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

September 18, 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. For the reasons stated below, the Court denies Fergerson's petition and declines to issue a certificate of appealability.

Background

A. Murder and trial

Willie Bibbs was murdered on June 14, 1981 on 43rd Street in Chicago. In October 1981, police arrested Earl Hawkins for the murder. Hawkins was a member of the El Rukn gang and had been identified as present at the scene. Hawkins was tried, and a jury acquitted him in 1982.

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. See 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. After a jury found no mitigating circumstances, Maloney sentenced Hawkins to death on September 19, 1986. Id. at 45, 690 N.E.2d at 1001.

Chicago Police Detective Daniel Brannigan observed some of Hawkins's trial. Brannigan was working with the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) to investigate the El Rukns. As part of that work, he observed Hawkins's trial because the FBI suspected that Hawkins or his co-defendant might attempt to bribe Maloney. 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.Brannigan met with Hawkins. Brannigan later stated that he refused to make any promises to Hawkins but told Hawkins that any cooperation would be presented to the prosecutors.

In 1988, Fergerson and other members of the El Rukn gang were tried for the Bibbs murder. Hawkins testified against them as a witness for the prosecution. He stated that Jeff Fort, the leader of the El Rukns, held a meeting at which he ordered gang members to shoot up 43rd Street and a bar located there as part of a dispute with another gang. Hawkins acted as a lookout to tell the shooters that the coast was clear and to watch for police. According to Hawkins, Fergerson was one of the three shooters and was to use a machine gun. At the scene, Hawkins stood on 43rd Street while the three shooters made their way down an alley to the street carrying guns and wearing ski masks. Hawkins saw one of the shooters, whom he identified as Derrick Kees, peek around the corner of the alley twice and then fire five or six shots at Bibbs. The shooters then ran back down the alley.

At trial, Hawkins testified that he had been sentenced to death for murder and that his appeal in that case was before the Illinois Supreme Court. He acknowledged that his testimony as a prosecution witness in the Bibbs case could be advantageous to him should the Supreme Court reverse his death sentence. Hawkins also revealed that he had been charged in another double homicide that prosecutors had chosen not to prosecute, likely because of his cooperation. Defense counsel also showed that Hawkins had lied about his role in the Bibbs murder when he was tried for the murder. Hawkins admitted that he had continued to lie about the Bibbs murder after his acquittal for the murder until he was sentenced to death for the double homicide and presumably needed help from the police. Hawkins admitted that he wanted to benefit from his testimony but said that the government had not promised him anything. The jury did not hear any evidence related to Hawkins's bribe of Maloney, because Fergerson and the other defendants were unaware of it and received any information about it from the prosecution.

Several witnesses corroborated parts of Hawkins's testimony. Two witnesses to the shooting identified Hawkins as a person who had been pacing back and forth on 43rd Street and nodded into the alley immediately prior to the shooting. They also stated that they had seen someone shoot Bibbs from the alley, but they were unable to identify any of the shooters. Two other former members of the El Rukn gang testified as well. Trammel Davis stated that he had seen Fergerson and other defendants at a meeting with Fort on the day of Bibbs's murder and that Fergerson had held a machine gun. Anthony Sumner testified that he drove the shooters to the scene while another gang member drove the guns separately. He saw Fergerson get the machine gun out of the trunk of the other car and go down the alley with the other two shooters. Sumner stated that he saw the shooters peer out of the alley twice and heard gun shots. The shooters then ran back to his car, and he drove them away.

The jury convicted Fergerson on November 18, 1988.

B. Appeal and post-conviction proceedings

After Fergerson's conviction, he appealed to the Illinois Appellate Court along with his co-defendants. The court affirmed the conviction on June 4, 1993. People v. Fort, 248 Ill. App. 3d 301, 320, 618 N.E.2d 445, 459 (1993). It is unclear whether Fergerson filed a petition for leave to appeal (PLA) with the Illinois Supreme Court. Respondent states that he has confirmed with the Supreme Court that Fergerson did not file a PLA separate from his co-defendants, but Fergerson has produced a letter from his public defender stating that the Supreme Court denied his PLA on October 6, 1993. Pet.'s Resp. to Mot. to Dismiss at 70. At any rate, Fergerson states that he does not challenge any decision of the Illinois courts on direct appeal.

In October 1989, Hawkins pled guilty to federal criminal charges as part of plea agreement under which he also promised to cooperate with federal and state authorities. In 1991, a federal grand jury indicted Maloney for several bribery-related offenses. Hawkins, who was still under an Illinois sentence of death, agreed to testify as a witness against Maloney. A federal jury convicted Maloney on April 16, 1993. See 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, despite several equitable arguments by the prosecution that Hawkins was not entitled to a new trial, 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 initially sought the death penalty against Hawkins in his second trial. After losing an interlocutory appeal in the Illinois Appellate Court involving an evidentiary issue related to Hawkins's co-defendant, but winning the issues that affected Hawkins, prosecutors reached a plea agreement with Hawkins in exchange for his testimony against his co-defendant. See People v. Hawkins, 326 Ill. App. 3d 992, 762 N.E.2d 46 (2001). Hawkins pled 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. His only claim was that the prosecution had suppressed material impeachment evidence in violation of his due process rights. See Brady v. Maryland, 373 U.S. 83, 87 (1963). The trial court dismissed the petition as frivolous on June 23, 1998. Fergerson appealed with the assistance of counsel, and the Illinois Appellate Court reversed in 2001.

On remand, the state trial court held an evidentiary hearing on Fergerson's claims. Fergerson, with the assistance of counsel, presented two claims: the prosecution had violated Brady by failing to disclose that it knew that Hawkins had attempted to bribe Maloney and had knowingly allowed Hawkins to give perjured testimony when he said he had no deal to cooperate with the authorities. The trial court denied the petition after finding that Fergerson had not shown that prosecutors withheld any significant evidence or that Hawkins had a deal or understanding with the prosecution at the time of the trial. Fergerson appealed, raising the same two issues and contending that his post-conviction counsel had been ineffective in failing to call Hawkins to testify. The Illinois Appellate Court affirmed on April 18, 2008. Fergerson filed a PLA with the Illinois Supreme Court raising the same three issues. The court denied his PLA on September 24, 2008.

Fergerson filed a pro se successive post-conviction petition in state court, and the trial court denied it on March 6, 2009. Fergerson appealed, but his brief challenged only the costs and fees imposed by the trial court. The Illinois Appellate Court affirmed on November 24, 2010. Fergerson filed a PLA with the Illinois ...


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