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Pinkley v. Butler

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

December 5, 2016

KEITH PINKLEY, Petitioner,
v.
KIM BUTLER, Warden, Menard Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          Virginia M. Kendall, United States District Court Judge Northern District of Illinois

         Petitioner Keith Pinkley is incarcerated at the Menard Correctional Center in Menard, Illinois, in Warden Kim Butler's custody. [1] Pinkley is serving an eighty-year sentence for first degree murder, attempted first degree murder, and aggravated discharge of a firearm after a jury convicted him of firing a gun into a bus in an attempt to kill Derrick White that instead hit Walter Stephenson, killing him. (Dkt. 27-1, Exhibit B, at 31-32 ¶ 17; Dkt. 27-1, Exhibit C, at 53-54.) Pinkley petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that Constitutional violations occurred during his trial and appeal, and because he alleges that he is innocent. Pinkley has either procedurally defaulted his claims or they rely on independent and adequate state grounds so his habeas petition is dismissed.

         PROCEDURAL HISTORY

         A jury convicted Pinkley in 2008 of the first degree murder of Walter Stephenson, the attempted first degree murder of Derrick White, and aggravated discharge of a firearm. (Dkt. 27-1, Exhibit A, at 1.) Pinkley and White's families had been feuding throughout the day, and when White boarded a bus to leave the area, Pinkley sought him out and fired his gun into the bus, killing Stephenson. Pinkley appealed his conviction to the Illinois Appellate Court for the First District, arguing that he was denied a fair trial because: (1) the trial court denied him an impartial jury in violation of Illinois Supreme Court Rule 431(b) and People v. Zehr, 469 N.E.2d 1061 (Ill. 1984); (2) the prosecution repeatedly showed codefendant Freddie Guise's videotaped statement in an improper use of hearsay testimony; (3) the prosecution impeached Guise with a non-testifying doctor's report, allegedly in violation of Illinois law and the Confrontation Clause; (4) the trial court admitted Laurice Reynolds's grand jury testimony; and (5) the trial court improperly excluded Reynolds's prior consistent statement. (Id. at 10-22.) On November 3, 2010, the Illinois Appellate Court affirmed Pinkley's conviction. (Id. at 1-2.) Pinkley filed a petition for leave to appeal (“PLA”) in the Illinois Supreme Court. (Dkt. 27-2, Exhibit H, at 74.) In his PLA, Pinkley sought reversal only on the basis that the prosecutor's repeated use of Guise's videotape and the use of Reynolds's grand jury testimony denied him a fair trial. (Id. at 88.) The Illinois Supreme Court denied Pinkley's PLA on January 26, 2011 (Id. at 118.)

         Pinkley then filed a pro se post-conviction petition pursuant to 725 ILCS 5/122 on August 15, 2011. (Dkt. 27-12, Exhibit W, at 38, 43-68.) Pinkley asserted a violation of his right to a fair trial, alleging his inability to confront one of the witnesses; the state's alleged use of false statements and unfair burden shifting in closing statements; and insufficient evidence to show guilt beyond a reasonable doubt. (Id.) He also argued ineffective assistance of trial counsel on the grounds that trial counsel failed to: investigate and develop his claims; challenge the prosecution's suppression of exculpatory evidence; ensure the ability to confront and examine Derrick White; object to the Prosecutor's incorrect reference to the victim's last name as “Stevenson, ” as opposed to “Stephenson”; challenge the state's failure to prove guilt beyond a reasonable doubt; and pursue additional witnesses. (Dkt. 27-12, Exhibit W, at 62-63.) The Circuit Court dismissed his post-conviction attack as “frivolous” and “patently without merit” on November 18, 2011. Pinkley timely filed a notice of appeal on December 20, 2011. (Dkt. 27-1, Exhibit B, at 32, ¶ 19.) On February 11, 2013, Pinkley appealed the Circuit Court's decision with counsel, but on new grounds: that trial counsel provided ineffective assistance by failing to impeach witnesses Vadalia and Shameka Peppers with inconsistent statements that they gave to the police regarding Pinkley's clothing. (Dkt. 27-3, Exhibit I, at 5; Dkt. 27-1, Exhibit B, at 25-26, ¶¶ 1-2.) The Illinois Appellate Court for the First District affirmed the Circuit Court's denial of post-conviction relief on March 3, 2014, finding that Pinkley did not present “an arguable basis” for establishing ineffective assistance of counsel, nor facts to support his argument that counsel's representation prejudiced Pinkley at trial. (Dkt. 27-1, Exhibit B, at 38-40.) Pinkley filed a pro se PLA with the Illinois Supreme Court on March 14, 2014, again arguing ineffective assistance of trial counsel for failure to impeach these two witnesses. (See Dkt. 27-3, Exhibit I, at 5; Dkt. 27-3, Exhibit L, at 129, 154-160.) He further claimed that the counsel who assisted Pinkley with the appeal of his post-conviction petition provided ineffective assistance by failing to amend the appeal with several additional ineffective assistance of counsel claims that Pinkley wished to argue against his trial and direct appel counsel. (See id.) On May 28, 2014, the Illinois Supreme Court denied Pinkley's post-conviction PLA. (Dkt. 27-3, Exhibit L, at 164.)

