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July 2, 2004.

ANDRE THOMAS, Petitioner,
JERRY L. STERNES, Warden, Dixon Correctional Center, Respondent.

The opinion of the court was delivered by: MATHEW KENNELLY, District Judge


Andre Thomas and two co-defendants were indicted on October 4, 1995 for the first degree murder of fellow gang member Clifford Ray. The State alleged that Thomas, a governor of the Gangster Disciples, fatally shot Ray at Thomas' home during a gang meeting, after Ray fired a gun when co-defendants Ronnie Sloan and Anthony Adams began beating him for refusing to pay "political dues" to the gang and "disrespecting" Thomas. Thomas and his co-defendants were convicted after a bench trial in 1997, and Thomas was sentenced to thirty years in prison. Thomas maintains that he is not guilty of first-degree murder because he acted in self defense or with an unreasonable apprehension of imminent death, rendering his conduct second-degree not first-degree murder.

Thomas seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He raises four claims in his pro se petition. In his first claim, he argues he was denied a fair trial, due process and equal protection because prosecutors negated his self-defense claim by arguing he was accountable for his co-defendants' actions and, therefore, the initial aggressor. He insists that as the shooter, he could not be convicted under the accountability theory because it does not apply to principals. In his second claim, Thomas argues he was denied a fair trial, due process and equal protection because the trial judge did not appropriately consider all the evidence and failed to require the State to prove he acted "without lawful justification." In essence, he challenges the sufficiency of the evidence that he was accountable for the initial violence against Ray. Thomas further claims the trial judge ignored evidence that the victim shot two individuals in Thomas' home — evidence he says was essential to his claim that he acted in self defense or with an unreasonable belief of imminent danger. In his third claim, Thomas argues his attorneys were ineffective in violation of the Sixth Amendment in that they failed to present any evidence of self-defense, failed to interview eyewitness Dave Sloan, and refused Thomas' repeated requests to testify at trial. Thomas' final claim is that he was denied a full and fair hearing of his post-conviction claims in violation of the due process and equal protection clauses. This final claim is not an appropriate ground for issuing the writ, so it will not be considered.


  The trial

  Judge Themis Karnezis presided over Thomas, Adams and Sloan's trial in August 1997. The cases were severed, but the judge heard evidence against all three defendants simultaneously. Thomas was represented by Charles Ingles and Richard Beuke. The prosecution's key witnesses were Lashon Coleman and Karrience Golden, who testified they were present at Thomas' apartment on South Marshfield in Chicago when the fatal shooting occurred. At the time Golden testified, he had a criminal charge pending and had been convicted of felonies in 1992 and 1994. Trial Tr. (Aug. 8, 1997) at E4-E5. When Coleman testified, he was serving a 120-month sentence for a federal felony conviction and had three state felony convictions from 1991, 1993 and 1994. Trial Tr. (Aug. 7, 1997) at D31, D80.

  Coleman testified that at the time of the shooting, Thomas was a governor of the Gangster Disciples, and Adams served as his assistant.*fn1 Id. at D36. Coleman testified that governors collected political fees from gang members and that a member would be "violated" if he did not pay his dues or if he was disrespectful to a governor. Id. at D47-D49. He explained that violations ranged from a monetary fine to death, with intermediate penalties, including a "pumpkin head," which is when a person is beaten about the face. Id. at D48-D49. Coleman said that on September 26, 1995, Thomas told him to come over to his house to take care of "nation" business, which Coleman understood could involve a violation. Id. at D125. Although Coleman conceded on cross-examination that the nation business could have been about concert tickets, id., he said, unsolicited, that he was known for giving violations and "[he] knew what it was when [he] came through there." Id. at D126.

  According to Coleman, approximately eight men gathered in Thomas' living room, and Thomas accused Ray of not paying political dues. Id. at D50. Ray responded that a group had decided not to pay political dues because they needed the money for their children. Id. Adams asked Ray if he heard "folks" talking to him and punched him on the right side of his face. Id. at D51-53. Ronnie Sloan then said "I got something for you" and hit Ray in the midsection with a baseball bat. Id. at D53-57. Coleman testified that Thomas had not told Sloan to hit Ray with a baseball bat, but when asked on cross-examination whether Thomas had told anyone to hit Ray, Coleman responded: "He didn't have to. He's a governor." Id. at D127.

  Coleman testified that Ray had not threatened anyone before Adams and Sloan assaulted him. Id. at D55-57. But after Sloan hit Ray with the bat, someone in the house yelled that Ray had a gun, and Coleman heard two or three shots. Id. at D57-D58. Coleman ran to the back of the house and saw Thomas standing in the dining room near Ray. Id. at D58-D59. Coleman tried to go out the back of the apartment, but when he could not, he ran back to the front of the house. Id. at D59. He heard about two or three more shots and hid in a closet. Id. at D60.

