United States District Court, S.D. Illinois
BOBBY O. WILLIAMS, Petitioner,
JEFF HUTCHINSON, Respondent.
MEMORANDUM AND ORDER
R. HERNDON JUDGE.
1996, a jury in St. Clair County, Illinois, convicted Bobby
O. Williams of first degree murder. He was sentenced to
death, but his sentence was vacated and later commuted. He
was then resentenced to life imprisonment. Williams filed an
amended petition for habeas relief pursuant to 28 U.S.C.
§2254, Doc. 17.
matter is now before the Court on petitioner's Motion for
Judgment on the Pleadings (Doc. 50), as well on as the merits
of the amended petition.
Asserted for Habeas Relief
amended petition raises the following grounds:
A. The trial judge erred in excluding Gerald Simpson's
statement to the police indicating that Gerald was the second
man (the non-shooter) in the surveillance video, and that the
shooter was a man named Fred.
B. (1) Trial counsel was ineffective in failing to file a
second motion to quash arrest and suppress evidence and in
failing to request a second suppression hearing based on
exceptional circumstances, and (2) appellate counsel was
ineffective in failing to raise trial counsel's
C. There was insufficient evidence presented to the extended
term qualifying jury to establish that petitioner was the
person who actually murdered Sharon Bushong during the course
of an armed robbery.
D. The judge who sentenced petitioner to life imprisonment
E. Petitioner's life sentence violates equal
Facts and Procedural History
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).
reply, petitioner suggests that the presumption of
correctness applies only to the facts related to claim A
because the Supreme Court of Illinois only ruled on that
claim. See, Doc. 48, pp. 2-3. His suggestion is the result of
incorrectly conflating the §2254(e) presumption of
correctness of facts with the rule that the habeas court
reviews the opinion of the last state court to decide the
merits of a particular claim. See, e.g., Bolton v.
Akpore, 730 F.3d 685, 687 (7th Cir. 2013), in which the
Seventh Circuit looked to the factual findings set forth by
the state courts both on direct appeal and in postconviction
following description of the basic facts of the case are
taken from the Supreme Court of Illinois' decision
affirming petitioner's conviction but vacating his death
sentence on the initial direct appeal, People v.
Williams, 737 N.E.2d 230 (I11. 2000). A copy of the
opinion is attached to Doc. 33 at Ex. 1, p. I.
Shortly before 1 a.m. on November 3, 1994, Sharon Bushong was
shot to death during a robbery of the Convenient Food Mart at
9618 West Main Street in Belleville, Illinois. At the time of
her death, Bushong was working in the convenience store as
the sole clerk. The principal pieces of physical evidence
recovered from the crime scene were a surveillance videotape
that had been recorded by the store's security cameras,
and a spent cartridge case that had been fired from a
.380-caliber pistol. Several fingerprints were collected from
the convenience store, but none matched defendant's. In
addition, a .380-caliber bullet was recovered from
Bushong's body during her autopsy.
The surveillance videotape was played for the jury at trial
and is part of the record on appeal.....The videotape is
recorded in black and white and has no sound. . . .
The surveillance videotape shows two African-American males
entering the convenience store .... One of the men is wearing
shorts and a short-sleeve, dark-colored shirt with piping or
thin stripes around the collar, shoulders, sleeves and
bottom. He is wearing only one, ankle-high sock. He is also
wearing some type of light-colored garment, possibly boxer
shorts, over his head. The second man is wearing a baseball
cap, and is covering his face with his hands and shirt.
Neither man's face is visible at any time.
The individual with the garment over his head can be seen on
the videotape taking Bushong behind the store counter and
then standing to Bushong's right as she opens the cash
register drawer. After Bushong opens the drawer, the man
raises his left hand and shoots Bushong in the head. Bushong
immediately falls to the ground. The man then shifts the gun
to his right hand and removes the money from the cash
register drawer with his left hand. During this time, the
second man, who is on the public side of the store counter,
can be seen leaning over and reaching into a display rack
filled with potato chips. After the shooter removes the money
from the cash register, the two men leave the store.
