US EX REL. LEWIS v. Lane

• Decision Date: 08 January 1987
• Docket Number: No. 86-2086.,86-2086.
• Citation: 656 F. Supp. 181
• Parties: UNITED STATES ex rel., Cornelius LEWIS, Petitioner, v. Michael P. LANE, as Director of the Illinois Department of Corrections, Respondent.
• Court: U.S. District Court — Central District of Illinois

656 F. Supp. 181

UNITED STATES ex rel., Cornelius LEWIS, Petitioner, v. Michael P. LANE, as Director of the Illinois Department of Corrections, Respondent.

No. 86-2086.

United States District Court, C.D. Illinois, Danville Division.

January 8, 1987.

COPYRIGHT MATERIAL OMITTED

Cornelius Lewis, pro se.

J. Steven Beckett, Reno, O'Byrne & Kepley, P.C., Champaign, Ill., for petitioner.

Mark Rotert, Asst. Atty. Gen., Chicago, Ill., Jack Donatelli, Asst. Atty. Gen., Chicago, Ill., for respondent.

MEMORANDUM OPINION AND FINAL ORDER

BAKER, Chief Judge.

This is an application for habeas corpus under the provisions of 28 U.S.C. § 2254 by a prisoner in the custody of the State of Illinois who has been sentenced to death for murder. The case is extraordinary, not only because it involves a death sentence, but also because a majority of the present Justices of the Illinois Supreme Court agree that the Illinois death penalty statute violates the provisions of the Eighth Amendment. In addition, two of the Illinois Justices believe the petitioner was denied the effective assistance of counsel, contrary to the dictates of the Sixth Amendment. Moreover, the Illinois Attorney General, while the appeal of the petitioner's conviction was pending, sought remand of the case for resentencing because of errors in the prosecution's closing argument and the trial court's instructions on mitigation.

PROCEDURAL SUMMARY

The petitioner, Cornelius Lewis, his sister, Bernice Lewis, and Willie Sangster, a Decatur resident, were indicted in Macon County, Illinois, on February 21, 1979, for the offenses of murder, armed robbery, and aggravated kidnapping arising from the robbery of the Citizens National Bank in Decatur, Illinois, on December 14, 1978. Venue was changed to Champaign County, Illinois. Willie Sangster's case was severed and the petitioner and Bernice Lewis were tried together. The petitioner was convicted on the three charges on May 23, 1979, and was sentenced to death on June 22, 1979. Bernice Lewis was also convicted and was imprisoned.

The petitioner appealed his conviction and his sentence directly to the Illinois Supreme Court which affirmed the conviction and the sentence. People v. Lewis, 88 Ill.2d 129, 58 Ill.Dec. 895, 430 N.E.2d 1346 (1981).¹ After an unsuccessful petition for rehearing before the Illinois Supreme Court, the petitioner sought review by certiorari in the United States Supreme Court. Certiorari was denied. Lewis v. Illinois, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982). The petitioner then, on August 16, 1982, sought post-conviction relief in the Illinois courts pursuant to the provisions of Ill. Rev.Stat. ch. 38, ¶ 122-1 et seq. The Illinois trial court denied post-conviction relief on July 14, 1983, and the petitioner filed a notice of appeal to the Illinois Appellate Court Fourth District. That appeal was transferred to the Supreme Court of Illinois for direct review on September 1, 1983. On November 30, 1984, the Illinois Supreme Court affirmed the trial court's order denying post-conviction relief. People v. Lewis, 105 Ill.2d 226, 85 Ill.Dec. 302, 473 N.E.2d 901 (1984). Rehearing was denied on February 1, 1985. The petitioner once again sought review in the United States Supreme Court but certiorari was denied on October 7, 1985. Lewis v. Illinois, ___ U.S. ___, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985).

On November 13, 1985, the Illinois Supreme Court granted a stay of execution to the petitioner pending his filing a petition for a writ of habeas corpus in the federal courts. The stay of execution by the Illinois Supreme Court has been extended to cover the outcome of federal habeas corpus proceedings. This habeas proceeding was commenced on March 31, 1986; evidence and arguments were heard on December 8-9, 1986, and a final supplemental memorandum was filed by the respondents on December 17, 1986.

The petitioner has exhausted all available state remedies.

FACTUAL BACKGROUND

28 U.S.C. § 2254(d) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), require that a "presumption of correctness" be applied to the findings of the state court. Those findings show that a robbery of the Citizens National Bank in Decatur, Illinois, occurred shortly before 8:00 a.m. on December 14, 1978, during which Donald Bivens, a bank security guard, was shot and killed. The facts of the case as developed in Lewis I are as follows:

Jodi Myers testified that, at 6:45 a.m. on the morning of the crime, she noticed two or possibly three persons in a maroon Monte Carlo automobile in the parking lot of the day-care center where she worked. As she walked near the Monte Carlo, a black man seated in the driver's seat (whom she later identified from a lineup as Maurice Farris) lowered his sun visor.

