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ENOCH v. GRAMLEY
August 22, 1994
WILLIE E. ENOCH, PLAINTIFF,
RICHARD B. GRAMLEY, DEFENDANT.
The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is Willie E. Enoch's ("Petitioner") Petition
for a Writ of Habeas Corpus [Doc. # 3] filed pursuant to
28 U.S.C. § 2254. Respondent in his Answer, requests that the
Petition be denied and dismissed.*fn1
Sometime in the late hours of April 22 or early hours of
April 23, 1983, Armanda Kay Burns was brutally murdered. The
body of Ms. Burns was found in her basement apartment. Ms.
Burns' hands had been bound with a coat hanger behind her back,
her jacket and shirt pulled down around her arms, and her
clothing below the waist removed. The victim's bra was slightly
raised from its normal position. A cloth covered her face. Ms.
Burns had been stabbed several times in the face, back and
chest, and her throat had been slashed. Ms. Burns' chest and
abdominal cavities were laid open by a knife wound which
extended from her sternum to her pubic bone. Ms. Burns'
brutalized corpse was discovered by her boyfriend, Derek
Proctor, and her brother and sister-in-law, Tyrone and Caroline
Burns, at approximately 2:15 a.m. on April 23, 1983.
Armanda Burns was, at the time of her murder, twenty-five
years old and employed as a supervisor in the housekeeping
department of Methodist Medical Center ("Methodist") in Peoria,
Illinois. Ms. Burns lived by herself in a basement apartment
located approximately one block from Methodist Medical Center.
On April 22, 1983, Ms. Burns spent from 12:00 p.m. until 2:40
p.m. with Derek Proctor. Derek Proctor ("Proctor") was Ms.
Burns' boyfriend of eight months. During their time together
that afternoon, Ms. Burns and Proctor met Caroline and Tyrone
Burns and arranged to meet them late that evening at
approximately 12:30 a.m. Sometime between 3:00 and 3:15 p.m.,
Ms. Burns reported for work. Ms. Burns worked
the 3:00 p.m. to 11:45 p.m. shift at Methodist Medical Center.
At 11:30 p.m. on the evening of April 22, 1983, Ms. Burns and
several members of the Methodist housekeeping staff congregated
in her office. Three of these staff members testified at trial
that Petitioner entered Ms. Burns' office and inquired as to
the whereabouts of his brother who was an employee at
Methodist. These witnesses testified that Petitioner and Ms.
Burns carried on a conversation. Petitioner was clothed in a
blue pin stripe suit and what was described as a "dingy" white
shirt. Ms. Burns "punched out" of Methodist at approximately
11:47 p.m. and, accompanied by Petitioner, began walking toward
her apartment. Petitioner and Ms. Burns were last seen walking
together approximately 100 feet from Ms. Burns' apartment.
Pursuant to the plans Ms. Burns and Proctor had made earlier
that day, Proctor arrived at Ms. Burns' apartment sometime
between 11:50 p.m. and 12:00 a.m. on the evening and early
morning hours of April 22 and 23, 1983. Proctor rang Ms. Burns'
doorbell repeatedly, but received no response. Having failed to
find Ms. Burns in her apartment, Proctor sat outside the
apartment and waited for Ms. Burns to return. Proctor waited in
vain for five to ten minutes for Ms. Burns and then walked to
Methodist believing that Ms. Burns might still be at work. At
approximately 12:10 a.m., Proctor arrived at Methodist and met
Winston Ragon, a Methodist security officer. Proctor told Mr.
Ragon that he was looking for Ms. Burns and requested that Mr.
Ragon telephone the housekeeping office to check if Ms. Burns
was still in the office. Mr. Ragon placed the call and informed
Proctor that he received no answer. Mr. Ragon testified that
Proctor then said that he was just at Ms. Burns' apartment,
there was a window broken, he saw a man running from the
apartment, and there was no response to his ringing of the
doorbell. Mr. Ragon noted that Proctor's clothing was neat in
appearance. Proctor concluded his conversation with Mr. Ragon
at approximately 12:20 a.m. and walked to the lobby to call Ms.
