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United States ex rel. White v. Atchison

United States District Court, Seventh Circuit

December 4, 2013

United States of America ex rel. MARCEL WHITE, Petitioner,
MICHAEL ATCHISON, Warden Menard Correctional Center, Respondent.


VIRGINIA M. KENDALL, District Judge.

Petitioner Marcel White brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is incarcerated at the Menard Correctional Center in Menard, Illinois, where he is in the custody of Michael Atchison, the warden of that facility. A jury convicted him of first degree murder, 720 ILCS § 5/9-1, and home invasion, 720 ILCS § 5/19-6 in 2005. He is currently serving a seventy-five year sentence. For the following reasons, White's petition is denied.


On May 8, 2002, [1] White (a.k.a. "Duke"), James Mitchell (a.k.a. "Pooh Butt"), and Christopher Peoples entered the apartment of Ninner Powers and her husband, Brian Campbell, to accuse Powers of selling drugs for a rival gang. (Dkt. No. 21-1 at p. 2-3.) They demanded that Powers give them the money she made from the sales. She told them she did not have any drugs or money. ( Id. ) Mitchell then gave the order to "pop" her and Peoples pulled a gun from his coat and pointed it at Powers. ( Id. ) Just then, Campbell came to the door, and Peoples shot him three or four times, killing him. ( Id. at 3-4.)

Powers quickly grabbed her deceased husband's.38-caliber revolver from the floor and the three men fled. ( Id. at 4.) When police arrived, Powers provided them with the nicknames and addresses of White and Mitchell (because she had known them for more than 20 years) and gave a description of Peoples. ( Id. at 3-4.) Police later asked Powers to identify the men using some photographs and she was able to identify all three of them. ( Id. at 4.)

A witness for the State, Antonio Rogers, testified that he knew Powers, and that on the night of the shooting, he saw White, Mitchell, and a third person standing on Powers's porch. ( Id. ) White stipulated that Rogers told Detective Timothy Nolan that he saw "the guy" "fiddling with something with his right hand" and that it looked like he was "trying to keep a gun from falling out of the coat pocket." ( Id. at 5-6.) Rogers testified that he then saw the three men go inside, heard the gunshots, and saw the three men exit the building. ( Id. at 4.) Rogers also testified that he heard White say to Mitchell that, "Chris [Peoples] just shot dude." ( Id. ) Powers then came running out of her building, screaming that her husband had just been shot. ( Id. at 5.) Shortly thereafter, Rogers saw White leaving the scene in a car driven by his girlfriend. ( Id. )

After three days, White, accompanied by counsel, turned himself in to the police. ( Id. at 20.) Chicago Police Detectives Nolan and John Halloran interviewed White two times. ( Id. at 5.) White's counsel was present for the second interview but not the first. ( Id. ) During the second interview, White admitted to going to Powers's residence to confront her about selling drugs in competition with his gang but denied going in. ( Id. )


White's trial began on April 12, 2005. (Dkt. No. 21-13 at p. 2.) He was convicted of first degree murder and home invasion on April 14, 2005, and on May 27, 2005 was sentenced to 50 years for the first degree murder conviction, 10 years for the home invasion conviction, and 15 years for the personal discharge of a firearm. (Dkt. No. 21-14 at pp. 130, 263.) White directly appealed his conviction on April 25, 2007, (Dkt. No. 21-2 at p. 1), and the Illinois Appellate Court affirmed on April 4, 2008. (Dkt. No. 21-1 at pp. 1-2.) White then filed for a petition for leave to appeal ("PLA") with the Illinois Supreme Court, which denied his request on September 30, 2009. (Dkt. No. 21-6.) On April 7, 2010, White filed a pro se petition for postconviction relief. (Dkt. No. 21-20 at pp. 8-12.) The trial court rejected his claims on July 2, 2010 as "frivolous and patently without merit." ( Id. at 26.) He appealed the decision on August 3, 2010. ( Id. at 27-29.) Counsel was appointed to represent White on appeal, who soon after filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). (Dkt. No. 21-7.) The appellate court granted the attorney's motion to withdraw and affirmed White's conviction on December 9, 2011. (Dkt. No. 21-9.) White did not file a PLA because he was allegedly "not told of the appellate denial in timely manner [ sic ] was denied access to law library to file PLA." (Dkt. No. 1 at p. 3.)

White filed the present petition for a writ of habeas corpus on September 13, 2012 and presents four claims:

1. "Whether, under Strickland, when a defendant represented by counsel is first interviewed without counsel, but is then interviewed a second time with counsel present and counsel does not seek to suppress the defendant's contradictory first statement, then defendant's right to effective assistance of counsel has been violated;"
2. "The trial court hypothesized a guilty verdict that was never in fact rendered, in violation of the jury trial guarantee. The Illinois one good count rule, as applied in this case, establishes a conclusive presumption as to the knowledge and intent mental states for murder, and such a conclusive presumption as to a mens rea element of an offense is a violation of due process and the right to trial by jury;"
3. "Whether the State's use of other crimes evidence in the form of a photograph taken when a defendant was previously arrested may be introduced at trial;"
4. "Whether the State may argue in closing that the defendant's action of surrendering himself to police while accompanied by counsel 3 days after his alleged participation in the offense constituted consciousness of guilt."


I. Ineffective Assistance ...

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