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Fitts v. Harrington

United States District Court, Seventh Circuit

September 26, 2013

DENNIS FITTS, Petitioner,
v.
RICK HARRINGTON, Respondent

MEMORANDUM AND ORDER

David R. Herndon, Chief Judge United States District Court

Pending now before is the Petition for a Writ of Habeas Corpus filed by petitioner, Dennis Fitts (Doc. 1). For the reasons set forth below, the Petition is DENIED and his matter is DISMISSED with prejudice.

I. FINDINGS OF FACT

Petitioner, Dennis Fitts, was convicted of first degree murder and two counts of aggravated battery with a firearm in the death of Carolyn Riley and the battery of Dempsey Crim. The state court records, to which petitioner does not object, [1]reveal that Ms. Riley was a confidential informant who provided assistance and testimony related to drug charges against petitioner and his friend, Dennis Sims (Doc. 11-1). After Ms. Riley testified at the trial of Mr. Sims, petitioner entered Ms. Riley’s home, shot Mr. Crim and killed Ms. Riley. Petitioner was indicted on July 2, 1997, five months after the murder, on evidence that was acquired pursuant to a search warrant. That search warrant was based on an affidavit that contained the statements of two confidential sources who essentially stated that Mr. Sims, petitioner’s friend, indicated that petitioner would give Ms. Riley “what’s coming to her.” In particular, the affidavit was signed by Officer Scott Deming who testified (at a hearing on a motion to quash) that one confidential informant identified in the affidavit was Michael Snell, a jailhouse informant who shared a cell with Mr. Sims. Officer Deming further testified that he did not interview Mr. Snell himself and that the information contained in the affidavit was conveyed by Special Agent (State Police) Al Burton and State’s Attorney Joe Jackson. In particular, the affidavit stated:

*** Affiant knows that a confidential source, herein referred to as confidential source number 1, advised that following the trial of Derrick Sims which concluded on January 28, 1997[, ] and before the murder of Carolyn Riley on February 6, 1997[, ] that [sic] Derrick Sims stated words to the effect that he had talked to ‘his man Dennis from Clinton[, ] Kentucky[, ] ...’ and that ‘the bitch is going to get what’s coming to her ...[.]’ Further, that [sic] on February 7, 1997[, ] that [sic] a confidential source, hereinafter referred to as confidential source number 2, heard Derrick Sims state words to the effect ‘the bitch got what was coming to her ...[‘] [and] [‘] I guess the bitch snitched on the wrong person ...’ and that Derrick Sims appeared to be quite pleased upon hearing news of the murder of Carolyn Riley.
(Doc. 11-1, p. 3) (internal quotation, citation, and editing marks retained).

Officer Deming further stated that confidential source number 1 and number 2 were one-and-the-same, Mr. Snell, and that two separate identifiers were used to protect his identity.[2] Mr. Snell also testified that he did not hear these statements from Mr. Sims in one conversation or sentence. Mr. Snell’s attorney, Paul Henry, testified that Mr. Snell told State’s Attorney Jackson that he overheard these statements in one conversation, but that Mr. Snell would not sign an affidavit that they were made in one sentence. Finally, Special Agent Burton testified that Mr. Snell made these statements to him when he interviewed Mr. Snell. Petitioner was ultimately sentenced to 60 years on the murder count and 30 years on two counts of aggravated battery, to run consecutively.

Petitioner appealed his sentence and conviction on May 17, 1999 (Doc. 11-1, p. 12). He argued that the trial court erred in failing to quash the search warrant (because it contained false statements, [3] did not attest to the reliability of the informant, and contained insufficient evidence to support probable cause), that the trial court erred in allowing the testimony of the victim’s daughter, and that the statements of the prosecutor in closing arguments were unduly prejudicial (Doc. 11-1, p. 17). In a Rule 23 Order, the Illinois Court of Appeals found that:

1. The affidavit did not contain false statements because “the structure of the affidavit makes clear that Snell did not attribute these statements to Sims in one single, uninterrupted sentence” (Doc. 11-1, p. 6).
2. “It is [ ] unnecessary for police to establish prior reliability to corroborate Snell’s statements” because he was not a “professional” informant but rather a “citizen-informant” (Id. p. 7).
3. The affidavit was sufficient to support probable cause because it stated that the victim had informed on Petitioner, that two informants heard Mr. Sims indicate that he would be seeking revenge, and Petitioner was observed wearing the same type of footwear the impressions of which were found at the crime scene (Id. p. 7-8).

With respect to the two remaining arguments, the Court of Appeals found that neither the testimony nor the statements were unduly prejudicial. Petitioner filed a Petition for Leave (PLA) to Appeal on June 20, 2000, (Doc. 11-3, p. 1), which was denied on November 29, 2000. People v. Fitts, 742 N.E.2d 331 (table) (Ill. 2000). In his PLA, petitioner raised the grounds indicated above and also asserted that he did not get a fair trial because there were no African-Americans on the jury panel and that his appellate counsel was ineffective for failing to raise this claim (Doc. 11-3, p. 5).

Petitioner filed a post-conviction petition that resulted in an order that reduced petitioner’s life sentence for murder to 60 years’ imprisonment; otherwise, petitioner’s claims, including that a witness, Quentin Fayne, provided perjured testimony, were rejected[4] (Doc. 11-3, pp. 41-42). On appeal, petitioner only argued that that his post-conviction counsel was ineffective in a variety of ways (Doc. 11-3, pp. 91-92). A Rule 23 Order issued by the Illinois Court of Appeals on September 1, 2009 rejected petitioner’s arguments (Doc. 11-3, p. 35). In doing so, the Court of Appeals indicated that petitioner had waived any ineffective assistance of trial and appellate counsel by failing to raise these claims on appeal (Doc. 11-3, p. 39). Petition filed a PLA on September 28, 2009, raising the same arguments he made before the Court of Appeals, (Doc. 11-3, p. 146), which was denied on November 25, 2009. People v. Fitts, 920 N.E.2d 1076 (table) (Ill. 2009).

Before this Court, petitioner first argues that his Fourth Amendment rights were violated when the trial court failed to quash the search warrant. Petitioner contends that the affidavit in support of the warrant contained false statements, that it failed to indicate the reliability of the informants, and that the information contained did not support probable cause to arrest (Doc. 1, p. 10). These are the same arguments petitioner made on direct appeal. Petitioner then states, without the benefit of argument, that the probable cause hearing before the state courts was not “full and fair.” However, in a Traverse (Doc. 14), ...


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