United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. DURKIN JUDGE
20, 2016, Andre Richardson filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 challenging
his 2005 first-degree murder conviction. R. 1. Richardson
filed an amended petition on May 17, 2017. R. 24. Respondent
Warden Scott Thompson argues that Richardson's amended
petition should be denied because it is untimely and the
claims raised are procedurally defaulted and without merit.
R. 26; R. 50. In addition to briefing its merits, the parties
separately briefed Richardson's motion to equitably toll
the time for filing his petition. R. 45. For the following
reasons, the Court grants Richardson's motion for
equitable tolling, but holds its ruling on the merits of his
petition pending limited discovery and an evidentiary hearing
as outlined below.
February 9, 2001, Richardson was investigated and arrested
regarding the death of his eleven-month-old daughter,
Diamond. At the time of his arrest, Richardson was a mentally
challenged sixteen-year-old. Richardson does not dispute that
his actions resulted in his daughter's death. However, he
argues that he did not act with the intent necessary for a
first-degree murder conviction. See generally R. 24
and R. 29.
February 8, 2001, Richardson picked up his daughter from his
mother's home so she could stay with him over the
weekend. As he bathed Diamond that evening, she slipped and
hit her head in the bathtub. Richardson believed Diamond was
fine, and they went to sleep after her bath.
next morning, while eating breakfast, Diamond began eating
cereal that had fallen on the ground. Richardson hit her hand
to stop her. When Diamond tried eating off the floor again,
Richardson bit her. After finishing her breakfast,
Diamond's belly was full and poking out. Richardson tried
pushing it back in. Diamond threw up some of her food, and
Richardson struck her on the ribs. Ten-year-old James
Franklin, who was also in the apartment that day, testified
that Richardson also hit Diamond on the butt with a coat
hanger. Afterwards, Richardson cleaned Diamond up and changed
her clothes. Diamond threw up again, and this time Richardson
smacked her on the face. Then he placed her in a corner where
Richardson ordered her to stay. Richardson spanked Diamond on
her diaper when she moved, and later slapped her hand.
that time, Diamond fell and hit her head. She got back up,
but then lost consciousness. Richardson picked up Diamond,
and began shaking her and calling her name, telling her to
wake up. While shaking her, Diamond hit her head on a window
pane and a window sill. Then, Richardson tried splashing
water on Diamond's face, but she still would not wake up.
Richardson sent Franklin to get help from a neighbor. The
neighbor called 911 after finding Diamond unconscious.
Richardson gave Diamond CPR, but she remained unresponsive.
was taken to the hospital, where she later died. The medical
examiner who performed the autopsy determined that her cause
of death was multiple injuries due to an assault. Reporting
Officer Michal Hayes saw Richardson crying as the ambulance
took his daughter away. Richardson told Officer Hayes that
Diamond had fallen in the tub the night before and that he
had beaten her for throwing up cereal. Officer Hayes drove
Richardson to the hospital, where he later arrested
Richardson for child abuse.
was taken to the Second District police station around 3:35
p.m. Sometime between 5:00 p.m. and 8:00 p.m. that evening,
Richardson was physically attacked by a police employee,
causing a black eye and swollen face. Richardson told Michael
Nolan, a youth investigator assigned to investigate
Diamond's case, that he had been struck in the face by
lockup personnel. He also told Detectives Edward
O'Connell and John Zalatoris about the attack. The police
department's Office of Professional Standards opened an
investigation into the attack. It is unclear from the record
how the investigation was resolved.
the attack, Richardson was interrogated three times in a
thirteen-hour period. His interrogations began the evening of
his arrest and continued into the following morning. The
first interrogation took place around 9:00 p.m. in a small,
windowless room. Investigator Nolan read Richardson his
Miranda rights. The interrogation was led by
Detectives O'Connell and Zalatoris, but Investigator
Nolan also asked Richardson questions. In addition to the
detectives and Investigator Nolan, Richardson's mother
was also present during that first interrogation, which
lasted approximately forty-five minutes. Richardson made an
inculpatory statement during that time, the details of which
are not reflected in the record. Shortly thereafter, the
detectives summoned Assistant State's Attorney John Heil.
