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February 26, 2004.

United States of America ex rel. LAWRENCE JACKSON, (#N-10765), Petitioner
EUGENE McADORY,[fn1] Warden, Menard Correctional Center, Respondent

The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge

*fn1 The petitioner is currently incarcerated at Menard Correctional Center. Because Eugene McAdory is the warden at Menard, he is the proper respondent in this habeas action. See Rule 2(a) of the Rules Governing Habeas Corpus Cases under 28 U.S.C. § 2254. Therefore, this court substitutes McAdory as the respondent. See Fed.R.Civ.P. 28(d)(1).


On June 23, 1988, following a jury trial in the Circuit Court of Cook County, habeas petitioner Lawrence Jackson was convicted of four counts of murder, one count of attempted murder, five counts of home invasion and armed robbery, and various related charges, in connection with the murders of three adults and one child in a Chicago housing project. Jackson was sentenced to death. He filed a placeholder petition for a writ of habeas corpus with this court on December 20, 2002. On January 11, 2003, former Illinois Governor George Ryan commuted Jackson's sentence to natural life imprisonment. Following the commutation, Jackson filed his amended petition with this court on April 11, 2003. The court denies Jackson's habeas petition in its entirety. Page 2



  On June 23, 1988, a Cook County jury convicted Jackson of four counts of murder and multiple related charges.*fn2 The jury concluded that Jackson was eligible for death, and found no mitigating factors sufficient to preclude imposition of the death penalty. Jackson appealed the verdict and sentence directly to the Illinois Supreme Court. See People v. Jackson, 145 Ill.2d 43 (Ill. 1991) ("Jackson I") Following the Illinois Supreme Court's affirmance of the trial court decision, Jackson petitioned the U.S. Supreme Court for a writ of certiorari. The Supreme Court granted the writ, and remanded for resentencing in light of Morgan v. Illinois, 504 U.S. 719 (1992).

  In accordance with the remand, Jackson received a second sentencing hearing with a new jury and was once again sentenced to death. On direct appeal from this new death sentence, the Illinois Supreme Court affirmed the decision of the Cook County Circuit Court. See People v. Jackson, 182 Ill.2d 30 (Ill. 1998) ("Jackson II "). Jackson then filed a petition for post-conviction relief with the circuit court, which was denied. The Illinois Supreme Court affirmed the denial of Jackson's request for post-conviction relief, and denied his request for rehearing. See People v. Jackson, 205 Ill.2d 247 (Ill. 2001), rehearing denied April 1, 2002 ("Jackson II").

  Jackson filed his placeholder petition for a writ of habeas corpus on December 20, 2002, followed by his amended petition and memorandum in law in support thereof on April 11, 2003. Because this is Jackson's first habeas petition and he filed it within one year after the conclusion of his post-conviction proceedings in the Illinois state courts, this court has jurisdiction to Page 3 consider it. See 28 U.S.C. § 2244(b), (d)(1), & (d)(2); Gray v. Briley, 305 F.3d 777, 778-79 (7th Cir. 2002).

  Jackson does not challenge the facts as set forth by the Illinois Supreme Court in its opinions affirming the judgments of the trial court and the resentencing court. This court, therefore, presumes that these facts are correct for purposes of collateral review. See 28 U.S.C. § 2254(e)(1); Ward v. Sternes, 334 F.3d 696, 703 (7th Cir. 2003) (habeas petitioner can rebut presumption with clear and convincing evidence). Thus, the court adopts the facts as set forth by the Illinois Supreme Court in Jackson's direct and post-conviction appeals. See Jackson I, 145 Ill.2d at 56-66; Jackson II, 182 Ill.2d at 37-42; Jackson III, 205 Ill.2d at 254-56.


  Jackson was charged with the murders of Mark Brown, Vernita Winder, Shirley Martin and Dana Winder, as well as the attempted murder of Urica Winder and several related counts of armed robbery and home invasion. On the evening of September 24, 1986, six-year-old Urica Winder allowed Jackson and Bobbie Driskel to enter the West Side Chicago apartment that she shared with her mother Vernita; her two sisters, Dana and Shanita; her mother's boyfriend, Mark Brown; and her mother's friend, Shirley Martin. Urica had previously met the two men at a party for a family friend.

  Jackson and Driskel fatally stabbed Mark, Shirley, Vernita and Dana. Urica was stabbed several times and ultimately survived the attack only by playing dead. Urica's infant sister Shanita was unharmed. The two men searched the apartment for money and finally left with a television set and VCR. The next day, Urica's cousin Tamico. discovered that Urica was badly Page 4 injured and that the four others were dead. Tamico. sought help, and shortly thereafter Urica was taken to the hospital for medical assistance. When Urica later spoke with the police, she was able to identify Jackson and Driskel from a group of photographs that officers showed her.

  On September 25, 1986, after learning that the authorities were looking for him, Jackson turned himself in to the Chicago police department. After advising him of his Miranda rights, Detective Steve Peterson and several other detectives questioned Jackson about his involvement in a quadruple homicide, Jackson stated he knew nothing about it, claiming that he had been at home all night the previous evening. Following his interview with the detectives, Jackson was questioned by Cook County Assistant State's Attorney Michael O'Donnell, who also advised Jackson of his Miranda rights, and asked if he needed medical attention for some cuts O'Donnell noticed on his arm. When O'Donnell asked Jackson what he had been doing the prior evening, Jackson again said he had been at home smoking cocaine, and that the injury on his arm occurred when his cocaine pipe exploded. O'Donnell questioned the credibility of this story, and suggested that Jackson "think about" what he was saying. At that point, Jackson acknowledged his involvement in the events, and proceeded to share the following information with O'Donnell. The contents of the conversation were memorialized in written and oral form.

