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United States ex rel Ashanti v. Hulick

February 4, 2008

UNITED STATES OF AMERICA EX REL. OMAR JOHNSON ASHANTI, PETITIONER,
v.
DONALD A. HULICK, WARDEN, MENARD CORRECTIONAL CENTER. RESPONDENT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

This matter comes before the court on Petitioner Omar Johnson Ashanti's petition for a writ of habeas corpus. For the following reasons, the petition is denied.

BACKGROUND*fn1

On March 11, 1996, Omar Johnson Ashanti approached 58-year-old Dorothy Jewula, the owner of a Kentucky Fried Chicken restaurant ("KFC") and Ashanti's boss, in Westchester, Illinois, as she was leaving the restaurant with a large sum of money to make a bank deposit. Linda Rowry, another KFC employee, saw that after Jewula had gotten into her car, Ashanti began speaking with her. Eventually, Ashanti got into Jewula's car and the two drove away. Based upon a statement Ashanti gave to the police, he and Jewula drove to his apartment complex and pulled into the garage. Ashanti stated that his cousin, Cornell James, was waiting in the garage. James ordered Ashanti and Jewula out of the car and ordered Jewula into the trunk. James then shot Jewula twice in the head at close range.

James testified to a different set of facts. He stated that Ashanti called him at about 2:15 p.m. on March 11 and told him that he had a car that was "too hot to drive." James then went to Ashanti's apartment and saw Jewula's car. Ashanti told James that he had stolen the car. Both Ashanti and James went to James's apartment where Ashanti told James that he had held up a "KFC lady" and offered James $500 to show him where he could dump the car. James accepted the money and agreed to help Ashanti. James testified that he neither knew that Jewula was dead nor that she was in the trunk of the car.

Ashanti drove Jewula's car to DeKalb, Illinois, and abandoned it in a grocery store parking lot. One of the grocery store employees identified Ashanti as the person driving Jewula's car on March 11. This witness also picked Ashanti out of a photo array on March 19. James admitted that he followed Ashanti to DeKalb and the two then returned to Westchester after abandoning Jewula and the car.

Following a 1999 jury trial in the Circuit Court of Cook County, Illinois, Ashanti was convicted of first degree murder, armed robbery, aggravated kidnapping, aggravated vehicular hijacking, and concealment of a homicidal death, for which he was sentenced, respectively, to one term of natural life in prison, three terms of 60 years in prison, and one term of 10 years in prison. The trial judge determined that Ashanti was eligible for a natural life sentence under three separate provisions:

(a) 720 ILCS § 5/9-1(b)(6) (First Degree Murder) because petitioner murdered the victim during the commission of an armed robbery, aggravated kidnapping, and aggravated vehicular hijacking.

(b) 730 ILCS § 5/5-8-1 (Felony Sentencing), because the murder was accompanied by "exceptionally brutal or heinous behavior indicative of wanton cruelty": and

(c) 720 ILCS § 5/9-1(b)(11) (First Degree Murder) because "the murder was committed in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design to take human life."

Ashanti appealed his sentence and raised the following two arguments:

(1) the trial court relied on improper sentencing factors; and

(2) his sentence violated Apprendi v. New Jersey because the "exceptionally brutal or heinous" factor was not proven to a jury.

Upon review, the state appellate court affirmed in part but vacated the natural life sentence and remanded for re-sentencing. Consequently, the state filed a petition for leave to appeal (PLA), arguing that the appellate court erred when it held that an Illinois statute was unconstitutional under Apprendi v. New Jersey. The Illinois Supreme Court denied the PLA, but issued a Supervisory Order directing the state appellate court to vacate its judgment and reconsider its opinion in light of four state supreme court decisions.

On remand, Ashanti raised the following additional argument: there was no overwhelming evidence of "exceptionally brutal or heinous" behavior and failure to submit this issue to a jury was "plain error". Nonetheless, the state appellate court, affirmed Ashanti's convictions and sentence holding that (1) the Apprendi violation regarding the "brutal or heinous" determination was forfeited because it was not raised at the trial court and any error did not amount to "plain error", and (2) Ashanti was eligible for the life sentence he received based upon the felony murder provision.

Ashanti then filed a PLA in which he raised the following three claims:

(1) the appellate court failed to follow the prejudice standard for "plain error" set out by the state supreme court;

(2) the appellate court incorrectly found that his actions were "exceptionally brutal or heinous" when the evidence was not overwhelming; and

(3) the appellate court failed to consider his background in determining whether his actions were indicative of wanton cruelty.

The Illinois Supreme Court denied Ashanti's PLA.

On April 1, 2005, Ashanti filed a postconviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS § 5/122-1, et seq., in which he raised the following eight claims:

(1) his sentence and conviction violated the proportionate penalties clauses of the United States ...


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