12:30 a.m., ASA Heil began interrogating Richardson in the
same small, windowless room where he had remained since the
first interrogation. At this point, Richardson had been in
custody for nine hours. He had not slept or received medical
attention for his injuries. Richardson's mother,
Investigator Nolan, and Detective O'Connell were all
present for this second interrogation. ASA Heil advised
Richardson of his Miranda rights. He also informed
Richardson that Diamond had died from her injuries. Nobody
told Richardson (or his mother) that he would be charged with
murder. Richardson made a second confession during this
interrogation, lasting between thirty and forty-five minutes
and describing his interactions with Diamond on the day of
her death. According to Heil, Richardson explained how the
night before he had picked her up from her mother's house
to babysit her, and that she fell and hit her head. He said
that the next morning he gave her cereal and hit her several
times when she dropped it on the floor, poked at her stomach
afterward causing her to vomit, struck her for vomiting, and
struck her numerous times with a plastic hanger and then with
a belt for continuing to vomit. He then explained that he put
her in the corner and punished her by hitting her when she
turned to look at him because he had told her not to, and
then told her to go stand against the wall. When she fell, he
picked her up and shook her hard, and she hit her head
twice-once on the windowsill and once on the window casing.
When she was unresponsive, he asked a neighbor to call the
police. After this confession Investigator Nolan and Officer
O'Connell were excused from the room and ASA Heil had an
unrecorded discussion with Richardson. According to ASA Heil,
at this time, Richardson told him that the earlier physical
attack did not influence his confession, and that since the
attack he had been treated fine by those involved in the
interrogation process. At the conclusion of this
interrogation, ASA Heil explained to Richardson his options
for memorializing his statements. Richardson chose to give a
videotaped statement. At trial, ASA Heil admitted that during
the interrogation he had not kept notes of either his
questions or Richardson's responses, and nor had he
provided Richardson with a paper and pen or pencil to record
final interrogation and videotaped statement began around
9:30 a.m. that same morning. Richardson had slept 2 or 3
hours before that. Richardson's mother, Investigator
Nolan, Detective O'Connell and ASA Heil were all present.
At the beginning of the videotaped statement, ASA Heil again
advised Richardson of his Miranda rights. When asked
if he knew what it meant to say that “anything you say
can be used against you in a court of law, ” Richardson
answered, “Whatever I say, I will tell and say it in
court.” In response, ASA Heil repeated “And some
- it could be used against you in court? Do you understand
that?” Richardson responded “yes, ” and
Heil went on with the interrogation. Richardson confessed a
third time on videotape.
State Court Conviction
trial, Richardson's attorney filed a motion to suppress
Richardson's confession arguing among other things that
Richardson's “physical, mental, educational and/or
psychological state, capacity and condition” prevented
him from fully understanding his Miranda rights.
People v. Richardson, 917 N.E.2d 501, 505 (Ill.
2009) (Richardson II). His attorney, however, did
not present any evidence or testimony to support this
argument. While Richardson's trial counsel filed several
extensions to have Richardson's mental capacity
evaluated, an evaluation was never entered into evidence.
Additionally, although Richardson's mother was the only
witness his attorney called at the motion to suppress
hearing, her testimony focused on Richardson's
interrogations and the physical attack on Richardson, not on
Richardson's mental limitations. The court denied the
motion to suppress finding that Richardson's confessions
were “freely and voluntarily” given because
Richardson was advised of his Miranda rights,
acknowledged understanding them, and requested neither
medical assistance nor a lawyer following his physical attack
at the police station.
result, the prosecution played the videotaped recording of
Richardson's confession to the jury at trial. In his
videotaped statement, Richardson confessed that he: struck
Diamond on the hand; bit her on the shoulder and stomach;
“karate chopped” her ribs; “whooped”
her on the butt with a plastic clothes hanger; hit her with a
belt; smacked her in the face; and spanked her on her pamper.
