The opinion of the court was delivered by: Reagan, District Judge
A. Introduction and Procedural Background
A Massac County jury convicted petitioner Jeffery Morrison on November 17, 1999 of the first-degree murder of Roxanne Colley, two counts of aggravated kidnaping of Colley's twin sons, one count of armed violence and one count of unlawful possession of a stolen motor vehicle.*fn2 (Resp., Ex. A.) The court sentenced Morrison to forty years imprisonment for first degree murder, ten years for each kidnapping count, and twelve years for armed violence. Six-and-a-half years later, Morrison petitioned the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking a new trial. United States District Judge William Stiehl promptly referred the case to Magistrate Judge Clifford J. Proud (Doc. 4), who reported and recommended on February 26, 2009 that the Court deny Morrison's petition (Doc. 43).
Donald Gaetz, the warden of the facility incarcerating Morrison, timely objected to Judge Frazier's report and recommendation. (Doc. 43.) Morrison filed his objections late (Doc. 47) along with a motion for an extension of time (Doc. 46). The Court granted him leave to file late, and in accordance with the order he filed amended objections. (Doc. 54.) Because timely objections were filed, the Court must review de novo those portions of the Report to which specific objections have been made. 28 U.S.C. § 636(b)(1)(B) (2006); Fed. R. Civ. P. 72(b); S.D. Ill. R. 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may accept, reject, or modify the recommended decisions, or recommit the matter to the Magistrate Judge with instructions. Fed. R. Civ. P. 72(b); S.D. Ill. R. 73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999). Finding the objections of Morrison without merit and that of Gaetz moot, the Court will overrule both Gaetz's objection and Morrison's objections and adopt Judge Proud's report and recommendation.
1. Evidence Before the Illinois Courts
The relevant evidence from the record before the Illinois courts is as follows. On October 23, 1998, Roxanne Colley died at her home in Brookport, Illinois, from a gunshot wound to her back. Roxanne was the girlfriend of Morrison's brother, Glen Morrison. At the time of the murder, Glen had been staying at Colley's home with Roxanne and her twin sons for about a month.
R.D. Riley, one of Colley's friends, testified that he lived near Hickory, Kentucky. He said that he had helped Colley care for her twin sons for approximately two years after their birth. Riley testified that on October 22, 2009, the day before the murder, Morrison, Glen, Colley, and her twin sons Alex and Eugene arrived at his home in Colley's vehicle to pick up a heating stove Riley had given to Colley. According to Riley, it was the first time Glen had been inside his home, though Morrison had spent the night there two or three times (Trial Tr. C289, C293). Because the stove would not fit in the car, Colley drove Riley's pickup truck with the stove in the bed. Riley said he rode with Colley, while the others followed in Colley's car. Riley and Glen spent the night at Colley's house, but Morrison did not. Riley said that early the next morning they picked up Morrison, then drove Riley home. After arriving home, Riley fed his dogs and hogs. He said that as he came around the corner of his house, he saw Morrison jumping into Colley's car very quickly with something wrapped up in a red shirt or towel, which he placed in the back seat or on the floorboard.
Riley kept a deer rifle in his bedroom closet behind some clothes. He testified that he noticed the rifle was missing a few days later. Riley did not give anyone permission to take his gun. Riley would later identify the murder weapon as his gun.
Glen testified that Colley was his girlfriend and that he had been staying at her home for approximately one month. Glen admitted that he drank a vast amount of beer and a fifth of whiskey the day before the murder. Glen's account of the day before the murder generally mirrors Riley's account with the following exceptions: Glen testified that defendant did not accompany them on the first trip to Riley's home to pick up the stove. In Glen's version, the party consisted of Colley, Glen, Colley's mother, Colley's mother's boyfriend, and the boys (Trial Tr. C445). Glen also admitted that the night before the murder he passed out drunk at Colley's kitchen table, got into an argument with Colley, and beat her up after she slapped him.
He testified that Riley and the boys were not in the kitchen during the fight.
Glen testified that the morning of the murder he and Colley went to a store to purchase more beer, then picked up Morrison and returned to Colley's house. By this time, Glen had already consumed a "couple six packs." Glen said that he and defendant continued drinking beer and whiskey, but Colley and Riley did not drink anything. Glen testified that Colley then drove Riley home in his truck, while Morrison drove Colley's car with Glen and the boys. After dropping off Riley, Colley drove the rest of the group to Paducah. Glen went to a bar and then walked to Colley's mother's boyfriend's house.
Glen testified that Colley drove everyone back to her home that afternoon. Glen said he passed out from his drinking for a while after arriving at Colley's home. Glen recalled that he awoke and heard Colley accuse Morrison of stealing Riley's gun. He said he then heard Morrison threaten to shoot her, to which she replied he did not have the nerve to shoot her. Glen says Morrison was in the middle of the living room when he shot Colley, who was walking out the front door at the time. Colley was shot in the back. Glen said she fell outside. Glen testified that Morrison then wiped the gun off, pointed it at him, and told him he would blow his head off too. Glen said he and Morrison picked up Colley and placed her inside the house. Glen claims no more than two minutes passed between the beginning of the argument and the time they carried Colley's body inside.
Glen said both of the twins were in position to see Morrison with the gun, as one was in the hallway and the other was in the living room. Glen testified he suggested that they take the boys to Colley's mother's house. He said Morrison said they were taking the boys as hostages. Glen testified that when they went outside, one of the boys yelled that Morrison shot his mother and that she was dead.
