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Austin v. Harrington

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

June 16, 2014

LAZEREK AUSTIN (#K77091), Petitioner,
v.
RICK HARRINGTON, Warden, Menard Correctional Center, Respondent.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge.

Before the Court is pro se Petitioner Lazerek Austin's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). For the following reasons, the Court denies Austin's habeas petition and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

BACKGROUND

Austin does not present clear and convincing evidence challenging the statement of facts in the last state court decisions addressing his arguments on the merits, and thus the Court presumes those facts are correct for purposes of its habeas review. See 28 U.S.C. § 2254(e)(1); Bolton v. Akpore, 730 F.3d 685, 687 (7th Cir. 2013). The Court therefore adopts the underlying facts as set forth by the Illinois Appellate Court in People v. Austin, No. 1-10-3616 (1st Dist. Sept. 14, 2012) (unpublished) and People v. Austin, No. 1-06-0198 (1st Dist. Sept. 4, 2009) (unpublished).

I. Factual Background

In November 2002, Chicago police arrested and charged Austin for his involvement in the January 3, 2002 robbery of the Economy Auto Repair shop located at 1525 North Lawndale Avenue in Chicago, as well as the kidnaping and subsequent murder of two of the shop's employees, Renee Tapia and James Flores. At Austin's February 2005 bench trial in the Circuit Court of Cook County, the parties presented over twenty witnesses. The Court will discuss the trial evidence relevant to Austin's claims in the present habeas petition.

At trial, the receptionist at the Economy Auto Repair shop, Adilia Palansia, testified that on January 3, 2002, she was in the shop with five other employees, including the murder victims Tapia and Flores. She further testified that around noon on that date, an African-American man entered the shop demanding money, as well as keys to Flores' office. Palansia testified that the man was wearing a ski mask when he approached her desk. When Palansia did not produce the money or the keys, the man began hitting her repeatedly. He then dragged her to the dining area of the shop, at which time Palansia saw another African-American man. The second man hit her across the face resulting in a broken nose. Palansia testified that she then fainted and fell to the floor.

When she regained consciousness, Palansia realized that she was on the floor at the back of the store next to Flores and that her hands and feet were bound with tape. At that time, Palansia closed her eyes, but heard the attackers take Flores to the shop's office demanding him to open the safe. She also heard the men beating Tapia. Further, Palansia testified that the men began to talk about killing them, after which she closed her eyes and stopped breathing. The men thought Palansia was dead. Thereafter, the men dragged Flores and Tapia away. Palansia opened her eyes, realized she was alone, and crawled to the front room where she freed herself and sought help. A neighbor helped her call the police. In addition, Palansia testified that on October 27, 2002, she went to the Area 4 police station to look at a lineup where she identified Austin's co-defendants, Olauden Slaughter and Craig Lomax, as the men who robbed the repair shop, assaulted her, and took Flores and Tapia away.

Jose Gallegos, Tapia's step-uncle, also testified at Austin's February 2005 bench trial. Gallegos stated that he went to the Economy Auto Repair shop on January 3, 2002 to meet Tapia. While Gallegos was waiting for Tapia, Flores asked him to pick up some automobile parts for him at a nearby store. Gallegos obliged and when he turned to leave the shop, he saw two African-American men who asked him to point out the mechanic. Gallegos then turned around and told Flores that the two men were looking for him. Furthermore, Gallegos testified that when he was leaving the shop, he observed a van in front of the store that had not been there when he initially arrived. According to Gallegos, the van had white thin lines on the sides and was parked backwards toward the entrance. Gallegos identified photographs of the van at trial.

Austin's friend, Marquand Williams, also testified at the February 2005 bench trial. He stated that in November 2001, he frequently visited the Economy Auto Repair shop with Austin or Austin's brother to buy narcotics. Williams testified that in October and November 2001, Austin talked to him about robbing the auto repair shop and asked Williams to "stake out" the shop for this purpose, although Williams testified that he never actually "staked out" the shop. Several days after the robbery, Austin told Williams that he had kidnaped and killed "the two Mexicans" at the Economy Auto Repair. Williams also testified that Austin told him that he shot one of "the Mexicans" and "blew the motherfuckers knee off."