Richardson also said that his statement had nothing to do
with the attack on him; that he was treated fairly; that he
was allowed time alone with his mother; that he ate, slept
and had access to a restroom; that no threats or promises
were made to him or his mother in exchange for the statement.
During the defense's case, Richardson testified that the
videotaped statement was accurate, except that he did not hit
Diamond with a belt.
main defense at trial was that he lacked the intent or
knowledge to commit first-degree murder. Richardson requested
a jury instruction on the lesser-included offense of
involuntary manslaughter. The court denied the request,
finding that there was no evidence of recklessness. During
deliberations, the jury asked the court if they could convict
Richardson of a lesser offense. The court denied the
jury's request, refusing to give an involuntary
manslaughter instruction. The jury returned a verdict that
Richardson was guilty of first-degree murder.
trial court did not learn of Richardson's mental
disability and unstable upbringing until after trial.
Richardson's Pre-Sentence Investigative Report (PSIR)
revealed that Richardson suffered from learning disabilities
his entire life, and that he was illiterate at the time of
his confession. The PSIR detailed Richardson's limited
mental ability and described his troubled upbringing,
including that Richardson was raised without his father, and
that his mother had a history of alcohol and drug addiction,
and beat Richardson with belts, extension cords and other
court ordered an examination of Richardson by a court
psychologist to determine his fitness for sentencing. As part
of this evaluation, Richardson took an IQ test and scored 61.
He was ranked in the 0.5th percentile, meaning
that 99.5% of his same-aged peers would perform better on the
test. Richardson's IQ fell within the extremely low range
of intellectual functioning. Due to the results of the IQ
test, Richardson was classified as being in the “upper
echelon of mild mental retardation.” The court
nevertheless found Richardson fit for sentencing and
sentenced him to a term of forty years' imprisonment.
appealed, arguing among other things that (1) his confessions
should have been suppressed, and that (2) he received
ineffective assistance of counsel. People v.
Richardson, 875 N.E.2d 1202, 1204 (Ill.App.. Ct. 2007)
(Richardson I). The appellate court held that
Richardson's confessions were coerced, and the case was
remanded for a new trial. Id. at 1208. The state
appealed to the Illinois Supreme Court, which reversed the
appellate court's decision in part, finding that
Richardson's injuries after the arrest had no effect on
his confession, and that, under the totality of the
circumstances, his confessions were voluntary. Richardson
II, 917 N.E.2d at 520-21. The court remanded the
remaining contentions. Id.
remand, the appellate court declined to address whether
Richardson's counsel had been ineffective, finding the
claim was based on extra-record matters better evaluated on
collateral review. People v Richardson, 929 N.E.2d
44, 48 (Ill.App.. Ct. 2010) (Richardson III). The
appellate court affirmed the lower court's decision on
Richardson's other contentions, including that an
involuntary manslaughter instruction was not warranted by the
evidence. Id. at 50. On September 29, 2010, the
Illinois Supreme Court denied Richardson's petition for
leave to appeal based solely on the trial court's alleged
error in not giving an involuntary manslaughter instruction.
People v Richardson, 938 N.E.2d 528 (Ill. 2010)
State Post-Conviction Proceedings
with the appellate court's directive in Richardson
III, Richardson filed a petition for post-conviction
relief in the Circuit Court of Cook County on June 15,
2011. He argued that he had ineffective
assistance of counsel at trial because his counsel failed to
present evidence of Richardson's mental impairment to
support the motion to suppress his confessions.
