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U.S. EX REL. SIMPSON v. BRILEY

February 5, 2004.

UNITED STATES OF AMERICA ex rel. ROBERT SIMPSON, Petitioner,
v.
KENNETH R. BRILEY, Warden Joliet Correctional Center, Respondent



The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge

MEMORANDUM OPINION AND ORDER

This matter is before the court on Robert Simpson's petition for a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons set forth below, the Court dismisses all but three of Simpson's claims and orders further briefing on those three claims.

Background

  The Court takes the following account from the decisions of the Illinois Supreme Court in People v. Simpson, 172 11.2d 117, 665 N.E.2d 1228 (1996) ("Simpson I") and People v. Simpson, 204 111.2d 536, 792 N.E.2d 265 (2001) ("Simpson II"). The Court presumes these facts to be correct for purposes of habeas corpus review. Sumner v. Mata, 449 U.S. 539, 547 (1981); 28 U.S.C. § 2254(e)(1).

  Simpson was convicted of the armed robbery and murder of Barbara Lindich at the Fairway Food store in Glenwood, Illinois. On May 22, 1992, at approximately 10 a.m., Simpson and Carolyn Page 2 LaGrone entered the Fairway Food store and robbed it while Lurlarn Young waited in the car. As Simpson emptied the cash register from behind the service counter, Barbara Lindich, a store customer, walked up behind LaGrone and peered over her shoulder. Simpson turned and shot Lindich, who later died as a result of the gunshot wound. Simpson then checked the safe, left the store with LaGrone, and went to the car where Young awaited.

  LaGrone was arrested three days later, on May 25, 1992, and she gave a statement to the police that detailed her participation in the crime as well as that of Young and Simpson. Young was arrested the same day and also gave an inculpatory statement. She signed a consent to search the apartment where she and Simpson lived and gave the police the keys to the apartment. Simpson was arrested in the apartment and was placed in a lineup. He was identified by several eyewitnesses, including employees of the Fairway Food store, as the man they saw rob the store and shoot Lindich.

  On May 26, 1992, the police took Young to the apartment building where she and Simpson lived and, with her consent, searched a storage locker that she and Simpson used. There the police found two guns, one of which was later identified as the weapon used in the murder and robbery, as well as other evidence.

  At trial, three store employees identified Simpson as the man who was behind the service counter with the gun. Forensic testing experts stated that the cartridge case recovered from the scene was fired from one of the pistols recovered from the storage locker and that a bullet recovered from a door frame at the crime scene matched a test bullet fired from that pistol.

  During all phases of the pretrial and trial proceedings, Simpson represented himself with the aid of a public defender acting as standby counsel. Simpson called several witnesses who were present in Page 3 the store at the time of the robbery to testify on his behalf. They did not corroborate every aspect of the prosecution witnesses' accounts, but they likewise did not contradict those witnesses' accounts of what occurred in the store. Simpson also called Young to testify, but she invoked the Fifth Amendment and refused to testify. At Simpson's request, and against the trial judge's advice, the statements that LaGrone and Young had given to the police were published to the jury. At the close of the evidence, the jury returned a verdict finding Simpson guilty of armed robbery and the first degree murder of Lindich.

  At the penalty phase of the trial, the jury found Simpson eligible for a death sentence because he had committed murder in the course of a felony, see 720 ILCS 5/9-1(b)(6), and the case proceeded to the second stage of the penalty phase. Simpson represented himself throughout the penalty phase. The prosecution offered the testimony of various law enforcement personnel regarding several prior arrest of Simpson, and it also offered certified copies of his prior convictions for attempted murder, aggravated battery, gun possession, several theft offenses, and other crimes.

  The trial judge inquired whether Simpson intended to call any witnesses on his behalf in mitigation; Simpson responded that he wanted to call Judges James Bailey, Richard Fitzgerald, and Lloyd Van Duzen as character witnesses. The trial judge instructed Simpson's standby counsel to investigate the matter and find out where the judges were currently located and if they could recollect knowing Simpson.

