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United States of America Ex Rel. Bernard G. Ferguson v. Nedra Chandler

May 21, 2012

UNITED STATES OF AMERICA EX REL. BERNARD G. FERGUSON, PETITIONER,
v.
NEDRA CHANDLER, WARDEN, DIXON CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

In September 1992, Petitioner Bernard Ferguson shot and killed Michael Myles when a drug deal went awry. At the conclusion of a bench trial in April 1995, the court convicted Petitioner of first-degree murder, as well as two counts of attempted armed robbery, and sentenced him to forty years in prison. Petitioner unsuccessfully challenged his conviction on direct appeal, and, more than twelve years later, his protracted post-conviction proceedings have finally ended in dismissal. Petitioner now seeks a writ of habeas corpus from this court, arguing that his constitutional rights were violated by the trial court's evidentiary rulings and by various shortcomings in his state court post-conviction proceedings.

This is Petitioner's third habeas petition in federal court. The court dismissed the first two petitions, filed in 2000 and 2004, without prejudice, on the basis that Petitioner had not yet exhausted his state court remedies and that delay in resolution of his state petitions was the result of his own (or his counsel's) actions. He filed this third petition in 2007, but the court again rejected the argument that the State was causing inordinate delay. The court stayed the third petition pending the final adjudication of the state court post-conviction petition. When those proceedings finally ended in 2010, Petitioner filed a supplemental habeas petition, alleging additional claims, and the court lifted the stay. For the reasons explained herein, all but one of the claims put forth in Petitioner's third habeas petition, and in his supplemental habeas petition, either fail to raise an issue of constitutional or federal law or are procedurally defaulted. The only remaining claim-an alleged Confrontation Clause violation-is without merit. Therefore, the court dismisses the petition.

FACTUAL BACKGROUND*fn1

I. Crime and Conviction

In the early morning of September 4, 1992, Petitioner closed down the liquor store where he worked part-time and went home to drink beer with his girlfriend, Rhonda Cook. (Direct Review Order at 1.) Petitioner also worked part-time as a police officer for the Village of Robbins, but he was serving a three-day suspension for wearing an earring and for preparing a "sloppy" report. (Id.; Br. and Arg. for Pl.-Appellee (hereinafter "State's Br. on Direct Review"), Ex. E to State Ct. R., at 12.) At around 4 a.m., Petitioner borrowed eight dollars from Cook and left his trailer (Direct Review Order at 1), seeking to purchase drugs.*fn2 (State's Br. on Direct Review at 7-8.)

On a residential street "not far away" from his trailer, Petitioner encountered George White and Larry Williams drinking beers on a front porch. (Direct Review Order at 1, 3, 5.) Petitioner told them, "I got 8 bucks for a rock"; while they conversed, Michael Myles and Corey Williams pulled up in a blue van.*fn3 (Id. at 2-3.) According to Petitioner's own statement to ASA Demacopoulos, he purchased a small bag of white powder from the men in the van for $9.80. (Id. at 4.) Shortly thereafter, Petitioner tasted the powder and realized it was "soap," i.e., bad drugs. (Id.) He set out to find Myles and Corey Williams so he could recoup his money, and he quickly found their blue van stopped at a nearby railroad crossing. (Id. at 5.) Petitioner returned to his trailer, told Cook that someone sold him some "soap," and asked for the brown bag in which he typically kept his service revolver. (Id. at 4.) Cook handed him the bag and Petitioner again left the trailer. (Id.)

Petitioner returned to the tracks and found the blue van still there as Myles, the driver, and Corey Williams, the passenger, waited for a train to pass. (Direct Review Order at 5.) Petitioner got out of his car, approached the driver's side of the van with his gun drawn, and ordered the two men out of the van. (State's Br. on Direct Review at 8.) When Myles tried to drive away, Petitioner fired. (Id.) The bullet flew through the open driver's side window of the van; it struck Myles under his left arm, passed through his heart and lungs, and lodged itself on the right side of his chest cavity. (Trial Tr. at 69.) Somehow, Myles managed to keep driving. (State's Br. on Direct Review at 14.) Petitioner got back in his car and followed the van as it traveled a few more blocks before coming to a stop. (Direct Review Order at 2; State's Br. on Direct Review at 14.) Corey Williams jumped out and called for help. (Direct Review Order at 2.) At that point, Petitioner decided to return home. (State's Br. on Direct Review at 14.) When police eventually arrived at the scene, they found Myles dead in the driver's seat of the van. (Direct Review Order at 2.)

