The opinion of the court was delivered by: Norgle, Judge
Before the court is Brian Jones' ("Jones") petition for writ of habeas
corpus under 28 U.S.C. § 2254. For the following reasons, the court
denies the petition.
On September 1, 1993, Jones encountered an acquaintance, Kenneth
Wells, who was armed with a .25 caliber handgun. Wells told Jones that
he, Wells, wanted to rob and shoot someone. Jones accompanied Wells
towards West Madison Street in Chicago, and saw Wells load an ammunition
clip into the weapon.
Around this time, Jeanette Baldwin was leaving a currency exchange at
4333 West Madison, where she had just cashed a $434.00 Social Security
check. Baldwin walked to a nearby bus stop, where Wells and Jones
approached her. Wells put his arm around Baldwin's neck and said "This is
a robbery." Baldwin resisted, broke away from Wells, and began to run.
Wells aimed his gun at Baldwin and fired three shots, striking Baldwin.
Baldwin ran into a store, where she collapsed and died.
Wells and Jones ran down Madison street. Wells gave the weapon to
Jones, who was supposed to dispose of it. Jones threw the weapon into an
alley, and as he did so, he ran past Clifton Marvel, an off duty Cook
County Deputy Sheriff. Marvel had heard the shots, and saw Jones with the
gun. Marvel did not apprehend Jones, but Marvel later identified Jones in
Jones was charged with attempted armed robbery, unlawful use of a
weapon, and first degree murder. The state dropped the weapon charge, and
proceeded to trial on attempted armed robbery and murder. At trial, the
jury convicted Jones of attempted armed robbery, but could not reach a
verdict on the murder charge. The trial judge accepted the guilty verdict
for attempted armed robbery and declared a mistrial on the murder
charge. The state re-tried Jones for murder, and he was convicted at the
second trial. Jones was sentenced to concurrent terms of 45 years for
murder, and 13 years for attempted armed robbery.
Jones appealed both convictions and sentences, and the appeals were
consolidated. Jones argued: (1) the state's use of peremptory challenges
to African-American jurors violated Batson v. Kentucky, 476 U.S. 97
(1986); (2) the trial court made an improper inquiry into the numerical
division of the jury during its deliberations; (3) the trial judge
engaged in improper ex parte communications with the jury; (4) the trial
court erroneously admitted hearsay evidence; (5) the prosecution made a
misstatement of the law during closing argument; (6) the sentences were
excessive; and (7) the sentences should be modified so they are not
consecutive to an earlier two year sentence for a violation of
probation. The Illinois Appellate Court affirmed Jones' convictions and
sentences in all respects. Jones then sought leave to appeal to the
Illinois Supreme Court, which denied the request.
On January 31, 2000, Jones filed in this court a petition for habeas
corpus pursuant to 28 U.S.C. § 2254, alleging a host of issues, which
the court consolidates as:
1. denial of federal rights during state
2. improper ex parte communications between the judge
3. the trial judge communicated with African-American
jurors, causing those jurors to vote to convict;
4. the trial judge coerced a verdict;
5. improper testimony from Marvel;
6. perjurious testimony from Leanne Binion;
7. ineffective assistance of trial counsel;
8. jury prejudice; 9. deputy sheriff/bailiff
10. an erroneous jury instruction;
11. trial judge prejudice;
14. a misstatement of law by the prosecutor;
15. a confrontation clause violation;
16. ineffective assistance of appellate counsel.
Respondent filed an answer, arguing that Jones' claims were either
procedurally defaulted or without merit. The court reviewed the pleadings
and exhibits, and ordered supplemental briefing on three issues: (1)
whether the trial court's ex parte communications with the jury
constituted a structural error; (2) whether the harmless error analysis
of Brecht v. Abrahamson, 507 U.S. 619 (1993) survived the changes in
habeas corpus law effected by The Antiterrorism and Effective Death
Penalty Act ("AEDPA"); and (3) whether Wilkinson v. Cowan, 231 F.3d 347
(7th Cir. 2000) affected Respondent's assertion that Jones had waived
certain arguments. The court also ordered respondent to file supplemental
exhibits concerning the ex parte communication issue. After receiving
these papers, Jones' petition is ripe for ruling.
The court first discusses the general rules of federal habeas review,
including procedural default, and then discusses each of Jones' claims.
Jones' case is governed by 28 U.S.C. § 2254(d), as amended by
AEDPA. Section 2254 sets a high hurdle for habeas relief. The statute
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
The Supreme Court recently examined § 2254(d)(1), and held that the
"contrary to" clause and the "unreasonable application" clause encompass
two types of error that will cause a writ to issue. See Williams v.
Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1516-23 (2000) (opinion of
O'Connor, J.). The "contrary to" clause describes a state court decision
that is opposite to the law announced by the Supreme Court, or where the
state court "confronts facts that are materially indistinguishable from
. . . relevant Supreme Court precedent," and reaches a conclusion
opposite to that of the Supreme Court. See id. at 1519 (also describing
"contrary to" as ...