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Anderson v. Hulick

August 10, 2006

ERIC ANDERSON PETITIONER,
v.
DON HULICK,*FN1 RESPONDENT.



The opinion of the court was delivered by: James F. Holderman, Chief Judge:

MEMORANDUM OPINION AND ORDER REGARDING PETITION FOR WRIT OF HABEAS CORPUS

Illinois prisoner Eric Anderson ("Anderson") filed a petition, on April 22, 2003, ("original petition") (Dkt. No. 1) and supplemental petition, on April 12, 2006, ("supplemental petition") (Dkt. No. 6) for habeas corpus relief under 28 U.S.C. § 2254. After fully considering the arguments raised and for the reasons stated below, the court denies his original and supplemental § 2254 petitions (Dkt. Nos. 1 & 6).

BACKGROUND

A. Criminal History

Anderson was convicted by a jury of two counts of First Degree Murder on May 22, 1998 and sentenced to a term of natural life imprisonment. The court recounts the underlying facts of the conviction, presuming unless rebutted by clear and convincing evidence that the state court's account of the facts is correct. See 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 547 (1981). On December 14, 1995, five teenagers, Helena Martin, Carrie Hovel, Melissa Shibla, Peter Cassanas, and Bryan Adasiak, a gang member of the Ridgeway Lords, were in a parked minivan in what was considered the territory of a rival gang, the Almighty Popes. (Resp. Ex. C at 1, Order in People v. Anderson, No. 1-98-2438, (consolidated with 1-98-2390) (Ill. App. Ct., 1st Dist. Dec. 29, 2000)). Fifteen-year-old Anderson, a member of the Almighty Popes, along with Billy Bigeck, Edward Morfin and two other teenaged boys, approached the minivan. (Id. at 2.) According to Adasiak's testimony at Anderson's trial, the boy later identified as Bigeck, was carrying a stick or a baseball bat. (Id.) Adasiak also attested at trial that he witnessed another boy, later identified as Anderson, reach under his coat and pull out a gun. (Id.) Adasiak then heard a loud pop and saw a flash. (Id.). Several shots were fired into the minivan, resulting in the deaths of Hovel and Martin. (Id.) Adasiak related that he and Cassanas did not know the names of the teenaged boys, but that they had had a previous altercation a couple days earlier with both the shooter and the boy carrying the stick. (Id. at 2-3.)

Later that day, Cassanas and Adasiak were taken to the police station. (Id. at 2.) Adasiak provided physical descriptions of the three boys who approached the minivan, describing the shooter "as white, male around 16 or 17 years old, between 5'6" and 5'8", weighing between 130 and 140 pounds, wearing a black pullover jacket, possibly a White Sox starter jacket," and the individual carrying the stick or the bat "as white, male, 17 or 18 years old, between 5'10" and 6' tall, weighing 170 pounds, and wearing a dark blue Notre Dame jacket." (Id. at 3.) Because Adasiak had seen Bigeck wearing a Notre Dame jacket during the altercation several days earlier, Adasiak believed that the person carrying the stick or bat was Bigeck. (Id.) But Adasiak did not see the person's face. (Id.) The third teenaged boy was described "as white, male, 16 or 17 years old, 5'6" to 5'8" tall, hair shaved on the sides and either short or combed back on top, wearing a dark jacket." (Id.)

Sometime after Cassanas and Adasiak gave statements to the police, Bigeck was brought down to the police station where he eventually confessed in a statement and identified Anderson as the shooter and Edward Morfin as the third individual. (Id. at 4.) At 7:30 a.m. on December 15, 1995, both Anderson and Edward Morfin's cousin Nicholas Morfin (who came to the attention of the police through another individual's statement) were brought to the police station and participated in a line up in pullover White Sox jackets. (Id. at 5.) Bigeck and Edward Morfin were also included in the line up along with another boy believed to have been involved with the shooting. (Id.). Adasiak immediately identified Anderson as the shooter. (Id.) Adasiak, however, could not positively identify Bigeck as being involved, even though he knew that Bigeck wore a Notre Dame jacket like one of the perpetrators, because Adasiak did not see the face of the individual wearing the Notre Dame jacket. (Id.) Adasiak could not identify anyone else. (Id.)

After the line up, Nicholas Morfin consented to a search of his home by the police officers. Once there, Nicholas Morfin revealed to the officers a .44 handgun and three live rounds of ammunition. (Id.) Bullet fragments and photographs of Nicholas Morfin and Anderson were also found. (Id.)

Nicholas's cousin, Edward Morfin, agreed to cooperate with the police officers, leading the officers to the murder weapon, a .357 Smith and Wesson handgun with five spent casings, an empty chamber, and the serial number scratched off. (Id. at 6.) The parties stipulated that a firearms expert would testify that the handgun was the murder weapon and "could also be traced back to the bullet jacket recovered from Nick Morfin's bedroom." (Id.) At the trial, a detective testified that both the .357 and the .44 handgun had been stolen from her house prior to December 14, 1995. (Resp. Ex. A at 13, Appellant's Br. in Anderson, No. 1-98-2438.)

