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United States ex rel Kelley v. McCann

June 14, 2007


The opinion of the court was delivered by: Judge Joan H. Lefkow


In his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner Reginald Kelley ("Kelley") challenges his convictions for first degree murder, attempted first degree murder and armed violence. The Respondent Terry McCann, the Warden of the Stateville Correctional Center ("Respondent"), has filed an answer to the petition.*fn1 For the reasons stated below, Kelley's petition is denied.


Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), this court must deny Kelley's petition for a writ of habeas corpus with respect to any claim adjudicated on the merits in the state court unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d); Price v. Vincent, 538 U.S. 634, 638, 123 S.Ct. 1848, 155 L.Ed. 2d 877 (2003). A state court's decision is contrary to clearly established Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [it]," or if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed. 2d 389 (2000). In order for a state court decision to be considered "unreasonable" under this standard it must be more than incorrect, it must lie "well outside the boundaries of permissible differences of opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see also Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) ("The state court decision is reasonable if it is minimally consistent with the facts and circumstances of the case.").

Before reviewing the state court's decisions, however, the court must determine whether Kelley fairly presented his federal claims to the state courts, as any claim not presented to the state's highest court is deemed procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed. 2d 1 (1999). Moreover, "[a] federal court will not review a question of federal law decided by a state court if the decision of the state court rests on a state procedural ground that is independent of the federal question and adequate to support the judgment." Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002). A federal court may not grant habeas relief on a defaulted claim unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed. 2d 640 (1991); Anderson v. Cowen, 227 F.3d 893, 899 (7th Cir. 2000).


On July 25, 1994, at approximately 10:30 p.m., Ebony Collins, her three-year old son Kevin Taylor, Jr. ("K.T."), her father Ronnie Cole, her friend Lashon Johnson, and her brother Ronnie Collins were gathered at Ms. Collins's mother's house, located on Exchange Street on the southeast side of Chicago, Illinois.*fn2 The group decided to drive to a grocery store located at 79th Street and Yates Boulevard in a white Chevy Caprice. K.T. sat in between Ms. Collins, while Ms. Johnson sat behind Mr. Cole. K.T.'s head was visible from the rear of the vehicle, as it extended above the front seat.

After leaving her mother's house, Ms. Collins drove southbound on Yates Boulevard to 79th Street. Ms. Collins and Ms. Johnson went into the store, purchased some items and returned to their respective seats in the car. Thereafter, Ms. Collins pulled out onto Yates Boulevard and proceeded northbound to 75th Street, where she stopped the car for a red light. As the vehicle stopped, Ms. Collins, Mr. Collins and Mr. Cole noticed a group of approximately six people standing on the northeast corner, approximately 25 feet away. Ms. Collins and Mr. Cole noticed a boy whose hair was in french braids and who was wearing red shorts and a white T-shirt with stripes on the sleeve staring at the car. The boy in the red shorts and another boy dressed in dark clothes broke away from the group and crossed the street in front of the car, walking toward the northwest corner. While crossing the street and still staring at the car, the boy in the red shorts began lifting up his shirt in the area of his waistband.

The light turned green and Ms. Collins began to drive through the intersection. Ms. Collins and Mr. Collins noticed the boy in the red shorts throw gang signs in the air. When the car was approximately 10 feet away from the boy, Ms. Collins heard someone through the open driver's side car window say, "Ain't that the motherfucking car right there?" At the same time, Mr. Collins saw the face of the boy in the red shorts and both Mr. Collins and Ms. Johnson watched the boy "fiddle with his shirt," revealing a black object tucked in the waistband of his shorts. The car was approximately 50 feet away from the boys when Ms. Johnson saw the right arm of the boy in the red shorts extend to a 90-degree angle and further saw three flashes exit from where his arm was extended. Ms. Collins, Mr. Collins and Ms. Johnson heard three gunshots, which they described as sounding like a car backfiring; Mr. Cole heard approximately two shots. Then, the back windshield shattered. Mr. Cole yelled that he had been hit and K.T. began to cry. Ms. Johnson saw blood on Mr. Cole's arm and, when K.T. was lifted up, she saw blood from K.T.'s head. Mr. Collins saw two holes in his father's arm and a hole in the back left side of his nephew's head. Ms. Collins looked at K.T. and saw that he had been shot in the back of the head. She then became hysterical and Mr. Cole told her to let Mr. Collins drive them to the hospital.

