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United States of America Ex Rel. Ray Fergerson v. Mike Atchison

February 22, 2012

UNITED STATES OF AMERICA EX REL. RAY FERGERSON, PETITIONER,
v.
MIKE ATCHISON, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

An Illinois jury convicted Ray Fergerson of first-degree murder. The trial judge sentenced him to a prison term of life without parole. Fergerson has petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254. He contends that the prosecution withheld material exculpatory evidence from him and used perjured testimony and that his trial and appellate counsel rendered ineffective assistance. Respondent has moved to dismiss Fergerson's petition as untimely and on the ground that certain of his claims are not sufficiently specific. For the reasons stated below, the Court denies respondent's motion to dismiss.

Background

Willie Bibbs was murdered on June 14, 1981 on the south side of Chicago. Prosecutors initially tried Earl Hawkins, a member of the El Rukn gang, for the murder, and a jury acquitted him.

Prosecutors later charged Hawkins and a fellow gang member in an unrelated double homicide. They were tried in a bench trial before Circuit Court Judge Thomas Maloney. Before trial, Hawkins's lawyer arranged to pay Maloney $10,000 to ensure a not guilty verdict. People v. Hawkins, 181 Ill. 2d 41, 47, 690 N.E.2d 999, 1001 (1998). The lawyer delivered $10,000 in cash to Maloney on the first day of the trial. Maloney, however, was concerned about an ongoing FBI investigation into bribery in the Chicago courts, so he returned the money. Maloney then found both defendants guilty. He sentenced Hawkins to death on September 19, 1986. Id. at 45, 690 N.E.2d at 1001.

Chicago Police Detective Daniel Brannigan observed parts of Hawkins's trial. He was working with the federal government because the FBI suspected that Maloney was accepting bribes. After the conclusion of the trial, Hawkins contacted Brannigan while his appeal was still pending. He offered to help Brannigan, in exchange for getting help himself.

In 1988, Fergerson and three other members of the El Rukn gang were tried for the Bibbs murder. Hawkins testified against them as a witness for the prosecution. He admitted that he wanted to benefit from his testimony but said that the government had not promised him anything. The jury convicted Fergerson and the others on November 18, 1988.

After Fergerson's conviction, he appealed to the Illinois Appellate Court, which affirmed the conviction on June 4, 1993. Respondent claims that Fergerson did not file a petition for leave to appeal (PLA) with the Illinois Supreme Court, and Fergerson does not contest this fact. Fergerson's exhibits, however, include a letter from his public defender stating that the Supreme Court denied his PLA on October 6, 1993. Pet.'s Resp. at 70.

In 1991, a federal grand jury indicted Maloney for several bribery-related offenses. Hawkins, who was still under a sentence of death, agreed to testify as a witness against Maloney. At some point, Hawkins pleaded guilty to federal criminal charges as part of plea agreement under which he also promised to cooperate with federal and state authorities. Id. at 74, 77. A federal jury convicted Maloney on April 16, 1993. United States v. Maloney, 71 F.3d 645, 652 (7th Cir. 1995).

After Maloney was convicted, Hawkins initiated a post-conviction proceeding in state court seeking to have his murder conviction vacated. On January 29, 1998, the Illinois Supreme Court vacated Hawkins's conviction and ordered a new trial. Hawkins, 181 Ill. 2d at 64, 690 N.E.2d at 1009. Prosecutors declined to seek the death penalty on retrial, and Hawkins eventually pleaded guilty in exchange for a sentence that gave him the possibility of parole when he turns seventy-two.

In early February 1998, Fergerson received a letter from his former public defender telling him that Hawkins's conviction had been vacated. The public defender attached a newspaper article about Hawkins's case. He suggested that Fergerson seek post-conviction relief on the basis that prosecutors had not disclosed to him at the time of his trial that Hawkins had tried to bribe a judge and was likely to have his conviction overturned.

Fergerson filed a pro se petition for post-conviction relief in state court on March 25, 1998. The trial court dismissed the petition as frivolous on June 23, 1998. Fergerson appealed, and the Illinois Appellate Court reversed in 2001. On remand, the state trial court held an evidentiary hearing on Fergerson's claims. The court denied the petition after finding that Fergerson had not shown that prosecutors withheld any significant evidence. Fergerson appealed, and Illinois Appellate Court affirmed on April 18, 2008. The Illinois Supreme Court denied his PLA on September 24, 2008.

Fergerson filed a successive post-conviction petition in state court, and the trial court denied it on March 6, 2009. Fergerson appealed. The Illinois Appellate Court affirmed on November 24, 2010, and the ...


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