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Whitehead v. Harrington

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

October 19, 2017

CARL WHITEHEAD (M00110), Petitioner,
v.
RICK HARRINGTON, Warden Menard Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          John Robert Blakey United States District Judge.

         Petitioner Carl Whitehead brings a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his convictions entered in the Circuit Court of Cook County. After a 2008 jury trial, Petitioner was convicted of the first-degree murder of Ramiro Aguirre, home invasion, residential burglary, and attempted armed robbery. He was sentenced to a term of natural life. For the following reasons, the Court denies the Petition, and declines to issue a certificate of appealability.

         I. Background

         A. The Underlying Offense

         Norma Calderon was asleep in her home in Chicago, Illinois in the early morning of November 22, 2005. [21-17] at 24, 28. Calderon, who was pregnant, shared the home with her husband, Ramiro Aguirre. Id. at 24, 26. That morning, Aguirre was in the couple's bedroom while Calderon slept in the nursery the couple built in anticipation of their child. Id. at 28-29.

         Calderon awoke when she heard glass breaking and the home's security alarm beeping. Id. When she got up to investigate the sounds, she encountered a man who put a gun to her head and his hand over her mouth. Id. at 30. Shortly after, Aguirre emerged from the bedroom and, upon seeing his wife in danger, began to struggle with the intruder. Id. at 31. During the struggle, the gun fired into Aguirre's chest and he fell to the ground. Id. at 31-32. The intruder turned to Calderon and demanded that she tell him where she kept money in the house. Id. Calderon responded that she did not have any money in the house, and the man left. Id. at 32. Calderon called 911 and tended to her husband. Id. at 33. Aguirre died by the time emergency personnel arrived. Id.

         B. Petitioner's Trial

         1. Voir Dire

         During jury selection for the petitioner's criminal case, the Cook County Circuit Court conducted voir dire. [21-16] at 22. The court asked the jurors in groups of three if they understood that the defendant was presumed innocent, that the State must prove guilt beyond a reasonable doubt, and that the defendant had a right to remain silent and, should he not testify, his silence could not be held against him. Id. at 38. All jurors answered, “Yes.” Id.

         2. Marcus Griffin

         At trial, the State called Marcus Griffin, who was also charged with first-degree murder in Aguirre's death. [21-20] at 200-01. Griffin took a plea deal in exchange for identifying Petitioner as the murderer. Id. at 203-04. While testifying, however, Griffin denied taking part in the crime at Aguirre's home, meeting Petitioner there, and seeing Petitioner there with a gun. Id. at 207-09. Griffin also denied hearing gun shots at the home and seeing Petitioner leaving the residence. Id. at 213-14. Finally, Griffin denied that Petitioner threatened him and that he acted as a lookout while Petitioner robbed Aguirre's home. Id. at 214.

         After Griffin testified, the State played a videotaped interview that Chicago Police conducted with Griffin in May 2006. [21-21] at 11. During the interview, Griffin told detectives that, shortly before the murder, there was a fire in the garage behind Aguirre's home. [21-15] at 107, 110. Griffin said he was watching the fire department extinguish the fire when an acquaintance, Sedale Miller, told Griffin that Calderon told firefighters that she kept a large sum of money in the garage. Id. at 110-12. Griffin told detectives that Miller and Petitioner planned to rob the home. Id. at 112-13.

         During the interview, Griffin also reported that Miller later talked about Petitioner describing the murder. Id. at 127-28. Griffin further stated that he had sold drugs for Petitioner and had seen Petitioner beat up other people. Id. at 113- 14, 121. Griffin told detectives that an acquaintance told him that Petitioner was responsible for an earlier shooting on Parkside Avenue. Id. at 121-22.

         3. Tenisha Gibbs

         In addition to Griffin, the State called Tenisha Gibbs. [21-18] at 5. Gibbs lived across the street from Aguirre and had been in a relationship with Petitioner before the murder. Id. at 12-13. The State asked whether she became pregnant with Petitioner's child; Gibbs denied being pregnant. Id. The trial court sustained objections to the State's subsequent questions about whether Gibbs aborted the pregnancy and whether Petitioner paid for the abortion. Id. at 13-14. The State later revisited this issue and asked whether Gibbs remembered making statements regarding her pregnancy and abortion to the police. Id. at 19-21. Gibbs testified that her previous statements to police were untrue and coerced. Id. Petitioner's attorney did not object. Id.

         The prosecution elicited testimony about the abortion twice more without Petitioner's attorney objecting. First, the State called Detective James Gigler, who testified that Gibbs told him during a police interview that she became pregnant with Petitioner's child and that Petitioner paid for an abortion. [21-20] at 97-98. Second, the State called Assistant State's Attorney (ASA) Donna Norton, who read a statement she took from Gibbs in 2006. Id. at 36-37. In the statement, Gibbs said she held a gun for Petitioner in the summer of 2005, and that Petitioner impregnated her and then paid for her to have an abortion. Id. at 40-42.

