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May 2, 2002


The opinion of the court was delivered by: Ruben Castillo, U.S. District Judge


Imari Clemons petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, attacking his state court first degree murder conviction and the resulting sentence. Petitioner Clemons claims that: (1) he was denied the right to a fair trial by the admission of extraneous evidence about gangs; (2) he was denied his Sixth and Fourteenth Amendment rights to the effective assistance of counsel at both the trial and sentencing stages; and (3) the postconviction court erred when it did not grant an evidentiary hearing on his claim of ineffective assistance of counsel for failing to call witnesses.*fn1 On December 11, 2001, the Court granted Clemons' motion for appointment of counsel, (R. 18), and ordered counsel to file a full brief in support of Clemons' petition. After a thorough review of Clemons' petition and his subsequent brief, as well as a careful reading of the state trial court transcript and the entire state court record, we grant Clemons' petition for a writ of habeas corpus. (R.1.)


When considering a habeas corpus petition, pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we presume that the factual determinations of the state court are correct. 28 U.S.C. § 2254 (e)(1). Petitioner Clemons has the burden of rebutting that presumption by clear and convincing evidence. Id. See also Cossel v. Miller, 229 F.3d 649, 651 (7th Cir. 2000). Accordingly, the following summary of the relevant facts is derived from the state trial court transcript and is supplemented, where appropriate, by the appellate record in People v. Davenport, 702 N.E.2d 335 (Ill. App. Ct. 1998).*fn2

On May 8, 1997, following simultaneous trials before separate juries in the Circuit Court of Cook County, Lawon Davenport and Imari Clemons were found guilty of first-degree murder. On June 5, 1997, the trial court sentenced Petitioner Clemons to fifty-nine years in prison.*fn3 The record indicates that the following facts were adduced at both trials.

On the afternoon of October 6, 1994, Columbus and Antwan Hart were walking to their home on West 50th Street, when Antwan noticed a man at the corner of 50th and Peoria Streets. The man was dressed in black and wore a black cap cocked to the right with the words "I'm Real" on it, which indicated that — in that neighborhood — an individual was a member of the Gangster Disciples street gang.*fn4 The man approached Columbus and Antwan from behind and said "GD," an apparent reference to the Gangster Disciples. When the man drew to within two feet of Columbus, he pulled a gun from his waistband, said "I ain't a GD. Never could be a GD," and shot Columbus, who fell backwards and died.

Although Antwan testified that he was looking at the gunman's face throughout the incident and that, after the shooting, he and the gunman looked at each other for a few more seconds before the gunman ran away, Ronald Robinson, another witness to the shooting, testified that Antwan had bent over to tie his shoes immediately prior to the shooting.*fn5 Jerome Weathers and Lamont Wesley, who are cousins and who were members of the Gangster Disciples at the time,*fn6 testified that they saw the gunman walk toward Columbus and Antwan, although neither saw the shooting itself. Both Weathers and Wesley have extensive criminal histories, and both were in custody at the time of their 1997 trial testimony. Although they denied that they had been offered deals in exchange for their testimony, Wesley admitted that he "wouldn't mind" if the State's Attorney did something on his behalf as a result of his testimony. (See R. 26-3, State Ct. Tr. at F-83-84.)

Chicago Police Officer John Kotarac, who was on the scene immediately following the incident, secured the area and interviewed several people, including Antwan and Weathers. Based on the information from these interviews, Officer Kotarac put out a description of the gunman: a black male, approximately fifteen to seventeen years old, six feet tall, 170 pounds, with a dark complexion and no apparent facial marks or scars. Detective James Ward was assigned to investigate and interview people following the shooting. Based on the information that he received, Ward began to look for two suspects: (1) Tyrone Mathews or "Doughboy," who was ultimately discovered to be Petitioner Clemons' codefendant, Lawon Davenport; and (2) "Eric," the alleged gunman. Ward created two descriptions of Eric: (1) on October 8, 1994 — two days after the shooting Ward described Eric as a black male, approximately nineteen to twenty years old, 5'7" to 5'9" tall, with a medium build, light complexion and a teardrop tattoo under his right eye; (2) on October 12, 1994, Ward described Eric as a black male, approximately seventeen to twenty years old, 5'9" tall, with a thin build, dark complexion and a teardrop tattoo under his left eye.*fn7

At the end of its case against Davenport and Petitioner Clemons, the prosecution called Officer John Bloore as an expert witness to testify about Chicago street gangs.*fn10 Both defendants objected, but the trial court permitted Bloore to testify, even while acknowledging that "the issue of gang membership is very inflammatory." (R. 26-2, State Ct. Tr. at E-53-55.) Bloore, a purported gang specialist, testified regarding gang history, organization and tactics. Specifically, Bloore described "false flagging" as a tactic where a gang member enters rival territory posing as a member of the rival gang to draw a rival gang member into the open for an ambush (e.g., cocking a hat in the manner of a rival gang). Furthermore, Bloore testified regarding tattoos worn by members of the Black P-Stones. During this testimony and over objection, Petitioner was required to remove his shirt and stand in the well of the courtroom in front of the jury while Bloore identified Petitioner's tattoos as related to the Black P-Stones.*fn11 Neither Bloore nor any other witness, however, testified that Petitioner had the tattoos at the time of the shooting — almost three years earlier — or could otherwise link Petitioner to a gang at the time of the shooting.

After the jury trial, Petitioner was found guilty of first degree murder, and the trial court sentenced him to fifty-nine years in prison. The Illinois Appellate Court affirmed Petitioner's conviction on direct appeal. See Davenport, 702 N.E.2d 335. Petitioner did not file a petition for leave to appeal to the Illinois Supreme Court. On March 18, 1999, Petitioner filed a pro se petition for post-conviction relief, which was dismissed by the Circuit Court of Cook County on April 19, 1999. Petitioner appealed to the Illinois Appellate Court. His appointed counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), and Petitioner opposed the motion. On June 30, 1999, the Illinois Appellate Court granted counsel's Finley motion and affirmed the judgment of the Circuit Court. Petitioner filed a petition for leave to appeal to the Illinois Supreme Court, which was denied on January 29, 2001.

Currently before the Court is Imari Clemons' petition for a writ of habeas corpus, filed on June 18, 2001. For the following reasons, as detailed herein, we grant the petition.


Initially, a federal court cannot address the merits of a habeas corpus petition unless the Illinois courts have first had a full and fair opportunity to review the petitioner's claims. See, e.g., Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991). Illinois courts have had a full and fair opportunity to consider the claims raised in a habeas petition if: (1) the petitioner has exhausted all available state remedies (the exhaustion doctrine); and (2) the petitioner has raised all of his claims during the course of the state proceedings (the procedural default doctrine). See, e.g., Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995) (citations omitted). If the petitioner fails to overcome these two procedural hurdles, the habeas petition is barred. Id.

The standard of review for claims that survive the exhaustion and procedural default analysis is strict. Under the AEDPA, a federal court may not grant a prisoner's habeas corpus petition unless the state court's adjudication of the claim either "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 "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. ยง 2254 (d)(1)-(2). See also Spreitzer v. Peters, 114 F.3d 1435, 1442 (7th Cir. 1997) (holding that a state court has reasonably applied Supreme Court caselaw if its application is "at least minimally consistent with the facts and circumstances of the case") ...

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