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Stokes v. Butler

United States District Court, S.D. Illinois

January 11, 2018

MARCELL STOKES Petitioner,
v.
KIMBERLY BUTLER Respondent.

          MEMORANDUM AND ORDER

          HERNDON JUDGE.

         Marcell Stokes (Petitioner), proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in this Court. (Doc. 1). He challenges his 1998 conviction in Cook County, Illinois for first-degree murder and attempted armed robbery. Id. at 1. Petitioner contends he is entitled to habeas relief because the trial judge did not properly conduct a Batson hearing on remand; the jury should have been instructed to consider a lesser-included offense; and his post-conviction counsel was ineffective. Id. at p. 6. For the following reasons, Petitioner's writ of habeas corpus under § 2254 is denied.

         Background

         The State of Illinois (the State) indicted and charged Petitioner with first-degree murder and attempted armed robbery in connection with a fatal shooting in September 1998. (Doc. 12, Ex. 1, p. 2).

         Petitioner proceeded to a jury trial in March 2004. Id. During voir dire, the State used its peremptory challenges to strike the only two African American members of the venire. (Doc. 12, Ex. 2, p. 41). Petitioner orally objected, arguing the strikes violated Batson v. Kentucky, 476 U.S. 79, 90 (1986). Id. The trial court denied the motion, finding Petitioner failed to make a prima facie showing of a Batson violation. Id.

         The court later questioned potential juror Katherine Minogue, whose father was a police officer. Id. Ms. Minogue admitted she would give more weight to a police officer's testimony than to an ordinary citizen's testimony. Id. She further admitted “deep down inside [she would] be a little biased” in favor of law enforcement. Id. Another potential juror, David Street, stated his cousins were police officers and he would give more weight to an officer's testimony. Id. Mr. Street, however, said he would try to follow the law and judge the testimony equally. Id. Defense counsel attempted to ask Mr. Street follow-up questions but the prosecution objected to the questioning and the court sustained the objections. Id. at pp. 41-42. Petitioner's counsel motioned to strike Ms. Minogue and Mr. Street for cause, but the court denied the motions. Id. at p. 42. Counsel exercised his final peremptory challenge to exclude Ms. Minogue, and Mr. Street served on the jury. Id. The jury ultimately convicted Petitioner and the court sentenced him to thirty-five years' imprisonment. Id. at p. 44.

         Petitioner filed a direct appeal in the Appellate Court of Illinois, arguing the State violated Batson; trial counsel was ineffective during jury-selection for failing to request an extra peremptory challenge and permitting Mr. Street to sit on the jury; and the prosecutor's closing argument denied Petitioner a fair and impartial trial under the Sixth Amendment. (Doc. 12, Ex. 1, p. 1). The appellate court found Petitioner established a prima facie case under Batson and remanded the case for further proceedings consistent with its ruling. Id. at p. 21. The court declined to address Petitioner's remaining arguments. Id.

         On remand, the trial court conducted a colloquy prior to the Batson hearing. (Doc. 12, Ex. 2, p. 44). Petitioner requested the court appoint him a different attorney, but the court refused. Id. at pp. 44-46. Petitioner told the judge, “That ain't my motherfucking attorney. Look, you going to give me a motherfucking attorney. You ain't about to make me go through no motherfucking attorney like that.” Id. at p. 46. As the sheriff escorted Petitioner from the courtroom, Petitioner said, “Yo' bitch ass - fuck you, bitch. Yo' momma a ho. I should bite your punk ass. You stupid bitch.” Id.

         Petitioner returned to the courtroom later that day and apologized to the court. He stated he did not take his bipolar medication and was “really cranky.” Id. Petitioner's counsel told the judge Petitioner seemed “to know what he [was] talking about.” Petitioner cited Batson, so counselor believed he was “alert and all of that.” Id. Counsel also opined Petitioner understood what was “going on.” Id. at p. 47. The court proceeded to conduct the hearing and found no Batson violation. Id.

         Petitioner appealed, arguing the trial court should have held a fitness hearing prior to the Batson hearing; trial counsel was ineffective for permitting Mr. Street to serve on the jury; the trial court erred when it limited defense counsel's examination of Mr. Street; the trial court improperly refused an instruction on the credibility of police officers; and the prosecutor's closing argument violated Petitioner's Sixth Amendment right to a fair and impartial trial. Id. at pp. 40-41.

         The appellate court held the trial court did not abuse its discretion when it failed to conduct a fitness hearing sua sponte prior to the Batson hearing, id. at p. 49; trial counsel was not ineffective for permitting Mr. Street to serve on the jury, id. at p. 50; and the trial court did not err in refusing a proffered jury instruction, id. at p. 52. The appellate court found the trial court did err when it denied counsel the opportunity to question Mr. Street regarding his potential bias. Id. at p. 51. However, the “overwhelming evidence against defendant” rendered the error harmless. Id. Similarly, the appellate court determined that the prosecution's remarks during closing arguments “could be considered improper, ” but, “given the evidence, ” the remark did not affect the verdict. Id. at p. 54. The appellate court affirmed Petitioner's conviction. Id. at p. 55.

         Petitioner filed a petition for leave to appeal (PLA) to the Supreme Court of Illinois, arguing his trial counsel was ineffective for permitting Mr. Street to serve on the jury and the trial court erred by limiting counsel's questions to Mr. Street. (Doc. 12, Ex. 3, pp. 23-43). The Supreme Court of Illinois denied the petition. Id. at p. 63.

         Petitioner then filed a State post-conviction petition, arguing the following:

(1) The trial court erred in giving a certain jury instruction; (2) he was not advised of his Miranda rights; (3) he was not given a prompt probable cause hearing before he was transferred to adult court; (4) failure to prove guilty beyond a reasonable ...

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