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United States Ex Rel. Adkins v. Akpore

United States District Court, Seventh Circuit

May 24, 2013

United States of America ex rel. ANTHONY ADKINS, Petitioner,
v.
Kevwe Akpore, Warden, Hill Correctional Center, Respondent.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, Jr., District Judge.

Following a bench trial in Cook County Circuit Court, Petitioner Anthony Adkins ("Petitioner" or "Adkins") was convicted of attempted murder and sentenced to 30 years in prison. Adkins is currently incarcerated at the Hill Correctional Center in Galesburg, Illinois, where Joseph Yurkovich is warden. Adkins has filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. For the reasons stated below, Adkins' petition is denied.

I. Background

The Court presumes all factual findings of the state court to be correct absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). The Court draws the following account of the facts of Petitioner's case from state court record, including the Illinois Appellate Court's orders in People v. Anthony Atkins, No. 1-04-1352 (Ill.App.Ct. 1st Dist. Dec. 8, 2005) and People v. Anthony Adkins, No. 1-08-1093 (Ill.App.Ct. 1st Dist. Oct 13, 2010).

Cynthia Wilson and Petitioner had a four-year relationship that ended in February 2000, and not on good terms. In April 2000, Wilson obtained an order of protection against Petitioner because he was harassing her about seeing their daughter and getting back together. The order of protection prohibited Petitioner from going to Wilson's home. Despite the order, Petitioner went to Wilson's home late at night on August 8, 2000. By the time he left early the next morning, Wilson had been stabbed twice in the heart. Wilson's injuries were severe, but she survived the attack and testified against Petitioner at his bench trial. The judge found Petitioner guilty of attempted murder and sentenced him to 30 years in prison.

The background relevant to Adkins' § 2254 petition begins years before his criminal trial, when his defense counsel referred him to Dr. Michael Fields for psychological evaluation. Dr. Fields' report described Petitioner as angry, distrusting, resentful, paranoid, impulsive, and hostile with weak emotional-coping skills. He believed that Petitioner blamed others for his problems, became hostile and aggressive when frustrated, and that his instability indicated personality and emotional disorders. Petitioner had the capacity to stand trial, Dr. Fields concluded, but his psychopathology and intense rage and paranoia "may have" interfered with his capacity to appreciate the crime he committed. Defense counsel informed the state that he may call Dr. Fields as an expert witness on the issue of insanity. The state moved to bar the doctor's testimony. Ruling on the state's motion, the court concluded that it would permit Dr. Fields to be called but the bounds of his testimony would be limited by "how the trial goes" and the relevant case law.

At trial, Wilson testified that at about 7 p.m. on August 8, 2000, Petitioner called her at work and told her that he was going to kill her. She left work at about 1 a.m. and had a coworker named Michael Jefferson follow her home as a precaution. Wilson testified that when she entered her apartment building with Jefferson, Petitioner "pop[ped] out" of the laundry room and held a knife to Jefferson's neck. Wilson ran out of the building. Petitioner ran after her, grabbed her from behind, and began stabbing. The blade pierced her heart twice, and the surgeon testified that Wilson would have died without surgery.

Jefferson, Wilson's coworker, testified that when Wilson saw Petitioner she ran outside and Petitioner ran after her. Wilson staggered back inside five or ten seconds later and told Jefferson that Petitioner had stabbed her. Jefferson testified that Petitioner did not threaten him with a weapon. Officer Epinger testified that he spoke with Petitioner after the incident and that Petitioner said that "I was going to bust [Wilson] up and I proved my point and I hope she dies."

Assistant State's Attorney Bill Laskaris testified that on August 10, 2000, Petitioner told him that he had swung at Wilson with a piece of glass. On August 11, 2000, Laskaris took a more complete statement from Petitioner. According to that statement, Petitioner called Wilson at work and swore at her. He then went to her home to see who she was "fucking around with." Wilson was not home when Petitioner arrived, so Petitioner waited in the laundry where he could not be seen. When he saw Jefferson, he pulled out a box cutter and Wilson ran. Petitioner caught up with Wilson, grabbed her shoulder, said "you're going to disrespect my daughter for him, " and then started swinging at her with the box cutter. He didn't know how many swings he took. He dropped the box cutter and walked to his grandmother's house. Petitioner signed each page of the hand-written statement and initialed several corrections.

Petitioner testified that he contacted Wilson on the morning of August 8, 2000, to notify her that he would be coming by that evening to get their daughter's social security number and birth certificate, which he needed to purchase life insurance for his daughter. Petitioner claims that Wilson agreed to the visit and said that he could come by in the evening. Petitioner then told his version of the night's events: He left work at about 5 p.m. and stopped at a liquor store with a friend. He and his friend proceeded to drink about four bottles of liquor and had some cocaine and marijuana. At about 6:30 p.m., Petitioner called Wilson and she told him that he did not have to keep calling to say that he was coming over later. At about 10:30 p.m., "wasted and stoned, high, " Petitioner took public transportation to Wilson's house. During the trip, he claims to have had chest pains and spit up a little blood. When Petitioner got to Wilson's house, he entered the building and knocked on her apartment door. Nobody answered and he stared to leave. On his way out, he saw Wilson and Jefferson entering the building. Petitioner denies brandishing a weapon, and said that Wilson called him a dope and a drunk and said some "harsh" words to him. Petitioner and Wilson then walked out into the street and, as they were walking, Wilson swung a beer bottle at him. She swung it again and hit him in the neck. She then kicked Petitioner in the groin and told him she was going to "bust" his head open with the bottle. Petitioner claims that he used a box cutter to try to knock the bottle out of Wilson's hand. Wilson kept swinging the bottle and Petitioner swung at her with the box cutter to deflect the bottle. Petitioner then "just stopped and [] walked away."

