Richardson v. Hardy

• Decision Date: 13 March 2012
• Docket Number: Case No. 00 C 6425.
• Citation: 855 F.Supp.2d 809
• Parties: Floyd RICHARDSON, Petitioner, v. Marcus HARDY, Warden, Stateville Correctional Center, Respondent.
• Court: U.S. District Court — Northern District of Illinois

855 F.Supp.2d 809

Floyd RICHARDSON, Petitioner,

v.Marcus HARDY, Warden, Stateville Correctional Center, Respondent.¹

Case No. 00 C 6425.

United States District Court,

N.D. Illinois,

Eastern Division.

March 13, 2012.

Joshua Sachs, Joshua Sachs and Associates, Evanston, IL, for Petitioner.

CORRECTED MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge.

Floyd Richardson was tried and convicted in 1984 of the April 1980 armed robbery and murder of George Vrabel, a clerk at a grocery store on the south side of Chicago. The trial judge sentenced Richardson to death after he waived his right to a jury at the penalty phase of his trial. In 2003, Illinois Governor George Ryan commuted Richardson's sentence to a sentence of life without parole.

In February 2004, this Court granted Richardson's petition for a writ of habeas corpus on the ground that his conviction was tainted by prosecutorial misconduct at his trial. On appeal, the Court of Appeals reversed, finding that Richardson had not been prejudiced by the alleged misconduct. Richardson v. Briley, 401 F.3d 794 (7th Cir.2005). In August 2006, the Court of Appeals remanded the case to this Court for consideration of the remaining issues in Richardson's petition.

Richardson has four remaining claims. First, he alleges that he was denied due process of law because his conviction was based on identification testimony that he contends was produced by suggestive procedures. Second, he contends that the prosecution systematically struck prospective black jurors in violation of his right to equal protection of the law, as set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a case decided when Richardson's conviction and death sentence were on direct appeal. Third, Richardson alleges that he was denied due process by the prosecution's introduction of evidence of uncharged crimes. Fourth, Richardson contends he was denied effective assistance of counsel at the penalty phase of his case.

The Court previously ruled that Richardson was entitled to expansion of the record and an evidentiary hearing on his second claim, concerning the prosecution's use of its peremptory challenges against black jurors. Richardson v. McCann, 653 F.Supp.2d 831 (N.D.Ill.2008). The Court concluded the evidentiary hearing in May 2009. Post-hearing briefing was completed in June 2009. The Court acknowledges that it has had the matter under advisement for an inordinately long period since that date.

The Court deals with Richardson's non-Batson claims first and his Batson claim last.

Facts

The Court takes the facts underlying Richardson's conviction from the Illinois Supreme Court's decision in his direct appeal. People v. Richardson, 123 Ill.2d 322, 123 Ill.Dec. 908, 528 N.E.2d 612 (1988).

Shirley Bowden, a clerk at Twin Foods and Liquors, located on the south side of Chicago, testified that around 10:00 p.m. on the night of April 1, 1980, she was working at the store, which was empty except for employees and one customer. She saw a second man walk past her toward the liquor department, where Vrabel worked. She then heard a shot followed by a warning that “This is a stickup.” Bowden and another employee, Bonnie Williams, testified that they saw the man run past them and out the store, though they ducked behind a counter when he approached. The police were called, and Vrabel was found on the floor, bleeding. He was pronounced dead on arrival at a local hospital.

Williams testified that in the summer of 1982, she selected Richardson's photo from a group of black-and-white photos the police showed her. Bowden was never called to view a lineup. At trial, both Williams and Bowden testified they had seen Richardson in the neighborhood before April 1, 1980, and both identified him as the shooter.

Ernest Warner, a firearms examiner, testified that in his opinion, bullets recovered from Vrabel's body and from a wall at Twin Foods bore the same class and individual characteristics as a bullet recovered from Thomas Fitzpatrick, who was shot in an armed robbery on April 5, 1980. Fitzpatrick testified that on that night, he was working at a tavern located about a mile from Twin Foods. A man entered, announced a stickup, and jumped over the bar, shooting Fitzpatrick when he tried to run. While Fitzpatrick was lying on his back, the man stood over him for about fifteen to twenty seconds and asked where the rest of the money was and then departed when Fitzpatrick said there was no more money. Fitzpatrick testified that in May 1982, he tentatively identified Richardson from a set of photographs and then positively identified him after viewing a lineup. He testified in court that Richardson was his assailant. Ray Slagle, a customer in the tavern, also identified Richardson as the shooter. He testified that he had selected Richardson's picture from a set of photographs shown to him in September 1982 and that he had identified Richardson in a lineup held in October 1982.

James Sanders, a Chicago police sergeant, testified that on May 4, 1982, he received a radio broadcast of a robbery in progress at a location a little less than a mile from Twin Foods. He heard a description of the robber over his radio. He then observed a man in the vicinity of the crime scene matching the description and took him into custody. Sanders identified Richardson as the man he had taken into custody.

Joseph Dijiacomo, a Chicago police detective, testified about his preparation of two photographic arrays of man roughly fitting the description of the Twin Foods suspect, one set in black-and-white and one in color. John Solecki, also a Chicago police detective, testified that both Fitzpatrick and Slagle had identified a photo of Richardson from the set of black-and-white photos, but that both requested to see a lineup so they could be absolutely certain. Solecki also testified that both Fitzpatrick and Slagle positively identified Richardson in the lineup.

A police composite photo prepared from descriptions by witnesses to the Twin Foods shooting depicted the assailant with a full beard. Slagle, a witness to the tavern shooting, had described the shooter at the tavern as having a scraggly beard.

Richardson's mother, Arkonia Richardson, testified as a defense witness. She stated that Richardson had never had a full beard, but only a moustache and a goatee.

Discussion

A. Standard of review

The Illinois Supreme Court decided three of Richardson's four remaining claims on their merits. It concluded that the Batson claim was procedurally defaulted and thus did not address that claim on its merits.

A person convicted in state court may obtain a writ of habeas corpus on a claim that was adjudicated on its merits in state court only if the state court's adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2).

The “contrary to” standard of section 2254(d)(1) is met if, for example, “the state court applies a rule that contradicts the governing law set forth” by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

The “unreasonable application” standard is met “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of petitioner's case,” Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), or “unreasonably refuses to extend a principle to a context in which it should apply.” Griffin v. Pierce, 622 F.3d 831, 841 (7th Cir.2010) (internal quotation marks and citation omitted). “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphasis in original). The state court must have applied federal law in an objectively unreasonable way. Renico v. Lett, ––– U.S. ––––, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)).

Finally, a decision involves an “unreasonable determination of the facts” if the petitioner rebuts the presumption of correctness that applies to state court fact-finding by clear and convincing evidence. See Miller–El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). This latter standard “is demanding but not insatiable.... [D]eference does not by definition preclude relief.” Id. (internal quotation marks and citation omitted).

B. Other crimes evidence

As noted earlier, at Richardson's trial for the April 1, 1980 robbery and murder, the prosecution introduced evidence regarding an April 5, 1980 robbery and shooting of Thomas Fitzpatrick and a May 4, 1982 robbery. The trial judge ruled that the evidence of the April 5 robbery was admissible for the purpose of proving the identity of the April 1 offender and that the May 4 robbery was admissible to explain the circumstances of Richardson's arrest. Richardson contends that the admission of this evidence rendered his trial unfair by exposing him to the risk of conviction because he “was a generally bad person and, specifically, that he was a habitual armed robber,” Pet.'s Reply at 51, in other words, based on propensity to commit crime.

On direct appeal, the Illinois Supreme Court acknowledged the...