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UNITED STATES EX REL. JACKSON v. PAGE

July 31, 1997

United States of America ex rel. DEMETRIUS JACKSON, Petitioner,
v.
THOMAS PAGE, Respondent.



The opinion of the court was delivered by: CASTILLO

 Following a bench trial in April 1992, petitioner Demetrius Jackson was found guilty of first degree murder. He pursued state appellate and postconviction remedies without success, and now petitions this Court for a writ of habeas corpus under the newly amended 28 U.S.C. § 2254. *fn1" Although Jackson's petition originally challenged his conviction on a number of constitutional grounds, his reply brief abandoned all but one -- the prosecution's alleged failure to prove Jackson's guilt beyond a reasonable doubt. After carefully reviewing Jackson's petition, the Court denies it. *fn2"

 RELEVANT FACTS

 I. Jackson's Path to Habeas

 Jackson was tried before a judge in Cook County for the murder of Clinton Walker. On April 2, 1992, the judge found Jackson guilty as charged and imposed a 35-year prison sentence. Jackson appealed his conviction to the Illinois Appellate Court, First District, which affirmed his conviction in an unpublished order on February 14, 1994. Jackson filed with the Illinois Supreme Court a petition for leave to appeal ("PLA") this ruling; the PLA was denied on June 24, 1994 without opinion. Jackson then made several efforts to obtain postconviction relief, none of which was successful. He filed this habeas petition on May 16, 1996. We take the following facts from the state appellate court's opinion on direct appeal. *fn3"

 II. The Murder of Clinton Walker

 On October 30, 1990, 20-year-old Clinton Walker was shot in the back. Chicago police officer Eugene Schleder found him, wounded but still alive, lying face down on a sidewalk in the 3547/3549 South Federal Stateway Gardens Housing Projects ("Stateway Gardens"). While searching for signs of identification or a weapon on Walker's body, Officer Schleder told Walker that he "looked pretty bad, I thought he was going to die." Schleder asked Walker who had shot him. Walker replied, "Demetrius Jackson shot me." Walker later died, and his statement identifying Jackson as the shooter was admitted at trial as both an excited utterance and a dying declaration.

 The only eyewitness to the shooting was sixteen-year-old Wayne Fleming, who testified for the prosecution. At trial, Fleming first provided some background information: he was a member of the Del Vikings street gang and had known both Jackson and Walker for years. Walker was a former Del Vikings member, but had left the gang in 1989. Jackson belonged to a rival gang called the Gangster Disciples, which had been feuding with the Del Vikings over who controlled drug sales in certain Stateway Gardens buildings. Fleming went on to describe what happened the day of the murder.

 Physical evidence corroborated Fleming's description of the shooting. The medical examiner found the cause of death to be a gunshot wound to the back that lacerated Walker's right lung and spinal cord and exited through his right nipple. Because Walker's spinal cord was not severed, he could still move after he was shot. Neither the bullet nor the gun was recovered.

 After the shooting, Fleming walked back out of 3549 and, along with some other Del Vikings, returned fire. They aimed toward the balcony at 3517, where three young men were standing. *fn4" Fleming fired a nine millimeter gun while one of his companions shot a .380 caliber weapon. Again, physical evidence corroborated Fleming's testimony: the police found expended nine millimeter and .380 caliber shell casings in the area around the buildings and discovered a bullet hole through a window screen in Jackson's apartment. Minutes after the first shot, the police arrived. As he stood near the first police car to arrive on the scene, Fleming saw Jackson leave, alone, in his grey car.

 Fleming's testimony was not without its imperfections. While he stated at trial that Jackson had fired only one shot toward him and Walker, his written statement to the police prepared just after the incident recounted that Jackson had fired two shots. He also wavered as to whether Jackson had returned the Del Vikings' retaliatory fire. In addition, Fleming testified that during the shooting, he did not see anyone else around the area or in the playground that separated the 3547/3549 and 3517/3519 buildings. This conflicts with the testimony of Melissa Madison and Tonya Williams, who claimed to have been in the vicinity at that time, as well as with several other accounts.

