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United States of America Ex Rel. v. Marcus Hardy

April 11, 2011


The opinion of the court was delivered by: Judge Virginia M. Kendall


Petitioner Kevin Jackson ("Jackson") was convicted of murder and aggravated battery in 2003 in the Circuit Court of Cook County, Illinois. He is currently serving a 45-year sentence in Stateville Correctional Center in Joliet, Illinois under the supervision of current warden Marcus Hardy ("the State"). He filed a federal petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d) on four grounds: (1) his conviction was based on prior inconsistent statements by witnesses that recanted their previous testimony at trial; (2) his trial counsel was ineffective because that attorney failed to investigate an alternative suspect; (3) his appellate counsel was ineffective because that lawyer did not argue his trial counsel was ineffective for not investigating the alternative suspect; and (4) the state courts applied an unduly harsh pleading standard to his first state collateral attack on his conviction. For the following reasons, the Court denies Jackson's habeas petition.


A. Underlying Facts,*fn1 Pre-Trial Statements, Trial Testimony and Verdict

1. The Murder

At approximately 1:30 am on May 6, 2001, Ernest Jenkins and his passengers Michael Watson ("Michael") and Stanley "Meechie" Watson ("Meechie") stopped at a Citgo gas station on the corner of 55th Street (Garfield Boulevard) and South Damen Avenue in Chicago, Illinois. Michael and Meechie got out of the car-Michael to pump gas, Meechie to pay for it-and shots rang out. Jenkins died, Michael was shot in the leg, and Meechie escaped harm. Michael provided the police with a description of the shooter's car. The police located the car; it was co-owned by Jackson and his cousin Manuel Stewart ("Stewart"). Jackson was arrested for the crime and tried for first-degree murder.

2. Pre-Trial Statements and Trial Testimony Summarized

Michael and four eyewitnesses, Stewart, Brandy Butler ("Butler")*fn2 , Vernon Clay ("Clay"), and Shemika Mason ("Mason"), testified at trial. All four eyewitnesses made handwritten statements before the trial identifying Jackson as the shooter. All those statements indicated that the witnesses were treated well by the police, that the police did not promise anything in return for giving their testimony, and that the statements were not coerced. All four witnesses reviewed and signed their respective statements, which were also signed by the prosecutor and detective who conducted the interviews. Before the grand jury, Butler, Clay and Stewart confirmed the accuracy and veracity of their handwritten statements and again identified Jackson as the shooter. However, at trial none of the four eyewitnesses identified Jackson as the shooter, and each recanted his or her earlier statement, claiming it was the product of police intimidation. Each was impeached by the prosecution with the his or her written statement and, in the case of Butler, Clay and Stewart, their grand jury testimony as well. Jackson offered no evidence at trial except a stipulation that the police found Jenkins in his car.

3. Butler

In her handwritten statement to the police and prosecutors and in her grand jury testimony, Butler stated that she was at the gas station with Jackson and three other companions (Quiana Davis, Stewart and Mario Brown). She confirmed that Jackson was a member of the Vice Lords gang, while Meechie was a member of a rival gang, the Gangster Disciples. While inside the gas station, she heard gunshots and saw Jackson fire a gun at Meechie and the car near Meechie. As she left the gas station, she saw the driver of the car slumped over.

However, at trial, Butler testified that she could not see the shooter and that Jackson was not at the gas station. She further testified that she was pregnant at the time, afraid of the police, and not treated well by them. Butler stated that detectives coerced her into implicating Jackson as the shooter by threatening her and refusing to let her leave the police station until she signed the statement. She also testified that the police told her what to say to the grand jury.

4. Clay

After the shooting, Clay told the police that he was at the gas station with Davis, Butler, and Mason during the shooting. Clay initially told police that Norman McIntosh, another Vice Lord, was the shooter. When the police re-interviewed Clay after they could not verify his story, he told them he could not remember implicating McIntosh and instead implicated Jackson. Clay told police that Jackson, Stewart and Davis came to the gas station together. At the gas station, Clay saw Meechie, who he knew was a Gangster Disciple, hugging Davis and whispering to her. Meechie asked Davis on a date, but Davis told Meechie that Jackson was her boyfriend. Clay saw Meechie make an inappropriate sexual gesture towards Davis. According to Clay, Jackson then shot at Meechie, who was on the passenger side of Jenkins' car. Clay saw Jackson fleeing the scene with a gun in his hand.

