United States District Court, N.D. Illinois, Eastern Division
United States of America ex rel. CORTEZ JONES, R26113, Petitioner,
LEONTA JACKSON, Warden, Western Illinois Correctional Center, Respondent.
MEMORANDUM OPINION AND ORDER
JAMES B. ZAGEL, District Judge.
In a Memorandum Opinion and Order dated September 2, 2010, I held that, although Petitioner's ineffective assistance of counsel claim was procedurally defaulted, Petitioner may be able to establish the miscarriage of justice exception to procedural default. I then ordered an evidentiary hearing as to Petitioner's procedural claim of actual innocence. See also Schlup v. Delo, 513 U.S. 298, 341-42 (1995). I assume the reader's familiarity with the facts as set forth therein.
An evidentiary hearing was held on August 20, 21, and 22, 2013. On the basis of that hearing, my review of the record, and the parties' submissions, I conclude that Petitioner has satisfied the miscarriage of justice exception, and a merits-review of his otherwise defaulted claim of ineffective assistance of counsel is justified. I further concluded that 28 U.S.C. § 2254(d)(1) and 28 U.S.C. § 2254(a)(1) are satisfied, and the petition for a writ of habeas corpus is hereby granted.
In the late morning or early afternoon of September 12, 1999, a second-floor apartment at 6102 South May Street in Chicago was robbed. Corey Grant and Michella Anderson were residents of the apartment and were present when the invasion occurred. Three men wearing masks, one wielding a baseball bat, broke in and assaulted Corey Grant. They stole jewelry, a bag of marijuana, and $200 in cash.
Shortly thereafter, Michael Stone and Felicia Anderson, who also resided at the apartment, returned home from a visit to the store. Felicia Anderson was Corey Grant's fiancee, and Michael Stone, Felicia Anderson and Michella Anderson were all cousins. They were informed of the home invasion and robbery. Michael Stone then contacted his half-brother, Michael Carter, to tell him what had happened.
Petitioner Cortez Jones was near his parents' home at 6501 South Emerald in Chicago and on his way to run an errand for his mother when Michael Carter, a friend of several years, approached him by car. The two men had a conversation, and Mr. Carter, who was upset, told Petitioner Jones about the robbery. Petitioner Jones joined Mr. Carter in the car, and the two men drove to the apartment at 6102 South May. At the apartment, Petitioner Jones was introduced to Felicia Anderson and Cory Grant, and the robbery and home invasion was discussed further.
Cortez Jones testified that Michael Carter and Felicia Anderson told him that they believed Friday Gardner was involved in the robbery. Friday Gardner frequently stayed with Rene Phillips, who lived across the hall from the apartment at issue at 6102 South May. Petitioner did not appear to me to be entirely clear as to the basis for their belief. Felicia Anderson and Michael Carter asserted only that they assumed it had to have been someone from the neighborhood.
Felicia Anderson testified that she learned of the theory that Friday Gardner was involved in the robbery from Michella Anderson. Michella Anderson testified that she heard the theory from Michael Carter.
Michael Carter and Michael Stone both testified that Petitioner was the first person to implicate Friday Gardner. Messrs. Carter and Stone asserted that Petitioner told them that, while purchasing marijuana earlier that day, he overheard the seller say that he had just committed a robbery at 61st Street and May. Messrs. Carter and Stone asserted that, later that day, Petitioner identified Friday Gardner as that man. Petitioner denies this.
Friday Gardner kept a van parked on the street outside of the apartment building. All of the above individuals, save Petitioner, assert that, sometime after Petitioner and Michael Carter arrived at the apartment, the two men broke into the van and stole its radio. It appears this was done in an effort to lure Mr. Gardner out into the street. Petitioner denies that this happened.
Petitioner and Michael Carter then left the area. Later, around nine or ten o'clock in the evening, they returned to 6102 South May, apparently because Michael Stone had paged Michael Carter, though there is conflicting testimony as to whether the two men actually spoke. They found Friday Gardner out in the street by his van, discussing his stolen radio with several friends.
Petitioner Jones and Mr. Carter approached Mr. Gardner, and a heated argument ensued, drawing the attention of several neighbors. Mr. Stone, who was up in his apartment, heard the argument outside his window. Mr. Stone then went down to his basement, where he kept a.380 caliber pistol. He retrieved the weapon, and walked outside to continue watching the argument from the alley.
Mr. Stone watched from the alley as the argument continued, when he asserts that he saw Mr. Gardner draw a pistol. No firearm was found on Mr. Gardner's person, though there is some testimony that someone removed a gun from Mr. Gardner's hand after the shooting. In any event, Mr. Stone admits to then drawing his.380 caliber pistol, stepping out from the alley, and firing at Mr. Gardner three times. Mr. Gardner was found dead at the scene with two.380 caliber bullets in his abdomen. Three.380 caliber shell casings were found near his body. The pistol was never recovered.
Mr. Stone, Mr. Carter and Petitioner all ran after the shooting. Mr. Carter and Petitioner were arrested in connection with the shooting the next day, and Mr. Stone turned himself in the day after that. In his statement to the police, Mr. Stone admitted to shooting Mr. Gardner with a.380 caliber pistol, asserting that he did so in defense of his brother. Mr. Stone, Mr. Carter and Petitioner were each indicted in state court. Mr. Stone and Mr. Carter were tried jointly before a jury; Petitioner received a bench trial. Mr. Stone and Mr. Carter's joint jury trial concluded first.
Two eyewitnesses testified in state court at Petitioner's trial for murder that they saw Mr. Stone come out from the alley, and that he, and no one else, shot Mr. Gardner.
Two other eyewitnesses testified at Petitioner's trial that they saw Petitioner Jones shoot Mr. Gardner. A third said he believed Petitioner was holding a gun inside his coat pocket. A police report stated that on the night of the incident this third witness told police that he saw Mr. Stone come out from the alley and shoot Mr. Gardner. The witness denied having made that statement when he later testified at Petitioner's bench trial. A witness who was not called at Petitioner's trial, but testified at the evidentiary hearing, said that he saw Petitioner holding a gun, but did not see him fire. Still another witness appears to have thought that Mr. Carter shot Mr. Gardner.
Forensic evidence did not indicate a shooting at close range. No additional shell casings were recovered.
A federal court may only grant a writ of habeas corpus when a petitioner demonstrates that he is "in custody in violation of the Constitution or law or treaties of the United States." 28 U.S.C. § 2254(a); Moffat v. Gilmore, 113 F.3d 698, 702 (7th Cir. 1997). A habeas petition on behalf of a person in custody pursuant to a judgment of a state court cannot be granted unless the decision of the state court was "contrary to or involved an unreasonable application of clearly established Federal law" or was "based on an unreasonable determination of the facts." 28 U.S.C. § 2254 (d)(1-2).
The claim at issue here is the ineffective assistance of Petitioner's counsel at trial. In the September 2, 2010 Order, however, I concluded that Petitioner's ineffective assistance of counsel claim was procedurally defaulted.
A. Procedural Default and Petitioner's Procedural Claim of Innocence
A petitioner's claim may be procedurally defaulted if "that claim was presented to the state courts and the state-court ruling against the petitioner rests on adequate and independent state-law procedural grounds." Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004) (citing Coleman v. Thompson, 501 U.S. 722, 735 (1991)). A state law ground that provides the basis for a state court decision is independent when the court actually relied on the procedural bar as an independent basis for its disposition of the case." U.S. ex. rel . Bell v. Pierson, 267 F.3d 544, 556 (7th Cir. 2001) (citation omitted). A state law ground is ...