United States District Court, N.D. Illinois, Eastern Division
CHARLES P. KOCORAS, District Judge.
This case comes before the Court on the petition for a writ of habeas corpus filed by pro se petitioner Bryant Duncan pursuant to 28 U.S.C. § 2254. For the reasons stated below, the Court denies the petition and declines to issue a certificate of appealability.
Duncan and his brother, Reginald Duncan, were charged with first-degree murder in connection with a drive-by shooting. The brothers were tried together before a jury in the Circuit Court of Cook County, Illinois. Duncan was found guilty and was sentenced to thirty-five years of imprisonment. Duncan is currently incarcerated at the Menard Correctional Center in Menard, Illinois, where he is in the custody of the warden of that facility, respondent Kim Butler.
The following facts and procedural posture relevant to Duncan's § 2254 petition are drawn from the state court record. This court will presume that the state court's factual determinations are correct for the purposes of habeas review as Duncan neither contests them nor points to clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Kidd v. Lemke, 734 F.3d 696, 703 (7th Cir. 2013).
I. The Shooting and Duncan's Trial
On June 4, 2003, Tony Daniels was shot during a drive-by shooting in a residential alley that runs west to east in the East Garfield Park neighborhood of Chicago. Jerry Thomas, a member of the Gangster Disciples, lived near the alley. Members of the Gangster Disciples and the Four Corner Hustlers, another local gang, used the alley as a makeshift basketball court because it had a basketball hoop attached to a utility pole. The basketball court was considered neutral territory. If a vehicle enters the alley, an automatic time out results as players move to the alley's north and south sides to allow the vehicle to pass.
In late May of 2003, Thomas and other members of the Gangster Disciples challenged members of the Four Corner Hustlers to a basketball game with a cash prize. Reginald was a member of the Four Corner Hustlers and played in this game, but Duncan neither played nor watched. The Four Corner Hustlers became dissatisfied with the game because they were losing so a Four Corner Hustlers player stole the cash prize and the team fled. The Gangster Disciples pursued them but were unable to catch their opponents or recover the prize.
At approximately 6:00 p.m. on June 4, 2003, Thomas, his cousin Cole Powell, Demetrius Gibson, and Tony Daniels were playing basketball in the alley along with at least six others. Thomas saw a blue, two-door Cougar automobile with maroon paint on the bumper enter the alley traveling east. Thomas recognized the vehicle, which he knew was owned by Reginald, and saw Reginald in the driver's seat and Duncan in the passenger's seat. Play ceased and everyone moved to the sides of the alley. Thomas, Powell, and Daniels chose the south side of the alley, which was on the vehicle's passenger side. The car stopped in the middle of the divided crowd. Thomas heard Duncan say, "We ain't no nothing, " which he understood meant that the car's occupants did not intend to cause trouble.
Thomas then saw Duncan extend his right hand out of the passenger window and look left towards the driver. Duncan was holding a black handgun, which he fired eight or nine times as Thomas crouched down. Thomas ran to a nearby gangway but quickly returned as the vehicle sped off because his cousin had been shot. Daniels also was wounded in the shooting. Powell survived but Daniels did not.
The trial court denied Duncan's motion to sever and the brothers proceeded to trial together. During jury selection, potential juror Michael Regalado told the court that he had strong feelings about violence and gangs. When asked if he could put these feelings aside, Regalado said, "I don't know." Regalado also advised the court that approximately eight years ago, his cousin had been severely beaten by gang members. When the court asked if this would prevent him from being a fair and impartial juror, Regalado answered "no." The court then continued to question Regalado:
Q [Court]: You think you could set your feelings aside and give both sides a fair trial?
A [Regalado]: Yes.
Q: Are you sure about that?
A: I try to keep an open mind about everything.
Q: Can you do that?
A: I could try, yes.
Dkt. 29-2, Ex. I at 2-3. Reginald's counsel asked to strike Regalado for cause and Duncan's counsel joined this request. The court refused, so Reginald's counsel used his last peremptory strike on Regalado.
At trial, the prosecutor began her opening statement as follows:
STATE: Good morning, ladies and gentlemen. A few years ago, on June 4, 2003, not ten minutes from where we sit today, one brother [Duncan], sitting over there in the white shirt, asked his other brother Reginald Duncan, sitting over there, to do him a favor. Brother to brother. "Can you do me a favor?"
Well, it wasn't your ordinary favor. It wasn't, "Will you help me move[?]" because that's a huge favor. Nobody ever wants to help anybody move. It wasn't that. It wasn't, "Well, can you lend me money?" Another favor that maybe only a brother will do for you. It wasn't that either. It was: ["]Will you help me kill somebody?"
CO-DEFENDANT'S COUNSEL: I am going to object.
STATE: "Will you help me kill somebody tonight?"
COURT: Opening remarks.
STATE: That is the favor that [Duncan] asked Reginald to do for him back on June 4, 2003[, ] in the area of Kedzie and Warren.
Dkt. 28-1, Ex. A at 12-13.
During the trial, the State did not present any evidence indicating that Duncan and his brother had an agreement or that Duncan had asked his brother to help him commit murder. Thomas and Gipson both identified Duncan as the shooter. The State also presented witnesses Detective Greg Swiderek, Chicago Police Officer Erick Von Kondrat, and Detective Patrick O'Donovan, who investigated the shooting. In addition, Illinois State Police fingerprint examiner Cynthia Engleking-Prus testified that a used shell casing recovered at the scene did not have fingerprints but that slick metal surfaces rarely retain recoverable prints.
The only defense witness was Duncan's sister, Sylvia. Sylvia testified that from approximately 5:30 p.m. to 8:00 p.m., Duncan was with her while she washed clothing at a laundromat. On cross-examination, Sylvia stated that she was first asked to remember the events that transpired on the day of the shooting approximately two years later, in 2005. According to Sylvia, she was able to recall what happened on the day of the shooting despite the passage of time because she had an argument with Maurice, another sibling, on that day. She was, however, not able to recall the dates and times of other arguments with Maurice despite her admission that she frequently argued with him.
During his closing argument, Duncan's attorney emphasized that Sylvia's testimony "wasn't discredited in any way" by the State or influenced by her relationship with her brother. Dkt. 29-7, Ex. W, at LL38-LL39. He also stressed that if Sylvia had wanted to testify to protect her family, she would have said that both Duncan and Reginald were with her at the laundromat, but instead only provided an alibi for Duncan.
During her closing argument, the prosecutor also addressed Sylvia's testimony, stating:
She seemed nice enough. You know, bringing your older sister to court for you is like bringing your Mom. Everybody's got a mom, but if you don't and you got an older sister, [she] will help you out.... She's an older sister. We didn't drag her into this courtroom. Bryant Duncan did and what is she going to say? It is her baby brother.... [Sylvia and Maurice] get into it all the time and remarkably, the only date she could recall was that date, the date of the murder. How remarkable is that? Because for the past four years they've been mixing it up every couple weeks. What did she say? "Oh, we just got into it a couple days ago. We're always mixing it up. Calling the police, but this date stands out." I don't blame her for her testimony.... And one of the instructions you are going to get is, you consider the bias of a witness. Well, out of everyone who testified in this case, who has the most bias? Sylvia.... she's got the bias. And like I said, of course she does. Everybody's got somebody in their family who will pipe up for them.
Dkt. 29-7, Ex. W, at LL93-LL96.
The jury found Duncan guilty of first degree murder, and the trial court imposed a ...