United States District Court, N.D. Illinois, Eastern Division
United States of America ex rel. TONY THOMAS, Petitioner,
RANDY PFISTER,  Respondent.
OPINION AND ORDER
CHARLES RONALD NORGLE, District Judge.
Before the Court is Petitioner Tony Thomas's ("Thomas") Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. For the following reasons, Thomas's petition is denied.
A state court's factual findings are "presumed to be correct" on federal habeas corpus review unless the petitioner rebuts this "presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). The Court takes the following facts from the relevant Illinois state court opinions. Following a jury trial in the Illinois state court, Thomas was convicted of first degree murder for the fatal shooting of Khatim Shakir (the "victim"). The trial court sentenced Thomas to 50 years' imprisonment for the murder, and an additional mandatory term of 25 years' imprisonment pursuant to 730 Ill. Comp. Stat. 5/5-8-1(a)(1)(d)(iii), for a total sentence of 75 years' imprisonment. Thomas's conviction and sentence were affirmed on direct appeal.
The evidence produced at trial established that on the evening of September 22, 2001, the victim was at a party in Chicago, Illinois with his girlfriend, Vanessa Perez ("Perez"), Fernando Cota ("Cota"), Henry Igunbor ("Henry"), and Joe Igunbor ("Joe"). The group left the party to go to a liquor store at the corner of Belmont and Sheffield where they met up with Gregory Hoyos ("Hoyos"), who is a member of the Latin Kings street gang. While Hoyos was outside of the liquor store, a man, who was later identified as Thomas, approached Hoyos and stated "what's up, motherfucker, G.D., " which indicated that Thomas was a member of the Ganger Disciples, a rival street gang. Hoyos testified that he "shook him off' and ignored Thomas. Shortly thereafter, Cota and the victim, who had been a member of the Latin Kings, walked towards Hoyos. The victim and Hoyos "shook up the crown" or shook hands using the Latin King's handshake. Thomas then approached Hoyos and the two exchanged heated words, during which Thomas identified himself as a "King killer, " which meant that he killed members of the Latin Kings. Thomas then pulled a gun from his waistband and pointed it at Hoyos. Thomas fired the gun four to five times while Hoyos and the victim ran across the street. The victim, who was behind Hoyos, yelled that he had been hit. When the group returned, they found the victim collapsed in the street in a pool of blood. The shooting was reported to Detective Tony Villardita of the Chicago Police Department at 2:25 a.m. on September 23, 2001. Within days of the shooting, Perez, Cota, Henry, Joe, and Hoyos positively identified Thomas as the shooter in both a photo array and a live line-up. Later, the five witnesses made in-court identifications of Thomas at his trial.
In addition, Officer John Massi ("Massi") of the Chicago Police Department testified that earlier that evening between 11:30 p.m. and 12:00 a.m., he came upon a group, including Thomas, in a heated conversation at the corner of Belmont and Sheffield. Massi told the group to disperse, although some remained. At one point, Massi spoke with one of the individuals, who was later identified as Thomas, who told Massi that he "wasn't about to take any shit off of anyone" and that "if any of the local gangbangers fuck with me, I'm going to come back with my shit and blow them away." Massi once again asked the group to leave the area. Thomas then got into a taxi cab with four other people and left the area. A few days later Massi identified Thomas from a photo array as the man who he had spoken to that evening.
At trial, Thomas presented an alibi defense, arguing that he was on the south side of Chicago when the shooting occurred on the north side at Belmont and Sheffield. Thomas testified that he lived on South Troy Street with his mother, Frances Thomas, on the south side of Chicago; however, police officers testified that Thomas initially told them that he lived on the 700 block of West Waveland on the north side. In any event, Thomas stated that, on September 22, 2001, he met with his girlfriend, Delilah Cruz ("Cruz") at his mother's house and they left together at approximately 4:00 p.m. to take the train to Gill Park, which is located at Irving Park and Broadway on the north side. Thomas said that he and Cruz left the park around 10:30 p.m. or 11:00 p.m. to go to the liquor store on the corner Belmont and Sheffield. Once there, Thomas got into an argument with local members of the "Belmont and Sheffield" Gangster Disciples, which was a different branch of the gang that he associated with in Gill Park. Officer Massi arrived to break up the altercation, and Thomas argued with him, and was eventually told to leave the area. According to Thomas, he, Cruz, and three other men then got into a taxi, and returned to Gill Park.
