United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
J. THARP, JR. UNITED STATES DISTRICT JUDGE.
the Court is Petitioner Tommy Clark's petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254(d). Clark,
who is a member of the Gangster Disciples street gang, is
currently serving a life sentence at the Menard Correctional
Center located in Menard, Illinois for the 1997 double murder
of Kevin Martin and Julio Meza. Respondent Jacqueline
Lashbrook is the Menard facility's warden. In his petition,
Clark identifies five grounds for relief. Some of his claims
are procedurally defaulted, however, and the remainder,
though not frivolous, fall short for the reasons that follow.
Accordingly, the petition is denied.
November 1997, petitioner Tommy Clark, Amos Chairs, and Traye
Booker were charged with strangling to death, and then
robbing, Kevin Martin and Julio Meza during the evening hours
of August 21, 1997. Chairs and Booker were tried together
while Clark was tried alone. In the joint trial of Chairs and
Booker, Chairs was ultimately convicted while Booker was
acquitted. In August 1999, a jury convicted Clark on all
counts and the trial court sentenced Clark to life in prison
without the possibility of parole.
murders occurred at a bar that Martin owned-known as
“Johnny's Club”-located at 71st and Western
in Chicago, Illinois. At trial, the prosecution's general
theory was that Chairs, Clark, and Butler, who were all
members of the Gangster Disciples street gang, agreed to meet
Martin and Meza at Johnny's Club and to pretend to be
interested in purchasing drugs when in fact they intended to
steal the drugs from Meza. Because they had no direct
evidence of who killed Martin and Meza, the prosecution
sought to prove that Meza and Martin were killed during the
course of this robbery and that Clark was responsible for the
murders under an accountability theory based on his
participation in the robbery. Although the prosecution was
unable to provide any physical evidence linking Clark to the
murders, they were able to offer significant circumstantial
evidence implicating Clark in the robbery and murder.
evidence included the testimony of Stacy Lynn Jones, who at
the time of the murders was dating Chairs. She testified that
while dating Chairs she learned that he was a
“Governor” within the Gangster Disciples and that
Clark was his “Assistant Governor.” Resp't
Ex. D at 4, ECF 18-4. As leaders within the Gangster
Disciples organization, Chairs and Clark were responsible for
overseeing the gang's operations in a portion of
Chicago's south side. Id. According to Jones,
Clark “was with [Chairs] like glue” and was
Chairs' “right hand man.” Supplemental State
Court Record (“Supp. R.”), ECF 27-5 at 157-158;
Tr. A-156; -158]. After his arrest, Clark acknowledged that
he had obtained his rank of Assistant Governor in the gang
from Chairs. When asked what an assistant governor does,
Clark responded: “he helps the governor.” Supp.
R., ECF 27-1, at T-89.
trial, Jones recounted her interactions with Clark and Chairs
in the weeks leading up to the murders. She testified that in
August 1997, she was driving a rented Plymouth Breeze, which
Chairs also occasionally drove. Resp't Ex. D at 4. She
recalled that during the first week of August, Chairs was
driving her car to an unspecified location while she rode in
the front passenger seat and Clark was in the back seat.
During this car ride, Chairs proceeded to tell Clark that
Kevin Martin knew a “Mexican” who was in
possession of fifty pounds of marijuana. Id. Chairs
indicated to Clark that he wanted to steal the marijuana so
the Gangster Disciples could sell it for $800 a pound.
Id. Jones offered no testimony indicating that Clark
responded to Chairs' plan.
one week later, according to Jones, Chairs drove Clark and
her to a bar on 59th and San Francisco. Id. at 5.
Chairs then told Clark that he was going inside to meet
Martin, who was going to introduce Chairs to the Mexican who
supposedly had the marijuana. Id. When they arrived
at the bar, Chairs instructed Clark and Jones to wait in the
car. Id. Jones recalled that Chairs returned to the
car about fifteen minutes later and said that Martin was not
inside, but that the Mexican was and he had in his possession
of a large amount of cocaine. Id. Chairs and Clark
briefly discussed a plan to steal the cocaine from the
Mexican, but they ultimately decided not to do so at that
time because they did not have enough cash to create a
bankroll that was physically large enough to deceive the drug
supplier as to their bona fides (they discussed papering the
outside of the roll with twenties while the inside would
consist of singles). Id.
later, in the early afternoon of August 21, 1997, Chairs and
Jones picked up Clark and drove to 74th and Parnell.
