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February 24, 2004.

UNITED STATES OF AMERICA ex rel., IKE J. EASLEY, JR., #N-21627 Petitioner,
CHARLES L. HINSLEY, Warden Tamms Correctional Center, Respondent

The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge


After a jury trial in the Circuit Court of Cook County, petitioner, Ike Easley, Jr. ("Easley"), was convicted of first-degree murder and was sentenced to death. After his direct and post-conviction appeals to the Illinois Supreme Court, Easley petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 11, 2003, former Illinois Governor George Ryan commuted Easley's death sentence to natural life in prison without the possibility of parole. Before this court is Easley's second amended petition for a writ of habeas corpus filed after the commutation of his death sentence. For the reasons stated below, the court denies Easley's habeas petition in its entirety.


  A. Procedural History

  Following a jury trial in the Circuit Court of Livingston County, Illinois on July 18, 1989, Easley was convicted of the first-degree murder of Robert Taylor, a superintendent at the Pontiac Correctional Center. At the time, Easley was incarcerated at Pontiac for an unrelated murder conviction. At a separate sentencing hearing, the same jury found Easley eligible for the death Page 2 penalty on the ground that Easley's victim was a correctional officer, which is a statutory aggravating circumstance. The jury concluded that there were no mitigating factors sufficient to preclude imposition of the death penalty, and the trial judge therefore sentenced Easley to death.

  Easley filed a direct appeal with the Illinois Supreme Court, which affirmed Easley's conviction and sentence on April 16, 1992. People v. Easley, 148 Ill.2d 281 (1992)(Easley I). Easley then filed a post-conviction petition with the Livingston County Circuit Court. On August 17, 1997, the Livingston County Circuit Court granted the State's motion to dismiss Easley's post-conviction petition. The Illinois Supreme Court affirmed the Circuit Court's dismissal of Easley's post-conviction petition on May 25, 2000. People v. Easley, 192 Ill.2d 307 (2000)(Easley II). On May 28, 2003, Easley filed his second amended petition for writ of habeas corpus with this court.

  B. Trial Testimony

  The following recitation of facts is drawn from the Illinois Supreme Court's ruling on Easley's direct and post-conviction appeals, which facts Easley does not challenge. 28 U.S.C. § 2254(e)(1); Mahaffey v. Schomig, 294 F.3d 907, 915 (7th Cir. 2002) (unless a habeas petitioner provides clear and convincing evidence to the contrary, a determination of a factual issue by a state court is presumed correct for the purposes of habeas review).

  Superintendent Taylor was killed in his office at Pontiac on the morning of September 3, 1987. A "shank," or homemade knife, was recovered from the office and identified as the weapon used to murder Taylor. At trial, inmate Lawrence Spillar testified to the following events. Sometime before 11:00 a.m. on September 3, 1987, he and inmate Charles Nealy were seated in Taylor's office and Taylor was seated behind his desk, facing the two inmates. As the Page 3 three men spoke, Easley ran into the office, jumped on Taylor's desk and struck him in the face. Easley then pulled a knife from his belt and stabbed Taylor. Spillar then ran from Taylor's office and collided with another inmate, Roosevelt Lucas, who was entering Taylor's office. As he left, Spillar saw Lucas hitting Taylor with a metal pipe. Spiller then watched Easley run down the gallery and discard his gloves, coat and hat.

  Inmate Demetre Brown testified that shortly before 11:00 a.m. on September 3, 1987, he saw Easley sitting on a radiator located near Taylor's office. According to Brown, Easley was putting on a cap and gloves and was wearing a winter coat and white gym shoes. Brown then saw Easley run into Taylor's office and stab Taylor.

  Correctional Lieutenant Shettleworth testified that he had seen Easley near Taylor's office shortly before Taylor was attacked and that Easley was wearing a heavy coat. Correctional Officer Don Lyons and Correctional Captain Donald Whitaker corroborated this testimony. Following the attack, Correctional Officer Walter Turner testified that he saw Easley alone in his cell wearing a white t-shirt and white tennis shoes.

  In addition to this testimony, State witnesses also presented physical evidence linking Easley to the murder. Crime evidence technician Edward Kallel collected a metal pipe, a shank, gloves, a sheet of computer paper marked with a shoe print, and blood samples from the murder scene. Steven Kasarsky, a fingerprint examiner, testified that he found a print on the shank's handle that matched Easley's fingerprint. Michael Krieser of the Illinois State Police examined the computer paper and testified that the shoeprint left on the paper was made with the left shoe of a pair of gym shoes removed from Easley's cell. Richard Ores, the Pontiac evidence Page 4 custodian, testified that he removed clothing and tennis shoes from Easley's cell. According to Ores, the clothes and shoes were damp, as if they had recently been washed or soaked.

