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UNITED STATES EX REL. CARSON v. PETERS

February 24, 1994

UNITED STATES OF AMERICA ex. rel. WILLIAM CARSON, Petitioner,
v.
HOWARD A. PETERS, III, Respondent.



The opinion of the court was delivered by: BRIAN BARNETT DUFF

 This case comes before this court on a Petition for Writ of Habeas Corpus ("Petition") ordering the release from custody or retrial of Petitioner, William Carson ("Petitioner"), pursuant to 28 U.S.C. § 2254. The Respondent, Howard A. Peters, III, the Director of the Illinois Department of Corrections ("Respondent") has filed an answer to the Petition and moves that it should be denied. *fn1" After reviewing the Report of Proceedings, Common Law Record, and Supplemental Record of the Petitioner's trial in the Circuit Court of Cook County, Illinois, as well as the briefs and opinion filed on the Petitioner's direct appeal to the Appellate Court of Illinois, this court grants the Respondent's motion and denies the Petition for the reasons discussed below.

 PROCEDURAL HISTORY

 Before a person may bring a constitutional claim in a federal habeas petition, he must have exhausted his state remedies. See, Mason v. Gramley, 9 F.3d 1345, 1347 (7th Cir. 1993). In this case, the Petitioner is not required to have pursued a collateral remedy in state court in order to exhaust his state remedies. "The general rule in Illinois is that affirmance of a conviction on appeal acts as res judicata for purposes of a subsequent post-conviction proceeding concerning all issues that were raised or that could have been raised in that appeal." Gornick v. Greer, 819 F.2d 160, 161 (7th Cir. 1987). *fn2" Accordingly, the Petitioner exhausted his state remedies by raising the question at issue on direct appeal.

 BACKGROUND

 Under 28 U.S.C. § 2254 (d) factual findings by a state court "are presumed to be proper in a federal habeas corpus proceeding, if the findings are made after a hearing on the merits, and are fairly supported by the record." Wilson v. McCaughtry, 994 F.2d 1228, 1230 (7th Cir. 1993). Factual findings made by a state appellate court are accorded the same statutory presumption of correctness as findings made by a state trial court. Lewis v. Huch, 964 F.2d 670, 671 (7th Cir. 1992).

 Accordingly, the following facts are taken from the Appellate Court's opinion in this case, People v. Carson, 238 Ill.App.3d 457, 606 N.E.2d 363 (1 Dist. 1992, 179 Ill. Dec. 531):

 
At approximately 9:30 p.m. on May 20, 1986, 12-year-old April Murdock and 16-year-old Terrence Jones played outside of the high-rise apartment buildings at the Cabrini-Green housing project where they lived. April heard a shot and felt a bullet pass by her ear. She and the victim ran toward the building at 1159 North Cleveland Avenue and paused near the outside stairs. April looked up at the 534 West Division Street building to determine the source of the shots. She testified that her attention was focused on that particular building because shots were often fired from there. She observed a window on the third floor from the top of the building with orange curtains and two people with dark skin looking out of the window. April testified that one person wore a white hat and the other held a rifle with a scope attached, and the rifle was pointed at the 1159 North Cleveland Avenue building where April and the victim stood. April ran into the 1159 North Cleveland Avenue building and within moments heard three or four more shots fired, one of which hit the victim, who fell to the ground.
 
Detective Thomas Blomstrand testified that April showed him and his partner, William Baldree, which window had the orange curtains at 534 West Division Street. Outside of apartment 1402, the officers noticed a gang symbol for the Black Gangster Disciples with the word "Mickey" written across it. Leslie Mickey, co-defendant Robert Mickey's mother, allowed the officers to look into her son's bedroom, where orange curtains hung. The officers noticed that from the window there was a clear line of sight to the area where the victim had been shot. Detective Blomstrand testified that he recovered a white cap from the apartment of David Carson, the defendant's brother.
 
Officer Chenow testified that he performed tests on the .22 caliber rifle and found that although he could not say conclusively that it was used to kill the victim, it could not be ruled out. Thereafter, defendant was advised of his constitutional rights and subsequently gave a detailed account of the murder to Detective Baldree, implicating himself in the crime.
 
Defendant also made a court-reported statement to Assistant State's Attorney Michael Gerber on June 13, 1986. *fn3" In the statement, he recounts that at approximately 9:30 p.m. on May 20, 1986, he was in Robert Mickey's bedroom in apartment 1402 at 534 West Division Street. Defendant's brother, David Carson, and Robert Mickey were also there. Defendant stated that Robert Mickey fired a shot from his window toward the building at 1159 North Cleveland Avenue in the direction of the victim. Defendant recalled that after the first shot, Mickey started shaking and could not hold the gun steady. Defendant, who admitted that he was wearing a white painter's cap at the time, wrapped his arms around Mickey in order to brace him, and another shot was fired toward the victim. Defendant further admitted that the gun recovered from him on June 12, 1986, was the same gun used in the murder. Defendant stated that he understood the victim to be a member of a rival gang, the Vice-Lords, which was "on bad terms" with defendant and Mickey's gang, the Black Gangster Disciples, and that the victim had previously shot at Mickey.
 
Defendant . . . argues that the trial court erred when it refused to allow into evidence the statements of co-defendants David Carson and Robert Mickey because those ...

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