Nathaniel C. Love, Robert N. Hochman, SIDLEY AUSTIN LLP, Chicago, Illinois.
John M. Sands, Federal Public Defender, Dale A. Baich, Assistant Federal Public Defender, Phoenix, AZ, Counsel for Petitioner Murray Hooper.
MOTION FOR ENTRY OF FINAL JUDGMENT
JOAN B. GOTTSCHALL, District Judge.
Pursuant to 28 U.S.C. §§ 2241, 2243, and 2254, the September 9, 2013 mandate of the United States Court of Appeals for the Seventh Circuit (Dkt. No. 66), and the December 11, 2013 notice provided by respondent ( see Dkt. No. 74; Ex. 1), petitioner Murray Hooper requests that this Court enter judgment in his favor, granting Hooper's petition for writ of habeas corpus, vacating Hooper's Illinois convictions for murder, armed robbery, and aggravated kidnapping and the sentences accompanying those convictions, and ordering the State to release Hooper from all custody and detainer relating to the proceedings in the Circuit Court of Cook County in People v. Hooper, No. 81 C 1204.
Hooper was indicted by a Cook County grand jury in February 1981 on charges of murder, aggravated robbery, and aggravated kidnapping. See Ex. 2 (Indictment No. 81-1204). Hooper was tried in the Circuit Court of Cook County in August 1981, and a jury returned a verdict of guilty on all of those charges. See Ex. 3 (Sept. 27, 1981 Judgment and Execution Order in People v. Hooper, No. 81 C 1204, Circuit Court of Cook County, Criminal Division) at 1. Hooper was sentenced to death due to the murder convictions, see Ex. 4 (Sept. 23, 1981 Order of Sentence and Commitment), sentenced to three sixty-year sentences for armed robbery, and sentenced to three fifteen-year sentences for aggravated kidnapping, see Ex. 5 (Tr. of Sept. 23, 1981 Hearing) at 1247-48. Hooper's death sentence was reaffirmed on resentencing, see Ex. 6 (July 17, 1993 Order of Sentence and Commitment), but later commuted to life imprisonment, see Ex. 7 (Dec. 11, 2006 Postconviction Mem. Op. and Order) at 1.
Hooper's first claim for relief in his petition for a writ of habeas corpus in this Court is that the Illinois Supreme Court unreasonably applied Batson v. Kentucky, 476 U.S. 79 (1986), in its determination that Hooper failed to make a prima facie showing of discrimination as to the State's use of peremptory challenges against black jurors at Hooper's August 1981 trial. ( See Dkt. No. 23, Am. Pet. at 12-44). The Seventh Circuit concluded "that the Supreme Court of Illinois applied Batson unreasonably" which "remove[s] the state court's ground of decision and entitle[s] Hooper to an evidentiary hearing in federal court." Hooper v. Ryan, 729 F.3d 782, 787 (7th Cir. 2013). The Seventh Circuit held that at any such evidentiary hearing, the State would bear the burden of "articulat[ing] a non-discriminatory reason for all five of the contested peremptory challenges, " which would then be evaluated by the Court for credibility. Id.
The State has declined its opportunity to attempt to offer non-discriminatory reasons at an evidentiary hearing. Ex. 1. That means Hooper has established that his rights under the Equal Protection Clause, as interpreted in Batson, were violated at the jury selection in his 1981 trial, and the convictions were therefore obtained in violation of the Constitution of the United States. Batson, 476 U.S. at 97-98. As even a "single discriminatory peremptory challenge vitiates the judgment, " Hooper, 729 F.3d at 787, and none of the State's five challenges have been explained, Hooper's convictions and their accompanying sentences must be vacated.
Accordingly, Hooper respectfully requests that this Court enter judgment in his favor. A proposed order is submitted herewith.
[PROPOSED] FINAL JUDGMENT
Judgment is entered in favor of petitioner Murray Hooper, granting Hooper's petition for writ of habeas corpus pursuant to 28 U.S.C. §§ 2241, 2243, and 2254; vacating Hooper's September 1981 Illinois convictions for murder, armed robbery, and aggravated kidnapping in People v. Hooper, No. 81 C 1204 (Circuit Court of Cook County, Criminal Division), and the sentences accompanying those convictions; and immediately releasing Hooper from all custody and detainer relating to the proceedings in the Circuit Court of Cook County in People v. Hooper, No. 81 C 1204.
