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United States ex rel. Elam v. Butler

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

January 12, 2015

UNITED STATES OF AMERICA ex rel., TONY ELAM, Petitioner,
v.
KIM BUTLER, [1] Respondent.

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, District Judge.

On December 20, 2001, Petitioner Tony Elam's efforts to collect a drug debt resulted in the death of Charles Collins. Elam was charged with multiple counts of first-degree murder, aggravated kidnapping, and armed robbery. He was ultimately convicted on April 5, 2007, on two counts of first-degree murder and was sentenced to thirty-five years in prison. Having exhausted state court appeals, Elam now petitions for relief pursuant to 28 U.S.C. § 2254, raising several claims, including trial court error and ineffective assistance of appellate counsel. Because each of Elam's claims is procedurally defaulted or meritless, the petition is denied [1], and the court declines to issue a certificate of appealability.

FACTUAL AND PROCEDURAL BACKGROUND

I. Background

Absent clear and convincing evidence, on habeas review, a federal court presumes the factual findings made by the last state court to be correct. See 28 U.S.C. § 2254(e)(1); Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012). The following facts are drawn from the Illinois Appellate Court's Order affirming Elam's conviction on direct appeal. ( See Rule 23 Order, People v. Elam, No. 1-07-1019 (1st Dist. Ill.App. Ct. Jan. 13, 2010), Ex. A to St. Ct. R. [17-1], hereinafter "Direct Appeal Order.")

In the early morning of December 20, 2001, codefendant Cherita Rayford drove Elam and two other individuals from Seventy-Fifth and Dorchester to the north side of Chicago in search of Charles Collins. (Pet.'s Direct Appeal Opening Br., Ex. B to St. Ct. R. [17-2], hereinafter "Pet's Direct Appeal Br.;" Direct Appeal Order at 2.) Collins owed Elam approximately $410 in connection with a previous drug transaction. (Direct Appeal Order at 2.) After picking Collins up, the individuals drove to a number of locations where Collins said he would be able to collect the funds. ( Id. ) Ultimately, however, Collins's efforts to obtain the money owed proved unsuccessful, and Elam beat Collins around his face and head, resulting in hemorrhaging, lacerations, and a missing tooth. ( Id. ) As the group drove past two police cars, Collins opened the car door and shouted for help. ( Id. ) Collins then either jumped or was thrown from the vehicle, and died from the injuries that he sustained to his spine and the back of his head when he hit the pavement. (Direct Appeal Order at 2.)

Officer Bertram was on routine patrol in an unmarked car with his partner, Officer Jack Axium, when he witnessed a black male waving his arms above the door of a blue four-door Chevrolet and yelling "help, help." (Mot. to Withdraw as Counsel, Ex. I to St. Ct. R. [17-9], hereinafter "Mot. to Withdraw, " 4-5.) The officers followed the Chevrolet as the vehicle made a right turn to go south on Broadway. ( Id. at 5.) As the officers approached the intersection of Granville and Broadway, they saw Collins lying on the ground. (Id.) Officer Bertram testified that he did not see Collins fall from the car. ( Id. )

Officer Theodora Salvage and her partner were on routine patrol on December 20, 2001 around 12:45 a.m. when they received a police radio broadcast and drove to the scene at Granville and Broadway, where Collins lay on the ground. (Mot. to Withdraw at 4.) Officer Salvage saw Elam standing on the southwest corner of the intersection and then saw him run east on Granville. ( Id. at 5.) Officer Salvage followed Elam in her car to the corner of Granville and Winthrop, but Elam ran into a gangway off an alley. ( Id. ) Officer Salvage got out of her car and followed him on foot, shouting at him to stop, and ultimately arrested him when he reached a locked gate at the end of the gangway. ( Id. )

Following his arrest, Elam gave a videotaped statement in which he admitted to beating Collins in an attempt to retrieve the money Collins owed him. (Direct Appeal Order at 2.) Elam and Rayford were charged with multiple counts of first-degree murder, aggravated kidnapping, and armed robbery. ( Id. at 1.) The State dismissed many of the charges prior to trial, but Elam was found guilty by a jury on two counts of first-degree murder, and he was sentenced to thirty-five years' imprisonment on April 5, 2007. ( Id. at 1; Order Denying Post-Conviction Pet., Ex. N to St. Ct. R. [17-14].)

