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Busby v. Butler

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

December 15, 2017

JEREMIAH BUSBY R-19996, Petitioner,
v.
KIMBERLY BUTLER, Respondent.

          MEMORANDUM OPINION AND ORDER

          John Z. Lee United States District Judge

         In November 2007, Petitioner Jeremiah Busby was found guilty of first-degree murder after a jury trial in the Circuit Court of Cook County, Illinois. He was sentenced to fifty years' imprisonment. In November 2014, he filed a pro se habeas corpus petition under 28 U.S.C. § 2254. For the reasons provided herein, the petition is denied.

         Factual Background [1]

         Busby's conviction arose from the fatal shooting of Shaun Henry on September 18, 2005, in Maywood, Illinois. Resp't Ex. A, at 2, ECF No. 18. Six days before the shooting, a man named James Cavanaugh went to an apartment to purchase drugs from a person named “Silk.” Id. at 6. Busby was present at the apartment. Id. Cavanaugh asked for a line of credit to purchase drugs, but he was told that “Silk and [Busby] wanted their money.” Id. Silk and Busby drove Cavanaugh home in Cavanaugh's black Hyundai Sonata. Id. Once they arrived, Cavanaugh went inside by himself. Id. When he looked outside a few hours later, his black Hyundai Sonata was gone. Id.

         Cary Tribble, an acquaintance of Busby, testified that he was driving in a black car with Busby around 1:00 a.m. on the night of the shooting. Id. at 2. According to Tribble, Busby stopped the car in front of a small apartment building at 27 South 20th Street in Maywood. Id. Several people were gathered in front of the building, including Henry, the shooting victim. Id. Busby got out of the car, carrying a gun, and he followed Henry around to the back of the building. Id. After Tribble lost sight of Busby, he heard several gunshots. Id. Tribble then saw Busby run back toward the car, still holding a gun. Id. Busby announced that he had “shot the guy, ” and Busby and Tribble drove away. Id.

         Siblings Christopher and Clarissa Hampton lived at 27 South 20th Street at the time of the shooting. Id. at 3. They knew Busby and Henry “from school and around the neighborhood.” Id. Christopher testified that, just before the shooting, he and Clarissa had been in their front yard with Henry and some friends when “a black car turned around in front of [the apartment building] and left.” Id. The Hamptons and their friends went inside and then heard four or five gunshots. Id. at 3-4. After hearing the gunshots, the Hamptons went outside and saw Henry lying in the backyard. Id. At trial, the Hamptons denied seeing Busby the night of the shooting and also denied ever telling the police otherwise. Id.

         Police officer Sergio Cordoba responded to the shooting. Id. at 4. When he arrived at the scene, he found the Hamptons in the backyard with Henry's body. Id. According to Cordoba, the Hamptons told him they had seen Busby get out of a black car and walk toward the building. Id. at 5. Cordoba also testified that Christopher Hampton told him Busby had been carrying a gun. Id.

         Later, Detective David Gude interviewed each of the Hamptons separately about the shooting. Id. According to Gude, Christopher Hampton told him that he had seen Busby pull up in a dark-colored vehicle, exit the vehicle while “holding an object under his shirt, ” and follow Henry behind the building. Id. He then heard several gunshots, and he saw Busby run back to the vehicle and drive away. Id. Clarissa Hampton told Gude that she had seen Busby pull up in a dark-colored Hyundai Sonata and exit the vehicle with a gun. Id.

         Gude also testified that, while investigating the shooting, he spoke with other witnesses besides the Hamptons. Busby, 2013 WL 6813899, at *2. On cross-examination, Gude was asked whether those other witnesses had viewed a photo array or otherwise identified Busby. Id. In response, Gude said he would have to see “the report” to answer such questions. Id. The parties held a sidebar, and defense counsel stated that the prosecution had never disclosed “any reports that any other people identified [Busby].” Id.