JUDGMENT AND EXECUTION ORDER
THIS DAY come the People of the State of Illinois, by RICHARD M. DALEY, State's Attorney of Cook County, Illinois, by GREGG OWEN and MICHAEL GOGGIN, Assistant State's Attorneys, and also comes the defendant, MURRAY HOOPER, in his proper person, as well as by TOM PETERS, his attorney.
AND NOW it appears to the Court that on the 24th day of August, 1981 the Jury returned findings that the defendant MURRAY HOOPER was guilty of the offenses of the murder, armed robbery, and aggravated kidnapping of R.C. PETTIGREW, the murder, armed robbery and aggravated kidnapping of FREDRICK LACEY, and the murder, armed robbery, and aggravated kidnapping of RICHARD HOLLIMAN in the manner and form as charged in the indictment.
AND IT FURTHER APPEARS to the Court that this cause came on to be heard before a sentencing Jury on the 25th day of August, 1981, and the jury having heard the evidence and arguments of counsel has found that the defendant at the time of the offenses had attained the age of 18 or more years and had also found one of the aggravating factors set forth in subsection (b), chapter 38, Section 9-1 (b), Illinois Revised Statutes to exist; and the jury having considered the factors in aggravation and mitigation which are relevant to the imposition of the death penalty and having found no mitigation factor sufficient to preclude the imposition of the death sentence has recommended a sentence of death of the defendant, MURRAY HOOPER, on Indictment Number 81-1204 for the murders of R.C. PLJAICREW, FREDRICK LACEY, AND RICHARD HOLLIMAN.
AND IT FURTHER APPEARS to the court having presided over the hearing in aggravation and mitigation and considered the factors in aggravation and mitigation which are relevant to the imposition of the death penalty and having found no mitigation factor sufficient to preclude the imposition of the death sentence does sentence MURRAY HOOPER to be put to death and executed by electrocution for the murders of R.C. PELLIGREW, FREDRICK LACEY, and RICHARD HOLLIMAN under Indictment No. 81-1204.
IT IS ORDERED AND ADJUDGED by the Court that the defendant, MURRAY HOOPER, be and he is hereby committed to the custody of the Sheriff of Cook County, Illinois, to be taken from the bar of this Court to the County Jail of Cook County, Illinois, from whence he came and thereafter to be transported by the Sheriff of Cook County to the Illinois State Penitentiary at Joliet, Will County, Illinois, and there by turned over to the Warden of the Illinois state Penitentiary in safe and secure custody until December 23, 1981, and that said defendant, MURRAY HOOPER on that day at the Illinois Department of Corrections shall be put to death and executed by electrocution. The Warden of the Penitentiary shall supervise such execution which shall be conducted in the presence of two (2) physicians and six (6) other witnesses who shall certify the execution of the sentence which certification shall be filed with the Clerk of the Court which imposed the sentence.
IT IS FURTHER ORDERED BY THE COURT THAT THE EXECUTION OF THE SENTENCE OF DEATH IMPOSED UPON MURRAY HOOPER, THE DEFENDANT, BE AND THE SAME IS HEREBY STAYED UNTIL FINAL ORDER BY THE SUPREME COUP' OF THE STATE OF ILLINOIS.
Now, at this time, the Court fully advises said defendant, MURRAY HOOPER, that an appeal to the Illinois Supreme Court is automatically perfected without any action by the defendant or his counsel, and, that if he is indigent, he has a right to be furnished without cost to him, a transcript of the proceedings at his trial and with counsel on appeal.
Court convened pursuant to adjournment.
THE CLERK: The People vs. Murray Hooper, 31-1204.
MR. PETERS: Good morning, Your Honor, Thomas Peters. I'm here on behalf of Murray Hooper who is present before the court.
Your Honor, the case la set today for filing of post trial motions, and at this time I would tender to the Court our motion for new trial, copies of which was previously served on the State's Attorneys this morning.
THE COURT: All right.
MR. PETERS: Your Honor, with respect to this motion know you have now had a chance to read it over. Each of the items raised in there was raised at trial, and I believe that I stated my arguments to the Court as well then as I could now, and that the Court fully understood each of my arguments as to each of these points. I don't see any further need to reiterate what I already argued to Your Honor and what Your Honor has already ruled upon.
Naturally we would ask the Court to reconsider based on the arguments previously made as stated in the motion
THE COURT: All right. The court has read and considered the motion for new trial and the motion is denied.
