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United States Ex Rel. Banks v. Harrington

United States District Court, Seventh Circuit

December 30, 2013

United States of America ex rel. NATHANIEL BANKS, Petitioner,
v.
RICK HARRINGTON, Warden Menard Correctional Center, Respondent.

MEMORANDUM OPINION AND ORDER

VIRGINIA, M. KENDALL, District Judge.

Petitioner Nathaniel Banks 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 Rick Harrington, the warden of that facility. A judge convicted him of attempted first-degree murder, 720 ILCS § 5/9-1(A)(1), and unlawful use of a weapon by a felon, 720 ILCS §5/24-1.1(A) on July 31, 2006. He is currently serving a sixty-five year sentence. For the following reasons, Banks's petition is dismissed.

FACTS

On March 12, 2005, Banks was at a bar called Hill's Lounge in Chicago when he encountered Charles Wilson. (Dkt. No. 19-3 at p. 6.) Banks attempted to shake Wilson's hand, but Wilson declined because he heard rumors that Banks planned to rob him. ( Id. ) After leaving the bar, Wilson met Cassandra Moore and Patricia Jones outside. ( Id. ) Wilson and Jones waited in Wilson's car while Moore went into a nearby sandwich shop. ( Id. ) While waiting, Thomas Moore pulled his car (with Banks in the passenger seat) alongside Wilson's on 63rd Street. ( Id. ) Banks then fired a shot at Wilson's car, breaking the driver's side front seat window. (Dkt. No. 19-1 at p. 306.) Banks then exited Moore's car, stood near Wilson's car, and shot Wilson twelve times. ( Id. ) Both Jones and Wilson suffered permanent injuries in the shooting. (Dkt. No. 19-3 at p. 6.)

After the shooting, Wilson drove himself to a police station two blocks away while Cassandra Moore ran back into the sandwich shop to call police. ( Id. at 6-7.) At the police station, Wilson told the police that Banks and Thomas Moore shot him, and that they were driving a white vehicle. ( Id. at 7-8.) Chicago Police Department Officers John Granat and Whitney Russo arrived at the crime scene and began searching for a car matching Wilson's description. ( Id. at 8.) Officer Granat eventually noticed a man walking towards a white car parked on the 6300 block of South Aberdeen Street. ( Id. ) Officer Granat testified that he recognized the man as Banks. ( Id. ) Officer Granat approached the car and ordered Banks and Thomas Moore, who was in the driver's seat, out of the car. ( Id. ) Officer Granat questioned Banks, and learned he lived at 6337 South Aberdeen Street. ( Id. )

Police took Cassandra Moore to South Aberdeen Street, where she identified Thomas Moore's car. ( Id. at 7.) She was then taken back to the police station, where she identified Banks in a line-up. Officer Fernandez went to Banks's address and received consent to search, where he found a gun near the basement stairs. ( Id. at 8.) The parties stipulated that the cartridges found at the scene of the shooting matched the gun found in Banks's home. ( Id. )

On July 31, 2006, following a bench trial, Banks was convicted of two counts of attempted first degree murder and one count of unlawful use of a weapon by a felon. (Dkt. No. 19-8 at p. 43.) Shortly thereafter, Banks filed a motion for a new trial on grounds that he received ineffective assistance of counsel, along with a complaint to the Attorney Registration and Disciplinary Commission ("ARDC") against his trial counsel. (Dkt. Nos. 19-1 at p. 89; 19-14 at p. 2.) Banks's trial counsel testified at a hearing on this motion, and the court subsequently denied Banks's motion and found that his trial counsel was not ineffective. (Dkt. No. 19-1 at p. 399.)

On April 23, 2007, Banks was sentenced to consecutive terms of forty and twenty-five years on the attempted murder convictions, and a concurrent seven-year term on the unlawful use of a weapon conviction. ( Id. at pp. 402, 407.) Banks directly appealed his conviction on May 1, 2007, and on May 11, 2007, counsel from the Office of the State Appellate Defender ("OSAD") was appointed to represent him. ( Id. at pp. 10, 99.) On May 5, 2008, appellate counsel filed a motion with the Illinois Appellate Court requesting leave to withdraw from representing Banks pursuant Anders v. California, 386 U.S. 738 (1967). (Dkt. No. 19-3 at p. 1.) Counsel explained in her brief that she considered raising several issues on appeal, but concluded that none of the issues were of arguable merit. ( Id. at p. 11.) The Illinois Appellate Court granted the OSAD's motion to withdraw and affirmed Banks's conviction on December 31, 2008. (Dkt. No. 19-1 at p. 308-10.) Banks then filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court on March 27, 2009. (Dkt. No. 19-4 at p. 1.) The Illinois Supreme Court denied Banks's PLA on May 28, 2009. (Dkt. No. 19-5 at p. 1.)

On December 8, 2009, Banks filed a pro se petition for postconviction relief. (Dkt. No. 19-6 at p. 28.) The trial court rejected his claims on March 8, 2010 as "frivolous and patently without merit." ( Id. at p. 23.) He appealed that decision on March 29, 2010. ( Id. at 38.) Counsel was appointed to represent Banks for this appeal on April 2, 2010. ( Id. at p. 14.) Banks's post-conviction appellate counsel subsequently filed a brief arguing that Banks's trial counsel was ineffective for failing to subpoena his wireless telephone records, among other reasons. (Dkt. No. 19-8 at pp. 1, 6.) On January 31, 2012, the Illinois Appellate Court affirmed the dismissal of Banks's petition. (Dkt. No. 19-14 at p. 1-2.) Banks then filed a PLA with the Illinois Supreme Court, arguing the appellate court erred in dismissing his ineffective assistance of counsel claim. (Dkt. No. 19-15 at pp. 1-15.) The Illinois Supreme Court denied his PLA on May 30, 2012. (Dkt. No. 19-6 at p. 1.)

Banks filed the present petition for a writ of habeas corpus on September 28, 2012. He alleges is trial counsel was ineffective for failing to:

Ground One. Interview four people listed in the State's discovery who may have witnessed the shooting to see if they had any credible information;
Ground Two. Fully investigate the case or interview any of the State's witnesses prior to trial, leaving him unable to impeach those witnesses;
Ground Three. Subject the prosecution's case to meaningful adversarial testing by not fully cross-examining the State's witnesses;
Ground Four. "Raise reasonable doubt due to insufficient evidence" because the physical evidence did not match the State's witnesses accounts of the shooting;
Ground Five. Obtain a copy of the surveillance tape ("exculpatory evidence") from the Citgo gas station located near the scene of the shooting;
Ground Six. Issue a subpoena for Banks's wireless phone records, which would have allowed his counsel to corroborate Banks's testimony at trial;
Ground Seven. File a motion to suppress Cassandra Moore's identification of Banks after trial counsel was informed there was a "possible show-up while identifying the alleged car involved in the shooting;" and
Ground Eight. Move for a directed finding at the close of the State's case in chief because such failure is evidence that "counsel went into trial without a strategy or adequate defense and only relied upon defendant's ...

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