Richardson v. McCann

Decision Date04 December 2008
Docket NumberCase No. 00 C 6425.
Citation653 F.Supp.2d 831
CourtU.S. District Court — Northern District of Illinois
PartiesFloyd RICHARDSON, Petitioner, v. Terry McCANN, Warden, Stateville Correctional Center, Respondent.<SMALL><SUP>1</SUP></SMALL>

Joshua Sachs, Office of the State Appellate Defender, Chicago, IL, for Petitioner.

Jay Paul Hoffmann, Chief of Criminal Appeals, Eric W. Truett, Karl R. Triebel, Illinois Attorney General's Office, Peter Fischer, Sally Louise Dilgart, Chicago, IL, for Respondent.

MATTHEW F. KENNELLY, District Judge.

In May 1982, Floyd Richardson was charged with the April 1, 1980 armed robbery and murder of George Vrabel, a sales clerk at Twin Food and Liquors on the south side of Chicago. A jury convicted Richardson, and the trial judge sentenced him to death in 1984, after Richardson waived his right to a jury at the penalty phase of his trial. On January 11, 2003, Illinois' governor commuted Richardson's death sentence to a sentence of life without the possibility of parole.

Richardson's petition for a writ of habeas corpus has been before the Court once before. The Court granted Richardson's petition on February 9, 2004. On appeal, the Seventh Circuit Court of Appeals reversed, vacated the writ, and later remanded to this Court for consideration of the remaining issues in Richardson's petition. See Richardson v. Briley, 401 F.3d 794 (7th Cir.2005); Order of Aug. 8, 2006.

Four claims remain for this Court's consideration. First, Richardson alleges he was denied due process of law because his conviction was based on identification testimony that he says was produced by suggestive procedures. Second, Richardson contends that the prosecution systematically struck prospective African-American jurors in violation of his right to equal protection of the law. Third, he alleges that the prosecution's introduction of evidence about two crimes that were not the subject of the charges violated his right to due process of law. Finally, Richardson contends that he was denied effective assistance of trial counsel at the penalty phase of his trial.

In this decision, the Court addresses Richardson's claim regarding the striking of prospective African-American jurors, specifically, whether it is appropriate to conduct an evidentiary hearing regarding that claim.

Background
1. Richardson's direct appeal

At trial, Richardson was represented by the Cook County Public Defender's office. That same office represented Richardson on his appeal, which went directly to the Illinois Supreme Court because Richardson had been sentenced to death. That court affirmed Richardson's conviction and sentence in 1988. People v. Richardson, 123 Ill.2d 322, 123 Ill.Dec. 908, 528 N.E.2d 612 (1988). The court addressed the following issues: 1) the admission of othercrimes evidence and the propriety of the trial court's limiting instruction on that point, see id. at 338-44, 123 Ill.Dec. 908, 528 N.E.2d at 617-19; 2) the sufficiency of the limiting instruction the trial court gave regarding the other-crimes evidence, see id. at 344-46, 123 Ill.Dec. 908, 528 N.E.2d at 619-20; 3) the trial court's limitation of defense counsel's examination of police officers at the hearing on Richardson's motion to suppress identification evidence, see id. at 346-48, 123 Ill.Dec. 908, 528 N.E.2d at 620-21; 4) the admission of evidence regarding photographic and lineup identifications, see id. at 348-52, 123 Ill.Dec. 908, 528 N.E.2d at 621-23; 5) the denial of counsel at the lineup identification, see id. at 352-53, 123 Ill.Dec. 908, 528 N.E.2d at 623; 6) the sufficiency of the evidence of guilt, see id. at 353-54, 123 Ill.Dec. 908, 528 N.E.2d at 623-24; 7) improper closing argument by the prosecution, see id. at 354-56, 123 Ill.Dec. 908, 528 N.E.2d at 624-25; and 8) various issues regarding the death penalty sentencing phase of the trial, see id. at 356-64, 123 Ill.Dec. 908, 528 N.E.2d at 625-29. After the Illinois Supreme Court affirmed the conviction and sentence, Richardson petitioned the United States Supreme Court for a writ of certiorari. That Court denied the petition in March 1989. Richardson v. Illinois, 489 U.S. 1100, 109 S.Ct. 1577, 103 L.Ed.2d 943 (1989).

While Richardson's case was pending on direct appeal to the Illinois Supreme Court, the United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in which it held that the race-based exclusion of African-American potential jurors through the use of peremptory challenges violates the Equal Protection Clause of the United States Constitution. Id. at 86, 106 S.Ct. 1712. Prior to the Supreme Court's decision in Batson, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), controlled whether the prosecution had violated the Equal Protection Clause of the Fourteenth Amendment by using peremptory challenges to exclude African-American prospective jurors. Under Swain, a defendant was required to make a difficult evidentiary showing to prove discrimination: he had to show that the prosecution's conduct was part of an overall pattern of discrimination aimed at excluding African-Americans from jury service in case after case. See Batson, 476 U.S. at 84, 106 S.Ct. 1712.