Id. Chairs was driving, with Jones seated in the
front passenger seat, and Clark seated in the back. Chairs
then explained to Jones that he was going to drop her off and
that “we are going to take the bud [marijuana] from the
Mexican and Kevin.” Dkt 27-5 at 141; Tr. A-140. Chairs
then dropped off Jones and Clark climbed into the front seat
of Jones's car. At approximately 5:00 p.m. (according to
Jones), Chairs returned to pick her up and told her that the
“Mexican” had refused to give up the drugs, but
not to worry because “folks took care of it.”
Resp't Ex. D at 5. Chairs then instructed Jones
to get rid of her cellphone because it had been used to
contact Martin. Id. Clark was not present for this
days later, Chairs, while driving with Jones, stopped at the
corner of 79th and Vincennes and spoke to another Gangster
Disciple (who is not otherwise identified in the record). The
Gangster Disciple asked Chairs if he “had something to
do with what happened on 71st where they found [the victims]
duct-taped and in the garbage can.” Id. at
5-6. Chairs answered that he had nothing to do with anything
that happened on 71st Street. Assuming that Chairs was lying
to the other Gangster Disciple, Jones later told Chairs that
she was worried the police would be able to lift his
fingerprints off the duct tape. Chairs responded with
“it wasn't no duct tape and [the victims]
wasn't in no garbage can.” Id. at 6.
Chairs instructed her that if the police came and asked her
where he was the evening of August 21, she was to tell them
that he was with her. Id. Again, Clark was not
present for this conversation.
State then offered the testimony of Tanya Robinson, who
occasionally worked as a bartender at Johnny's Club and
had known Martin for eleven years. Id. at 7. She
testified that on August 21, 1997, at approximately 7:00
p.m., she was drinking in Johnny's Club and saw Clark,
Chairs, Booker, Martin, and another man she knew as Bud
Mayor, sitting at the bar talking among themselves.
Id. She finished the beer she was drinking and then
left the bar. Id. Bud Mayor also left at this time.
then went to her friend's house a few blocks away. She
testified at trial that she returned to the bar “like
maybe I say a few minutes. Maybe a couple of hours. I'm
not sure.”Supp. Record, ECF 27-1, T-12. When she
returned, the front door of the bar was locked. Id.
She knocked on the door and Martin let her inside. She
observed Clark, Chairs, and Booker get up from bar stools and
walk towards a bedroom in the back of the bar. Id.
Martin put money in the jukebox, turned the volume up, and
proceeded to follow the others into the back bedroom.
Id. Robinson listened to the music for a short time
before going to use the restroom, which was located directly
across the hall from the room the group had just entered.
Id. As she left the restroom, Robinson heard Chairs
say, “Where's the stuff at, where's the shit
at?” A voice with a “Mexican accent” she
did not recognize then said, “please don't do this,
please don't do this.” Id. at 7-8. She
testified that another unknown voice then said, “He
knows where it's at. He knows where it's at.”
Id. at 8. Robinson indicated that she did not
believe this voice belonged to Chairs, Booker, or Martin and
that it lacked the distinct accent that the previous
“Mexican” voice had. Id. Martin then
stated, “tell him what they want to know, tell them
what they want to hear.” Id.
proceeded back towards the main part of the bar and sat down
to finish her beer. Id. A short time later she
turned to see Booker exiting the bedroom and approaching her,
while she simultaneously heard someone leave through the
backdoor. Id. Booker placed one hand on her shoulder
and with the other hand gave her a ring and told her
“if this ring get [sic] back to the police, we'll
know you told. And if you tell them anything you heard
tonight . . . I'll kill you.” Id.
left and Robinson continued to sit at the bar until the music
ended. Id. She walked towards the back and called
Martin's name but heard no response. Id. She
then looked into the back bedroom and saw Martin and Meza
lying on the floor. Id. Suspecting they were dead,
she ran home. Id. Robinson admitted that she did not
know how many people were in the back bedroom, but maintained
that she was sure that she saw Clark, Chairs, Booker, and
Martin enter the room. Id. On cross examination,
Robinson also admitted that she had used heroin a few times
that month and was given money to relocate as a result of her
cooperation with authorities. Id. at 9. Robinson
also testified that she had previously had sex with both
Chairs and Booker, a fact she acknowledged she had not told
police when they questioned her about the events at the bar
on the night of the murders. Id.
