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Lawrence Scott v. Jesse Montgomery

February 6, 2012

LAWRENCE SCOTT, PETITIONER,
v.
JESSE MONTGOMERY, RESPONDENT.



The opinion of the court was delivered by: James F. Holderman, Chief Judge:

MEMORANDUM OPINION AND ORDER

On Oct. 29, 1996, Petitioner Lawrence Scott ("Scott") was convicted at a bench trial in the Circuit Court of Cook County of first-degree murder and aggravated discharge of a firearm in connection with the 1993 shooting of Michael Jones. Scott was subsequently sentenced to 35 years in prison, and is currently serving a term of mandatory supervised release. Before the court is Scott's "Petition for a Writ of Habeas Corpus" pursuant to 28 U.S.C. § 2254 (Dkt. No. 7 ("Petition").)

Scott timely filed this petition on Aug. 18, 2010, and it is not barred for failure to exhaust state court remedies. In his petition, he raises the following issues: (1) his trial counsel was ineffective for failing to interview Lawrence Jones, the victim's brother, and for stipulating to ballistics testimony by the state's expert; (2) that newly discovered evidence indicates that members of a rival gang framed Scott, and his post-conviction counsel failed to amend Scott's post-conviction petition to include this evidence; (3) that prosecutorial misconduct occurred when the prosecution mischaracterized the evidence and trial and the trial court repeated those misstatements in finding Scott guilty; (4) that his trial attorney was suspended from the practice of law in 2008 for ineffective assistance and substance abuse that occurred near the time of Scott's trial. For the reasons stated herein, Scott's petition is denied.

BACKGROUND

1. Evidence at Trial

The following facts are taken from the Illinois Appellate Court's ruling affirming Scott's conviction and sentence. (Dkt. No. 18, Ex. A (People v. Scott, No. 1--97--0186 (Ill. App. Ct. April 24, 1998) (unpublished order pursuant to Illinois Supreme Court Rule 23) ("Direct Appeal.").)

Woodrow Jones ("Woodrow"), the victim's uncle, testified as follows. At 4 p.m. on Jan. 5, 1993, Woodrow and his cousin, Johnnie Darty, were driving in Chicago near East 107th Street and Champlain Avenue when they saw Jones, Carlos Alcantar, and Janta Parsons. After the three men got into Woodrow's vehicle, a group of young women they knew ran across the street in front of them. Jones, Alcantar, and Parsons got out of the car and followed the women. Woodrow followed them in his car and parked alongside a building at 107th Street and Langley Avenue. Woodrow heard a commotion and saw Scott run out of the building with a young woman who tried to grab his arm. Scott walked to a green van nearby. Woodrow saw him enter the van on the driver's side, stand on a ramp on the van, and point a gun toward the people in front of the building. Woodrow heard gunshots, and Jones, Alcantar, and Parsons ran back to Woodrow's car. Woodrow heard the van back up and stop three to four inches from his car. The van was facing west and his car was facing east. Woodrow looked up, saw Scott with a gun, and told everyone to lie on the floor of the car. Woodrow heard two shots, and then heard the van drive away. As Woodrow drove away, he noticed that his rear window was shattered and that Jones had been shot. Woodrow identified Scott as the shooter from a photo array.

On cross-examination, defense counsel asked Woodrow if he knew anyone affiliated with the Four Corner Hustlers street gang or if anyone in his car on the day of the shooting was affiliated with the gang. The trial court sustained the prosecutor's objection based on relevance.

The testimony of the prosecution's other witnesses was substantially similar to Woodrow's account. Alcantar, who was the victim's cousin, testified that he saw a group of people in front of the apartment building of Tamiko Richardson,*fn1 who had been Scott's girlfriend at the time of the shooting. Alcantar saw Scott leave the building and heard Scott say that someone had stolen his hubcaps. Scott then began to shoot at the crowd.

On cross-examination, defense counsel asked Alcantar if he was a member of the Four Corner Hustlers gang. The trial court overruled the prosecutor's objection to the question, and Alcantar denied being a member of the gang. Alcantar said the neighborhood where the shooting occurred was Four Corner Hustlers gang territory, but there were other gangs in the neighborhood as well. Alcantar said he did not know any of the people standing in front of the building to be members of the Four Corner Hustlers gang.