  Coleman testified that after the shooting stopped, he ran to the front room and saw that a man in a wheelchair, identified as James Howe,*fn2 had been shot. Id. at D61. Howe asked Coleman to take him to the hospital, so Coleman carried him outside and put him in Thomas' car. Id. Ray was laying outside the house near a gun. Id. at D61-D62. After placing Howe in Thomas' car, Coleman put Ray in Thomas' car. Id. at D62. Thomas told Coleman not to put Ray on his seat, so Coleman put Ray on the car floor. Id. at D62-63. Coleman found Ray and Thomas' guns in the alley behind Thomas' house and sold one of them. Id. at D63-D64. Later that day, Thomas and Adams came to Coleman's house and asked him about the gun. Id. at D65. Coleman told them his sister had it, and they told him they would be back for it. Id. at D65-D64. Coleman went to his mother's home and then went to the police station. Id. at D67. When cross-examined by Beuke, Coleman admitted that when he testified before the grand jury, he used a false name: Terrence Brown. Id. at D90-91. Ronnie Sloan's attorney Herbert Goldberg elicited from Coleman that he had used the false names Deshawn Coleman and Deshawn Atkins in the past. Id. at D118. He also admitted that he was on probation at the time the shooting occurred and lied to the police and state's attorneys on September 28, 1995 when he told them he had been out of the gang for five years. Id. at D118, D122. In response to questioning by Beuke, he explained that he had lied because there was a warrant for this arrest. Id. at D94. Coleman denied serving as a police informant in 1995, id. at D82, but a detective later testified that Coleman had been an informant. Id. at DD48.

  Coleman said he did not remember telling the police that he saw the victim holding the gun and firing wildly. Id. at D100. But Beuke read into the record the part of Coleman's grand jury testimony in which he said he saw Ray holding the gun and shooting. Id. at D103. Later on redirect, Coleman said that Adams and Ronnie Sloan were wrestling with Ray when Coleman heard the first gunshots. Id. at D141.

  On cross-examination by Beuke, Coleman said that he remembered telling the grand jury that as he ran to the back of the house, he saw Thomas run toward the front room with a gun. Id. at 104. Coleman also said he had told the police that he saw Thomas trying to get the back door of the house open and although Coleman did not know whether Thomas could get the door open, Coleman could not. Id. at D108. Coleman said Thomas broke out a window and jumped. Id.

  The State's other key eyewitness was Karrience Golden, Ray's best friend. Trial Tr. (Aug. 8, 1997) at E6. Golden testified that at the time of the shooting, he had been a Gangster Disciple for nine years, and James Howe, who was wheel-chair bound, was his regent. Id. at E6-E7. Golden said he and Ray were on the South Side around noon on September 26, 1995, when Howe approached in a car with his girlfriend. Id. at E10. Golden went with Howe to drop off Howe's girlfriend, and then they picked up Ray. Id. at E11. Howe told Golden to drive them to Thomas' home but did not tell them why. Id.

  According to Golden, the three men entered Thomas' house, and Ray sat on a low stool. Id. at E14-E15. Thomas asked Howe why he wasn't paying political dues; Howe responded that "he couldn't get up with the guys to get no money." Id. at E16-E17. Thomas then asked Golden if he had paid his dues; Golden said no. Id. at E17-E18.

  Ronnie Sloan and his twin brothers Dave and David then entered Thomas' house, Golden testified. Id. at E18. Thomas continued to talk about political dues for about thirty to forty minutes. Id. at E20. Thomas stood while he talked; Adams sat on the couch behind Thomas; Ronnie Sloan stood in the doorway to the dining room. Id. at E20-E21. Thomas asked Ray why he was not paying political dues, and Ray responded that he did not have any money and had a child. Id. at E21. Thomas sighed and went to the back of the house. Id. at E24. Adams stood up and said that's a governor you're talking to. Id. at E25. Thomas walked back into the living room holding a. 380 caliber gun behind his thigh. Id. at E25-E26. Adams walked toward Ray and punched him on the left side of the face when Ray stood up. Id. at E26, E28.

  Golden knew Ray had a 9 millimeter gun in the front of his pants under his shirt, but the gun was not visible. Id. at E27. Ray tried to grab his gun, but Ronnie Sloan hit him on his side with a bat. Id. at E28-E29. Ray got trapped in the doorway and grabbed his gun. Id. at E29-E30. Someone in the room yelled out that he had a gun. Id. at E30. Adams struggled with Ray for the gun, trying to prevent Ray from shooting, so Ray was not able to point it. Id. at E31-E32. Golden heard two gun shots, and one of the bullets hit him in the right knee and exited his knee and hit Howe in the chest. Id. at E32-E35. Golden dove over the couch and heard two or three more shots about 15 seconds after the first series of shots. Id. at E35.