After the shooting, Petitioner made his way home, discarding the empty shell casing in a wood pile near his trailer.*fn4 (State's Br. on Direct Review at 9.) He parked his car a block from home. (Direct Review Order at 2.) Once inside, Petitioner told Cook that he may have shot someone. (Id.) He listened to his police scanner and heard a description of his own car. (Id.; Trial Tr. at 70.) He inserted a new bullet into his revolver, replacing the spent cartridge he had removed. (State's Br. on Direct Review at 9.) Minutes later, Chicago Police Detectives Gerald McGovern, Roman Arbataitis, and George Winistorfer knocked on Petitioner's door. (Direct Review Order at 2; State's Br. on Direct Review at 10.) Petitioner let them in, showed them the revolver, and told them where he had thrown the spent casing, which the detectives retrieved. (State's Br. on Direct Review at 10.) Then, in an apparent effort to cooperate further, Petitioner accompanied the detectives to the police station so they could conduct a formal interview. (Id. at 11.)

ASA Demacopoulos also interviewed Petitioner at the station the morning after the shooting. According to her trial testimony, Petitioner told her that he left the trailer to make a few small repairs to his car and to purchase cocaine with the eight dollars Cook had given him. (State's Br. on Direct Review at 12.) Petitioner admitted giving Myles and Corey Williams $9.80 for a small bag of cocaine, and explained that after they drove off, he tasted it and realized he had purchased bad drugs. (Id. at 13.) Petitioner told Demacopoulos that, after realizing this, he headed out, saw the van by the railroad tracks, retrieved his revolver, and returned to the tracks. (Id.) He approached the driver's side with his gun drawn, asked for his money back, and when Myles started to drive off, he fired his gun. (Id.)

Demacopoulos testified that, at the conclusion of the interview, Petitioner agreed to sign a statement and she left to prepare the document. (Id. at 14.) When Demacopoulos returned, Petitioner reviewed the written statement line by line and she made changes as Petitioner requested them. (Id.) He asked her to delete the segment describing his initial effort to buy cocaine from Larry Williams and White and to add a statement that, when he did buy cocaine from Corey Williams and Myles, he thought he saw one of the men reach for an object that may have been a weapon. (State's Br. on Direct Review at 14.) He also amended his statement to say that, as he approached the van at the train crossing, Myles began to drive toward him, and Petitioner yelled "'Hold, stop, stop.'" (Id. at 14-15; Direct Review Order at 5.) Petitioner did not initial any of the changes as Demacopoulos made them. (State's Br. on Direct Review at 15.) After reviewing the final version of the statement, Petitioner declined to sign it until his lawyer reviewed it.*fn5 (Id.) ASA Demacopoulos and Detective McGovern initialed the changes in Petitioner's presence before leaving. (Id.)

Petitioner was charged with three counts of murder*fn6 , two counts of attempted armed robbery, and two counts of armed violence. (State's Br. on Direct Review at 7.) He waived his right to a jury trial and instead opted for a bench trial that took place in April 1995. (Id. at 17.) At the trial, Petitioner testified that he fired his weapon in self-defense. (Direct Review Order at 6-7.) According to Petitioner's account at trial, he left his home in the early hours of September 4, 1992, to get air for his tires and water for his radiator and to pick up food for Cook. (Id. at 5.) The electrical system in his car failed in front of the house where White and Larry Williams were sitting on the porch and drinking beers. (Id.) Petitioner claimed that, as he chatted with the two men and worked under the hood of his car, a blue van drove by and one of the passengers yelled something unintelligible at him. (Id.)