Police Detective Edward Winstead testified that he responded
to a call concerning the discovery of the murders at the bar
the following morning, at approximately 11:15 a.m.
Id. at 2. He entered the tavern through the main
door and saw no evidence of a forcible entry. He then
proceeded towards the back of the bar through a swinging door
that opened into a six-foot hallway. Id. At the end
of the hallway was the rear door to the tavern. To the left
of the hallway (as one faced the rear) were a restroom and a
janitor's closet, and on the right side was a door that
opened into a narrow kitchen. Inside the kitchen, Winstead
found the entry to a bedroom where he found the bodies of
Martin and Meza.
testified that Martin was lying face down on the bed, hogtied
with a blue electrical cord and with a gag in his mouth.
Id. at 2-3. He inspected the body and saw that
Martin had a deep ligature mark across his neck that was
consistent with strangulation. Id. at 3. Martin did
not have his wallet or anything of value on his person. He
found Meza on the floor a few feet from the doorway; Meza was
also gagged and bound with blue electrical cord and a piece
of light-blue cloth. Meza's pockets had been turned
testified that he proceeded to interview the two individuals
who initially found Martin and Meza. Id. They
indicated that Traye Booker was at the scene when the bodies
were discovered. Id. Authorities then found Booker,
who was still in the vicinity of the bar, and discovered he
was wearing Martin's jewelry. Id.
also interviewed Robinson that day, but she did not disclose
what she had witnessed at the bar the night before.
Id. Instead, she told police that Martin had passed
out on a pool table and that she had helped him up and then
proceeded to have sex with him. Id. at 9. On August
29, 1997, the authorities again questioned Robinson and she
reiterated her prior statement. She did not provide an
account consistent with her trial testimony until the morning
of August 30. At trial, Robinson indicated she had lied to
police because she thought that Booker would kill her if she
told the truth. Id. On September 1, 1997, Robinson
identified Chairs and Booker in a police lineup, and Clark in
a photo array, as the individuals she saw inside Johnny's
Club the night of August 21. Id. at 9.
was arrested soon thereafter. The felony review prosecutor,
Assistant State's Attorney Patrick Kelly, testified that
he met with Clark on October 2, 1997 (with a Detective
Sikarski, who did not testify) to see if he was willing to
cooperate with the investigation. Id. Clark
indicated that he understood his Miranda rights and initially
agreed to talk with Kelly. Id. Clark proceeded to
tell Kelly that he knew nothing about the murders of Martin
and Meza and that he had never even been to Johnny's
Club. Id. Kelly showed Clark a picture of Chairs and
a picture of Booker. Id. Clark indicated that he
knew both men, and admitted that all three of them were
members of the Gangster Disciples. Id. When Kelly
asked Clark where he was on August 21, 1997, Clark
immediately responded that he had been with his girlfriend,
Shawna. Id. at 10. Clark told Kelly that he went to
Shawna's house around 2:30 p.m. and remained there until
9:00 p.m. Id. Clark maintained that Chairs then
picked him up and the pair drove around for about thirty
Kelly informed Clark that he would be placed in a lineup,
prompting Clark to ask to speak with Kelly again. Clark then
told Kelly that when he and Chairs had left at 9:00 p.m. they
had in fact gone to 71st and Western. Id. Clark said
that when they got there, Booker was standing on the corner
wearing a gold watch. Id. Clark asked Booker where
he got it, and Booker responded, with a smirk,
“it's mine.” Id. at 10-11. Clark
then told Kelly that he had been to Johnny's Club three
times in the past and that he had been there the night
before the murders but not the night of the murders.
Id. Kelly then left Clark for a short period of
time. He returned and informed Clark that his girlfriend did
not support his alibi. Clark then became agitated and said
that “Shawn[a] is lying and everyone else is lying and
this is just a conspiracy.” Id. at 11.
State rested its case after Kelly's testimony.
Id. Clark's trial counsel then moved for a
directed verdict, which the trial court denied. Clark elected
not to take the stand, and the defense rested. Id.
defense counsel then presented his closing argument,
maintaining that the state failed to offer any evidence
physically connecting Clark to the murders or any evidence
that Clark agreed to facilitate the commission of the
Agrees to aid. Where's the agreement? He didn't say a
word. Where's the agreement? Or attempts to aid.