Burns' apartment. Proctor received no response to his telephone
Having failed to reach Ms. Burns by telephone, Proctor
returned to her apartment and again rang her doorbell. Again,
Proctor received no response. Proctor then walked across the
street to Glen Oak Towers, bought a pack of cigarettes, and
returned to Ms. Burns' apartment. Proctor again rang the
doorbell. He received no response and sat down outside the
apartment to wait for Ms. Burns. Proctor testified that at
approximately 12:45 a.m. to 12:50 a.m., he heard Ms. Burns'
door open. Proctor further testified that he turned and saw a
black man dressed in a dark blue, pin-striped suit carrying an
off-white shirt in his hands exiting Ms. Burns' apartment.
Proctor identified this man as Petitioner. Proctor testified
that Petitioner bumped into him on the way out of the apartment
and stated in response to Proctor's question concerning Ms.
Burns' whereabouts that she was inside the apartment. Proctor
rang the doorbell and received no response. Proctor testified
that he then turned, ran up the street, and saw Petitioner
running across a field and on to Kumpf Street. Proctor
testified that he then lost sight of Petitioner.
Proctor returned to Ms. Burns' apartment, rang the doorbell,
and knocked on the apartment's windows. Again, Proctor received
no response. Proctor testified that he then went across the
street to Glen Oak Towers and attempted unsuccessfully to
telephone Ms. Burns' mother. Proctor testified that he then
returned to Ms. Burns' apartment, again rang the doorbell, and
again received no response. Proctor testified that he then went
downtown to several bars in search of Petitioner. Proctor
failed to locate Petitioner and at approximately 2:00 a.m. went
to the home of Tyrone and Caroline Burns. Proctor, accompanied
by Tyrone and Caroline Burns, went to Ms. Burns' apartment.
Upon arriving at Ms. Burns' apartment, Proctor pushed in a
window, peered into the apartment from outside, and made the
grisly discovery of Armanda Kay Burns' slain body. The Peoria
police were immediately notified and were the first to enter
Officer Richard Ledbetter of the Peoria Police Department was
the first police officer to arrive at the scene of the murder.
Officer Ledbetter met Proctor outside Ms. Burns' apartment.
Officer Ledbetter testified that Proctor's appearance was neat
and that he was crying. As additional members of the Peoria
police department arrived, the investigation of the murder of
Ms. Burns began. The police recovered near the crime scene a
white shirt which appeared to have blood on it. In addition, a
kitchen type knife with a brown wooden handle was discovered in
the field across which Proctor stated that Petitioner had fled.
Police observed blood in the entrance way, living room, and
bedroom areas of Ms. Burns' apartment. No blood was observed in
the kitchen area.
Acting upon information provided by Proctor and members of
Petitioner's family, Officers Hoskins and Cannon of the Peoria
Police Department began searching for Petitioner at the home of
his girlfriend, Louise Pate ("Pate"). The officers found
Petitioner at Pate's home, placed him under arrest, and took
him to the Peoria Police Department. At the police department,
Petitioner stated that on the night of Ms. Burns' murder, he
had seen and spoken to her at Methodist, walked with her to
within one block of her home, and given her some cocaine in a
matchbook cover. In response to the officers' statement that
Ms. Burns was a victim of murder, Petitioner stated "No, not
Kay Burns, Kay Burns."