Batson overruled Swain in this regard. Id. at 100 n. 25, 106 S.Ct. 1712. In Batson, the Supreme Court held that "[t]he standard we adopt under the Federal Constitution is designed to ensure that a State does not use peremptory challenges to strike any black juror because of his race." Id. at 99 n. 22, 106 S.Ct. 1712. "[T]he exclusion of even a single prospective juror based on race violates the defendant's constitutional rights." Coulter v. McCann, 484 F.3d 459, 464 (7th Cir.2007) (citing Splunge v. Clark, 960 F.2d 705, 708 (7th Cir.1992)).

Shortly after deciding Batson, and while Richardson's case was pending before the Illinois Supreme Court, the United States Supreme Court decided Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), in which it held that Batson applies "retroactively to all cases, state or federal, pending on direct review or not yet final" at the time of the Batson decision. Id. at 328, 107 S.Ct. 708. Because Richardson's direct appeal was pending when Batson was decided, Batson applies to his case. Despite this, Richardson's appellate counsel did not attempt to assert a Batson claim before the Illinois Supreme Court, nor did appellate counsel argue that trial counsel was ineffective in failing to assert a Batson-type claim at trial.

2. Richardson's post-conviction petition and appeal

In January 1991, Richardson filed a petition for relief in the Circuit Court of Cook County under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1(a)(1). In his petition, he argued that his trial counsel were ineffective because, among other reasons, they did not object to the dismissal of prospective jurors who were African-American, did not call a key eyewitness, Myron Moses, to testify, and did not present significant mitigation evidence at the sentencing hearing. Richardson also argued that his appellate counsel was ineffective for, among other things, failing to raise the Batson issue on appeal. Finally, he argued that the prosecution had violated Batson by removing jurors on the basis of race.

On March 4, 1997, a state trial court judge granted the state's motion to dismiss Richardson's post-conviction petition without conducting an evidentiary hearing, despite Richardson's supplementation of the record and request for an evidentiary hearing. The Court will discuss the state judge's decision in greater detail later in this ruling.

Richardson appealed to the Illinois Supreme Court. He argued four issues on appeal: 1) the trial court erred in denying an evidentiary hearing on his post-conviction petition; 2) ineffective assistance of trial counsel for failure to investigate and argue mitigating evidence and failing to make a Batson objection; 3) the trial court's denial of his request for additional funds for expert witnesses; and 4) the prosecution's violation of Batson in exercising its peremptory challenges. See Rule 5 Materials, Ex. 7 (post-conviction appeal brief) at 1 (statement of issues).

The Illinois Supreme Court affirmed the lower court's ruling in 2000. People v. Richardson, 189 I11.2d 401, 245 Ill.Dec. 109, 727 N.E.2d 362 (2000). The court did not address the Batson issue on the merits; it held that Richardson had forfeited the Batson issue by failing to challenge at trial the prosecution's exercise of its peremptory challenges. The court stated: However, Batson requires "a defendant's timely objection to a prosecutor's challenges." (Emphasis added.) Batson, 476 U.S. at 99, 106 S.Ct. at 1725, 90 L.Ed.2d at 89-90. A defendant who fails to raise a Batson objection before the jury is sworn waives the issue. People v. Fair, 159 Ill.2d 51, 71, 201 Ill.Dec. 23, 636 N.E.2d 455 (1994). This rule applied under the old rule of Swain (e.g., People v. Gaines, 88 Ill.2d 342, 359, 58 Ill.Dec. 795, 430 N.E.2d 1046 (1981)) and applies to cases pending on appeal when Batson was decided (e.g., People v. Evans, 125 I11.2d 50, 61-62, 125 Ill.Dec. 790, 530 N.E.2d 1360 (1988); accord People v. Holder, 153 Ill.App.3d 884, 886, 106 Ill.Dec. 700, 506 N.E.2d 407 (1987)). Thus, a defendant who failed to object to the prosecution's use of peremptory challenges under the old rule of Swain cannot receive on appeal the benefit of the new rule announced in Batson. People v. Pecor, 153 Ill.2d 109, 125-26, 180 Ill.Dec. 50, 606 N.E.2d 1127 (1992); accord Teague v. Lane, 489 U.S. 288, 297, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334, 347 (1989) (under Illinois law, failure to raise Swain claim at trial and on direct review waives Batson-type claim in state post-conviction proceeding).

In this case, defendant concedes, as our review of the record confirms, that his trial counsel did not object during voir...

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7 cases
  • Richardson v. Lemke, s. 12–1619
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • May 15, 2014
    ...proceedings on the unresolved claims. Id. at 803. The district court turned to the Batson claim on remand. Richardson v. McCann, 653 F.Supp.2d 831 (N.D.Ill.2008). The court held that the claim was procedurally defaulted—the Illinois Supreme Court's finding of waiver was an independent and a......
  • Richardson v. Hardy, Case No. 00 C 6425.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 13, 2012
    ...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 ackno......
  • Cvijetinovic v. Eberlin, 08-3629.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 23, 2010
    ...without more, when the claim is based on the Supreme Court's intervening overruling of its own precedent.” Richardson v. McCann, 653 F.Supp.2d 831, 844 (N.D.Ill.2008). ...
  • Richardson v. Lemke
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 11, 2014
    ...proceedings on the unresolved claims. Id. at 803. The district court turned to the Batson claim on remand. Richardson v. McCann, 653 F. Supp. 2d 831 (N.D. Ill. 2008). The court held that the claim was procedurally defaulted—the Illinois Supreme Court's finding of waiver was an independent a......
  • Request a trial to view additional results

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