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Malone v. Hammers

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

August 30, 2019



          John J. Tharp, Jr. United States District Judge

         Before this Court is Petitioner Richard Malone's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Malone is currently serving a 21-year sentence at the Illinois River Correctional Center for a 2008 armed robbery of a Walgreens store in Chicago. This Court previously dismissed as procedurally defaulted four of the nine grounds for relief Malone asserted in his petition and ordered the Respondent to respond to the merits of Malone's five remaining claims. Each of the remaining claims is without merit, defaulted, non-cognizable, or suffers from some combination of those deficiencies and, accordingly, Malone's § 2254 petition is denied.


         Petitioner Richard Malone was convicted of armed robbery with a firearm following a bench trial in Cook County Circuit Court and was sentenced to serve 21 years in prison. Malone's sentence included a 15-year sentencing enhancement that is mandatory under state law when the defendant committed the robbery while armed with a firearm. See 720 ILCS 5/18-2(b) (providing that where a person commits robbery while armed with a firearm, “15 years shall be added to the term of imprisonment imposed by the court”); see also Ex. A, People v. Malone, 978 N.E.2d 387, 393 ¶ 24 (Ill.App.Ct. 2012), ECF No. 9-1.

         At trial, Walgreens cashier Betty Ross testified that she saw Malone in her store on March 6, 2008, “wearing a hat pulled down over his face” that covered “[m]ostly his eyes.” Ex. A, Malone, 978 N.E.2d at 389 ¶ 2. Ross testified that when Malone approached her cash register, she was able to see his face from “the middle of his eyes all the way down.” Id. at ¶ 3. Malone bought an inexpensive lighter, put it in his pocket, and then walked away before returning to buy a second lighter, which he also put in his pocket. When Ross opened the cash register drawer to complete the second sale, Malone reached his hand in the drawer. Ross pushed Malone's hand out of the drawer and closed it with her hip. Ross then began retreating away from the cash register, toward the manager's office, until she heard a noise “like something heavy hit the counter.” Id. at 390 ¶ 4. She looked back over her shoulder and saw Malone holding in his right hand a gun that was either all black or silver and black, which he was resting on the counter. Malone then told her to open the cash register, which she did. Malone reached in and took approximately $110. Surveillance footage substantially corroborated Ross's account of the robbery. That footage included an image of the offender holding what appears to be a gun while reaching into the cash register.

         Surveillance footage also showed that the offender was wearing a jean jacket with white sleeves and a wide-brimmed camouflage hat. Detectives viewed the surveillance footage and, the day after the robbery, canvassed the neighborhood surrounding the Walgreens. They looked inside a dumpster across the street from the Walgreens and found a jean jacket with white sleeves and a camouflage fishing hat that appeared to match those worn by the offender. An evidence technician retrieved the clothing from the dumpster and found gloves, a black “doo-rag, ” and three lighters in the jacket pockets. The majority of the DNA found on the gloves, hat, doo-rag, and jacket matched Malone's DNA profile.

         A few hours after the robbery, police officers showed Ross a group of photographs. Ross told the police officers that she did not recognize the offender in any of the photographs. The officers told her that the photographs were old and “the person could be changed.” Id. at 390 ¶ 5. Ross said she was unable to identify the offender from the photographs and would need to actually “see the person.” Id. The officers asked whether it was “possible” that one of the persons in the photographs could be the offender. Id. She said it “could be possible” and identified one of the persons in the photos as having a chin and lips that resembled the offender's. That photo did not depict Malone. Id.[2]

         The day after the robbery, Ross was presented with another group of photographs and indicated that “it was possible” that one of the photos depicted the offender “if they were very old pictures.” Id. at ¶ 6. The individual in the photo she selected was not Malone. Roughly 16 months after the robbery, police showed Ross a photo array that included a photograph of Malone. This time, Ross showed no hesitation in identifying Malone as the offender. A few days later, Ross went to the police station and picked Malone out of a lineup, again with no hesitation.

         Now before this Court is Malone's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Malone initially asserted nine claims as to why he is being held unlawfully, but this Court held that four of those claims are procedurally defaulted because he did not exhaust available state court remedies, and that the entire petition is untimely unless Malone can establish that he is entitled to equitable tolling pursuant to 28 U.S.C. § 2244(d)(1)(B). Order dated Apr. 12, 2017, ECF No. 13; see also Pet. 7-12, ECF No. 5 (conceding that he had not exhausted available state court remedies for four of his claims). This Court then ordered the Respondent to respond substantively to Malone's five remaining claims so that the Court may determine whether any of those claims have merit, which could moot any need to hold an evidentiary hearing to determine whether to apply equitable tolling to allow Malone to proceed on his otherwise untimely petition. Order dated Apr. 12, 2017 at 6, ECF No. 13.

         Malone's five remaining claims are that (1) the evidence was insufficient to prove Malone guilty of armed robbery beyond a reasonable doubt because Ross's identifications were unreliable and the trial judge relied on evidence outside the record, namely that the three lighters found in the pocket of the jacket had been obtained from the Walgreens where the robbery took place; (2) the evidence was insufficient to prove Malone's guilt of armed robbery beyond a reasonable doubt because the state failed to prove that the object in his hand was actually a firearm[3]; (3) the fifteen- year sentencing enhancement for use of a firearm during the commission of a crime violated the Illinois Constitution; (4) trial counsel provided ineffective assistance by assuring Malone that he was ineligible for the fifteen-year enhancement; (5) the trial court did not warn Malone about the fifteen-year enhancement before his trial.

         Malone argued issues (1) through (3) during his direct appeal, but the Illinois appellate court affirmed, holding that the evidence was sufficient to sustain Malone's conviction for armed robbery with a firearm and that the application of the 15-year sentencing enhancement did not violate the Illinois Constitution. Malone then filed a petition for leave to appeal (“PLA”) to the Illinois Supreme Court on issues (2) and (3), which the Illinois Supreme Court denied. Malone later filed a petition for post-conviction relief in state court asserting entitlement to relief based on claims (4) and (5) and other ineffective assistance grounds. The state postconviction trial court dismissed the petition without a hearing because Malone did not provide any affidavits or other evidence in support of his claims or explain the absence of such evidence. The court further held that Malone could not show prejudice because 21 years was the minimum sentence the court could have imposed under Illinois law, regardless of whether any advice or admonishment regarding the sentencing enhancement would have led to him pleading guilty instead of going to trial. Malone did not file a timely notice of appeal of the denial of his postconviction petition. He later filed a motion for leave to file a late notice of appeal, which was denied. Malone then filed a petition for leave to appeal the denial of his motion for leave to file a late notice of appeal, which was also denied.


         I. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996, codified at 28 U.S.C. § 2254, allows this Court to grant a writ of habeas corpus “if a state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by Supreme Court precedent; or (2) rested on an unreasonable factual determination.” Clark v. Lashbrook, 906 F.3d 660, 663 (7th Cir. 2018) (citing 28 U.S.C. § 2254(d)(1)-(2)). The petitioner has the burden to “show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). This standard is “difficult to meet, ” “highly deferential” to state-court rulings, and “demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted); see also Makiel v. Butler, 782 F.3d 882, 896 (7th Cir. 2015) (“Federal courts must avoid using ...

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