II. Direct Appeal

Petitioner Elam appealed, arguing, first, that the prosecutor made improper comments during closing and rebuttal arguments: (1) Petitioner argued that during closing and rebuttal, the prosecutor improperly inflamed the passions of the jury by urging the jury to send a message that Collins's life was worth more than $410 and to find Elam guilty of first-degree murder because "justice demands it" (Pet.'s Direct Appeal Br., 16-18); (2) Petitioner claimed that the prosecutor improperly criticized the defense for cross-examining State witnesses about pre-trial communications with the prosecutor ( Id. at 18-21); (3) Petitioner urged that the prosecutor improperly belittled defense counsel during rebuttal argument by suggesting that the defense was focused on unimportant details. ( Id. at 21-22.)

The appellate court rejected all of these arguments. (Direct Appeal Order at 7.) The court observed, first, that a prosecutor is afforded great latitude in making closing and rebuttal arguments, and that the court will not disturb the trial court's ruling absent a showing of clear abuse of discretion. With respect to Petitioner's claim that the prosecutor improperly inflamed the passions of the jury during closing, the court concluded that Petitioner waived that claim because he neither objected to it at trial nor raised it in a post-trial motion. ( Id. at 2-4.) The court further held that there was no plain error to excuse Petitioner's procedural default, as the prosecutor "merely denounced defendant's activities and demanded that justice be served, which falls within the ambit of proper closing argument." ( Id. at 4.) With respect to Petitioner's second claim, that the prosecutor improperly criticized the defense's cross-examination of prosecution witnesses, the appellate court pointed out that defense counsel effectively "opened the door" to that criticism by questioning Officer Brad Bertram concerning his pre-trial communications with the prosecutor. ( Id. at 5.) Lastly, the court considered Petitioner's argument that the prosecutor improperly suggested that the defense focused on unimportant details, using comments like "[t]hey're just pulling things out now;" "the evidence is overwhelming, and that's why there is this focus and there is [sic] these sidetracks that they go off on because they know that the evidence is overwhelming;" and "[t]hey're awfully interested in getting me to sit down because they know what the evidence says." (Direct Appeal Order at 6.) Those comments, the court held, generally challenged "the theories of defense, in the face of overwhelming evidence, " rather than defense counsel himself. ( Id. ) True, one of the prosecutor's comments ("[t]they're awfully interested in getting me to sit down") could be construed as an attack on defense counsel; but the trial court instructed the jury to decide the case based on the evidence, and the prosecutor's comment was not substantial enough to have prejudiced the defendant and deprived him of a fair trial. ( Id. at 6-7.) The appellate court concluded that none of the comments defendant challenged deprived Petitioner of a fair trial. ( Id. at 7.)

Although Petitioner did not dispute that his thirty-five year sentence falls within the statutory range for the offense, he challenged the sentence as excessive because the court failed to consider mitigating factors. (Pet.'s Direct Appeal Br. at 25-31.) The appellate court concluded otherwise. (Direct Appeal Order at 9.) In support of its conclusion that the trial court did not abuse its discretion in sentencing Petitioner, the appellate court noted that the trial court made its decision after considering the appropriate sentencing factors, including the nature of the offense, Petitioner's expression of remorse, and Petitioner's chances for rehabilitation. ( Id. )

Finally, Petitioner argued that one of his two convictions for first-degree murder must be vacated because both convictions arose out of the death of a single victim. (Pet.'s Direct Appeal Br. at 32.) On this issue, Petitioner prevailed; the state appellate court recognized that "convictions for more than one offense cannot be carved from the same criminal act." Accordingly, the appellate court vacated one of the two first-degree murder convictions (Count 24). (Direct Appeal Order at 9, citing People v. Szabo, 94 Ill.2d 327, 350, 447 N.E.2d 193, 204 (Ill. 1983).) The appellate court affirmed the trial court's judgment of the Circuit Court of Cook County in all other respects.[2] ( Id. )

Petitioner filed a timely petition for leave to appeal ("PLA") to the Supreme Court of Illinois, raising the same claims of prosecutorial misconduct he had presented on direct appeal in the appellate court. (Direct Appeal PLA, Ex. E to St. Ct. R. [17-5], 1-4.) Petitioner also again argued that the trial court abused its discretion by imposing a sentence of thirty-five years in prison. ( Id. at 4-5.) The petition for leave to appeal was denied on November 25, 2009. (Order Denying PLA, People v. Elam, No. 109022 (Ill. 2009), Ex. F to St. Ct. R. [17-6].)