Once at Jackson Park Hospital, Mr. Cole was treated for multiple gunshot wounds. After being transferred from Jackson Park Hospital to Wyler's Hospital, K.T. died from a single gunshot wound to the head. That same evening, police officers recovered six .9 millimeter shell casings..

On July 29, 1994, Officer James Oliver picked up Ms. Collins and her sister Melissa in a green Jeep Cherokee with dark tinted windows. The three drove to the Gatlings Funeral Home, located at 102nd Street and Halsted Avenue, and parked across the street, approximately 50 to 75 feet from the entrance. Approximately 200 to 300 people, from ages 16 to 26, were present. The people were predominantly young black men of various heights, weights, hairstyles and clothes. After 15 or 20 minutes, Ms. Collins identified Kelley and Jernel Brown as two of the boys present on July 25, 1994. Kelley was wearing a white T-shirt, black pants and gym shoes with red shoestrings, and his hair was in french braids. Ms. Collins recognized Kelley's face, and both she and Officer Oliver identified Kelley in open court as the boy Ms. Collins identified at the funeral home.

While at the funeral home, Officer Oliver called for assistance and Officer Edward Sonne, along with his partner, responded. As Officer Sonne exited his car and began to approach Kelley, Kelley began walking away. Officer Sonne asked Kelley to stop, which he did, and the officer did a protective patdown of Kelley, recovering a loaded .25-caliber semiautomatic handgun from Kelley's right pants pocket.

On August 2, 1994, at approximately 2 p.m., Ms. Collins and Mr. Cole viewed the same lineup at Area 2 police headquarters, both consisting of seven black males in their late teens or early twenties, all with dark complexions. The participants in the lineup were approximately 5 feet 8 inches to 6 feet tall. Additionally, three of the participants had braided hair. Ms. Collins identified Kelley and Mr. Brown; Mr. Cole was unable to identify anyone. On that same day, at approximately 6:15 p.m., Mr. Collins viewed a similar lineup with Detective John Ervin. Mr. Collins identified Kelley as the boy staring at the car; he identified him again in open court during the trial. Mr. Collins only tentatively identified Mr. Brown as the boy in the dark clothes. On August 11, 1994, Ms. Johnson viewed a similar lineup prepared by Detective Ervin; however, Mr. Brown was unable to participate. Ms. Johnson identified Kelley again.

Assistant State's Attorney ("ASA") Peter Faraci of the felony review unit testified that, on August 2, 1994, he was assigned to the murder of K.T. At approximately 5:05 p.m., he went to an interview room where Kelley was present with Detective Ervin. ASA Faraci introduced himself and recited to Kelley his Miranda rights from memory. After indicating that he understood his rights as recited, Kelley waived his rights and wanted to speak. Kelley informed ASA Faraci that, on July 25, 1994, at approximately 10:45 p.m., he was either at his aunt's house or with friends in the alley hanging out. Two days prior, his cousin, Brian Hill, a "Black P Stone" gang member, was shot and killed in a drive-by shooting by a "GD," a rival gangmember. Kelley further stated to ASA Faraci that he believed that the drive-by shooting incident involved a light-colored or white, four-door Chevy. However, he denied knowledge of the location or facts relating to K.T.'s homicide.

