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Davis v. Lemke

United States District Court, N.D. Illinois, Eastern Division

February 13, 2014

HENRY DAVIS, Petitioner,
MICHAEL LEMKE, Respondent.


MATTHEW F. KENNELLY, District Judge.

In January 2005, an Illinois judge convicted Henry Davis of first-degree murder in connection with the death of a man near a Chicago nightclub in 2002 and imposed a prison sentence of forty-five years. The Illinois Appellate Court affirmed Davis's conviction on direct appeal. After the Illinois Supreme Court denied his petition for leave to appeal, Davis filed a petition for post-conviction relief. The Circuit Court of Cook County denied the petition, and the Illinois Appellate Court affirmed the decision, followed by the Illinois Supreme Court's denial of his petition for leave to appeal.

Davis has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. He has made several claims, some filed in an initial pro se petition and others in a revised pro se petition. He also filed, via counsel, a reply and a motion to amend containing additional arguments. Respondent Michael Lemke, the warden of the prison where Davis is incarcerated, argues that the claims are procedurally defaulted or otherwise without merit. For the following reasons, the Court denies Davis's petition.


A. Trial court proceedings

Early on the morning of October 20, 2002, Shenandoah Hogan was shot three times: once in his back, once in his left arm, and once in his right thigh. He died the same day. The shooting occurred outside a Burger King restaurant on South Michigan Avenue in Chicago on the same block as E2, a nightclub operating there at the time. Henry Davis was arrested that same morning and was indicted the following month for first-degree murder.

Davis's bench trial began on January 12, 2005. The prosecution contended that Davis and Hogan were involved in a fight outside the nightclub, during which Davis shot Hogan and then fled from police, discarding the gun along the way. Davis's attorney conceded that Davis fired the shots but argued that he did so in self-defense, "to protect himself from deadly harm." Ex. P at BB-8. Counsel further contended that Davis did not bring a gun to the club but rather obtained it during a struggle with Hogan and another assailant, during which Hogan was shot. Then, the attorney argued, Davis shot Hogan again "because he didn't know whether the person in the orange shirt [Hogan] was going for another weapon or what." Id. at BB-13.

The prosecution first called Adrienne Segovia, a deputy medical examiner in the Cook County Medical Examiner's office who performed the autopsy on Hogan and opined that he died as a result of multiple gunshot wounds. She testified that Hogan's body had three such wounds: one on the right side of his back that had "coursed back to front"; another on the back of the left arm; and the third on Hogan's right anterior thigh. Id. at BB-20-22. Segovia testified that the back gunshot wound was consistent with being shot from behind. Hogan also had "ten abrasions or scrape marks on the body, " id. at BB-22, which Segovia testified were consistent with Hogan having crawled on a rough surface or pavement. On cross-examination, Segovia testified that the wound to Hogan's thigh entered from the front of the leg and that it was "possible" that the bullet had entered the thigh as a result of a ricochet. Id. at BB-34. She further testified that abrasions Hogan had above his eye were consistent with having been in a fight.

After Hogan's mother testified, the prosecution called Jonathan Masupha, a friend of Hogan, who was at the E2 nightclub on the night Hogan was killed. Masupha testified that after leaving E2 that evening, he saw Hogan near the parking lot of a Burger King, where he began fighting with a "big guy"-the same person who earlier had broken up a fight between two women at the club. Id. at BB-51. Masupha ran up to the fight and saw a female hitting Hogan in the head with a bottle; Masupha said he then hit the woman who had wielded the bottle. He testified that a larger fight proceeded to break out, and "[t]he whole parking lot seemed like they were participating." Id. at BB-53. Masupha said he pulled Hogan "to the back" and then saw "[t]he guy on the side of him" make "a reaching motion. At the same time, I began to turn around, heard shots. I'm running." Id. at BB-53-54. Masupha clarified that the man making the reaching motion "was going for his waist, " although Masupha did not see a gun. Id. at BB-54. As Masupha turned to run from the scene, he "heard a gunshot real loud towards my face, " after which he began to run away; when he returned, Hogan "was already in the ambulance." Id. at BB-55. Masupha further testified that he did not see Hogan with a gun and that E2 employees performed pat-downs of those who entered the club that night. On cross-examination, Masupha testified that he thought Hogan's car was parked in the Burger King parking lot but that he did not see it there. He added that there was a slight pause after the first shot he heard, followed by "[t]wo to three, maybe four" others. Id. at BB-73.

