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United States of America Ex Rel. v. Mike Atchison

March 7, 2012


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge


Petitioner Michael Banks brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For all the reasons that follow, his petition is denied.

Following a 2006 jury trial in the Circuit Court of Cook County, Illinois, petitioner was convicted of murder, armed robbery and concealment of a homicidal death. Petitioner acted as his own attorney at trial, but was represented by counsel during pre- and post-trial proceedings, and at sentencing. The trial court sentenced petitioner as an habitual criminal to natural life imprisonment for murder, plus thirty years for armed robbery, and five years for concealment of a homicidal death.

After his appeals, pro se habeas corpus complaints, and state post-conviction petition were unsuccessful, petitioner filed a pro se § 2254 petition, raising four claims: (1) the trial court lacked subject-matter jurisdiction; (2) pre-trial counsel rendered ineffective assistance of counsel; (3) appellate counsel pursued only two issues on direct appeal and excluded nine additional meritorious issues; and (4) the trial court erred in failing to inquire into petitioner's allegations of ineffective assistance of counsel and left him with no choice but to waive counsel and represent himself.


The state appellate court's recitation of the facts in this case, which is presumed correct, 28 U.S.C. § 2254(e)(1), is as follows:

The undisputed evidence at [petitioner's] trial established that on March 24, 2001, [petitioner] fatally stabbed the victim Neal Washington. Thus, the primary issues at trial were whether the victim had been robbed and whether [petitioner] acted in self defense.

The State represented, primarily through the testimony of co-defendant Cuntrenna Wright, that she and [petitioner] fatally stabbed the victim during the course of the robbery. Wright testified that prior to [petitioner's] trial she had pled guilty to armed robbery and aggravated battery in connection with the victim's murder and had agreed to testify truthfully at [petitioner's] trial. Wright further testified that as a result of her guilty plea the pending first degree murder charges against her had been dismissed.

According to Wright, at the time of the stabbing, [petitioner] was her boyfriend and they were living together in an abandoned two-story house located at 7443 South Drexel Avenue. Wright explained that she shared a bedroom with [petitioner] on the first floor of that residence. Wright and [petitioner] also permitted other individuals to stay at the house.

In regard to the day of the victim's murder, Wright testified that in the afternoon she went to her friend Karen's house to purchase crack cocaine and smoke it. When Wright arrived, she encountered the victim. Wright observed that the victim appeared to be intoxicated because he smelled of liquor, he could not stand up on his own, and his speech was slurred. Wright testified that she knew the victim by his nickname "Country" and had known him for about four or five years. Wright explained that on previous occasions the victim had purchased narcotics and used them at Karen's house. Wright further testified that the victim occasionally provided her with narcotics in exchange for sex. According to Wright, the victim was angry because someone inside the house had taken his money, but had failed to provide him with narcotics. The victim told Wright that he wanted to leave with her so they left Karen's house together. Wright and the victim walked to an area near the intersection of Cottage Grove Avenue and 75th Street to purchase narcotics and then the victim gave Wright $20 to purchase narcotics. When the victim gave Wright that money, Wright saw that the victim possessed a large sum of money. Shortly thereafter, Wright got inside a car with an unidentified individual and drove around the block and ultimately purchased narcotics from that individual. Upon Wright's return to the victim's location, Wright saw [petitioner] walking towards the victim. . . . At some point, Wright, [petitioner] and the victim agreed to walk together to the abandoned house on South Drexel Avenue. As they walked, Wright told [petitioner] that the victim "had money on him." Wright maintained that the victim believed that he was going to the house to have sex with her and to use narcotics. Eventually, Wright, [petitioner], and the victim arrived at the abandoned house and went inside to the first floor. Wright stated that the house's interior temperature was very hot so the victim removed his shirt. As Wright searched the house for a crack pipe, she went to the bedroom and [petitioner] followed her inside that room. Wright testified that as she and [petitioner] were alone in the bedroom they discussed the victim's money and agreed to rob the victim. [Petitioner] left the bedroom to talk to the victim. Thereafter, Wright exited the bedroom and saw [petitioner] and the victim talking near a bar area inside the house. Wright heard the victim telling [petitioner] about the individuals who had taken the victim's money at Karen's house. At some point, [petitioner] instructed Wright to retrieve a knife from the bedroom, and Wright complied. Wright described the knife as a twelve-inch hunting knife with a blade that was approximately six inches long. Wright testified that when she gave the knife to [petitioner], the victim was standing next to the bar and holding onto the bar because he was intoxicated. Shortly after Wright gave [petitioner] the knife, Wright saw [petitioner] stab the victim in the chest and then the victim fell to the floor. As the victim laid on the floor, Wright heard the victim make "gurgling sounds." Neither Wright not [sic] [petitioner] contacted the police or called for an ambulance after the stabbing.

Ex. A at 2-11. After stabbing the victim, petitioner and Wright took the victim's wallet, which contained $70, and moved the victim's body. According to Wright, the victim did not attempt to hit petitioner or her. On March 27, 2001, after being stopped by the police, Wright told them her account of the murder.

At trial, petitioner testified in his own defense. He admitted that he stabbed the victim, but maintained that he did so only in defense of Wright. According to petitioner, he was inside the house alone when Wright arrived and told him about what had happened at Karen's house. While they were talking, the victim entered the house without permission and threatened to beat Wright, which make petitioner believe that he had to defend her. Petitioner further admitted that he moved the body.

Officer Robert Bartik testified at trial that petitioner initially denied knowing the victim and denied any involvement in the murder. Petitioner later told Bartik that the victim had entered the house, asked to talk to Wright, and shoved Wright. Petitioner claimed he and the victim then struggled with each other until Wright gave him a knife, which petitioner used to stab the victim. During a subsequent interview, petitioner recanted his inculpatory statement and told Bartik that Wright had stabbed the victim and he helped Wright move the body to the basement.

Following closing arguments, the jury found petitioner guilty of first degree murder, armed robbery, and ...

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