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United States of America Ex Rel. v. Marcus Hardy

August 4, 2011


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Petitioner Richard Morris ("Morris" or "Petitioner") is currently incarcerated at Stateville Correctional Center in Joliet, Illinois. Marcus Hardy, the warden of the facility, has custody of Petitioner. Morris has filed a pro se writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, Petitioner's petition for a writ of habeas corpus [1] is respectfully denied. Petitioner's motion for a status [21] is denied as moot.

I. Background

A. Procedural Background

Petitioner has twice been tried and convicted in the Circuit Court of Cook County for the murder of Ervin Shorter. Resp. Exh. E at 3; People v. Morris, 807 N.E.2d 377, 381 (Ill. 2004). The first trial resulted in convictions and a death sentence that the Illinois Supreme Court vacated due to lack of meaningful representation under United States v. Cronic, 466 U.S. 648, 659 (1984). Morris, 807 N.E.2d at 403, 406-07. Upon retrial, Petitioner was convicted of first degree murder, aggravated vehicular hijacking, and aggravated kidnapping, and the trial court sentenced him to consecutive terms of sixty, thirty, and fifteen years, respectively. Resp. Exh. I at 1-2. After he exhausted his state court appeals, Petitioner filed a Petition for Writ of Habeas Corpus. Respondent has answered.

B. Factual Background

District court review of a habeas petition presumes all factual findings of the state court to be correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). Therefore, the Court adopts the following accounts from the Illinois Supreme Court's Order in People v. Morris, 807 N.E.2d 377 (Ill. 2004), as the Illinois Supreme Court is the last court to discuss the factual background of the underlying case in detail.

On the morning of Saturday, December 2, 1995, Petitioner and his co-conspirators kidnapped Ervin Shorter and forced him at gunpoint into the back of his own car. Morris, 807 N.E.2d at 380-82. Petitioner and his accomplices had started the morning intending to rob a bank; however, when they spotted Shorter's Impala, they reasoned that the Impala might be owned by a rich drug dealer, and it would be easier to rob a drug dealer than to rob a bank. Id. They soon realized that Shorter was not, in fact, a rich drug dealer-he was a fifty-eight-year-old laborer with Chicago's Streets and Sanitation department-so Petitioner decided that they needed to find a place to kill him before the targeted bank opened for business. Id. at 381-82.

Petitioner "pulled into an alley, stopped the car, got the car's owner out of the trunk and ordered him to his knees." Id. at 382. Shorter "began begging for his life, at which point [Petitioner] shot him twice" in the head. Id. As Petitioner and his cohorts drove away, they saw a police car. Id. "Shortly thereafter, [Petitioner] parked the Impala and the police again drove up." Id. Petitioner and co-conspirator Tywon Knight "jumped out of the car and ran." Id. While chased on foot by the police, Petitioner left the murder weapon, a .357 pistol, and the keys to the Impala in an alley. Id. The police apprehended and arrested Petitioner, and Petitioner signed a written confession admitting to shooting Shorter twice in the head. Id. at 381-82.

During the first trial, a witness testified that she saw a light green shiny car in traffic around 7:40 a.m. on Saturday, December 2, 1995. She noticed that a person's fingers were sticking out of the trunk, moving around. Id. at 380. The fingers disappeared and then a ratchet handle appeared in the same space, moving back and forth. Id. The witness stopped and called 911, and again called police when she later learned of the Shorter murder. Id. She identified the light green car as Shorter's Impala. Id. at 381.

Two police officers, Stephen Lotts and Michael Lopresti, testified that they spotted a "silvery, bluish-green" Impala on School Street in Chicago and watched it turn and park on Paulina. Id. at 380. The officers saw Petitioner and Knight get out of the car and walk in front of the police car. Id. Petitioner and Knight made eye contact with the officers and ran. Id. Other officers joined Lotts and Lopresti in chasing Petitioner and Knight, and both were arrested a few minutes later. Id. at 380-81. Meanwhile, Officer Robert Hanrahan found Shorter's body in an alley, found his identification in his wallet, and reported the crime and Shorter's name to other officers over the radio. Id. at 381. Officers Lotts and Lopresti learned that the Impala was owned by Shorter, retraced the route of their foot chase with Petitioner, and located the .357 Magnum with two fired shells, a fully loaded .32 caliber revolver, a green glove, and a set of keys to the Impala. Id. Officers also found a shoeprint next to the .357 Magnum revolver. Id. The print was consistent with, but not a positive match to, Petitioner's shoes. Id.