A witness named Amanda Conkel testified that she was exiting E2 when she heard shots; after taking cover, she got up to see "a guy running"-a person who had had "words" with Hogan at the club-"and Shenandoah was just falling." Id. at BB-89-90. She testified that she later identified Davis in a lineup as the person she saw running after the shooting, and she identified a dark blue Monte Carlo as the car she saw speeding from the Burger King parking lot after the shooting.

The prosecution also called Ira Lynch, a sergeant in the Chicago Police Department who was monitoring crowd control from his car in the area of E2 when he "saw what appeared to be a scuffle." Ex. Q at BB-162. He then heard shots fired and was moving toward the Burger King when he "observed a subject who was the victim crawling into the street." Id. He also saw, from about twenty feet away, "the victim crawling out into the street and someone standing over him shooting down at him, the offender." Id. at BB-163. The shooter, whom Lynch identified as Davis, fired three times, Lynch testified; Lynch then moved closer, at which point Hogan pointed to Davis and said that Davis had shot him. Lynch said Davis walked quickly to a dark blue vehicle and drive out of the Burger King parking lot, and Lynch blocked Davis's exit with his squad car, after which Davis drove over the sidewalk. Lynch said he followed Davis as he drove around the area, until Davis lost control of his car and ran into a tree. Davis then exited the car, Lynch testified, and began running away down Cermak Road while officers gave chase. Later that morning, Lynch said, he identified Davis in a lineup at Area 4 police headquarters.

James Brill, another Chicago police officer, also testified. He said he had responded to a call reporting shots fired around 4:00 a.m. on October 20, 2002, and followed a car that looked like the one described in the call. He followed Davis in the car around local streets until Davis jumped a curb and hit a tree. Brill testified that Davis exited the vehicle and ran, and Brill followed on foot. Brill said he saw that Davis was carrying a handgun, which ejected its magazine when Davis stopped at one point to observe that his shoes had come off. Brill picked up the magazine and continued chasing Davis. Brill and other officers apprehended Davis as he attempted to climb a fence into the Metra rail yard. As Davis was being moved into a nearby squad car, Brill heard Davis say "that he had hoped that he shot the right person." Id. at BB-213. Davis had gotten rid of the gun at some point during the chase, and Brill testified that the police canine unit was called in and found a gun in a compost bin shortly after the chase ended. The gun, Brill said, was the same one Davis had been holding earlier.

The prosecution also called Andrew Block, another Chicago police officer, who saw Davis running on foot the morning of the shooting. Block testified that he was among the officers who arrested Davis and also heard him say, "I hope I shot the right guy." Id. at BB-229. Other officers who had collected evidence from the Burger King testified, along with a forensic investigator who found evidence there and at the scenes of Davis's car crash and arrest. Cid Drisi, a forensic scientist with the Illinois State Police, testified that he had tested a pistol, one bullet, casings, a magazine, and some clothing, including a jacket with a hole in it. The jacket, Drisi testified, was "consistent with the passage of a bullet, " and the bullet and cartridges had been fired from the submitted pistol. Ex. P at BB-125-32. John Onstwedder, another forensic scientist from the state police, testified that there were no latent fingerprints on the cartridges, pistol, or magazine he tested in this case.

After unsuccessfully moving for a directed finding of not guilty at the conclusion of the prosecution's case, the defense called Eric Mason, who testified that he was at E2 early on the morning of October 20, 2002, where he saw "some arguing, " involving a "lot of people" who were "swinging." Ex. Q at CC-18, 26. After he left the club, he was attacked by two men. One of them, Mason testified, wore an orange shirt and hit him in the nose; Mason thought the assailant had "a shiny object" in his hands. Id. at CC-21-23. On cross-examination, he clarified that the object looked like a gun. James Walker, who was with Mason at E2, said he saw "guys on top of guys brawling" at the club. Id. at CC-38. After leaving the club, Walker said, he saw Mason bent over and holding his hands to his face; Walker then ran across the street and saw "15 to 20" men and women fighting. Id. at CC-40. One of the men was wearing an orange shirt, he said, and "made a gesture at me as far as with his hand up under his shirt, " which Walker said made it look like he was reaching toward a gun in his waistband. Id. at CC-41. (On cross-examination, he testified that he did not actually see a gun.) Walker said he retrieved Mason and drove him to the hospital and that Mason told him he had been hit in the face with a pistol.

Raquel Chapman, Davis's girlfriend and the mother of his son, also testified. She testified that she was at E2 on the day in question and that the club had security people using metal wands to check entrants for weapons. Chapman said she hugged Davis both at E2 and shortly after leaving the club and did not feel a metal object on him when doing so. She parted from Davis after leaving the club, she testified, and later returned there looking for Davis and saw a body lying on the ground. Later, on her route back home, she saw Davis's car after it had been in an accident.