         4. Parkside Shooting

         Detective Gigler testified that police recovered a shell casing from the scene of Aguirre's murder that was tested by forensic science personnel. Id. at 65-66. The casing matched one taken from the scene of a 2004 shooting on Parkside Avenue in Chicago, Illinois (the Parkside shooting). Id. at 66-68. The State called various witnesses to testify about the Parkside shooting; the first was Erwin Marrero. [21-17] at 94. Marrero identified Petitioner as the man whom Marrero got into a car accident with shortly before the Parkside shooting. Id. at 96. Marrero said that Petitioner sped away from the accident in a rage, but returned shortly after and shot at Marrero and Marrero's friend Eric Bowman, missing both men. Id. at 97-98. Marrero testified that Petitioner eventually shot Bowman in the hand. Id. at 100-02. On cross-examination, Marrero said he did not report his account of the shooting until police questioned him in 2006. Id. at 103-06.

         The State then called Bowman, who echoed much of Marrero's testimony, but denied knowing who shot him. Id. at 110-24. Bowman testified during cross-examination that he originally did not want to report the shooting and only cooperated with police after they questioned him in 2006 about the incident. Id. at 131. The State also called ASA Peter Garbis, who in 2006 took Bowman's statement about the Parkside shooting. [21-20] at 8. Garbis read the statement aloud. Id. at 14. In the statement, Bowman said that he knew the man who shot him by the man's face and learned days later that it was Petitioner. Id. at 14-19.

         5. Sleeping Juror

         At trial, a juror was heard snoring during a witness's testimony. [21-19] at 24. Petitioner's attorney then told the court that he intended to move for a mistrial. Id. at 51. The court responded that it would not grant the motion because it believed the juror was awake for the rest of the proceedings. Id. After the jury instruction conference, the prosecution wanted to move to remove the juror because they had seen him sleeping at other points in the trial. [21-21] at 82. Petitioner's attorney argued that the juror should remain because he was the only African- American juror and merely rested his eyes while listening. Id. at 83. The court then brought out the juror and asked him whether he was awake throughout the trial; the juror said he was. Id. at 84. The court let the juror remain. Id.

         6. Closing Arguments

         During closing arguments, the State described Calderon and Aguirre's life before the shooting, including how they prepared a nursery for their unborn child. Id. at 108. The State also argued that any claim that Petitioner was the victim of a police conspiracy was unreasonable, as it would have required an elaborate plot by many unrelated actors. Id. at 133-34. The court overruled Petitioner's objection to this argument. Id. at 134. The prosecution later argued that if the police were going to conspire against Petitioner, they would have done a better job by forcing more specific testimony from more reliable witnesses. Id. at 146.

         During the defense's closing statement, Petitioner's counsel argued that the police's interrogation techniques were coercive. Id. at 118-19. Petitioner's counsel said that police “knock you down until they get where they need you to go.” Id.

         C. Post-Trial and Post-Conviction Proceedings

         1. Verdict, Sentencing, and Post-Trial Motion

         The jury found Petitioner guilty of first-degree murder, home invasion, residential burglary, and attempted armed robbery. Id. at 180-81. Petitioner subsequently filed a motion for a new trial. [21-22] at 4. Petitioner alleged various instances of prosecutorial and court error, including: improperly using evidence relating to gang activity; admitting inadmissible hearsay about the garage fire and improper prior consistent statements; improperly admitting evidence of the Parkside shooting; ineffective assistance of counsel for failing to excuse the sleeping juror; and improperly admitting testimony about Gibb's abortion. Id. at 17, 29, 43- 44, 54. The trial court denied the motion and sentenced Petitioner to life imprisonment for the murder. Id. at 92, 118. The court also sentenced Petitioner to 30 years for home invasion, 15 years for burglary, 15 years for attempted armed robbery, and 25 years for discharging the firearm. Id. at 118.

         2. Direct Appeal

         On direct appeal, Petitioner argued about the admission of inappropriate evidence, specifically: (1) gang activity discussed in Griffin's videotaped interview; (2) Gibb's abortion; and (3) the Parkside shooting. [21-1] at 1. Petitioner also argued that: (4) the court did not follow proper voir dire procedures pursuant to Illinois Supreme Court Rule 431(b); (5) the State's closing argument was improper because it discussed the loved ones Aguirre left behind and falsely accused the defense of arguing that the State and police engaged in a conspiracy; (6) his trial counsel was ineffective for failing to object to prejudicial evidence or testimony; and (7) the trial court deprived Petitioner of his right to a fair trial by allowing the sleeping juror to remain and refusing to hold a post-trial hearing on Petitioner's affidavit asserting that he wanted the juror excused for error. [21-2] at 50-65.

         The appellate court found that admitting the videotape was an “invited error” because the trial court admitted the tape based upon agreements between the parties, and defense counsel helped redact the tape. [21-1] at 12. The appellate court held that, because defense counsel did not object to admitting the videotape, the issue was procedurally defaulted and could not be raised on appeal, though the court also noted that there was no obvious error in admitting the tape. Id.

