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U.S. EX. REL. BRISBON v. FRY

June 4, 2004.

UNITED STATES OF AMERICA ex rel., HENRY OMAR BRISBON, # A-01072, Petitioner
v.
SHELTON FRY, Warden, Tamms Correctional Center,[fn1] Respondent



The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge

*fn1 Shelton Fry is currently th Warden at the Tamms Correctional Center and is thus the proper respondent in this habeas action. See Rule 2(a) of the Rules Governing Habeas Corpus Cases under 28 U.S.C. § 2254. This Court hereby substitutes Fry as the respondent. See Fed.R.Civ.P. 25(d)(1).

MEMORANDUM OPINION AND ORDER

Following a jury trial in the Circuit Court of Cook County, petitioner, Henry Omar Brisbon, was convicted of murder and sentenced to death. After his direct and post-conviction appeals failed, Brisbon 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 Brisbon's death sentence to natural life in prison without the possibility of parole. Before this court is Brisbon's second amended petition for a writ of habeas corpus. For the reasons below, the court denies Brisbon's habeas corpus petition in its entirety.

 I. BACKGROUND

  A. Procedural History

  Following a jury trial in the Circuit Court of Will County, Illinois, Brisbon was convicted of the murder of Richard "Hippie" Morgan. At a separate sentencing hearing, the jury found Brisbon eligible for the death penalty. The jury also concluded that there were no mitigating factors sufficient to preclude imposition of the death penalty, and the court sentenced Brisbon to death.

  Brisbon appealed to the Illinois Supreme Court, which upheld Brisbon's conviction but reversed and remanded for a new sentencing hearing. People v. Brisbon, 478 N.E.2d 402 (1985) (Brisbon I). After a new sentencing hearing, Brisbon was again sentenced to death, and the Illinois Supreme Court affirmed this decision. People v. Brisbon, 544 N.E.2d 297 (1989) (Brisbon II). Brisbon then riled a post-conviction petition in the Circuit Court of Will County, Illinois. The Will County Circuit Court dismissed Brisbon's post-conviction petition and the Illinois Supreme Court affirmed the dismissal. People v. Brisbon, 647 N.E.2d 935 (1995) (Brisbon III). On April 18, 1996, Brisbon filed a petition for writ of habeas corpus in this court. Following commutation of his death sentence, Brisbon filed a second amended petition on August 28, 2003.

  B. Trial Testimony

  The following facts, which Brisbon does not challenge, are drawn from the Illinois Supreme Court's ruling on Brisbon's direct and post-conviction appeals. 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). On October 19, 1978, prison guard Nobie Mercer was accompanying a new prisoner to his cell at Stateville Penitentiary. As they passed by Brisbon's cell, Brisbon asked Mercer to let him out to use the bathroom because his toilet was clogged. Mercer refused and proceeded to lock up the new prisoner. After finishing, Mercer again passed by Brisbon's cell. This time, Mercer decided to release Brisbon. When he did, Brisbon seized Mercer and held a homemade knife to his throat. Brisbon then ordered Mercer to release fellow-inmate, Herman Morgan, from a neighboring cell, and Mercer complied. Brisbon then locked Mercer in Herman Morgan's cell and the two inmates departed.

  Inmates Tyreed Green, Josie Baynes, and Luke Ward witnessed the following events, which transpired during Mercer's confinement. Brisbon and Herman Morgan began walking the cell block looking for the victim, inmate Richard "Hippie" Morgan. Along the way, the pair met another inmate, Donald Binford, who joined in the search. The three inmates found Hippie Morgan standing in front of a cell, conversing with another prisoner. Binford and Herman Morgan grabbed Hippie Morgan and Brisbon stuck a homemade knife into his upper back. Hippie Morgan struggled to break free, but Brisbon stabbed him again. He finally freed himself and ran erratically down the corridor. The three men quickly overtook the victim, kicked him, and then ran upstairs. Hippie Morgan died shortly thereafter.

  As Brisbon, Binford, and Herman Morgan fled upstairs, they passed inmate Josie Baynes. Brisbon said to Baynes: "I tried to kill that [obscenity]." Brisbon then released Mercer from the cell, and Mercer locked Herman Morgan and Brisbon into their respective cells.

  Beyond this eye-witness testimony, physical evidence connected Brisbon to the murder. Witness Tyreed Green testified that five days before the stabbing, he observed Binford steal a metal spoon from a serving cart. Later that same day, Green observed Brisbon sharpening a spoon on the prison's concrete floor while Binford stood cover in front of his cell.

  After the killing, prison investigators recovered a homemade knife underneath a nearby stairway. It was 6-7 inches long with a cardboard handle taped to the blade. Bloodstains on the knife matched the victim's blood. Investigators also discovered two fingerprints underneath the knife's cardboard handle that matched those of Brisbon. And the knife's paper sheath was made from a shoe catalog, which inmates had seen in Brisbon's possession. An autopsy revealed five stab wounds, two of which were fatal. The two fatal wounds were to the victim's upper back. The autopsy further revealed that the two fatal wounds, and all but one of the other punctures, were made by a sharp instrument, 6-7 inches in length.

  In addition to the above testimony and physical evidence, Brisbon has submitted the following facts, which he has gathered to support his habeas petition. Brisbon claims that after the murder, prison officials put the facility on "lockdown" and launched an immediate investigation, but found no information regarding the killers' identities. The administrators continued the lockdown for three months and applied additional pressure on influential inmates to persuade witnesses to come forward against Brisbon. Eventually, in January 1979, several inmates reversed their original statements and named Brisbon as one of the killers. Amongst these inmates were eye-witnesses Baynes, Green, and Ward. Brisbon has collected prison records revealing that these witnesses received transfers, "good-time" credit, and other benefits in exchange for their cooperation. Brisbon further claims that these witnesses were not the only inmates with information regarding the murder. Rather, Brisbon alleges that other inmates, including James Foster, Herman Morgan, Charles Whitson, and Donald Binford, could have testified that Brisbon was not the killer, but were not interviewed by Brisbon's defense counsel.

 II. STANDARD OF REVIEW

  Brisbon filed his petition prior to the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and this case is therefore governed by the law that was in force prior to the statutory amendments. Lindh v. Murphy, 521 U.S. 320 (1997). Before AEDPA, federal courts disregarded the state court's legal conclusions and reached independent judgments on the issues presented to them, but deferred to the state court's findings of fact. Agnew v. Leibach, 250 F.3d 1123, 1128 (7th Cir. 2001). But before a federal court will consider a habeas corpus petition, a petitioner must satisfy several procedural requirements. First, a petitioner must exhaust state remedies — that 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). 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).

 III. PROCEDURALLY DEFAULTED CLAIMS

  A. Ineffective Assistance of ...


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