Davis testified last. He said that security guards searched him with metal wands when he entered E2 on the morning in question and that he did not have a gun on his person or in his car. After leaving the club, Davis said, he walked Chapman to her car and then went toward the Burger King on South Michigan; there, "a guy approached me with a gun." Id. at CC-77. Davis testified that he grabbed the gun and "tussled" with the man over it; the gun "went off a couple times." Id. at CC-79. At that point, Davis said, the man's friends approached him and started hitting him from behind. "Then once they were attacking me and I grabbed possession of the gun I just fired the gun." Id. at CC-80-81. When asked why he was firing the gun, Davis said, "They were attacking me. I don't know what was going on. I didn't know what it was. So once I got the gun I was protecting myself." Id. at CC-81. The person he fired at, he said, was wearing an orange shirt and had been hitting him. Afterward, Davis said, he ran to his car and left, with the police chasing him. On cross-examination, Davis said he shot at "[t]he guy that was hitting [me] from behind" after turning around to face him. Id. at CC-85. "I guess he proceeded to run once I turned around. He didn't have his back to me when I ended up open and fired." Id. at CC-86. The prosecutor then asked whether Davis shot the man when he had his back to him and was trying to get away. Davis responded that he did not know and was "just in the heat of the moment" but admitted he never saw the man he had shot holding a gun. Id.

After closing arguments, the court convicted Davis of first-degree murder. In explaining its decision, the court said that it did not know where Davis got the gun: "Whether his gun came from his cast in his arm, whether it came from a bush, his girl friend's car, his car, whether he had it all night long, I do not know." Id. at CC-112. The court credited Lynch's testimony that Davis was standing over Hogan and "shooting into his body." Id. The court noted that the shots had gone "from back to front and upward consistent with crawling, where the victim being down [sic] on the grounds [sic] when shot." Id. at CC-113. "[T]hat is not self-defense, " the court said. Id. The court also cited Davis's leaving the scene and running from police, which "was remarkable flight from the police after the shooting, " including Davis's turning toward a pursuing officer with a weapon in hand. Id. Davis's sentence was forty-five years.

B. Appeal and post-conviction proceedings

On appeal, Davis presented two issues. First, he argued that his claim of self-defense had shifted the burden of proof to the prosecution, noting that the Illinois self-defense statute permits the use of deadly force to prevent a forcible felony. There was "more than enough evidence, " Davis argued, to show that he did not have a gun and that he was attacked by robbers. Ex. C at 22-23. Davis contended that the testimony of Lynch, the officer who said he saw Davis shooting down at Hogan, was "mistaken" and inconsistent with Masupha's testimony, because Lynch did not see some of the things Masupha reported about the "brawl" outside the Burger King. Id. at 24-27 (citing studies about the frequency of mistaken eyewitness identifications). Second, Davis contended that the prosecution had "at most" proven he was guilty of second-degree murder. Id. at 30.

The appellate court affirmed Davis's conviction. The court first addressed Davis's self-defense argument. It noted that self-defense is an affirmative defense, "and once raised by defendant, the State has the burden of proving beyond a reasonable doubt that defendant did not act in self-defense...." Ex. A at 8. The court listed six elements of self-defense and said that "[d]efendant's claim of self-defense must fail if any one of these elements is negated by the State." Ex. A at 8 (citing People v. Lee, 213 Ill.2d 218, 224, 821 N.E.2d 307, 311 (2004), and People v. Young, 347 Ill.App.3d 909, 920, 807 N.E.2d 1125, 1134 (2004)). Considering the evidence by assessing whether "any rational trier of fact could have found beyond a reasonable doubt that defendant failed to act in self-defense, " the court held that substantial evidence supported the trial court's conclusion. Id. at 9. The court placed emphasis on Lynch's testimony, Davis's flight from police, and the autopsy results showing Hogan was shot in the back. The court said that even if Davis's version of events were true-that he was the victim of an assault-the facts showed that Hogan himself did not have a gun but was hitting Davis from behind and then was trying to get away when Davis shot him. Therefore, Davis "failed to show that the force he used against the victim was necessary to justify self-defense." Id. at 10. The court also rejected Davis's alternate argument that he was guilty of second-degree murder at most. Considering the fact that Davis "shot the unarmed victim in the back while the victim was crawling away from him, " the court said that "no mitigating factors were presented" sufficient for "a finding of second degree murder." Id. at 10-11.

