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United States ex rel Brown v. McCann

October 5, 2007

UNITED STATES OF AMERICA EXREL. JOHNNY BROWN, PETITIONER,
v.
TERRY MCCANN, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

In 2000, an Illinois jury convicted Johnny Brown of one count of first degree murder and one count of concealment of a homicide; the trial judge sentenced Brown to consecutive terms totaling thirty-five years. Brown has petitioned the Court for a writ of habeas corpus under 28 U.S.C. § 2254. He alleges that his constitutional rights were violated by: (1) denial of effective assistance of appellate counsel; (2) denial of effective assistance of trial counsel; (3) a search and arrest made without probable cause; (4) prosecutorial misconduct; and (5) the failure of the prosecution to prove his guilt beyond a reasonable doubt. For the following reasons, the Court denies Brown's petition.

Background

Factual findings by the state court are presumed correct in a federal habeas corpus proceeding unless they are rebutted by clear and convincing evidence. Mahaffey v. Schomig, 294 F.3d 907, 915 (7th Cir. 2005); 28 U.S.C. § 2254(e)(1). Because Brown has not rebutted the Illinois Appellate Court's factual findings, the Court adopts the following account from the decision of that court in People v. Brown, No. 1-00-3671 (Ill. App. Dec. 3, 2001):

Defendant's convictions arose from the fatal strangulation of the victim, Evelyn Gibson, at approximately 9 a.m. on November 24, 1998, in the apartment that defendant shared with his brother, Elmer Brown. Medical testimony established that the victim sustained puncture wounds to her neck, as well as various other bruises, lacerations and abrasions. A toxicology report showed that Gibson had both cocaine and alcohol in her system.

Clifton Curtis, a neighbor of defendant, testified that at approximately 3:50 p.m., his daughter indicated that she smelled gas coming from the building. Curtis called the fire department and accompanied fire personnel to the basement of the building. While in the basement, they found a body in a garbage bag.

Chicago police officer Julius Beacham testified that on that particular night, he received a call about an odor of gas coming from the building located at 2636 East 74th Street. Upon arriving at the scene, he spoke with the fire department supervisor and went to the basement of the building. The officer saw the victim's body wrapped in a green sheet with a black garbage bag covering the head of the body. He also detected a strong odor of gas. Officer Beacham then spoke to several people in front of the building, including defendant. The officer asked defendant what was "going on," and he immediately replied, "I don't know anything about that woman downstairs." Defendant was subsequently placed in custody.

Officer Beacham and his fellow police officers then went to defendant's apartment. The officer noticed several drops of blood on the stairs leading to the apartment. After Elmer Brown was placed in custody, Officer Beacham went inside the apartment and noticed several additional drops of blood on the floor.

The officer also saw an open closet that contained a mop with a "reddish-orange" tint. The officer also saw the same type of bedding sheets that were wrapped around the body. Both Elmer and defendant then were taken to the police station. Officer Alejandro Almazon testified that he was also at the scene and later interviewed Elmer and defendant at the police station. The officer asked defendant what he had done that day, and defendant replied that at approximately 3:45 p.m., his neighbor Curtis came to his apartment and asked him if he smelled gas. Defendant replied that he could not smell it, and went back into his apartment. Defendant further explained that a short time later he saw fire trucks as he walked to the liquor store. When he returned, another neighbor told him that the fire department had discovered a woman's body in the basement. Defendant returned to his apartment until the police knocked on his door and asked him to go with them.

Officer Almazon then confronted defendant with certain information given by his brother. Defendant replied that Elmer was a liar and stated that he had no knowledge of a body in the basement. The following day, after obtaining a photograph of the victim, Officer Almazon had another conversation with defendant. The officer again asked him about his whereabouts on November 24, 1998, and defendant repeated the same story. Defendant was then asked about his whereabouts the previous day. He stated that at 9:30 p.m., he left his apartment to buy liquor. When he returned, he and his brother continued to drink until he fell asleep around 1 a.m. Defendant woke up at 8 a.m. and did not go to work because he felt ill. He did not leave the apartment until Curtis knocked on his door. The officer then showed him a picture of the victim, and defendant denied ever seeing her before. Officer Almazon again confronted defendant with what Elmer had told him, and defendant reiterated that his brother was lying. Later that evening, Officer Almazon again interviewed defendant. Defendant then told the officer that he would tell the truth "that he killed her." He told the officer that he used a two-pronged carving fork and extension cord to kill the victim.

On November 25, 1998, Assistant State's Attorney Catherine Quinlan interviewed defendant at the police station and reduced his statement to writing . . . .

Defendant stated that on November 23, 1998, he cashed his $170 paycheck and was returning from a restaurant when he saw Gibson sitting in a van. Gibson approached defendant and asked if he wanted to "do something" for some money, which defendant explained meant sex in exchange for money. Defendant agreed to the proposition and gave Gibson $20. The two of them went to defendant's apartment and stayed in the living room for most of the evening. Elmer was in his bedroom during this time. Defendant and Gibson talked about her daughter during the course of the evening, and she kept asking him for money. She left briefly about four times, and defendant gave her money each time she left. On one of the two occasions that Gibson left the apartment, defendant hid $30 under one of his stereo speakers. According to defendant, Gibson was using crack cocaine when she returned to his apartment. Defendant finally went to sleep around 3 a.m., and did not wake up until his alarm went off at 8 a.m. the following day.

