United States District Court, S.D. Illinois
MEMORANDUM and ORDER
DAVID R. HERNDON, Chief District Judge.
In March, 2004, a jury in St. Clair County, Illinois, convicted Montez Artis, Jr., of the first degree murder of Thad Hardin. He filed a petition for habeas relief pursuant to 28 U.S.C. §2254 (Doc. 1), raising the following grounds:
1. He was denied effective assistance of counsel and his due process right to a fair trial when counsel elicited testimony from Detective Lammers that a "non-testifying codefendant" confessed to the crime, which corroborated the testimony of the State's sole witness. Additionally, counsel was ineffective in failing to object to the testimony and in failing to move for a mistrial.
2. He was denied due process, the right to present a defense and a fair trial when the trial court sustained the state's objection to his counsel's closing argument that raised an alternative theory of the crime.
I. Relevant Facts
This summary of the facts is derived from the detailed description by the Appellate Court of Illinois, Fifth District, in its Rule 23 Order affirming petitioner's conviction on direct appeal. A copy of the Rule 23 Order is attached to Doc. 19 as Exhibit D. The state court's factual findings are presumed to be correct unless rebutted by clear and convincing evidence, which petitioner has not done. 28 U.S.C. §2254(e).
On the night of January 24, 2003, petitioner Montez Artis, Jr., accompanied by two teenagers named Traveon Hunter and Willis Parram, drove to the home of Mary Berry, in East St. Louis, Illinois, to play dominoes. There were a number of people at Mary Berry's house, including Ms. Berry's cousin, Danielle Hickman. During the evening, Thad Hardin and his brother, James Hoffman, arrived at the house. Two seemingly minor, but relevant, events occurred thereafter. Thad Hardin asked Artis for a cigarette. Artis gave him a cigarette, but told him not to smoke the whole thing, as it was his last one. Hardin, however, did smoke the whole cigarette, which angered Artis. Also, according to Traveon Hunter, Hardin offered to sell Hunter a gun.
At some point, Mary Berry sent James Hoffman and her children to McDonald's to get some food. Before they returned, Thad Hardin left the house to walk to the liquor store. Mary Berry testified that Hardin was intoxicated and said that he was going to buy more beer. Berry further testified that Hoffman and her children returned shortly after Hardin left. They ate the McDonald's food, and started a new game of dominoes. Then, Artis left with Traveon Hunter and Willis Parram. In contrast, Traveon Hunter testified that Hardin left a few minutes after the argument over the cigarette, and that Artis, Parram and he left a few minutes after Hardin left. Traveon Hunter testified that the argument occurred about 11:36 p.m., and Artis, Parram and he left at 11:43 p.m.
Traveon Hunter also testified that Artis said, "I'm fixing to get this nigger." Hunter asked Artis to clarify, and Artis said that he meant the person that had offered to sell a gun to Hunter.
According to Hunter, Artis then drove to the apartment building where Artis lived with his girlfriend, Lantangela Gomiller. The two teenagers stayed in the vehicle while Artis went inside. When he came back, he had a gun in the waistband of his pants. Artis drove a few blocks, and they saw the victim, Thad Hardin, walking down the street. Artis parked and got out of the car. Hunter, who was sitting in the back seat, saw in the rearview mirror that Artis shot Hardin in the head. Hardin fell to the ground, and Artis fired four more shots at him. Hardin was still alive and was crawling on the ground. Artis came back to the car and pulled a second gun from under the seat. He gave this gun to Willis Parram and told Parram to finish Hardin off. Parram shot Hardin a few more times.
Danielle Hickman and Traveon Hunter testified that Artis later threatened them and told them not to say anything to the police. Six days after the murder, Traveon Hunter went to the police station with his mother and made a statement.
Defendant's girlfriend testified that Artis came home about 11:30 p.m. on the night of the murder, and went to sleep.
Artis was convicted of first degree murder and sentenced to 50 years imprisonment.
II. Appeal and Postconviction Petition
On direct appeal, Artis raised the following points:
1. He was denied effective assistance of counsel "where defense counsel elicited prejudicial inculpatory evidence... on cross examination that could not have been presented in the state's case in chief because it was inadmissible hearsay that would have violated Mr. Artis' right to confront the witnesses against him."
2. He was denied a fair trial when the court sustained the State's objection to his closing argument that raised an alternative theory of the crime.
3. He was denied a fair trial when the court refused to instruct the jury that the testimony of an accomplice should be viewed with suspicion.
See Doc. 19, Ex. A, Brief on Direct Appeal.
After his conviction was affirmed, petitioner, through counsel, filed a Petition for Leave to Appeal which raised only the first two points. Doc. 19, Ex. E. The Supreme Court denied the PLA. Doc. 19, Ex. F.
Petitioner filed a pro se postconviction petition which raised a number of issues. Doc. 19, Ex. G. Counsel was appointed to represent him. Counsel filed an amended petition. The grounds raised in the amended postconviction petition do not correspond to any of the grounds raised in the habeas petition before this Court. See Amended Postconviction Petition, Doc. 19, Ex. H. Further, the pro se PLA filed after the Appellate Court affirmed the dismissal of the postconviction petition raised only the following points:
1. Petitioner's speedy trial rights were violated.
2. Trial counsel was ineffective in that he failed to call witnesses on ...