         The appellate court also held that testimony and evidence about Gibbs' abortion was relevant at trial because her previous statements about the abortion contradicted her trial testimony and thus related to her credibility. Id. at 14. The court found that the probative value of the abortion evidence outweighed any prejudice to Petitioner. Id. at 16.

         As for the Parkside shooting, the appellate court held that the evidence about the shooting was not offered to show propensity, but only to link Petitioner to the previous shooting, and thus Aguirre's murder. Id. at 18-19. The court held that the probative value of the evidence outweighed any prejudicial effect. Id.

         The appellate court also held that Petitioner's argument about voir dire lacked specificity and merit; regardless, the appellate court reviewed the record and found no error by the trial judge. Id. at 21. As for the sleeping juror, the appellate court held that, because Petitioner ultimately argued for the juror to remain, he could not later object to the “invited error.” Id. The appellate court also held that there was no legal basis for Petitioner's argument that the trial court was required to consult with him directly on this issue. Id. at 25.

         Addressing Petitioner's contentions that the State's closing arguments were improper, the appellate court held that the trial court did not err by allowing the State's emotional appeals about Calderon and Aguirre, because those appeals reasonably interpreted what the murder victim's family might feel. Id. at 27. The appellate court also held that Petitioner invited the conspiracy argument by discussing police motives and alluding to a conspiracy. Id. at 27-28.

         Finally, the appellate court applied the Strickland v. Washington, 466 U.S. 668 (1984), test to resolve Petitioner's numerous allegations that this trial counsel was ineffective. Id. at 28-29. The court held that the claims were either waived for lack of specificity or prejudice, or were a matter of trial strategy and thus lacked merit. Id. at 29-32.

         Following the appellate court's ruling, Petitioner filed a Petition for Leave to Appeal (PLA) with the Illinois Supreme Court. [21-5] at 1. Petitioner argued that: (1) the abortion evidence was improperly admitted; (2) the trial court did not properly conduct voir dire; (3) trial counsel was ineffective for not objecting to Griffin's videotaped interview; (4) the sleeping juror denied Petitioner a fair trial and the court erred by not holding a post-trial hearing on Petitioner's affidavit that he wanted the juror excused for error; and (5) the State's arguments during closing statements were prejudicial and trial counsel was ineffective for failing to object. Id. at 3. The Illinois Supreme Court denied leave to appeal. [21-6].

         3. Collateral Petition and Appeal

         After his direct appeal, Petitioner filed a petition for post-conviction relief with the Cook County Circuit Court. [21-7] at 21. Petitioner alleged ineffective assistance of trial and appellate counsel for: (1) failing to object to improper hearsay, opinion, and character evidence; (2) participating in admitting and editing Griffin's videotaped interview; (3) failing to object to improper impeachment evidence or request a limiting instruction regarding the evidence; and (4) failing to object to Bowman's testimony about gang activity. Id. Petitioner also alleged that his appellate counsel failed to raise the above issues and failed to raise a claim that the evidence against him was insufficient. Id. The Circuit Court dismissed the petition in the first stage. Id.

         On appeal to the Illinois appellate court, Petitioner raised all the above issues again, and specified that the limiting instruction that defense counsel failed to give for the improper impeachment evidence should have been given when the State introduced impeachment evidence. Id. at 22-42. The appellate court held that: (1) Petitioner's claim about Griffin's videotape was barred by res judicata because he raised the claim on direct appeal, [21-10] at 16; (2) admitting grand jury testimony containing hearsay statements about Calderon's garage was justified and thus counsel was not ineffective for failing to object to that testimony, id. at 17-18; (3) Petitioner's claims regarding lack of character evidence were not supported by any authority and thus were forfeited, id. at 18; (4) the impeachment evidence was proper because the witnesses against whom it was used affirmatively harmed the State's case by contradicting their own previous statements, id. at 20-21; (5) the new qualification about the timing of the limiting instruction was barred because Petitioner did not raise that argument in his original collateral petition, id. at 21; (6) trial counsel did in fact object to gang evidence, during a sidebar when the State wanted to ask Bowman why he would not identify Petitioner as the Parkside shooter, to which Bowman replied that he did not wish to become involved in gang-related issues, id. at 22; (7) Petitioner's other references to witnesses testifying to gang activity were not raised in his original collateral petition and thus were barred on appeal, id. at 22-23; and (8) appellate counsel was not ineffective for failing to raise every possible issue on appeal, and several issues that Petitioner alleged that appellate counsel failed to raise were meritless, as noted above, id. at 23.

         Petitioner filed a PLA with the Illinois Supreme Court and raised the following issues: (1) the appellate court erred by holding that hearsay accounts of Calderon's statements were admissible, [21-11] at 10-11; (2) the appellate court did not properly apply the law of forfeiture, id. at 12-13; and (3) the appellate court did not correctly apply res judicata, id. at 13-14. The Illinois Supreme Court denied leave to appeal. [21-12].

         D. Petitioner's Federal ...


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