The opinion of the court was delivered by: MATHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
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
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.
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.
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,
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.
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 ...