U.S. ex rel. Moore v. Conner

• Decision Date: 25 September 2003
• Docket Number: No. 01 C 9842.,01 C 9842.
• Citation: 284 F.Supp.2d 1092
• Parties: UNITED STATES of America, ex rel. Frank MOORE, Petitioner, v. N.L. CONNER, Warden of Leavenworth Prison, Respondent.
• Court: U.S. District Court — Northern District of Illinois

284 F.Supp.2d 1092

UNITED STATES of America, ex rel. Frank MOORE, Petitioner, v. N.L. CONNER, Warden of Leavenworth Prison, Respondent.

No. 01 C 9842.

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

September 25, 2003.

Leonard Crown Goodman, Attorney at Law, Chicago, IL, for Frank Moore, petitioner.

AUSA, United States Attorney's Office, Chicago, IL, for Jerome F, Warden, respondent.

MEMORANDUM OPINION AND ORDER

GETTLEMAN, District Judge.

Petitioner Frank Moore filed the instant habeas corpus petition pursuant to 28 U.S.C. § 2241 after the National Appeals Board of the United States Parole Commission affirmed the revocation of petitioner's parole. For the reasons stated herein, the instant petition is denied in its entirety.

FACTS

In March 1998, petitioner was paroled from federal prison after serving ten years of a twenty-year sentence for armed robbery. In October 1998, petitioner was arrested for the murder of Gary Horton, whose burned and charred body was found alongside a gravel road in rural Lake County, Illinois. Although petitioner denied any role in Horton's murder, it is undisputed that, on the night of August 15, 1998, petitioner and his friend, Etta Bunch, drove Horton to Round Lake to visit Shevon Kennedy, a married woman with whom Horton was having an affair. Horton was never seen again until his remains were discovered approximately one month later.

At trial, the prosecution did not produce any physical evidence linking petitioner to Horton's murder. Rather, the prosecution's case centered on the testimony of Bunch and a jailhouse informant named Jimmie Crawford. According to Bunch, after she, Horton and petitioner arrived at Kennedy's house and discovered she was not at home, they went to Laura Devine's house, and then back to Kennedy's house where Bunch and petitioner left Horton before returning to Chicago. Bunch testified that, on the night of August 15, 1998, she took six valium pills, and slept in the back of the van most of the ride back to Chicago.

Bunch's statements to police and her testimony at trial were inconsistent with respect to the events that occurred during the return car ride to Chicago. For example, in various statements to police, Bunch stated that she was sleeping in the van when she heard two or three bangs, at which time petitioner was standing alongside the van. In another statement, she implied that she heard the bangs while the car van was moving. At trial, Bunch could not say for certain whether or not the van was moving when she heard the bangs, however.

Similarly, in some statements to police, Bunch indicated that she remembered hearing voices in the van after having dropped off Horton at Kennedy's house, at one point thinking that she heard petitioner arguing with Horton, but then realized that it was voices on the radio. At trial, she testified that she thought she had heard voices, but when she woke up, she realized that petitioner was the only other person in the van. In both her statements to police and her trial testimony, Bunch noted that, at one point, she saw a flickering light in the driver's side exterior mirror. At trial, she stated that she was unsure whether it was a reflection of a lit cigarette or a campfire.

Crawford, a jailhouse informant, testified that petitioner confessed to him that he shot Horton three times and then burned the body. He also stated that defendant told him that he had done some bodywork on the van and repainted it to cover up some bloodstains.¹ Crawford was in custody in Lake County Jail on charges of aggravated criminal sexual assault and abuse against an underage victim, and faced a possible sentence of more than 150 years.

The jury convicted petitioner of murder, and he was sentenced to 50 years in prison. On November 28, 2000, however, the Illinois Appellate Court reversed that conviction, Ill.App.Ct. No. 2-99-0564, concluding that "[t]he State failed to meet its burden of proving [petitioner] guilty beyond a reasonable doubt." According to the appellate court:

There is no evidence that Horton was ever again in the car after the vehicle left Kennedy's house for the second time. Without that evidence, we do not see how defendant can be tied to Horton's murder.... It is apparent to us that the jury made certain inferences based on that portion of Bunch's statements and testimony that dealt with events occurring after Horton had been left off at Kennedy's house. These inferences were that defendant stopped the van on an isolated rural driveway off River Road, shot Horton, attempted to burn his body, and then drove off. If there was evidence that Horton had at some point been in the van after being left off at Kennedy's house, then we would accept these inferences and affirm the conviction. However, that was not the evidence. The jury clearly gave no weight to Bunch's uncontested and uncontradicted statements and testimony that the last time she actually saw Horton was when was when he was walking up to Kennedy's house. Under these circumstances, there are no uncontradicted facts from which the jury could infer Horton returned to the car.

