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United States ex rel. Thivel v. Harrington

United States District Court, N.D. Illinois, Eastern Division

September 2, 2014

United States of America ex rel. JAMES THIVEL Petitioner,
v.
RICK HARRINGTON, Warden, Menard Correctional Center, Respondent.

MEMORANDUM OPINION AND ORDER

JOHN J. THARP, Jr., District Judge.

Before the Court is Petitioner James Thivel's petition for a writ of habeas corpus under 28 U.S.C. ยง 2254(d), challenging his 2001 convictions for first-degree murder. For the following reasons, the Court denies Thivel's habeas petition and declines to certify any issues for appeal.

I. FACTS[1]

After a jury trial in 1999, James Thivel was convicted of first degree murder for the shooting deaths of Robert Farberger and Eva Caudell, and sentenced to natural life imprisonment. People v. Thivel, No. 1-01-2905, slip op. at 1 (Ill.App.Ct. Nov. 10, 2003), Dkt. 17 (State's Ex. A) ("Nov. 10, 2003 Op.").

The evidence at trial reflected the following facts, which, given the breadth of relevant details, are presented in summary only and loosely organized by witness and topic.

The Crime Scene: At approximately 2:30 a.m. on the morning of January 10, 1996, Officer Gerald Loconsole of the Des Plaines Police Department discovered the bodies of Farberger and Caudell in a small red car parked near the intersection of Prairie Avenue and Potter Road in Des Plaines, Illinois. Nov. 10, 2003 Op. at 3. Caudell, who was 22 years old at the time, was seated in the driver's seat and had suffered five gunshot wounds to the head, left shoulder, neck, and left forearm. Id. Farberger, who was 24 years old, was in the front passenger's seat with four gunshot wounds to the back of his head. Id.

There was light snow on the ground that evening and tracks in the snow appeared to lead from the right rear door of the vehicle to a nearby tree, where snow stained with urine was discovered. Id. at 4. The footprints led back to the car and also away again from the car's right rear door, eastbound on Prairie Avenue, across Prairie, into a creek, up an embankment, into the front yard of 680 Potter Drive, away from 680 Potter Drive on a driveway and toward Seminary where they apparently ended. Id. ; Dkt. 24, Ex. FF(3) at 671.[2] Footprints were also found on a nearby bridge in a pattern of two or three northbound and southbound passes; those prints appeared to lead away from the bridge and ended next to tire tracks, which matched the tires on the victims' car. Nov. 10, 2003 Op. at 4.

680 Potter: Near the corner of Prairie Avenue and Potter Road, where Caudell and Farbgerer's bodies were found, was a house at the address 680 Potter Road. At the time of Caudell and Farberger's deaths, 680 Potter was the residence of four individuals: Jeff Johansen, Daniel Stryjak, Joseph Czarnik, and John Dietzler. Id. at 5. At trial, Stryjak testified that he had been friends with Thivel since high school and that Thivel and Farberger frequently visited 680 Potter to socialize and to sell and purchase marijuana. Id.; Ex. FF(4) (Tr.) at 1341-42. Stryjak added that Caudell occasionally came to 680 Potter accompanied by Farberger and sometimes Thivel, arriving in a red Chevy or Geo. Ex. FF(4) (Tr.) at 1343. On the night of January 9, Thivel's Dodge Omni, which was not operable at the time, was parked in the driveway of 680 Potter, though the record does not explain why or how Thivel's inoperable car came to be there or for how long it had been there. Nov. 10, 2003 Op. at 5.

Thivel's Apartment and His Mother's House: In January 1996, Thivel lived in an apartment at 400 Manda Drive in Wheeling, Illinois, which is between 10.7 and 12.8 miles from the location where Caudell and Farberger's bodies were found, depending on the route taken. Id. at 5. Thivel shared the apartment with Shane Murray. Id. at 6. The defense theory at trial was that Thivel was at his apartment in Wheeling the entire night of Farberger and Caudell's deaths. Thivel's brother Jeffrey lived at their mother's house, which was located at 8853C Robin Drive in Des Plaines, less than one mile from the location where the bodies were found. Id. at 5.

Thivel's Relationship with the Victims: Testimony at trial indicated that Thivel knew both victims (the three were often seen together), that Caudell and Farberger were romantically involved, and that Thivel and Farberger were friends and were known to deal marijuana together. Ex. FF(4) (Tr.) at 1353; Id. at 1168. Justin Milici, a friend of Thivel, testified that Thivel often helped Farberger; "Rob didn't have a place to stay and [Thivel] had Rob stay at his house despite his mother's objections... If Rob didn't have pocket money, he needed gas money, he needed whatever, and he said, hey, can you give me a few bucks, he always did. If he was hungry, he'd give him a meal. They were good friends." Ex. FF(4) (Tr.) at 1004.

