Thomas v. Williams
| Decision Date | 18 May 2016 |
| Docket Number | No. 14–2610.,14–2610. |
| Citation | 822 F.3d 378 |
| Parties | Tony THOMAS, Petitioner–Appellant, v. Tarry WILLIAMS, Warden of the Stateville Correctional Center, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Tony Thomas, Joliet, IL, pro se.
David H. Iskowich, Attorney, Office of the Attorney General, Chicago, IL, for Respondent–Appellee.
Before WOOD, Chief Judge, and KANNE and SYKES, Circuit Judges.
, Circuit Judge.
A jury convicted Tony Thomas of the 2001 murder of Khatim Shakir. In January 2005, after his conviction was final, Thomas received a letter from his trial attorney informing him that unidentified gang members told police that Thomas did not commit the murder, but rather, that the shooter was a drug dealer named Robert Pinkston.
In April 2005, Thomas filed a petition for post-conviction relief in state court arguing that he was actually innocent in light of the newly discovered evidence. After unsuccessfully pursuing that petition, Thomas filed a second petition in state court in 2007. This time Thomas alleged that the government withheld evidence that the officer was told that Pinkston was the shooter in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
. The state court held that the claim was defaulted because Thomas did not raise it in his first state post-conviction petition.
Before us is Thomas's federal petition for a writ of habeas corpus, in which he re- raises the Brady claim. The district court denied relief on Thomas's Brady claim, holding that it was procedurally defaulted. Because we agree that Thomas's Brady claim is procedurally defaulted, we affirm the district court's denial of his petition.
We address the complicated fifteen-year history of this case beginning with the underlying murder, followed by an explanation of Thomas's trial, direct appeal, state post-conviction proceedings, and finally, the federal proceedings.
Sometime between 11:30 p.m. and midnight on September 22, 2001, Officer John Massi observed several individuals engaged in a heated conversation outside the Thousand Liquors, located at the intersection of Belmont and Sheffield Avenues in Chicago. Officer Massi ordered the group to disperse. Thomas,1 a member of the Gangster Disciples, responded that he Thomas then left in a taxi with some friends.
Later that night, the victim, Khatim Shakir, a member of the Latin Kings, was at a party with his girlfriend, Vanessa Perez, and friends Fernando Cota, Joseph Igunbor, and Henry Igunbor.2 The group left the party to go to Thousand Liquors to meet up with another Latin King, Gregory Hoyos. While outside the liquor store, a man approached Hoyos and said “what's up, motherfucker, G.D.,” indicating that he was a member of the Gangster Disciples. The man then stated that he was a “King killer,” at which point he pulled a gun from his waistband and pointed it at Hoyos. He fired the gun four or five times while Hoyos and Shakir ran across the street. Shakir collapsed and died at the scene. Chicago police responded at 2:25 a.m. Perez, Cota, the Igunbors, and Hoyos all identified Thomas as the shooter in a photo array or lineup (or both).
At trial, all five eyewitnesses again identified Thomas as the shooter. Thomas's defense was alibi, specifically that he was on the south side of Chicago fighting with his girlfriend, Delilah Cruz, and therefore could not have committed the murder. Thomas took the stand and testified that after Officer Massi ordered him to leave, he, Cruz, and three friends got into a taxi and went to Gill Park. At 12:30 a.m., Thomas paid a man to drive him and Cruz back to the south side where Thomas lived with his mother. The man only drove them to 63rd and Yale, at which point the couple decided to take a bus. Instead, they got into a fight around 1:00 a.m. Cruz testified that Thomas tried to hit her, so she said she was calling the police, which she did shortly thereafter. Thomas then fled the scene. A police report—which was not admitted into evidence at trial—indicates that Cruz told police the fight occurred around 1:15 a.m.
Thomas testified that after he left Cruz, he paid someone else to drive him the rest of the way to his mother's house. He said he arrived home around 2:00 a.m., argued with his mother for 45 minutes, made some phone calls to his child's mother and his sister,3 and then went to bed.