At the time of Ms. Burns' murder, Petitioner was living with
Louise Pate. Pate testified that on April 22, 1983, Petitioner
left her home at approximately noon dressed in blue, baggy
pants, a vest, a blue, pin-striped suit coat, a white shirt,
and black shoes. Pate further testified that Petitioner
returned to her home at some time in the early morning hours of
April 23, 1983. Pate testified that upon his return, Petitioner
went into the bathroom and ran the water. Petitioner, according
to Pate's testimony, then stated that he wanted a cigarette and
that he was going to go to his sister's nearby apartment to get
one. Pate testified that Petitioner returned to her apartment
after a couple of minutes at which time she turned on a light
and discovered that Petitioner was wearing her pants. Pate
testified that Petitioner then told her that he had just killed
Kay Burns and that he had cut her throat and heart out.
Petitioner stated to Pate that he had gone to the hospital, met
Ms. Burns, pretended that he had cocaine, went with Ms. Burns
to her house, took his coat off, and cut Ms. Burns' throat
while she was in the kitchen. Pate testified that Petitioner
stated that Ms. Burns' boyfriend had seen him leaving the
apartment and that he had killed Ms. Burns because she was
trying to get his brother fired from his job at Methodist and
because of cocaine and a gang named the Disciples. Petitioner
then told Pate that he had burned his blue baggy pants in the
Pate testified that she never again saw the white shirt
Petitioner was wearing when he left her apartment on April 22,
1983. In addition, Pate testified that Petitioner regularly
carried with him a steak knife owned by Pate which had a
wooden, black/brown handle and a smooth blade. Pate testified
that she had not seen her knife since April 22, 1983. Pate also
testified that the knife discovered in the field close to Ms.
Burns' apartment looked similar to her knife except that the
handle on her knife was darker, her knife was sharp, and a
piece was not missing from her knife's handle.
On cross-examination, Pate stated that prior to her
statements to police, she was told by the police that if she
were to lie to the police, she could go to jail. Pate believed
that if she were to go to jail, her child would be taken from
her. Pate stated that she went to the home of Octavia Burchett
and told her that her testimony before the grand jury in this
case was untrue. Pate wanted to know what would be the
consequences of changing her grand jury testimony. Pate's
testimony before the grand jury was substantially the same as
her testimony at trial.
Petitioner was charged with attempt rape, aggravated
kidnapping, armed robbery, and felony murder based upon armed
robbery and murder. At trial, the above evidence was put forth
as well as scientific and past crimes evidence. Diane
Schneider, a forensic scientist for the Illinois Department of
Law Enforcement, testified that hair fragments taken from the
head of Petitioner were compared to hair fragments found on the
body of Ms. Burns. Ms. Schneider testified that the hair
fragments were consistent. However, Ms. Schneider testified
that she could not state definitively that the hair taken from
the body of Ms. Burns was from Petitioner. Ms. Schneider also
testified that she examined a pair of shoes and a ring taken
from Petitioner. Although these items tested positive for the
possible presence of human blood, the amounts were too small to
type or otherwise identify. Indeed, Ms. Schneider testified
that the test she conducted only indicated that blood might be
present on the items. Ms. Schneider also testified that the
blood on the shirt discovered outside Ms. Burns' apartment was
of the same type as both Petitioner and Ms. Burns.
Also adduced at trial was the testimony of Louella Burnside
and Marilyn McClain. Ms. Burnside testified that in the early
morning hours of March 6, 1983, she was attacked by Petitioner.
Ms. Burnside testified that she was walking down the street in
front of her house when Petitioner approached her and asked if
he could walk with her. She did not know Petitioner, but
Petitioner stated that his name was Willie. Petitioner stabbed
her in the lower back, forced her into a garage, ordered her to
disrobe, and told her that he would cut her throat if she did
not do as he ordered. Petitioner raped her and tore up her
jacket. Petitioner tied her hands behind her back with pieces
of her torn jacket, gagged her, and threatened her with death
if she reported the incident to the police.
