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November 4, 2005.


The opinion of the court was delivered by: MARK FILIP, District Judge


Thomas Donval, who is also known as Donyal Thomas ("Petitioner" or "Donval"), has filed a Petition for a Writ of Habeas Corpus against Respondent Nedra Chandler, who is the Warden of the Dixon Correctional Center in Illinois. Petitioner challenges the constitutionality of the state court conviction and judgment under which he is incarcerated. For the reasons explained below, Donval's Petition for a writ of habeas corpus is respectfully denied.


  Petitioner is imprisoned pursuant to a judgment of the Illinois courts. That judgment followed a bench trial in which Petitioner was convicted of first-degree murder, aggravated discharge of a firearm ("ADF"), aggravated battery with a firearm ("ABF"), mob action, and aggravated battery. (D.E. 19, Ex. H at 6-7.) Petitioner was sentenced to thirty-five years' imprisonment. (Id. at 7.)*fn1 In September of 1997, David Brown ("Brown"), a member of the Mafia Insanes street gang, was running a drug spot for his gang at the corner of Drake and Chicago Avenues in Chicago. (Id.) Brown's boss was James McGhee ("McGhee"), a high-ranking member of the Mafia Insanes gang. (Id.) Petitioner, a member of the Conservative Vice Lords street gang, operated a drug spot at Central Park and Chicago Avenues, one block away from Brown's spot. (Id.) On or about September 12, 1997, Brown was riding his bicycle when Petitioner and other members of the Conservative Vice Lords threw rocks at him. (Id.) Brown and a few other Mafia Insane gang members challenged the Conservative Vice Lords to a fight, during which Brown received a black eye. (Id.)

  On September 18, 1997, Brown and McGhee were driving in McGhee's Chevrolet Lumina past Petitioner's drug spot. (Id. at 4.) Brown and McGee were carrying loaded firearms. (Id. at 4-5.) At this time, Petitioner and a friend named "Bowlegs"*fn2 were walking with Ms. Ashley Brown ("Ashley"), then age 13, and Ms. Sarah Young ("Sarah") on the street near the intersection of Chicago and Central Park Avenues. (Id. at 2.) Sarah was wheeling her infant son, Maurice Hodges ("Maurice"), in a stroller. Petitioner lagged behind the group as they walked. (Id.)

  As the group approached Chicago and Lawndale, Petitioner ran toward the group, telling them to "move, move, move, back, back, back." (Id.) Sarah, thinking Petitioner was joking, did not step aside. (Id.) Petitioner moved to the side of a church, pulled out a gun from underneath his shirt, and shot in the direction of McGhee and Brown in the Lumina. (Id.) McGhee fired from the driver's side of the car in Petitioner's direction. (Id. at 2, 4.) Brown attempted to fire shots at Petitioner, but he was unable to unlock the passenger-side door. (Id. at 5-6). Petitioner was not wounded, but Sarah was hit in the left leg below the knee. (Id. at 2.) Maurice, the infant, was tragically shot by a bullet that passed completely through his chest, and he died as a result of the gunshot. (Id.) The police subsequently obtained McGhee's gun from Brown while investigating an unrelated matter. (Id. at 5.) Forensic evidence revealed that the bullets that struck Sarah and Maurice came from McGhee's gun. (Id.)

  The first-degree felony murder count on which Petitioner was convicted and sentenced was premised on underlying ADF charges. (Id. at 8.) With respect to the ADF charges, the indictment identified the offender (i.e., Petitioner), the name and statutory basis of the offense, and the date, time and place of the offense; the intended targets of Petitioner's shots were identified as Ashley Brown and Keith Tiggs. (Id.) McGhee was also indicted for first-degree felony murder, aggravated battery with a firearm, aggravated discharge of a firearm, and mob action. See People v. McGee, 801 N.E.2d 948, 949 (Ill.App.Ct. 2003).*fn3

  Petitioner was tried in a joint bench trial with McGhee. (D.E. 19, Ex. H at 1.) At trial, Petitioner did not dispute that he discharged a firearm; indeed, Petitioner affirmatively asserted that he acted in self-defense and in defense of others. (Id. at 12.) The main issue at trial was whether Petitioner was the initial aggressor. (Id. ("The determinative question at trial was not whether defendant [i.e., Petitioner] fired in the direction of another person, but whether defendant or McGhee was the initial aggressor.").) To rebut Petitioner's self-defense claim, the State offered Sarah's testimony that Petitioner fired first, and that McGhee returned fire. (Id. at 3.) In addition, the State offered Brown's testimony that Petitioner fired the first shots and McGhee began firing in response. (Id. at 29-30.) Petitioner did not testify and no evidence was presented by the defense. (Id. at 6.)