Doc. 33, Ex. 1, p. 7.
forensic photographic examiner testified that his analysis
indicated that the shooter on the videotape was six feet, one
inch to six feet, two inches tall. Evidence established that
Williams was six feet, two inches tall and that he was
left-handed. Doc. 33, Ex. 1, p. 7.
was arrested on February 15, 1995, for a crime other than the
murder of Sharon Bushong. At the time of his arrest, he had a
.380-caliber pistol in his jacket. An Illinois State Police
forensic firearms examiner testified that the cartridge case
found in the convenience store and the bullet recovered from
the victim's body were fired from the pistol taken from
Williams. Doc. 33, Ex. 1, p. 7.
Michael Cook testified that he had seen Williams wearing the
same shirt as the shooter in the video and wearing only one
sock. Cook and two other witnesses testified that they had
seen Williams with a .380-caliber pistol that resembled the
one taken from Williams during the summer and winter of 1994
and in January 1995. Doc. 33, Ex. 1, p. 8.
Fred Jones, a friend of Williams, testified that, on November
3 or November 4, 1994, Williams told him that Williams
"and a couple more boys went up in Belleville to rob the
convenience store and they shot the lady." Jones also
said that Williams was wearing the same shirt as worn by the
shooter in the video when he made that statement. Doc. 33,
Ex. 1, p. 8.
cousin, Andrew Towns, testified that Williams told him that
Williams "and some more people robbed a liquor store or
convenience store. And while they were running out the store,
[defendant] yelled, 'Don't forget the chips, ' to
another person." Towns also testified that Williams said
"he shot the bitch" who worked at the convenience
store. Doc. 33, Ex. 1, p. 9.
facts related to the statement of Gerald Simpson will be
described later in this Memorandum and Order.
State Court Proceedings
initial direct appeal to the Supreme Court, Williams argued,
as is relevant here, that the trial court erred in excluding
the statement of Gerald Simpson in which Simpson said that he
was the second man in the video and that the shooter was a
man named Fred. Petitioner's Brief, Doc. 33, Ex. 1, pp.
31-39. Petitioner's motion for rehearing again raised the
exclusion of Gerald Simpson's statement. Doc. 33, Ex. 2,
pp. 39-42. The Supreme Court denied rehearing.
petitioner was resentenced to life imprisonment, he appealed,
raising the following relevant points:
1. The State failed to prove that petitioner was eligible for
an extended-term sentence because it failed to prove beyond a
reasonable doubt that "actually" killed Sharon
2. The judge at petitioner's resentencing was biased
against him and should have been replaced.
3. Petitioner's life sentence violates equal protection.
Petitioner's Brief, Doc. 33, Ex. 2, pp. 47-56.
Illinois Appellate Court affirmed petitioner's conviction
and sentence. Doc. 33, Ex. 3, p. 117. Petitioner filed a PLA,
raising the three points described above. Doc. 33, Ex. 4, p.
2. Leave to appeal was denied. Doc. 33, Ex. 4, p. 41.
then filed a postconviction petition. He raised the following
relevant arguments in his counseled brief on appeal from the
dismissal of the petition:
1. The petition stated the gist of a constitutional claim of
ineffective assistance of trial and appellate counsel in
failing to argue that the trial court should have conducted a
second hearing on his motion to quash arrest and suppress
evidence because new, important evidence was discovered at
trial that had not been presented in the original proceedings
on the motion.
Petitioner's Brief, Doc. 33, Ex. 6, pp. 23-24.
Appellate Court affirmed the dismissal of the postconviction
petition. Doc. 33, Ex. 6, p. 109. Through counsel, petitioner
filed a PLA raising two points regarding the Appellate
Court's application of the Illinois postconviction
statue. Neither point asserted the ...