Ms. McClain testified that on the evening of March 30, 1983,
she was attacked by Petitioner. Ms. McClain testified that she
was at home that evening when Petitioner knocked on her door
and asked if she knew where his brother lived. She told
Petitioner that she did not know his brother. Petitioner asked
for a glass of water. Ms. McClain got Petitioner a glass of
water, returned the glass to the kitchen, and then returned to
the living room. Petitioner entered the house and locked the
door behind him. Petitioner brandished a knife and stated that
he would kill her if she said anything. Petitioner tore up a
towel, tied her hands behind her back, and gagged her with the
towel fragments. Petitioner asked her if she was "in [her]
period" and repeatedly stated "shut up, bitch, I will kill
you." While Petitioner was attempting to locate Ms. McClain's
purse, she freed her hands and ran toward the front door of her
apartment. Petitioner fought with Ms. McClain as she attempted
to flee, but fled when she screamed for her neighbor. Ms.
McClain later discovered that Petitioner had cut her in the
stomach area with his knife.
Petitioner was convicted by a jury of attempt rape,
aggravated kidnapping, and murder, but was found not guilty of
armed robbery and felony murder. Petitioner waived jury
consideration of sentencing issues and elected instead to have
the court decide the issues. In the first phase of sentencing,
the court found beyond a reasonable doubt that Petitioner was
eligible for the imposition of the death penalty. In the second
phase of sentencing, the court heard testimony that Petitioner
had been previously been convicted of the rape and armed
robbery of four women. The court also heard evidence from
Adelean Byrd, Petitioner's mother, and Louise Pate in
mitigation of Petitioner's prior criminal behavior. The court
found that the murder was exceptionally brutal and heinous and
indicative of wanton cruelty, that the murder was premeditated,
that Petitioner would be a clear and present danger as an
inmate, and that no mitigating circumstances existed. The court
sentenced Petitioner to death.
On November 22, 1983, Petitioner was convicted by a jury of
murder, aggravated kidnapping, and attempt rape in the Circuit
Court of the Tenth Judicial Circuit in Peoria, Illinois.
Petitioner was sentenced to death for his crimes. Petitioner's
conviction was, by operation of Illinois law, appealed directly
to the Supreme Court of Illinois. Petitioner raised seventeen
grounds on direct appeal.*fn3 The Supreme Court of Illinois
affirmed both Petitioner's conviction and Petitioner's sentence
of death. People v. Enoch, 122 Ill.2d 176, 119 Ill.Dec. 265,
522 N.E.2d 1124 (1988).
In affirming Petitioner's conviction and sentence, the
Illinois Supreme Court stated that because Petitioner had
failed to comply with the statutory requirement of filing a
post-trial motion, the court's review would be limited to
constitutional issues which had been properly raised at trial
and which could be raised later in a post-conviction hearing
petition, sufficiency of evidence, and plain error.
Accordingly, the Illinois Supreme Court addressed only
Petitioner's grounds which claimed that: 1) admission of
custodial statements made by Petitioner violated his Miranda
rights; 2) there was insufficient evidence to sustain a
conviction for aggravated kidnapping; 3) there was insufficient
evidence to sustain a conviction for attempt rape; 4) the trial
court erred when it failed to sua sponte instruct the jury on
the lesser included offense of unlawful restraint; 5) Rose's
failure to file a post-trial motion and his failure to preserve
trial error for review constituted ineffective assistance of
counsel; 6) the Illinois death penalty is unconstitutional
because it limits the death penalty to classes of defendants
who do not require special assistance for trial; and 7) the
Illinois death penalty is unconstitutional because it does not
require the prosecution to prove beyond a reasonable doubt that
the death penalty is appropriate, it does not provide adequate
safeguards, and it fails to ensure adequate appellate review.
The Illinois Supreme Court held that the remaining grounds were
waived. The Illinois Supreme Court then addressed Petitioner's
grounds which were properly before it and found them to be
without merit. The Supreme Court of the United States denied
Petitioner's subsequently filed writ of certiorari. Enoch v.
Illinois, 488 U.S. 917, 109 S.Ct. 274, 102 L.Ed.2d 263 (1988).
In April of 1989, Petitioner filed a pro se petition for
post-conviction relief with the state circuit court.
