U.S. ex rel. Thomas v. Gaetz

• Decision Date: 16 July 2009
• Docket Number: No. 08 C 4113.,08 C 4113.
• Citation: 633 F.Supp.2d 645
• Parties: UNITED STATES of America, ex rel. Antonio THOMAS, Petitioner, v. Donald GAETZ, Warden, Respondent.
• Court: U.S. District Court — Northern District of Illinois

633 F.Supp.2d 645

UNITED STATES of America, ex rel. Antonio THOMAS, Petitioner, v. Donald GAETZ, Warden, Respondent.

No. 08 C 4113.

United States District Court, N.D. Illinois, Eastern Division.

July 16, 2009.

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Antonio Thomas, Menard, IL, pro se.

Garson Steven Fischer, Illinois Attorney General's Office, Chicago, IL, for Respondent.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Illinois prisoner Antonio Thomas ("Petitioner") is serving a 60-year sentence for aggravated kidnapping and attempted armed robbery. He has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the "Petition") challenging his conviction. (R. 1, Pet.) Warden Donald Gaetz ("Respondent")¹ argues that this Court should deny the Petition because Petitioner's claims are procedurally defaulted or not cognizable in this proceeding. (R. 19, Answer at 11-22.) For the reasons stated below, the Petition is denied.

RELEVANT FACTS²

On March 27, 1999, the body of Quinton Kirkwood ("Kirkwood") was found in a rear basement stairwell at 1648 S. Christiana Avenue in Chicago, Illinois. (R. 20, Record, Ex. F, Ill.App.Ct. Order at 1.) Kirkwood had been shot to death. (Id.) Jeff Henderson ("Henderson") was arrested on March 28, 1999, and gave a statement that implicated Petitioner in the Kirkwood crime. (Id.)

In the statement, Henderson stated that he and several other people, including Petitioner and his brother, Duel Thomas ("Duel"), were in the apartment of Frederick Laws ("Laws") at 8 p.m. on March 26, 1999. (Id. at 2.) Petitioner and Duel learned that Kirkwood was playing dice in another apartment, had won about $9,000 and decided that he would be a good target for a robbery. (Id.) Petitioner gave Henderson a set of keys and told him to go get a car that was parked nearby. (Id.) Henderson got the car and parked it in front of the building where the dice game was being held. (Id.) About ten minutes later, Henderson saw Petitioner walking Kirkwood at gunpoint from the building and then pushing him into the trunk of the car and closing the lid. (Id.) Petitioner then ordered Duel and Henderson to get inside the car. (Id.)

Next, Henderson stated that Petitioner drove to an alley where he stopped and opened the trunk. (Id.) Petitioner and Duel grabbed Kirkwood and walked him to a cemented area under the porch of a building, where they demanded money. (Id.) Kirkwood used a cell phone to call his relatives and ask for money. (Id.) Henderson heard Kirkwood tell his relatives he had lost money at a dice game, needed more money, and was sending someone to get the money. (Id.)

Henderson then went to Kirkwood's relatives' house but the relative refused to give him the money. (Id.) Henderson returned to the location where Petitioner and Duel were still holding Kirkwood at gunpoint. (Id.) When Henderson informed Petitioner and Duel that no money was given to him, Kirkwood asked to call his relatives again. (Id.) Petitioner dialed the number and handed the phone to Kirkwood as Duel shot Kirkwood multiple times. (Id.) Then Petitioner shot Kirkwood multiple times. (Id.) Duel fled on foot, while Henderson and Petitioner drove away in the car. (Id.)

On March 29, 1999, Petitioner was arrested. (Id.) Petitioner was tried concurrently before separate juries with Duel and another co-defendant.³ (Id. at 3.) Among other evidence, the State produced Henderson to testify against Petitioner. (Id. at 3-7.) The State also produced two witnesses, Laws and Ronnie Wheatley ("Wheatley"), to corroborate parts of Henderson's testimony. (Id. at 8-10.) Laws testified that he heard Petitioner discussing a plan to rob Kirkwood. (Id. at 8.) Wheatley testified that he saw Petitioner abduct Kirkwood at gunpoint. (Id.)

However, when Henderson was called to testify, he recanted his previous statement and the testimony he had given at his own trial.⁴ (Id. at 3.) Although he admitted to previously implicating Petitioner, Henderson claimed that it was a "lie" and that the written statement was "made up" by the Assistant State's Attorney. (Id.) Henderson testified that the truth was that he alone forced Kirkwood at gunpoint into the trunk of a car and tried to rob him. (Id. at 4.) Henderson also admitted to previously testifying that he was a member of the Black Souls street gang and that the primary rule of the gang was "to never disown one of your brothers" and "to always look up to your older brother and never disobey the mob, never go against the grain." (Id. at 3-4.) During closing arguments, the State argued that Henderson offered a true account of the Kirkwood crime at his own trial, but lied at Petitioner's trial. (Id., Ex. O, Tr. at Y89, 117.) The jury convicted Petitioner of aggravated kidnapping and attempted armed robbery, but acquitted him of first degree murder. (Id., Ex. F, Ill.App.Ct. Order at 13.) He was sentenced to 60 years' imprisonment. (Id.)

