United States District Court, N.D. Illinois, Western Division
Keith D. Barmore R-00683, Petitioner,
Thomas Spiller, Warden of Pinckneyville Correctional Center, Respondent.
G. REINHARD UNITED STATES DISTRICT JUDGE.
following reasons, the court denies petitioner's 28
U.S.C. § 2254 petition . The court declines to issue
a certificate of appealability. This matter is terminated.
January 10, 2000, petitioner Keith D. Barmore was convicted
of Illinois first degree murder for the murder of his
three-year-old stepson. [18-8] at 164. On October 25, 2000,
petitioner was sentenced to 60 years imprisonment.
See [18-12] at 75. On May 11, 2015, petitioner filed
a 28 U.S.C. § 2254 petition in this court, challenging
his Illinois sentence on eleven grounds. Respondent has filed
a response  and petitioner has filed a reply , as
well as additional affidavits and supplements to his reply
and the record. See ; ; ; . The
court accepts all of petitioner's filings, including his
supplemental responses and additions to the record. This
matter is now ripe for the court's review.
noted, petitioner has raised eleven grounds challenging his
conviction with regard to all stages of his prosecution,
ranging from claims of false testimony before the Grand Jury
to ineffective assistance of post-trial counsel. Plaintiff
presented these claims before state courts both on direct
appeal and in a state postconviction petition. Both of these
avenues resulted in Illinois Appellate Court decisions
denying petitioner relief; the Illinois Supreme Court denied
all relevant petitions for leave to appeal. As such, pursuant
to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), the decisions under review are
“the last state court that substantively adjudicated
[petitioner's] claim[s], ” namely the Illinois
Appellate Court's rulings in petitioner's direct
appeal [18-13] and his postconviction petition appeal
[18-27]. See Alston v. Smith, 840 F.3d 363, 367 (7th
Under AEDPA, to merit habeas relief, the petitioner:
must demonstrate that the state court proceedings “(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. §
2254(d)(1) and (2). Under § 2254(d)(1), a state-court
decision is contrary to Supreme Court precedent if it is
inconsistent with the Supreme Court's treatment of a
materially identical set of facts, or if the state court
applied a legal standard that is inconsistent with the rule
set forth in the relevant Supreme Court precedent. And a
state-court decision constitutes an unreasonable application
of Supreme Court precedent within the meaning of section
2254(d)(1) when, although it identifies the correct legal
rule, it applies that rule to the facts in a way that is
objectively unreasonable. Under § 2254(d)(2), a state
court's decision involves an unreasonable determination
of the facts if it “rests upon fact-finding that
ignores the clear and convincing weight of the
evidence.” Corcoran v. Neal, 783 F.3d 676, 683
(7th Cir. 2015), cert. denied, 136 S.Ct. 1493 (2016); see
also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (a
federal court can, guided by AEDPA, conclude that a state
court's decision was unreasonable or that the factual
premise was incorrect by clear and convincing evidence).
Dassey v. Dittmann, 2017- F.3d ----2017 WL 2683893,
at *10 (7th Cir. June 22, 2017) (internal citations omitted).
the large number of grounds petitioner has raised to
challenge his sentence, the court will analyze each in turn
and discuss the relevant factual and procedural history in
the respective sections.The parties are assumed to be familiar
with the general facts of petitioner's prosecution,
trial, and post-trial procedural history. For the following
reasons, each of petitioner's grounds for relief are
without merit and the court must deny his § 2254
claims that prosecutors violated Batson by striking
two prospective African-American jurors, Margie Rogers and
Sheila Council, based on their race. The Illinois Appellate
Court rejected this argument on direct appeal, finding that
petitioner had not rebutted the prosecutors' race-neutral
justification for striking the two prospective jurors by
clear and convincing evidence. See [18-13] at 15-18.
United States Supreme Court has recently reiterated the
proper standard for courts in evaluating Batson
First, a defendant must make a prima facie showing that a
peremptory challenge has been exercised on the basis of race;
second, if that showing has been made, the prosecution must
offer a race-neutral basis for striking the juror in
question; and third, in light of the parties'
submissions, the trial court must determine whether the
defendant has shown purposeful discrimination.
Foster v. Chatman, 136 S.Ct. 1737, 1747 (2016)
(internal quotations omitted). The Seventh Circuit has held
that “[i]n the third step of the Batson
analysis, the critical question is the persuasiveness of the
race-neutral justification for the peremptory strike, which
comes down to credibility.” Morgan v. City of
Chicago, 822 F.3d 317, 327 (7th Cir. 2016).
with regard to the Margie Rogers, the Illinois Appellate
Court noted that the prosecution had argued to the trial
court that Ms. Rogers had been the only prospective juror
that had been a counselor for criminal offenders. Moreover,
she had observed two murder trials out of personal interest
where fathers had been accused of murdering their young
children, and in one of those trials the defendant had been
acquitted. As such, the prosecution argued that it believed
she may have been biased in favor of criminal defendants and
unduly inclined to acquit. The court found that the
underlying facts were credible and the prosecution's
race-neutral basis for striking Ms. Rogers was sufficiently
persuasive to overcome petitioner's accusation of
purposeful discrimination. See id.
regard to Sheila Council, the Illinois Appellate Court noted
that the prosecution had argued to the trial court that Ms.
Council had been sleeping during voir dire, a factual finding
that the trial court had credited due to the
prosecution's credibility; the Illinois Appellate Court
accepted the trial court's credibility finding. Moreover,
the prosecution argued that questioning revealed that Ms.
Council had shown a disregard for her son's ongoing legal
issues, referring to him as a “bum.” As such, the
prosecution argued that it believed that this disregard, in
combination with Ms. Council's failure to remain
conscious during voir dire, suggested that she might not be
committed to resolving the issues in the case. The Illinois
Appellate Court credited the underlying facts and found that
they adequately supported the prosecution's reasoning; as
such, the prosecution's race-neutral basis for striking
Ms. Council was sufficiently persuasive to overcome
petitioner's accusation of purposeful discrimination.
court has reviewed the record and cannot find that the
Illinois Appellate Court's findings were an unreasonable
application of Federal law or based on an unreasonable
determination of the facts. The court carefully reviewed the
factual record and accorded the appropriate deference to the
trial court's relevant factual and credibility findings.
Moreover, with regard to Ms. Rogers, the Seventh Circuit has
held that “[o]ur court has approved the exclusion of
veniremen because of their professions.” See United
States v. Griffin, 194 F.3d 808, 826 (7th Cir. 1999)
(collecting cases in which courts had found that striking
social workers was a race-neutral justification). With regard
to Ms. Council, the Seventh Circuit has found that
“inattentiveness is a legitimate reason for striking a
potential juror.” United States v. Jones, 224
F.3d 621, 623-24 (7th Cir. 2000) (noting that the prosecution
had accused one of the prospective jurors as sleeping and the
trial court, while not observing the sleeping,
“accepted the government's explanation regarding
[the prospective juror] and we give that finding great
deference”). As such, the court does not find that
petitioner's Batson claim merits relief under 28
U.S.C. § 2254.
Sufficiency of the Evidence Claim.
claims that the evidence at trial was insufficient to convict
him of first degree murder. The Illinois Appellate Court
rejected this argument on direct appeal, finding that the
evidence was ...