III. Post-Conviction Proceedings

Petitioner filed a pro se petition for post-conviction relief on April 1, 2010 in the Circuit Court of Cook County. (Post-Conviction Pet., Ex. G to St. Ct. R. [17-7]. hereinafter "Post-Conviction Pet.") Petitioner raised nine issues. ( Id. ) First, Petitioner claimed appellate counsel was ineffective for failing to raise a claim of prosecutorial misconduct on direct appeal. ( Id. at 1-2.) Second, Petitioner urged ineffective assistance of trial counsel for failing to object to Officer Theodora Salvage's references to Petitioner as the "offender" in her trial testimony, as well as ineffective assistance of appellate counsel for failing to raise a claim of ineffective assistance of trial counsel on direct appeal. ( Id. at 2-3.) Specifically, when asked what she did once Elam was arrested and they were both inside an interview area, Officer Salvage testified, "We had to get our paperwork together and process the offender or Mr. Elam." (Mot. to Proceed as Poor Person and Appointment of Counsel, Ex. G to St. Ct. R. [17-11], UUU 121; Post-Conviction PLA, Ex. K to St. Ct. R. at UUU 121.) Third, Petitioner argued that the police failed to advise him of his Miranda rights, and that his appellate counsel was ineffective in declining to argue this issue on direct appeal. (Post-Conviction Pet. Ex. G to St. Ct. R. at 3-4.) Fourth, Petitioner claimed that appellate counsel was ineffective for failing to challenge the trial court's "erroneous instructions during opening statements" as plain error. ( Id. at 4-5.) Fifth, Petitioner urged that appellate counsel was ineffective in failing to argue that trial counsel should have objected to Officer Salvage's testimony that she heard her partner inform Petitioner of his Miranda rights. ( Id. at 5-6.) Sixth, Petitioner argued that the trial court failed to properly admonish Petitioner regarding what Petitioner believes to be a "more onerous" sentence. ( Id. at 6.) Seventh, Petitioner argued that the State's expert, Douglas Ridolfi ("Ridolfi"), presented false testimony. ( Id. at 7-8.) Specifically, Ridolfi, a forensic scientist, worked for the Illinois State Police Crime Lab and was called to present testimony regarding the blood stain evidence recovered from the car that was used in the offense. (Mot. to Withdraw at 14.) Ridolfi testified that the blood stains recovered from the vehicle were consistent with those originating from the victim. ( Id. ) On cross-examination, Ridolfi testified that he entered a second sample of blood, also retrieved from the vehicle, into the Illinois State Police database. This second sample, which contained female DNA, did not match that of co-Defendant Rayford, and did not match any other sample in the database. ( Id. ) Ridolfi later admitted to prosecutors that he did not in fact run a search through the DNA database to determine whether there was a match to another female.[3] ( Id. at 14-15.) Petitioner further claimed ineffective assistance of appellate counsel for failing to raise this issue on direct appeal. (Post-Conviction Pet. at 7.) Next, Petitioner claimed that the State failed to prove him guilty beyond a reasonable doubt, and that appellate counsel was ineffective for failing to argue reasonable doubt on direct appeal. ( Id. at 8-9.) Finally, Petitioner argued that appellate counsel was ineffective for failing to raise seven issues preserved for review that were "obvious and clearly stronger than ones raised." ( Id. at 9-10.) These seven issues, according to Petitioner, are as follows: (1) the state failed to prove Petitioner guilty beyond a reasonable doubt, (2) the verdict was against the weight of the evidence, (3) the trial court erred in denying defense counsel's motion for suppression, (4) the trial court erred in denying defense counsel's motion for mistrial after the State made inflammatory comments to the jury, (5) the trial court erred in granting the prosecution's motion in limine, allowing the admission of statements made by Petitioner and co-defendant, (6) the trial court erred in denying the motion for mistrial made in response to Officer Salvage's testimony, and (7) Petitioner was deprived of a fair trial when the prosecution refused to stipulate "to that matter which would have corrected erroneous testimony, " specifically, that Ridolfi initially testified untruthfully that he conducted a search of the unknown female DNA, and compared it against the DNA in the police database. ( Id. at 10.)