  At the next court date, the trial judge provided Simpson with three transcripts he had previously requested. The judge informed Simpson that he had contacted Judges Fitzgerald and Bailey and that neither judge remembered Simpson. However, the judge also advised Simpson that both judges would Page 4 be willing to come to court. Simpson advised the trial judge that since the judges could not remember him, he wanted to go to the law library and prepare certain motions. The judge admonished Simpson that he should be more concerned with persuading the jury on the question of the death penalty, as the jury had not made a final determination regarding that issue. In response, Simpson countered that if he was sentenced to death, that sentence would allow him to "bypass the Illinois Appellate Court" and go "directly to the Illinois Supreme Court." The trial court stated, "[Y]ou have your own strategy and I have told you this before, but I still wouldn't give up on the jury." Simpson acknowledged the statement but again affirmed his decision: "I understand, your Honor, but the law indicates if that does occur, the matter goes directly to the Supreme Court."

  In a final attempt to convince Simpson to reconsider his strategy, the trial judge said that if he were in Simpson's position, he would vigorously present mitigation evidence to the jury so that it would be inclined not to impose a death sentence. Simpson asked if he could have some time to contact the judges himself. When court resumed, Simpson advised that after speaking to Judge Bailey, the judge still could not recall Simpson. The trial judge again admonished Simpson that he should not hinge his strategy on post-trial motions or on an appeal. He also explained to Simpson that if one person on the jury panel disagreed with the imposition of a death sentence, Simpson would not be sentenced to death. Despite these admonishments, Simpson presented no mitigation evidence. After the conclusion of the second stage of the sentencing hearing, the jury found no mitigating factors to preclude imposition of the death penalty.

  The trial judge appointed counsel to represent Simpson on his post-trial motion. In preparation for the post-trial hearing, counsel requested Simpson's medical file from the Pontiac Correctional Page 5 Center, which showed that Simpson had suffered from headaches, dizziness, fainting spells, and bad eyesight and had survived a gunshot wound to the head from a prior incident. At the post-trial hearing, counsel argued that Simpson was not competent to represent himself during either the trial or the sentencing phase. The trial court denied the post-trial motion and sentenced Simpson to death for the murder and thirty years imprisonment for the armed robbery.

  On direct appeal, the Illinois Supreme Court affirmed Simpson's conviction and sentence. Simpson then filed a pro se petition for post-conviction relief and a motion to appoint counsel, which was granted. Appointed counsel filed a motion to produce handwritten statements from the Glenwood Police Department. The trial court ordered production of the requested documents. After some records were produced, counsel filed a motion to compel complete production of the documents and a motion to take depositions. The trial court denied the motions.

  Prior to the initial court date on Simpson's post-conviction petition, the prosecution filed a motion for "clarification" of Simpson's competence, asking the trial judge to determine if there was a bona fide issue as to Simpson's competence. The trial judge determined that Simpson's condition had not deteriorated and that he was coherent and able to understand the proceedings.

  The trial court eventually dismissed Simpson's post-conviction petition without an evidentiary hearing. Simpson then filed a pro se petition for post-judgment relief. 735 ILCS 5/2-1401. The trial court dismissed that petition as well, and Simpson appealed to the Illinois Supreme Court. That court affirmed the trial court's dismissal of Simpson's post-conviction petition and the dismissal of his petition for post-judgment relief. Simpson then filed the present habeas corpus petition, asserting thirteen separate claims. Page 6

  On January 11, 2003, Illinois Governor George Ryan commuted Simpson's death sentence to a sentence of life without parole. Following the commutation, this Court inquired whether Simpson wished to pursue his habeas corpus petition in light of the risk that he could be again subjected to the possibility of a death sentence if a new trial was ordered. Simpson's counsel reported to the Court that Simpson wished to pursue his habeas corpus petition.

  Discussion

 1. Simpson's self-representation at trial (claims 1, 2 and 10)

  Simpson's first, second, and tenth claims arise from his decision to represent himself. In claim one, he asserts that his waiver of his right to counsel was not knowing and intelligent because it was "based on his misinformed choice of representing himself instead of being represented by counsel who had only shown his ineffectiveness." Simpson Mem. at 29. He claims that the assistant public defender who had been appointed to represent him was never prepared, that he decided to represent himself out of frustration with counsel's ineffectiveness, and that the public defender then ignored the trial judge's order to assist Simpson as standby counsel.

  Simpson raised this claim on direct appeal, but the Illinois Supreme Court rejected it. Simpson I, 172 Ill.2d at 132-37, 665 N.E.2d at 1237-39. Our inquiry is limited to asking whether the state court's decision was contrary to, or unreasonably applied, clearly established federal law as determined by the United States Supreme Court, or was based on an unreasonable ...


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