On cross-examination, Williams admitted that his primary source of income was narcotics sales and that he had been arrested for manufacturing and possessing narcotics. He also testified that he was released on home monitoring, but violated his home monitoring in October 2002, and thus was sent back to prison. Williams further testified that he had asked Austin to bail him out, but Austin refused. Shortly thereafter, Williams contacted the police to inform them that he had information about the Economy Auto Repair murders. Also on cross-examination, Williams testified that he felt betrayed by Austin because he had bonded Austin's brother out of jail in 1998 and that in 1999, Austin and others beat him for not helping Austin's brother when the police had chased him.

Also, defense counsel asked Williams about the inconsistencies between his trial testimony and his grand jury testimony. To clarify, Williams testified before the grand jury that Austin confessed to the crime while the two men were in Austin's apartment, whereas at trial, Williams stated that the confession occurred in Austin's car. At trial, Williams explained that Austin confessed to him more than once.

The State also called Shaun Glover at Austin's February 2005 bench trial. Glover testified that in January 2002, he owned a green van and that on a day in early January 2002 at about 11 a.m., he was standing in front of his house at Central Park Avenue and Flournoy Street in Chicago when Austin drove up in his gray four-door Chevrolet and asked to borrow Glover's van. Austin told Glover that he needed the van so that he and "some guys" could "get high." Glover testified that he let Austin use his van and Austin gave Glover the keys to the Chevrolet in exchange. Also, Glover observed Austin getting into the driver's seat and that Austin's co-defendant got in the front passenger seat. According to Glover, later that night, at approximately 11:30 p.m., Austin's co-defendant and another man named Cornell Cardine came over to Glover's house and told him that the van was at the local car wash. Glover then went to the car wash with his girlfriend to pick up his van. Once he got to the car wash, Glover discovered blood all over the dashboard and floor, panicked, and left the van at the car wash. Further, Glover testified that a few days later he spoke to Austin on the street and asked him what had happened. Austin answered that "somebody got shot in the leg" and that it was "one of his buddies."

On cross-examination, Glover acknowledged that he was a convicted felon and that his prior convictions included a conviction for aggravated battery of a police officer on April 16, 2003, for which he received 18 months of probation and a conviction for possession of a controlled substance on September 29, 2004, for which he received 24 months of probation. Also on cross-examination, Glover admitted that he could not recall the exact date on which he loaned his van to Austin nor which date he talked to Austin about the blood in his van. On re-direct, Glover testified that he loaned his van to Austin only once.

Austin's girlfriend, Inesha Scott, also testified at trial. She stated that around noon on January 3, 2002, she was at the apartment of Austin's sister in Chicago where Austin kept a safe. More specifically, Scott was there with Austin, Austin's siblings, and other individuals including one of Austin's co-defendants, Olauden Slaughter. She testified that she heard Austin ask Slaughter whether he had "the ski masks and gloves." Thereafter, Slaughter gave Austin a black ski mask. Also, Scott testified that Austin opened the safe and took out his gun. Scott observed Austin put his gun under his shirt and then leave the apartment.

Scott testified that later that night, she saw Austin in a taxi at which time he asked her to come over. Scott then got in the taxi and went with Austin to his apartment at 1609 North LeClaire Avenue in Chicago where Slaughter and Austin's other co-defendant Craig Lomax met them, as well as a third man named Lydelle Cardine. Once inside Austin's apartment, they proceeded to Austin's bedroom where Scott heard Austin say, "I told you all don't shoot them guys." Also, Scott testified that Austin asked them where the van was. Further, Scott observed a heap of money on top of Austin's television set. Thereafter, Scott went to her aunt's house with Austin where they spent the night. Scott testified that while they were watching the news, Austin kept repeating, "man, man, man, man." In addition, Scott testified that Austin took her to the Economy Auto Repair shop on a few occasions prior to the January 3, 2002 kidnaping and murders.