Thivel's Suspicions About the Theft of His Favorite Gun: Milici testified that "sometime within three weeks prior" to the victims' deaths, Thivel called Milici and told him that his "357 Magnum" was missing and that Thivel believed Farberger had taken it. Nov. 10, 2003 Op. at 6; Ex. FF(4) (Tr.) at 941. Milici further testified that a few days later Thivel told him that "He had fantasized a scene from the movie Reservoir Dogs where the person in the movie is tied to a chair and gasoline is poured all over them. And he fantasized about how much fun it would be to reap revenge on somebody who had done him wrong." Nov. 10, 2003 (Tr.) at 6. Milici added that Thivel told him that Farberger "must think [I'm] a fucking idiot if [I] wouldn't figure out that [Farberger] was the one who had stolen the weapon" and that he was also upset with Farberger because Thivel had given him $1, 200 to pay restitution. Id. The State's theory was that Thivel's anger at Farberger was motivated by the fact that Thivel had "essentially been carrying Farberger" in the months leading up to the murders. See Ex. FF(6) (Tr.) at 2064. Thivel's roommate, Shane Murray, also testified that Thivel told him that he thought that Farberger had taken a gun from him, stating: "What does [Farberger] think; I am stupid? I am not. I know he did it. I am going to get him for that." Id. ; Ex. FF(4) (Tr.) at 1170-71. Murray added that Thivel was referring to his "favorite gun, " which he kept in a safe in his bedroom. Ex. FF(4) (Tr.) at 1171.

January 8, 1996-The Day Before the Murders: On the day before Farberger and Caudell were murdered, Johansen, one of the residents at 680 Potter, asked Stryjak, another resident, to go to Thivel's apartment to collect some money that Thivel owed Johansen and to get some marijuana from Thivel. Nov. 10, 2003 Op. at 6. When Stryjak arrived at Thivel's apartment (with his roommate Dietzler and a female friend), Stryjak testified, Thivel appeared nervous and seemed to be waiting for someone. Id.; Ex. FF(4) (Tr.) at 1345, 1356. During the visit, Thivel and Stryjak spoke alone in Thivel's bedroom; Thivel told Stryjak that Farberger "had ripped him off, " stealing money and his 357 Magnum, "and that he was going to get his or he was going to, you know, kick his ass." Id. at 6-7; Ex. FF(4) (Tr.) at 1345. After Stryjak returned to 680 Potter, Farberger stopped by and said that he was looking for Thivel. Stryjak told Farberger, apparently in response to a question from Farberger about whether Thivel left something for him there, "He didn't leave anything for you. He hasn't been by." Nov. 10, 2003 Op. at 7.

January 9-10, 1996-The Evening of the Murders : On the afternoon of January 9, Murray picked up Thivel at work, and along with two female friends, the four gan rum and smoked marijuana together for much of the evening at Thivel's and Murray's apartment. Ex. FF(4) (Tr.) at 1173-75.

Beginning at around 8 p.m., several phone and in-person conversations occurred between Stryjak, Farberger, and Thivel. Farberger again went to 680 Potter; Stryjak asked him why he was there, again telling him, "No, Jim is not here. There's nothing here for you. I don't know why he told you to come here." Id.; Ex. FF(4) (Tr.) at 1347. One hour later, Thivel called Stryjak and told him that he "was going to come by. I said okay. And I asked him, you know, why did Rob stop by... [He said] he would explain [] what was going on when he came over." Nov. 10, 2003 Op. at 7; Ex. FF(4) (Tr.) at 1348. Approximately two hours later, Stryjak received a call from Farberger, who was still "looking for Jim." Ex. FF(4) (Tr.) at 1348. Stryjak also received another call from Thivel, who again told Stryjak that "he was coming over and he would explain to me what was going on when he came over." Id. at 1349. Stryjak told Thivel that he "didn't want that guy [Farberger] around here, " and asked Thivel why he told Farberger to come by, to which Thivel responded, "I'll talk to you when I get over." Id.

