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Bannister v. Butler

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

June 5, 2017

JOSEPH BANNISTER, Petitioner,
v.
KIM BUTLER, Respondent.

          MEMORANDUM OPINION AND ORDER

          SHARON JOHNSON COLEMAN United States District Court Judge

         Petitioner, Joseph Bannister, petitions this Court for a writ of habeas corpus based on alleged deprivations of his constitutional rights at multiple points during the course of his trial and subsequent death-sentencing hearing. For the reasons set forth herein, Bannister's petition for a writ of habeas corpus [1] is denied.

         Background

          Because Bannister does not present clear and convincing evidence challenging the facts set forth in the Illinois Supreme Court's opinion, those facts are presumed to be correct for the purpose of habeas review and are adopted as set forth below. See 28 U.S.C. § 2254(e)(1); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010).

         Bannister was charged in a multicount indictment with, as is relevant here, the first degree murder of Henrietta Banks, the attempted murder of Sharon Banks, and home invasion. Bannister waived a jury for the guilt-innocence phase of the proceedings, and the court accordingly conducted a bench trial. The evidence at trial showed as follows.

         Bannister and Sharon Banks had previously lived together and shared a daughter. Sharon Banks, Bannister's daughter, and Sharon's other children shared an apartment with Sharon's sister Henrietta, Sharon and Henrietta's mother, and Henrietta's children.

         About a month before the events in question, Sharon had obtained an emergency order of protection against Bannister after he crashed his car into hers and threatened to kill her. In the intervening months Bannister had further threatened Sharon with bodily harm.

         At about noon on the day in question Bannister, dressed in black and armed with a handgun, broke into Sharon's apartment through a side door. He first encountered Sharon, who he shot in the shoulder. He then approached Henrietta, who was sitting on a couch, and shot her three times, killing her. Bannister then returned to Sharon, who he shot again in the chest. He then turned his gun on Sharon's mother, but stopped and fled when his daughter intervened.

         Bannister was arrested by the Chicago Police Department five months later. Following his arrest, Bannister gave a statement admitting to shooting Sharon, but claiming that he let himself into the apartment with a key and that Henrietta was unharmed when he left the apartment.

         Prior to trial, Bannister repeatedly asserted to his attorney that Sharon had visited him in jail and had told him that she would testify that he had not committed the crimes that he was charged with. These claims were not supported by the jail's visitation logs, but Bannister persisted in his belief that Sharon would exonerate him at trial and accordingly refused to discuss other legal strategies with counsel. Based on Banister's unsubstantiated insistence that Sharon was visiting him and would assist in his defense, defense counsel retained a clinical psychologist and forensic psychiatrist to assess whether Bannister was fit to stand trial. After examining Bannister, both doctors agreed that he suffered from a delusional order, and the forensic psychologist opined that Bannister was unfit to stand trial. When this information was presented to the court, the court ordered that a court psychologist and forensic psychiatrist evaluate Bannister's fitness to stand trial.

         The court psychologist and forensic psychiatrist both found that Bannister was fit to stand trial and suggested that he was malingering.

         At the subsequent competency hearing, the state offered the testimony of the court's forensic psychiatrist, and the defense in turn offered the testimony of its own forensic psychiatrist. On cross-examination, the defense psychiatrist admitted that Bannister understood the nature of the charges, the role of courtroom personnel, and the nature of a jury trial, and clarified that Bannister's delusion was confined to his relationship with Sharon. After the hearing, the court found Bannister fit to stand trial and the case proceeded to a bench trial.

