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United States ex rel. Murithi v. Butler

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

March 23, 2015

KIM BUTLER, Warden, Menard Correctional Center, Respondent.[1]


RONALD A. GUZMN, District Judge.

Petitioner Mwenda Murithi's § 2254 Petition for Writ of Habeas Corpus [1] is denied. No certificate of appealability shall issue.


Mwenda Murithi ("Petitioner") was convicted of first degree murder in February 2009 after an Illinois state court jury trial. He has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254(b)(1). For the reasons set forth below, the Court denies the petition.

Factual Background

The following facts relevant to Petitioner's § 2254 petition are drawn from the Illinois Appellate Court's opinions in Petitioner's direct appeal, People v. Murithi, No. 1-09-1147 at 2-5 (Ill.App.Ct. Dec. 30, 2010) (Gov't Ex. D, Dkt. # 24, Page ID # 250-71), and collateral appeal, People v. Murithi, 2013 IL App (1st) 120924-U at ¶¶ 5-26 (Ill.App.Ct. Sep. 19, 2013) (Gov't Ex. L, Dkt. # 24, PageID # 511-20.) The Court presumes that the state court's factual findings are correct for the purposes of habeas review, and Petitioner bears the burden of rebutting such findings by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Petitioner was a member of the Imperial Gangsters street gang, and was charged along with fellow Imperial Gangster Tony Serrano for the murder of 13 year old Schanna Gayden. The victim was killed on June 25, 2007 when she was shot inadvertently while walking past a confrontation between the Imperial Gangsters and members of the rival Spanish Cobras gang.

Prior to trial, Petitioner moved to suppress statements he made to the police while in confinement on the grounds that they were involuntary and coerced. At the evidentiary hearing on the motion to suppress, Detective John Valkner ("Valkner") testified that he arrived at the scene of the shooting on the evening it happened. Once at the scene, he learned that a young girl had been shot in the head, but was still alive and hospitalized. Beginning at 2:10 a.m., Valkner and another detective conducted an unrecorded interview of Petitioner. At 3:55 a.m., the Cook County Medical Examiner's Office notified Valkner that the victim had died. Valkner then contacted the hospital to confirm the time of death, which he learned to be 12:10 a.m. The video recording equipment in the interview room was then turned on at 4:02 a.m., and remained on for two additional interviews between Petitioner and the police. After hearing this evidence, the trial court denied Petitioner's motion to suppress, finding that the statements given to the police during questioning were voluntary. The trial court also specifically found that the officer's decision regarding when to turn on the video recording device was not a violation of Petitioner's constitutional rights.

Following the court's ruling on this and other pretrial motions, Petitioner's trial began. During opening statements, Petitioner's counsel advised the jury that Petitioner was not required to prove his innocence or testify at trial on his own behalf. However, counsel made numerous statements indicating that Petitioner would testify during the trial. Counsel stated: "But I fully anticipate you are going to hear from Mr. Murithi. I fully anticipate him sitting up there like every other witness and telling you what happened." Counsel went on to make the following comments during his opening:

Mr. Murithi is going to sit up there, I believe. And when he does, he is going to tell you what happened out there, what he was doing out there... In the summer of 2007, yea, he is going to tell you that he was a member of the Imperial Gangsters in that neighborhood. And you may not like that. You may not like him. He is going to tell you he was out there that night looking for a fight with the Cobras. He had some troubles with them. He was looking for a fist fight. He is going to be very specific about that. He was throwing down gang signs. He was egging them on. He wanted to get in a fist fight with those guys. He is going to tell you he likes to fight. He is going to tell you he made a phone call. The phone call wasn't to bring a gun to the scene. He is going to tell you that the phone call was to get more bodies out there because he saw he was getting outnumbered. He is going to tell you he saw Tony Serrano coming and he knew by the way that Tony Serrano was holding his waistband he had a good feeling that Tony Serrano brought a gun. He is going to tell you he didn't want a gun out there. Once he saw it he had to deal with it. Says all right. Things get out of hand. I know at least it's there. I don't want it here. He is going to tell you he doesn't want it. He didn't want it there because it was 6:00 o'clock in the evening and there were kids playing out there and that's just not smart to play with guns when there are that many people out there. He didn't want the gun out there. He didn't need it. He wanted to fist fight. He tried to get the gun away from Tony Serrano.

Following opening statements, the parties presented their evidence. The evidence at trial established that at around 6:30 p.m. on June 25, 2007, Katie Wilson and her 13 year old cousin, Schanna Gayden, went to Funston Park to buy fruit. Wilson testified that she heard two groups of men arguing at each other across a street. The group on Wilson's side of the street was yelling "Cobra killer." The argument got louder and then Wilson heard gunshots. When Wilson turned around, she saw Gayden lying on the ground. Gayden later died at the hospital of a gunshot wound to the head.

Several witnesses testified regarding Petitioner's involvement in the shooting. Felix Jusino testified that he was a member of the Imperial Gangsters in June 2007. About 20 minutes before the shooting, Jusino ran into Petitioner. Petitioner told him there were some Cobras nearby and asked Jusino to come with him. When Jusino refused, Petitioner left. While at a store, Jusino heard people yelling "Cobra killer" outside and went to see what was happening. He saw Petitioner arguing with some Cobras standing across the street. Petitioner was yelling "Cobra killer" and making a hand signal called "dropping the C" as a sign of disrespect. Jusino noticed that Petitioner was with Tony Serrano, who was also a member of the Imperial Gangsters. Petitioner stood in front of Serrano yelling at the Cobras across the street while Serrano went behind a car. When Serrano stepped out from behind the car, he started shooting towards the Cobras and then ran. Jusino said he saw a pistol in Serrano's hand as Serrano ran past him.

