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United States ex rel Clay v. Gaetz

February 4, 2010


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


This case is before the court on the petition of Roosevelt Clay ("Clay") for habeas corpus relief pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition for habeas corpus [1] is denied.


Clay was convicted in 1988 for the 1975 murders of Dr. Lawrence Gluckman and two of Dr. Gluckman's patients, Minnie and Tressie Harris. People v. Clay, 884 N.E.2d 214, 217 (2008). In 2004, defendant filed a post-conviction petition, alleging that newly discovered evidence disclosed that Frank Love, a key witness for the prosecution, had lied about his motive for testifying at defendant's trial. Id. The trial court granted Clay's post-conviction petition and ordered a new trial. Id. At the conclusion of the second trial, which took place in December of 2005, the jury found Clay guilty of three counts of murder, and the court sentenced him to concurrent 60 to 120 year prison terms. Id. at 220. Clay appealed, and the Illinois Appellate Court, First District, affirmed the judgment on February 19, 2008. On May 29, 2008, the Illinois Supreme Court denied Clay's petition for leave to appeal (PLA). People v. Clay, 889 N.E.2d 1118 (2008). Clay did not file a petition for certiorari (Pet. at 3), nor has he filed any collateral attacks in state court challenging the second conviction or sentence (Pet. at 4-5). Clay filed the instant habeas petition on February 18, 2009, and is currently in the custody of Donald Gaetz, Warden of Menard Correctional Center, identified as prisoner number L40191.

I. Factual Background

For purposes of federal habeas review, "a determination of a factual issue made by a State court shall be presumed correct," and "the applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e). Clay does not challenge to statement of facts set forth in the order of the Illinois Appellate Court affirming his second conviction. Thus, we will adopt the facts of the Illinois Appellate Court decision as our own:

At the second trial in 2005, the evidence established that at around 6:20 p.m. on April 25, 1975, Chicago police found the bodies of Dr. Lawrence Gluckman and two of his patients, Minnie and Tressie Harris, in Dr. Gluckman's car. . . . Dr. Gluckman's body was found in the trunk, and the women's bodies were found partially covered with green plastic garbage bags in the back seat. The rear window of the car was shattered. An autopsy indicated Dr. Gluckman sustained a blunt force trauma to the head and died of a heart attack. Minnie and Tressie Harris both died as a result of gunshot wounds to the head.

The parties stipulated that Dr. Gluckman, Minnie Harris, and Tressie Harris left Dr. Gluckman's clinic at Warren and Western at around 4 p.m. on April 25. Three phone calls were made to Dr. Gluckman's wife between 6:30 and 7:20 that evening, each demanding $100,000 be paid or Dr. Gluckman would be killed.

On April 27, 1975, Detective Anthony Katalinic arrested Frank Love after Delores Townsend named him in a statement. According to Detective Katalinic, Love implicated six people in the kidnapping and murders: Roosevelt Clay, David Clay, Harold Smith, Matthew Williams, Michael Wilson, and Willie Carter. When Detective Katalinic went to Annie Clay's-defendant's mother's-home, he was given permission to search the garage. He recovered glass shards from the floor and green plastic bags similar to the type found covering the victim's bodies in Dr. Gluckman's car. Detective Katalinic testified that Franklin Scott identified defendant in a lineup as being one of the people he saw standing behind Dr. Gluckman's clinic on the afternoon of the abduction. . . .

Scott Jennings testified that, in 1983, he worked as an FBI agent in the Chicago office. On June 13, 1983, Jennings met defendant in the Cook County Jail after defendant told him he had information regarding a murder. After being advised of his Miranda rights, defendant signed a waiver of his rights and gave an oral statement regarding his involvement in a triple murder in 1975. Jennings testified he told defendant he could be prosecuted for the murders, and that no threats or promises were made to induce defendant to confess. . . . Jennings contacted Detective Katalinic and arranged for him to interview defendant.