Subsequently, the law firm of Kirkland & Ellis was appointed to
represent Petitioner and, in March of 1990, an amended petition
for post-conviction relief was filed on behalf of Petitioner.
Petitioner's amended petition raised four grounds for relief.
First, Petitioner argued that his trial counsel, Mark Rose,
suffered a per se conflict of interest which rendered him
ineffective, and the trial court failed to conduct an adequate
hearing regarding the conflict. Second, Petitioner argued that
his trial counsel, Mark Rose, was actually ineffective as a
result of trial counsel's failure to investigate, to develop
Petitioner's defense theory, to call witnesses, to properly
cross-examine Proctor, and to preserve objections and errors
appeal, and that appellate counsel Seeder was ineffective for
failing to raise the issue of Rose's conflict of interest.
Third, Petitioner argued that the retroactive application by
the Supreme Court of Illinois of Ill.Rev.Stat., ch. 38, ¶ 116-1
denied Petitioner his constitutional right of appeal. Fourth,
Petitioner argued that the Illinois death penalty statute is
unconstitutional because it precludes consideration of mercy by
the sentencer and, therefore, does not allow the sentencer to
make an individualized choice as to whether to impose the death
penalty and operates so as to divest the sentencer of
discretion. The circuit court dismissed Petitioner's petition.
The Supreme Court of Illinois affirmed the decision of the
circuit court and dismissed Petitioner's petition for
post-conviction relief. People v. Enoch, 146 Ill.2d 44, 165
Ill.Dec. 719, 585 N.E.2d 115 (1992). In so doing, the Supreme
Court of Illinois addressed the merits of Petitioner's grounds
claiming ineffective assistance of counsel and improper
retroactive application of the statute requiring the filing of
a post-trial motion. The Supreme Court of Illinois held,
however, that Petitioner had waived his claim that the Illinois
death penalty unconstitutionally deprives a sentencer of
discretion because Petitioner could have, but did not, raise
the claim on direct appeal. Petitioner now seeks habeas relief
in this Court.
In his habeas petition, Petitioner raises fifteen grounds for
relief. They are: (1) Petitioner's rights under the Fifth and
Fourteenth Amendments were violated by the admission at trial
of his custodial statements; (2) Petitioner is actually
innocent of the crimes of which he was convicted; (3) evidence
of dissimilar crimes was incorrectly admitted at trial; (4)
Petitioner was denied a fair trial by the prosecutor's opening
remarks; (5) Petitioner's trial counsel suffered from a
conflict of interest which rendered him ineffective; (6) the
trial court failed to conduct an adequate hearing as to the
conflict of interest of Petitioner's counsel; (7) Petitioner's
trial counsel was ineffective under the Strickland standard
because trial counsel's preparation and presentation of
Petitioner's defense was deficient; (8) Petitioner was
improperly convicted of aggravated kidnapping; (9) Petitioner
was improperly convicted of attempt rape; (10) Petitioner was
denied a fair trial because the trial court refused to give a
circumstantial evidence instruction; (11) Petitioner's death
sentence was improperly based upon the trial court's finding
that Petitioner was a "clear and present danger" in prison;
(12) Petitioner did not knowingly and intelligently waive his
right to be sentenced by a jury; (13) the Illinois Supreme
Court's retroactive application of a new waiver rule denied
Petitioner a fair trial; (14) the Illinois death penalty
statute is unconstitutional because it prohibits an
individualized determination that death is an appropriate
sentence in a particular case; and (15) Petitioner is actually
innocent of the death penalty. Since Respondent argues that
Petitioner has waived many of his claims due to procedural
default, the Court shall first address these arguments and
determine which, if any, grounds have been procedurally
defaulted by Petitioner.
Procedurally defaulted claims in which a petitioner failed to
follow an applicable state procedural rule in raising the
claims may not be reached on the merits by a court unless cause
and prejudice or miscarriage of justice are shown. Sawyer v.
