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Harper v. Shaw

August 27, 2009

WILLIE J. HARPER, PETITIONER,
v.
FRANK SHAW, WARDEN,*FN1 RESPONDENT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

On December 4, 2008, this court received a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody (#1) from Petitioner, Willie J. Harper. Petitioner also sent a Petition for Leave to Proceed in Forma Pauperis (#2) and a Motion to Appoint Counsel (#3). On December 30, 2008, this court entered an Order (#9) which denied Petitioner's Petition for Leave to Proceed in Forma Pauperis and allowed Petitioner 30 days to file the required filing fee. On January 6, 2009, Petitioner filed a Motion for Leave to Stay Habeas Petition and Hold in Abeyance (#10). On January 26, 2009, Petitioner paid the $5.00 filing fee and the Petition (#1) was considered filed in this court. On January 29, 2009, this court entered an Order (#11) which denied Petitioner's Motion to Appoint Counsel (#3). This court concluded that Petitioner had not shown he was entitled to appointed counsel in this case.

On April 20, 2009, Respondent, Frank Shaw, filed his Answer and Response to Motion to Stay (#15). Petitioner subsequently requested, and was granted, extensions of time to file a Reply. On August 24, 2009, Petitioner filed a second Motion to Appoint Counsel (#19). Petitioner did not include any new basis for his request for the appointment of counsel. On August 25, 2009,

Petitioner filed a Motion for Leave to File Reply Brief (#20), with a Reply Brief attached.

This court has carefully and thoroughly reviewed the arguments of the parties and the documents provided by the parties. Following this careful review, this court rules as follows: (1) Petitioner's Motion for Leave to File Reply Brief (#20) is GRANTED and this court has considered the attached Reply Brief in making its ruling in this case; (2) Petitioner's Motion to Appoint Counsel (#19) is DENIED; (3) Petitioner's Motion for Leave to Stay Habeas Petition and Hold in Abeyance (#10) is DENIED; and (4) Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody (#1) is DENIED.

BACKGROUND

Petitioner married Tammy Hackl on February 14, 2000. On February 18, 2000, the police found Hackl dead in the apartment she shared with Petitioner. Petitioner was charged with first degree murder, and a jury trial was held in January 2002. At trial, Petitioner testified that, on February 15, 2000, he drank large amounts of alcohol and smoked crack cocaine. He testified that he argued with Hackl and they struggled with a knife. He also testified that he woke up the next morning and found Hackl dead. The evidence at trial showed that Hackl died of manual strangulation and severe blunt-force injuries to the head.

Petitioner argued that he was not guilty of first degree murder because he was intoxicated at the time of the crime. He testified as to the amount of alcohol he consumed the evening of the killing and various witnesses testified that they saw Petitioner drinking alcohol on February 15, 2000. Daniel J. Brown, a toxicologist, gave his opinion that, at the time of the incident, Petitioner had a blood alcohol concentration of 0.579. He testified that he based this opinion on Petitioner's height and weight and the amount of alcohol Petitioner consumed, based on information Dr. Brown received from investigator William Clutter and Petitioner's counsel. Dr. Brown testified that that amount of alcohol would have been fatal or would have rendered Petitioner comatose, leading to death. Dr. Brown testified that he doubted if Petitioner could talk or walk.

On January 29, 2002, the jury found Petitioner guilty of first degree murder. On March 11, 2002, Petitioner was sentenced to 60 years in the Illinois Department of Corrections. Petitioner appealed and, on December 2, 2004, the Illinois Appellate Court, Fourth District, affirmed his conviction. People v. Harper, Case No. 4-02-0295 (2004) (unpublished order). In its 34-page Order, the appellate court first rejected Petitioner's argument that the State failed to prove him guilty of first degree murder beyond a reasonable doubt because the State presented insufficient evidence of the requisite mental state. The appellate court concluded that sufficient evidence supported the jury's verdict. Harper, Case No. 4-02-0295, at p.13. The court stated:

The jury heard evidence of other acts of violence by defendant against Hackl that the court admitted for the purpose of showing intent, motive, absence of accident, and absence of innocent frame of mind. In addition, defendant's testimony revealed he had a memory of many of the events leading up to the actual crime, which the jury could have viewed as evidence that defendant was not so intoxicated that he was incapable of forming a specific intent.

Harper, Case No. 4-02-0295, at pp.13-14. The court also noted that evidence as to the amount of alcohol Petitioner consumed conflicted, but "determinations of credibility are for the jury." Harper, Case No. 4-02-0295, at p.14.

The appellate court also rejected Petitioner's remaining arguments and found that: (1) the trial court did not abuse its discretion by limiting the testimony of Dr. Brown because the proposed testimony "would be based on mere speculation;" (2) the trial court did not abuse its discretion by barring the testimony of Dr. Jonathan Hess because Dr. Hess's proposed testimony bore no relevance to the issues of Petitioner's intoxication defense or second degree murder and would not support an involuntary manslaughter instruction; (3) the trial court did not commit reversible error by refusing to instruct the jury as to second degree murder or involuntary manslaughter because the evidence did not support giving either instruction; and (4) the trial court did not abuse its discretion by imposing a sentence of 60 years for first degree murder especially given the fact that the murder of Hackl constituted Petitioner's twentieth criminal conviction and twelfth felony conviction. Harper, Case No. 4-02-0295, at pp.14-34.

Petitioner filed a petition for leave to appeal in the Illinois Supreme Court which was denied on March 30, 2005. In August 2005, Petitioner filed a post-conviction petition in the circuit court of Macon County. In February 2006, Petitioner filed an amended post-conviction petition. On June 27, 2006, the trial court dismissed the petition. Petitioner filed a motion to set aside or vacate the June 2006 dismissal order, which the court later denied. Petitioner appealed and the appellate court affirmed on June 6, 2008. People v. Harper, Case No. 4-07-0235 (2008) (unpublished order). Petitioner filed a petition for leave to appeal which was denied on November 26, 2008.

On December 4, 2008, Petitioner sent his Petition under § 2254 to this court. On January 26, 2009, Petitioner paid the $5.00 filing fee and his Petition under §2254 (#1) was considered filed. In his Petition, Petitioner raised three grounds for relief: (1) the evidence was insufficient to convict Petitioner of first degree murder; (2) the trial court erred in barring Petitioner from presenting the ...


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