On March 23, 2010, Petitioner submitted a motion to proceed as a poor person and for appointment of counsel and a petition for post-conviction relief. (Mot. to Proceed as Poor Person and Appointment of Counsel, Ex. G to St. Ct. R.; Post-Conviction Pet.) On May 7, 2010, the circuit court summarily dismissed the petition as frivolous and patently without merit. (Post-Conviction Appeal Order, People v. Elam, No. 1-10-1649 (Ill.App.Ct. Dec. 28, 2011), Ex. H to Post-Conviction Pet. [17-8] at 2.) Subsequently, the State Appellate Defender, who was appointed to represent Petitioner on appeal, filed a motion for leave to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). (Mot. to Withdraw) Appellate counsel concluded that Elam's allegations of ineffective assistance of counsel are without arguable merit. ( Id. at 17.) Specifically, counsel noted that both Detective Villardita and Assistant State's Attorney Fielder testified that they advised Petitioner of his Miranda rights prior to taking a formal statement. ( Id. at 12.) Likewise, counsel noted that Ridolfi, the forensic scientist, acknowledged that he made a mistake in his original testimony, but Ridolfi's mistake pertained solely to his failure to run female DNA found in the car through the DNA database, a matter collateral to the evidence against Petitioner. ( Id. at 14-15.) Ridolfi never testified about a backpack, nor did he testify to examining a backpack, or to recovering any items that may have been inside of a backpack ( id. at 14), as Petitioner claimed, and therefore such testimony had no bearing on the jury's decision to convict Petitioner. ( See id. at 15.) On August 17, 2011, Petitioner responded to counsel's Finley motion, raising the same claims argued in his post-conviction petition. (Pet.'s Resp. to Mot. to Withdraw, Ex. J to St. Ct. R. [17-10].) On December 28, 2011, the state appellate court granted the State Appellate Defender's motion for leave to withdraw as counsel, denied Petitioner's request for the appointment of new counsel, and affirmed the order of the Circuit Court of Cook County. (Post-Conviction Appeal Order, Ex. H to Post-Conviction Pet. at 2.)

Again, Petitioner filed a PLA to the Illinois Supreme Court, asserting the same claims he raised in his post-conviction petition and in his response to counsel's Finley motion. (Post-Conviction PLA, Ex. K to St. Ct. R. [17-11].) On March 28, 2012, the Supreme Court of Illinois denied the PLA. (Order denying Post-Conviction PLA, People v. Elam, No. 113828 (Ill. 2012), Ex. L to Post-Conviction PLA. [17-12].)

Petitioner did not file a petition for a writ of certiorari to the United States Supreme Court relating to either his direct appeal or post-conviction appeal. (Habeas Pet. [1, ] 2.) Instead, on February 22, 2013, Petitioner filed this petition pursuant to 28 U.S.C. § 2254. (Habeas Pet.) Respondent concedes that the petition is timely and that Petitioner has exhausted his available state court remedies by filing a direct appeal and post-conviction petition. Petitioner identifies nine alleged bases for habeas relief. First, Petitioner asserts that appellate counsel was ineffective on direct appeal for failing to argue that the prosecutor made improper inflammatory comments to the jury during closing arguments, and therefore he was denied his right to a fair trial. Second, Petitioner alleges that the trial court abused its discretion in sentencing him to a term of thirty-five years in prison. Third, Petitioner asserts that appellate counsel was ineffective, on direct appeal, for failing to raise the following issues: (a) Petitioner's Miranda rights were violated; (b) the trial court erred by refusing to instruct the jury on second-degree murder; (c) Petitioner's claim that the prosecutor made inflammatory statements to the jury presented a plain error; (d) the trial court should have admonished Petitioner regarding his "more onerous" sentence; (e) the prosecutor "knowingly used false testimony" at trial; (f) the trial court wrongly denied Petitioner's motion to suppress his statement to the police; (g) the trial court erred by denying a motion for a mistrial due to inflammatory remarks made to the jury; and (h) Officer Theodora Salvage's testimony was false. Fourth, Petitioner alleges that appellate counsel was ineffective for failing to object to Officer Salvage's testimony referring to Petitioner as the "offender." Fifth, Petitioner alleges that the State failed to prove him guilty of felony murder beyond a reasonable doubt, and that appellate counsel was ineffective for failing to argue the reasonable doubt issue on direct appeal. Sixth, Petitioner asserts that he was denied his confrontation right to see and hear Officer Bertram when the prosecution allegedly argued that an inference of guilt was present after defense counsel requested to cross-examine State's witnesses.[4] Seventh, Petitioner asserts that the trial court erred by refusing to instruct the jury on second-degree murder. Eighth, Petitioner alleges that ...


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