Petitioner claimed that, after fixing the car's electrical system, he stopped by a gas station for air and water and was on his way to a fast food restaurant when he pulled up behind the same blue van at a train crossing. (Direct Review Order at 5.) At that point, Petitioner testified, his car again died. (Id.) As Petitioner returned to working under the hood of his car, Petitioner recalled, Corey Williams approached him from behind, pulled out a gun, and demanded money. (Id. at 5-6.) Petitioner stated that as he gave Corey the eight dollars, the van made a U-turn. (Id. at 6.) When Corey returned to the van, Petitioner retrieved his service revolver from his car, identified himself as police, and ordered Corey and Myles to freeze. (Id.) Petitioner testified that although Myles raised his hands, Corey grabbed the wheel of the van and started driving toward Petitioner, aiming a gun in Petitioner's direction. (Id.) Petitioner testified that he fired his own revolver in self-defense just as the van swerved away from him. (Id.) On the stand, Petitioner also stated that he routinely listened to the police scanner for his job, that he had never purchased or taken drugs, and that both of his jobs required random drug testing. (Id.) In fact, Petitioner sought to introduce evidence that, at the time of the shooting, he was expecting the Robbins Police Department to administer a random drug test in the near future, but the court found that testimony irrelevant and excluded it. (Id.)

On cross-examination, Petitioner denied returning to his trailer to retrieve his service revolver and denied, further, telling Cook that someone had sold him "soap." (State's Br. on Direct Review at 21.) In rebuttal, the State called Detectives McGovern and Winistorfer to testify that Petitioner did not mention an alleged robbery attempt by Corey Williams when they spoke with Petitioner at his trailer after the shooting nor when they interviewed him later that morning at the police station. (Direct Review Order at 6; State's Br. on Direct Review at 22-23.) Nor did Petitioner ever say that either person in the van had brandished a gun or any other weapon. (Id.) ASA Demacopoulos also testified that in Petitioner's initial account of the shooting, he stated that he walked up to the van, ordered Myles and Corey Williams to get out, and, when Myles started to drive off, the gun discharged. (Direct Review Order at 5.)

The trial court did not find Petitioner's testimony credible. Petitioner had made too many conflicting and inconsistent statements about the events of that early morning, stated the court. (Trial Tr. at 71.) The court specifically commented on Petitioner's account of the events immediately preceding the shooting; the court found that account most unbelievable and observed that "an inadvertent shooting . . . factually couldn't have occurred the way [Petitioner] . . . said it occurred." (Id. at 72.) The court noted that the physical evidence was inconsistent with Petitioner's statement that the van was headed toward him but swerved away just as he fired his gun: the bullet's trajectory was through the open driver's side window (no other windows were open or had been pierced by a bullet) before it entered Myles's chest cavity on his left side and traveled to the right side, making it far more likely that the van was passing by Petitioner when he fired. (Id. at 72-73.) The trial court also pointed out that Petitioner had tuned his police scanner to calls from Chicago, where he lived and where the shooting occurred, rather than to calls from Robbins, where he worked as a part-time police officer. (Direct Review Order at 7.) Although Petitioner had eventually shown police his service revolver and the empty shell casing, the trial court noted that he initially attempted to conceal the discharged cartridge in a wood pile behind his trailer and that he made no attempt to report the incident. (Direct Review Order at 2; Trial Tr. at 70.) The court found Petitioner guilty of first-degree murder and of attempted armed robbery. (Direct Review Order at 8.)

At sentencing, over Petitioner's objection, the court took account of Petitioner's statement, reported in the pre-sentence investigation report, that "'if he was convicted he would see that [his attorney] never practiced law . . . again."' (Id. at 8.) In his allocution, Petitioner stood by his assertion that the killing was accidental and blamed Corey Williams for brandishing a gun. (Id. at 8.) The court considered these statements, as well as Petitioner's use of his service revolver in the commission of his crimes, as aggravating factors, and sentenced Petitioner to forty-five years in custody. (Id. at 8-10.) One week later, the court granted, in part, Petitioner's motion to reduce the sentence and lowered his term to forty years. (Id. at 10.)

Through counsel, Petitioner challenged his convictions on direct appeal, claiming that:

(I) the State failed to prove his guilt beyond a reasonable doubt;

(ii) the trial court's findings of facts were clearly erroneous because the court improperly relied on the testimony of Cook and White and made findings about the trajectory of the ...


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