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United States ex rel Nichols v. Acevedo

March 7, 2008


The opinion of the court was delivered by: Wayne R. Andersen District Judge

Wayne R. Andersen District Judge


This case is before the court on Demetrius Nichols' petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, we deny this petition for habeas corpus.


Petitioner does not challenge the statement of facts set forth in the order of the Illinois Appellate Court affirming his conviction for attempted first degree murder and aggravated unlawful restraint. People v. Nichols, No. 1-04-0516 (Ill. App. First Dist. 2006). For purposes of federal habeas review, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). Accordingly, we adopt the Illinois Appellate Court facts as our own.

Following a bench trial in the Circuit Court of Cook County, Illinois, Petitioner was convicted of attempted first degree murder, aggravated battery, and aggravated unlawful restraint of Ebony Foster on December 3, 2002. Petitioner was sentenced to concurrent prison terms of twenty years for attempted murder, five years for aggravated battery and three years for aggravated unlawful restraint. Foster and her two cousins, Shanti Thomas and Kybria Thomas, testified at trial.

Ebony Foster and Petitioner had six children together. In Foster's apartment on December 3, 2002, Foster argued that Petitioner failed to take their son, Darnell Nichols, to a speech therapy appointment. Foster asked Petitioner to leave and Petitioner refused. Foster and her cousin Shanti Thomas left the apartment and headed to Shanti Thomas' house. Thirty minutes later they returned to Foster's apartment with Shanti's sister Kybria Thomas. Upon their arrival, Petitioner was not on the premises and Foster "broke a stick off" in the apartment's lock to prevent Petitioner from using his key.

While talking with the Thomas sisters upstairs, Foster heard Petitioner banging on the door and asking to be allowed to enter. Subsequently, Foster heard a "pop" and then heard Petitioner heading upstairs. Petitioner was carrying a twelve to fourteen inch long, flat, metal pole. Upon seeing the Thomas sisters, Petitioner placed the pole in his back pocket, went downstairs and called for Foster. When Foster did not follow, Petitioner went back upstairs and requested that the Thomas sisters leave. This was Foster's apartment and she told Petitioner that her cousins did not have to leave. Fearing Petitioner's anger, Foster asked the Thomas sisters to stay because she knew he was going to "jump on [her]" if they left. Foster wanted to call the police and asked Shanti Thomas if she could use her cell phone. As Foster was dialing 911, Petitioned grabbed the phone and broke it. Foster testified that Petitioner said, "[A]ll you mother fuckers here are going to die tonight." As Shanti Thomas tried to leave, Foster grabbed her and attempted to keep her there. When Foster grabbed Shanti Thomas, Petitioner grabbed Foster on the back of the neck and dragged them downstairs. Kybria Thomas ran down the stairs and Shanti Thomas broke free and left.

Foster testified that she tried to get loose but was unable to. Petitioner took her into the kitchen and grabbed a six to eight inch long butcher knife from the dish rack next to the sink. Petitioner grabbed the knife and made a downward motion. Foster grabbed the knife and her hand was sliced. Kybria Thomas testified that she saw Petitioner stab Foster once before she ran home. Kybria Tomas did not see exactly where Foster was cut. Foster was stabbed in the leg and persisted in her attempts to get away from Petitioner. Foster finally got away, but Petitioner stabbed her in the back of the head and upper shoulder. Petitioner said, "[B]itch, if I can't have you, ain't nobody going to have you." Petitioner and Foster were both crying. Foster feared for her life. Foster finally broke loose and ran out the front door and headed across the street to Queenie Lowery's house. Foster stated that Petitioner appeared "high" that day. During Foster's trial testimony, Foster displayed scars on her left knee, left thigh, shoulder, back of head, back, and left thumb to the trial court.

Lowrey testified that she heard knocks on her door. Lowrey opened the door and saw Foster. Foster informed her that she had been stabbed, and then fell on the landing to the stairs "like she was passing out." Lowrey put a towel on Foster's leg to stop the bleeding, and called an ambulance. Lowrey kept talking to Foster to prevent her from passing out. An ambulance arrived followed by the police. Foster took an ambulance to St. James Olympia Fields Hospital. Foster stayed at the hospital for a day and a half.

Foster presented as a Level 1 trauma alert with multiple stab wounds but normal vital signs. Dr. Keller was the trauma surgeon on call at St. James Olympia Fields Hospital. Dr. Keller's biggest concern was the back wound, which was considered a chest wound because of the potential for a collapsed lung, and the knee wound because of arterial bleeding which "could potentially be life threatening" if not treated. Although Dr. Keller performed multiple sutures on the knee wound, she did not completely close the wound so she could continue to observe the tissue. She also stitched the others wounds which ranged in size from one to three centimeters. Foster never lost consciousness during her 23 hours of observation. Petitioner did not testify at his trial.

The trial court found Petitioner guilty of attempted murder, aggravated battery, and aggravated unlawful restraint. The trial court specifically found that Petitioner's statements on that night, coupled with Foster's attempts to get the knife away from Petitioner and deflect the blows, more than sufficiently established attempted murder beyond a reasonable doubt even though no vital organs were damaged. The court also found that Foster suffered permanent disfigurement due to scarring and great bodily harm from the arterial bleeding. The court merged several counts and sentenced defendant to twenty years for attempted murder, five years for aggravated battery, and three years for unlawful restraint to be served concurrently.

Petitioner appealed his convictions to the Illinois Appellate Court, arguing that the State failed to prove that he had the specific intent to commit murder and that his convictions for aggravated battery and aggravated unlawful restraint should be vacated because they arose from the same act as the attempted murder conviction. The State countered that the trial court should have imposed consecutive sentences, not concurrent sentences under 730 ILCS 5/5-8-4(a). The Illinois Appellate Court affirmed the attempted murder conviction and aggravated unlawful restraint conviction, vacated the aggravated battery conviction, and remanded the case with instructions so that the trial court could change the twenty and three year sentences to consecutive rather than concurrent.

The trial court entered an order changing Petitioner's sentences from concurrent to consecutive. Petitioner filed a petition for leave to ...

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