         At trial, Bannister did not testify or present any evidence in his own defense. At the close of trial, the court found Bannister guilty of Henrietta's murder, of the attempted murder of Sharon, and of home invasion. Following admonishments from the trial court and against counsel's advice, Bannister demanded that the death sentencing hearing be conducted before a jury. Bannister's lawyer filed a motion asking the court to hold a bench sentencing hearing notwithstanding Bannister's insistence on a jury, which the court denied. After receiving the evidence, the jury found beyond a reasonable doubt that Bannister was eligible for the death penalty and proceeded to the second stage of the death sentencing hearing. Sharon and a former gang member who Bannister had previously shot testified in aggravation. At the mitigation hearing Bannister's trial counsel presented testimony from Bannister's half-sister and half-brother about Bannister's good character and difficult upbringing. At the close of the hearing, the jury found that death was the appropriate sentence. The court therefore sentenced Bannister to death, with concurrent 45-year and 30-year prison terms on the attempted murder conviction and home invasion conviction, respectively. Bannister's death sentence was subsequently commuted to life in prison.

         Following his trial, Bannister appealed his conviction to the Illinois Supreme Court, which affirmed. People v. Bannister, 902 N.E.2d 571, 232 Ill.2d 52 (2008). He then filed a petition for a writ of certioriari, which was denied. Bannister v. Illinois, 558 U.S. 831, 130 S.Ct. 63, 175 L.Ed.2d 47 (2009). Bannister next filed a post-conviction petition, which the trial court dismissed. That decision was affirmed on appeal, and the supreme court declined to issue a petition for leave to appeal. Bannister subsequently filed the present petition before this Court.

         Legal Standard

         The Antiterrorism and Effective Death Penalty Act (AEDPA) provides for relief when, as a result of a state court decision, a criminal defendant is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The statute exists to ensure the fundamental fairness of states' criminal adjudications. Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Before a district court can address a habeas petition on its merits, a petitioner must have both exhausted his state remedies and avoided any fatal procedural defaults. See 28 U.S.C. § 2254(b). In Illinois, exhaustion requires that the petitioner present each claim in his habeas petition to the court of direct appeal and, if possible, to the Illinois Supreme Court in a petition for discretionary review. Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 844-845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)).

         In order to obtain relief under section 2254, it is not enough to demonstrate that a state court's decision was erroneous. Badelle v. Correll, 452 F.3d 648, 655 (7th Cir. 2006). Rather, a writ may only be granted if the state court, in adjudicating the claim on the merits, unreasonably applied clearly established federal law as determined by the Supreme Court of the United States or reached a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. § 2254(d). When reviewing a state court's decision for an unreasonable application of established federal law, this Court is limited to the record that was before that court when it adjudicated the claim. Cullen v. Pinholster, 563 U.S. 170, 183, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). In order to prevail in a challenge to the state court's factual findings, the petitioner must offer clear and convincing evidence that the state court's factual determination was wrong. Accordingly, to obtain a writ of habeas corpus, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement. Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

         Discussion

         Constitutionally Ineffective Assistance of Counsel at the Competency Hearing

          Bannister first contends that his trial counsel was constitutionally ineffective in failing to obtain and present certain evidence showing that Bannister was unfit to stand trial. In order to succeed on an ineffective assistance of counsel claim, a petitioner must ordinarily prove both that (1) his counsel's performance fell below “an objective standard of reasonableness” and (2) that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different”. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In reviewing counsel's performance, courts are “highly deferential” and “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The question is not whether counsel's conduct deviated from best practices or common custom, but rather whether it constituted incompetence under the prevailing professional norms in light of the facts of the particular case, as viewed at the time of counsel's conduct. Id. at 690, Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). When reviewing a state court's determination under Strickland in a habeas proceeding, the question before this Court is thus not whether counsel's actions were reasonable, but rather whether there is any reasonable argument that counsel's actions were objectively reasonable. Harrington, 562 U.S. at 105. Thus, in reviewing a state court judgment rejecting an ineffective assistance of counsel claim, this court employs a “doubly deferential” standard of review giving both the state court and the defense attorney the benefit of the doubt. Burt v. Titlow, 134 S.Ct. 10, 31, 187 L.E.2d 348 (2013).

         Based on the suspicion that Bannister might not be competent, trial counsel secured two experts, both of whom evaluated Bannister and diagnosed him with a delusional disorder. The defense experts, however, found no evidence of organic defects or hallucinations, and Bannister denied having suffered from hallucinations, severe head injuries, or loss of consciousness in the past. At the competency hearing, moreover, the defense expert conceded that Bannister could understand the nature of the proceedings against him and that his delusion was confined to his relationship with Sharon.

