Shores v. Pfister, No. 17 C 2723

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtHon. Marvin E. Aspen
PartiesJOHN SHORES, Petitioner, v. RANDY PFISTER, Respondent.
Docket NumberNo. 17 C 2723
Decision Date16 January 2018

JOHN SHORES, Petitioner,
RANDY PFISTER, Respondent.

No. 17 C 2723


January 16, 2018

Hon. Marvin E. Aspen


MARVIN E. ASPEN, District Judge:

Presently before us is John Shores' petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Habeas Pet. (Dkt. No. 1).) Also before us is Shores' motion for appointment of counsel. (Dkt. No. 11.) For the reasons set forth below, we deny Shores' petition and his motion.


I. Shores' Trial and Conviction

Shores' habeas claims stem from a 2004 first degree murder conviction involving the shooting death of Ian Thorne. According to the State's evidence at trial, Deria Gaitors told Shores and Ramone Samuels she was involved in a fraud scheme with Thorne and knew he kept between $50,000 and $100,000 in cash in his home in Riverdale, Illinois. (Direct Appeal Order, State Ct. R., Ex. H (Dkt. No. 21-8) at 2-3.) Gaitors had a falling out with Thorne and engaged Shores and Samuels in a plan to steal the money from Thorne's residence. (Id.) Gaitors did not participate, but she testified she saw Shores and Samuels on December 12, 2001 dressed in black, preparing for the crime. (Id.)

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Samuels also testified for the prosecution. (Id.) According to his version of events, he traveled with Shores and Glen Fortier to the victim's house armed with handguns on December 12, 2001, planning to rob the home. (Id.) The robbery attempt was thwarted when they learned Thorne was home. (Id.) Shores, Samuels, and Fortier then returned to the house on the morning of December 13, 2001 and rang the doorbell. (Id.) Samuels testified Thorne answered the door and Shores asked to see a guest. (Id.) As Thorne turned to summon the guest, Shores removed his gun and pushed him. (Id.) A scuffle ensued, and Shores fired a shot. (Id.) Samuels and Fortier disposed of their guns after fleeing the scene and later met at Shores' home, where they concocted a defense for the shooting. (Id.) According to Samuels, the three decided to say the victim pulled out a gun and in a skirmish with Shores, the gun discharged. (Id. at 3-4.)

Gaitors also testified she saw Shores and Samuels on the afternoon of December 13, 2001, and Shores admitted to shooting Thorne. (Id. at 3.) Gaitors and Samuels entered into plea agreements in exchange for their testimony against Shores. People v. Shores, 2016 IL App (1st) 133824-U, ¶ 4, appeal denied, 60 N.E.3d 880 (Ill. 2016). The terms of the plea agreement provided that the murder charges against them would be dismissed, Gaitors would plead guilty to conspiracy to commit home invasion, Samuels would plead guilty to home invasion, and the State would recommend a sentence of 10 years' imprisonment for each co-defendant. Id. Fortier was not charged in the case and did not testify.

Renetta Fonville also testified for the State as an eyewitness to the crime. (Direct Appeal Order at 2.) Fonville was sitting in her car on December 13, 2001 when she observed three men arrive at Thorne's residence and enter Thorne's home. (Id.) Seconds later, she heard a "pop" and the witnessed the three men flee the scene. (Id.) Fonville located Riverdale Police Officer Jimmy Beatty and reported what she saw. (Id.)

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The evidence at trial also included Shores' videotaped statement to police. Shores, 2016 IL App (1st) 133824-U. Following the crime, Shores left Illinois for Atlanta, Georgia to visit his mother. Id. ¶ 9. He was apprehended in Cobb County, Georgia, where he gave a videotaped statement to Cook County assistant state's attorneys. Id. ¶ 11. In his statement, Shores admitted he participated with Gaitors, Samuels, and Fortier in a plan to steal Thorne's money. Id. According to Shores, on December 13, 2001, he rang Thorne's doorbell and stepped inside when Thorne answered the door. Id. Thorne then produced a gun. Id. Shores stated the gun discharged in the subsequent struggle. Id. He fled the scene with the gun and later disposed of it. Id.

During the jury instruction conference, Shores requested that a second degree murder instruction be tendered to the jury. (Direct Appeal Order at 4.) Shores also requested an instruction to the jury that inconsistencies in the statements of Gaitors and Fonville be considered substantive evidence and not just impeachment material. (Id.) The trial court denied both requests. (Id.) A Cook County, Illinois jury found Shores guilty of first degree murder. (Id. at 1.) The jury also found Shores personally discharged the firearm that proximately caused the death of the victim. (Id.) The court imposed a sentence of 55 years imprisonment. (Id.)