  Jackson explained that he and Driskel had been smoking cocaine at Jackson's apartment on September 24, 1986, When they ran out of drugs and money, they decided to kill Driskel's cousin, Mark Brown, and take his money, television, and VCR. They asked Jackson's uncle, O.C. Roland, to drive them to Brown's apartment. Jackson and Driskel developed their plan of action during the car ride, speaking softly so that Roland would not hear them. When they reached the apartment, Urica let them in to speak with Brown. They proceeded to stab Brown, Page 5 then Vernita Winder and her daughters Dana and Urica, and finally Shirley Martin. The men left the apartment with a television and VCR. They took the items to the home of Philip Simms, Brown's employer and Driskel's former employer. Simms purchased the items.

  At trial, Jackson presented a voluntary intoxication defense, due to his use of cocaine, PCP and heroin throughout the day and evening of the murders. The statements he gave to O'Donnell were admitted into evidence. He also called several witnesses to testify on his behalf. Roland offered testimony about the course of the evening's events. Dr. Marvin Ziporyn, a psychiatrist, testified regarding the effects of the various drugs on Jackson and Jackson's likely mental state at the time of the murders. Dr. James O'Donnell, a doctor of pharmacology, testified about the physiological effects of cocaine, heroin and PCP. Dr. Robert Reifman, the State's expert psychiatric witness, gave testimony about the possibility of voluntary intoxication as a legal defense.



  Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), this court may grant Jackson's request for habeas relief with respect to any claim decided on the merits by the state court only if the court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 404-05 (2000). A state court's decision is "contrary to" clearly established Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "if the Page 6 state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [it]." Id. at 405.

  A state court's decision is an "unreasonable application" of clearly established Supreme Court precedent "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of a particular prisoner's case" or "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. A state court's application of Supreme Court precedent must be more than incorrect or erroneous, it must be "objectively" unreasonable. See id. at 410 ("An unreasonable application of federal law is different from an incorrect application . . .) (emphasis in original); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (same). For a state court decision to be considered unreasonable under this standard, it must lie "well outside the boundaries of permissible differences of opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see also Henderson v. Briley, 354 F.3d 907, 909 (7th Cir. 2004) ("question before a federal court on collateral review . . . is only whether the state court's decision was so far out-of-bounds as to be `unreasonable.'").


  Before this court can reach the merits of Jackson's habeas claims, Jackson must comply with two procedural requirements: exhaustion of remedies and procedural default. See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). State remedies are exhausted if they are fully and fairly presented to the state's highest court for a ruling on the merits or when no means of Page 7 pursuing review remain available. See id. at 844-48 (citing 28 U.S.C. § 2254(c)); see also Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001).

  Procedural default occurs when a habeas petitioner fails to present a constitutional claim to the highest state court to which it may be appealed in the manner required by state law. See Boerckel, 526 U.S. at 845; see also Engle v. Isaac, 456 U.S. 107, 129 (1982) (state appellate courts must have chance to mend their own fences and avoid federal intrusion). A habeas claim may also be procedurally defaulted if the state court rests its judgment on an adequate and independent finding of procedural default under state law. See Stewart v. Smith, 536 U.S. 856, 860 (2002). Under Illinois law, waiver of a claim by failing to raise it at the appropriate point during trial or the appellate process is an independent and adequate state ground. See Whitehead v. Cowan, 263 F.3d 708, 726-27 (7th Cir. 2001).

  Last, a federal court may not grant habeas relief on a procedurally defaulted claim unless the petitioner can demonstrate cause for the default and actual prejudice or that failure to consider the claim will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Anderson v. Cowan, 221 F.3d 893, 899-90 (7th Cir. 2000).


  On January 11, 2003, former Illinois Governor George Ryan commuted Jackson's death sentence to natural life in prison without the possibility of parole. There are no challenges pending in any court related to this commutation. Since the commutation, the Illinois Supreme Court has issued modified decisions on the denial of rehearing in other death penalty cases. In these cases, the Illinois Supreme Court concluded that former Governor Ryan's commutation of the defendant's death sentence rendered moot all capital sentencing claims. See e.g., People v. Lucas, Page 8 203 Ill.2d 410 (2003) (commutation removes judicially imposed sentence replacing it with executively imposed sentence); People v. Miller, 203 Ill.2d 433 (2003) (same). The court also recently rejected challenges to certain commutations, finding that a governor's clemency power is "essentially unreviewable." See Madigan v. Snyder, 2004 WL 116116, * 11 (Ill. 2004).*fn3 Also, in a denial of an application for a certificate of appealability pursuant to 28 U.S.C. § 2253(c), the United States Court of Appeals for the Seventh Circuit concluded that due to the commutation of a petitioner's death sentence, the petitioner's habeas claims based on that sentence were now moot. See Wilson v. Mote, No. 03-1943, slip op. at 1 (7th Cir. June 18, 2003). Thus, any challenge that Jackson brings against his death sentence is moot.

  Although Jackson's amended habeas petition was filed after the commutation of his death sentence, he nevertheless includes a death penalty claim in the amended habeas petition. Contrary to Jackson's assertion that this claim is still valid, this court concludes that the claim is moot. Therefore, Jackson's claim of due process and equal protection violations due to the State's improper use of peremptory challenges to ...

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