Mary Comerford testified that, after delivering her child to the same day-care center, she returned to her car, noticing two black persons in a maroon Monte Carlo parked next to her white Mercury automobile. When she entered her car, a black man wearing a ski mask appeared in her back seat and forced her to drive away, eventually taping her eyes and hands and placing her in the trunk of the Mercury.

Kaye Pinkley, a teller at the Citizens National Bank, testified that decedent Bivens normally drove a van with five tellers from the bank's parking garage to an autobanking facility. Shortly before 8 a.m. on December 14, as decedent was about to start the van in which the tellers were seated, a tall black man pulled the right front door open, leaned his elbows on the witness's legs, ordered the tellers to remain silent, and shot decedent, as the latter apparently reached for his gun. Then the gunman and another robber took three of the tellers' five briefcases containing money for the day and banking paraphernalia, ran to a light-colored Mercury and drove away. Teller Pinkley and two other tellers later identified items recovered from the Macon County landfill as items which had been in their briefcases that morning.

Mr. and Mrs. Joseph Dennis from rural Macon County stated that, while sitting in their car near the Citizens National Bank, they saw two blacks park Mrs. Comerford's Mercury, enter the bank's parking garage, later return to the Mercury, with three black briefcases, and drive off. Gail Thompson, a florist, saw a black man or person dressed as a man, carrying a black briefcase in the vicinity of the parking lot near the bus station, where Norman Goenne, an office worker, saw the driver in a maroon Monte Carlo, waiting with the engine running, at around 7:45 a.m.

Maurice Farris testified that he and Willie Sangster (who according to the prosecution's theory was the mastermind of the robbery) surveyed the Citizens National Bank and the route to the home of Margaret Morgan, where defendant apparently was staying. On two mornings, Farris observed the tellers' routine. Sangster introduced defendant and his sister (using the names "Denise" and "Mingo") to Farris, who at trial estimated the sister's height as 5 feet 11 inches, defendant's as over 6 feet and his own as 5 feet 8 inches. The Lewises and he discussed plans for the robbery of the bank. Farris was to drive the car, the Lewises were to do the actual robbing, and Sangster was to get $10,000 "off the top" the day after the robbery, apparently for his role in planning. On the morning of December 13, when they had intended to carry out the plan, the Lewises and Farris were unable to steal a car for use in the robbery, but they did observe the tellers' routine and drove along the route to Mrs. Morgan's. The next morning defendant and his sister, with Farris driving, went to the day-care center in the Monte Carlo looking for a car to steal. Maurice lowered his sun visor to avoid being identified. Defendant left the car and concealed himself in the back seat of Mrs. Comerford's Mercury. When she entered the car he forced her to drive away and eventually took control of her car, forcing her to get into the trunk. Defendant's sister then left Farris in the Monte Carlo, which had accompanied the Mercury, and sat on the passenger side of the front seat of the Mercury. Farris drove to a parking lot near the bus station, got some coffee at about 7:40, and waited with the motor running until defendant and his sister rejoined him, carrying one and two briefcases respectively. The Lewises concealed themselves on the floor of the maroon Monte Carlo. On the drive to Mrs Morgan's, a siren prompted comments by the sister, and defendant stated, "The guard went for his gun. I had to burn him." Except for the possibility of a perjury prosecution, Farris received total immunity in return for his testimony.

Mrs. Morgan testified that the Lewises had stayed with her beginning on December 12, 1978. On the morning of December 14, at about 8:05 or 8:10 a.m., she observed the defendants with three black briefcases. She asked Bernice Lewis whether Bernice knew that the bank had been robbed, to which Bernice, with defendant present, replied, "Did he die?" Later that morning Mrs. Morgan saw both Lewises counting a large quantity of money on her coffee table, with black briefcases and "blank money orders from the bank and money wrappers" present. Defendant gave Mrs. Morgan a paper sack to take to Willie Sangster at Jelk's Barbership, where he worked. Later that day, Bernice Lewis and Mrs. Morgan went to a deteriorated section of Decatur to dispose of the black briefcases and a garbage bag containing two handguns, money wrappers, and other miscellaneous items. Subsequently, Mrs. Morgan and two neighbors moved these things from the garbage cans, where Bernice Lewis and she had put them, to a "dumpster." Mrs. Morgan, Shirley Brummet (a neighbor), and the Lewises drove to the Davenport, Iowa, bus station, where defendant and his sister caught the bus to Des Moines. Mrs. Morgan eventually turned over to the FBI some money which she said included that given her by defendant. Mrs.

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