ASA Catherine Hufford testified that, on August 3, 1994, at approximately 8 p.m., Kelley was brought to the felony review room in Area 2 police headquarters to speak with her. She introduced herself and recited to Kelley his Miranda rights from memory. After indicating that he understood his rights as recited, Kelley again waived his rights and wanted to speak. Kelley originally told ASA Hufford that he was a "Blackstone" or "Stone" gang-member and that the Blackstones were at war with the Gangster Disciples over "turf." He further stated that his cousin, Brian Hill or "Ibir," had been killed by a Gangster Disciple on July 23, 1994, and his friend Alina had been shot in the same incident. Kelley denied being at 75th Street and Yates Boulevard at the time of the murder. Rather, he asserted that he was at his aunt's house at 6725 South Clyde Street at approximately 10:30 p.m. the night of the murder, smoking reefer and drinking. Defendant stated his uncle "Rocks" came to get him, saw what he was doing and let him stay outside; however, Kelley would not provide Rocks' real name, address or telephone number. Kelley further stated that his uncle Kash was visiting from Wisconsin and could verify his presence. He then provided ASA Hufford a telephone number to contact Kash.

ASA Hufford asked Kelley if he was worried that the .25-caliber gun recovered by police officers on July 29, 1994, was used in the shooting. Kelley responded, "No because I didn't have no nine millimeter." ASA Hufford replied, "Who said it was a nine millimeter?" After indicating that ASA Hufford told him the caliber of the weapon, to which she replied that she had not, Kelley stated, "I should have listened to my mother and kept my mouth shut. I don't want to talk to you no more." Kelley was then escorted out of the room.

Following the aforementioned testimony from the State's witnesses, the parties entered into a stipulation that Dr. Robert Kirschner, the medical examiner, would testify that K.T. died of severe cerebral injuries secondary to the single gunshot wound to the head. The parties further stipulated that a forensic expert by the name of Mr. Warner would testify that the bullet fragment removed from K.T.'s head was not suitable for comparison and, thus, he would be unable to testify as to its specific caliber. The State rested and the trial court granted Kelley's motion for a directed verdict as to count VIII, aggravated battery based upon the permanent disfigurement of Mr. Cole.

Kelley presented four witnesses to corroborate Kelley's alibi: Kash Tahmir, Enewamah Tahmir, Melissa Williams and Angela Egeston. Additionally, Detective Jack Hines was called to impeach Ms. Collins' testimony that police officers only asked her what the perpetrators were wearing when they arrived at the hospital on July 25, 1994, to question her.

On December 16, 1996, following closing argument, the trial court found Kelley guilty of first degree murder, attempt (first degree murder) and armed violence. The trial court further ordered the remaining aggravated battery and aggravated discharge counts to merge with the attempt (first degree murder) count.

On February 20, 1997, after hearing and considering the presentence report, the arguments, the evidence and the factors presented in aggravation and mitigation, the trial court sentenced Kelley to an 80-year extended term sentence for the first degree murder charge, to be served consecutive to a 20-year sentence for the attempt (first degree murder) charge, totaling 100 years' imprisonment in the Illinois Department of Corrections.

Thereafter, Kelley appealed to the Illinois Appellate Court, First District, raising the following issues for review:

A) Whether petitioner was denied effective assistance of counsel when trial counsel failed to investigate exculpatory evidence and interview witnesses;

B) Whether petitioner was denied effective assistance of counsel when trial counsel failed to file a motion to suppress suggestive identification evidence;

C) Whether petitioner was denied effective assistance of counsel when counsel made an improper statement during closing argument; and

D) Whether the trial court erred in allowing the grand jury transcript to be read into the record during the sentencing hearing.

On March 31, 1999, the Illinois Appellate Court affirmed Kelley's conviction and sentence. Following the appellate court's decision, Kelley initiated proceedings in the Illinois Supreme Court by filing a petition for leave to appeal. In his petition, Kelley raised for review the same four issues he presented to the appellate court. On December 1, 1999, the Illinois Supreme Court denied Kelley's petition for leave to appeal.

Kelley then filed a post-conviction petition for review, arguing that 1) his trial counsel was ineffective in that he failed to move to dismiss the indictment as based on prejudiced testimony; and 2) his appellate counsel was ineffective for failing to challenge the competency of trial counsel on the same grounds. The trial court denied Kelley's ...

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