  At trial, the State's theory of the case was that Easley was a member of a street gang called the Black Gangster Disciples, which operated inside the Pontiac. The gang blamed a Pontiac correctional officer for killing another gang member, Billy Jones (a.k.a. "Zodiac"), who had died in the jail earlier that year. The State sought to establish that the Black Gangster Disciples conspired to kill Taylor to avenge Jones' death and that Easley was selected to carry out this conspiracy.

  Although Easley did not testify at trial, one of his post-arrest statements was allowed into evidence. After the murder, Easley was handcuffed and removed from his cell and taken to the assistant warden's office where he was met by investigators Read and Brubaker. Brubaker advised Easley of his Miranda rights and Read recorded that Easley refused to answer any questions and refused to waive his right to remain silent. Read testified that neither he nor Brubaker asked Easley any further questions after receiving his response to the Miranda warnings. Another investigator, Deputy Director Gerald Long, then entered the room and was advised by the officers that they had administered the Miranda warnings and that Easley refused to answer any questions about the Taylor murder. Long testified that he then told Easley that he understood that Easley had refused to answer any questions but they had inmate testimony that indicated that he and another individual were perpetrators of Taylor's murder and that if convicted of the crime, he could be subject to the death penalty. At that point, Long testified that Easley said to him, "all you honkey motherfuckers want is a nigger donkey to pin this case on, Page 5 and I am your donkey, I am your killer." After making this statement, Easley was returned to his cell. Over Easley's motion to suppress, the statement to Long was admitted into evidence.


  On January 11, 2003, former Illinois Governor George Ryan commuted Easley's death sentence to natural life in prison without the possibility of parole. Since Easley's commutation, the Illinois Supreme Court has issued decisions on direct appeal and modified decisions on the denial of rehearing in other capital cases. In each case, the Illinois Supreme Court concluded that former Governor Ryan's commutation of the defendant's death sentence rendered moot any capital sentencing claims. See, e.g., People v. Ceja, 204 Ill.2d 332 (2003)(commutation removes judicially imposed sentence replacing it with a lesser, executively imposed sentence); People v. Lucas, 203 Ill.2d 410 (2003)(same); People v. Miller, 203 Ill.2d 433 (2003)(same). The Seventh Circuit has similarly decided the issue. See, e.g., Wilson v. Mote, No. 03-1943, slip. op. at l (7th Cir. June 18, 2003)(commutation mooted prisoner's habeas claims based on his death sentence).

  Although Easley amended his habeas petition since the commutation of his death sentence, he nevertheless includes seven claims challenging his death sentence in his last amended petition. Contrary to Easley's contentions that these claims are valid, this court concludes that any claims challenging his death sentence are now moot. These claims include: (1) ineffective assistance of counsel at the capital sentencing hearing; (2) ineffective assistance of appellate counsel for not raising on direct review all sentencing-related claims raised by post-conviction counsel; (3) Prosecutorial misconduct at sentencing hearing; (4) improper first-stage eligibility instructions; (5) improper and highly prejudicial evidence admitted at sentencing Page 6 hearing; (6) jury heard improper victim impact evidence; and (7) a "death row phenomenon" claim.*fn1


  Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a habeas petitioner is not entitled to a writ of habeas corpus unless the challenged state court decision is either "contrary to" or "an unreasonable application of" clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, 404-05 (2000). A state court's decision is "contrary to" clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by the Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours." Id. at 404. To demonstrate an "unreasonable application" of clearly established federal law, a habeas petitioner must establish that the state court unreasonably applied the controlling legal rule to the facts of the case. Id. at 407. Moreover, the state court's unreasonable application of Supreme Court precedent must be more than incorrect or erroneous. Rather, it must be "objectively" unreasonable. Lockyer v. Andrade, 123 S.Ct. 1166, 1174 (2003); Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)(state court decision must lie "well outside the boundaries of permissible differences of opinion."); see also Rice v. McCann, Page 7 339 F.3d 546, 548 (7th Cir. 2003)(reasonable state court application of federal law is at least minimally consistent with facts and circumstances of case).


  Before a federal court will consider a habeas corpus petition, a petitioner must satisfy several procedural requirements. First, a petitioner must exhaust state remedies — this is, the petitioner must give the state's highest court an opportunity to address each claim. O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999). To satisfy this requirement, a petitioner must fairly present to the state judiciary both the operative facts and legal principles that control each claim. Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001).