         The Court received Pinkley's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 11, 2014. [1] In his federal petition, consistent with his direct appeal to the Illinois Appellate Court for the First District, Pinkley claims that he was denied: (1) his Fifth, Sixth, Eighth, and Fourteenth Amendment rights where the trial court failed to question jurors on the Zehr principles, as well as his right to a fair trial due to the state's (2) improper use of hearsay evidence, namely the prosecution's repeated use of codefendant Freddie Guise's videotaped statement and a report by a non-testifying doctor to impeach Guise and (3) improper use of prior statements made in grand jury testimony by Laurice Reynolds, along with the failure to admit Reynolds's complaint of police abuse as a prior consistent statement. [Id. at 9-14.]

         Moreover, as in his pro se post-conviction petition, Pinkley claims that his right to a fair trial was denied because: (4) the jury was biased by remarks improperly made by the Prosecutor during closing statements about the Defendant's witnesses lying; and (5) the jury was not properly advised on the burden of proof during the Prosecutor's closing statements. [Id. at 13, 15-17.] In his federal petition, Pinkley initiates claims to a violation of his Sixth and Fourteenth Amendment rights due to: (6) the trial judge's partiality based on his earlier work as a prosecutor. Further consistent with his pro se post-conviction petition, Pinkley raises claims to (7) his actual innocence, arguing a lack of witnesses who could identify him as the guilty party and alleging the ability to produce an affidavit from a witness who can prove Pinkley's innocence. Additionally, Pinkley argues ineffective assistance of counsel regarding both (8) his trial counsel, for failure to raise Fourth Amendment search and seizure issues; to object to the prosecutor's closing arguments; to raise issues in a post-trial motion; to suppress witness testimony; and to interview key witnesses, and (9) his counsel on direct appeal, for failure to raise all meritorious claims as set forth in Claims 4-8. [Id. at 18-28.]

         On August 11, 2014, Pinkley moved this Court to stay habeas proceedings so that he could exhaust his claims through a successive post-conviction petition in state court. (Dkt. 3.) This Court stayed the case on September 29, 2014, pending Pinkley's anticipated post-conviction proceedings. (Dkt. 6.) On December 5, 2014, Pinkley asked for an extension of time to proceed with his successive post-conviction petition in state court. (Dkt. 8.) In a letter dated October 1, 2015, he “concede[d] that he has not yet exhausted state court remedies as to all claims raised in his habeas petition.” (Dkt. 13.) He asked for more time to obtain affidavits from one witness in order to proceed with his successive post-conviction petition. (Id.) On October 15, 2015, this Cout granted Pinkley's motion for extension of time and continued to stay the case. (Dkt. 14.)

         On March 14, 2016, Pinkley again moved to extend time to proceed with his successive post-conviction petition because he had yet to file it. (Dkt. 18.) He said that he had not yet filed his state petition because he could not get a hold of the witness whose affidavit would provide the evidence needed to substantiate his actual innocence claim. (Id.) Again, the Court granted Pinkley's motion to extend time and stayed his habeas claim on April 5, 2016. (Dkt. 22.) The Court ordered Pinkley to notify the Court by April 26, 2016, if he wished to proceed with his exhausted claims and also ordered the Defendant's response due by June 6, 2016, with Pinkley's reply due July 5, 2016. (Dkt. 21; Dkt. 22.)

         On May 2, 2016, Pinkley notified the Court that he wished to proceed with his claims, and moved for attorney representation. (Dkt. 23; Dkt. 24.) Finding neither that Pinkley's claims required an evidentiary hearing pursuant to 18 U.S.C. § 3006A(a)(2)(B), nor that the interest of justice required it, the Court denied Pinkley's request for attorney representation. (Dkt. 25.) Following this, Respondent Kimberly Butler, Warden at the Menard Correctional Center, filed an Answer on May 25, 2016. (Dkt. 26.) On July 1, 2016, Pinkley again moved to extend time. (Dkt. 29.) Having granted numerous extensions and given Pinkley over two years to file his successive post-conviction petition, the Court granted Pinkley a final extension of time to file a reply or decide how he wanted to proceed by August 13, 2016. (Dkt. 30.)

         On August 25, 2016, Pinkley notified the Court that he did not intend to respond to the State's Answer. (Dkt. 31.) In the more than two years since Pinkley filed his petition for habeas relief, he did not file a successive post-conviction petition in state court. (Dkt. 32.) The Court now considers Pinkley's petition for relief pursuant to 28 U.S.C. § 2254.

         DISCUSSION

         A. Claim 1 and Claims 4-9 of Pinkley's Habeas Petition Procedurally Default

         Before a federal court will consider claims by a federal habeas petitioner, he must exhaust his state remedies in order to give the State the chance to correct alleged violations of its prisoners' federal rights. See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); Cheeks v. Gaetz, 571 F.3d 680, 685 (7th Cir. 2009) (citations omitted). In particular, a habeas petitioner must fully and fairly present his federal claims through one full round of state court review before he files his federal habeas petition. See Mulero v. Thompson, 668 F.3d 529, 536 (7th Cir. 2012). A petitioner challenging his conviction in Illinois must have first “appealed to the Illinois Appellate Court and presented the claim in a [PLA] to the Illinois Supreme Court.” Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007). If a petitioner exhausts state court remedies but fails to properly assert his federal claims at each level of review, those claims are procedurally defaulted. Boerckel, 526 U.S. at 848; Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir. 2009). Any claim that could have been raised on direct appeal, but was not, is barred. People v. Blair, 831 N.E.2d 604, 614-15 (Ill. 2005). Similarly, any claim that was raised or could have been raised in a post-conviction petition cannot be raised in a successive post-conviction proceeding unless the petitioner asks leave of the court after demonstrating good cause for not initially asserting the claim and shows prejudice stemming from that failure. See 725 ILCS 5/122-1; People v. ...


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