Where's the attempt? What was the attempt? What was the
attempt to aid in the commission of this crime, of the
murder, of this robbery? Where is it? Where's the
Supp. Record, ECF 27-1, at T-155. Clark's counsel pointed
out that none of the State's witnesses testified that
they observed Clark in the back room and that it was possible
he had left out the back door before the killings occurred:
There's a back door, and when she came in there, she
didn't see anybody else, any other person, other than the
people that, those four people that were there. So, she
didn't know who was in the back. Could be one person,
could have been two, could have been five. You just don't
know. We don't know where Tommy went, if you believe that
he was there. He went in the back. Do you have any evidence
as to where Tommy went? Did he go out the back door? Do we
know whether he withdrew, came back, went out? Do we know
id. at T-150-151. Clark's counsel also
highlighted the inconsistencies in Robinson's statements
rebuttal, the prosecutor offered the following argument:
He wants you to find the defendant not guilty because nobody
saw Tommy Clark go out around the back. Nobody saw Tommy
Clark around the back. Nobody saw Tommy Clark come back out.
Nobody saw Tommy Clark come back out. Nobody saw Tommy Clark
come and take the money from the cash register. No one saw
that. Well, when this defendant talked to the police, what
did he tell the police? He tells the police, I don't know
nothing about no murders. I don't know anything about
that. So then Assistant State's Attorney Kelly talks to
him a bit longer, and we come with up [sic] story with the
girlfriend. Well, that doesn't quite work, because we
talked to the girlfriend. Okay. Listen, Mr. Clark, you're
about to stand in a lineup.
[Clark's Counsel]: Your Honor, objection.
[The Court]: Overruled. Proceed.
[Prosecutor]: Thank you, your Honor. Facts. I want to talk to
you-you want to talk about facts? I didn't hear one fact
from this table over here regarding a
[Clark's Counsel]: Objection, your honor. I would have a
Resp't Ex. D at 19.
sidebar, Clark's trial counsel moved for a mistrial
arguing that the prosecutor's statements impermissibly
shifted the burden of proof onto the defendant. The
prosecutor told the judge that he was referring to the
statements Clark had made to the police. The trial court
found that the prosecutor's statements did not shift the
burden of proof because he was simply pointing out
inconsistencies in Clark's statements to
police. The prosecutor then resumed his argument
and continued to point out that Clark's story had changed
after he was informed that he was being placed in a lineup,
and that Clark had admitted that he had been in the bar, most
recently only the night before the murders. As the prosecutor
noted, however, the ASA questioning Clark had not told him
what night the murders were committed.
response to Clark's argument that the state offered no
evidence that Clark agreed to help Chairs with the robbery
and the murders, the prosecution's response included the
[Prosecutor]: In this case, the rank was held by governor,
[Chairs]. His assistant governor was [Clark]. He
doesn't-the Gangster Disciple guys, like these two, they
don't sit around in front of Stacy and lay out the whole
plans for ‘em. They are not stupid. It doesn't take
that. It takes a nod, a wink, jumping in the front seat, to
know that you are going along with the plan. That's
reality. That's how the Gangster Disciples operate.
Id. at 21. Clark's defense counsel objected to
the above argument but was overruled by the trial court.
Id. The court then instructed the jury on the law,
and the jury began its deliberations. It found Clark guilty
on both first degree murder charges and the robbery count.
judgment was entered against him, Clark filed a timely direct
appeal arguing that the State had failed to prove his guilt
beyond a reasonable doubt. ECF No. 18-4, Ex. D, 1. Clark
maintained that the State offered no evidence indicating he
had the intent to promote the robbery or murders and that
there was no evidence indicating that he was present at the
scene when the murders were committed. Id. Clark
also argued that he was denied his right to a fair trial,
maintaining that it was prosecutorial misconduct for the
prosecutor to comment on Clark's failure to testify, and
that the prosecutor's statements about how Gangster
Disciples “operate” amounted to impermissible
“prosecutorial testimony.” Id.
majority of the Illinois Appellate Court panel presiding over
Clark's direct appeal rejected Clark's arguments.
