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Clark v. Lashbrook

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

February 21, 2017

TOMMY CLARK, K77216 Petitioner,
v.
JACQUELINE LASHBROOK, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN J. THARP, JR. UNITED STATES DISTRICT JUDGE.

         Before 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.[1] 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.

         FACTUAL BACKGROUND[2]

         In 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.

         The 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.

         This 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.

         During 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.

         Approximately 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.

         A week 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 conversation.

         A few 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.

         The 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. Id.

         Robinson 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.”[3]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.

         Robinson 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.

         Booker 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.

         Chicago 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.

         Winstead 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 inside out.

         Winstead 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.

         Police 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.

         Clark 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 minutes. Id.

         Later, 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.

         The 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.

         Clark's 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 robbery:

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 attempt?

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 this?

id. at T-150-151. Clark's counsel also highlighted the inconsistencies in Robinson's statements to police.

         In 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 statement.
[Clark's Counsel]: Objection, your honor. I would have a motion.

Resp't Ex. D at 19.

         At 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.[4] 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.

         In 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 following:

[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.

         PROCEDURAL HISTORY

         After 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.

         A 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.

         As to 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.

         With 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, 2004.

         Clark 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.

         On 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.

         Clark 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.

         Clark 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 ...


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