When defendant woke up, Gibson was searching through his belongings and under the stereo speaker. Defendant looked under the speakers and noticed that the $30 was missing. According to defendant, Gibson then offered to perform oral sex on him. Gibson and defendant had not engaged in any sexual act the night before, and he stated that this made him "very angry." She then took off her clothes, started performing oral sex on defendant, and then asked him where his money was. Defendant again got "very upset" and told her that he did not have any more money. He then started yelling at her about the $30 that was missing. Gibson also started yelling, and she picked up an empty beer bottle, which defendant knocked out of her hand. He then picked up a bottle and hit Gibson on the head. After Gibson ran out of the living room, defendant followed her and hit her head a second time with the beer bottle. At this point, the bottle broke and Gibson started bleeding from the head. According to defendant, Gibson then ran into the kitchen and returned with a two-pronged fork. Defendant grabbed Gibson's arm with one hand and the fork with the other hand, and then forced the fork into her face. The two prongs went into her skin, and defendant saw blood coming from the top of her head and from below her eye. He further stated that he may have hit her again in the head with the fork, but did not remember exactly where. Gibson then went to the bathroom, returned with a bottle of bleach, and attempted to throw bleach on defendant. Gibson missed defendant and instead got bleach in her own eye, which began to burn. While she stopped to rub her eyes and ran into the bedroom, defendant grabbed an empty gin bottle. He stated that he was trying to calm Gibson down and was very angry about her taking all of his money. He was also angry about her not giving him "enough sex." Defendant then took the bottle and hit her a third time on her head. Gibson, who was leaning towards defendant rubbing her eyes, fell backwards off the bed. The bottle shattered all over the bed.

Defendant then picked up an extension cord that was on the floor. During this time, Elmer was "hysterical" and asked defendant to stop. Defendant began yelling at Gibson about taking his money and told her that "she would know never to take his money." He then got behind her on the bed, wrapped the cord around her neck, and squeezed it tightly for about 15 minutes. Defendant explained that he had the cord crossed in front of her neck and pulled it tightly with his arms extended in front of him. He was holding her body against him and supporting her weight. Defendant further stated that Gibson was making noises, so he pulled the cord tighter to make her stop. As defendant pulled the cord, he could hear Gibson choking and gasping. He then asked her if she would "stop and leave," and she screamed "no, no." After a few minutes, defendant felt Gibson's body "go limp," and stated that he did not hear any more noise from her. He felt the cord loosen up and then checked her pulse. Defendant stated that Gibson no longer had a pulse and had stopped breathing.

Defendant pulled Gibson's body into the bathroom using the sheets from the bed. Gibson continued to bleed from the head and the face. He then began "cleaning up the mess" with the bottle of bleach. Defendant disposed of Gibson's clothes in a garbage bag and placed the extension cord in the pantry. He used two garbage bags to cover the body, and cleaned up using a mop. Defendant then asked Elmer to help him move the body into the basement. Elmer left immediately after transporting the body, but defendant stayed and poured gasoline over Gibson's body. He decided not to set the body on fire and returned to his apartment.

At trial, defendant testified that he and his brother had been drinking earlier that afternoon. At about 9 p.m., defendant left the apartment to get something to eat, and Gibson propositioned him. Gibson and defendant went to Elmer's apartment where she smoked cocaine while defendant drank alcohol. Gibson asked him for money and left the apartment three or four times. According to defendant, the two of them talked about their children and did not engage in sex that night. Defendant eventually passed out at around 3 a.m., while Gibson was still smoking.

When defendant woke up, he saw Gibson by the stereo speaker and asked her what she was doing. Gibson then took her clothes off and started performing oral sex on him. Gibson requested more money and defendant told her that he did not have any more. She then reached for a bottle and attempted to hit defendant, but he blocked her arm. Defendant stated that he was "afraid" because Gibson was "enraged," so he picked up the empty bottle and hit her on the forehead. Gibson attempted to hit defendant with another bottle, but defendant managed to hit her on the head again with the bottle. Gibson and defendant continued fighting about money. She then ran into the kitchen and returned with a fork in her hand. According to defendant, Gibson kept yelling that she wanted more money as she lunged at defendant with the fork. Defendant managed to twist the fork toward Gibson, and he stated that the fork might have hit her. Gibson then ran to the bathroom, returned with a bottle of bleach, and attempted to throw bleach at defendant. Defendant stated that he was scared and thought Gibson was trying to kill him. After she rubbed her eyes, defendant stated that Gibson "kept coming" at him in a "rage," so he hit her with a gin bottle to protect himself. In an attempt to "calm her down" so she could leave, defendant got the extension cord and wrapped it around her shoulders. According to defendant, the cord slipped up her arms because she was moving, and somehow "went around her neck." He clarified that he never wrapped the cord around her neck. Defendant asked Gibson if she would leave if he let her go, and she replied "no." He then put pressure on the cord for about five seconds to a minute, and asked her the same question. He continued to do this until her body went limp. Defendant testified that he did not wrap the cord around her neck for 15 minutes. He also clarified that he had no intent to kill Gibson and was acting in self-defense. Finally, defendant stated that the reason why he took Gibson's body down to the basement and poured gasoline over it was because he was scared.

Defendant clarified that he was not angry about the money or the fact that Gibson did not have sex with him. He also stated that he was not injured and only received a small scratch on his knuckles. Finally, defendant stated that he signed each page of his written statement but only glanced through it because he assumed the assistant State's Attorney would include everything he said to her. He ...


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