Jacoby Jones testified that he was walking with his sister near the park when he saw Petitioner. Petitioner was yelling "Cobra killer" and flashing gang signs at several Spanish Cobra gang members standing across the street in the park. When Jones saw Petitioner raise his hand to his mouth and say "Bring the thumper, " which Jones knew to be a slang term for a gun, Jones picked up his sister and ran to his house. A few seconds after going upstairs, Jones heard six to eight gunshots. Jones identified Petitioner in a photo array and a lineup as the person who said "Bring the thumper."

Roquelin Bustamante testified that on June 25, 2007, he saw three black males, including Petitioner, walking towards Central Park Avenue. All of the men were flashing gang signs and yelling at four men standing on the other side of the street. Bustamante saw a Hispanic male come out from behind a parked car, while hiding something in his shirt. Petitioner was yelling at the men across the street to come closer. Bustamante said that when the Hispanic male who came from behind the car pulled a gun out from under his shirt, Petitioner waived at the gunman and told him to "wreck em." The gunman then started firing. Bustamante identified Petitioner in a lineup as the person who told the gunman to "wreck em."

Chicago police officer Edwin Pagan[2] testified that he found Petitioner about a half block down from the park while canvassing the area after the shooting. Petitioner was standing outside drinking an alcoholic beverage. After Officer Pagan placed him under arrest for drinking on a public way, Petitioner told the officer to give him a break because he had information. According to Officer Pagan, Petitioner said he knew where the "thumper" used in the shooting was. Petitioner told the officer it was located in a partially abandoned building at Dickens and St. Louis Avenue. After being advised of his Miranda rights, Petitioner told Officer Pagan he knew the shooter was an Imperial Gangster named Tony.

Chicago police detective John Valkner testified that he questioned Petitioner at 2:10 a.m. on June 26, 2007. After being advised of his Miranda rights, Petitioner told Detective Valkner that he was a member of the Imperial Gangster street gang. Petitioner admitted that prior to the shooting, he was in an argument with some Cobras who were across the street from him on Central Park Avenue. Petitioner denied, however, that he ordered the gun to be brought out. He told Valkner he just wanted to fight the Cobras, and ran as soon as Serrano started shooting. After Valkner learned the victim had died at 3:55 a.m., he turned on the video recording system in the interview room where Petitioner was being questioned for the remainder of the time Petitioner was there. The police conducted two additional interviews of Petitioner after 3:55 a.m., both of which were recorded.

The video containing Petitioner's recorded statements was played for the jurors, who were also given transcripts of the dialogue. In the video, Petitioner is advised of his Miranda rights. When asked what happened on the evening of the shooting, Petitioner stated that a Cobra pointed a gun at him, after which Petitioner got into a verbal altercation with several Cobras. Petitioner stated that he just wanted to have a "boxing match real quick" and that he likes fighting. Petitioner admitted to making calls to get more gang members there for a fight, but not for a shooting. He admitted that he had been in two previous fights with the Cobras and he was trying to "even it up" and get the "upper hand" with this fight.

Petitioner stated that three or four other Imperial Gangsters showed up for the fight. Petitioner inquired of them "ya'll got thumper?" and Serrano responded that he had a gun. Petitioner could also tell Serrano had a gun by the way he was walking and holding his hand. Petitioner's testimony was inconsistent as to how he felt about the presence of a gun at the fight; he repeatedly denied calling for the gun and stated "I don't like bringing guns out at that hour, there's too many kids outside. I always wait until midnight before I bring out guns... Cause I know I can aim, but I don't know about the other people man that's why I don't be lifting that s*** at that time." Later in the interview, however, Petitioner stated that when he realized Serrano brought a gun, "I was like, yes we got a gun here too. This evens everything's [sic] out." Petitioner admitted he was happy to have a gun there, because "[i]n case dude starting lighting us up f*** it, we gonna light you back up."

Petitioner stated that he was planning to "wait for [the armed Cobra] to shoot first" then "light him back." There was "gonna be a shootout. It ain't no fun shooting a n***** without no gun. A shootout's the best way cause in the hood that's just a homicide."[3] Petitioner denied telling Serrano explicitly to shoot, but admitted that he told Serrano to "get em" or "bust them." Petitioner eventually admitted that he was trying to lure the Cobras closer, as Serrano was "gonna get an easier target like that." He told Serrano to "bust at these n*****s as soon as we got closer to Central Park." Petitioner then stated he asked Serrano for the gun when Serrano hesitated to shoot, and that he was "mad as hell" at the time and, if he had the gun, he would have shot at the Cobras just for crossing the street.

After playing the video, the State rested. When asked if Petitioner would testify on his own behalf, defense counsel informed the judge that he would not. The trial court judge then questioned both defense counsel and Petitioner about this decision. Counsel reported that he had "spoken to [Petitioner] at great length about his absolute right to testify in his own behalf." Counsel also stated that he had informed Petitioner that if Petitioner testified, counsel would ask that the jury to be instructed to treat the testimony like that of anyone else; if Petitioner did not testify, counsel would ask for an instruction that the jury could not hold the fact that he failed to testify against him. Counsel concluded that "at this point, it is [Petitioner's] desire not to testify on his own behalf." When asked by the judge if this was correct, Petitioner responded "Yes, it is" and confirmed in response to separate questions that: (1) he had talked the matter over extensively with counsel; (2) he had no questions regarding his decision not to testify; (3) he was confident in making his own decision and no one had threatened him or promised him anything in order to influence his choice not to testify; (4) he was choosing not to testify of his own free will; and (5) he understood that the decision was his alone to make.

After hearing all the evidence, the jury found Petitioner guilty of first degree murder. Following a joint sentencing hearing, Petitioner ...

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