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Levell Taylor v. Randy Grounds

June 14, 2012


The opinion of the court was delivered by: Judge Feinerman


Petitioner Levell Taylor, a state inmate serving a thirty-five year sentence for first degree murder, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Taylor initially named as respondent Andy Ott, the warden of Graham Correctional Center, where Taylor was incarcerated when he filed his petition. See Rule 2(a) of the Rules Governing Section 2254 Cases. Because Taylor is now incarcerated at Robinson Correctional Center, the proper respondent is Randy Grounds, the warden of that facility. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) ("the proper respondent is the warden of the facility where the prisoner is being held"). Accordingly, Grounds is substituted for Ott as the respondent. See Fed. R. Civ. P. 25(c); Bridges v. Chambers, 425 F.3d 1048, 1049 (7th Cir. 2005) ("if the custodian is named or can be substituted as respondent, the suit can continue, though the respondent who is not a custodian should be dropped") (citations omitted).

Taylor seeks habeas relief on the ground that he received ineffective assistance of counsel at trial, in violation of the Sixth and Fourteenth Amendments. Taylor's habeas petition is denied, but a certificate of appealability is issued.


A federal habeas court presumes correct the factual findings made by the last state court to adjudicate the case on the merits, unless those findings are rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010); Ward v. Sternes, 334 F.3d 696, 704 (7th Cir. 2003). The last state court to make factual findings was the Supreme Court of Illinois in People v. Taylor, 930 N.E.2d 959 (Ill. 2010). As shown below, Taylor has not shown by clear and convincing evidence that any of those findings are incorrect. The following sets forth the facts found by the state supreme court as well as the history of Taylor's criminal proceedings in state court.

A. Factual Background

On August 11, 1996, Bruce Carter, Keith Baker, and four friends-all members of a west side Chicago street gang-drove in Carter's car to the house of Tyeshia Clinton's mother for a barbeque. Carter parked his car near the side of the house. Carter and Baker went to the front yard and chatted with Clinton. They were approached by members of a south side Chicago street gang, including Taylor, his brother Lowell Taylor (referred to herein as "Lowell"), and Duante Anderson. After shouting "You don't know where you at. You in Motown"-the south side gang called its turf "Motown"-Anderson approached Carter and punched him in the face. Baker and Carter were forced to the ground in the ensuing melee and were kicked by Anderson, Taylor, and Lowell. Carter's car windows were smashed. Carter and Baker eventually broke away and ran toward the front door of the house. Witnesses heard two gun shots. Carter was shot and died shortly thereafter from internal bleeding. See Taylor, 930 N.E.2d at 962-63.

Chicago Police Detective James O'Brien interviewed Baker and several other witnesses. Baker told O'Brien that Anderson punched Carter, that Taylor passed a gun to Lowell, and that Lowell shot Carter. O'Brien also interviewed Phillip Marshall, a south side gang member. Marshall later testified to a grand jury that he had known Anderson, Taylor, and Lowell all of his life, and that on the date in question, he was standing across the street from the front yard of the Clinton house and saw the fight begin, heard gunshots, and saw Lowell holding a gun while running away from the front yard. No gun was recovered. See id. at 963.

B. Trial and Direct Appeal

The grand jury indicted Anderson, Taylor, and Lowell for first degree murder. The three defendants were tried in separate but simultaneous trials. Taylor and Anderson opted for a bench trial, while Lowell chose a jury trial. See ibid. Illinois law allows simultaneous trials against two or more criminal defendants so long as evidence admissible against one defendant is not considered against any other defendant. See Mack v. Peters, 80 F.3d 230, 235 (7th Cir. 1996); People v. Schmidt, 545 N.E.2d 665, 666, 669 (Ill. 1989); People v. Crossley, 603 N.E.2d 575, 581-82 (Ill. App. 1992); People v. Gholston, 464 N.E.2d 1179, 1189 (Ill. App. 1984).