Petitioner testified at his trial about Shorter's murder and about a prior murder he was involved with in Kenosha, Wisconsin:

[Petitioner]'s trial testimony began with an explanation of the "problems in Kenosha" that had been mentioned in his statement introduced at trial. [Petitioner] stated that, in 1995, he was living in Kenosha with Lyda. At that time, [Petitioner] was selling drugs. In early November 1995, [Petitioner] paged a man named Fred Jones in order to buy some cocaine. Jones came to [Petitioner]'s apartment and sold [Petitioner] an "eight ball" for $175. [Petitioner] then sold portions of the eight ball to his customers. [Petitioner]'s customers complained that the cocaine was bad. [Petitioner] paged Jones again on November 30, 1995. Jones came to [Petitioner]'s apartment with another eight ball. Lyda and Hoover also were home at the time. Jones went into the living room and [Petitioner] went into the kitchen to get a scale. As [Petitioner] was getting the scale, Lyda came running out of the living room toward him with a look of fear on her face. Jones was running behind Lyda trying to grab her. [Petitioner] thought Jones was about to stick him up, so he grabbed Jones, put him in a bear hug, and wrestled him into the living room. [Petitioner] slammed Jones onto the living room floor, and Hoover hit Jones in the head with a golf club. [Petitioner] went back into the kitchen to check on Lyda. When [Petitioner] returned to the living room, Hoover was still hitting Jones in the head with a golf club. [Petitioner] put a towel around Jones' neck and strangled him.

When they determined that Jones was dead, [Petitioner] and Hoover wrapped his body in blankets with a cable cord and put it into a hall closet. [Petitioner] also took a .357 from Jones' pocket. [Petitioner], Hoover and Lyda then walked over to Knight's house and Hoover got Knight's car keys. Hoover and [Petitioner] put Jones' body into the trunk of Knight's car. [Petitioner], Hoover and Lyda then drove from Kenosha to Chicago, stopping at a grocery store to buy lighter fluid. Hoover and [Petitioner] agreed that they had to get rid of Jones' body and that the best way to get rid of it would be to burn it. They drove to an alley, where [Petitioner] and Hoover poured lighter fluid on the blankets and the body and then lit the lighter fluid. [Petitioner] guessed it was after midnight on December 1, 1995, at this point. Hoover, [Petitioner] and Lyda then drove back to Kenosha and picked up Knight. The next morning, Knight drove Hoover, [Petitioner] and Lyda back to Illinois. [Petitioner] stated that it was Hoover who suggested that they rob a bank. Before they found a bank to rob, they got off an expressway onto Garfield Avenue and saw Ervin Shorter's car at a Kentucky Fried Chicken restaurant. [Petitioner] claimed that Hoover, not [Petitioner], suggested that the car's owner could be a highly paid drug dealer and would be easier to rob than a bank. Hoover got out of the car and pointed his gun in the driver's side window of Shorter's car. Shorter moved over, so Hoover went over to the passenger's side and got in while Knight got into the driver's side of the car. [Petitioner] then got into the back seat and took the .357 from Hoover. Hoover asked Shorter to give him the "dope" and the money. Shorter replied that he did not have any money or dope.

[Petitioner] also claimed that it was Hoover's idea to kill Shorter. [Petitioner] said that when they stopped in the alley where Shorter's body was found, Hoover grabbed the .357, opened the trunk and ordered Shorter out. [Petitioner] knew Hoover planned to kill Shorter, so he closed the trunk of the car, walked around to the front of the car, and told Hoover that he was not going to have anything to do with the shooting. [Petitioner] got into the driver's seat of the car and waited for Hoover. While he was waiting, he heard two shots. Hoover then got into the passenger's side and they drove off. [Petitioner] drove for a short time and then pulled the car over. At that point, Hoover got out of Shorter's car and Knight got in. [Petitioner] admitted that he dropped the .357 and Shorter's car keys while the police were chasing him. [Petitioner] denied shooting Shorter and claimed that he had lied when he confessed in his statement to being the shooter. [Petitioner] explained that when he learned his wife was in custody, he asked a detective if there was anything [Petitioner] could do to ensure that his wife would go free. The detective did not promise [Petitioner] anything, but told [Petitioner] the officers would have to see how the story went. [Petitioner] said he told the officers about the incident in Kenosha, but did not mention Hoover at first. [Petitioner] told the officers that he had killed Fred Jones and also told them that Knight, not Hoover, helped him carry Jones' body out of the apartment. [Petitioner] said that he did not mention Hoover at first because he thought Hoover could take care of Lyda while [Petitioner] was in prison. [Petitioner] also lied to police when he told them that he made Lyda watch him beat Fred Jones to death and that he told Lyda she would be next if she said anything to the police. [Petitioner] said that he initially ran from Officers Lott and Lopresti because he wanted to throw away the gun and the car keys.

