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Sullivan v. Fairman

decided: May 22, 1987.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 82 C 613 -- Charles R. Norgle, Judge.

Wood, Jr. and Ripple, Circuit Judges, and Eschbach, Senior Circuit Judge.

Author: Ripple

RIPPLE, Circuit Judge.

In this appeal, we must review the judgment of the district court granting petitioner a writ of habeas corpus on the ground that he was denied the right to the effective assistance of counsel. Because the district court correctly identified the governing principles of law and properly applied those principles to the facts of this case, we affirm its judgment.



A. State Proceedings

The district court described the state trial proceedings in this case in detail. We see no reason to recast what has already been done; accordingly, we set forth the district court's rendition:*fn1

Petitioner, Melvin Sullivan ("Sullivan") was found guilty at a bench trial of murdering Michael Grayson ("Grayson") outside the Pepperbox Lounge ("Pepperbox") on March 18, 1979 at about 2:30 A.M. Sullivan was sentenced to twenty years in prison.

At his trial, the prosecution called three witnesses, the first of whom was Sammy Titus ("Titus"), an employee working at the Pepperbox on the night of the murder. (Transcript of Trial Proceedings at 4) [hereinafter "Tr."]. Titus testified it was his job to patrol the floor of the Pepperbox and to keep confusion to a minimum. The witness recalled having seen Sullivan (who had red hair and a beard) at the bar that night but he could not remember the exact time. (Tr. 8-9). Titus also acknowledged that he did not see Sullivan arrive or depart from the Pepperbox. When questioned as to what Sullivan was wearing, Titus could not recall. (Tr. 12-13). Ms. Elnora Barnes ("Barnes") was also seen by Titus in the bar that evening, but he did not observe Barnes talking with Sullivan. Titus did not witness the murder. (Tr. 14-15).

The prosecution's second witness was William Davis ("Davis"), a patron at the Pepperbox on this St. Patrick's Day. (Tr. 21-22). Davis remembered having spoken to Sullivan at the Pepperbox on the night of the murder at about 12:00 A.M. He could not recall, however, what Sullivan was wearing. (Tr. 28). Davis said he consumed a half pint of liquor that evening. (Tr. 32). At approximately 2:30 A.M., Davis testified he stepped outside the bar, lit a cigarette, and heard a gunshot. (Tr. 22-23). After hearing the shot, he saw two women and a man wearing a long gray coat each running down the street. (Tr. 24-25). Davis recognized one of the women, but could not identify her by name. (Tr. 26-27).

The prosecution's principal witness was Elnora Barnes who had been seeing Sullivan at the Westlane Hotel in the evenings for two weeks prior to the murder. (Tr. 45-46). Barnes testified that she went to the Pepperbox at about 1:00 A.M. (Tr. 47). Barnes was a prostitute and had heard on the street that Sullivan was looking for her. (Tr. 49). Sullivan and Grayson (the victim) were talking when Barnes stated she spotted them in the Pepperbox. (Id.) Barnes then testified that she, Grayson, Sullivan and two others got up and left the bar. (Tr. 50). Barnes testified Sullivan told her, "they was going to stick up the dude because he had a piece of money," and Sullivan then pointed out Grayson. (Tr. 51). Barnes testified that no one else was around them when Sullivan spoke. Barnes recalled that Sullivan was wearing a long gray coat that evening and had a gun tucked in the waistband of his trousers. (Tr. 53-54). Upon leaving the Pepperbox with Sullivan, Grayson, and the two others (Tr. 52), Barnes testified she heard a gunshot and saw Grayson fall. She then ran back to her hotel room at the Westlane. (Tr. 55).

Barnes stated that Sullivan arrived at the hotel about twenty minutes after the shooting and said, "I just killed the nigger up on the corner." (Tr. 57). When Barnes asked him what he said, he repeated his statement. (Tr. 57). Despite this event, Barnes stayed at the hotel until mid-May when she moved to Mississippi. Several weeks later Barnes returned to Chicago. After allowing almost three months to elapse after the murder, Barnes felt the compulsion to notify the police as to her version of the events that took place on the night of the murder.

After the conclusion of Barnes' testimony the state entered a stipulation as to the cause of death of the victim and then rested. The judge then denied a motion for a directed finding. (Tr. 97). The defense began its case.

After speaking to the defendant and his aunt, the defense decided upon an alibi defense. Sullivan's Aunt Kathleen testified first. Kathleen Sullivan ("Kathleen") stated that at around 1:00 A.M. in the morning of March 18, 1979 she heard Sullivan outside and threw him a key from her window to let him enter the home where he resided at times with her. (Tr. 98-99). Linda Lee Sullivan ("Linda"), the defendant's cousin who also lived at this residence, testified that she was sleeping and did not hear Sullivan come home. (Tr. 108-09).

The final witness at the trial was the defendant Sullivan. Sullivan testified that he was at the Pepperbox on the evening of March 17, 1979, where he spoke with Titus and Davis. (Tr. 110-12). However, Sullivan left the Pepperbox at around 12:00 A.M. that evening without seeing Barnes. Id. After leaving the Pepperbox, Sullivan testified he returned to his aunt's home where she tossed him a key to enter the house. Sullivan stated he turned on the television for a few minutes that evening and then went to sleep. (Tr. 112-13).