Glen further testified that they left in Colley's car with the boys in the back seat. He said the gun, which he had never seen before, was between the front seats. Glen said he saw a sheriff's car near Paducah, Kentucky, and hit the steering wheel causing the car to swerve so that the sheriff's car would stop them. Glen testified that he told police at the scene of the traffic stop that Morrison had shot Roxanne.
During questioning in Paducah after the traffic stop, Glen told police that Morrison must have purchased the gun at a pawn shop in Paducah. Glen claims that because everything was "hazy" that night due to his drinking, he did not remember until later that Roxanne had accused Morrison of taking Riley's rifle.
Glen was initially charged with Colley's murder, but the state dismissed all charges against Glen regarding the murder and the kidnapping of Colley's children. Glen agreed to plead guilty to domestic battery for hitting Colley and to testify against Morrison.
Douglas McDonald testified that on October 23, 1998, he lived across the street from the victim. At about six o'clock p.m. that evening, Douglas heard a gunshot from the direction of Roxanne's home. Douglas testified that when he looked toward the source of the sound of the gunshot, he saw Morrison and his Brother Glen pick up Roxanne's body and carry her inside her home. Douglas testified that he got on his bicycle and rode to the front of Roxanne's house. Once there, he witnessed the Morrison brothers getting into Roxanne's vehicle. Douglas testified that one of the brothers got out of the vehicle, went back into the house, and returned with Colley's four-year-old twin sons. Douglas interpreted the behavior of the boys as indicating that they did not want to go with the Morrison brothers. Before the brothers drove away with the boys, Douglas said he heard one of the boys say "Jeff shot my mommy -- shot her dead." Douglas testified that he went inside Colley's house and found her dead.
Douglas admitted that although he had met Morrison and Glen, he did not know them well enough to tell them apart. Douglas stated that he takes medication three times a day for pain and a nervous condition, but claimed that he had not taken any medication the day Colley was murdered. Douglas admitted he had convictions for burglary.
Andrea McDonald, Douglas's niece, testified that she thought she heard a door slam around the time Colley was murdered. Andrea said she saw Colley "flying" out the door. Initially she approached Colley's yard to help her. A passerby told Andrea that what she heard was a gunshot. Andrea testified that she saw Morrison wiping his hands off with a white rag and pulling Colley back inside her home. Although Andrea admitted she should not tell Morrison and Glen apart, she agreed that she was "absolutely certain" that it was Morrison that came out of the front door of the house.
Eric Augustus was a McCracken County sheriff's department special deputy on October 23, 1998. He and Deputy Kevin Garland pulled over Colley's car after it swerved into their lane, crossed the center line, and "went off the corner of the street." Augustus testified that Morrison was driving the vehicle, Colley's boys were in the back seat, and Glen was sitting in the passenger seat. Augustus saw the rifle next to Glen on the passenger side of the vehicle.
Illinois State Police Sergeant Alan R. Burton testified that he interviewed Glen the evening of October 23, 1998. Burton agreed that Glen did not tell him about an argument between Morrison and Colley over Riley's gun immediately before the shooting. Glen told Burton that Morrison might have purchased the gun from a pawn shop in Paducah. Burton said that Glen told him that Morrison said he and Colley had been seeing each other while Glen was out of town working. Glen claimed he did not believe Morrison. Burton said Glen also mentioned to Burton that various members of his family were angry with each other because Morrison's girlfriend, Rose Ulmer, had called the police on Glen. Burton testified that Glen appeared to have consumed a lot of alcohol the night Burton took his statement. Burton said Glen seemed very angry with Morrison over Colley's death and made several threatening remarks about what he would do to him.
Bruce Warren, a forensic scientist with the Illinois State Police, testified that he found no fingerprints on the rifle or a spent shell found in the car.
Dr. Mark LaVaughn performed an autopsy on Roxanne. He determined that she died from a single gunshot wound to the back, and estimated that she died one to two minutes after she was shot. He estimated the barrel of the gun was about three feet from her back. Roxanne had no drugs or alcohol in her system when she died.
2. Affidavit of Shawn Hollowell
In addition to the evidence before the Illinois courts, Morrison files with his amended petition the affidavit of Shawn Hollowell (Doc. 42, Ex. 1). The Hollowell affidavit bears a signature reading "Shawn Hollowell," but is not notarized although it is made "under penalty of perjury." Hollowell was apparently incarcerated with Morrison at the Menard Correctional Center. Hollowell has multiple felony convictions, including convictions for forgery. (See Doc. 56 at 9; Doc. 50 at 6.) The Hollowell affidavit claims that Hollowell spoke with Glen multiple times while they were incarcerated in the Massac County Jail. Glen said he had nothing to worry about since he had set it up to blame his brother. According to the affidavit, Glen revealed that his motive was to get even with Morrison and Colley, Glen's girlfriend, for sleeping together.
The Hollowell affidavit indicates that Glen said he stole the gun, and was concerned that the police would discover the gun was not from a pawn shop as he had initially told the police. The affidavit indicates that Glen bragged about covering up his mistake by telling police that Morrison stole the gun and falsely claiming he wrote a letter as soon as he remembered. The affidavit also indicates that Glen expressed concern about beating up Colley the night before he shot her. Finally, the affidavit says that ...