The opinion of the court was delivered by: Michael P. McCuskey Chief U.S. District Judge
Petitioner, Antonio Sherrod, was convicted, following a jury trial, of carjacking with the intent to cause death and serious bodily harm (18 U.S.C. § 2119(3)), carrying and using a firearm to commit first degree murder (18 U.S.C. §§ 924(c)(1)(A)(iii), (D)(ii) and (i)(1)), and felon in possession of a firearm (18 U.S.C. § 922(g)(1)). He was sentenced to two consecutive life terms in the Bureau of Prisons. Following the Seventh Circuit's affirmance of his conviction on appeal, Petitioner filed this Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (#1) on January 14, 2008. Petitioner also filed a Rule 6 Motion Requesting Discovery under 28 U.S.C. § 2255 (#3). The government issued its Response (#11) on April 15, 2008 and Petitioner filed his Reply (#14) to the government's Response (#11) on August 25, 2008. For the reasons that follow, this court DENIES both Petitioner's Motion (#1) to Vacate, Set Aside, or Correct Sentence and Petitioner's Rule 6 Motion Requesting Discovery (#3).
Petitioner was convicted following a jury trial of carjacking with intent to cause death and serious bodily harm, using a firearm to commit first degree murder, and possessing a firearm as a convicted felon. He was sentenced to two consecutive life terms. On appeal to the Seventh Circuit, he challenged (1) the jurisdictional basis of his carjacking conviction; (2) the admission at trial of statements he made following his arrest; and (3) the determination of his sentence. United States v. Sherrod, 445 F.3d 980, 981 (7th Cir. 2006). The Seventh Circuit rejected all of Petitioner's arguments and affirmed his conviction. Following the affirmation of his convictions on appeal, Petitioner filed this 28 U.S.C. § 2255 motion. Here is a very brief summation of the facts of the case from the Seventh Circuit opinion:
"Around midnight on a March evening in 2003, 24-year-old Stephen Prendergast was driving his girlfriend, Reagan Booker from Matteson, just south of Chicago, to Champaign, where she attended college. Two girls, Reagan's sister Loren and Tiffany Sanders, both also students at the college, were also traveling to Champaign with Prendergast and Reagan, but they were in a separate car. Prendergast was driving a flashy 2003 Cadillac Escalade. They stopped at the Amoco station as Prendergast pulled the Escalade up to a pump. He got out of the car and entered the convenience store. When he returned and was about to enter his car, he was met by a man who turned out to be Antonio Sherrod. Sherrod confronted Prendergast, demanded his car keys, and shot him at point blank range with a 9 mm handgun. Ms. Booker ran from the Escalade as Sherrod commandeered it and drove off. Prendergast died a short time later of a bullet wound to his heart." Sherrod, 445 F.3d at 981.
On January 14, 2008, Petitioner filed his Motion to Vacate, Set Aside, or Correct Sentence (#1). The same day he also filed a Rule 6 Motion Requesting Discovery (#3). The government filed its Response (#11) on April 15, 2008 and Petitioner filed his Reply (#14) on August 25, 2008. Both of Petitioner's Motions, along with his Reply, and the government's Response are lengthy detailed documents.
Defendant's trial began on October 13, 2004. The first government witness called was Shay Guttendorf. Guttendorf was employed at a cashier at the Amoco gas station in Kankakee on the night of the murder, March 16, 2003. On the night in question, Guttendorf was on duty when the victim pulled up in an Escalade. There was a female passenger in the Escalade, on the passenger side, and a second car that pulled up with the Escalade. The second vehicle was red and the Escalade's female passenger seemed to know them, as she was chatting with them. The Escalade was "cream or silver" and the driver came in to pay for the gas he had pumped. The driver came in and paid $20 for the gas, went out and pumped the gas, came back in to use the restroom and purchase a cigar and then left. As he returned to the Escalade, a gentlemen appeared and shot the driver. The shooter then took off in the Escalade as the driver ran about ten feet and fell to the ground. Guttendorf did not see the shooter until the victim returned to his Escalade. Guttendorf described the shooter as 5 foot 7 inches tall, dark skin, thin, wearing a dark black hooded sweatshirt with dark blue jeans. Guttendorf called 911 following the shooting. The female passenger in the Escalade ran out of the vehicle around the back following the shooting.