The appellate court further noted that Jimmie Crawford's testimony was "so untrustworthy it cannot be used to support defendant's conviction.... Crawford's motive for fabricating testimony against defendant was simply too strong to make his testimony believable."

The State's Petition for Leave to Appeal to the Illinois Supreme Court was denied on April 4, 2001. On May 10, 2001, petitioner was released from state to federal custody.²

On September 14, 2001, the United States Parole Commission (the "Commission") sent petitioner a letter informing him that it had probable cause to believe that he violated his parole by, (1) using drugs (which he had previously admitted), (2) committing murder, and (3) possessing a firearm (presumably because the murder victim, Gary Horton, was shot to death).

On December 21, 2001, petitioner filed a writ of habeas corpus in the Northern District of Illinois pursuant to 28 U.S.C. § 2241, seeking release from custody on the ground that he was denied due process by the Commission's inexcusable delay in holding his revocation hearing. In that petition, Case No. 01 C 9842, petitioner named Warden Jerome F. Graber as respondent. The revocation hearing was held on April 25, 2002.

At petitioner's revocation hearing, petitioner and Bunch testified on petitioner's behalf and there were no adverse witnesses. According to Bunch's testimony at the April 25, 2002, hearing, the detectives threatened to prosecute her for Horton's murder and told her she would never see her grandchildren again unless she gave them a statement they could use against petitioner. She testified that many of her stated observations regarding voices in the van and flickering lights were not accurate but that after several days of interrogation, the detectives made her believe that she had observed those things. Bunch also referenced another statement she had made to an investigator for the Public Defender's Office, in which she noted that petitioner told her that Horton was a childhood friend of his, for whom he would do anything, and that Horton's family did not care much for him.

Among other things, at his revocation hearing, petitioner testified that Horton had borrowed petitioner's roommate's bike, which was allegedly then stolen. Petitioner also testified that Horton's father called petitioner on August 16th, asking where Horton was, and that he continued to call that week seeking information on Horton's whereabouts.

According to the Revocation Hearing Summary, the hearing examiner also examined two supplementary police reports which contained statements by Horton's sister and friend that Horton was dealing cocaine for petitioner. Petitioner denied that Horton was selling drugs for him, however.

By Notice of Action dated June 3, 2002, the Commission revoked petitioner's parole after finding that, (1) petitioner had used dangerous and habit-forming drugs, and (2) had committed murder and illegally possessed a firearm. According to the Commission's Revocation Hearing Summary, "[T]he one constant in all [Bunch's] statements is her inconsistency regarding the details of the events that occurred on August 15, 1998." The examiner focused on the statement that Bunch gave to police after being read her Miranda rights, believing it to be the most credible of her otherwise inconsistent statements. In that statement, she told police that she heard petitioner and Horton arguing and that she assumed Horton had gotten back into the van. The examiner noted, however, that Bunch did not put that fact in the written statement she prepared for police.

The examiner further noted that, prior to Bunch's statement to police in which she recalled that she remembered hearing two or three bangs, the police were aware of only one spent cartridge at the scene. After Bunch's statement, however, the police returned to the crime scene and discovered a spent cartridge, as well as two full metal copper jacket projectiles in the soil which were fired by the same gun. The examiner noted that lie detector test results verify that Bunch was telling the truth about the two or three loud bangs.

The examiner disagreed with the Illinois Appellate Court's finding that Crawford was not credible. The examiner was persuaded that Crawford's statement to police that petitioner told him that he burned the body after killing Horton was based on information provided by petitioner, since those details had not been made public.³ The examiner found petitioner's testimony to the contrary to be unbelievable.

The examiner discounted petitioner's statements at the hearing as self-serving. According to the examiner, petitioner's statements that Horton had been abandoned by his family were belied by the evidence, which revealed that Horton's family called petitioner on August 16, 1998, wondering about Horton's...