United States District Court, C.D. Illinois, Urbana Division
ESMON V. JONES, Petitioner,
COLIN S. BRUCE, District Judge.
On March 17, 2014, this court received a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody (#1) from Petitioner, Esmon V. Jones. Respondent, Kim Butler, Warden of Menard Correctional Facility, filed his Answer (#9) on July 15, 2014. Petitioner filed his Response (#11) to the Answer on July 25, 2014. Petitioner has also filed a Motion for Summary Judgment by Default (#3) and Motion to Request Counsel (#12). For the following reasons, Petitioner's Petition (#1) and motions (#3, 12) are DENIED.
Petitioner filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody in Case No. 13-CV-2006 on January 14, 2013. On August 30, 2013, U.S. District Court Judge Michael P. McCuskey entered an Opinion granting Respondent's motion to dismiss due to Petitioner having failed to completely exhaust all of his claims in state court. Judge McCuskey dismissed the petition without prejudice, giving Petitioner leave to reinstate his petition within 60 days of the conclusion of his pending state court proceeding. Petitioner did just that when he filed this instant petition on March 17, 2014.
Motion for Summary Judgment and Motion for Counsel
Before addressing the claims made in Petitioner's petition, the court must first address Petitioner's Motion for Summary Judgment by Default (#3) and Motion to Request Counsel (#12). Petitioner filed his summary judgment motion on June 16, 2014. In his motion, Petitioner correctly notes that, on March 17, 2014, the court gave Respondent 60 days to respond to Petitioner's petition. As of June 16, 2014, Respondent had not responded. That next day, however, Respondent filed a Motion for Extension of Time (#6) to file his answer, which the court granted, giving Respondent until July 17, 2014, to file his answer. The Answer (#9) was timely filed on July 15.
The court denies Petitioner's Motion for Summary Judgment by Default (#3). Petitioner is arguing that Respondent's failure to respond to his petition within the statutory time frame should result in judgment by default being granted in his favor. Petitioner's motion is denied on this ground, as the Seventh Circuit has held that "[r]eleasing a properly convicted prisoner or imposing on the state the costs and uncertainties of retrying him, perhaps many years after the offense, is apt to be a disproportionate sanction for the wrong of failing to file a timely motion for an extension of time" and that "[t]his thinking informs the principle that default judgment is disfavored in habeas corpus cases." Lemons v. O'Sullivan, 54 F.3d 357, 364 (7th Cir. 1995). Here, Petitioner filed a motion for extension of time, albeit a month late, and did eventually file an answer within the time allotted by the court. For that reason, and the reasons expressed by the Seventh Circuit in Lemons, Petitioner's Motion for Summary Judgment by Default (#3) is denied.
Petitioner has also filed a Motion to Request Counsel (#12). Petitioner argues that the interests of justice require counsel to be appointed because the prison has been on lockdown and he has had limited access to the prison law library. The lockdown, Petitioner argues, has made it increasingly difficult for Petitioner "to properly converse with this court" and that appointed counsel could help him discover evidence he needs to advance his arguments concerning the state's withholding of evidence at trial. Petitioner further notes that he has no money to hire a lawyer.
The court finds that Petitioner's motion should be denied. In a habeas case, private counsel may be appointed for a financially eligible person whenever the court determines that the interests of justice so require. 18 U.S.C. § 3006A(a)(2)(B); Johnson v. Chandler, 487 F.3d 1037, 1038 (7th Cir. 2007). The decision on whether to appoint counsel is up to the sound discretion of the court in all but the most extraordinary of circumstances. Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997). "In exercising its discretion, the district court should consider the legal complexity of the case, the factual complexity of the case, and the petitioner's ability to investigate and present his claims, along with any other relevant factors." Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994). "Where the issues involved can be properly resolved on the basis of the state court record, a district court does not abuse its discretion in denying a request for court-appointed counsel." Hoggard, 29 F.3d at 471.