On May 19, 2003, Petitioner appealed his conviction to the Illinois Appellate Court raising the following five claims: (1) the jury's acquittal on first degree murder was legally inconsistent with the convictions for aggravated kidnapping and attempting armed robbery and thus as a matter of law, the evidence against him was insufficient; (2) the trial court erred when it admitted gang evidence related to Henderson's testimony and the testimony of several other witnesses; (3) prosecutorial misconduct occurred; (4) the admission of the prior testimony and statement of Henderson violated Petitioner's right to confront witnesses under the Sixth Amendment; and (5) the evidence was insufficient in that it was based solely on hearsay evidence. (Id, Ex. A, Def.-Appellant's Br. at 8-9, Ex. C, Supplemental Authority and Argument.) On October 25, 2004, the appellate court affirmed Petitioner's conviction. (Id., Ex. F, Ill.App.Ct. Order at 1.) Petitioner then filed a pro se petition for leave to appeal ("PLA") to the Illinois Supreme Court in which he raised all of these same arguments, except for the Sixth Amendment claim related to the testimony of Henderson. (Id., Ex. G, Pet. For Leave To Appeal at 7-13.) On March 30, 2005, the PLA was denied. (Id., Ex. H, Ill. Order.)

On November 23, 2005, Petitioner filed a pro se post-conviction petition in state court in which he made six arguments: (1) the police lacked probable cause to arrest him; (2) the admission of Detective Thomas McGreal's ("McGreal") testimony at a pretrial hearing violated his right to confront witnesses under the Sixth Amendment; (3) the trial court erred in allowing the trial to continue after the jury overheard conversations between the prosecutors, and when it removed Petitioner's jury during part of the cross-examination of a witness by co-defendant's counsel; (4) the evidence was insufficient as a matter of law; (5) Petitioner's trial counsel was ineffective in failing to: (a) file a motion in support of his request for severance, (b) object to leading questions by the prosecutor, (c) move for the admission into evidence of police investigative reports, and (d) move for a mistrial after the jury overheard conversations between the prosecutors; and (6) Petitioner's appellate counsel was ineffective in failing to raise issues one through three (as listed above) in Petitioner's direct appeal. (Id., Ex. I, Pet. for Post Conviction Relief at 8-9.) On December 20, 2005, Petitioner's post-conviction petition was denied. (Id., Ex. J, Cir. Ct. Order.) Petitioner then appealed to the Illinois Appellate Court, which affirmed.⁵ (Id., Ex. L, Ill.App.Ct. Order.) On October 19, 2007, Petitioner filed a pro se PLA to the Illinois Supreme Court that argued the following: (1) the judge erred in admitting gang evidence; (2) the admission at a pretrial hearing of Detective McGreal's testimony describing the identification of the Petitioner during a lineup by Pryor, violated Petitioner's right to confront witnesses under the Sixth Amendment; (3) trial counsel was ineffective in failing to move to sever Petitioner's trial; and (4) appellate counsel was ineffective in failing to raise issues one through three (as listed directly above) in Petitioner's post-conviction petition.⁶ (Id., Ex. M, Pet. For Leave To Appeal at 3-8.) On January 30, 2008, the PLA was denied. (Id., Ex. N, Ill. Order.)

PROCEDURAL HISTORY

On July 21, 2008, Petitioner filed the instant Petition with this Court raising six claims for relief. (R. 1, Pet.) Petitioner raises two ineffective assistance claims based on trial counsel's failure to: (1) call two witnesses, Beatrice and Latrice Applewhite, and (2) move for a mistrial after the admission of gang evidence. (Id. at 5-6.) Petitioner also raises an ineffective assistance claim based on appellate counsel's failure to challenge the severity of Petitioner's sentence on direct appeal. (Id. at 6.) Petitioner also brings two Sixth Amendment claims that his right to confront witnesses was violated by the admission of: (1) Henderson's prior testimony and statements, and (2) Detective McGreal's testimony describing the identification of the Petitioner by Pryor. (Id. at 8-9.) Finally, Petitioner claims that the jury's acquittal on first degree murder was legally inconsistent with the convictions for aggravated kidnapping and attempting armed robbery, and that he was not proven guilty beyond a reasonable doubt. (Id. at 9-13.) Respondent argues that the Petition should be denied because Petitioner's claims are procedurally defaulted or not cognizable in this proceeding. (R. 19, Answer at 11-22.) Petitioner has filed a reply in support of his Petition. (R. 22, Pet'r Reply.)

LEGAL STANDARDS

Under the Anti-Terrorism and Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas relief to prisoners in state custody. Malone v. Walls, 538 F.3d 744, 753 (7th Cir.2008). The Court may grant habeas relief only if the state court's adjudication of a...