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Foster v. Korte

United States District Court, S.D. Illinois

October 28, 2014

MICHAEL O. FOSTER, Petitioner,
v.
JEFF KORTE, Respondent.

MEMORANDUM and ORDER

DAVID R. HERNDON, District Judge.

In 2004, petitioner Michael O. Foster was convicted of two counts of aggravated battery with a firearm and one count of aggravated discharge of a firearm by a jury in St. Clair County, Illinois. He was sentenced to consecutive terms of fifteen years on the aggravated battery counts. No sentence was imposed on the aggravated discharge of a weapon count, as the court found that it merged with the other convictions.

After filing a direct appeal and a state postconviction petition, Foster filed a petition for habeas relief under 28 U.S.C. §2254 (Doc. 1), raising the following grounds:

1. The convictions on two counts of aggravated battery with a firearm violate the state's "one-act, one-crime" rule and due process.
2. Trial counsel was ineffective in failing to interview and present the testimony of alibi witnesses Dianne Foster and Venanita Ursery.
3. Trial counsel was ineffective in failing to impeach state's witness Donna Killion.
4. Trial counsel was ineffective in failing to "illustrate to the jury" that the victim, Richard Smith, was unable to see who shot him because it was dark.
5. Trial counsel was ineffective in failing to object to leading questions asked by the state's attorney of the state's witnesses.
6. Trial counsel was ineffective in failing to "illustrate to the jury" that witness Tracy Killion gave inconsistent testimony.
7. Trial counsel was ineffective in failing to "illustrate to the jury" that the state did not prove that the light at the crime scene was sufficient for the witnesses to see and identify petitioner as the shooter.
8. Appellate counsel was ineffective in failing to raise the issues set forth above on direct appeal.

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 the dismissal of petitioner's postconviction petition. A copy of the Rule 23 Order is attached to Doc. 13 as Exhibit 7. 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).

The victim, Richard Smith, dated Tracy Killion on and off in late 2002. Tracy Killion was the mother of petitioner's children, and she had been involved with petitioner for about ten years. Tracy Killion and petitioner were not living together at the time of the crime.

On December 3, 2002, Tracy Killion and Michael Foster agreed that Foster would take Killion's Saturn car to a repair shop. A friend drove Killion to Richard Smith's house that evening, where she spent the night. At about 5:00 a.m. on December 4, 2002, Richard Smith drove Killion home as she had to be at work at 7:00 a.m.

The state court summarized Smith's testimony as follows:

As they stopped in front of Killion's house, Smith saw someone "come off the porch" and he heard Killion say, "There goes Mike." The person ran up to the passenger door of Smith's car and tried to open it. Smith identified this person in court as [petitioner]. Unable to open the car door, [petitioner] began banging away on the windshield. Smith shifted the car into reverse and began backing away. As he did so, he saw [petitioner] holding a gun, saw sparks coming from the gun, and saw his windshield shattering. He heard four or five shots. He did not see anyone else outside of his car. Smith drove to the hospital, where he discovered that he had been shot in the neck and leg. While at the hospital, Smith told police that [petitioner] was the shooter, and he selected [petitioner] from a group of six photos.

Doc. 13, Ex. 7, p. 2.

Tracy Killion testified that she saw her Saturn parked in the driveway as they pulled up, and she assumed that Michael Foster was there. She saw a man run from the porch to the passenger side of Smith's car and try to open the door. She held the door closed. On cross examination, she stated that she never saw the man's face and she simply assumed it was Foster. She also stated that she did not want to testify, but she had been subpoenaed and felt pressured to testify. Ex. 7, pp.3-4.

Petitioner was convicted on all three counts. He filed a pro se post trial motion alleging ineffective assistance by trial counsel. One of his claims was that counsel had failed to interview and subpoena his mother, Dianne Foster, and his sister, Venanita Ursery. The trial court held a hearing. Dianne Foster testified that petitioner slept at her home on the night of December 2, 2002, and that he left around 6:00 a.m. on December 3, 2002. As petitioner was leaving, he told his mother that he was going to pick Tracy up and take her to work. Ms. Foster also testified that she attended her son's trial, and she never told petitioner's attorney that he had been at her home until 6:00 a.m. on the day of the crime. Doc. 13, Ex. 12, pp. 162-163. Petitioner told the judge that he had been unable to contact his sister, but he made an offer of proof that his sister, Venanita Ursery, would testify that she also slept at Dianne Foster's house on the night of December 2, 2002, and that she woke petitioner up at 5:30 a.m. on December 3, 2002, so that he could drive ...


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