II. Motion for New Trial

Prior to sentencing, Shores filed a motion for a new trial before the trial judge. (Mot. for New Trial, State Ct. R., Ex. A (Dkt. No. 21-1) at 136-38.) In it, he argued the guilty verdict should be set aside and he should receive a new trial because the trial court erred: (1) in denying a motion for substitution of judges as untimely; (2) in not tendering to the jury his proposed second degree murder jury instruction; and (3) in instructing the jury that the inconsistencies in

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the testimony of Gaitors and Fonville should be considered solely for impeachment purposes and not as substantive evidence. (Id.)

On November 30, 2004, through new counsel, Shores filed an amended motion for a new trial incorporating the claims from the original motion for new trial and additionally alleging his trial attorney was ineffective for: (1) failing to call Fortier as a witness, (2) filing the motion for substitution a day late, and (3) failing to obtain a lesser included offense instruction. (State Ct. R., Ex. A. (Dkt. No. 21-1) at 131-55; see also Trial Tr., State Ct. R., Ex. D (Dkt. No. 21-4) at 161-96.) Shores attached an affidavit of Fortier, attesting he had been willing to testify that although the men planned a burglary, the victim pulled the gun on Shores first. (Fortier Aff., State Ct. R., Ex. A (Dkt. No. 21-1) at 132-34.) Fortier asserted he would have testified consistent with Shores' confession that there was a brief scuffle, and Thorne's gun discharged. (Id.) The trial court denied the motion. (Trial Tr. at 183-96.)

III. Direct Appeal

Shores appealed his conviction to the Illinois Appellate Court. Shores raised four claims on appeal, arguing the trial court erred: (1) in denying Shores' request for a second degree murder instruction; (2) by refusing to grant an evidentiary hearing, or in the alternative, an order for a new trial based on Shores' claim of ineffective assistance of trial counsel; (3) in failing to instruct the jury that impeaching testimony could not be considered substantive evidence; and (4) in denying Shores' motion for a new trial. (Direct Appeal Order at 1-2.) The Illinois Appellate Court rejected Shores' claims and affirmed the conviction on August 24, 2006. (Id. at 20.) Shores filed a timely petition for leave to appeal ("PLA") to the Illinois Supreme Court. (Direct Appeal PLA, State Ct. R., Ex. I (Dkt. No. 21-9).) The PLA was denied on November 29, 2006. (Direct Appeal PLA Order, State Ct. R., Ex. J (Dkt. No. 21-10).)

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IV. State Post-Conviction Proceedings

Shores then filed a pro se post-conviction petition on June 4, 2007, arguing his due process rights were violated under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. (Pro Se Post-Conviction Pet., State Ct. R., Ex. K (Dkt. No. 21-11).) He raised several constitutional claims, alleging: (1) the prosecution committed misconduct when it knowingly used perjured testimony of Gaitors and Samuels and held Shores in custody after a warrantless arrest for more than a month before he was indicted; (2) he was denied effective assistance of counsel because his trial counsel failed to call Fortier to testify as a defense witness; (3) the trial court erred in sentencing Shores to 55 years of "imprisonment at 100%"; and (4) his appellate counsel was ineffective for failing to raise prosecutorial misconduct, ineffective assistance of trial counsel, or trial court sentencing error on direct appeal. (Id. at 11-20.)

On August 3, 2007, the circuit court appointed the Cook County Public Defender to represent Shores in connection with his post-conviction petition. (State Ct. R., Ex. K (Dkt. No. 21-11) at 51.) Appointed counsel "did not believe that any of Petitioner's contentions were meritorious, and for that reason she would not be supplementing Petitioner's pro se Petition." (Suppl. Post-Conviction Pet., State Ct. R., Ex. L (Dkt. No. 21-12) at 5.) On March 1, 2013, Shores retained private counsel and filed a supplemental post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., and the Illinois Civil Practices Act, 702 ILCS 5/2-1401. (Id. at 2; Suppl. Post-Conviction Mem., State Ct. R., Ex. K (Dkt. No. 21-11) at 58-65.) Shores' counsel moved to strike all of the claims in Shores' pro se post-conviction petition, stating the petition was "essentially[] incoherent," and requested

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the supplemental post-conviction petition "claims of extreme merit [be] substituted and advanced exclusively, on defendant's behalf." (Suppl. Post-Conviction Pet. at 6.)

The supplemental petition and memorandum asserted one claim: the State violated Shores' due process rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). (Id.) The petition also requested an evidentiary hearing, arguing the claim was based in part on matters outside the record. (Id. at 3, 6, 24.) Shores argued the State withheld material, exculpatory evidence, including undisclosed benefits and expectations of leniency conferred to Samuels in exchange for his testimony against Shores. (Id. at 7.) Specifically, Shores alleged that the prosecution withheld evidence that after co-defendant Samuels reached a plea deal, he was twice permitted to leave...

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