Citation681 F. Supp.2d 937
Decision Date13 January 2010
Docket NumberNo. 07 C 1578.,07 C 1578.
PartiesUNITED STATES of America ex rel. James HARRIS, Petitioner, v. Frank SHAW, Warden, Stateville Correctional Center, Respondent.
CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)

681 F. Supp.2d 937

UNITED STATES of America ex rel. James HARRIS, Petitioner,
Frank SHAW, Warden, Stateville Correctional Center, Respondent.

No. 07 C 1578.

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

January 13, 2010.

681 F. Supp.2d 941

Geneva Lynette Penson, Office of the State Appellate Defender, Chicago, IL, for Petitioner.

Erica R. Seyburn, Illinois Attorney General's Office, Chicago, IL, Chief of Criminal Appeals, Attorney General's Office, for Respondents.


WILLIAM T. HART, District Judge.


A. State Court Proceedings

During the early morning hours of February 10, 1983, Jesse James, Sr., the owner of a tavern located on the south side of Chicago, and Theresa Woods, a waitress at the tavern, were robbed at gunpoint shortly after closing the tavern. During the robbery, James was shot to death and Woods was shot in the shoulder. Woods was able to call for help. Petitioner James Harris was apprehended near the place of the shooting in possession of the weapon fired. In 1984, following a jury trial in the Circuit Court of Cook County, Illinois, Harris was found guilty of the murder of James and the attempted murder of Woods. Harris was also convicted of one count of aggravated battery and two counts of attempted robbery. Harris was sentenced to death on the murder conviction and received terms of imprisonment for the other felonies.

On appeal to the Supreme Court of Illinois, the court entered a supervisory order requiring the trial court to make findings as to whether the prosecution exercised peremptory challenges in a discriminatory manner contrary to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See People v. Harris, 107 Ill.Dec. 260, 506 N.E.2d 1315 (Ill.1987). Thereafter the court held that evidence of a prior killing should have been excluded in the sentencing phase of the death penalty case and an additional hearing was required on the issue of whether the prosecution exercised certain of its peremptory challenges in a discriminatory manner. The case was remanded for further consideration of the Batson issue and a new sentencing hearing. People v. Harris, 129 Ill.2d 123, 135 Ill.Dec. 861, 544 N.E.2d 357, 376-86 (1989), cert. denied, 494 U.S. 1018, 110 S.Ct. 1323, 108 L.Ed.2d 498 (1990) ("Harris I").

On remand the trial court made findings that the State had not exercised its challenges in a discriminatory manner. A different judge held a sentencing hearing and reimposed the death penalty and other sentences. On direct appeal, the Supreme Court of Illinois held that the prosecution's explanations for challenging African-American venire members were race neutral and not pretextual. People v. Harris, 164 Ill.2d 322, 207 Ill.Dec. 400, 647 N.E.2d 893 (1994), cert. denied, 516 U.S. 885, 116 S.Ct. 225, 133 L.Ed.2d 155 (1995) ("Harris II").

Petitioner sought post-conviction relief. The Cook County Circuit Court denied the petition without a hearing. On direct appeal, the Supreme Court of Illinois again considered Batson issues ruling that there was no discriminatory exercise of peremptory challenges. However, on a claim that the prosecution, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), withheld medical documents

681 F. Supp.2d 942
that would have impeached the testimony of a penalty phase aggravation witness, the court remanded the case to the Circuit Court for a hearing on the merits of the Brady claim. People v. Harris, 206 Ill.2d 1, 276 Ill.Dec. 419, 794 N.E.2d 314, 324-33 (2002) ("Harris III")

Before a hearing was held on the remanded Brady claim, the Governor of Illinois commuted then-pending death sentences, including petitioner's, to a term of natural life. On a motion of the prosecution, the trial court dismissed the Brady claim as moot and the Illinois Appellate Court affirmed. People v. Harris, 357 Ill. App.3d 1086, 324 Ill.Dec. 200, 895 N.E.2d 695 (Ill.App.Ct. 1st Dist.2005) ("Harris IV"). The Illinois Supreme Court initially remanded the case to the Appellate Court with directions to vacate the order dismissing the appeal as moot. People v. Harris, 217 Ill.2d 612, 298 Ill.Dec. 794, 840 N.E.2d 1229 (2006). However, the court later vacated its remand order and denied leave to appeal. People v. Harris, 302 Ill.Dec. 542, 849 N.E.2d 334 (Ill.2006).

