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April 13, 2004.

United States of America ex rel. JAMES MUNSON, (#N-95249), Petitioner,
EUGENE McADORY,[fn1] Warden, Menard Correctional Center, Respondent

The opinion of the court was delivered by: MARVIN ASPEN, Chief Judge, District

*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. 25(d)(1).


On June 10, 1993, following a jury trial in the Circuit Court of Cook County, habeas petitioner James Munson ("Munson") was convicted of murder, armed robbery, aggravated kidnaping and arson, in connection with the murder of Marvin Cheeks ("Cheeks"). Following the conviction, the trial court judge sentenced Munson to death. On January 11, 2003, former Governor George Ryan commuted Munson's sentence to natural life imprisonment. Munson filed his petition for habeas corpus with this court on June 20, 2003. The petition does not contain any claims challenging Munson's sentence, for those would be moot. See, e.g., Wilson v. Mote, No. 03-1943, slip op. at 1 (7th Cir. June 18, 2003) (mooting all sentencing claims post-commutation). For the reasons set forth in this memorandum opinion and order, the court denies his petition in its entirety.



  On June 10, 1993, a Cook County jury convicted Munson of first degree murder, armed robbery, aggravated kidnaping and arson. Munson waived jury sentencing, and the trial court judge, the Honorable Shelvin Singer, sentenced him to death. Following the conviction and sentence, Munson appealed directly to the Illinois Supreme Court, which affirmed the trial court's decision. See People v. Munson, 171 Ill.2d 158 (1996) ("Munson I"). The U.S. Supreme Court denied Munson's petition for writ of certiorari. See Munson v. Illinois, 519 U.S. 880 (1996).

  Munson, acting pro se, then filed a petition for post-conviction relief with the Circuit Court of Cook County. He followed this filing with an amended petition and several supplements thereto, acting both pro se and with the assistance of counsel. The circuit court dismissed these petitions without holding an evidentiary hearing, and the Illinois Supreme Court affirmed the dismissal, and, on August 29, 2002, denied Munson's request for rehearing. See People v. Munson, 206 Ill.2d 104 (2002) ("Munson II").

  He then filed his petition for writ of habeas corpus with this court on June 20, 2003. Because this is Munson's first petition for habeas corpus relief and he filed it within one year of the conclusion of his state post-conviction proceedings, this court has jurisdiction to consider the petition. See 28 U.S.C. § 2244(b), (d)(1), & (d)(2); Gray v. Briley, 305 F.3d 777, 778-79 (7th Cir. 2002). Munson does not challenge the findings of fact as set forth by the Illinois Supreme Court in both of its opinions affirming the conviction and sentence. Therefore, this court will presume that those 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 recitation of facts as set forth by the Illinois Supreme Court in Munson's direct and post-conviction appeals. See Munson I, 171 Ill.2d at 167-75; Munson II, 206 Ill.2d at 112-15.


  Prior to trial, the State used peremptory challenges to excuse three African-American venirepersons from the pool of potential jurors, Munson raised a claim under Batson v. Kentucky, 476 U.S. 79 (1986), alleging that the State violated his rights to equal protection by excluding venire members based on race. The court found a pattern of excluding African-American jurors, but ultimately found that the State's proffered reasons did not demonstrate a discriminatory intent. Thus, Munson's objections ultimately failed. The jury that was eventually seated consisted of two African-Americans and ten Caucasians.

  At trial, Paramedic Kerry Pakucko ("Pakucko") testified that early in the morning of October 5, 1991, she and her partner discovered a car engulfed in smoke on Chicago's west side. After approaching the car, they noticed the body of a man lying face down in a pool of water under a viaduct. They subsequently discovered a bullet hole in his back, and determined that the man was dead. Pakucko and her partner flagged down a Chicago police officer who was patrolling the area. A crime scene technician recovered a copper bullet jacket from the front passenger area of the vehicle. Eventually the car was identified as belonging to Cheeks, and the cause of the fire was determined to be arson. Medical examiners identified the deceased as Marvin Cheeks.

  Kenny Curry ("Curry"), an acquaintance of Munson's, testified that, on October 6, 1991, he was working on his car at the home of his friend Kenny Burks ("Burks"), another acquaintance of Munson. Munson came over, and Curry noticed burn marks and grease on his face. Munson told Curry about the events of the prior evening, explaining that he shot Cheeks once and then a second time after Cheeks attempted to escape from the vehicle. He then purchased some gasoline and returned to the car to burn Cheeks' truck, burning his own face in the process.