Here, having examined the issues presented by Petitioner and the state court record, the court believes the issues can be properly resolved on the basis of that record. Further, Plaintiff, through his multiple filings in this case, has demonstrated a thorough understanding of the issues in this case, which the court does not find to be legally or factually complex. While Petitioner argues that, at the current time his facility is frequently on lockdown, the nature of his petition and subsequent supporting briefs and motions demonstrate that Petitioner is able to satisfactorily investigate and present his claims. Petitioner's Motion to Request Counsel (#12) is denied.
The following facts are taken from the appellate court orders affirming Petitioner's conviction on direct review ( People v. Jones, No. 4-08-0555 (Ill.App. Ct. 2009)) and affirming the denial of Petitioner's postconviction petition ( People v. Jones, 2012 IL App (4th) 110281-U). This court presumes the factual determinations made by the Illinois court of appeals in those decisions to be true. 28 U.S.C. § 2254(e)(1); Whitman v. Bartow, 434 F.3d 968, 969 (7th Cir. 2006).
In August 2006 the State charged Petitioner and a co-defendant, Jerome Davis, with six counts of first-degree murder in the August 4, 2006 shooting death of Calvin Fakes. The State alleged the shooting was in retaliation for Fakes' theft of Petitioner's.22-caliber handgun earlier in the day. Counts I through III alleged Petitioner personally discharged a firearm proximately causing Fakes' death and sought a 25-year sentencing enhancement based upon that fact pursuant to 720 ILCS 5/9-1(a)(1), (a)(2) (West 2004) and 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2004). Counts IV through VI alleged the codefendants (Petitioner and Davis) discharged a firearm, thereby causing decedent's death pursuant to 720 ILCS 5/9-1(a)(1), (a)(2) (West 2004). The trial court severed Petitioner's and Davis' prosecutions before trial due to inconsistent claims and defenses.
At Petitioner's January 2008 trial, the State introduced the following evidence. Jerome Pelz testified his daughter woke him up at 1:47 a.m. on August 4, 2006, because the family dog was barking. Pelz opened his front door and saw Fakes lying on the sidewalk. Fakes asked Pelz for help because he had been shot in the left arm. Pelz's daughter called 911, and the police arrived a few minutes later. Pelz testified Fakes told police a man named "J-Rock" had shot him. An ambulance arrived a few minutes later and took Fakes to the hospital.
Decatur police officer Sean Bowsher testified that around 1:40 a.m. he responded to a shots-fired call in the 700 block of West Forest Avenue. A second call directed Officer Bowsher to the 500 block of South Crea Street, where Fakes was lying in the street. Officer Bowsher called for an ambulance and began questioning Fakes about the incident. Officer Bowsher testified Fakes stated a man named J-Rock shot him. Fakes confirmed J-Rock's given name was Jerome Davis. Fakes also told Officer Bowsher he was shot in the front of his home on the 500 block of South Siegel Street. After paramedics transported Fakes to the hospital for treatment, Officer Bowsher followed a blood trail back to the front steps of Fakes' home.
Decatur police officer Shawn Guenther testified he found Fakes around the same time as Officer Bowsher. Officer Guenther testified Fakes initially denied knowing the shooter but eventually told the officer J-Rock shot him. Fakes also told Officer Guenther J-Rock lived in an apartment complex on Decatur Street.
Decatur police officer Josh Sheets testified he conducted a felony stop on a car police believed Davis was riding in as it was leaving the apartment complex around 2 a.m. The car contained Petitioner, Davis, and Rhonda Reed, its owner and driver. All three were arrested.
