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Shanard Lesure v. Michael P. Atchison

May 22, 2012

SHANARD LESURE, PETITIONER,
v.
MICHAEL P. ATCHISON,
RESPONDENT.



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

MEMORANDUM OPINION AND ORDER

Petitioner Shanard Lesure*fn1 was convicted of the 1997 murder of 16-year-old Porche*fn2 Smith and the attempted murder of her companion, Emil Clark. Lesure has filed a Petition for a Writ of Habeas Corpus.*fn3 For the reasons stated herein, the Petition is denied, and I decline to issue a Certificate of Appealability.

I.

The following facts are taken from the Illinois Appellate Court rulings affirming Lesure's conviction and the denial of his petition for post-conviction relief. People v. Lesure, No. 1-99-0909 (Ill. App. Ct. March 17, 2000) (unpublished order pursuant to Illinois Supreme Court Rule 23); People v. Lesure, 944 N.E.2d 780 (Ill. App. Ct. 2011). Relevant facts from the trial court's written ruling denying post-conviction relief also are included. People v. Lesure, 98-CR-4529-01 (Cook Cty. Cir. Ct. July 18, 2008).

After a bench trial, Lesure was convicted of first-degree murder and attempted first-degree murder. He did not contest the sufficiency of the evidence on appeal. The evidence showed that on the evening of July 6, 1997, Lesure, a member of the Gangster Disciples ("GD") street gang, was riding in a van on the city's southwest side with other gang members when members of a rival faction opened fire. Lesure, then 15 years old, spoke with a fellow GD member, Carlton Reed, about taking revenge on the shooters.

Hours later, in the early morning hours of July 7, 1997, Smith and Clark were shot at the intersection of 63rd and Artesian streets in Chicago. At trial, Clark identified Lesure as one of the men who came out of an alley adjacent to Artesian Street and opened fire. Clark was shot in the abdomen and a second time in the leg after he fell to the ground. Smith suffered two gunshot wounds to the head and died at the scene. Smith and Clark were not involved in the earlier shooting.

After the shooting, Lesure hid out in the apartment of Odell Harris, a fellow gang member, for about five days in an effort to evade the police. Harris testified at trial that Lesure told him he had shot a man and a woman who walked past the gangway at 63rd and Artesian streets. Lesure was arrested about six months later, and Clark identified him in a line-up as one of the shooters.

Lesure was convicted of murder and attempted murder. He was sentenced to 50 years in prison for murder, but was incorrectly sentenced to a consecutive term of 25 years in prison on a charge of aggravated battery with a firearm, even though he had not been convicted of that offense. On direct appeal, the Illinois Appellate Court vacated the 25-year sentence and remanded for sentencing on the proper offense, attempted murder. The trial court subsequently imposed a consecutive 25-year sentence for attempted murder.

Lesure then filed a post-conviction petition, in which he argued that he was actually innocent based on an affidavit from Clark in which he recanted his identification of Lesure as one of the shooters. At an evidentiary hearing, Clark testified that Lesure did not shoot him, and that he falsely identified Lesure as the shooter because police pressured him to do so and told him they had other evidence linking Lesure to the crime. Clark also testified that Lesure's mother helped him draft his affidavit recanting his prior testimony. The two police detectives who brought Clark to view the line-up, Jean Romic and Thomas Benoit, testified that they did not pressure Clark or encourage him to identify Lesure as the shooter. LaDonna Smith, Porche Smith's sister, testified that during the trial, she and her relatives were harassed by an unidentified group of young men in the parking lot of the courthouse. LaDonna Smith also testified that Lesure's sister made threatening statements toward the Smith family in the courtroom gallery. After the trial, the family moved from their home because someone had attempted to break in, and they no longer felt safe in their home.

On July 9, 2008, the trial court dismissed the petition, with a written order issued on July 18, 2008. The trial court found:

(1) Clark's recantation was not credible; and (2) that even if it had been credible, the other evidence at trial was sufficient to prove Lesure guilty beyond a reasonable doubt. Lesure appealed the dismissal of the petition, but did not raise the issue of Clark's recantation. Rather, Lesure argued that he was unlawfully sentenced as an adult on the attempted murder charge. The appeals court rejected this argument and affirmed the dismissal of his post-conviction petition.

While that appeal was pending, Lesure unsuccessfully tried to file a pro se supplemental brief, even though he was represented by counsel. In that brief, Lesure argued that his due process rights were violated: (1) when the trial court applied the wrong materiality standard when denying his claim that the state had used perjured testimony by Clark; (2) by the trial court's consideration of matters not in evidence, particularly the trial court's consideration of LaDonna Smith's testimony as to the threats against her family; and (3) by the state's improper arguments during the post-conviction hearing, which implied that Clark had been threatened or intimidated by the Lesure family.

Lesure then filed a petition for leave to appeal that ruling to the Illinois Supreme Court that raised the same arguments as those in his pro se supplemental brief. The Illinois Supreme Court denied the petition.

Subsequently, on Aug. 25, 2011, Lesure filed the instant petition for habeas relief. I note that it is sparse on facts, but raises the same claims as found in his pro se supplemental brief, although phrased somewhat differently.*fn4 In particular, Lesure ...


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