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Childs v. Butler

United States District Court, S.D. Illinois

June 16, 2014

KIM BUTLER, Warden, Menard Correctional Center, Defendant[1].


DAVID R. HERNDON, District Judge.

I. Introduction

This case is before the Court on a petition for writ of habeas corpus (Doc. 1). Respondent has filed a Response (Docs. 14 & 15) and Amended Response (Doc. 19) to the petition. Respondent later filed a supplemental Exhibit to the Response (Doc. 28). Petitioner has filed a Reply (Doc. 37). Respondent has filed a Sur-Reply (Doc. 41). Based on the following, the Court DENIES and DISMISSES petitioner's habeas petition (Doc. 1).

II. Background

A. Procedural Background

1. Facts

Petitioner is currently incarcerated at Menard Correctional Center where he is serving a fifty-year prison term for one count of first degree knowing murder (Doc. 15 Ex. A).

Petitioner was charged in Peoria County with three counts: aggravated discharge of a firearm, first degree murder, and felony murder based on aggravated discharge of a firearm ( Id. ). The following facts regarding the acts that lead to petitioner's conviction on this charge is taken from the Order on Appeal from the Circuit Court of the 10th Judicial Circuit ( Id. ).

On August 19, 2000, petitioner was picked up by Marcus Risby and Joseph Griffin in their car. At the time, petitioner had a semi-automatic rifle with him which was wrapped in a sheet (Doc. 15 Ex. A at p. 2). Risby explained that he had an earlier encounter with Mitchell McGee and that he was going to "check" McGee, which Griffin testified at trial meant he was7 going to question him ( Id. at pp. 2-3). Risby dropped Griffin off and Risby and petitioner went to find McGee, stopping at a house where Risby had previously seen McGee ( Id. at p. 3). Risby and petitioner walked to the back of the house and Risby instructed petitioner to stay at the back of the house and then at the count of five to shoot at the house ( Id. ). Risby walked to the front of the house and petitioner shot his semi-automatic rifle into the house for ten seconds ( Id. ). One of the bullets ricocheted and hit Risby in the head, killing him ( Id. ).

At the trial, the owner of the house testified that she was at home with her two grandchildren when the shooting started and was awakened by the gunfire ( Id. ). Neither she nor her grandchildren were injured ( Id. ). Forensic pathologists testified that the bullet that killed Risby had traveled some distance and ricocheted. Petitioner's semi-automatic rifle fired 25 of 27 cartridges, which were found in the backyard ( Id. ). A pistol was found near Risby with ten rounds that had not been fired. The pistol had Risby's fingerprints on it ( Id. ). At the trial, petitioner also testified and confirmed the facts but added that he thought the home was empty at the time that he fired into the house. He testified that upon approaching the house, Risby did not see McGee's house and assumed he was not home. He stated that he would not have fired into the house if he believed people were inside ( Id. ). Petitioner was found guilty on all three counts and was sentenced to 50 years in prison on the first degree murder charge only.

2. State Court Proceedings

a. Direct Appeal

After petitioner's guilty verdict, petitioner appealed raising the following claims on direct appeal:

(1) Petitioner was not guilty of first degree knowing murder because the prosecution failed to prove beyond a reasonable doubt that petitioner knew that the house was occupied when he fired his gun into it. Likewise, petitioner did not commit aggravated discharge of a firearm and was not guilty of felony murder;
(2) Petitioner's conviction of felony murder was improperly premised on aggravated discharge of a firearm because that felony has no independent felonious intent and it is not a forcible felony under the felony murder statute;
(3) The prosecution improperly shifted the burden of proof on the element concerning whether Petitioner knew the building was occupied;
(4) The trial court improperly considered three victim impact statements in violation of state law; and
(5) The trial court abused its discretion in sentencing petitioner to a fifty-year prison term.

(Doc. 15 Ex. B).

The state appellate court affirmed Petitioner's verdict and sentence on October 17, 2011 (Doc. 15 Ex. A). Petitioner filed a petitioner for leave to appeal (PLA) to the Illinois Supreme Court on claims (1) and (3) and the supreme court denied his PLA on February 6, 2002 (Doc. 15 Exs. E and F).

b. Post-Conviction Proceedings

On August 6, 2002, petitioner filed a post-conviction petitioner pursuant to 725 ILCS 5/122-1, et seq., in the Circuit Court of Peoria County (Doc. 15 Ex. G). In that petition, petitioner raised the following issues:

(1) Trial counsel was ineffective in:
a. failing to investigate petitioner's claim that the Peoria Police Department denied him counsel by telling him that he did not need an attorney because he was being charged only with involuntary manslaughter;
b. failing to move to quash arrest in light of the denial of petitioner's right to counsel;
c. failing to investigate petitioner's claim that he was tricked by the police into giving a videotaped statement;
d. failing to move to suppress the videotaped statement;
e. failing to investigate petitioner's claim that he was intoxicated at the time of the offense;
f. failing to investigate whether petitioner's ability to recall details from the shooting precluded a ...

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