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).
MEMORANDUM OPINION AND ORDER
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)
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.
B. PRE-TRIAL AND TRIAL PROCEEDINGS
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
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
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. ...