Richardson's petition was dismissed. On appeal, the
appellate court affirmed, finding that, “[g]iven
defense counsel's repeated representations to the court
that she needed additional time to have Richardson evaluated,
it is obvious that Richardson was, in fact, evaluated and the
evaluator reached conclusions not helpful to Richardson's
motion to suppress, thus readily explaining the lack of such
evidence” at the suppression hearing. People v
Richardson, 30 N.E.3d 336, 346 (Ill.App.Ct. 2015)
(Richardson V). The court went on to conclude that
even if the confession had been suppressed, there was no
reasonable probability of acquittal. Id. at 343. In
a 36-page dissent, Justice Pucinski described the
“disastrous ripple effect” that Richardson's
trial counsel's failure to introduce evidence of
Richardson's mental impairment in support of the motion
to suppress had on the trial. Id. at 347-383
(Pucinski, J. dissent). On September 30, 2015, the Illinois
Supreme Court denied Richardson's petition for leave to
appeal. People v Richardson, 39 N.E.3d 1009 (Ill.
2015) (Richardson VI).
Federal Habeas Petition
10 months later on July 20, 2016, Richardson filed a pro se
petition for relief pursuant to the federal habeas statute,
28 U.S.C. § 2254. R. 1. The Court appointed counsel on
December 7, 2016. R. 12. On May 17, 2017, Richardson filed an
amended petition through counsel. R. 24. In his petition,
Richardson argues: (1) that he received ineffective
assistance of counsel because his counsel failed to submit
evidence of his mental deficiencies; and (2) that his
confession was coerced and thus involuntary. See
generally R. 24. Respondent answered the petition,
arguing that it should be denied as untimely, and that the
claims raised are procedurally defaulted and/or lack merit in
any case. See generally R. 26. Richardson
subsequently filed a motion to equitably toll the time for
filing his habeas petition. R. 46.
Because the Court cannot reach the merits unless it concludes
that Richardson's petition was timely, the Court will
address the parties' equitable tolling arguments first.
argues that Richardson's petition is barred because it
was filed 97 days late. R. 50 at 10. Richardson acknowledges
that his petition was untimely, but argues for equitable
tolling. See generally R. 46 and R. 58. Equitable
tolling is “an extraordinary remedy that is rarely
granted.” Carpenter v. Douma, 840 F.3d 867,
870 (7th Cir. 2016). It is permitted only when the petitioner
establishes that: (1) he has been “pursuing his rights
diligently;” and (2) “extraordinary
circumstances” stood in his way, causing the petition
to be untimely filed. Holland v. Florida, 560 U.S.
631, 649 (2010). The petitioner bears the burden of
demonstrating both elements of the Holland test.
Id. “[T]olling is rare; it is ‘reserved
for extraordinary circumstances far beyond the litigant's
control that prevented timely filing.'” Socha
v. Boughton, 763 F.3d 674, 684 (7th Cir. 2014) (quoting
Nolan v. United States, 358 F.3d 480, 484 (7th Cir.
2004)). Nevertheless, equitable tolling determinations are
“highly fact-dependent, ” and courts
“employ flexible standards” to resolve the issue
on a “case-by-case basis.” Socha v.
Pollard, 621 F.3d 667, 672 (7th Cir. 2010) (citing
Holland, 560 U.S. at 649-51). Accordingly, courts
evaluate “the entire hand that petitioner was
dealt” instead of “search[ing] for a single trump
card;” “[i]t does not matter that one could look
at each of the circumstances . . . in isolation and decide
that none by itself required equitable tolling.”
Socha, 763 F.3d at 686.
Additional Background Facts
following additional facts are relevant to the resolution of
Richardson's equitable tolling motion. Richardson's
conviction became final on December 28, 2010-90 days after
the denial of the PLA in his direct appeal. Richardson filed
his state post-conviction petition 168 days later on June 15,
2011, tolling the running of the limitations period on any
federal habeas petition while the state post-conviction
petition was pending. See 28 U.S.C. §
2244(d)(2) (“The time during which a . . . State
post-conviction . . . is pending shall not be counted toward
any period of limitation under this subsection.”). The
tolling ended and the limitation period recommenced on
September 30, 2015, when the Illinois Supreme Court denied
Richardson's post-conviction PLA. See Lawrence v.