Taylor and Lowell both were represented by Raymond Prusak, while a different attorney represented Anderson. The prosecution's theory of the case was that Lowell was guilty of first degree murder because he shot Carter, and that Anderson and Taylor were legally accountable for Lowell's acts. Baker testified at trial that he saw Anderson punch Carter, that he saw Taylor hand a gun to Lowell, and that he saw Lowell shoot Carter. When Marshall testified, he recanted his grand jury testimony about seeing Lowell with a gun after the shooting. Marshall's grand jury testimony then was read into the record for impeachment purposes. See Taylor, 930 N.E.2d at 963.

Anderson's attorney and Prusak both cross-examined the prosecution witnesses. No defendant testified or offered any witnesses or other evidence. During closing arguments, Anderson's counsel and Prusak attacked the credibility of the prosecution witnesses and described purported discrepancies in their testimony. Their theory of the case was that guilt was not proven beyond a reasonable doubt. See id. at 963-64.

The jury convicted Lowell. The trial judge acquitted Anderson but convicted Taylor, finding that he had handed the gun to Lowell and thus was legally accountable for the murder. See id. at 964. Taylor and Lowell appealed; each claimed, among other things, ineffective assistance of counsel due to Prusak's alleged conflict of interest in jointly representing them. The Appellate Court of Illinois affirmed. People v. Taylor, Nos. 1-99-0071 & 1-99-1982 (Ill. App. May 25, 2011) (Doc. 7-1 at 2-17). Taylor did not seek review from the Supreme Court of Illinois. Doc. 7 at 2.

C. Post-Conviction Proceedings

Taylor then sought post-conviction relief in state court, again charging ineffective assistance of counsel based on Prusak's alleged conflict of interest. Doc. 7-1 at 19-28; Doc. 16 at 4, 8-9. Taylor argued that Prusak did not call "potential defense witnesses" who were present at the shooting, and who were willing to testify, because "they would make [Prusak's] other client [Lowell] the shooter." Taylor, 930 N.E.2d at 964. At the evidentiary hearing held by the state trial court, Taylor called five witnesses: Joyce Parker (the mother of Taylor and Lowell), Teddy Plummer, Rufus Bingham, Anderson, and Taylor.

Parker testified as follows. She retained Prusak to represent both of her sons. At some point prior to the trial, she and her husband brought Taylor, who was out on bond, and four potential witnesses-Michael Woods, Plummer, Bingham, and Natavian Simms-to Prusak's office. Parker testified that Prusak, after interviewing the potential witnesses, told Parker and Taylor that he would not call any of them "because they would hurt Lowell's case." Id. at 965.

Prusak repeatedly assured Parker that Taylor "did not need the witnesses because [the State] had nothing on [Taylor]" and that there was "nothing to worry about." Ibid. Although Parker was unhappy about Prusak's decision, she did not consider firing him and retaining a new attorney because she had already paid him "so much money" and could not afford a new attorney. Ibid.

Bingham testified that he was present when Carter was shot, that he saw Lowell shoot Carter, and that he did not see Taylor hand a gun to Lowell. Bingham testified that he told Prusak what he had seen, but that Prusak did not call him at trial because his testimony would be "worse for Lowell." Ibid. On cross-examination, Bingham admitted that when questioned by the police immediately after the incident, he did not say that Taylor did not give Lowell a gun. Bingham also acknowledged that he had five prior felony convictions and that he was a friend of Taylor's and a fellow south side gang member.

Like Bingham, Plummer testified that he was present when Carter was shot, that he saw Lowell shoot Carter, and that he did not see Taylor give Lowell a gun. Plummer recalled that Taylor was not with the group of people who surrounded Carter when he was shot. Plummer claimed that when he told these things to Prusak, Prusak responded that his testimony "would hurt both of [Prusak's] clients." Id. at 965-66. On cross-examination, Plummer admitted that he never told the police that Taylor did not hand a gun to Lowell. Plummer also admitted that he had two prior felony convictions and one prior misdemeanor conviction, that he was ...

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