The government then played for Guttendorf and the jury surveillance video from the gas station of the shooting incident. The video showed an Escalade arrive and circle around the gas pumps. Guttendorf identified Petitioner in open court as the shooter who killed the victim. Guttendorf also picked the Petitioner's photograph out of a photo lineup as being the shooter in an interview with Lieutenant Kane of the Kankakee police in December 2003. She also gave a statement that she did see the face of the man who did the shooting and saw his hands and did not believe he was wearing gloves because the skin tone on his hands matched that of his face.
Following Guttendorf's testimony a stipulation was entered into the record that Petitioner had been convicted of a crime punishable by more than one year in prison prior to March 16, 2003. The court then gave the jury a limiting instruction so the jury would only the consider that evidence as it relates to count 3 of the indictment, and not counts 1 or 2.
Next to the stand was Lakesia Winfield. Winfield had known Petitioner all her life. They began dating in March 2003 and had been good friends before that. Petitioner's best friend in March 2003 was Derrick Crawford. Crawford was not employed. Petitioner did not have a car. Crawford, however, did own a car. Crawford owned an older model white "Grand Marquis." Crawford's girlfriend was Dawn Ward, who also lived in Kankakee. Crawford also drove a brown/gold/tan Dodge Intrepid owned by Ward every day. The person Winfield saw most often riding with Crawford in the gold Intrepid was Petitioner. Petitioner would be in the front with Crawford. On cross, Winfield admitted she had seen Joe Taylor with Crawford in the Intrepid at times.
Next to the stand was Earl Cote, a veteran officer of the Kankakee police department. On the evening of March 16, 2003, Cote was off-duty at his home. He received a call to go to the Amoco gas station in question and found other officers present when he arrived. He and the other officers began to search the immediate area for evidence related to the shooting. A shell casing and blood were recovered at the gas station. After Cote secured the store surveillance video tape and evidence recovered at the scene, he then resumed his investigation in other areas in close proximity to the Amoco. The Escalade was recovered in close proximity to the crime scene. Also found in the area of the Escalade was the gun and a coat. The police located the Escalade through the use of the "OnStar" tracking system in the car. When the Escalade was located the passenger window was down, and the interior was clean with no apparent damage. The keys were not in the vehicle and it was locked. The dash area of the vehicle had stereo equipment and what looked to be a flat screen television and none of those items appeared to be disturbed.
The gun and coat were discovered nearby. The handgun was a 9 millimeter semiautomatic pistol made by High Point. While at the location where the car, gun, and jacket were found, Cote was advised that a bullet had been recovered from the victim Steven Prendergast, so he traveled to the hospital and secured the evidence. Sometime after the initial investigation on March 16-17, 2003, Cote met with Illinois State Police crime scene investigator Sgt. Robert Deel. Deel processed the interior and exterior of the Escalade for evidence.
On cross examination, Cote noted that to get from the area where the Escalade was discovered to where the gun was discovered you would have to use an alley and climb a fence. Also, on the sidewalk near where the gun and coat were found, there were no muddy footprints. To Cote's knowledge, 6 to 8 officers were on the scene where the handgun and coat were found and two were at the Escalade's location. Also, when Cote arrived at the Escalade the passenger window was down, however on the Amoco station video, as it is being driven away, the window appears to be up.
Next to the stand for the government was Barry Thomas, a lieutenant with the Kankakee County sheriff's department. Thomas responded at about 1:15 am on March 17, 2003, to a call in the area of the 600 block of Wildwood Avenue in Kankakee near the Amoco gas station. He went down the east alley of the 600 block of Wildwood and located a vehicle that the police were looking for behind an abandoned boarded-up house. He found a white Cadillac Escalade parked in the back yard of the location. He called it in to dispatch and a lot of other cars began arriving.