All right, area we ready to proceed to the sentencing hearing?
MR. PETERS: Yea, Your Honor.
MR. OWEN: Judge, could I just make a request? Just for the sake of the record was there a presentence done in this particular case? I haven't seen one yet, that's all. I don't know if it was done.
THE COURT: I believe there was.
MR. PETERS: One was ordered.
THE COURT: Yes, that's right. We put it - yeah.
MR. OWEN; Thank you, Judge.
THE COURT: It came in yesterday. I'll tender a copy of it to the State and to the Defense and file the original.
MR. OWEN: Thanks, Judge.
THE COURT: Have the parties had a chance to read the presentence report?
MR. PETERS, Yes, Your Honor.
Your Honor, what the report indicates is that on September the 21st, 1981, which would be two days ago, a probation officer named William Pilcher attempted to interview Mr. Hooper but Mr. Hooper refused to be interviewed.
I would like to indicate to Your Honor that on at least two, if not three occasions prior to the 21st of September, 1981, unknown agents of the Federal Bureau of Investigation attempted to interview Mr. Hooper and and at my direction he refused to be interviewed by them, and if Your Honor's desirous of any information that would ordinarily be in the presentence report we are willing to provide that information. We were unaware that Mr. Pilcher was also attempting, to interview Mr. Hooper. In fact, I specifically requested at' the jail that if somebody from probation came there they should contact me so I can arrange that Mr. Hooper would speak to that person, but he was Instructed by me not to speak to any agents of the Federal Bureau of Investigation or other law enforcement personnel.
THE COURT: Well, if there is any information that you wish to have written in on this presentence report I would be glad to have Miss Soto take it down.
MR. PETERS: From what I have is just a blank here. I know the questions that are generally on it, although not by heart. I could, certainly give that information to you orally right now.
THE COURT; Well, you can do that.
MR. PETERS; Could you tell me what information they are asking for on there so I don't -
Mr. Hooper's ere la known. We 35, correct?
THE COURT: Well, I don't -
MR. PETERS: He was at the time of this incident living with a young lady and helping to support two of her children, not his children. He has two brothers and two sisters. His parents are both living and employed, have been here in court throughout the case. He has from time to time been employed himself. He was not employed specifically et the time of the incident alleged in this case.
He is not addicted to any drugs, nor is he an alcoholic, nor does he use drugs.
We have nothing further other than the testimony he gave about the case to state concerning the case, and to my recollection that's the kind of questions that they generally ask. If I'm missing some personal background information that you would like, we would certainly give it to you.
THE COURT: Nothing that I can think of et the moment.
MR. PETERS; I don't have anything: to add then beyond that.
THE COURT; Okay. Do you have order forms?
MR. OWEN: Judge, the reason I didn't bring them was because you had need your own form before in the last case. We included them in the file. I left the farm for Mr. Hooper in the office because I figured you would probably use your form and we would prepare a form subject to what yours is rather than ours, which is somewhat different than you did in the last two sentences. I thought there might be a conflict in the record that you say one thing and the form might say another, so I don't have one prepared with your wording. I have one in the office with the old wording which we have used previously which is somewhat different than yours, than your wording.
THE COURT: Well, all right. I can afterwards sign a written order that would be consistent with -
MR. OWEN: All right.
THE COURT: - what is done. We could proceed then.
Is there anything that the State wishes to say? We are addressing the conviction for murder wherein the jury has recommended the penalty of death. At the moment that la what we are addressing.
MR. GOGGIN: Your Honor, with regards to that particular charge the jury that wee selected in this courtroom spoke the verdict that we submit is the true verdict in this case and the only verdict in this case. We would recommend that the Court follow that verdict and sentence the defendant, Murray Hooper, to die based on the evidence in the case, the evidence in aggravation, and his history in life in our community as a criminal and a killer.
THE COURT: All right. Mr. Peters?
MR. PETERS; Your Honor?
THE COURT; Anything you wish to say?
MR. PETERS; Just briefly; Your Honor,
You have, of course, heard my arguments throughout the trial and at the sentencing hearing, and I will not further belabor those points.
I would again urge Your Honor not to impose the sentence recommended by the jury and I would point out to Your Honor that Mr. Hooper is only 35 years old, that he is, and I think Your Honor could tell, from his testimony, an intelligent and articulate person, ...