         In November 2005, about two months after the shooting, police arrested Busby. Resp't Ex. A, at 6. Following the arrest, Detective Gude interviewed Busby, and Busby gave a videotaped statement that was admitted into evidence at trial. Id. In the statement, Busby indicated that he had previously had an altercation over drug customers with Henry, but he denied shooting Henry. Id. at 6-7. He acknowledged that he had been in the black Hyundai Sonata at some point, but he explained that “all of the drug dealers borrowed that car.” Id. at 7. He also claimed that he had been in Rockford since early September, and he told Gude that he had a Greyhound bus ticket to Rockford for September 4, 2005. See Id. Gude went to the bus station after interviewing Busby, but he was unable to locate information indicating that Busby had purchased a ticket to Rockford for that date. Id. at 8.

         Procedural Background

         Following his jury trial in the Circuit Court of Cook County, Busby was convicted of first-degree murder and sentenced to fifty years' imprisonment. Id. at 1. The Illinois Appellate Court affirmed his conviction. Id. at 21. Busby subsequently filed a petition for leave to appeal (PLA) in the Illinois Supreme Court. Resp't Ex. E, PLA, People v. Busby, No. 110243. In the PLA, Busby raised only two claims, both of which he had also raised before the Illinois Appellate Court. First, he claimed that the prosecution had improperly used the Hamptons' prior inconsistent statements to police as substantive evidence, when they were admissible only for impeachment. Id. at 11. Second, he claimed that trial counsel had rendered ineffective assistance by failing to object to this use of the Hamptons' prior inconsistent statements. Id. at 15. The Illinois Supreme Court denied the PLA on September 29, 2010. Resp't Ex. F.

         Next, Busby filed a postconviction petition in the Circuit Court of Cook County. Resp't Ex. P. The court dismissed the petition, and Busby appealed. In his postconviction proceeding before the Illinois Appellate Court, Busby raised only two claims. First, he claimed that the prosecution had violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose police reports indicating that several witnesses other than the Hamptons had identified Busby. Resp't Ex. G, Br. & Argument, at 10, 13. Second, he claimed that appellate counsel had rendered ineffective assistance by failing to challenge the nondisclosure of the police reports on direct appeal. Id. The Illinois Appellate Court affirmed the dismissal of the postconviction petition. Busby, 2013 WL 6813899, at *1.

         Busby then filed another PLA in the Illinois Supreme Court. Resp't Ex. M, PLA, People v. Busby, No. 117340. In the PLA, Busby raised only one claim: a claim for ineffective assistance of appellate counsel based on counsel's failure to argue that the prosecution had violated Illinois Supreme Court Rule 412 by failing to disclose the police reports. Id. at 3, 11- 14. The Illinois Supreme Court denied the PLA on May 28, 2014. Resp't Ex. N.

         In November 2014, Busby filed a pro se habeas corpus petition in this Court pursuant to 28 U.S.C. § 2254. His petition advances the following claims:

1. The prosecution improperly (a) argued to the jury that Busby had threatened two witnesses; and (b) vouched for the credibility of state witnesses.
2. The cumulative effect of the prosecution's misconduct was prejudicial.
3. Trial counsel rendered ineffective assistance by (a) failing to object to the prosecution's argument that Busby had threatened witnesses; (b) suggesting that the jury hear Busby's entire post-arrest statement;(c) failing to object to Cavanaugh's testimony; (d) failing to object to the admission of evidence regarding other crimes Busby had committed; and (e) eliciting testimony from Detective Gude suggesting that witnesses other than the Hamptons had identified Busby as the shooter.
4. Appellate counsel rendered ineffective assistance by failing to raise claims presented to the Illinois Appellate Court in the PLA on direct review.
5. The prosecution improperly used the Hamptons' prior inconsistent statements as substantive evidence, rather than using them only for impeachment.
6. The prosecution violated Busby's due process rights by failing to disclose evidence of police reports suggesting that witnesses other than the Hamptons had identified Busby as the shooter.
7. Trial counsel rendered ineffective assistance by failing to object to the prosecution's use of the Hamptons' prior inconsistent statements as substantive evidence.
8. Appellate counsel rendered ineffective assistance by failing to raise a claim on direct appeal regarding the prosecution's failure to disclose ...

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