         During Bannister's post-conviction proceedings, postconviction counsel discovered that Bannister had been in a 1998 car accident and that a CT scan of his head following the accident showed that he had suffered from a lacunar infarct (a type of stroke) in the right caudate nucleus, an area of the brain linked to content-specific delusions. Bannister therefore claimed that his trial counsel was constitutionally ineffective in failing to gather readily available medical records of organic brain damage and Bannister's educational, employment, and juvenile records, as well as in failing to interview more of Bannister's siblings (in order to locate Bannister's medical records).

         The Illinois Appellate Court, in reviewing that claim, held that trial counsel's conduct was not unreasonable. The court explained that both experts who had examined Bannister had testified that he suffered from a delusional disorder (as opposed to an organic brain disorder like a lacunar infarct), and that there was nothing in their reports to suggest that further testing would be beneficial. This was especially so, the Court found, because Bannister had denied having any mental problems, hallucinations, or past severe head injuries, factors which might have suggested an organic brain disorder. In light of the information available to trial counsel, the appellate court concluded that it was not unreasonable for trial counsel to elect to present the forensic psychiatrist's testimony rather than further investigating the possibility of organic brain disorders.

         It is well established that an attorney's failure to investigate a defendant's mental condition, where there is evidence of psychiatric problems, may constitute constitutionally deficient performance. Brown v. Sternes, 304 F.3d 677, 694 (7th Cir. 2002) (citing Brewer v. Aiken, 935 F.2d 850, 857-58 (7th Cir. 1991)) (“We have held in the past that where a defense attorney has received information from a reliable source that his client has had a history of psychiatric problems, but failed to adequately investigate this history, counsel failed to provide effective assistance.”) (emphasis in original); see also Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 733 (10th Cir. 2016) (recognizing that an attorney's complete failure to investigate a defendant's mental health could demonstrate constitutionally deficient performance). Here, however, the record shows that counsel did conduct an investigation by retaining two medical experts to examine Bannister. Moreover, as the state court noted, the investigation that Bannister now contends should have been conducted was not supported by Bannister's own statements regarding his medical history or the testimony of the medical experts. This Court cannot say, looking at all of the facts before it, that it was entirely unreasonable for counsel to stop investigating Bannister's medical history after two qualified experts opined that Bannister suffered from a delusional disorder and was not competent. There is therefore a reasonable argument to be made that counsel's actions in investigating Bannister's mental health were objectively reasonable. Harrington, 562 U.S. at 105. Constitutionally Ineffective Assistance of Counsel at the Death Sentencing Hearing Bannister next contends that trial counsel was constitutionally ineffective for failing to investigate and present mitigating evidence of organic brain damage, Bannister's educational, employment, and juvenile incarceration records, and interviews with Bannister's family members at Bannister's death penalty sentencing hearing. Bannister first raised this argument in his post- conviction petition and, after the postconviction court denied that petition, in his post-conviction appeal.

         The Illinois Appellate Court, although it considered those same arguments with respect to the fitness hearing, declined to consider Bannister's claims with respect to his sentencing on the grounds that they were moot. That Court explained:

An issue on appeal is moot when it is abstract or presents no controversy. People v. Blaylock, 202 Ill.2d 319, 325 (2002). An issue can become moot if circumstances change during the pendency of an appeal that prevents the reviewing court from being able to render effectual relief. People v. Jackson, 199 Ill.2d 286 (2002). In this case, subsequent to the filing of the defendant's postconviction petition, the Governor commuted the defendant's death sentence to natural life imprisonment without the possibility of parole or mandatory supervised release. “Commutation removes the judicially imposed sentence and replaces it with a lesser, executively imposed sentence.” People v. Miller, 203 Ill.2d 433, 438 (2002). Thus, the commutation rendered this sentencing issue moot. People ex rel. Madigan v. Snyder, 208 Ill.2d 457, 480 (2004); see also People v. Oaks, 2012 ...

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