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Richardson v. Thompson

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

August 6, 2019

Andre Richardson, Petitioner,
Scott Thompson, Respondent.



         On July 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.[1] 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.


         I. Underlying Facts

         On 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.

         On 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.

         The 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.

         Around 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.

         Diamond 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.

         Richardson 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.

         After 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.

         Around 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 what happened.

         Richardson's 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.

         II. State Court Conviction

         Before 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.

         As a 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.

         Richardson's 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.

         The 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 objects.

         The 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.

         III. Direct Appeal

         Richardson 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.

         On 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) (Richardson IV).

         IV. State Post-Conviction Proceedings

         Consistent 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.[2] 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).

         V. Federal Habeas Petition

         Almost 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.

         I. Equitable Tolling

         Respondent 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.

         A. Additional Background Facts

         The 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).[3]Richardson offers several reasons for the delay. Each is addressed below.

         The need for, and difficulty obtaining, assistance with his petition.

         Richardson 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.

         Because 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.

         Richardson 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.

         Richardson 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.[4] R. 45, Ex. A ¶ 14.

         Richardson 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.

         On 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.[5]

         Law library access and assistance.

         Richardson 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.

         Richardson 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 ...

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