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February 6, 2002


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 a lineup.

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.

Jones continued to attack his conviction in the state court with a pro se post-conviction petition under Illinois law. Jones' post-conviction petition raised numerous arguments.*fn2 The trial court summarily denied the petition as patently without merit, finding that most of Jones' arguments were frivolous, waived, or resjudicata. Jones appealed the denial, and received appointed counsel, who later moved to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). The Illinois appellate court granted counsel's finley motion, stating that it had carefully reviewed the record and found no arguable basis for collateral relief, and affirmed the dismissal of Jones' post-conviction petition. Jones petitioned the Illinois Supreme Court for leave to appeal, but the petition was denied.

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 post-conviction proceedings;
2. improper ex parte communications between the judge and jury;
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 prejudice;

10. an erroneous jury instruction;

11. trial judge prejudice;

12. an unfair lineup;

13. a Batson issue;

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.

A. Standard of review:

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 states:

(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.

28 U.S.C. § 2254(d).

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 ...

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