Richardson also testified on behalf of the state. Richardson said that on the day of the shooting Scott and some friends were at her apartment located at 107th Street and Langley Avenue. When Richardson and her friends walked Scott to the door, they told him to check his van because there were thieves in the neighborhood. Scott discovered that his hubcaps were missing, and Richardson saw him ask the group of people standing in front of the building if they knew what happened to his hubcaps. Richardson saw Scott open the hood of his van, remove a handgun, and fire three shots into the air. Richardson did not hear any further gunfire.

On cross-examination, Richardson testified that one of the windows to her apartment was broken about two hours after the shooting. She also said that men in her neighborhood who were members of the Four Corners Hustlers gang told her she had to tell police the identity of the shooter.

Angela Jackson, another witness for the state, testified that she saw Scott open the hood of his van, pull a gun out of a brown paper bag, and shoot toward the crowd on the corner. Jackson then saw Scott's van pull up to the side of Woodrow's car, and heard two or three shots before the van pulled off toward 107th Street and Cottage Grove Avenue. She did not see anyone else with a gun or hear any other shots fired.

Shemika Coles testified for the defense. Coles said that ten to fifteen people were outside when she saw Scott lift the hood of his van and remove a small gun. Scott asked the crowd if anyone knew what happened to his hubcaps. No one responded, and Scott began firing shots into the air. Coles heard three shots and saw Scott put his van in reverse and leave.

Scott testified that he was at Richardson's home at 107th Street and Langley Avenue for about two and a half hours on Jan. 5, 1993. Richardson, Coles, and another woman walked Scott to his van because Richardson did not want anyone in her neighborhood to know that she and Scott were dating. Defense counsel attempted to ask Scott if he was affiliated with a gang, but the prosecutor objected on the basis of relevance, and the trial court judge sustained the objection.

Upon leaving Richardson's apartment, Scott heard whistling and saw two men running.

Richardson then told Scott that his hubcaps were missing, and Scott noticed that both of the door handles on his van were broken. Scott asked four men walking by if they had seen what happened to his van. Scott testified that they smirked and kept walking. Scott repeated the question. Richardson urged Scott to leave. As he got in his van, Scott heard two gunshots. Scott laid on the floor of his van, looked up and saw two men with guns running toward 107th Street on the sidewalk, approximately six to seven car lengths from his van. Scott then reached under his car seat, grabbed a .25-caliber automatic pistol, and fired it out of the driver's side window twice in the direction of 107th Street and Langley Avenue.

Scott testified that after he fired the first two shots, his gun jammed. He put his van in reverse and made a right turn on 107th Street heading westbound. Scott heard more gunshots as he entered the intersection. He saw a man in the alley behind Richardson's building fire a gun. Scott then drove home. Once there, he and his cousin inspected the gun and discovered that it had too much oil in it. Scott testified that his cousin took the gun to clean it, and denied telling his cousin to hide or destroy the gun. Later, Richardson told him that someone had been shot, and the police wanted to speak with him. Scott surrendered to police.

2. Appeal and Subsequent Proceedings

Scott appealed his conviction, arguing that: (1) he was denied a fair trial by the trial court's rulings excluding testimony about gang affiliation, which prevented him from revealing the bias of certain witnesses; and (2) the evidence was insufficient to prove him guilty behind a reasonable doubt. The Illinois Appellate Court rejected these arguments and affirmed his conviction. (Direct Appeal, 7--9.) Scott did not file a petition for leave to appeal with the Illinois Supreme Court or a petition for writ of certiorari to the U.S. Supreme Court. (Petition, 2.)

On Jan. 20, 1999, Scott filed a post-conviction petition in the Circuit Court of Cook County. (Dkt. No. 18, Ex. I, C37--C65 ("Post-Conviction Petition").) In that petition, Scott argued: (1) that his trial counsel was ineffective for (a) failing to impeach Tamiko Richardson; (b) failing to impeach Carlos Alcantar; (c) failing to investigate or interview any witnesses to the crime; (d) failing to interview and call Lawrence Jones ("Lawrence"), who would have testified that he and Alcantar were armed and fired at Scott; (e) failing to subpoena Janta Parsons, Steve Millet, and Arnold Romeo*fn2 , all of whom would have corroborated Scott's version of events; and (f) providing Scott with poor representation because he and his family were unable to pay attorney's fees; (2) that Scott was convicted based on perjured testimony because a new affidavit from Lawrence contradicted the state's witnesses at trial; (3) that he was denied a fair trial by ...


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