 Madison and Williams testified that they were walking through the playground between 3547/3549 and 3517/3519 when they heard a gunshot. Their statements about the shot's origin are equivocal. At trial, both Madison and Williams testified that the first shot came from 3547, but their previous written statements to the police indicated that it came from 3519. After hearing the shot, the two picked up Madison's children and ran toward 3519. When Madison reached the top of the stairs, she saw Jackson standing near the front of the building; he told her and Williams that the shooting had to stop. Williams noticed that he was wearing leather gloves. Soon afterward Madison saw four men standing on the porch outside Jackson's mother's apartment. *fn5" One had a rifle and another, a small gun. Williams testified that all four were youths around 15 years old and that Jackson was among them. Neither Madison nor Williams saw Jackson with a gun.

 Jackson told Madison to go upstairs with the baby, while Williams remained with him. Jackson then told Williams that he wanted to go to the police station to "check on Anthony." Williams replied that "her Anthony," i.e., her boyfriend and the father of her child, Anthony Montgomery, was upstairs. She explained that he had been released from custody the day before. Williams' written statement reported that Jackson turned to the others, smiled, and said "woo-woo" or "wow-wow" and something else she did not understand, prompting her to smile back. During this time, the shooting continued. Williams soon left with Jackson in his 1989 grey car and headed toward the police station.

 But Anthony Montgomery was not there. He had left the police station at 10:30 p.m. the night before after being released from his arrest for disorderly conduct. Montgomery testified at trial that he, like Jackson, was a member of the Gangster Disciples and that Walker was affiliated with the Del Vikings. Montgomery saw Jackson the evening of October 29th and talked to him on the phone the next morning. Montgomery told Jackson that he was waiting at the police station with bond money for his friend, Anthony Hares. Hares was not released until about 6 a.m. on October 30th. *fn6" At about 12:10 p.m. on the 30th, Montgomery awoke to gunfire in the 3547 South Federal apartment he shared with his stepmother and daughter. He jumped up and looked out his window, which faced 3517. He saw Williams and Madison running with Madison's baby toward 3519. More gunshots rang out; Montgomery ran to the porch. From there he saw Fleming, Walker and another man on the ground. Fifteen minutes later, the police arrived, and Montgomery saw Jackson and Williams walk to the parking lot. After he talked to Williams, they got into Jackson's grey car and left. *fn7"

 The last occurrence witness was Lamont Stewart, the building supervisor for 3517/3519. He stated that between 11:45 and 11:50 on October 30, he was standing between 3517 and 3519 and talking to Jackson. They heard between two and four shots, and immediately dove for cover. When Stewart looked up, he saw some men running toward 3547-3549. He reported the incident to his supervisor, then took a lunch break. An hour later, Stewart returned to work.

 Stewart never saw Jackson with a gun. Although Stewart said he was "right there" when the first shots were fired, he did not see Fleming until the police arrived. Stewart's version of the events was corroborated in part by the testimony of Jackson's sister, Chiniko, who stated that she was at their mother's apartment all day, and saw no sign of Jackson.

 Officer Juan Sandoval arrived on the scene with his partner, and interviewed Fleming in their police car. Officer Sandoval dispatched a flash message that a shooting had occurred at 3547-3549 South Federal, that Jackson had been identified as the shooter, and that he was last seen in a black leather coat driving a grey car.

 Meanwhile, Officer Louis McNeal was working at the police station as a bond officer when a man and a woman stopped in to inquire whether Anthony Montgomery was still in custody. When he went to check on Montgomery's status, McNeal heard the radio broadcast that Jackson was wanted for murder. Having seen Jackson before, McNeal recognized him as the man who had just walked in. McNeal confirmed the message, ...


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