At some point during the evening, Farberger also buzzed for entry at Thivel's and Murray's apartment in Wheeling, where Thivel and Murray were still drinking and smoking marijuana. Id. Thivel asked Murray to tell Farberger that he was not home, but Farberger continued to buzz. Id. Later, Farberger followed two of Murray's sisters, who also buzzed for entry, into the apartment. Id. at 7-8. Thivel went into his bedroom and closed the door before the sisters and Farberger entered the apartment; it is unclear from trial testimony whether Thivel knew Farberger was following the sisters into the apartment. Id. at 8; Ex. FF(4) (Tr.) at 1179. Murray again told Farberger that Thivel was not there, but, Murray testified, Farberger "made a kind of line towards [Thivel's] room and opened the door." Id. Thivel came out, pretending he had been sleeping. Id. At some point, Caudell also arrived and one of the sisters and Farberger went downstairs to let her in. Nov. 10, 2003 Op. at 8.[3] Murray testified on cross examination that he was "very intoxicated" and high from marijuana that evening. Ex. FF(4) (Tr.) at 1224.

The Tow Truck Driver : On the night of the murders, Raymond Felkel was working as a relief tow truck driver for Dave's Towing. Id. at 9. Felkel testified that at approximately 1:00 a.m. on January 10, 1996, he received a call for a tow needed at the corner of Potter and Seminary in Des Plaines-one block from Potter and Prairie, where the two bodies were found. Id. Evidence at trial indicated that the call to Dave's Towing was made from Thivel's mother's home. Id. When Felkel arrived at the corner, there were two or three people waiting for him. Felkel spoke primarily to one individual, who he described as smaller in stature and younger than himself (Felkel was 31 at the time; Thivel was 24 or 25). Id. Felkel testified that the individual was dressed for winter, wearing a hat and possibly gloves, and wore "plastic framed, slightly larger than average" glasses, a description consistent with the style of glasses that Thivel wore during the trial. Id. at 9-11. The individual directed Felkel to a mid-1980s style Nissan sports car parked "maybe a hundred feet" from the corner of Potter and Seminary, and asked Felkel to jump start the car.[4] Id. at 10. Felkel was unable to start the car, so the individual asked that Felkel tow the car, but to first jump start a van parked nearby, which Felkel did.[5] Id. The individual then asked Felkel to tow the car to another location, which was Thivel's mother's home. Id. When Felkel did as asked, the individual told him that he would run inside to get money from "his mom or dad or parents." Id. The individual then paid Felkel and said he did not want a receipt. Id. During the investigation of the murders, Felkel was unable to definitively identify in photographs the car, the van, or the individual who requested the tow, which he explained was because the individual wore winter clothes. Id. at 11. Felkel also did not identify Thivel at trial as the individual whose car he towed, and he admitted that he had not described the individual as wearing glasses to the police. Id. In closing, however, the defense conceded that Thivel matched Felkel's description.[6] Id.

Discovery of the Victims: Officer Gerald Loconsole of the Des Plaines Police Department testified that while on patrol on January 9 and 10, 1996, at 12:58 a.m., he turned onto Prairie from Potter and "noticed a small red vehicle parked on the south side of the street about 20 feet off the roadway with the engine running." Nov. 10, 2003 Op. at 8.[7] He heard music coming from inside, shined a flashlight into the car, and observed "a male subject that was sitting in the passenger's side of the vehicle. And he was kind of tilted back with his head on the passenger door window." Id. at 9; Ex. FF(4) (Tr.) at 1280. Officer Loconsole testified that he "assumed that since the person didn't move that he was either asleep or he was intoxicated and pulled off the road, " so he decided to "let him sleep for a couple of hours and come back later and check on him." Nov. 10, 2003 Op. at 9. Officer Loconsole returned at approximately 2:30 a.m. Id. at 12. The car was still running and the music was still playing. Id. Officer Loconsole shined a light into the car and noticed that the male subject had not changed position and observed "what appeared to be a trickle of blood that had come from the right nostril of the subject down his right cheek." Id.; Ex. FF(4) at 1281. Loconsole called for an ambulance. Nov. 10, 2003 Op. at 9.