Fakes died of his wounds around 6 a.m. on August 4, 2006. Dr. Travis Hindman testified he conducted Fakes' autopsy. Dr. Hindman concluded Fakes died from massive blood loss due to a gunshot wound to the left arm. Dr. Hindman based his conclusions upon the destroyed blood vessels in Fakes' left arm and photos showing substantial amounts of dried blood in the area where police found Fakes. According to Dr. Hindman's testimony, the bullet entered the outside of Fakes' left arm just above the elbow and exited the inside part of the arm. Dr. Hindman testified the shooter was over 1 ½ feet away from Fakes when he fired because the entrance wound lacked gunpowder residue, smoke residue, or tattooing.
The State introduced the following evidence regarding the events surrounding the shooting itself. Reed testified that she went to a small gathering at Jerome Davis and Vernice-Powell Hayes' apartment in a complex on the 700 block of West Decatur Street in the early evening of August 3, 2006. Reed estimated she arrived around 6 p.m. or 7 p.m. to celebrate Davis and Powell-Hayes' receipt of a marriage license. When Reed arrived, Fakes, Powell-Hayes, Davis, and Petitioner were all present. At some point in the evening, Reed drove her two daughters, E.S. and D.S., Petitioner, Fakes, and Davis over to Petitioner's mother's house. Fakes and Petitioner exited the car and walked into an alley next to Petitioner's mother's house while the others waited.
Reed waited for a few minutes and then drove around the block looking for Petitioner and Fakes. She was ready to leave when Fakes came running back to the car yelling "Go go go." Reed drove off, leaving Petitioner behind. Reed left E.S. and D.S. at their grandmother's home and went back to the party. After leaving the party again with Kizzy McNeal, Petitioner's girlfriend, to look for him, Reed returned to find Petitioner standing in the apartment complex parking lot holding a rifle and talking to Davis. Fakes had already left by the time Petitioner arrived. Petitioner was angry and muttering no one could steal from him.
Reed testified that, much later, she, Davis, and Petitioner decided to go to the liquor store to pick up more alcohol for the party. As they were leaving the parking lot, police pulled over Reed's car and arrested all three occupants. Reed admitted she drank steadily throughout the night.
E.S. testified Fakes returned to Reed's car carrying a black handgun. E.S. saw Fakes hand the gun to Davis, who put it in his waistband.
Powell-Hayes confirmed Reed's testimony she and Davis were having a party to celebrate the receipt of their marriage license. Powell-Hayes also confirmed that Petitioner, Fakes, Davis, and Reed's two daughters left during the party in Reed's car. According to Powell-Hayes' testimony, Petitioner was very angry when he returned. Powell-Hayes testified Petitioner left the party three times, once in Reed's car and twice on foot with Davis. He brought the rifle on the final trip. Petitioner left by climbing over a fence into an alley behind the parking lot. Powell-Hayes testified Petitioner and Davis returned 20 to 25 minutes later. Petitioner climbed over the fence and slid the gun under it. According to Powell-Hayes' testimony, Petitioner stated "I shot twice, but I don't know if I hit him or not."
McNeal testified she was Petitioner's girlfriend and lived with him at the time of the shooting in the same apartment complex as Davis and Powell-Hayes. According to McNeal's testimony, she saw Petitioner loading a rifle that night. While loading it, he told her "[b]aby, I'm going back to prison." Petitioner stated he was going to get his other gun back. McNeal testified Petitioner left three times on foot and twice with the rifle. When Petitioner returned the final time, he stated he did not know whether he had shot Fakes or not. McNeal later returned to the apartment she shared with Petitioner and saw the rifle on the floor. McNeal told Davis to move it, and he did so, hiding it below a garbage can near the apartment building.
McNeal testified everyone at the party, including Petitioner, seemed intoxicated. McNeal was the only person not drinking alcohol at the party because at the time she was pregnant with Petitioner's child.
Toninette Bond testified she lived in the same apartment building as Petitioner. Bond testified that late on August 3, she was coming down the stairs of her apartment building to join the party at Powell-Hayes' apartment when she saw Petitioner pointing a rifle in her direction. When Bond reached the bottom of the stairs she heard McNeal say Petitioner shot someone. According ...