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Neal v. Butler

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

May 18, 2018

Derrick Neal (B58727), Petitioner,
v.
Kim Butler, Warden Menard Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          Honorable Thomas M. Durkin United States District Judge

         Petitioner Derrick Neal brings this pro se habeas corpus action under 28 U.S.C. § 2254 challenging his 2002 murder conviction from the Circuit Court of Cook County. For the following reasons, Neal's petition is denied and the Court declines to issue a certificate of appealability.

         Background [1]

         A. The Trial

         On May 2, 2000, Neal fired sixteen shots into a crowd gathered in a parking lot in Chicago, Illinois. R. 20-2 at 3 (¶ 12). In the process, he killed one person and injured several others. Neal did not dispute these facts in the state court proceedings, and he does not dispute them here. Instead, Neal argues he acted in self-defense when he shot into the crowd.

         During trial, several individuals and a police officer present at the scene testified for the prosecution. These witnesses testified that two women (one of whom was Nickia Carlvin) were arguing in a parking lot. Thirty to fifty people were also in the parking lot. As the women argued, Neal walked up to the women and began shooting into the crowd, which then scattered. The police officer testified that he did not see anyone carrying a weapon, such as a stick, bat, or gun. Id. at 3 (¶ 13). The parties stipulated that sixteen shell casings were recovered from the crime scene and all came from the same gun. Id. at 4 (¶ 19).

         Three defense witnesses-Gloria Hentz, Donna Williams, and Neal himself- testified. All three agreed that there was a fight between Carlvin and another woman near the parking lot. Hentz testified that after the fight, an angry crowd of people with sticks approached the parking lot near her house, where Neal was standing with Carlvin. Neal then started shooting at the crowd, ran to his car, and drove off. Hentz did not testify to seeing anyone else with a gun. R. 20-2 at 5-6 (¶¶ 20-22). Williams testified that one of the fighting women ran off and returned with a crowd of people carrying sticks who looked ready to fight. Id. at 5 (¶ 23). As the crowd proceeded toward Neal and Carlvin, Neal pulled out a gun. Williams ran inside and did not witness any of the shooting. Id. Neal testified that, while he was at a barbeque hosted by Hentz, he noticed a fight between Carlvin and another woman. The fight broke up and the other woman arrived with a crowd, which started coming toward him and Carlvin, carrying sticks, bottles, and weapons. Id. at 5 (¶¶ 24-25). Neal claimed that he saw a girl about to attack Carlvin with a box cutter, and a man begin to draw his gun, and as a result, Neal started firing into the crowd, which caused a shootout. He admitted that he fired into the crowd before anyone shot at him. Id.

         Neal was found guilty of one count of first degree murder and two counts of aggravated battery with a firearm. R. 20-2 at 6 (¶ 32). He was sentenced to eighty years of imprisonment on the murder conviction and two fifteen-year terms on the aggravated battery convictions, all to be served consecutively. Id.

         B. Direct Appeal

         Neal, through counsel, filed a direct appeal arguing the trial court erred in imposing consecutive sentences for the two counts of aggravated battery. See R. 20-1. The appellate court agreed, and on remand, the trial court modified the sentence so that the fifteen-year terms ran concurrently with each other and consecutively with the eighty-year murder sentence. R. 20-2 at 6 (¶ 34). Neal then filed a petition for leave to appeal to the Illinois Supreme Court, arguing that the case should be remanded for inquiry as to the severity of one of the victim's injuries. R. 20-1 at 71-78. The Illinois Supreme Court denied that petition for leave to appeal. R. 20-2 at 1.

         C. State Post-Conviction Proceedings

         Neal then filed a post-conviction petition, alleging ineffective assistance of trial counsel for failing to call three witnesses to testify-Shalonda Stewart, Jimmie Walker, and April Davis.[2] R. 20-2 at 6-7 (¶¶ 37, 45). Neal attached an affidavit in which Davis attested that she observed a mob approach Neal and Carlvin with sticks and poles, and that three men began shooting at Neal before Neal returned fire. Id. at 7 (¶ 45). Neal did not attach affidavits from Stewart or Walker. He did, however, attach police reports of their accounts. Id. at 6-7 (¶¶ 39-42).

         The trial court dismissed the post-conviction petition as frivolous and without merit. Id. at 7-8 (¶ 47). Neal appealed. The appellate court held that Neal's claim was procedurally deficient because Neal failed to submit affidavits from Stewart and Walker. Id. at 9-10 (¶¶ 66-67). The court also held that Neal's claim was meritless as to all three individuals because he could not show that his counsel's performance was deficient or prejudicial for not calling the witnesses. The court thus affirmed the dismissal of the post-conviction petition. Id. at 10-11 (¶¶ 68-75). Neal next filed a petition for leave to appeal to the Illinois Supreme Court. R. 20-3 at 11. The Illinois Supreme Court denied Neal's post-conviction petition for leave to appeal. R. 20-3 at 62.

         D. Federal ...


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