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United States ex rel McIntosh v. McCann

July 27, 2009

UNITED STATES OF AMERICA, EX REL., NORMAN MCINTOSH, PETITIONER,
v.
TERRY MCCANN, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

The Petitioner is incarcerated at the Stateville Correctional Center where he is in the custody of the warden of that facility, Frank Shaw. Petitioner was convicted, after a bench trial, of first degree murder of Devon Thompson, attempted first degree murder of James Hobson, aggravated discharge of a firearm, and aggravated battery. He received a forty-five-year sentence of imprisonment, which included a statutorily mandated twenty-five year sentence enhancement for personally discharging a firearm. Petitioner has filed this habeas petition which raises three claims:

1. His right to confront witnesses was violated when the state trial court limited cross-examination of Darius Thompson about his potential for bias due to pending criminal charges against him;

2. The twenty-five-to-life firearm enhancement of 730 ILCS5/5-8-1(a)(1)(d)(iii) violates the Due Process and Proportionate Penalty Clauses; and

3. Trial counsel was ineffective for failing to move to suppress identifications due to suggestibility or unreliability.

Respondent concedes that none of these claims have been procedurally defaulted.

II. DISCUSSION

The State Appellate Court affirmed the trial court's decision and sentence with an unpublished decision. It contained a factual summary of the testimony before the trial court with which Petitioner does not take issue (except, of course, to deny his guilt).

The summary is as follows:

Early in the morning on November 23, 2001, James Hobson, Devon Hobson, Darius Thompson, and Aaron Smith went to the corner of 71st and Throop in order to "stick up drug dealers." They were armed with a.22 caliber revolver. According to James, [Petitioner] pulled up in a vehicle with a "silverish looking" primed-up door and asked if they had any marijuana. Devon then pulled a gun on [Petitioner] and demanded money. Darius and Aaron opened [Petitioner]'s car door and took $20, some CDs, and a few bags of cocaine. James took [Petitioner]'s keys out of the ignition. After [Petitioner] got out of the car and started walking away, James threw the keys back to [Petitioner] and said "man, we don't want your car." [Petitioner] then got back into the car and started driving away. As he was driving away, [Petitioner] leaned out of the window of the car and said he was a Vice Lord and would be right back to kill all of them.

While the group was walking near the corner of 59th and Honore, James noticed [petitioner] sitting in a car. [Petitioner] pulled his car up next to the group and started shooting. James began to run but stopped when his brother Devon was shot and fell to the ground. [Petitioner] then shot James in the chest. While Devon was trying to crawl away, [petitioner] backed up his car next to Devon, stuck his gun to the back of Devon's head, and shot him in the chest. James testified that he had the.22 caliber revolver in his jacket during the shooting. After James was shot in the chest, he bent over and the gun fell out. James then handed the gun to Darius and Aaron and told them to disappear.

James identified [petitioner] in a photo array and line-up as the person who killed Devon. James said he did not initially tell the police he had robbed someone before the shooting. James also admitted he was a member of the Black Disciples gang. James testified he had "[a]bout four or five" prior convictions.

Darius and Aaron also identified [petitioner] in a line-up as the person who shot Devon. Darius admitted he was a member of the Black Disciples gang.... Iashiskala Sims testified that on November 24, 2001, she was with [petitioner]. According to Sims, she and [petitioner] woke up together. Sims then took [petitioner] to Mercy Hospital. After they left the hospital, Sims and [petitioner] returned to her house where they stayed for the remainder of the day. Sims testified [petitioner] was never out of her sight. Edgar Sarmiento, Jr., a nurse at Mercy Hospital, testified [petitioner] was treated at the hospital on November 24, 2001.

[Petitioner] was discharged from the hospital at 7:05 a.m.

The trial court found [petitioner] guilty of the first degree murder of Devon Thompson, the attempted murder of James Hobson, aggravated discharge of a firearm, and aggravated battery. The court noted that upon sentencing, all counts of the same class should merge. At the sentencing hearing, after reviewing the pre-sentence investigation report and hearing arguments of counsel, the trial court sentenced [petitioner] to 45-years [sic] imprisonment for first degree murder, which included an additional statutorily dictated 25-year sentence for personally discharging a firearm. The trial court also sentenced ...


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