US ex rel. McCoy v. Welborn

• Decision Date: 12 July 1994
• Docket Number: No. 93 C 1841.,93 C 1841.
• Citation: 857 F. Supp. 632
• Parties: UNITED STATES of America ex rel. Michael McCOY, Petitioner, v. George C. WELBORN, Warden, Menard Correctional Center, and the Attorney General of the State of Illinois, Respondents.
• Court: U.S. District Court — Northern District of Illinois

857 F. Supp. 632

UNITED STATES of America ex rel. Michael McCOY, Petitioner, v. George C. WELBORN, Warden, Menard Correctional Center, and the Attorney General of the State of Illinois, Respondents.

No. 93 C 1841.

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

July 12, 1994.

COPYRIGHT MATERIAL OMITTED

Michael McCoy, pro se.

Terence Madsen, IL Atty. Gen. Office, Chicago, IL, for respondents.

OPINION AND ORDER

NORGLE, District Judge:

Before the court is the petition of Michael McCoy ("McCoy") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the petition is denied.

FACTS¹

Nazih Youssef ("Youssef") owned and operated a food and liquor store at 3615 South State Street, across from a Chicago Housing Authority apartment complex, with the help of three employees, Hussein Awwad ("Awwad"), Mohammed Ghrayyib ("Ghrayyib"), and Achmaad Hassan ("Hassan"). In addition to them, Youssef had also hired Wayne Millighan ("Millighan") to work at his establishment.

On the night Millighan started working for Youssef, Awwad noticed that Millighan was watching where the cash was kept inside the store instead of working. Subsequently, Awwad related his observation to Youssef. Upon hearing of Millighan's activity, Youssef paid Millighan for the night's work and then terminated him. The next time Awwad encountered Millighan was on April 9, 1986, between 11:00 p.m. and 11:30 p.m. Awwad observed Millighan come into the store with another person, purchase liquor, drink inside the store, and harass other customers.

Approximately 1:00 a.m. on April 10, 1986, Loretta Jackson ("Jackson") and her fiancee Donel Collins ("Collins") were leaving her friend Cecelia Hale's ("Hale") apartment across the street from the store. As they were leaving, Millighan approached them. An argument ensued between Collins and Millighan which resulted in Millighan shooting Collins with a silver handgun. Jackson summoned her brother to take Collins to the hospital. While Jackson's brother drove Collins to the hospital, Hale remained in her apartment and from her window observed Millighan and two other males enter Youssef's store.²

At about this time, Awwad was working in the stock room and Ghrayyib was making coffee in the grocery section of the store near the cash register. Youssef was in the liquor section at the back of the store and Hassan was working in the cooler. As Awwad worked in the stock room, he heard a noise at the locked door which separated the lobby area and the restricted counter area of the store. Awwad proceeded to the front of the store to investigate the source of that noise. As he approached the front, he observed Millighan holding a silver, automatic handgun and heard him announcing a robbery. Millighan ordered Ghrayyib to open the cash register. Ghrayyib complied with his demand. Then, Millighan grabbed the tray and began taking the money.

As Millighan was taking the money, Awwad heard a single gunshot emanating from the back of the store near the liquor section. When the shot rang out, Millighan yelled at his accomplices to vacate the store. Millighan exited along with another male offender who was standing near the doorway. After the two exited, Awwad observed the third male running from the area where the shot came from holding a black revolver and a money bag. Awwad had seen this third offender before that morning. As the third offender ran for the doorway, he passed Awwad within four to five feet of him.

Immediately after the three robbers fled, Awwad ran to the back of the store only to discover Youssef covered with blood and lying on the floor of a small office where he kept the store money. After being summoned, Chicago Police Detective Leo Wilkosz ("Wilkosz") arrived at the store approximately 1:40 a.m. Detective Wilkosz interviewed two eyewitnesses to the robbery and compiled a description of the shooter. The shooter was described as a dark-complected black male, between twenty-five and thirty years of age, five feet six to five feet eight inches in height, 160 to 190 pounds in weight, wearing a mustache, a black baseball cap, a black waist-length leather jacket, blue jeans, dark gym shoes, with a gold earring in his left ear, and carrying a dark, long-barrelled handgun.

On April 12, 1986, Chicago Police Officer Michael Ballard ("Ballard") questioned various people in the neighborhood where the Youssef murder took place. During his street investigation, an individual known to Officer Ballard only as "John" related that McCoy and another individual were responsible for the homicide. Although Officer Ballard had spoken to John before, John had never given any other information which led to a felony arrest prior to that date. John's detailed description of McCoy matched the description Officer Ballard read in the police report.

