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Burke v. Hardy

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

February 28, 2014

JOHN BURKE, Petitioner,
v.
MARCUS HARDY, Respondent.

MEMORANDUM OPINION AND ORDER

EDMOND E. CHANG, District Judge.

Petitioner John Burke has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, [1] challenging his 2003 conviction for armed robbery. R. 1, Habeas Pet. For the reasons that follow, his petition and a certificate of appealability are denied.[2]

I. Background

A federal habeas court presumes that the factual findings made by the last state court to decide the case on the merits are correct, unless those findings are rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Coleman v. Hardy , 690 F.3d 811, 815 (7th Cir. 2012). Burke has not rebutted this presumption, so the following sets forth the facts underlying Burke's state criminal conviction.

On September 29, 2001, at about 8:30 a.m., Petitioner John Burke robbed Kathleen Jordan at gunpoint. People v. Burke , No. 2-08-0135, slip op. at 2-3 (Ill.App.Ct. May 25, 2010), available at R. 18-2, State's Exh. B.[3] Jordan had just unlocked the front door of the Wheaton, Illinois Currency Exchange where she worked when Burke approached her from behind, put a gun to her head, and ordered her to "get in and open the fucking door." Id. at 2. Once inside the Currency Exchange, Burke pushed Jordan to the floor. Id. He then ordered her to get up and open the security door that separated the public lobby from the secured work area that only employees could access. Id. at 2-3. To access the secured work area, Jordan had to step into a small space behind the security door that was only large enough for one person. Id. at 3. Only after the security door closed behind her could she then access the secured work area. Id. On this particular morning, once Jordan opened the security door and stepped into the small space, Burke put his arm through the security doorway. Id. Jordan realized, however, that Burke could not get through the doorway, so she hit the alarm. Id. Through the bulletproof glass in the secured work area, Jordan saw Burke run into the lobby. Id. at 2-3. She then dropped to the floor and heard glass breaking. Id. at 3. When she next looked into the lobby, Burke was gone. Id. The police arrived at the scene about five minutes later. Id. By that point, Jordan had noticed that her purse was missing. Id.

Jordan described her assailant to the police as a fifty-year-old black man, wearing a maroon jacket, a white T-shirt, tan pants, and a floppy hat. Id. A short time later, the police told Jordan that they had a suspect in custody. Id. Jordan viewed the man, but she told the police that they had the wrong guy. Id. Before too long, the police asked Jordan to view yet another suspect. Id. Again, Jordan viewed the suspect, and again she told them that they still had not found her assailant. Id.

In the meanwhile, police recovered four fingerprints from the crime scene that were suitable for comparison. Id. One fingerprint, which was collected from the inside of the security door, belonged to Jordan. Id. The other three did not. Id. at 3-4. Leroy Keith, a DuPage County Crime Lab fingerprint expert, entered two of the three unidentified fingerprints into the FBI's Automated Fingerprint Identification System database. Id. The database identified Burke as a "very good candidate as a suspect in th[e] investigation.'" Id. at 4 (alteration in original). Keith then independently confirmed that Burke's fingerprints matched the three unknown fingerprints from the crime scene. Id. Two of the fingerprints had been recovered from inside the security door. Id.

Based on the fingerprint analysis, the police asked Jordan to view a photographic lineup featuring Burke and five other men who had similar appearances. Id. Jordan identified Burke as her assailant, stating, "That's him." Id. When the police officer asked Jordan if she was sure, she explained that she would "never forget his face." Id.

The State charged Burke with two counts of armed robbery: Count I under 720 ILCS 5/18-2(a)(1) and Count II under 720 ILCS 5/18-2(a)(2). Id. at 2. Subsections (a)(1) and (a)(2) are identical except that (a)(1) applies to robberies committed with "a dangerous weapon other than a firearm" and (a)(2) applies to robberies committed " with a firearm." 720 ILCS 5/18-2(a)(1), (a)(2) (emphasis added). Despite subsection (a)(1)'s application to robberies committed with a weapon other than a firearm, Count I of the indictment alleged that Burke violated (a)(1) by committing robbery "while armed with a dangerous weapon, a gun. " People v. Burke , 840 N.E.2d 281, 283 (Ill.App.Ct. 2005) (emphasis added), available at R. 18-1, State's Exh. A. Count II, which cited subsection (a)(2), simply alleged that Burke committed robbery "while armed with a firearm." Id.

The evidence that Burke brandished a firearm while robbing Jordan was "overwhelming and uncontested." Id. at 284. Nevertheless, shortly before concluding its case in chief and after introducing evidence about the nature of the gun, the State moved to dismiss Count II and proceeded solely on Count I. Id. at 283 (emphasis added). The State explained that it made this choice because "all the instructions [the State] drafted relate[d] to the dangerous weapon." Id .; see also R. 18-3, State's Exh. C, Jury Instructions at 13. Of course, the problem with this maneuver was that Count I (which explicitly alleged that Burke was armed with "a dangerous weapon, a gun") cited subsection (a)(1), which only applies to armed robbery with a weapon other than a firearm. Burke , 840 N.E.2d at 383. Burke did not challenge the indictment at trial. Id at 384.

The jury found Burke guilty of armed robbery, and the trial court sentenced him to life imprisonment under Illinois's Habitual Criminal Act, 720 ILCS 5/33B-1(e) (West 2000), because Burke had two prior armed-robbery convictions. Burke , 840 N.E.2d at 282, 284-85. Burke's conviction and sentence were affirmed on direct appeal. See id. at 282, 284, 286.

Next, during post-conviction review, Burke alleged that his trial counsel was ineffective for (1) failing to investigate, prepare, and present an alibi defense; (2) failing to present evidence to rebut the State's fingerprint evidence that placed him at the crime scene; (3) failing to hire a fingerprint expert; and (4) failing to object when a police officer interrupted the trial and, in the jury's presence, removed a pistol from an evidence bag that was never admitted into evidence. See Appellant's Br. at 17, People v. Burke , No. 2-08-0135 (Ill.App.Ct. Aug. 5, 2009), available at R. 18-8, State's Exh. H. In support of his claims, Burke submitted three affidavits: one from himself and two from his wife, Avon Nesbitt. Burke , No. 2-08-0135, slip op. at 5. In his affidavit, Burke claimed that he gave $5, 000 to his trial counsel to hire a fingerprint expert. Id. He also claimed that he told his trial counsel that Nesbitt's testimony was "imperative" and that she was "willing and ready" to testify about what they did together in their household on the morning of the robbery. Id. Finally, Burke also claimed that

During trial, [he, that is, Burke] observed the arresting officer from the unrelated Cook County case enter the courtroom with a large envelope. Upon being noticed by the Asst. State's Attorney (who was in the process of examining a witness) he requested a brief break from questioning the witness from the Court and walked directly over to the Chicago police officer, who then pulled a weapon from the envelope in plain view of the jurors sitting directly before them. [He] immediately brought this mishap to [trial counsel's] attention. [Trial counsel] replied [D]on't worry, ...

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