January 10, 1996-The Morning After: At 8:00 a.m. the following morning, Thivel awoke Murray in their apartment. Id. at 14. Murray testified that Thivel said, "Remember that thing I was talking about? Well, I did it." Id. Murray testified that he understood Thivel to be confessing that "he had done something to Robert Farberger." Id. [8] Murray asked Thivel if there would be police, and Thivel confirmed and told Murray to tell the police that Thivel "was here all night; and that [Murray] had taken a phone call at about 12:30 in the evening - or, 12:30 a.m., somewhere around that area, that he was here for that phone call... I believe from his brother... He showed me on the caller ID there was a phone call." Id.; Ex. FF(4) (Tr.) at 1184-85.[9] Thivel also told Murray that Thivel had borrowed Murray's van "to start his brother's car, and he put gas in it;" Murray confirmed that $10 of gas appeared to be added to the gas gauge. Id. at 14-15; Ex. FF(4) (Tr.) at 1185. Murray moved out of the apartment he shared with Thivel that day because of what Thivel told him. Nov. 10, 2003 Op. at 15; Ex. FF(4) (Tr.) at 1186.

At about 7:25 a.m. on January 10, 1996, Raphael Tovar, a detective for the Des Plaines Police Department, awoke the residents of 680 Potter (recall that footprints led from the car to the driveway of this house) and transported them to the police station. Nov. 10, 2003 Op. at 50. Also at some point that morning, Sergeant Rozhuszka and five other officers went to Thivel's apartment, obtained Thivel's signature on a consent-to-search form, and then searched the apartment.[10] Id. at 49. The officers found a box of 9 millimeter ammunition, containing five live rounds and one spent round, a Teflon-coated.38 special Winchester caliber round, four bags of cannabis, a holster, a Polaroid photograph of Thivel, and some clothes Thivel said he had worn the night before. Id. at 49-50. Sergeant Rozhuszka testified that Thivel voluntarily accompanied the police to the station, arriving at 1:30 p.m. Id. at 50, 54. Murray was also interviewed and told the police the story Thivel had instructed him to tell, Nov. 10, 2003 Op. at 15; Ex. FF(4) (Tr.) at 1186, but later testified at trial that he could not remember the 12:30 a.m. phone call. Nov. 10, 2003 Op. at 15.

Thivel's Alibi Defense: Jeffrey Thivel, the defendant's brother, testified at trial that he arrived at home (his mother's house at 8853C Robin Drive in Des Plaines) from work-he believed he worked at Dominick's at the time-at 10:00 p.m. on January 9, 1996. Id. at 19-20. He watched television, ate, and then "decided that [he] wanted to get a jump for [his] car, " which was a 1998 Nissan 200SX that was having battery problems. Id. at 20. He testified that he made several phone calls to get a jump for his car in the morning, including to Milici (he left a voicemail) and to 680 Potter. Id. Jeffrey spoke to someone who he believed was Johansen at 680 Potter, and then called his brother James' apartment at 12:30 a.m. Id. at 20. According to Jeffrey, Murray answered and gave the phone to James; Jeffrey and James spoke for about five minutes (telephone records introduced at trial confirm that the call lasted six minutes); Jeffrey asked if James "could come over in the morning and give [Jeffrey] a jump." Id. Jeffrey testified that it sounded as if his brother had been drinking and "that there was partying going on." Id.; Ex. FF(5) (Tr.) at 1663. After he hung up, Jeffrey got ready for bed and made some calls to a couple of towing companies "to get information" in case James decided not to show up. Nov. 10, 2003 Op. at 20. Jeffrey stated that he did not make arrangements for a tow truck to come that night and went to bed after making the calls. Id. James called Jeffrey at approximately 6:00 a.m. and came over at 7:00 a.m. to jump Jeffrey's car. Id. at 20-21. James was driving Murray's van that morning. Id.

Other witnesses testified, however, that James-not Jeffrey-made the post-midnight calls from his mother's house. Milici testified that James left a voicemail after midnight on January 10; Milici then gave a tape recording to the police of what he represented to be the voicemail and which he believed would provide Thivel with an alibi.[11] Id. at 15; Ex. FF(3) at 953-54. Thivel's expert at trial, however, opined that the recording was not authentic. Nov. 10, 2003 Op. at 15. The State did not contest that opinion. Id. [12] Johansen testified that after midnight, Thivel called 680 Potter and informed Johansen that he would not be coming over as planned. Id. at 14. On cross-examination, Jeffrey admitted that he told the grand jury that it was possible that James was at their mother's house and made a call from there on January 9. Id. at 21. The payroll administration manager for Dominick's also testified in rebuttal for the State that employee records and time cards reflected that Jeffrey did not begin working at Dominick's until January 13, 1996. Id.