  When the shooting stopped, Golden could not stand, but he saw Howe carried out of the house. Id. at E36. After the house emptied, Thomas ran back into the front room from the dining room. Id. Golden stood up and looked at Thomas and Thomas ran back out. Id. Unable to walk, Golden pushed himself toward the door on his back and pushed the door open, and someone carried him out to the police in front of Thomas' house. Id. at E36-E37. An ambulance transported Golden to the hospital. Id. at E38. A few days later, Adams came to Golden's house and asked him what he had told the police and whether he was sticking to the story that a driveby shooting had occurred. Id. at E40-E41. Golden told Adams that he had not told police there was a drive-by shooting but rather had told them three people had come into the house and there had been a struggle. Id. at E41. Golden testified that he did not identify the three men to the police because he was afraid of Thomas' status as a governor. Id. at E41-42.

  Beuke's cross-examination of Golden revealed that Ray sometimes carried a gun and had gone to get his gun before Golden and Howe drove him to Thomas' home. Id. at E48-E50. Ray showed Golden and Howe the gun before Ray got into the car. Id. at E62. Golden said the bullet that hit him came from Ray's gun, id. at E60, and he admitted that after he dove over the couch, he did not see who fired the other shots. Id. at E63. Golden said he had never met Thomas, Adams or Ronnie Sloan before September 26, 1995. Id. at E51-E52. He did not remember someone named Terrence Brown or Lashon Coleman being at Thomas' house, nor did he recognize Coleman in court as someone who had been in Thomas' house when the shooting occurred. Id. at E53-54. Golden said he had gotten out of jail only a couple of months before the shooting, id. at E55-E56, and that he, Howe and Ray were smoking marijuana on the way to Thomas' house. Id. at E62-63.

  After receiving treatment at Holy Cross Hospital, Golden told a detective who came by to question him that he and Howe had gone to Thomas' house to watch television and that fifteen minutes after they arrived, they heard something. Id. at E71-E72. He said one of the men in the apartment went to the door and began struggling with the offender. Id. Someone in the apartment said "he's got a gun" and then he heard shots. Id. at E72-E73. Golden said the men gathered in Thomas' apartment did not fire any of the shots, rather they all tried to get away. Id. at E73. He claimed that he threw his leg up to block his face and after he was shot, he dove over the couch. Id. An assistant state's attorney came to Golden's house a year later, told him they were prosecuting Thomas, Adams and Sloan, and wanted to know the whole story. Id. at E77-78. Golden said he lied in his earlier statement to police because Adams had told him to go along with the drive-by shooting story. Id. at E79-E80.

  The parties stipulated that the bullet removed from Ray was fired from a.380 caliber gun. Id. at E131. The doctor who performed an autopsy on Ray testified that there was no evidence that Ray's fatal gunshot wound to the left chest was self-inflicted. Id. E124, E127-28. She also testified that Ray had cuts on the left side of his face consistent with having been punched. Id. at E124, E131. She said Ray did not have bruising on his mid-section or arms but said that if someone died soon after being hit, bruises might not develop on his body but may develop on his face because the face bruises more easily. Id. at E132-33.

  One of the police officers who arrived at the scene shortly after the shooting testified that he found shell casings for a .380 caliber weapon on the floor by the foyer door, in the living room and in the dining room. Trial Tr. (Aug. 7, 1997) at D147-49. Detective Thomas Coughlin testified that as Thomas was being treated for a cut on his chin and scrapes on his elbow at St. Bernard's Hospital the day of the shooting, Thomas told him that he had been seated on his front porch with Adams, Ronnie Sloan, David Sloan and a woman when three black men pulled up in front of his house in a red, four-door Chevy. Id. at DD13-DD14, DD18. Coughlin said Thomas claimed one of the men got out of the car holding a pistol. Id. at DD14-15. Thomas said he heard two or three shots as he ran through his apartment to the back porch, where he broke a window with his elbow and crawled out. Id. at DD15. Thomas saw the red Chevy drive northbound on Marshfield, and he went inside his home and saw Howe sitting on the living room floor. Id. at DD16. Howe said he had been shot, so Thomas helped him into his car and drove him to the hospital. Id. While driving back to his house to find Ronnie Sloan, Thomas noticed Ray laying in the back seat of his car. Id. Thomas slapped Ray, and when he was unresponsive, Thomas drove back to the hospital. Id. at DD17.

  Detective Joseph Fine testified that when he interviewed Thomas at the police station on September 28, 1995, he told Thomas what Coleman and Ronnie Sloan's brother David had told police. Thomas responded that what they said was true, "that he tried not to push Clifford Ray into pulling a gun," that he knew Ray had a gun and "he tried everything he could to not . . . hurt that boy." Id. at DD35, DD38. When he was cross-examined by Adams' attorney Frank Edwards, the detective testified that Coleman had told him that he had been summoned to Thomas' house for nation business and was hoping it concerned the sale of concert ...

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