On cross-examination, Scott testified that she did not see Austin place the money on the television set in his apartment and she did not know how long the money had been there before they entered the apartment. She also acknowledged that she did not talk to the police until November 2002, and that she recalled that all of this had occurred on January 3, 2002, because the detective who interviewed her reminded her of the date. When probed about her ability to recollect events, Scott was unable to remember what she had done or where she had been on several more recent dates. On redirect examination, however, the State established that Scott's birthday was January 7, and she recalled that all of the events to which she testified occurred before her birthday.

The State also called Cornell Cardine as a witness. Cardine testified that the police had arrested him pursuant to a bench warrant for his failure to appear in Austin's case. At trial, Cardine first admitted that in November 2002, two police detectives took him out of a boot camp at Cook County Jail, where he was incarcerated for an unrelated offense, to interview him about the Austin's case. Cardine initially admitted that after speaking to the police detectives, he gave a handwritten statement to a Cook County Assistant State's Attorney, and that consistent with that statement, he provided incriminating testimony against Austin before the grand jury. Nevertheless, Cardine recanted both his handwritten statement and his grand jury testimony at Austin's February 2005 bench trial. In doing so, Cardine explained that the police detectives gave him some "jotted down statements to remember" and that he merely repeated them to the Assistant State's Attorney. Cardine further explained that he "went along with the story the detectives gave him" because they led him to believe that Austin had been involved in his brother's murder. In addition, Cardine testified that he initially refused to cooperate with the police, but agreed only after the police detectives threatened punitive measures. Cardine admitted, however, that his recantation happened after he was placed in the same lock-up as Austin when he was arrested on the bench warrant.

Given Cardine's recantation, the State proceeded to use Cardine's grand jury testimony to impeach him. Thereafter, Cardine acknowledged that at that grand jury hearing he testified to the following: Cardine, his brother Lydelle, Austin, Lomax, and Slaughter were all members of the Unknown Vice Lords gang. On the evening of January 3, 2002, Cardine was in the front passenger seat of a Saturn, owned by the gang, when he observed Austin and Lomax on the corner of Franklin Boulevard and Kedzie Avenue in Chicago. Lydelle, who was driving the Saturn, got out of the car and spoke to Austin and Lomax, then returned to the car and told Cardine that the two men wanted them to follow. Cardine then observed Austin and Lomax walk into a nearby alley. Soon thereafter, Lomax appeared driving Glover's greenish-turquoise van and motioned Lydelle to follow. Five minutes later, at the corner of Cicero Avenue and Kinzie Street, Slaughter and another member of the Unknown Vice Lords gang known as "Lil' Wayne" came out of the van, got into the Saturn, and told Lydelle to keep following the van. After a couple of blocks, the van stopped next to the railroad tracks at Kenton Avenue, whereupon Slaughter instructed Lydelle to drive the Saturn about a half a block past the van and then stop. After Lydelle obliged, Slaughter ran back toward the van and then Cardine heard three to four gun shots. Slaughter returned to the Saturn and told Lydelle to drive to the local car wash on Madison and Homan. Once there, Lomax exited the van, spoke to the car wash employees, returned to the Saturn, and instructed Lydelle to drive to Central Park Avenue and Flournoy Street, where everyone got out of the car and "went on about their business."

In addition, the Circuit Court allowed the State to introduce Cardine's handwritten statement into evidence. The handwritten statement was consistent with Cardine's grand jury testimony. In his handwritten statement, Cardine also admitted that a few days after the incident he read "about some guys getting kidnaped from a garage or auto body place and getting killed" near Kenton Avenue, and realized that Austin, Lomax, and Slaughter were involved. He stated, however, that he ...


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