Id. at 381-84.

The jury found Petitioner guilty of first degree murder, aggravated vehicular hijacking, and aggravated kidnapping; found that Petitioner was eligible for the death penalty; and found no mitigating factors sufficient to preclude imposing the death penalty. Id. at 384. The trial court sentenced Petitioner to death for first degree murder. Id.

On direct appeal to the Illinois Supreme Court, Petitioner argued, among other things, that: (1) the trial court erred in denying his motion to suppress his confession; and (2) that trial counsel was ineffective for discussing in opening statements and presenting evidence regarding Fred Jones's murder committed by Petitioner thirty-six hours prior to Shorter's murder. Resp. Exh. A at 19-31. The court began its analysis by reciting the facts surrounding the motion to suppress:

[Petitioner] was interviewed four times at the police station by Detective David Ryan and Officer Thomas Keane. During each interview, [Petitioner] stated that he understood his Miranda rights and was waiving them.

The notes of Detective Ryan and Officer Keane revealed that [Petitioner]'s first interview took place at 2:10 p.m. on December 2, 1995. [Petitioner] stated that he lived in Kenosha, Wisconsin, with his wife, Lyda Antia, and sold drugs for a living. On November 30, 1995, he killed Fred, a drug dealer, because Fred had sold him some bad drugs. [Petitioner] had sold those drugs to his customers, and his customers complained. [Petitioner] choked Fred and beat him to death at [Petitioner]'s apartment. [Petitioner] forced Lyda to watch the beating and told her that he would kill her if she said anything. Later, [Petitioner] burned Fred's body somewhere on the west side of Chicago. Although Fred had a gun, Fred never pulled the gun on [Petitioner]. [Petitioner] took Fred's gun. [Petitioner] said that on December 2, 1995, he, Lyda, Knight and Hoover were driving in Chicago when [Petitioner] saw a newer Chevy Impala in a restaurant parking lot near the Garfield Avenue exit to the Dan Ryan expressway. [Petitioner] forced the owner of the Impala, Ervin Shorter, to move to the passenger side of the car. Knight drove the Impala while [Petitioner] rode in the back. [Petitioner] instructed Lyda to follow in Knight's car. They drove to the area around Belmont Avenue, where [Petitioner] spotted some banks that he wanted to check out in more detail. At some point, [Petitioner] put Shorter in the trunk of the Impala. [Petitioner] and Knight drove around looking for a spot to kill Shorter. They forced Shorter to get out of the trunk. [Petitioner] ordered Shorter to kneel. Shorter pleaded for his life and covered his face. [Petitioner] shot him twice. [Petitioner] and Knight got back into the Impala, with [Petitioner] driving. [Petitioner]'s second interview took place at 3 p.m. on December 2, 1995. In that interview, [Petitioner] gave further details concerning the murder of Fred in Kenosha. [Petitioner] said that he used a four iron golf club to beat Fred. He then took $200 from Fred's body, tied his body with a cable and wrapped it in a blanket. Lyda called Knight to the apartment to help [Petitioner] remove the body. [Petitioner] bought two cans of lighter fluid, opened the blanket, and sprayed the fluid directly on the body. [Petitioner] then set the body on fire and threw the cans of lighter fluid on the roof of a nearby school building.

Following Fred's murder, [Petitioner] wanted to rob a bank so he would have money to go to Atlanta, where an uncle lived. Lyda was given the job of "casing" the bank. Knight would help and would share in the proceeds of the robbery. They saw a banner on a bank indicating that the bank would open at 8 a.m. Meanwhile, [Petitioner] wanted to kill Shorter. [Petitioner] and Knight were driving in the Impala. They pulled into an alley and forced Shorter out of the trunk. Shorter pleaded for his life. [Petitioner] shot Shorter twice. [Petitioner] also told Knight to shoot Shorter because [Petitioner] did not want the only bullets in Shorter's body to be from [Petitioner]'s gun. Knight, however, did not fire his gun.

The third interview of [Petitioner] took place at 7 p.m. on December 2. In this interview, [Petitioner] stated that Brian Hoover was with Lyda and [Petitioner] when they burned Fred's body, and said that Hoover had taken the money from Fred's body. Hoover used some of Fred's money to buy the lighter fluid. Hoover also was along during Shorter's kidnapping and murder. [Petitioner] had not told the ...

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