Detective Katalinic testified defendant gave him details during his confession that he was not able to get from anyone else questioned, including Love and Scott. Defendant told Detective Katalinic that sometime in April 1975 he went to his brother David's house and walked in on a meeting. His brother, Willie Carter, Frank Love, Matthew Williams, and Michael Wilson were discussing a plan to kidnap Dr. Gluckman. Defendant insisted on being included in the plan. Defendant told Detective Katalinic that he brought the gun and drove to the clinic in a separate car. When Dr. Gluckman came out of the back door of the clinic with two women, defendant gave the gun to Smith. They both approached the doctor with the gun drawn. They ordered Dr. Gluckman to get into the trunk of his car. When Dr. Gluckman refused because he had a bad heart, Smith and Carter picked him up and put him in the trunk. After Williams forced the two women into the car, Williams drove the car to defendant's aunt's house.

Defendant told Detective Katalinic that when he discovered Dr. Gluckman was dead, he and Carter went into the house to talk to David Clay and Wilson. They decided to shoot the two women. . . . Carter then shot the women. Williams and defendant abandoned Dr. Gluckman's car . . . . Defendant told Detective Katalinic that everyone involved in the kidnapping, except for Love, was a Vicelord. Defendant said some Vicelords visited Love at jail after he was arrested. They threatened to kill him if he cooperated with the police. . . .

Following his arrest, [Frank] Love gave a statement implicating defendant and David Clay. While Love was at Cook County Jail awaiting trial, defendant and David Clay were transferred to the same tier. Love testified defendant and David Clay told Love to "keep his mouth shut and do the time, take the weight." Love did not testify against either defendant or David Clay in the 1970s. In 1988, however, Love testified against defendant at his first trial. Shortly after defendant was sentenced, the prosecutor appeared before the parole board to support Love's parole request. Love testified he had hoped he would be released from prison after testifying against defendant, but denied being promised anything in exchange for his testimony. . . .

Defendant contacted [FBI Agent] Jennings [ ] after he was convicted of armed robbery. According to defendant, Jennings said he would try to get defendant out of jail because he wanted more information on [Mike] Switek [, "a leading mob figure"]. Because defendant was in State custody, Jennings told him he had to "give the State something." Defendant told Jennings he had information regarding a murder. When Jennings said he needed "eyewitness stuff," defendant lied and said he was present when the murder occurred. Jennings and another agent came to the jail to interview him. Defendant gave them information about Dr. Gluckman's kidnapping that he had learned from various sources-including the media, Love, Willie Carter, Fast Black, and Michael Wilson. Defendant testified he and Love had talked a lot about the offense while they were in jail together. Defendant said that when he gave his statement to Detective Katalinic, he included things he had heard from others and things he had made up.

II. Direct Appeal

Based on these facts, the trial court found Clay guilty of three murders. Clay appealed to the Appellate Court of Illinois, raising two arguments. First, he asserted that "the Court committed reversible error by allowing the state to impeach Clay with his prior murder conviction . . . ." (Answer Ex. A at i.) Second, he argued that he was denied his Sixth Amendment right to the effective assistance of counsel when his attorney:

1. Characterized him in opening statement as a "gang banger" who had committed several unrelated felonies and worked for "the Italians" involved in organized crime;

2. Failed to utilize prior testimony to impeach a key witness (Frank Love);

3. Elicited inflammatory testimony that Clay's family tried to firebomb Frank Love's house right before trial;

4. Did not move to strike prejudicial testimony that was volunteered on cross-examination; and

5. Failed to object to prosecutorial misconduct in closing argument.

Id. at i-ii. We note that these five issues are the same issues raised in the instant petition regarding ineffective assistance of counsel.

In response to the issue regarding Clay's prior murder conviction, the Appellate Court concluded that the trial court did not abuse its discretion in allowing the use of the prior murder conviction. People v. Clay, 884 N.E.2d at 222. In response to the ineffective assistance of counsel claims, the Appellate Court determined that:

1. Defense counsel's comments in opening statement were objectively unreasonable, but because of the overwhelming evidence of defendant's guilt, the comments did not prejudice Clay;

2. Defense counsel was not ineffective for failing to attempt to impeach Love by omission;

3. Clay was not prejudiced by counsel's failure to move to strike testimony ...

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