U.S. ex rel. Keller v. McCann

• Decision Date: 15 May 2008
• Docket Number: No. 07 C 3832.,07 C 3832.
• Citation: 553 F.Supp.2d 1002
• Parties: UNITED STATES of America ex rel. Howard KELLER, Petitioner, v. Terry McCANN, Warden, Respondent.
• Court: U.S. District Court — Northern District of Illinois

553 F.Supp.2d 1002

UNITED STATES of America ex rel. Howard KELLER, Petitioner, v. Terry McCANN, Warden, Respondent.

No. 07 C 3832.

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

May 15, 2008.

COPYRIGHT MATERIAL OMITTED

Howard Keller, Joliet, IL, pro se.

Erica R. Seyburn, Illinois Attorney General's Office, Chicago, IL, for Respondent.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Illinois prisoner Howard Keller ("Petitioner") is serving a sentence of 55 years' imprisonment for first degree murder. He has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"), raising seventeen different claims.¹ (R. 12, Petition.) Warden Terry McCann ("Respondent") has answered the Petition (R. 22), arguing that several of Petitioner's claims are not cognizable, several more claims are procedurally defaulted, and the remaining two claims fail on the merits. (R. 22, Resp.'s Answer.) After carefully considering the Petition, Respondent's Answer, Petitioner's Reply, and all supporting documents submitted by the parties, the Court concludes that Petitioner has not satisfied the standards for relief set forth in 28 U.S.C § 2254 and therefore denies the Petition.

RELEVANT FACTS²

In the early morning hours of March 11, 2000, Petitioner was walking to a liquor store on Chicago's south side. (R. 18, Resp.'s Exs. in Supp. of Answer, Ex. A, People v. Keller, No. 1-02-3186 (Ill.App. Ct.2004).) He was carrying a .38 caliber gun. (Id. at 2.) He passed Christopher Williams ("Williams") and his girlfriend Dinenya Moore ("Moore"), who were standing together in front of their apartment building. (Id.) After Petitioner passed the couple by a few feet, he pulled the gun from his pocket, turned slightly toward them, shot Williams in the chest, and ran away. (Id.) Moore identified Petitioner as the shooter; she recognized him as a man known in the neighborhood as "Petey," and then identified him from a photo array shown to her by police. (Id. at 4, 6.) Later that same day, Petitioner was arrested and charged with first degree murder. (Id. at 2.)

After being interrogated, Petitioner made a videotaped confession. (Id. at 4.) He stated that he had purchased the .38 caliber gun "right after a friend of [his] had got shot up in front of the currency exchange [and] so [he] felt the need to have a gun ... seeing as though [he would] be out at late hours." (Id.) He stated that he brought the gun with him that night because he did not "really know them guys down there ... and [did not] really get along with them." (Id.) He stated that he had been walking alone when he noticed "a man standing in the doorway," which "startled" him. (Id.) He "thought [he] may have heard a noise or something, so [he] got paranoid and tore [his] gun out and pointed it." (Id.) He "took a glimpse" at Williams and "at the same time ... was pulling the trigger." (Id.)

At trial, Williams' girlfriend, Moore, testified for the prosecution. (Id. at 6.) She testified that she and Williams were standing outside of their apartment building when she noticed Petitioner walking towards them on the sidewalk. (Id.) As Petitioner came closer, she recognized him as a man known in the neighborhood as "Petey." (Id.) As Petitioner walked by, he said, "What's up?" to Williams, and Williams returned the greeting. (Id.) According to Moore, after Petitioner had taken a couple of steps past them, he "just turned around and shot." (Id.)

The prosecution also called Assistant State's Attorney Karen O'Malley ("ASA O'Malley"), who testified that she spoke with Petitioner several times after his arrest, and that he ultimately confessed to shooting Williams. (Id. at 4.) ASA O'Malley also testified that in the course of the investigation she had a conversation with a friend of Petitioner's, Juanita Johnson ("Johnson"), also known by the nickname "China," who stated that Petitioner had told her to lie and say he was with her the night of the shooting. (Id. at 4, 20-21.) The videotaped confession was played for the jury. (Id. at 4.) In his confession, Petitioner admitted to committing the shooting, and also admitted that he had asked Johnson, as well as another friend, to lie if questioned by the police and to say Petitioner was with them at a casino on the night of the shooting. (Id. at 22.)

Petitioner did not call any witnesses at trial. (Id. at 6.) Following the close of evidence, Petitioner's counsel argued that Petitioner's videotaped confession provided evidence that he was operating under a belief, albeit an unreasonable one, that he was acting in self-defense when he shot Williams, and thus requested an instruction on second degree murder. (Id.) Counsel further argued that there was evidence Petitioner had been acting in a reckless manner, rather than intentionally, and thus requested an instruction on involuntary manslaughter. (Id.) The trial court gave the instruction on second degree murder, but found insufficient evidence to warrant an instruction on involuntary manslaughter. (Id. at 6-7.)

