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United States Ex Rel. v. Marcus Hardy

September 30, 2011

UNITED STATES EX REL.
AR-RAAFI NICHOLS, PETITIONER,
v.
MARCUS HARDY, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge George W. Lindberg

MEMORANDUM OPINION AND ORDER

Before the Court is petitioner Ar-Raafi Nichols' petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. For the reasons stated below, the Court denies the habeas petition and declines to certify any issues for appeal.

I. Factual Background

The following facts are taken from the September 6, 2006 decision of the Illinois Appellate Court, on petitioner's direct appeal. See 28 U.S.C. § 2254(e)(1) (stating that the state court's factual findings are presumed to be correct unless they are rebutted by clear and convincing evidence).

Petitioner was convicted of the murder of Victor Manriquez. At trial, Sarina Leighty testified that at the time of the murder, she had been dating petitioner off and on for approximately three years. On July 23, 2001, petitioner and Leighty got into an argument. Following this argument, Leighty spent the day drinking beer with Manriquez and having sex with him at a motel. Leighty testified that petitioner had seen Manriquez pick her up earlier in the day. At some point during the day, Leighty left the motel, saw petitioner, and asked him to return to the motel with her. When he refused, Leighty returned to the motel and resumed drinking beer and smoking marijuana with Manriquez.

Leighty testified that later that evening, she and Manriquez left the motel, with Manriquez driving. Leighty heard petitioner call her name, and so she asked Manriquez to stop the car. Leighty got out of the car and began to walk back toward the motel in the hope that petitioner would follow her. However, petitioner walked past her to Manriquez's car. Petitioner said "drop down," meaning "give me your money," and Manriquez raised his hands in the air. Petitioner then shot Manriquez twice.

After the shooing, Leighty returned to the motel. She did not contact the police about the shooting. She was picked up by the police on August 4, 2001. She initially told the police that she had only heard gunshots, and that she had not witnessed the shooting.

Sherman James, who lived in the neighborhood, testified that at approximately 10:00 p.m. on July 23, 2001, he left his home and saw a car parked on the corner. He saw a woman standing near the driver's side talking to a man outside of the car. The man outside of the car told the driver to "give it up," and then the woman said she "got it under control." The man then approached the car, reached into the driver's side, and shot the driver twice. The shooter ran away.

James testified that he called the police, and that when the officers arrived, he described the shooter as a black male between five feet, six inches tall and six feet tall, wearing jeans and a football jersey. However, the parties stipulated that a detective would testify that James actually described the shooter as wearing a blue t-shirt and jogging pants. James testified that the shooter's hair was in dreadlocks on the night of the shooting. James recognized the woman as someone he had seen in the neighborhood. James identified Leighty as the woman and petitioner as the shooter, in photographic arrays on August 2, 2001, and in lineups on August 4, 2001.

Petitioner's sister testified that in July 2001, petitioner's hair style was "short, tapered in the back and lined in the front."

Two .32 caliber bullets that had been fired were found at the scene. An assistant medical examiner testified that Manriquez had been shot twice at very close range, and that the gunshot wounds caused his death.

II. Procedural Background

A jury found petitioner guilty of first degree murder, and not guilty of armed robbery. The trial court sentenced petitioner to an enhanced 50-year prison term: 25 years for the murder, and 25 years for personally discharging a firearm to cause the murder. The trial court imposed this enhanced sentence pursuant to the Illinois firearm enhancement statute, which provided for the imposition of an additional 25 years to a term of natural life in cases in which, during the commission of the underlying offense, the offender personally discharged a firearm that caused great bodily harm, permanent disability or disfigurement, or death. See 730 ILCS 5/5-8-1(a)(1)(d)(iii).

Petitioner filed a direct appeal, in which he raised the following issues:

1. That the State failed to prove him guilty of first degree murder beyond a reasonable doubt;

2. Ineffective assistance of trial counsel for:

a. failing to file a motion to suppress James' pretrial identifications of petitioner as the shooter;

b. failing to call police officer Hunter to prove up the impeachment of James as to his prior description of petitioner;

c. failing to call Melissa Phillips as a witness at trial; and

d. referring during closing argument to statements made by Phillips, despite the fact that she had not testified;

3. That his sentence was excessive;

4. That the Illinois firearm enhancement statute violates the Proportionate Penalties and Due Process Clauses of the Illinois Constitution; and

5. That the mittimus was incorrect.

On September 6, 2006, the Illinois Appellate Court affirmed petitioner's conviction and sentence, and instructed the clerk of the circuit court to correct the mittimus.

Petitioner filed a petition for leave to appeal to the Illinois Supreme Court, in which he raised the following issues:

1. That the State failed to prove him guilty of first degree murder beyond a reasonable doubt;

2. Ineffective assistance of trial counsel for failing to file a motion to suppress James' identification of petitioner as the shooter;

3. That the Illinois firearm enhancement statute violates the Proportionate Penalties and Due Process Clauses of the Illinois Constitution; and

4. That the mittimus was incorrect.

The Illinois Supreme Court denied petitioner's petition for leave to appeal on March 28, 2007. See People v. ...


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