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United States ex rel. Thomas v. Pfister

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

January 16, 2018

RANDY PFISTER, Warden, Stateville Correctional Center, Respondent.


          Andrea R. Wood Judge

         In 2004, Petitioner Paris Thomas was convicted of first degree murder and home invasion and was sentenced to consecutive prison terms of 40 years and 10 years, respectively. Thomas is now serving his sentence at Stateville Correctional Center in Joliet, Illinois. Before the Court is Thomas's pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, in which he claims that (1) his trial counsel was ineffective in a number of ways, (2) his counsel on direct appeal was ineffective for failing to raise the various failings of his trial counsel, (3) the postconviction trial court violated state law by making findings of fact before summarily dismissing his petition as frivolous and patently without merit, and (4) his postconviction appellate counsel was ineffective for failing to raise the purported error by the postconviction trial court and instead raising only two other claims in his postconviction petition for leave to appeal (“PLA”). For the reasons stated below, Thomas's petition for a writ of habeas corpus is denied.


         A federal court considering a petition for a writ of habeas corpus presumes correct the factual findings made by the last state court to adjudicate the case on the merits, unless those findings are rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010); Ward v. Sternes, 334 F.3d 696, 704 (7th Cir. 2003). The last state court to make factual findings regarding Thomas's case was the Illinois Appellate Court, in its opinion on direct appeal affirming Thomas's conviction. (See Ans. Ex. A, Order, People v. Thomas, No. 1-04-2741 (Ill.App.Ct. Dec. 13, 2007), Dkt. No. 19-1; see also Mendiola v. Schomig, 224 F.3d 589, 592-93 (7th Cir. 2000) (stating that a state appellate court's factual findings are entitled to the same deference afforded to a state trial court's findings)). Thomas argues in conclusory fashion that he has presented “clear and convincing factual representations that [are] contrary to lower courts['] findings.” (Reply at 4, Dkt. No. 28.) But the Court, after reviewing all of the materials submitted by Thomas, fails to discern any evidence that contradicts the state court findings, and therefore those findings are accepted as correct.

         A. Trial Proceedings[1]

         Thomas was indicted along with Bishara Thomas (“Bishara”), Steven Jackson, and Terrell Sims for the April l, 2002 home invasion and murder of Tonette Waters. The cases of the four defendants were severed prior to trial. Because Thomas opted for a jury trial and Sims opted for a bench trial, the trials of those two defendants were held at the same time, while Bishara and Jackson were tried later.

         1. Thomas's Videotaped Statement

         A key piece of evidence in the State's case against Thomas was his videotaped statement taken during an interview by Assistant State's Attorney Kim Ward. The statement was made after Thomas had received Miranda warnings and signed a consent form. Ward conducted most of Thomas's initial interview in the presence of Chicago Police Detective Adrian Garcia. Ward and Garcia also testified at trial.

         In his videotaped statement, Thomas stated that he had encountered his cousin, Steven Jackson, on the afternoon of Waters's murder. Both Thomas and Jackson were members of the Traveling Vice Lords street gang. Jackson asked Thomas whether he wanted to perform a “lick”-slang for a robbery-for $8, 000 in money or drugs. Thomas agreed, and he and Jackson drove to the home of Terrell Sims, another Traveling Vice Lord with whom Thomas was close. Thomas told Sims about the planned robbery and asked Sims whether he wanted to participate for a share of the proceeds. Thomas, Jackson, and Sims then picked up Bishara, another Traveling Vice Lord, and drove to Waters's apartment, where she lived with her children and Lavarious Edwards.

         After they arrived at Waters's apartment, Jackson knocked on the door. When Waters answered, Thomas told Waters he had Edwards's keys. When Waters opened the door, Thomas grabbed her around the waist and turned her aside to allow his accomplices to enter. Jackson grabbed Waters by her hair and passed her to Bishara, who held her at gunpoint. Bishara and Jackson took Waters to the back of the apartment while Thomas searched the front. After some time, Bishara and Jackson returned to the front of the apartment with Waters, and Thomas and Sims searched the back. After Thomas and Sims found no money, they returned to the front of the apartment, noticing Waters's two children for the first time. Bishara and Jackson again took Waters to the back of the apartment, and when they returned a short time later, Waters was naked. Waters began screaming, and Jackson told Thomas and Sims to exit through the back door. Thomas and Sims ran to the car they had left in the alley and waited until Jackson and Bishara joined them. Jackson then drove Thomas and Sims to Thomas's house.