Thomas's mother testified that he arrived home around 2:30 a.m., and they had argued. She admitted on cross-examination, however, that she had originally told police she did not see him until 5:00 a.m. In addition, an assistant state's attorney testified that Thomas's mother had at one point told him that Thomas arrived home at exactly 2:37 a.m.
Thomas's sister testified that he called her around 3:00 a.m., but she admitted that she may have originally told investigators that he called her at exactly 2:37 a.m. Thomas's uncle testified that he was at the house watching a movie and that Thomas had arrived home and argued with his mother. But, Thomas's uncle admitted that he originally told police that he was not home that morning until 7:00 a.m. Thomas's child's mother testified that Thomas called her from his mother's house around 2 or 3 a.m.
A jury convicted Thomas of first-degree murder, and the state trial court sentenced him to seventy-five years' imprisonment. The Illinois Appellate Court affirmed his conviction, and the Illinois Supreme Court denied his petition for leave to appeal on November 24, 2004.
In state court, Thomas filed two state post-conviction petitions—in April 2005 and November 2007. He also filed a suit for declaratory relief under Illinois's Freedom of Information Act (FOIA) after being denied access to Chicago Police Department (CPD) records.
On April 27, 2005, Thomas filed his first pro se state post-conviction petition, arguing that he was “actually innocent” in light of newly discovered evidence showing that the murderer was a drug dealer named Robert Pinkston. In support of his petition, Thomas attached a letter (“Strunck letter”) dated January 12, 2005, from his trial attorney, Robert Strunck, to the assistant state's attorney. The Strunck letter said:
Thomas also attached a CPD report that showed that Cota, after looking through a CPD photo book, identified Pinkston as resembling Shakir's killer. According to the report, Cota indicated that the resemblance between Pinkston and the shooter was an eight out of ten, but that the shooter was a little older.
The state trial court denied Thomas's post-conviction petition, and the state appellate court affirmed on February 7, 2007, noting that “an unauthenticated letter with several layers of hearsay” was insufficient to raise “the gist of a meritorious claim of actual innocence,” in light of the overwhelming evidence presented against Thomas at trial. The Illinois Supreme Court denied leave to appeal on May 31, 2007.
On November 6, 2007, Thomas filed a motion for leave to file a successive post-conviction petition in state court, arguing that the state withheld exculpatory evidence that Pinkston committed the murder in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
. In addition to the Strunck letter, Thomas attached an affidavit from his attorney, Gayle Horn (“Horn affidavit”). The Horn affidavit indicated that she spoke with Strunck, who told her Thomas attached a second affidavit from Margaret Betts (“Betts affidavit”), which said that she was on a three-way phone call between Thomas and Detective Tony Villardita who “confirmed that he knew that Officer John Massi was told by several people that Mr. Thomas did not commit the homicide of Khatim [Shakir].”
The trial court denied Thomas leave to file the successive petition. The appellate court affirmed, finding that Thomas failed to show cause for not raising his Brady claim in his first post-conviction petition as required by 725 ILCS 5/122–1(f)
. The Illinois Supreme Court denied leave to appeal on November 24, 2010.
On August 28, 2008, Thomas filed a lawsuit in state court seeking declaratory relief from the CPD's denial of his request for documents made pursuant to Illinois's FOIA statute. The trial court dismissed his suit on September 11, 2008. Thomas appealed, but he moved to voluntarily dismiss his appeal because he had filed in the wrong venue. The motion was granted on May 6, 2010. He then refiled the FOIA lawsuit in the proper state venue.
Shortly after filing his second petition in state court, on November 14, 2007, Thomas filed a 28 U.S.C. § 2254
petition in federal court. Thomas did not raise his Brady claim in the petition. But, on February 4, 2008, the district court granted Thomas's motion to stay the proceeding while he exhausted his state remedies.
On June 7, 2011, Thomas filed a renewed ...
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