  The circuit court found Petitioner guilty of first-degree felony murder of Maurice Young premised on aggravated discharge of a firearm; first-degree felony murder of Maurice Young premised on mob action; aggravated battery with a firearm of Sarah Young; and mob action. (Id. at 6-7.)

  At the hearing on post-trial motions, defense counsel informed the court that he had filed a motion for a new trial and that Petitioner had filed a pro se motion for a new trial. (Id. at 24-25.) Petitioner's pro se motion advanced a variety of claims. In his brief, but not in his motion, Petitioner argued that his defense counsel was ineffective for failing to sufficiently challenge Sarah Young's testimony. (Id. at 24.) The trial court denied all of the post-trial motions. (Id. at 24, 26.)

  On direct appeal, Petitioner argued that: (1) the State failed to prove he committed the offenses of conviction beyond a reasonable doubt, including felony murder predicated on aggravated discharge of a firearm; (2) the State failed to rebut his defenses of self-defense and defense of others; (3) the circuit court erred in denying his pro se motion for a new trial without appointing different counsel; (4) the circuit court erred in imposing disparate sentences. (Id., Ex. H at 1-2.)

  Petitioner's first claim argued that he was not proven guilty beyond a reasonable doubt for aggravated discharge of a firearm because "the State failed to elicit any evidence that [Petitioner] discharged a weapon in the direction of [Ashley] or Tiggs and failed to establish that [Petitioner] was accountable for the actions of James McGee and David Brown who were members of a rival gang." (D.E. 19, Ex. E at 7.) The challenge was essentially rooted in state law, but Petitioner also cited some cases dealing with federal law; for example, he cited Jackson v. Virginia, 443 U.S. 307 (1979), for the proposition that the federal constitutional guarantee of due process demands that all of the elements of a crime be proven beyond a reasonable doubt. (Id. at 33.) In its brief, the State conceded that the conviction of ADF as to Tiggs should be vacated because the State did not prove at trial that Tiggs and "Bowlegs" were the same person. (D.E. 19, Ex. F at 30.) The State also argued that Petitioner was guilty of ADF in the direction of Ashley (and thus guilty of felony murder) on the basis of accountability principles for the shots that McGhee fired at her. (Id.)

  The Illinois Court of Appeals affirmed Petitioner's felony murder conviction premised on ADF because it determined that the State had proven the elements of ADF and felony murder beyond a reasonable doubt by establishing that Petitioner discharged without authorization a firearm in the direction of another person, namely McGhee, proximately causing the unlawful killing of the infant, Maurice. (Id., Ex. H at 12, 14.) The Illinois Court of Appeals acknowledged that the indictment charged that Petitioner had fired in the direction of Ashley and Tiggs, and not McGhee, and stated that the salient issue was "whether the variance between the indictment and the proof at trial was a `fatal' variance resulting in undue prejudice to the defendant." (Id. at 10.)*fn4 The Illinois Court of Appeals concluded that the variance at issue was not fatal because Petitioner "was not unfairly surprised at trial, his defense was not required to be altered or compromised, and double jeopardy prohibits his retrial for the underlying offense of ADF as to McGhee or Brown." (Id. at 11.) In the course of its analysis, the court did not reference any federal constitutional law cases. (Id. at 10-15.)

  Petitioner's second claim concerned the issue of whether felony murder could be predicated on a mob violence conviction. Petitioner argued on appeal that he was not guilty of mob violence because he was not "acting together" with McGhee, a member of a rival street gang. (Id. at 15-17.) The appellate court agreed, noting that contemporaneous action that is separate and independent is legally distinct from combined or concerted action. (Id. at 18.) Thus, Petitioner's convictions for mob action and felony murder predicated upon mob action were reversed. (Id.)

