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UNITED STATES EX REL. BUFORD v. O'LEARY

December 20, 1989

UNITED STATES OF AMERICA ex rel. JIMMIE BUFORD, Plaintiff,
v.
MICHAEL O'LEARY and NEIL F. HARTIGAN, Defendants


Marvin E. Aspen, United States District Judge.


The opinion of the court was delivered by: ASPEN

MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 Petitioner Jimmie Buford, an inmate at the Stateville Correctional Center, seeks habeas relief under 28 U.S.C. § 2254 from his convictions for murder and armed robbery and the imposition of consecutive sentences of 80 years and 10 years imprisonment. For the following reasons, the petition is denied.

 Factual Background *fn1"

 A man identified as Xavier Young walked into the store and asked Burns for some meat. Burns directed Young to the meat counter in the rear of the store where Wright waited on him. A second man, identified as petitioner Buford, entered the store and stood at the middle aisle. A third man identified as Alfred Dismukes entered the store and stood behind a customer at the checkout counter.

 When the customer left, Buford ran to the front door and locked it. Dismukes then pulled a gun and announced a stick-up. Armed with a pistol, Buford ran behind the counter and told Johnson to open the cash register. Johnson refused. Meanwhile, Dismukes approached Burns at the freezer near the front door and told him to lie face down on the floor. Burns laid down on the floor on his stomach. From this position, Burns could see Buford and Johnson at the checkout. Buford then pushed Johnson down the middle aisle and down onto his stomach. Burns heard Johnson say, "Oh no." Burns then heard a gun shot.

 After the shot, Dismukes ordered Burns to open the cash register. As Burns passed the middle aisle, he saw Johnson lying on the floor and Buford going through his belongings. Burns then opened the cash register, and Dismukes took the food stamps and cash. Buford then called out, "Hey, come on," and Young came running from the rear of the store. Buford, Dismukes and Young left the store together. Burns watched them run east on Cullerton and then cross the street. Five weeks later, on November 25, 1984, Burns tentatively identified Buford's photograph in a photo array. On cross-examination, Burns stated that he told the police that the photo of Buford "could be him."

 Detective James Antonacci of the Chicago Police Department then testified that on November 25, 1984, Burns had made a tentative identification of Buford from the photo array. Officer Antonacci arrested Buford on December 3, 1984, and advised him of his Miranda rights. Buford told him that he had no knowledge of the incident and denied his participation. That same day, however, Burns identified Buford in a lineup. Detective Antonacci testified that, after the identification, Buford confessed to the robbery and murder.

 In his statement to Antonacci, Buford said the robbery had been the idea of an employee at Winfield Groceries nicknamed "Kewanee." Kewanee had discussed the idea with Buford and Young. He explained that Johnson was an old man who usually carried about $300 in cash on him and had money in the cash register and under the register drawer. Kewanee advised Buford and Young that the best time to rob the store would be on a Saturday at approximately 7:00 p.m.

 Antonacci testified that Buford then detailed the events surrounding the robbery and killing. Buford stated that he left his house on Saturday, October 22, 1984, armed with a.22 caliber gun and a.38 caliber gun. He went to a nearby park where he met Young and Curtis Williams. Dismukes joined them and asked to participate in the robbery. Buford gave Dismukes the.22 caliber gun to use. The four men then drove to Winfield groceries in Williams' car. Dismukes, Young and Buford got out of the car and entered the store. Dismukes went to the back of the store, while Buford and Young remained in the front pretending to shop. When the last customer left, Buford closed the door and ran over to Johnson, grabbed him with one hand and took him to the middle aisle where Buford pushed him to the floor. When Johnson started to struggle, Buford shot him.

 The defense rested without calling any witnesses. During closing arguments, Buford's Attorney Keith Davis argued that Johnson had not been shot in cold blood as the state suggested. Rather, Johnson had been accidentally shot while struggling for the gun. Davis further argued that the evidence showed that there was no intention to hurt anyone, only an intent to rob Johnson. Davis also attacked the strength of the evidence regarding what actually transpired between the gunman and Johnson. He stated that "there were no eyewitnesses to the shooting, other than the testimony which the State produced by its own witnesses, taken from a statement." Davis concluded by stating that it was uncontroverted in this case that there was an accidental shooting of Johnson following a scuffle over a gun. He then asked the court to "enter an appropriate finding, that finding being not guilty of murder."

 The court found Buford guilty of murder, armed robbery and unlawful restraint. The state then ...


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