January 12, 1996 : On January 12, Milici and James drove together to a Montgomery Ward's store where Jeffrey was getting a new battery installed in his 8008 Nissan X200 two-door hatchback. Id. at 15. Milici testified that he overheard James ask his brother repeatedly for the keys to their mother's house; Jeffrey refused to give him the keys. Id. Milici testified that as he and James walked around the store, James "said under his breath, my f***ing brother, he'd help me get away with murder but he wouldn't give me the keys to the house." Id. Jeffrey, however, testified that he never heard James make that statement or ask him for the keys to their mother's house. Id. at 21; Ex. FF(5) (Tr.) at 1671.

Later that same day, Thivel and Jeffrey went to Murray's family's home. Nov. 10, 2003 Op. at 16. Murray testified that, in front of Murray's family, "[James] said that no matter how bad it looks, that he was innocent, he didn't do it." Id.; Ex. FF(4) (Tr.) at 1195. Murray added that James and Murray then spoke alone in the stairwell, and Murray told James "that I had brought the girls into it. I told him about the two girls." Thivel was "upset by that, but he said he could deal with it." Nov. 10, 2003 Op. at 16. Thivel added that "the least amount of people that knew he did it, the better off he would be." Id. On cross, Murray admitted that he did not initially tell the police about Thivel's comments in the stairwell and that although he thought he mentioned the statements in an interview before his grand jury testimony, he did not testify about the statements before the grand jury. Ex. FF(4) at 1244-45, 1248-49. Jeffrey, on the other hand, testified that he was with James the entire time they were at Murray's house. Nov. 10, 2003 Op. at 21.

Ballistics and Firearm Evidence : Forensic evidence indicated that six 380 auto caliber bullets were recovered from the victims' bodies. Id. at 3. Four of the bullets recovered were fired from the same gun. Id. The other two bullets had the same class characteristics as the first four, but it could not be determined (based on examination of the bullets themselves) whether they had been fired from the same weapon. Id. A firearm examiner for the Illinois State Police testified that the seven casings found at the scene were all fired from the same firearm. Id. at 3-4. While all of the bullets were 380 auto caliber, some of them had different configurations, indicating that they were different types of ammunition. Id. The casings were also from different sources, some manufactured by Winchester and others by Federal. Id. at 3-4. A receipt located in the glove box of the victims' vehicle showed a purchase of a box of 50 Winchester 380 automatic 94 Grade, full metal, copper bullets. Id. at 4.[13] The State's firearm examiner testified that the bullets recovered from the victims could have been fired from a Walther PPK or Walther PP 380 auto caliber or a 32 auto caliber weapon. Id. at 12.[14]

Stryjak testified that in September 1995, Thivel showed him a black handgun while the two were serving as security guards for a party at 680 Potter. Id. at 12-13; Ex. FF(4) (Tr.) at 1344. Thivel described the gun as a "Walther PK." Id. at 12-13. Milici testified that he and Thivel went to a shooting range on occasion, and that Thivel brought "[a] couple of different 357s and a couple of different 9 millimeters, a 380 I think at one point, a 38 and a 25." Nov. 10, 2003 Op. at 13; Ex. FF(3) (Tr.) at 944. Thivel and Milici would sometimes "vary ammunition and sometimes vary powder strengths from ammunition to try to achieve greater target accuracy." Nov. 10, 2003 Op. at 13; Ex. FF(3) (Tr.) at 948. In other words, Milici explained, "[t]he magazine would be loaded with more than one type of ammunition." Nov. 10, 2003 Op. at 13.

Milici also testified that Thivel bought the 380-a Walther PPK that could hold up to eight shots-for $10 from a teenager who, in turn, found the gun and a nylon holster while breaking into cars. Id. Milici cleaned the gun and holster for Thivel. Id. Although Thivel promised to give the 380 to Milici, Milici did not see the gun for at least a month or two before Farberger and Caudell's deaths. Id. During a search of Thivel's apartment on January 10, 1996, police recovered a black nylon Bianchi Ranger holster, which could accommodate a Walther PPK or PP, from a locked toolbox in Thivel's bedroom. Id. The weapon used to shoot Farberger and Caudell was not recovered. Ex. FF(4) at 1316.

Fingerprints : The parties stipulated at trial that an expert received latent fingerprints lifted from the vehicle where Farberger and Caudell's bodies were found and that none of the prints matched Farberger, Caudell, or Thivel.[15] People v. Thivel, No. 1-11-2189 (Ill.App.Ct. Nov. 21, 2012) at 2 (Dkt. 17, State's Ex. I). Detective George Fortier testified at trial that he obtained two latent fingerprints from the exterior of the vehicle's right rear door, and nine latent fingerprints from the ...


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