United States District Court, C.D. Illinois, Urbana Division
Decided: December 4, 2013.
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For Kenneth Gray, Petitioner: Geneva Lynette Penson, LAW OFFICE OF GENEVA L. PENSON LLC, Aurora, IL.
For Warden Randy Pfister, Respondent: Eldad Z Malamuth, ILLINOIS ATTORNEY GENERAL, Springfield, IL.
MICHAEL P. McCUSKEY, U.S. DISTRICT JUDGE.
On January 24, 2013, Petitioner Kenneth Gray filed this Petition for Writ of Habeas Corpus By a Person in State Custody Pursuant to 28 U.S.C. § 2254 (#1). Respondent, Randy Pfister, Acting Warden of Pontiac Correctional Center, filed his Answer and Affirmative Defenses (#9) on May 9, 2013. For the following reasons, Petitioner's Petition (#1) is DENIED.
In October 2006, a jury convicted Petitioner in Illinois state court of first degree murder (720 ILCS 5/9-1(a)(1) (2004)) of his wife Kimberly Gray. In March 2007, the trial court denied Petitioner's posttrial motions and sentenced him to 56 years in prison, which included a 25-year sentence enhancement imposed under section 5/5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(d)(iii) (2004)). Petitioner's conviction and sentence were affirmed on direct appeal and his petition for leave to appeal (PLA) to the Illinois Supreme Court was denied. Petitioner subsequently filed a postconviction petition, which the trial court denied. The denial was affirmed by the appellate court and the PLA was denied by the Illinois Supreme Court. On January 24, 2013, Petitioner filed this Petition for a Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254 (#1). Respondent has filed his Answer
and Affirmative Defenses (#9) and this case is now ready for judgment.
The following facts are taken from the appellate court orders affirming Petitioner's conviction on direct review ( People v. Gray, No. 4-07-0233 (Ill.App.Ct. 2008)) and affirming the denial of Petitioner's postconviction petition ( People v. Gray, 2012 IL App (4th) 100038-U). This court presumes the factual determinations made by the Illinois court of appeals in those decisions to be true. 28 U.S.C. § 2254(e)(1); Whitman v. Bartow, 434 F.3d 968, 969 (7th Cir. 2006).
Petitioner and his wife Kim were married on May 16, 1992. Three children were born to the marriage. On September 23, 2005, Kim moved with the three children to her parents' home. Petitioner visited the children the next day and Kim advised him that she would return to the marital home the following day to collect some of her belongings. At around 4 p.m. on September 25, 2005, Kim drove to the marital home with the three children. Once inside, Kim and Petitioner argued and Petitioner refused to provide Kim with a list of her day-care clients' names and phone numbers so that she could tell the parents that she would watch the children at her parents' home. Kim told the children to wait in the van and an aunt picked the children up as they stood in the garage. At some point while Kim was in the house, Petitioner shot and killed her.
Kim was later discovered lying face up in the laundry room of the home next to the washer and dryer. Her body was lying partially over the threshold of the doorway that led to the home's attached garage. Immediately after the shooting, Petitioner got in his truck and attempted to leave the residence. However, as he was leaving, Kim's parents and younger sister arrived on the scene and blocked his truck with their vehicle. Petitioner then ran to his neighbor Sheila Fletcher's home.
Sheila Fletcher lived approximately one-half mile from Petitioner and Kim's home. She testified that Petitioner came to her house on September 25, 2005 and told her that he and Kim had gotten into an argument. He asked Fletcher to call 9-1-1 and gave her the gun. He told Fletcher " Sheila, I just want you to know that Kim cheated on me."
Vermilion County Sheriff's Department investigators Todd Damilano and Kirk Miller interviewed Petitioner approximately two hours after the shooting. Petitioner stated that he and Kim were doing things to " spice up" their marriage. He encouraged Kim to become involved with another individual, Lee Mincey, but later became jealous and insecure. On the day of the shooting, Kim bragged about her relationship with Mincey and threatened not allow Petitioner to see the children. Petitioner retrieved a handgun from the gun cabinet and walked to the kitchen while holding the gun down and out of sight. Kim cursed at Petitioner and pointed a finger in his direction. According to the Petitioner, as Kim was holding a clothes basket, he raised the gun and fired until it was empty. He got another clip and put the gun to his head, but the phone rang. It was Petitioner's mother, and he told her he just did " something bad" and left the house. Petitioner told the investigators that he had to put the clip in the gun before he walked into the kitchen and shot Kim to death. Kim suffered seven gunshot wounds to the front side of her body and six to the back side, two graze wounds, and one gunshot wound to the right hand. Kim weighed 110 pounds, while Petitioner weighed 250 pounds. Petitioner did not say he felt a threat of physical harm from Kim, did not mention an incident where
Kim stood over him clicking a gun, and did not claim Kim threatened him with a knife.
Petitioner testified in his own defense. He testified that on September 15, 2005, Kim had threatened him with a knife, and that a week later, on September 22, 2005, he awoke to a " clicking sound" and saw Kim standing over him with a gun. He took the gun from Kim and returned it to the gun cabinet, which he locked, retaining the keys. On September 25, 2005, Kim said " fuck you" and came at Petitioner with a butcher knife. Petitioner " just reacted" and started firing the gun. On cross-examination, Petitioner admitted that he did not mention the knife when interviewed after the shooting but only recalled the incident months later via a flashback.
Evidence at trial showed that law-enforcement officers who processed the crime scene on the day of the shooting denied finding a knife. Rod Kaag, an investigator with the sheriff's department, testified officers went through the entire laundry room where Kim's body was located. Although he did not move the washer and dryer out from the wall, he removed a stepladder that was positioned between the dryer and a wall and used it to look over and behind the appliances. He testified that no knife was found behind, around, or under the washer and dryer.
Jerry Lee Davis, also an investigator with the sheriff's department, testified he was present when the area around the washer and dryer was searched. He and Kaag looked underneath, at the side, behind, on the top, and on the floor around the washer and dryer. He never found a knife in that area.
Additionally, Kim's aunt, Brenda Pellman, testified she and another relative were the individuals who cleaned up blood in the laundry room on the day after the shooting. While cleaning, Pellman knocked over a bucket of water that spilled all over the floor. Some of the water ran under the washer and dryer. Pellman and the other relative had to move the washer and dryer around to get up all of the water. She denied finding anything under the washer and dryer.
Petitioner presented the testimony of his aunt, Terrie Vaughn, who stated that she went to the marital home on either the day after the shooting or two days after the shooting to get some clothes for Petitioner. While in the laundry room, she dropped a sock between the dryer and the wall. When she went to retrieve the sock, she found a knife " at the side and toward the back." She picked up both the sock and the knife and placed the knife in the kitchen on the center island. Vaughn did not report to police that she found a knife. Instead, on June 16, 2006, she reported her find to Petitioner's attorney after learning from relatives that it had significance to Petitioner's case.
During trial, defense counsel tried to introduce testimony regarding the state of Petitioner's mental health after the shooting to corroborate his testimony regarding flashbacks and to show Petitioner exhibited symptoms consistent with post-traumatic stress disorder (PTSD). Specifically, he sought to present the testimony of Randall Cunningham, a crisis-intervention counselor, and Bryan Manion, an outpatient mental-health therapist. Both Cunningham and Manion worked for Crosspoint Human Services (Crosspoint). While incarcerated following the shooting, the sheriff's department referred Petitioner to Crosspoint for mental-health services.
The State objected to testimony from Cunningham and Manion and Petitioner submitted an offer of proof. The offer of proof showed that both individuals had come into contact with Petitioner. Although Manion believed ...