  Second, the petitioner must comply with state procedural rules to avoid procedurally defaulting his claims. Accordingly, a habeas claim may be procedurally defaulted if the state court rests its judgment on an independent and adequate finding of procedural default under state law. See Stewart v. Smith, 536 U.S. 856, 860 (2002); see also Wright v. Walls, 288 F.3d 937, 947 (7th Cir. 2002) (waiver is an independent and adequate state procedural ground in Illinois). Moreover, failure to appeal the dismissal of a post-conviction petition in Illinois state court will be treated as an independent and adequate state ground (as if a state court had actually found the claims procedurally barred) preempting further habeas review in federal court. Boerckel, 526 U.S. at 839. A federal court, however, may excuse a procedural default if a petitioner can show either cause for the default and actual prejudice as a result of the alleged violation of federal law, or can demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). With these standards in mind, the court will address Easley's claims. Page 8

  A. Brady Claim

  Easley contends that he was denied his constitutional rights to due process, equal protection, and other unidentified constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because the prosecution failed to disclose certain material evidence pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963). Specifically, Easley claims that the prosecution failed to tender a substantial amount of impeaching information with regard to inmate witnesses Demetre Brown, Larry Spillar, and Harry Martin. Easley also claims that the prosecution withheld the results of polygraph tests performed on inmate witnesses, which may have contained Brady material.

  Easley did not bring these Brady claims on direct appeal. Rather, Easley first raised a slightly less developed version of these claims on post-conviction review.*fn2 When relief was denied by the post-conviction court, Easley did not include a Brady claim in his appeal petition to the Illinois Supreme Court. This voluntary omission deprived the highest state court of an opportunity to act on his Brady claims, thereby procedurally defaulting them. Boerckel, 526 U.S. at 845; White v. Godinez, 192 F.3d 607, 608 (7th Cir. 1999) (failure to pursue a discretionary post-conviction appeal to the highest court of the state constitutes a procedural default that bars resort to federal habeas corpus relief).

  As "cause" to excuse his procedural default, Easley argues that he did not present Brady claims on appeal because the critical evidence underlying the claims was precluded from Page 9 discovery by the State's misconduct, and cites Crivens v. Roth, 172 F.3d 991 (7th Cir. 1999), for support. In Crivens, the Seventh Circuit found that while Crivens did not raise a Brady claim before the state courts, his failure resulted not from his own lack of attention or other fault, but rather because the State did not provide the evidence establishing the Brady claim until after Crivens filed his habeas petition. Id. at 995, citing Strickler v. Greene, 527 U.S. 263, 282 (1999)(cause exists where "some objective factor external to the defense impeded counsel's effort to comply with the State's procedural rules."). Easley's reliance on Crivens is misplaced. While it is sometimes true that the discovery of newly discovered evidence on which to base a constitutional claim can constitute cause to excuse a procedural default, see Reed v. Ross, 468 U.S. 1, 14 (1984), this principle finds no application here because the record fails to reveal that Easley has indeed discovered any new evidence that was not previously available to him.

  Regarding the inmate trial witnesses, Easley does not identify any new "impeaching information" that he discovered regarding trial witnesses Brown and Spiller. Instead, he only speculates that the State may have offered them leniency in exchange for their testimony. Easley's unsubstantiated speculation does not constitute newly discovered evidence on which to base a constitutional claim. Moreover, there is nothing "new" about Easley's speculation. The record reveals that the prosecution assured Easley's post-conviction counsel that Brown and Spiller were not given any special deals for their testimony. If Easley's post-conviction counsel had reason to doubt the veracity of prosecution's assurances, he could have, and should have, raised the issue on appeal to the Illinois Supreme Court.

  Easley's claim regarding inmate witness Harry Martin is similarly without merit. Unlike witnesses Brown and Spiller, it appears Easley has in fact discovered some undisclosed Page 10 information that might have damaged Martin's credibility had he testified. Easley claims that by "chance and coincidence" he learned that Martin had received a reduction in his sentence and financial compensation for cooperating with the State against him. Easley dates these chance discoveries to the years between 1992 and 1994. While under some circumstances, this type of undisclosed information may provide adequate grounds for a Brady claim, see Giglio v. United States, 405 U.S. 150, 154-55 (1972), the court need not reach this difficult question here because Easley did not file his post-conviction appeal until 1998, four years after Easley allegedly discovered possible impeaching information about inmate witness Martin. Thus, Easley's own admission demonstrates that he knew of the alleged Brady material well before filing ...

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