Whitley, ___ U.S. ___, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992);
Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397
(1986); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977). In Coleman v. Thompson, the Supreme Court
discussed procedural default in the context of federal habeas
corpus review and stated:
We now make it explicit: In all cases in which a
state prisoner has defaulted his federal claims in
state court pursuant to an independent and
adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner
can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to
consider the claims will result in a fundamental
miscarriage of justice.
501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640
Illinois treats any claim which could have been presented to
a reviewing court on direct appeal as barred under the doctrine
of waiver. Reese v. Peters, 926 F.2d 668, 671 (7th Cir. 1991);
People v. Silagy, 116 Ill.2d 357, 107 Ill.Dec. 677, 680,
507 N.E.2d 830, 833 (1987); People v. Burns, 75 Ill.2d 282, 26
Ill.Dec. 679, 682, 388 N.E.2d 394, 397 (1979). In addition,
Illinois treats claims of substantial denial of constitutional
rights as waived if they are not raised in the original or
amended post conviction petition. Reese, 926 F.2d at 671;
Ill.Rev.Stat. 725 ILCS 5/122-3. Finally, Illinois treats the
failure to raise an issue in a written motion for a new trial
as constituting a waiver of that issue. Ill.Rev. Stat. 725 ILCS
5/116-1; People v. Shum, 117 Ill.2d 317, 111 Ill.Dec. 546, 553,
512 N.E.2d 1183, 1190 (1987); People v. Szabo, 113 Ill.2d 83,
100 Ill.Dec. 726, 730, 497 N.E.2d 995, 999 (1986); People v.
Porter, 111 Ill.2d 386, 95 Ill.Dec. 465, 470, 489 N.E.2d 1329,
1334 (1986); People v. Caballero, 102 Ill.2d 23, 79 Ill.Dec.
625, 629, 464 N.E.2d 223, 227 (1984); People v. Pickett,
54 Ill.2d 280, 282, 296 N.E.2d 856 (1973). With these rules and
principles in mind, the Court shall address Respondent's
procedural default arguments seriatim.
Ground Two of the Petition claims that Petitioner is actually
innocent of the crimes of which he was convicted. Subsequent to
Petitioner's filing of his Petition, however, the Supreme Court
decided the case of Herrera v. Collins, ___ U.S. ___, 113 S.Ct.
853, 122 L.Ed.2d 203 (1993), which, seemingly*fn4, held that a
claim of actual innocence is not a free standing constitutional
claim upon which habeas relief can be granted. Petitioner, in
his Memorandum in Support of Petition filed after the Supreme
Court's decision in Herrera, appears to concede that actual
innocence is not a free standing claim cognizable in federal
habeas review and has apparently abandoned his claim made in
Ground Two. Petitioner now contends instead that his claim of
actual innocence serves as a gateway through which the federal
courts may review his procedurally defaulted claims. Petitioner
does, however, refer to the possibility that the Supreme Court
may, in the context of a death penalty case, recognize a free
standing constitutional claim of actual innocence. As such, the
Court shall analyze Petitioner's argument of actual innocence
made in Ground Two in the context of a free standing
constitutional claim. Petitioner's argument of actual innocence
as an exception to the rule barring federal habeas review of
procedurally defaulted claims shall be addressed infra in the
portion of this Order discussing the miscarriage of justice
Respondent argues that Petitioner has procedurally defaulted
his claim made in Ground Two or, in the alternative, the claim
is without merit. Despite first citing Herrera, a case in which
the Supreme Court explicitly differentiates the claims of
insufficiency of the evidence and actual innocence, Respondent
continues on to cite Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979) and appears to analyze the
claim as one alleging insufficiency of the evidence.*fn5 ___
U.S. at ___, 113 S.Ct. at 861. Respondent's analytical approach
is, quite clearly, incorrect. An insufficiency of the evidence
claim argues legal innocence where as an actual innocence claim
argues factual innocence. Sawyer, ___ U.S. at ___, 112 S.Ct. at
2519 citing Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661,
2668, 91 L.Ed.2d 434 (1986).