Next to the stand was Sgt. Robert Deel of the Illinois State Police, a crime scene investigator. Deel covered the entire Escalade looking for fingerprints. He lifted prints from the interior door handle of the driver's door, steering wheel, inside of the driver's door, and left rear passenger door. The lifted prints were then turned over to Sgt. Cote.
The government called Lyle Boicken to the stand. Boicken was a forensic scientist in the field of forensic biology and forensic DNA analysis with the Illinois State Police Crime Laboratory in Joliet. Boicken conducted a DNA analysis on a black jacket in connection with the Steven Prendergast murder. Boicken "taped" the jacket to collect any hairs or other materials that could be used to identify DNA. He then sent it on to another section for those materials in the tape to be analyzed for DNA.
Walter Sherk was next to the stand. Sherk was a forensic scientist in the field of firearms/tool marks identification for the Illinois State Police Forensic Science Command Lab in Joliet. Sherk tested the bullet recovered from the body and the cartridge from the crime scene to see if they were fired from the gun recovered in the vicinity of the Escalade. Sherk's testing concluded that the bullet and cartridge did indeed come from the gun recovered by police and could have come from no other gun in the world.
Later called to the stand was Terry Melton, president and CEO of Mitotyping Technologies, a company that does a kind of DNA testing known as mitochondrial DNA testing. Melton conducted a mitochondrial DNA analysis on Petitioner's known hair sample and suspected hair sample recovered from the black jacket found near the gun, and found that Petitioner and his maternal relatives could not be excluded as the donor of the found hair. She was 95% sure that no more than a quarter of a percent of North Americans would have that type of DNA. Mitochondrial DNA is saved for such things as hair samples, on which nuclear DNA testing cannot be performed.
Next to the stand was Tiffany Sanders, a friend of Reagan and Loren Booker who attended school with them at Parkland College in Champaign. Sanders traveled back to Parkland from her home in Chicago with the victim and the Bookers on March 16, 2003. Sanders was in Reagan Booker's mother's red car with Loren and Reagan was riding with the victim in his car. They stopped at the Amoco in Kankakee at around 11:00 pm. When they stopped at the Amoco, Sanders was driving with Loren Booker in the passenger seat. Upon arrival, the victim parked at one side of the pump and Sanders parked on the other side. Reagan Booker came over to talk to Sanders and her sister while the victim went into the Amoco. When he came out to pump gas, Reagan went back over to him. The next thing Sanders recalled was the victim going to get into the driver's seat and Reagan going to the passenger seat. Sanders then heard a gunshot and looked over to see the victim collapsing. Sanders was only able to see part of the face of the shooter, who she described as African-American. She recalled he was wearing a black hooded sweatshirt. She saw the keys fall from the victim's hand as he was hitting the ground. The shooter then got into the Escalade and drove off. She was able to see the shooter's face at an angle. In December 2003 an officer (Lieutenant Kane) showed her a number of photographs. She could not make a positive identification of the shooter in the lineup of shots she was shown.
On cross examination defense counsel presented Sanders with a statement she had given police dated March 17, 2003, in which she says that after she saw the shooter snatch up the victim's keys from the ground, she heard another gunshot, and then saw the shooter jump in the Escalade.
Right at that same time, according to Sanders's statement, she noticed another black male over by the back of the Escalade wearing a black floppy hat crouching down behind the vehicle when the second shot went off.
Forensic pathologist Bryan Mitchell testified that the victim was killed by a single gunshot wound.