Sullivan further testified that he and Barnes had been seeing each other for a period of several weeks at about the time the murder occurred. Sullivan stated he and Barnes ended their relationship on bad terms when he told Barnes he was returning to his wife now that he had graduated from college. (Tr. 113-15). Barnes apparently moved south for a period of weeks after hearing it was over between her and Sullivan. (Tr. 115).

At the close of the trial, defense counsel moved for a continuance to allow him to locate and interview several additional witnesses. (Tr. 120-21). The court offered defense counsel the opportunity to state the names of the persons he would call and an offer of proof as to what their testimony would be. (Tr. 12[3]). Defense counsel identified Jedda Sullivan and Vernell Davis as two persons who were named in the police report as witnesses who would offer testimony inconsistent to that of Barnes. (Tr. 12[4]). The court denied the motion, and after final argument found Sullivan guilty and sentenced him to twenty years in prison.

Subsequently, Sullivan moved for a new trial on the basis of newly discovered occurrence witnesses, even though these five witnesses had been named in the State's answers to discovery several months earlier. The motion was denied by the trial judge on the grounds that this evidence would have been discovered but for the lack of diligence exhibited by the defense attorney. (Tr. 201; 184-86).

United States ex rel. Sullivan v. Fairman, No. 82 C 613, order at 4-8 (N.D. Ill. Sept. 12, 1986); R.96 at 4-8 [hereinafter cited as Order].

On appeal to the Appellate Court of Illinois, the judgment of conviction was affirmed. People v. Sullivan, 95 Ill. App. 3d 571, 420 N.E.2d 474, 51 Ill. Dec. 60 (1981). The court rejected Mr. Sullivan's claim that he was not proved guilty beyond a reasonable doubt. It also rejected his contention that the trial court had erred in failing to grant him a continuance to procure witnesses on the ground that counsel had failed to show that he exercised due diligence. Id. 420 N.E.2d at 477. It also affirmed the denial of a new trial on the same ground. Id. Finally, it rejected petitioner's claim that he had been denied the effective assistance of counsel. Id. at 477-78. On June 15, 1981, the petitioner filed leave to appeal to the Illinois Supreme Court, which was denied by the court on October 19, 1981.

After exhausting the available state remedies, Mr. Sullivan filed a petition for a writ of habeas corpus in the district court. He alleged that the state trial court's failure to grant him a continuance or a new trial deprived him of his right to due process of law. He further alleged that he had been denied the effective assistance of counsel. The district court dismissed the petition. United States ex rel. Sullivan v. Fairman, 564 F. Supp. 575 (N.D. Ill. 1983). It ruled that Mr. Sullivan failed to meet the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977) with respect to the due process claim. Id. at 579. With respect to the ineffective assistance of counsel claim, this court vacated the district court's judgment and remanded the case for further proceedings in light of United States ex rel. Cosey v. Wolff, 727 F.2d 656 (7th Cir. 1984), overruled, United States v. Payne, 741 F.2d 887 (7th Cir. 1984) (per curiam).*fn2 The court also noted that the district court had disregarded the exculpatory affidavits without the benefit of an evidentiary hearing. United States ex rel. Sullivan v. Fairman, 731 F.2d 450, 455-56 (7th Cir. 1984).

On remand, the district court held a hearing. In the course of this hearing, Mr. Sullivan, his Aunt Kathleen, the defense attorneys for Mr. Sullivan at his original trial, as well as four of the five occurrence witnesses testified. The fifth witness to the murder is deceased. In its opinion, the district court carefully summarized the evidence presented by both sides at this hearing:*fn3

Two witnesses who saw the murder of Grayson testified that they had been with the victim for the entire evening up until the time of the shooting. Both Jedda Sullivan ("Jedda") and Vernell Davis ("Vernell") testified to relatively the same factual occurrences on the evening of March 17, 1979. The two witnesses [and the victim] were walking along the street on which the Pepperbox is located and were all three singing the song "Reunited" as they walked. (Remand Proceedings at [8]) [hereinafter "R."]; (Second Remand Hearing at 15-16) [hereinafter "SR."]. An unknown man from across the street yelled at them to shut up. (SR. 16). The three continued singing when the man across the street fired a shot. (R. 9; SR. [17-18]). This same man from across the street was then seen approaching the three individuals a few moments later. (R. 11; SR. 19). [Grayson said], "I want to talk to you," and [the man] and Grayson then argued about the singing. The man then fired a gun at Grayson from a relatively short distance. (R. 11-12).

Both Jedda and Vernell testified that before the gunman ran away they were able to get a look at him. (Jedda being about 15 feet away from him and Vernell being about six feet from the gunman). (R. 11-14; SR. 20-24). Both witnesses identified the murderer as being over six feet tall, with nappy, wild hair, and a mustache. (Id.) Both said he was wearing a long coat. (Id.) Jedda and Vernell were in agreement that if they saw this man again they would be able to identify him. They also agreed that the man who murdered their friend Grayson was not Sullivan. Sullivan was present in the courtroom at these hearings. (R. 13-14; SR. 22-23).

Neither Jedda nor Vernell knew Sullivan before the hearing, but they had seen him around the neighborhood. (R. 13; SR. 22-23). The police had interviewed both witnesses, and their earlier testimony was similar to the testimony they gave at the hearing. (R. [17]; SR. [24-25]). Neither witness had left the City of Chicago since the murder, ...

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