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Williams v. Hutchinson

United States District Court, S.D. Illinois

November 9, 2016

BOBBY O. WILLIAMS, Petitioner,
v.
JEFF HUTCHINSON, Respondent.

          MEMORANDUM AND ORDER

          DAVID R. HERNDON JUDGE.

         In 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.

         This 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.

         Grounds Asserted for Habeas Relief

         The 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 ineffectiveness.[1]
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 was biased.
E. Petitioner's life sentence violates equal protection.[2]

         Relevant Facts and Procedural History

         1. Facts

         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).

         In his 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 proceedings.

         The 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.[3]

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.

         An FBI 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.

         Williams 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.

         Witness 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.

         Witness 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.

         Defendant's 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.

         Additional facts related to the statement of Gerald Simpson will be described later in this Memorandum and Order.

         2. State Court Proceedings

         On his 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.

         After 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 Bushong.
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.

         The 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.

         Williams 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.

         The 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 ...


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