Id. at 22. With respect to Clark's sufficiency
of the evidence claim, the panel's majority concluded
that “the totality of the evidence was sufficient for
the jury to find defendant guilty beyond a reasonable
doubt.” Id. at 15. The court noted that the
testimony of Chair's girlfriend, Stacy Jones, indicated
that Chairs had discussed his plan to steal the marijuana
from the “Mexican” with Clark. The testimony of
Tanya Robinson placed Clark at Johnny's Club the evening
of the murders, and she saw Clark go into the back room along
with Martin, Chairs, and Booker. ASA Kelly testified that
Clark had altered his story after he indicated that Clark was
going to be placed in a line up. The court reasoned that the
testimony of these three witnesses, taken together as a
whole, provided sufficient circumstantial evidence for the
jury to find Clark guilty beyond a reasonable doubt.
Clark's argument that the prosecutor's remarks denied
him a fair trial, the court noted that a prosecutor is given
“considerable leeway in making closing and rebuttal
arguments and is allowed to argue the evidence and reasonable
inferences drawn from that evidence.” Id. at
19 (citing People v. Aleman, 313 Ill.App.3d 51, 66
(2000)). In finding permissible the prosecutor's remark
that he “didn't hear one fact from this table over
here regarding a statement, ” the majority concluded
that the prosecutor was simply highlighting the
inconsistencies in Clark's alibi statements after his
arrest, rather than an attempt to draw attention to his
failure to testify. Id. at 20.
respect to the prosecutor's statement that “[i]t
takes a nod, a wink, jumping in the front seat, to know that
you are going along with the plan. That's reality.
That's how the Gangster Disciples operate, ” the
panel majority concluded, without making a finding as to the
propriety of the prosecutor's statements, that the
“statements by the prosecutor did not substantially
prejudice the defendant.” Id. at 21-22. The
dissent disagreed, maintaining that the trial court committed
reversible error by allowing the prosecutor to offer evidence
indicating how the Gangster Disciples operated. Id.
at 24. The dissenting judge also opined that it was
impermissible for the prosecutor to indirectly comment on
Clark's failure to testify. Id. Clark's
Petition for Leave to Appeal to the Illinois Supreme Court
(“PLA”) was denied without opinion on January 28,
then filed a pro se post-conviction petition, which alleged
the trial court and trial counsel violated his right to an
unbiased jury by failing to question potential jurors about
possible bias against street gangs. ECF No. 18-10, Ex. J, 5.
The state court subsequently appointed post-conviction
counsel for Clark, who submitted a supplemental petition
adding, among other claims, that Clark's trial counsel
was ineffective for failing to urge Clark to accept the
State's plea deal offer of a twenty-year sentence with
time served. At an evidentiary hearing, Mercedes
Luque-Rosales, who had been assigned to the Cook County
Felony Trial Division during Clark's trial, testified
that on the day of jury selection, the lead prosecutor waived
over Clark's trial counsel and told him, “See if
your client will take twenty.” Id. at 7. She
said that Clark's counsel immediately perked up and went
back to the lockup area where Clark was being held.
Clark's counsel returned a short time later and
communicated that Clark had rejected the offer, indicating
that Clark thought “if you are giving an offer like
that on either game day or the day of the trial, he believes
there is something wrong with your case.” Id.
After the evidentiary hearing concluded, the Circuit Court
declined to grant Clark post-conviction relief.
appeal, Clark argued that the trial court and trial counsel
violated his right to an impartial jury by failing to ensure
that seated jurors were not biased against Clark simply
because he was a member of the Gangster Disciples street
gang. Clark also argued that his trial counsel was
constitutionally ineffective for failing to request an
accomplice-witness instruction for Jones' testimony. The
appellate court rejected these claims on the grounds of
waiver because Clark had failed to raise them on direct
appeal. Id. at 9.
also maintained that his appellate counsel was
constitutionally defective for failing to argue that the
trial court improperly admitted the “hearsay”
testimony of Chairs and ASA Kelly and that his trial counsel
was constitutionally defective for failing to encourage him
to take the State's plea deal. The court rejected these
arguments on their merits, holding that Clark's counsel
did not render constitutionally inadequate representation.
filed a Petition for Leave to Appeal his post-conviction
proceedings with the Illinois Supreme Court. That petition
was summarily denied on November 27, 2013. Clark filed this