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Smith v. Duncan

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

November 3, 2014

GREGORY SMITH, (#M00207), Petitioner,
v.
STEPHEN DUNCAN, Warden, Lawrence Correctional Center, Respondent.

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge.

Before the Court is pro se Petitioner Gregory Smith's petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254(d). For the following reasons, the Court denies Smith's habeas petition and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).

BACKGROUND

When considering habeas petitions, federal courts must presume the factual findings made by the last state court to decide the case on the merits are correct unless the habeas petitioner rebuts those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Ford v. Wilson, 747 F.3d 944, 947 (7th Cir. 2014). Where Smith has not provided clear and convincing evidence to rebut this presumption of correctness, the following factual background is based on the Illinois Appellate Court's factual findings in People v. Smith, No. 1-09-2256 (1st Dist. June 10, 2011) (unpublished).

I. Factual Background

Although Smith was fifteen years old at the time of the offense, the State tried him as an adult in the Circuit Court of Cook County, Illinois. At trial, the State called retired Cook County Sheriff Eddie Mastin as a witness. Mastin testified that on June 30, 2006, he was sitting on a bench in front of 5131 South Ingleside Avenue in Chicago waiting for a friend when he saw one of the two victims, Maurice McDonald, walk past him alone. Mastin testified that he heard four or five gunshots and observed a man on a bicycle down the street. Thereafter, Mastin saw a young man approach a man on the bike, place something in his pocket, mount the bike, and then the two rode away. Further, Mastin testified that he walked down the block and found McDonald and the second victim, Cruse Caldwell, on the ground-both suffering from gunshot wounds. He then spoke to Chicago police officers, who showed him a series of photographs. Mastin identified the two perpetrators, including Smith. He also testified that he viewed a lineup in August 2006 and identified Smith and his co-defendant.

The State also called one of the victims, Caldwell, as a witness at trial. Caldwell testified that on June 30, 2006, McDonald, the other victim, and he were walking down South Ingleside Avenue when he observed a boy walking along with a young man riding a bicycle on the other side of the street. Caldwell testified that he then observed the boy cross the street, point the handgun at McDonald, and shoot. Caldwell then ran, and the boy shot at him. He further testified that the bullet pierced his lung. Trial evidence also revealed that Caldwell did not view a lineup or photographs, but identified Smith as the shooter at trial.

The jury found Smith guilty of two counts of attempted murder, two counts of aggravated battery, and two counts of aggravated unlawful use of a weapon. After the verdict, Smith's attorney moved for a mistrial because one of the verdict forms contained an error, namely, the verdict form stated that Smith discharged a firearm during the offense causing the "death" of the victim. Because this was an attempted murder case, however, the verdict form should have read that Smith's discharge of a firearm caused "great bodily harm." The trial court denied the motion for a mistrial, as discussed in further detail below.

II. Procedural Background

After the jury trial, the Circuit Court of Cook County judge eventually sentenced Smith to a term of twenty-one years imprisonment. On direct appeal to the Illinois Appellate Court, First District, Smith argued that he was denied a fair trial because the jury erroneously found that he killed someone during the commission of the offense based on the incorrect verdict form and that the jury was biased against him because they found him guilty of killing someone. (Ex. A, at 18-23). On June 10, 2011, the Illinois Appellate Court concluded that Smith had forfeited this claim and that any such error did not rise to the level of plain error. On July 6, 2011, the Illinois Appellate Court denied Smith's petition for rehearing. Smith then filed a petition for leave to appeal ("PLA") that the Supreme Court of Illinois denied on September 28, 2011. According to the state court docket, on September 28, 2012, Smith filed a postconviction petition pursuant to the Illinois Postconviction Hearing Act, 725 ILCS 5/122-1, et seq., that is still pending.

III. Habeas Petition

On May 30, 2014, Smith filed the present pro petition for a writ of habeas corpus. Construing Smith's pro se allegations in his habeas petition liberally, see Ambrose v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014), he argues that he was denied his right to an impartial jury and due process under the Sixth and Fourteenth Amendments because the jury erroneously found that he killed someone during the commission of the attempted murder based on the incorrect verdict form. The parties do not dispute that Smith has exhausted this claim, although Smith's postconviction petition, in which he brings the same claim as here, is still pending.[1]

ANALYSIS

I. Habeas ...


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