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United States Ex Rel. Tramel Foreman v. Marcus Hardy

July 14, 2011

UNITED STATES EX REL. TRAMEL FOREMAN,
PETITIONER,
v.
MARCUS HARDY, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

(#R28958),

MEMORANDUM OPINION AND ORDER

Before the Court is Petitioner Tramel Foreman's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d).*fn1 For the following reasons, the Court denies Foreman's habeas petition and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

BACKGROUND

Foreman does not present clear and convincing evidence challenging the statement of facts in the last state court decisions to address his arguments on the merits, which are the Illinois Appellate Court's opinions on direct appeal and post-conviction appeal, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010). The Court therefore adopts the underlying facts as set forth by the Illinois Appellate Court in People v. Foreman, 361 Ill.App.3d 136, 297 Ill.Dec. 19, 836 N.E.2d 750 (Ill.App.Ct. 2005) and People v. Foreman, No. 1-08-2159 (Ill.App.Ct. June 25, 2010) (unpublished). The Court now turns to a summary of the trial evidence. See Allen v. Buss, 558 F.3d 657, 659 (7th Cir. 2009).

I. Factual Background

At trial, Lance Davis ("Lance"), who was the cousin of the victim Larry Lowrey, testified that at 11:15 p.m. on September 26, 2001, he drove to the intersection of 49th and Michigan in Chicago and parked at a church on the corner. Lance then got out of his car and walked toward several men who were fighting across the street. As Lance walked toward the fight, he noticed that Foreman was sitting in the driver's seat of a tan station wagon parked down the street. When Lance reached the fighting, he joined in. Lance further testified that Foreman then drove to the location of the fight and yelled to Kevin Davis ("Kevin"), one of the participants in the fight, to get into the car. Kevin then got into the backseat of the car on the passenger side. A passenger in the front seat then leaned back as Foreman reached across and fired a gun two or three times out of the passenger-side front window. Foreman then drove away toward 49th Street and Wabash in Chicago. At the police station on September 27, 2001, Lance identified photographs of Kevin and Foreman.

Kevin, Foreman's cousin, testified at trial that on the evening of September 26, 2001, he drove to 49th and Michigan in Chicago to visit his girlfriend. As Kevin walked down the street, several men, including Lance, attacked him. Thereafter, Foreman drove up to the fight in his tan station wagon. Although Kevin testified that Foreman's girlfriend was sitting in the front seat of the car, at trial, Kevin could not recall if there was another passenger in the car. Kevin further testified that he got into Foreman's car through the back passenger-side door. As he was getting into the car, Kevin testified that he heard shots being fired behind him. Kevin also testified at trial that Foreman had not fired the shots. Kevin, however, also admitted that he spoke with police officers following the shooting, but that he did not recall telling them that he saw Foreman's girlfriend, who was in the front passenger seat of the car, lean back after which Foreman fired a gun at the men. Kevin also did not recall his prior statement that as they drove away, Foreman stated that he let off a couple of shots and "got at least one" of the men.

Chicago Police Detective Michael Rose was assigned to the shooting in the early morning of September 27, 2001. Detective Rose testified that he interviewed Kevin, who stated that after he dove into the backseat of Foreman's car, Foreman's girlfriend, who was in the passenger seat of the car, leaned back and Foreman raised his right arm and fired three or four shots from a black handgun out of the front passenger window. Detective Rose further testified that Kevin stated that as they were driving away from the scene, Foreman told him that he had let off a couple of shots and that he "got at least one" of the men.

The victim's cousin, Gregory Curtis, also testified at trial stating that when he arrived at 49th and Michigan on September 26, 2001, the fight was already in progress. Curtis further stated that he had known Foreman for 10 years. Also, Curtis, who did not join the fight, testified that he watched Foreman drive to the scene of the fight. Curtis stated that thereafter Kevin got into the backseat of the passenger side of Foreman's car. Moreover, Curtis testified that Foreman's girlfriend was in the front passenger seat of the car and a woman named Sharon was in the backseat. After Kevin entered the car, Curtis saw Foreman's girlfriend lean back and heard two or three gunshots. Curtis testified that he and the other men dove to the ground. After Foreman drove away, the men realized that Lowrey had been shot.

Chicago Police Officer James Shader, who worked in the forensic services division of the Chicago Police Department, was assigned to the shooting in the early morning of September 27, 2001. Officer Shader first reported to the Cook County Hospital, where Lowrey had been taken, but learned that Lowrey had since died. Officer Shader subsequently proceeded to the crime scene where he was unable to find a gun or shell casings. Dr. Scott Denton, a forensic pathologist and deputy medical examiner, testified at trial that the cause of Lowrey's death was a gunshot wound to the chest. After the State rested, defense counsel did not call any witnesses.

II. Procedural Background

Following a jury trial in the Circuit Court of Cook County, the jury found Foreman guilty of two counts of first degree murder and discharging a firearm during the commission of the offense. The trial court then sentenced Foreman to 50-year prison terms for the two murder convictions, to be served concurrently. The trial court also sentenced Foreman to an additional 25 years pursuant to the Illinois firearm enhancement provision, 730 ILCS 5/5-8-1.

Foreman filed a direct appeal to the Illinois Appellate Court bringing the following claims: (1) his trial counsel was ineffective for failing to question the venire regarding any potential bias; (2) the trial court's supplemental instructions to the deadlocked jury were coercive; (3) the sentencing court's application of Illinois' firearm enhancement was improper; (4) his two murder convictions violated Illinois' one-act, one-crime rule; (5) he was entitled to an additional day of credit against his sentence; and (6) the trial court's instruction to the venire failed to comply with Illinois Supreme Court Rule 431(a). On September 22, 2005, the Illinois Appellate Court affirmed Foreman's conviction on one murder count and vacated his conviction on the other murder count based on Illinois' one-act, one-crime rule. Although the Illinois Appellate Court ...


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