On November 19, 2001, the jury returned a verdict of guilty on the first degree murder charge. (Id. at 7.) The trial court sentenced Petitioner to 30 years in prison. (Id.) Petitioner received a mandatory 25-year enhancement to his sentence pursuant to 730 ILCS 5/5-8-1(a)(1)(d)(iii) for personally discharging a firearm and causing death. (Id. at 1, 7.)

Petitioner appealed his conviction and sentence. On appeal, Petitioner, through counsel, raised the following arguments:

(1) the trial court erred in failing to give the involuntary manslaughter instruction;

(2) the trial court abused its discretion in refusing to permit defense counsel to ask potential jurors whether they had strong feelings about handguns;

(3) the prosecutor committed error by eliciting irrelevant and inflammatory testimony from the victim's grandmother;

(4) the prosecutor committed misconduct in his closing argument by (a) misstating the law; (b) making unreasonable inferences from the evidence; (c) unfairly attacking Petitioner; and (d) unfairly attacking the defense theory;

(5) the trial court erred in allowing the jury to hear irrelevant and highly prejudicial evidence in the videotaped confession about Petitioner's other activities the night of March 11, 2000, or, alternatively, that defense counsel was ineffective in not moving to bar portions of the videotape;

(6) the trial court erred in "treating defense counsel differently from the prosecutor" as to arguments the court permitted counsel to' make; and

(7) the state's sentence scheme for murder by a firearm violates the Illinois Constitution by providing for disproportionate penalties; violates the separation of powers clause in the Illinois Constitution; and violates the Illinois and federal constitutional prohibition against Double Jeopardy.

(R. 18, Resp.'s Exs. in Supp. of Answer, Ex. B, Pet. Br., People v. Keller, No. 1-02-3186.) The Illinois Appellate Court rejected each of Petitioner's arguments and affirmed his conviction and sentence. (Id., Ex. A.)

Petitioner filed a petition for leave to appeal ("PLA") in the Illinois Supreme Court, arguing that the Illinois firearm enhancement was unconstitutional because it violates: the separation of powers and proportionate penalty clauses contained in the Illinois Constitution; the Eighth Amendment of the U.S. Constitution; state and federal due process principles and Petitioner's Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). (Id., Ex. D, PLA in People v. Keller, No. 98818.) The Illinois Supreme Court denied Petitioner's PLA without comment on October 6, 2004. (Id., Ex. E, Order Denying PLA, People v. Keller, No. 98818.)

In February 2005, Petitioner, with the assistance of counsel, filed a petition for post-conviction relief in the state trial court, raising two arguments: (1) that the prosecutor engaged in misconduct during closing by stating that Petitioner "wins" if the jury returned a verdict of second-degree murder; and (2) that newly discovered evidence demonstrated that one of the jurors, Stephanie Averhart ("Averhart"), knew a potential trial witness, Johnson or "China," but concealed this fact from the court. (Id., Ex. F, Post-Conviction Pet. in People v. Keller, No. 00-CR-9388.) The newly discovered evidence consisted of an affidavit from Johnson, signed in October 2004, attesting that she went to South Shore High School from 1992-96 and had a classmate named Stephanie Averhart. (Id., Ex. A, Affidavit.) Johnson further attested that after Petitioner's trial, a friend named Detra Hardge called her and said "she had just spoken to Stephanie Averhart ... [and that] Stephanie was on Howard Keller's jury. She told me Howard testified."³ (Id.)

The trial court denied the petition. (Id., Ex. G, Tr. of Proceed, at H24-H28.) As for the prosecutorial misconduct claim, the trial court concluded that the argument had been raised on direct appeal and rejected, and was thus barred by res judicata. (Id. at H25.) As for the juror bias claim, the trial court concluded that there was insufficient evidence to conclude that juror Averhart knew the same Juanita Johnson who had been a potential witness in the case. (Id. at H26-H27.) The court also found that any error, assuming there was one, would have had no effect on the verdict for several reasons: Johnson did not testify as a witness during the trial; her testimony was unnecessary because Petitioner admitted having asked Johnson to lie for him and provide an alibi; and her proposed testimony was on a collateral issue, since Petitioner's defense theory was that he committed the shooting in self-defense, not that he was somewhere else during the shooting. (Id.) For these reasons, the trial court denied the petition without conducting an evidentiary hearing. (Id.)

Petitioner appealed. (Id., Ex. H, Pet. Br., People v. Keller, No. 1-05-2102.) Through couns...