The parties agree that Madej v. Briley, 371 F.3d 898, 899 (7th Cir.2004), holds that a constitutional claim is not moot and must be considered in a federal habeas corpus proceeding because of the possibility that the petitioner could be sentenced to a term of years rather than natural life if a new sentencing hearing is held. See also Simpson v. Battaglia, 458 F.3d 585, 595 (7th Cir.2006); United States ex rel. Harris v. McCann, 558 F.Supp.2d 826, 836-37 (N.D.Ill.2008).

B. Federal Habeas Corpus Petition

Respondent concedes that the federal petition is timely and that Harris has fully and sufficiently exhausted his state court remedies regarding all the claims contained in the federal petition. Here, Harris raises three grounds for relief. Ground One raises Batson issues regarding seven of the African-American venirepersons who were stricken from the jury. These issues were addressed by the Illinois Supreme Court on direct appeal in Harris I and Harris II. Ground Two raises the ineffective assistance of counsel claim addressed in Harris III regarding defense counsel failing to establish that two venirepersons were African-American and their being stricken from the jury pool. Ground Three raises the Brady issues addressed in Harris III.


A. Batson Standards

In 1986, Batson established a

three-part process for evaluating claims that a prosecutor used peremptory challenges in violation of the Equal Protection Clause. First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. 476 U.S. at 96-97, 106 S.Ct. 1712. Second, if that showing has been made, the, prosecution must offer a race-neutral basis for striking the juror in question. Id., at 97-98, 106 S.Ct. 1712. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Id., at 98, 106 S.Ct. 1712.

Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Accord Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008).

Harris contends that the step-three findings of the Illinois courts are inconsistent with the evidence of record. The challenged factual findings are considered in light of the standards applicable under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") Pub.L. No. 104-32, 110 Stat. 1214 (April 24, 1996). Harris does not challenge the

681 F. Supp.2d 943
Illinois courts' application of legal principles set forth in Batson and its progeny, for which 28 U.S.C. § 2254(d)(1) would apply. See Rice v. Collins, 546 U.S. 333, 342, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006); Lamon v. Boatwright, 467 F.3d 1097, 1100-01 (7th Cir.2006). Instead, he challenges the factual findings, which requires a showing that the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2); Rice, 546 U.S. at 338, 126 S.Ct. 969; Mahaffey v. Ramos, 588 F.3d 1142, 1146 (7th Cir.2009); Lamon, 467 F.3d at 1100. The findings of the state court are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005); Lamon, 467 F.3d at 1102. This standard is more demanding than the clear error standard that would apply on direct review. See Rice, 546 U.S. at 338, 126 S.Ct. 969; Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir.1997). See also Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir.1999) (§ 2254(d)(2) is accompanied by § 2254(e)(1)'s "rigorous burden of proof"); Conner v. McBride, 375 F.3d 643, 649 (7th Cir.2004) (same). Section 2254 requires unreasonable error which, at a minimum, requires that the pertinent finding of the state court be against the clear and convincing weight of the evidence before it. Conner, 375 F.3d at 649; Ward v. Sternes, 334 F.3d 696, 703-04 (7th Cir.2003). See also Mahaffey, 588 F.3d at 1146 (quoting United States v. Stephens, 514 F.3d 703, 712 (7th Cir.2008)) (reversal requires "a definite and firm conviction that a mistake has been committed.") There is no basis for overturning the state court finding of no discrimination "unless the reason given by the prosecution is completely outlandish or there is other evidence which demonstrates its falsity." Id. (quoting Tinner v. United Ins. Co. of Am., 308 F.3d 697, 703 (7th Cir.2002))

With the AEDPA fact determination standard in mind, each of the peremptory strikes at issue will be considered in turn. If the findings of no discriminatory purpose was in error as to even a single venireperson, Harris is entitled to a new trial. Snyder, 128 S.Ct. at 1208. In considering whether a particular venireperson was stricken because of his or her race, generally all facts and circumstances going to racial animosity must be considered, including the strikes of other venirepersons.1 Id.

The explanation for striking a particular venireperson may be so unconvincing, the unconvincing explanation, by itself, will suffice to support Batson error. Id. Also, the Seventh Circuit has held that the focus at the third Batson step is on whether any particular venireperson was stricken for discriminatory reasons, not the overall number of persons of a particular race on the jury or who were stricken from the venire. See Coulter v. McCann, 484 F.3d 459, 467-68 (7th Cir.2007).

B. Woodward

As to venireperson Lucille Woodward,2 prosecutor Franks noted that she was divorced and her juror card had omitted her age...

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