Florida, 549 U.S. 327, 332 (2007) (Section 2244(d)(2)
tolling ends “when the state courts have finally
resolved an application for state postconviction
relief”). As of that date, 197 days remained in the
limitations period. But Richardson did not file his habeas
petition until July 20, 2016, 97 days after the April 14,
2016 expiration of the limitations period under Section
2244(d)(1)(A).Richardson offers several reasons for the
delay. Each is addressed below.
need for, and difficulty obtaining, assistance with his
could not read or write at the time of his arrest in 2001. R.
45, Ex. A ¶ 3. But after attending basic education
classes in prison, he was able to improve his reading from a
fourth-grade level in 2005 to a fifth-grade level in 2010. R.
45, Ex. A ¶ 3; R. 18, Ex. 3. Ultimately, however,
Richardson was unable to pass a test needed to advance to
additional classes. R. 45, Ex. N at 38. The prison classes
that Richardson did take did not focus on writing, but a
cellmate taught him to write, and Richardson subsequently
wrote letters to his siblings and to lawyers at the
Exoneration Project. He also reads urban novels for pleasure.
Id. at 38-39, 75, 77-78. Nevertheless, Richardson
has difficulty understanding his legal papers even now. R.
45, Ex. A ¶ 3.
of his challenges with reading, writing and comprehension,
Richardson asked a fellow inmate, Earnell Brown, to prepare
his state post-conviction petition, which he filed pro se in
2011. Id. ¶ 4. Richardson paid Brown in rice
and cups of noodles. Id. Although Richardson was
concerned about sharing the details of his crime with others
out a fear of physical harassment, Richardson felt he could
trust Brown because he had a short prison sentence and
Richardson “knew he wouldn't talk about my case to
other people.” Id. He nevertheless did not
share the details of his case with Brown, and instead merely
“had [Brown] copy the legal argument from my direct
appeal brief.” Id.
was living in Unit E at Stateville when he learned that the
Illinois Supreme Court had denied his post-conviction PLA on
September 30, 2015. Id. ¶ 5. He began to look
for someone to help draft his federal habeas petition, but
still feared that he may be the target of violence due to the
nature of his crime. He also feared violent punishment by
members of the Gangster Disciples-a gang he had joined at the
age of 12 but left with permission in 2011-if they learned
that he had confessed to police in violation of their code of
silence. Id. ¶¶ 5, 7-9, 11-12.
Richardson's mental health records also reflect that he
was raped at the age of 17 by a fellow inmate. See
R. 46, Ex. D at 4 (October 3, 2016 IDOC Evaluation of Suicide
Potential form stating “[T]his was when I was at
county, I was raped, it happened at Menard too, I have a high
profile case and it came up on the news, my cellie beat me
and raped me for 2 weeks.”) For these reasons,
Richardson believed he had to be very careful about who he
asked for help. R. 45, Ex. A ¶ 12; R. 46 at 5.
states that even when he found an inmate he was comfortable
approaching for help, the inmate wanted to charge him money
he did not have. R. 45, Ex. A ¶ 13. While in Unit E,
Richardson sought help from an older “jailhouse
lawyer” or “prison litigator” known as
“Con, ” and another inmate known as “Little
Mike.” Id. ¶ 14; R. 45, Ex. N at 11-13,
17. Both men helped Richardson in or about March 2015, when
he received Illinois appellate court Justice Pucinski's
dissenting opinion in his direct appeal, and was confused by
its meaning, initially thinking he had won. R. 45, Ex. A
¶ 14; R. 45, Ex. N at 17. Then, shortly after Richardson
learned that the Illinois Supreme Court had denied his
post-conviction PLA in September 2015, he asked Con to
prepare his habeas petition. At that time he did not have the
$50 Richardson says Con requested in order to prepare it. Nor
could his mother or brother help with the
money. R. 45, Ex. A ¶ 14.
transferred to Unit D in November 2015, where he states he
asked “some older inmates” for help with his
petition. According to Richardson, most refused
“because of the nature of [his] crime, ” but
“Fonz” said he would help if Richardson would
give him $150 to $200. And another inmate, “Q”,
said he would write the petition for $200 to $300 in
commissary money or cash. Richardson could not afford either.