Larry Gray testified next for the government. Gray has a cousin named Joe Taylor who lives in Kankakee. Gray lived alone at a residence on North Roosevelt road in Kankakee. Taylor, who also lived in Kankakee, would stop by to visit Gray from time to time at his home. Through Taylor Gray came to know the Petitioner. Gray moved to the North Roosevelt address in November 2002. Gray also had known, most of his life, a cousin of Taylor's named John Lee. In January 2003, at his home, Taylor and Lee were visiting. Lee brought a firearm over to Gray's house. Gray described it as a "black gun" that was an automatic. Lee gave the gun to Taylor. Taylor then put the gun in a black "sofa chair" in Gray's house and left it there. Lee and Taylor left, but the gun remained. Maybe a month later Petitioner came over to Gray's house. Petitioner came over looking for someone, but the only people in the house were Gray and Petitioner. When Petitioner came in, Gray was in the shower and told Petitioner to wait as got out of the shower. Petitioner, who was in the living room with the chair containing the gun, told Gray, who was getting out of the shower, that he would be right back. Petitioner never came back. The next day Gray looked in the area of the sofa chair for the firearm but could not find it. No one besides Gray had been in his home and had access to the gun since Petitioner had been there. No one else had come into the home since Lee had brought the gun over and been in the home while Gray was there but out of their sight. When shown the gun used in the shooting of Prendergast, Gray identified it as the gun that Lee had brought to his home and had gone missing following Petitioner's visit.
Next to the stand was Loren Booker, older sister of Reagan Booker. The Booker sisters attended Parkland College together in Champaign in the spring of 2003. Tiffany Sanders lived in Champaign with them. They were all from the south suburbs of Chicago. Reagan's boyfriend, victim Steven Prendergast, lived in Matteson, Illinois, about 30 to 45 minutes south of Kankakee. On the day of the murder, Loren was riding with Tiffany Sanders from Chicago to Champaign and Reagan was riding with the victim in his Cadillac Escalade. When they pulled into the Amoco station in Kankakee Tiffany was driving and Loren was a passenger. Both cars parked parallel to each other on opposite sides of a gas pump. Reagan came over to Loren's car and they both talked while the victim went into the convenience store. The victim came out and then went into the store a second time to use the restroom.
Reagan and the victim were about to get back into the Escalade and drive away when the victim was shot. The shooting happened as Tiffany and Loren were pulling away from the gas station to get back on the road. As they were pulling away, Loren heard the shot, looked back, and saw another person standing where the victim was that was not Reagan. She described the shooter as a "darker guy," about the same size and height as the victim but smaller. He was wearing a hooded sweatshirt, skullcap, gloves, jeans, and black shoes. Loren saw the shooter from his profile side. As the victim fell to the ground, the shooter stood over him. Loren saw the victim hand the shooter his keys and that the shooter's gun was an automatic. She saw the shooter aim at the victim again, but did not hear a gun go off. She saw the shooter emerge from the passenger side of the truck behind the victim's Escalade. On cross examination defense counsel asked Loren about the gloves she said the shooter wore and his dark skin complexion.
Next to the stand was Reagan Booker. She and the victim had been dating since 2001. The victim drove a Cadillac Escalade that he had gotten just three months prior to the shooting. The vehicle's interior had a television "flip-down" from the ceiling and a television/radio located in the front of the car between the driver and passenger so that it was visible to back seat passengers. Tiffany Sanders and her sister Loren were behind them in Reagan's mother's Pontiac Grand Am.
At the Amoco gas station in Kankakee, the victim got out to pay for gas. She got out of the Escalade to talk to her sister and Sanders. After the victim came out of the Amoco a second time, they both began to get back in the Escalade. Reagan went around to the passenger side and began to get in the car when she saw someone approach the victim. The victim was almost in the car, with one foot outside. The person who approached the victim was dark, wearing a black hat and black Carhart coat. She heard the victim and stranger yelling, and she noticed the stranger had a black gun that was not a revolver. The victim exited the vehicle and Reagan heard a shot. She ran around to the other side of the vehicle (around the back). As she approached the driver's side of the Escalade she saw the shooter and the victim standing near the front. The victim had his back to Reagan and the shooter was facing her. Since he had a hat on, Reagan could not see the shooter's hair, only his face. He had a dark skin tone. She saw the shooter ask the victim for the keys. He was not wearing gloves. After the victim gave the shooter the keys the shooter leapt into the Escalade, made a left hand turn, and exited the Amoco. She did get a good look at the shooter's face. Reagan then made an in-court identification of the Petitioner as the man who shot Steven Prendergast on March 16, 2003. In November 2003 Reagan identified Petitioner in a photo lineup. She identified the jacket recovered near the abandoned Escalade as the one the shooter wore.