Detective Tolbert testified in rebuttal. She had interviewed Petitioner and he never told her that she went to Wilson's house to get his daughter's birth certificate, that he was intoxicated that night, that his actions were in self-defense, or that Wilson was swinging a beer bottle at him.

The court found Petitioner guilty of attempted murder. Petitioner's trial counsel was allowed to withdraw, and the court appointed new post-trial counsel. Counsel filed a motion for a new trial, which the court denied. At sentencing, the state informed the court that Petitioner had numerous non-violent convictions, including seven felony convictions. The state also informed the court that Petitioner continued to call and harass Wilson after the court told him not to. Wilson testified at sentencing that Petitioner had sent her letters from prison and that in one letter he told her that he was going to cut her body into little pieces when he gets out. Petitioner and Petitioner's mother testified in mitigation. Petitioner's mother testified that he is not a violent person, and that his present problems must be caused by drugs. Petitioner also testified that he is not a violent person, that he had a drug habit, and admitted that what he did was wrong. But in the same breath he insisted that the victim, the police, and the Assistant State's Attorney had lied. The court sentenced Petitioner to the statutory maximum of 30 years in prison. Petitioner's post-trial counsel filed a motion to reconsider the sentence, claiming that it was excessive. The motion was denied.

On direct appeal, Petitioner argued that (1) the trial court abused its discretion in sentencing him to 30 years in prison; (2) he received ineffective assistance of post-trial counsel because his post-trial counsel did not call Dr. Fields to present mitigating evidence; and that (3) he was not properly admonished pursuant to Illinois Supreme Court Rule 605(a) because the trial court failed to inform him of his right to file a motion to reconsider his sentence. The appellate court affirmed. The Illinois Supreme Court denied his petition for leave to appeal.

On September 8, 2004, Petitioner filed for relief from judgment pursuant to the Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq. His petition, as later amended by counsel, raised the following claims: (1) denial of the right to trial by jury; (2) general ineffective assistance of counsel and ineffective assistance of counsel for failing to (a) conduct a pretrial investigation, (b) properly cross-examine David Fullerton, (c) properly examine Michael Jefferson, (d) call Michael Brown and residents of Wilson's apartment building; (e) file a post-trial motion after withdrawing as counsel, (f) object to Petitioner's sentence, and (g) obtain Petitioner's hospital records from August 9 and 10, 2000; (3) denial of due process and Sixth Amendment right to jury at sentencing; and (4) actual innocence. On April 1, 2008, the trial court dismissed Petitioner's amended petition. Petitioner raised only one issue on appeal: trial counsel was ineffective for failing to obtain hospital records from August 9 and 10, 2000. On October 13, 2010, the appellate court affirmed. The Illinois Supreme Court denied Adkins' petition for leave to appeal.

On January 27, 2010, Petitioner filed for relief from judgment pursuant to 735 ILCS 5/2-1401. His petition claimed that his due process rights were violated when (1) State witnesses lied about whether he signed a handwritten statement on August 11, 2000; (2) Officer Percy Williams testified falsely at trial; (3) Officer Epinger testified falsely at trial; (4) Officer Percy Williams and Rodney Wilson testified falsely at trial about the *69 telephone function; and that (5) post-conviction counsel was ineffective for failing to raise claims (1) through (4). On January 24, 2011, the trial court granted the State's motion to dismiss. Petitioner appealed, and appellate court affirmed. The Illinois Supreme Court denied the petition for leave to appeal.

Adkins signed a § 2254 petition for a writ of habeas corpus on August 31, 2006. The Court received the petition on September 6, 2006. In the petition, Adkins stated that some of his claims were the subject of ongoing state postconviction proceedings. Judge Anderson (to whom this case was previously assigned) stayed the federal case at Adkins' request pending the conclusion of the state proceedings. Those proceedings came to an end in January 2011, when the Illinois Supreme Court denied Adkins' petition for leave to appeal. On March 28, 2011, Adkins filed an amended § 2254 petition, which the Court construed as a motion for leave to file an amended petition.

Comparing Adkins' original petition and his amended petition, it appeared to the Court that all (or at least most) of the claims in the amended petition were distinct from those in the original petition. Usually an amended pleading that neither references nor adopts the original pleading supersedes the original complaint. See Kelley v. Crossfield Catalysts, 135 F3.d 1202, 1204-05 (7th Cir. 1998). But the Court concluded that it was unlikely that Petitioner, who is litigating pro se, intended to abandon the claims in the original petition. Without objection from Respondent, the Court therefore construed Adkins' "amended" petition as supplement to his original petition. In the petition and supplement Petitioner makes the following claims (which the Court has organized and renumbered with Respondent's assistance and without objection from Petitioner):

I. General ineffective assistance of counsel, plus ineffective assistance of counsel based on counsel's alleged failure to do the following:
A. Present Dr. Fields testimony at sentencing
B. Obtain hospital records from August 9 and 10, 2000
C. Investigate the crime scene, interview witnesses, and investigate Petitioner's relationship with Wilson
D. Properly Cross-examine David Fullerton
E. Properly examine Michael Jefferson
F. Call Michael Brown and residents of Wilson's apartment building
G. File a post-trial motion after withdrawing as counsel
H. Object to Petitioner's sentence that exceeded the statutory minimum
II. Denial of a the right to a jury trial
III. Denial of due process and jury trial right ...

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