Clay later explained to the police that he wanted to stay at the police station overnight because he was afraid that Jackson and other Vice Lords would discover that he was cooperating with the authorities, and he would be "in some kind of danger." According to Clay, Jackson spoke with Clay shortly after the shooting and told him not to talk to the police; Clay took this as a threat. Clay also gave a statement to a prosecutor corroborating what he told the police. Clay admitted that he was a Vice Lord and that he witnessed Jackson shooting at Meechie and into the car.

At trial, Clay testified he was home asleep at the time of the shooting and that he never saw Jackson at the gas station. He said he knew nothing about the shooting until a detective told him about it at the police station. He claimed that he was kept in a room at the police station for an entire day and in custody for a total of three days. Clay further testified that police had threatened him with imprisonment if he refused to implicate Jackson, and threatened to put the word out that he was cooperating with the police. He denied giving the written statement to the police and the prosecutor and denied initialing the statement on page three and signing it on page four. Clay admitted that the signature on page five was his, but stated that he had not read the document and thought that he needed to sign it in order to get his property back. He testified that he was driven by police officers to testify before the grand jury and that the police told him that if he did not answer "yes" to every question, that he "would never see the streets again." Clay denied telling a detective that he was withholding information due to fear of retaliation by Jackson and other Vice Lords. He also denied that Jackson confronted him after the shooting.

5. Stewart

After the shooting, Stewart initially told the police that Jackson was the shooter, admitting that he falsely identified Jackson as "Rick Party" in an effort to protect Jackson. Stewart later told the police that he and Jackson had gone to the gas station with Brown, Davis and Butler in the car that he and Jackson owned. He acknowledged that he and Jackson were both Vice Lords, and that they disapproved of Meechie, a Gangster Disciple, talking to Davis. Stewart saw Jackson shoot at Meechie and Jenkins being fatally wounded. He gave the same account in a statement recorded by prosecutors.

But at trial, Stewart denied that the gas station was in any particular gang's territory. He stated that he lied to the police when he said Jackson was with him at the gas station because Stewart was afraid that he would be charged with the murder. Stewart testified that only he, Brown, Butler and Davis went to the gas station that night to buy cigars. There, he saw Meechie and Davis talking, but another Vice Lord, "Rick Party," shot at the parked car. Stewart also denied telling detectives about the shooting and stated that he lied both in his statement and to the grand jury when he implicated Jackson.

6. Mason

Mason told prosecutors she was with Stewart, Butler, Davis and Jackson the night of the shooting. She stated she went inside the gas station with Butler and Davis while Stewart and Jackson remained in the car. When she came out of the station, she saw Jackson, known to her as a Vice Lord, shoot at Meechie, who was unarmed and standing by the car with Jenkins inside. She also saw Michael hit the ground after being shot by Jackson. Later that day, Jackson warned her, Butler and Davis not to talk to talk to the police about the shooting.

At trial, however, she testified she was not at the gas station at the time of the shooting, and that she only found out about the shooting after Davis called her. After the call, Mason went to the gas station and met Davis and Butler there, but did not see Jackson there. She acknowledged talking to the police all night and meeting with a prosecutor to write out her statement. However, Mason stated that the police told her what to write and that they promised her they would "take care of" an outstanding warrant against her if she cooperated. She testified that she only signed the statement because she did not want to go to jail for the outstanding warrant. Further, Mason denied telling police that she went with Davis and Butler to buy cigars and that she saw Jackson talking to Meechie. She also denied telling the prosecutor about Jackson's gang affiliation and that Jackson shot at Meechie. She further denied that Jackson told Butler, Davis and her not to speak to the police after the shooting.

7. Michael's Testimony at Trial.

At trial, Michael testified that he warned Meechie, a Gangster Disciple, that the gas station was located in the Vice Lords' territory. Meechie did not heed Michael's warnings and walked to the gas station to pay for the gas. When Michael exited the car to pump the gas, Jenkins was left alone in the car. Then Meechie warned Michael, also a Gangster Disciple, that a Vice Lord was coming their way from about 120 feet. A moment later, Michael was shot in the leg, and Jenkins was killed. Michael was unable to identify the shooter from 120 feet away. Michael further testified that the shooter as a small, thin, African-American weighing about 120 lbs, and that Jackson "don't look nothing like the guy" because Jackson's complexion was too light. However, Michael identified Jackson's car as the one where the shooter was sitting right before the shooting.

8. Trial Testimony From Other Prosecution Witnesses

The investigating police detective testified that Michael and Meechie could not identify Jackson as the shooter from a photo array and a lineup. At trial, a forensic investigator testified that he found six nine millimeter cartridge cases near Jenkins' car at the gas station. He also recovered a fired bullet from the floor of the car. A doctor testified that Jenkins died of multiple gunshot ...

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