Id. ¶ 15. Richardson stated that he asked other
inmates in Unit D for help, but could not recall their names
or the dates. Id. ¶ 16.
March 21, 2016, Richardson was transferred out of Unit D and
into segregated confinement in Unit F (or, “the F
House”), where he remained until he was released to an
F House cell on April 21, 2016. Richardson knew his new
cellmate, George Cabot, referred to as “Scrappy,
” from prison classes the two had taken together.
Id. ¶ 17. Besides Q, who knew about
Richardson's case “cause he knew my people from the
streets, ” Richardson says Scrappy was the only inmate
who knew the full details of his case. R. 45, Ex. N at 45.
Richardson asked Scrappy to prepare his habeas petition.
Scrappy told Richardson that he would do it for $100. But
when Richardson told him he did not have the money, Scrappy
agreed that Richardson could pay him in wine he made from
cafeteria food instead. R. 45, Ex. A ¶ 17. Eventually,
and about a month after the two men became cellmates,
Richardson finished making about 15 bottles of wine to pay
off his debt, and Scrappy got to work on his petition.
Id.; R. 45, Ex. N at 37-38. Scrappy, who had
recently filed his own habeas petition, explained to
Richardson that his own habeas raised the same issues that
were raised in his direct appeal. Richardson asked Scrappy to
do the same with respect to his petition; that is, to copy
the issues from Richardson's direct appeal. R. 45, Ex. N
at 35-36, 88. Scrappy wrote Richardson's petition while
“lying on his stomach on his bed” in their shared
cell. R. 45, Ex. A ¶¶ 18, 21. According to
Richardson, drafting the petition was difficult for Scrappy,
because he had just one arm, and because the F House was
dark, extremely loud, “smelled horrible, ” was
sometimes flooded, and there were “bugs
everywhere.” Id. Richardson also claims that
inmates “kicked on their doors all day” and
“set fire to things, ” and that he and Scrappy
had difficulty thinking and sleeping. Id.
Ultimately, Scrappy finished Richardson's petition and it
was filed on July 20, 2016.
library access and assistance.
claims to have tried to access the law library several times
between October 2015 and March 2016 so that he could get help
figuring out his filing deadline, although he does not recall
the precise number of requests he made. Id. ¶
19; R. 45, Ex. N at 19. To get library access, inmates wrote
their name and the reason they wanted to use the library on a
“request slip.” If an inmate had a court-ordered
deadline, he could include that information on the slip, and
his request would be given priority over others without such
a deadline. R. 45, Ex. A ¶ 19; R. 45, Ex. T ¶ 6; R.
50, Ex. 1 ¶ 3. Then, the inmate could place the slip in
his cell bars for a corrections officer to pick up during
mail rounds. R. 45, Ex. A ¶ 19; R. 50, Ex. 1 ¶ 3.
The librarian, Ms. Baker, generated a waiting list by living
unit. R. 50, Ex. 1 ¶ 3. Inmates could expect to wait
between 3 to 5 weeks for a library access pass if they did
not have a recorded court-ordered deadline. R. 45, Ex. T
¶ 7; R. 45, Ex. R ¶ 7.
usually did not hear anything after submitting a request
slip. R. 45, Ex. A ¶ 19. Richardson complained to the
lieutenant about his lack of library access. R. 45, Ex. N at
19. Ultimately, Richardson got access to the library three
times, although he cannot recall the dates. R. 45, Ex. A
¶ 20. Due to security procedures, Richardson's
access on each occasion was limited to considerably less than
the allotted two hours. R. 45, Ex. O ¶ 14; R. 50, Ex. 1
¶ 3; R. 45, Ex. T ¶ 8. Once there, Richardson asked
Ms. Baker for help finding the habeas statute and cases
because of his difficulty reading. But she refused. R. 45,
Ex. A ¶ 20. And while Richardson ultimately was able to
locate the legal ...