After receiving a radio call later that afternoon, Officer Ballard and his partner proceeded to 3618 South State Street. Upon arriving, the officers observed McCoy sitting in a vehicle directly across from Youssef's store. Officer Ballard requested McCoy to exit the vehicle. At that time, McCoy was wearing a black baseball cap, a black leather jacket, a jogging outfit, and a gold earring in his left ear. McCoy was twenty-four years of age, five feet nine inches in height, and 170 pounds in weight. Based on the information Officer Ballard gathered from the police report and John, he placed McCoy under arrest.

Subsequent to the arrest, the police placed McCoy in a line-up. Awwad identified McCoy as the male offender who came running from the area where the shot rang-out with a black revolver and a money bag in his hands. Awwad identified McCoy again in court during McCoy's trial.³ In addition to Awwad's identification of McCoy, both Ghrayyib and Hassan identified McCoy from a photograph array and in court during his trial. Ghrayyib identified McCoy as the man running away from the area where the shot came from holding a money bag and a black revolver. Hassan identified McCoy as the man who came in earlier that evening with Millighan drinking inside the store. McCoy's defense was that he was not involved in the shooting or the robbery. One witness testified on behalf of McCoy that she observed someone running with a tray of money near the store at the time in question, but that McCoy was not present near the store.

The jury deliberated and returned a verdict of guilty as to both charges of murder and armed robbery. The Circuit Court of Cook County, Illinois, sentenced McCoy to life imprisonment without parole for murder and thirty years for armed robbery, to be served concurrently.

McCoy files this petition for writ of habeas corpus and raises the same issues presented on his direct appeal to the Illinois Appellate Court. He argues that the court should grant habeas relief because: (1) Officer Ballard did not have probable cause to arrest him; (2) Officer Ballard's testimony regarding John's hearsay statements violated McCoy's right to confront witnesses; (3) the State of Illinois ("State") improperly introduced evidence regarding Millighan's shooting of Collins; and (4) the prosecutor's inferences about the blood stain on McCoy's shoe during the closing argument were highly inflammatory and prejudicial.

DISCUSSION

Before the court may reach the merits of a petition for a writ of habeas corpus, it must first ascertain whether the petitioner has met two distinct procedural requirements. Jones v. Washington, 15 F.3d 671, 674 (7th Cir.1994), cert. denied, ___ U.S. ___, 114 S.Ct. 2753, 129 L.Ed.2d 870 (1994). The first requirement is that of exhaustion. 28 U.S.C. § 2254(b); Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir.1994). Under this requirement, the petitioner must exhaust all possible state remedies before he or she may file a petition for a writ of habeas corpus. Jones, 15 F.3d at 674. The second requirement is that of preservation of issues. Id., Under this requirement, the petitioner must have raised the claims made in his petition in the state court proceedings. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513-14, 30 L.Ed.2d 438 (1971). Failure to satisfy both requirements results in procedural default and denial of the petition. Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir.1988), cert. denied, 490 U.S. 1009, 109 S.Ct. 1648, 104 L.Ed.2d 163 (1989).

In the instant petition, McCoy has satisfied both of these procedural requirements. First, on February 22, 1993, the Supreme Court of Illinois denied McCoy's petition for leave to appeal, thereby exhausting his available state remedies. Second, the issues McCoy raises in his habeas petition are identical to the issues presented to the Illinois Appellate Court. See People v. McCoy, 179 Ill.Dec. at 415, 606 N.E.2d at 247. Thus, McCoy has satisfied the necessary procedural requirements for filing a petition under § 2254. Having determined that the procedural requirements are satisfied, the court now turns to the merit of the four claims McCoy asserts.

In his first claim, McCoy argues that Officer Ballard arrested him without probable cause and, thus, the trial court erred in denying his motion to quash his arrest and suppress evidence. The Illinois Appellate Court disagreed with McCoy's position and held that there was sufficient factual basis to support the trial court's finding of probable cause to arrest. Id. 179 Ill.Dec. at 418, 606 N.E.2d at 250. In reaching this conclusion, the Illinois Appellate Court discussed the relevant facts and considered the applicable law. Id.

Lack of probable cause to an arrest is not a proper basis for granting relief under § 2254. Pierson v. O'Leary, 959 F.2d 1385, 1391 (7th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 168, 121 L.Ed.2d 115 (1992); Colley v. Peters, 814 F.Supp. 1390, 1397 (C.D.Ill. 1992); King v. Greer, 672 F.Supp. 339, 340 (N.D.Ill.1987). "Where the State has provided an opportunity for full and fair litigation of a Fourth...