         Thomas claimed in his videotaped statement that he did not know Waters was dead until his family told him that a neighborhood girl had been shot and killed. He stated that he went to the apartment to commit robbery, not to kill anyone. He explained that they brought the gun to scare Lavarious Edwards if he was present.

         Before trial, Thomas moved in limine to redact a portion of the videotaped confession in which he stated that he or his accomplices usually carried a gun during robberies “for safety.” Thomas's counsel argued that this statement referenced prior uncharged offenses, assumed other crimes, and would be highly prejudicial. The State argued that the statement was merely an admission that went to Thomas's intent and knowledge of the presence of the gun, and was not prejudicial. The trial court denied the motion but offered to instruct the jury to limit its consideration of that portion of the videotape to issues of Thomas's intent and knowledge. Thomas's counsel declined that offer, and the videotaped statement was entered into evidence at trial.

         2. Testimony of James Chatman

         James Chatman, Bishara's cousin, testified at trial that on April 1, 2002, Bishara and Jackson came to his house, Bishara retrieved something from the basement, and then Bishara and Jackson left his house. Bishara returned 20 minutes later, entered the house, tossed the gun to Chatman, and told him, “We just did something with this.” Chatman further testified that Bishara then washed his hands and face. Chatman testified that he could feel that the gun was warm, and he wrapped it in a shirt and took it back into the basement. Chatman later heard that Waters, his girlfriend's best friend, had been killed. He then called the police and arranged to turn in the gun.

         3. Testimony of Kurt Zielinski

         Kurt Zielinski, a forensic scientist with the Illinois State Police, testified as an expert in firearms identification. Zielinski testified that, in his expert opinion, a bullet recovered from Waters's body had been fired from the firearm identified by Chatman to the exclusion of all other firearms.

         4. Testimony of Varielle Edwards

         Varielle Edwards (“Varielle”), the eight-year-old daughter of Waters, testified that she had fallen asleep and awoke when her mother entered Varielle's room with a man holding a gun to her ear, as three other men ransacked the apartment. Varielle later entered the bathroom to find her mother naked, with one of the men holding her. Three of the men exited the apartment through the rear door, and the man who was holding Waters shot her in the head. After watching her mother's murder, Varielle grabbed her younger brother and ran across the street to her grandmother's house. Varielle initially told police that there were three intruders but she could not identify them.

         5. Jury Instructions and Verdict

         The jury was instructed that it could convict Thomas of first-degree murder

when he kills an individual if in performing the acts which caused the death he intended to kill or do great bodily harm to that individual, or he knows that such acts will cause death to that individual, or he knows that such acts create a strong probability of death or great bodily harm to that individual, or he was committing the offense of home invasion or he was attempting to commit the offense of armed robbery.

(Ans. Ex. T at 103, Dkt. No. 19-20; Ans. Ex. V at 84, Dkt. No. 19-22.) The jury was given general verdict forms for the offense of first-degree murder-one form stating that the jury found Thomas guilty of first-degree murder and the other form stating that the jury found Thomas not guilty of that offense. (Ans. Ex. V at 90-91, 95, Dkt. No. 19-22.) The jury found Thomas guilty of one count of first-degree murder and one count of home invasion. Thomas was ultimately sentenced to consecutive terms of 40 years' imprisonment for first-degree murder and 10 years' imprisonment for home invasion.

         B. Direct Appeal

         On direct appeal, Thomas argued that:

(1) the State failed to prove him guilty of murder beyond a reasonable doubt;
(2) the prosecutor's closing argument denied him a fair trial by:
(a) misstating the law regarding accountability,
(b) using a pre-arrest photograph of Thomas to rebut Thomas's claim that his confession was coerced, and
(c) incorrectly stating that Thomas grabbed Waters by her braids;
(3) trial counsel was ineffective for:
(a) eliciting harmful testimony on cross-examination,
(b) failing to question jurors about their potential bias against gangs,
(c) declining the trial court's offer to provide a limiting instruction regarding Thomas's admission that he and his accomplices typically bring a gun to a ...

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