At first glance, the Supreme Court in Herrera appears to have
held that the claim of actual innocence is not a free standing
constitutional claim. Thus, under existing Supreme Court
precedent, a free standing claim of actual innocence does not
exist. The Court notes, however, that a majority on the Supreme
Court appears to be willing to hold that it would be
unconstitutional to execute an innocent person. Herrera, ___
U.S. at ___, ___, 113 S.Ct. at 869, 870 (O'Connor concurring,
joined by Kennedy), ___ U.S. at ___, 113 S.Ct. at 875 (White
___ U.S. at ___, 113 S.Ct. at 876 (Blackmun dissenting, joined
in relevant part by Stevens and Souter), But See ___ U.S. at
___, 113 S.Ct. at 874 (Scalia concurring joined by Thomas);
Milone v. Camp, 22 F.3d 693, 700 (7th Cir. 1994). Indeed, Chief
Justice Rehnquist, the author of Herrera, assumed for the sake
of argument that "a truly persuasive demonstration of 'actual
innocence' made after trial" would make the execution of a
defendant unconstitutional. Herrera, ___ U.S. at ___, 113 S.Ct.
at 869. Accordingly, the Court shall assume arguendo for the
sake of deciding this case that a free standing claim of actual
innocence in the context of a case in which the death penalty
has been imposed is cognizable under federal habeas
Petitioner's claim of actual innocence fails for at least two
reasons. First, Petitioner did not present this claim to the
state courts of Illinois and, therefore, the claim has been
procedurally defaulted. Reese, 926 F.2d at 671. Second, if
Petitioner's actual innocence claim was considered to be
apparent from his state court petitions or were found to be
excusable under one of the exceptions to the rule barring
federal habeas review of procedurally defaulted claims, our
Supreme Court stated that a petitioner's threshold evidentiary
showing for this assumed constitutional claim would be
"extraordinarily high." Herrera, ___ U.S. at ___, 113 S.Ct. at
869. The Court finds that the evidentiary showing made by
Petitioner falls far short of meeting this assumed claim's
extraordinarily high threshold.
The Supreme Court in Herrera did not set forth the precise
burden of proof applicable in an actual innocence claim. The
Court finds, however, that to be entitled to relief based upon
actual newly discovered or newly presented evidence and the
record as a whole, he is probably innocent.*fn7 Although the
Court feels that the burden of proof should be higher, the use
of this relatively minimal standard comports with a majority of
those justices who appear willing to recognize this assumed
claim. Herrera, ___ U.S. at ___, 113 S.Ct. at 882. As such, the
Court deems this the appropriate standard to be used until that
time when the Supreme Court explicitly recognizes a claim of
actual innocence and explicitly sets forth its accompanying
burden of proof.
In support of his claim of actual innocence, Petitioner first
re-argues the evidence presented at trial. Next, Petitioner
offers the affidavits of four persons. Affiant Linda Thorpe
states that at between 11:45 p.m. and 12:00 a.m. on the night
of Ms. Burns' murder she saw Ms. Burns outside of her apartment
with a man who was much taller than she. Affiant Terrie Meeks
(Burwell) states that at approximately 3:30 a.m. on April 23,
1983 she heard a woman scream "Oh my God, Help me." Ms. Meeks
states that she actually may have heard the scream an "hour or
so earlier." Affiant Steven Fehr states that he was Ms. Meeks
supervisor on April 23, 1983 and that at some time between 1:30
and 3:00 she telephoned him to report a woman's screams.
