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U.S. EX REL COLEMAN v. McADORY

January 9, 2004.

UNITED STATES OF AMERICA ex rel. DEDRICK COLEMAN, Petitioner
v.
EUGENE McADORY, Respondent



The opinion of the court was delivered by: SUZANNE CONLON, District Judge

MEMORANDUM OPINION AND ORDER

Dedrick Coleman was convicted in state court of first degree murder for killing Lance Hale and Avis Welch, He was also convicted of armed robbery and home invasion in connection with those murders. Coleman waived his right to be sentenced by a jury. The court sentenced him to death for the murders. He received additional prison sentences for his other convictions. The Illinois Supreme Court affirmed. People v. Coleman, 158 Ill.2d 319, 633 N.E.2d 654 (1994), The United States Supreme Court denied certiorari. Coleman v. Ill, 513 U.S. 881, 115 S, Ct. 215 (1994). In 1995, Coleman sought post-conviction relief, basing his claim in large part on inconsistent statements of an eyewitness. The trial court dismissed his petition without an evidentiary hearing. The Illinois Supreme Court reversed and remanded the post-conviction petition to the trial court for a hearing on the witness' statements. People v. Coleman, 183 Ill.2d 366, 701 N.E.2d 1063 (1998). Following an evidentiary hearing, the trial court denied Coleman's petition. Once again, Coleman appealed to the Illinois Supreme Court. The trial court's decision was affirmed. People v. Coleman, 206 Ill.2d 261, 794 N.E.2d 275 (2002). In the meantime, Coleman filed a petition for executive Page 2 clemency with Governor George Ryan, The governor commuted Coleman's death sentence to life imprisonment on January 10, 2003.

Coleman petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, The petition essentially consolidates multiple claims for relief Coleman raised on direct appeal and in his post-conviction petitions. Coleman revives the following claims asserted on direct appeal of his conviction: (1) evidence of his involvement in the murder of Alex McCullough was improperly admitted; (2) he was improperly questioned regarding prior use of aliases; (3) he was improperly cross-examined about the prosecution's failure to offer a plea bargain; (4) in closing remarks, the prosecutor prejudicially referred to him as "the devil," and misinformed the jury that in order to believe Coleman's testimony, they must conclude "all of the four or five million people in the city" were "liars"*fn1; (5) he was denied effective assistance of counsel because his trial counsel failed to preserve certain issues for direct appeal; and (6) new counsel should have been appointed to prosecute his post-trial pro se claims attacking the performance of trial counsel.

  In post-conviction proceedings, Coleman raised additional claims for relief: (7) the prosecution concealed exculpatory statements by its witness Aldene Lockett; (8) the prosecution withheld evidence that investigating officer Maslanka engaged in misconduct against other criminal suspects; (9) his trial counsel was ineffective because he failed to interview Lockett and did not investigate the circumstances of McCullough's murder; and (10) the prosecution intentionally introduced the perjured testimony of two witnesses who testified Coleman confessed to the murders of Hale and Welch to them. Page 3

  BACKGROUND

  Factual findings of a state trial or appellate court are presumed correct in a federal habeas proceeding unless the petitioner rebuts the presumption with clear and convincing evidence, 28 U.S.C. § 2254(e)(1). The record does not reveal any evidence contrary to findings of the state courts. Indeed, Coleman reproduces the Illinois Supreme Court's factual summary in his habeas petition. Pet. at p. S, citing Coleman, 158 Ill.2d at 326-330, 633 N.E.2d at 659-661. Accordingly, the court adopts the Illinois Supreme Court's statement of facts.

  Lance Hale and Avis Welch were murdered on the first floor of a two-flat on the southside of Chicago. This first floor apartment was a drug house owned and operated by Alex McCullough. About a month before Hale and Welch were killed, Coleman argued with McCullough over Coleman's alleged theft of seven ounces of cocaine and $2,000. McCullough was also dating Coleman's sister Fredricka. Victor Truell, one of Coleman's associates, testified Coleman stopped by his home the night before the murders and informed Truell of his plan to rob McCullough's drug house. At this meeting, Coleman wore a Balls jacket, black pants and gloves, and gym shoes. He carried a gun identified by Truell at trial. Aldene Lockett, who lived in the apartment above the drug house in the two-flat, testified that around 5:30 a.m. the day of the murders, she heard voices on the first floor. Shortly thereafter, Lockett heard a shot and something fall, then two more shots and the sound of an opening door. She looked out her window and saw a young man between 5 feet 6 inches and 5 feet 8 inches tall, dressed in black and wearing sunglasses.

  Two of Coleman's associates testified Coleman confessed murdering Hale and Welch. Truell testified Coleman returned to his house after the shootings and confessed to killing Hale and Welch in gruesome detail. Francisco Rico Balberas testified Coleman told him he shot a "boy and a girl" Page 4 on the south side of the city on April 26, 1989, Coleman, 158 Ill.2d at 326-330, 633 N.E.2d at 659-661.

  The prosecution introduced evidence that suggested Coleman invaded the drug house in retaliation for his dispute with McCullough. To establish this connection, the prosecution introduced evidence of McCullough's murder a week later, including statements by Coleman's sisters. A few days after the Hale and Welch shootings, Coleman, his girlfriend Dorothy, Balberas and Truell met at Coleman's sisters' apartment. Coleman warned his sisters they should stay away from McCullough because someone ordered his murder, Coleman denied giving the order, but asked his sisters about McCullough's personal habits, such as whether he was armed. Just as Coleman and his associates prepared to leave, McCullough arrived at the apartment. Truell attempted to close the door and prevent McCullough' s entry, McCullough overpowered Truell and forced his way into the apartment. Both McCullough and Coleman opened fire, McCullough was fatally wounded. One of Coleman's sisters testified Coleman ducked behind her; holding the back of her neck, Coleman used her to shield himself from gunfire. Coleman and his associates then fled the scene.

  After McCullough's murder, Coleman met Truell at Truell's apartment. Over a bottle of champagne, Coleman told Truell he wanted it said he shot McCullough in self-defense. Coleman and Truell then turned themselves into the police. Despite their agreement, Truell informed the police of Coleman's role in McCullough's homicide as well as Coleman's involvement in the murders of Hale and Welch,

  On the basis of this information, police placed Coleman in a lineup viewed by Aldene Lockett on May 2, 1989 — one day after McCullough's murder, and less than one week after Lockett saw a man leave her building. Officer Tony Maslanka conducted the line-up. Lockett identified Page 5 Coleman as fitting the height and physical description of the man she saw leaving the drug house, Maslanka then asked each line-up participant to put on sunglasses. Only Coleman refused. Lockett then reiterated Coleman resembled the man she saw, but that she could not positively identify Coleman because she was not wearing glasses the morning she saw the man leave the scene of the murders. Maslanka testified he concluded Lockett's identification was tentative because she did not positively identify Coleman. Lockett stated the man she identified in the lineup "could have been" the gunman because he had the "same height, and build, and color." Id. Truell and Coleman's sisters identified the pistol Coleman used in all three homicides,

  DISCUSSION

 1. Procedural Default

  Before reaching the merits of Coleman's petition, the court must determine whether his claims are procedurally barred. See Spreitzer v. Schomig, 219 F.3d 639, 644 (7th Cir. 2000), Under § 2254, a petitioner must fairly present his federal claims to the state courts before a federal court may grant habeas corpus relief. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365 (1995), Moreover, a federal court may not reach the merits of a habeas petition when a state court dismissed the same claims because of a state procedural bar. See Jenkins v. Nelson, 157 F.3d 485, 491-92 ...


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