On cross examination Reagan admitted that she gave police a March 17, 2003, statement in which she said she was not certain she could identify the shooter, all she knew was he wore a black skull-cap and coat and had dark skin. She did not get a good look at his face. However, she did say that she "got a look" at the shooter's face.
Next to the stand was Karen Heard, an Illinois State Police forensic scientist who lifted latent fingerprints from the victim's Escalade. She found no fingerprints on the gun recovered near the Escalade. She found 10 latent fingerprint impressions from car that she found suitable for comparison. Petitioner's fingerprints were found on the interior door handle of the driver's side door. Petitioner's fingerprints and palm prints were found on the Escalade's steering wheel.
Next to the stand was Joe Taylor. Taylor is a cousin of Larry Gray. Taylor was close to Gray and would probably see him every other day. Taylor remembered that Derrick Crawford, whom he knew, had a girlfriend named Dawn. Taylor was also familiar with his cousin, John Lee. Taylor received a gun from Lee around January 2003. He received the gun from Lee when he was over at Larry Gray's house. Lee offered to sell the gun to Taylor, but Taylor could not afford it. It was a gray-black nine millimeter gun. Lee then told Taylor he could keep the gun and just pay him later. Taylor then told Gray to keep the gun for him and Gray put it in a back room. Since he told Gray to hide the gun, Taylor saw it a number of times thereafter at various points in the house, such as the bedroom or front living room and either he or Gray would be handling it.
Taylor had known Petitioner for more than five years. He knew Petitioner to have a girlfriend named "Kesia." Probably about a month after Lee gave him the gun, the gun came up missing. Taylor asked Gray about it and Gray searched the house, realizing it was gone. Gray told Taylor that Petitioner had been to his house and the he believed Petitioner was the one who took the gun. Gray told Taylor that Petitioner had entered his house while he was in the shower and had discussed taking a ride somewhere. It was after that incident that Gray noticed the gun was missing. After Gray told Taylor that he believed Petitioner had taken the gun, Taylor spoke with Petitioner by phone. Taylor asked Petitioner if he had the gun and Petitioner said no. Taylor then told Petitioner that Gray believed he, Petitioner, was the last one at his home and the believed Petitioner had taken the gun. Petitioner again denied taking the gun. Petitioner then asked Taylor what kind of gun it was and that he would look around and probably get the gun back. Taylor identified the gun recovered in the area of the Escalade as the gun that John Lee had given him and he had left with Larry Gray.
Taylor was cross examined about his cooperation with the government and how that would factor into his upcoming federal sentencing. Taylor was also cross examined about a Dodge Intrepid, the same car owned by Derrick Crawford's girlfriend Dawn Ward, pulling away from the Amoco station after the victim's murder. Taylor denied being in the Intrepid that night.
The government's next witness was Kevin Cronin, a special agent with the Bureau of Alcohol, Tobacco, and Firearms. Cronin participated in a photographic lineup identification by Regan Booker on November 4, 2003. The lineup was organized by Lieutenant Patrick Kane of the Kankakee police department.
Next to the stand was Lieutenant Patrick Kane of the Kankakee police department. On March 17, 2003, Kane responded to a call at the Amoco gas station at about 12:30 in the morning. As part of his investigation, he determined that Dawn Ward owned a gold or tan colored Dodge Intrepid prior to March 16, 2003. Kane believed this was the vehicle seen on the security camera footage from the night of the murder from which it was believed that the shooter emerged. The nine millimeter gun that was recovered did not have a ready bullet in the chamber. To Kane, this indicated one of two things: either the weapon had been unloaded and then reloaded in the magazine but not one bullet was put in the chamber or that there ...