lying to police when she told them that she was the last person to drive the red car earlier in the evening. On cross-examination, she stated that she also lied to the grand jury by testifying that, after purchasing beer, she dropped Jones off and returned to the apartment without him. Mathies claimed that she told the grand jury that story in response to threats from the State's prosecutor. The State's prosecutor later testified that he made no such threats.
Jones testified on his own behalf. He admitted that his nickname was “Bird,” and stated that he owned and frequently wore a blue and white checkered shirt, but that it was a popular, mass-produced shirt and that others in the neighborhood wore identical shirts. He stated that he left the apartment with Mathies at approximately 1 a.m. to buy beer and returned to the apartment immediately afterwards without stopping. He admitted to driving by the scene of the shooting, but returned to Mathies's apartment because he heard one of the Gangster Disciples say: “There go Bird right there.” Back at the apartment, he removed his shirt because it was hot. When the police arrived, he went to the back porch to dispose of marijuana.
Robert Berk, an expert in trace evidence analysis, testified that he examined the results of the gunshot residue (GSR) test, which was performed on Jones's hands four hours after the shooting. In Berk's opinion, the results were inconclusive. Berk also testified that gunshot residue can be transferred from hands to clothing through normal activity such as changing a shirt. Berk testified that neither the government nor the defense requested that he perform a GSR test on the shirt.
The trial court found Jones guilty of...
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