B. Pretrial and Trial Proceedings*fn2

Anderson filed a motion to suppress Adasiak's identification from the line up, which was denied by the state trial court. The case proceeded to trial. As relevant here, several witnesses testified for the state beside Adasiak and Cassanas. Bigeck testified about the shooting and identified Anderson as the shooter. (Id. at 17.) A member of the Almighty Popes, Mike Bielawski testified that in a conversation with Nicholas Morfin, Edward Morfin, and Anderson, Anderson told Bielawski that they were going to "'f- - - with,' 'hit up' and 'do a burn on' the Ridgeway Lords' van." (Resp. Ex. B at 27, Appellee's Br. in Anderson, No. 1-98-2438..) Another member of the Almighty Popes, Joe Nemchausky, testified that Anderson and Bigeck arrived at his house the morning of the shooting and showed him two guns that they claimed they had stolen from a police officer. (Resp. Ex. A at 20; Resp. Ex. B. at 28.) Finally, Bryan O'Shea, also a member of the Almighty Popes, testified for the prosecution. (Resp. Ex. A at 14.) O'Shea attested that, earlier on the day of the shooting, he had been at a meeting with several other gang members and had seen Anderson and Bigeck with guns. (Resp. Ex. A at 14; Resp. Ex. B at 31) At the meeting, O'Shea related that Matt Sopron, the leader of the Almighty Popes, had directed Nicholas Morfin, Bigeck, and Anderson to take care of the Ridgeway Lords, which he understood to mean to shoot them. ((Resp. Ex. A at 14; Resp. Ex. B at 31.) Additionally, a gang specialist testified, describing the structure of gangs in Chicago and Anderson's specific affiliation. (Resp. Ex. C at 10-11.) After closing arguments, the jury found Anderson guilty of two counts of second degree murder.

C. Post-Trial Motions and Events

Counsel for Anderson filed a post-trial motion upon learning that O'Shea had met with prosecutors two weeks before the trial and had told them that he did not remember anything about the events on December 14, 1995. (Resp. Ex. C at 20.) Counsel for Anderson argued that he would have used this information to impeach O'Shea's testimony. (Id.) The trial court conducted a post-trial hearing on the issue and concluded that, regardless whether the prosecution failed to disclose the events of the meeting with O'Shea before trial, the evidence at trial was so overwhelmingly against Anderson that O'Shea's testimony was immaterial. (Id. at 21.)

O'Shea also testified at the separate trial of Sopron in February 1998 that Sopron had directed Anderson and the others to shoot members of the Ridgeway Lords. (Pet. Ex. A at 6.) Sopron was convicted. On July 22, 2000, O'Shea met with counsel for Sopron and in a recorded statement recanted his testimony. (Id. at 1-7.) Specifically, O'Shea denied that he had ever heard Sopron direct anyone to kill the Ridgeway Lords. (Id. at 7.) O'Shea, however, reaffirmed that Anderson and Bigeck had shown O'Shea stolen guns on December 14, 1995 before the shooting occurred. (Id. at 12.) When asked why he committed perjury, O'Shea stated that he felt pressured and threatened to testify against Sopron by an Assistant State's Attorney, Scott Cassidy, in a meeting with Cassidy, O'Shea and O'Shea's attorney. (Id. at 33-36.) O'Shea then testified in Sopron's postconviction hearing on January 30, 2002 that he had lied when he testified at Sopron's trial that Sopron gave instructions to go after the Ridgeway Lords. (Pet. Ex. D.) Despite O'Shea's recantation, the postconviction court upheld Sopron's conviction. (Resp. Ex. K at 2, No. 1-04-1534, (Ill. App. Ct. July 22, 2005).) John Gizowski, who did not testify against Anderson, separately submitted an affidavit stating that Cassidy had pressured and threatened them into testifying against Sopron. (Pet. Ex. B.) Edward Morfin also submitted an affidavit saying that "Cassidy made me fabricate testimony against Nick Morfin, Matt Sopron, Wayne Antusas, Eric Anderson, Nick Liberto, in which [sic] implicated these men in the deaths of Helen Martin and Carrie Hovel." (Pet. Ex. F.) The affidavit does not specifically identify statements by Edward Morfin that were fabrications. (Id.) It is not clear from the record whether Edward Morfin testified at Anderson's trial. (See Supp. Pet. at 9, Resp. Ex. C at 4 n.2, Resp. Ex. A at 10-30.)

C. Procedural History

The Illinois Appellate Court affirmed Anderson's conviction on December 29, 2000, and his petition for reconsideration was denied on November 27, 2001. Subsequently, Anderson's timely petition for leave to appeal to the Illinois Supreme Court was denied on April 25, 2002. Anderson did not petition the U.S. Supreme Court for a writ of certiorari, and so his conviction became final on July 24, 2002, see 28 U.S.C. § 2244(d)(1)(A); Anderson v. Litscher, 281 F.3d 672, 674 (7th Cir. 2002). Anderson filed a petition for post conviction relief in state court on April 8, 2003. Two weeks later, Anderson filed a petition under 28 U.S.C. § 2254 in federal district court. Anderson is represented by counsel before this court. The court stayed Anderson's petition for a period of 60 days after the termination of the state court proceedings, so that Anderson could fully exhaust his state remedies.

The state circuit court dismissed as untimely, and alternatively as lacking merit, Anderson's petition for postconviction relief on April 20, 2004. The state appellate court affirmed the dismissal of Anderson's postconviction petition on the grounds that the claims lacked merit on July 22, 2005, and the Illinois Supreme Court denied Anderson leave to appeal on December 1, 2005. Because Anderson failed to file a petition for a writ of certiorari to the U.S. Supreme Court, the state court postconviction proceedings terminated on ...


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