Following the appellate court's decision, Davis filed a pro se petition for leave to appeal with the Illinois Supreme Court, which the court denied in November 2008. In 2009, Davis filed a post-conviction petition. He made ten claims, eight of which concerned the performance of his trial counsel. These included claims regarding how counsel handled Davis's theory that he was attacked in order to rob him of his jewelry, misrepresentations about the duties and actions of the prosecutors and detectives handling his case, counsel's failure to investigate those individuals and their reports, charts, and inventory procedures, and his recommendation that defendant waive his right to a jury trial. Davis also contended that his due process rights were violated when prosecutors and investigators removed his jewelry and falsified reports. Finally, Davis claimed that 730 ILCS 5/5-8-1(d)(i), which provides for sentencing enhancements based on use of a firearm, violated the constitution's Equal Protection Clause. Davis attached several affidavits to his petition as well as photographs of the jewelry in question.

The trial court denied Davis's post-conviction petition. The court first held that "all of petitioner's claims could have been raised on direct appeal" but were not and were thus waived. Ex. S at C125. The court nonetheless proceeded to address the merits of the claims. It noted that many of the claims derived from Davis's argument that Hogan tried to rob him and that police improperly removed and inventoried his jewelry. The court said it was unclear how these events violated Davis's due process rights and that because Hogan was unarmed and retreating when Davis shot him, Davis did not present facts sufficient to disturb the finding that he did not act in self-defense. The court also found "baffling" Davis's claim that the police falsified their reports; it said this claim could not negate the fact that Davis did not meet the elements of self-defense. Id. at C127. Citing Strickland v. Washington, 466 U.S. 668 (1984), the court also held that Davis could not demonstrate that his attorney's various failures to investigate prejudiced him. Davis's argument that there was a police cover-up was "speculative and implausible, " the court said, and regardless of any failure by counsel to investigate it, the outcome of the trial would not have changed, because Davis "shot an unarmed man from behind as he crawled across the ground away from petitioner." Ex. S at C129. In addition, the court held that trial counsel's recommendation that Davis request a bench trial was trial strategy that did not constitute ineffective assistance. The court noted that it has "duly admonished" Davis regarding the jury waiver and that he did not object to the waiver, and it concluded that the waiver was not "unknowing or unintelligent." Id. at C130. Finally, the court rejected Davis's argument that the sentencing enhancement statute violated the Equal Protection Clause, citing People v. Sharpe, 216 Ill.2d 481, 839 N.E.2d 492 (2005). In sum, it found that Davis's claims were "frivolous and patently without merit" and dismissed the petition. Ex. S at C132.

Davis appealed the circuit court's decision in August 2010, presenting just one claim on appeal: that the circuit court's decision was incorrect because "trial counsel was ineffective for failing to present evidence supporting Davis's claim of self-defense." See Ex. I at 15. Davis argued, as he had before the trial court on his post-conviction petition, that trial counsel should have presented evidence that Davis was wearing jewelry at the time of the incident and that he believed he was being robbed. He contended that his shooting of Hogan may have been based on "a reasonable or unreasonable belief that he remained vulnerable to further assault from Hogan- perhaps from a weapon on Hogan's person or hidden in or near the car that Hogan was touching when he was shot." Id. at 23. Davis's brief also touched on the notion that he was guilty of, at most, second-degree murder because he acted in self-defense, though he did not present this as a separate argument.

The appellate court affirmed the dismissal of Davis's post-conviction petition. After first concluding that Davis had not waived his claims, contrary to the circuit court's ruling, the appellate court proceeded to hold that it was legitimate trial strategy for trial counsel to decide not to present evidence that Davis was being robbed of his jewelry. The court cited Davis's testimony that he did not know whether he was being robbed and the fact that police reports did not mention a robbery. It also pointed to trial counsel's attempts "to show that defendant may have been the victim of an attempted robbery through other means, i.e., the testimony of Mason and Walker." Ex. H at 9. Further, the court said trial counsel's opening statement showed that he was already making a self-defense argument. "[T]he fact that defendant was wearing jewelry at the time he was allegedly being robbed would not add any relevant evidence to his self-defense argument because it did not matter why he was being attacked." Id. at 9-10. Finally, the court determined that Davis had not shown prejudice from his attorney's actions, because the evidence of his guilt of first-degree murder was overwhelming. It also held that the jewelry evidence would not have been sufficient to reduce his offense from first- to second-degree murder, because the record did not show that Davis acted in self-defense, either reasonably or unreasonably. Id. at 11.

Following the appellate court's decision, Davis filed a petition for leave to appeal with the Illinois Supreme Court. The court ...

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