At approximately 12:30 a.m., Thomas said that he paid a man named Pablo to drive him and Cruz back to his mother's house. However, Pablo only took them as far as 63rd Street and Yale, and refused to drive them further. After fighting with Pablo, Thomas and Cruz decided to take the bus. Once on the bus, however, Cruz yelled at Thomas and exited the bus. Thomas said that he followed her because she had his cellphone. They argued and, according to Cruz's testimony, Thomas tried to hit her, so she told him that she was calling the police. Thomas then ran away, and he said that he paid someone at a nearby gas station $7 to drive him the rest of the way to his mother's house. Cruz testified that meanwhile the police arrived and she made a police report approximately an hour later at 1:15 a.m. The police report was never admitted into evidence.
Thomas testified that he arrived home at 2:00 a.m. and his mother's boyfriend answered the door. He then proceeded to argue with his mother for approximately forty-five minutes, after which he called his sister, Melody Kinsey ("Kinsey"), and the mother of his child, Shonnette Ringgold ("Ringgold"), to see if he could stay with her. Thomas said that he stayed at his mother's house and fell asleep. Thomas's mother testified on direct examination that Thomas arrived home at 2:30 a.m., they argued, he made a few phone calls, and then he went to bed. His mother had also told investigators at one point that Thomas arrived home at exactly 2:37 a.m. On cross-examination however, his mother admitted that she originally told police that she went to bed around 10:30 p.m. and did not see Thomas until 5:00 a.m. the next morning. Kinsey testified that she received a call from Thomas at 3:00 a.m., but admitted on cross examination that she originally told the police that she received a call at exactly 2:37 a.m. Ringgold testified that she received a call from Thomas around 2:00 or 3:00 a.m., but that he never came over. Lastly, Thomas's uncle, Samuel Colbert ("Colbert"), who lived at the house, testified that on the evening in question, he had been drinking with a friend and returned home early. Colbert said that he was watching a movie when Thomas returned home, although he did not know what time it was. He then watched as Thomas and his mother argued for "some hours." On cross-examination however, Colbert admitted that he originally told the police and an assistant state's attorney that he had been out with a woman that evening and did not return home until 7:00 a.m., and that Thomas did not return until 9:00 a.m. The prosecution called rebuttal witnesses who also testified as to what Thomas's family members originally told investigators. Ultimately, the jury found Thomas guilty of first degree murder.
B. Procedural History
Thomas filed a direct appeal raising several claims for relief, including an argument that the trial court erred by failing to hold a fitness hearing before trial. The Illinois Appellate Court rejected Thomas's arguments and affirmed his judgment and conviction on June 17, 2004. Thomas's petition for leave to appeal ("PLA") to the Illinois Supreme Court was denied on November 24, 2004.
Thomas filed his first, state post-conviction petition on April 27, 2005. Thomas argued, inter alia, that he was actually innocent in light of newly discovered evidence showing that Robert Pinkston ("Pinkston") had committed the murder for which Thomas was convicted. The newly discovered evidence consisted of a letter from his attorney to the assistant state's attorney from January 12, 2005, which stated the following:
I am writing you concerning the case of People v. Tony Thomas, Case #01-CR-25695 which went to trial in front of Judge James Linn and a jury. I have recently received hearsay information from someone who works in the neighborhood of the homicide that the beat officer, John Massi, was informed by some of the various neighborhood gang members that Tony Thomas did not commit the homicide and that a drug dealer named Robert Pinkston did. Obviously, this information was not known to me at the time of the trial. Due to the evidence which has Tony Thomas battering his girlfriend on 63rd Street shortly before this homicide on Belmont Avenue, I would appreciate it if Pinkston could be looked into.
Second Am. Pet. for Writ of Habeas Corpus Person in State Custody, at p. 19. The trial court denied the post-conviction petition on May 4, 2005. The state appellate court affirmed on February 7, 2007, finding that the unauthenticated letter containing layers of hearsay was insufficient to show actual innocence, particularly in light of the overwhelming evidence presented against Thomas at ...