  Petitioner's third claim challenged his convictions for aggravated battery with a firearm. Petitioner argued that he was not guilty of aggravated battery with a firearm as a principal because the evidence at trial established that Young was shot by McGhee's weapon. (Id. at 19.) Petitioner further argued that he was not guilty as an accomplice because there was no overt act in furtherance of a common design. (Id.) The appellate court agreed and reversed the conviction, noting that the proper rule of law was not the "proximate cause" principle from felony-murder cases, but rather the generic "accountability" principles in Illinois law as set forth in 720 ILCS 5/5-2(c). According to the Illinois Court of Appeals, Section 5-2(c) requires a common design and an overt act in furtherance of the common design and the State did not prove the existence of those elements beyond a reasonable doubt. (Id. at 20-21 (citing People v. Cooper, 743 N.E.2d 32, 42 (Ill. 2000)).)

  Petitioner's fourth claim concerned self-defense. Petitioner claimed in his pro se motion for a new trial that the State failed to rebut his affirmative defense beyond a reasonable doubt. (D.E. 19, Ex. H at 22.) The appellate court rejected this claim because the State proved beyond a reasonable doubt that Petitioner was the aggressor, which negated one of the elements of the defense. (Id. at 23.) The appellate court noted that while Petitioner made an effort to get other members of the group out of the line of fire, he fired the first shot, and Illinois law does not permit preemptive self-defense or defense of others. (Id. at 23 (citing People v. Rodriguez, 631 N.E. 2d 427, 430 (Ill.App.Ct. 1994)); see also D.E. 19, Ex. H at 23 ("After viewing the evidence in the light most favorable to the prosecution, the circuit court could have found defendant's affirmative defense negated beyond a reasonable doubt.").)

  Petitioner also argued that the circuit court erred in denying his pro se motion for a new trial, in which he alleged defense counsel's supposed ineffectiveness. (Id. at 25.) In the brief accompanying his motion, but not in the motion itself, Petitioner argued that trial counsel was ineffective for failing to perfect the impeachment of Young, who denied on cross-examination that she told police on the day of the shooting that McGhee initiated the gunfire. (Id.) The appellate court determined that since the argument was not in the motion, Petitioner did not properly advance this claim, and thus, as a procedural matter, the circuit court did not fail to adequately address the issue. (Id. at 26.) With respect to the question of the putative additional Young impeachment, the Court of Appeals alternatively analyzed the ineffectiveness claim under Strickland v. Washington, 466 U.S. 668 (1984), and Illinois caselaw applying it. (D.E. 19, Ex. H at 26-29.) The appellate court, applying Strickland, determined that counsel's decision was a matter of trial strategy by defense counsel and, moreover, was not objectively unreasonable. (Id. at 29.) Furthermore, the court determined that Petitioner suffered no prejudice because Brown also testified that Petitioner fired first, and Petitioner presented no evidence to call into question Brown's unrebutted testimony that Petitioner fired first. (Id.) Petitioner also argued that trial counsel refused or failed to disclose exculpatory evidence in Brown's confession. (Id.) The court of appeals determined that this claim was meritless because the record demonstrated that defense counsel thoroughly cross-examined Brown with regard to the contents of his statement. (Id.) Consequently, the Illinois Court of Appeals affirmed the circuit court's denial of Petitioner's pro se motion for a new trial without a hearing. (See id. ("[T]he allegations in defendant's post-trial motion were incognizable," "legally immaterial," or merely conclusory).)

  Petitioner's final claim was that the circuit court abused its discretion in sentencing him to a 35-year prison term while Brown only received a 28-year sentence in spite of having greater culpability and a more serious criminal record. (Id. at 30.) The court of appeals determined that this argument was waived because it was not raised in the trial court (id. at 30) and that Petitioner did not fall under any of the waiver exceptions. (Id. at 31.) The appellate court also noted that it could not find an abuse of discretion because the record did not include the factors upon which the trial court relied in sentencing Brown, namely his criminal background, the charge to which he pled guilty, and his pre-sentence investigation report. (Id. at 32.)

  On December 1, 2003, Petitioner filed a petition for rehearing with the Illinois appellate court, arguing that the appellate court had sua sponte raised the variance issue and had failed to consider the applicable state and federal constitutional standards governing indictments. (See id., Ex. I at 12.) The petition for rehearing cited Peters v. Kiff, 407 U.S. 493 (1972), for the proposition that "the validity of an indictment is subject to measurement against general fourteenth amendment guarantees of due process." (D.E. 19, Ex. I at 12.) The petition also cited United States v. Harris, 457 F.2d 191, 197 (7th Cir. 1972), as the governing case for determining the constitutional requisites of an indictment. (D.E. 19, Ex. I at 12-13.) The appellate court denied ...

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