Affiant Greg Hunter states that although he testified at
Petitioner's trial, he states again that Petitioner was wearing
a blue pin-striped suit with matching coat and pants. Finally,
Petitioner offers new evidence uncovered by Petitioner's court
appointed investigator. This evidence consists of Ms. Burns'
time card which shows that she left Methodist sometime between
11:47 and 11:48 p.m. on April 22, 1983, and that the casual
walking time between the time clock and Ms. Burns' apartment is
approximately four and one half minutes.
Upon reviewing the evidence presented by Petitioner as well
as the record as a whole, the Court finds that Petitioner has
failed to show that in light of all the evidence, he is
probably innocent. In so stating, the Court first notes that it
is not a forum "in which to relitigate state trials."
Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391,
77 L.Ed.2d 1090 (1983). In addition, the Court finds that
Petitioner's theory of the case is unpersuasive. Petitioner's
primary argument concerning his innocence appears to be that
Proctor, not Petitioner, murdered Ms. Burns. Petitioner
theorizes that Proctor murdered Ms. Burns between the time she
arrived home from work, approximately 11:52 p.m., and the time
that Proctor appeared at Methodist and spoke to Ragon,
approximately 12:10 a.m. The Court finds it unbelievable that
in this eighteen minute period, Proctor could attack and subdue
Ms. Burns, bind her hands and disrobe her, stab her savagely
and repeatedly, remove from himself and his clothing any
indication of the vicious attack, compose himself so as to
appear lucid and calm, formulate a plan whereby he would go to
Methodist and concoct a story that would implicate Petitioner,
a person with whom Proctor was at best vaguely familiar, as Ms.
Burns' murderer, and then make the walk to Methodist. Common
sense simply makes such a theory untenable. Finally, the
evidence offered by Petitioner does little to rebut the
substantial case presented by the prosecution. The time card
and walking time evidence attempts to make fine temporal
distinctions in a case characterized by coarse estimations of
the relevant time periods. Hunter had already testified at
Petitioner's trial that Petitioner was wearing a blue
pin-striped suit on April 22, 1983. Meeks' and Fehr's testimony
does little if anything to establish either the identity of the
woman whose scream was heard or the timing of that scream.
Indeed, the timing of the scream strongly indicates that it was
not Ms. Burns who Meeks heard that morning. As for Thorpe's
testimony, although probative, it is by no means determinative
of Petitioner's guilt or innocence. The Court finds that
Petitioner, in light of the substantial showing of his guilt in
the record, has failed to show that based upon the record and
newly discovered or presented evidence he is probably innocent.
In addition, Petitioner's showing does not rise to a level
precluding any rational trier of fact from finding guilt beyond
a reasonable doubt nor can it be characterized as being
extraordinarily high and truly persuasive of Petitioner's
innocence. Accordingly, the Court finds that, even if a free
standing constitutional claim of actual innocence existed in
the present context, the claim would be both procedurally
defaulted and without merit. Therefore, the Court finds that
Petitioner's Ground Two is without merit and is not a proper
basis upon which to grant habeas relief in this case.
Ground Three of the Petition claims that evidence of
dissimilar crimes was erroneously admitted, denying Petitioner
a fundamentally fair trial. Respondent argues that the Supreme
Court of Illinois in Enoch, 522 N.E.2d at 1129-32, found this
claim to be waived for failure to file a post-trial motion as
required by Ill.Rev.Stat. 725 ILCS 5/116-1, and as such, the
claim has been procedurally defaulted. Petitioner does not
attempt to refute Respondent's argument. The Court finds that
Petitioner has procedurally defaulted this claim.*fn8 Coleman,
501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
Ground Ten of the Petition claims that the trial court's
refusal to give a circumstantial evidence instruction denied
Petitioner a fair trial. Respondent argues that the Supreme
Court of Illinois in Enoch, 522 N.E.2d at 1129-32, found this
claim to be waived for failure to file a post-trial motion as
required by Ill.Rev.Stat. 725 ILCS 5/116-1, and as such, the
claim has been procedurally defaulted. Petitioner does not
attempt to refute Respondent's argument. The Court ...