  Curry further testified that he learned Cheeks was the brother of Maurice Cheeks, a professional basketball player. Curry did not know the victim, but made plans with a friend to attend the funeral, with the hope of meeting Maurice Cheeks. The Cheeks family had posted a reward for information about Cheeks' murder; Munson's allegation is that this is what motivated Curry and Burks to attend the funeral and approach Cheeks' family. He also alleges that the State hid this `material' information from the jury. Curry had not yet contacted the police about Munson's story. He and Burks attended Cheeks' funeral, and told some of Cheeks' family members about the circumstances surrounding his death.

  Detective James Hanrahan ("Hanrahan"), who, along with his partner Mike Miller ("Miller"), had been assigned to investigate the Cheeks murder, testified that on October 8, Hanrahan received a call from a member of the Cheeks family, who wished to meet with him about the murder. Hanrahan and Miller met with Burks, Ricky Vivurette*fn2 ("Vivurette"), and this unidentified member of the Cheeks family. Following the meeting, Hanrahan and Miller arranged to conduct a mobile surveillance of Burks' car. They followed Burks until Munson approached Burks' car to speak with him. Eventually, Munson joined Burks and Vivurette in the vehicle. Munson had retrieved a gun from his apartment.*fn3 Hanrahan and Miller followed the vehicle, and, some time later, stopped the car. They ordered all three men out of the car, and proceeded to search the interior. Miller discovered Munson's weapon, a .357 Magnum Colt revolver, in the car's back seat. He then handcuffed Munson and advised him of his Miranda rights.

  After again advising Munson of his Miranda rights, Hanrahan and Miller interviewed him in an interrogation room. Munson initially denied knowing Cheeks or anything about the crimes. He kept denying any knowledge until Burks was brought into the interrogation room. After Burks repeated what he learned from Munson, Munson finally agreed to tell the police what happened.

  According to Detective Hanrahan, Munson noticed Cheeks sleeping in his car. Munson approached the car with his gun drawn, and entered the back seat. He took some money from Cheeks' back pocket, then ordered him to drive. At some point, Munson ordered Cheeks to stop the car. Cheeks tried to get the gun from Munson, and, during this scuffle, the gun discharged, shooting Cheeks. Detective Gene Harris ("Harris") and Assistant State's Attorney Charles Burns ("Burns") also testified about Munson's police station interview.

  Harris and Burns testified that Munson told them that he was with a friend, his co-defendant Darryl demons ("demons"), and that they both approached Cheeks' car. They took several items from Cheeks, including some cash, his coat and his watch. They ordered Cheeks to drive to the expressway, and then, because the vehicle was low on gas, they stopped at a gas station. Munson wanted to leave at that point, but was worried that Cheeks would report them to the police. After the stop at the gas station, Munson and demons told Cheeks to continue driving on the expressway. Some time later, they told him to exit and commanded him to pull into a vacant lot near a viaduct. Cheeks panicked and the gun discharged twice. Munson and demons started to leave the scene.

  Concerned that he may have left fingerprints inside the car, Munson decided to destroy the car. He and demons purchased gasoline, poured it on the car's dashboard, and, using a lighter, set the car on fire. Munson burned his face in the process. Terry Merriweather ("Merriweather"), the paramedic who examined Munson after he was taken to jail, testified that when she asked Munson if he was Cheeks' killer, he said he was and explained that he burned his face during the incident. A firearms examiner with the Chicago police department testified that the copper jacket retrieved from the car could have been fired from a .357 Magnum Colt revolver, the type of gun in Munson's possession when the police searched Burks' car; however, the examiner could not claim a definite match. Based on the evidence presented, the jury found Munson guilty of the crimes charged. On the advice of counsel, and after an extensive admonishment by the court, Munson elected bench sentencing and was sentenced to death. II. LEGAL STANDARDS


  Under the Antiterror ism and Effective Death Penalty Act ("AEDPA"), this court may grant Munson'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 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; see also Price v. Vincent, 123 S.Ct. 1848, 1853 (2003).

  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." Williams, 362 U.S. 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. ...

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