Jeans v. Varga

          MEMORANDUM OPINION AND ORDER

          HON. JORGE ALONSO, UNITED STATES DISTRICT JUDGE

         Petitioner David Jeans, a prisoner at the Dixon Correctional Center, brings this pro se habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his 2014 armed habitual criminal conviction from the Circuit Court of Cook County. The Court denies the petition on the merits and declines to issue a certificate of appealability.

         I. Background

         The Court draws the following factual history from the state court record, (Dkt. 14, 17, 19), including the Appellate Court of Illinois's decision on direct appeal. Illinois v. Jeans, No. 2016 IL App (1st) 141675-U, 2016 WL 7508127 (Ill.App.Ct. Dec. 29, 2016). The state appellate court's judgment is the operative decision under the Court's review because it was the last state court to address Petitioner's claims on the merits. Makiel v. Butler, 782 F.3d 882, 896 (7th Cir. 2015) (citations omitted). The state court's factual findings have a presumption of correctness, and Petitioner has the burden of rebutting the presumption by clear and convincing evidence. Brumfield v. Cain, 135 S.Ct. 2269, 2282 n.8 (2015) (citing 28 U.S.C. 2254(e)(1)). Petitioner has not made such as showing.

         On the evening of December 23, 2012, a seven-person Chicago police team conducted a surveillance of the GoLo gas station in the 3700 block of West Roosevelt Road in the North Lawndale neighborhood of Chicago. Jeans, No. 2016 IL App (1st) 141675-U, 2016 WL 7508127, at *2. The police considered the gas station, which is located in the Chicago police department's 10th District, the largest “hot spot” for narcotics sales in the district. Id; (Dkt. 17-2, pg. 317.) The police identify a “hot spot” through statistical analysis of violent and narcotics crimes. Id. at 316. The gas station has outside pumps covered by a canopy with an inside convenience store. Id. at 324.

         Sergeant Eric Olson, a twenty-year police veteran, led the team. Id. at 158. He supervised the 10th District's public violence mission team focusing on violence and narcotics hot spots in the district. Id. at 316. Olson established a surveillance post in an abandoned residential building next to the gas station. Id. at 321-22. He stationed himself on the building's second floor. Id. at 323. He observed the exterior of the gas station while hiding himself behind a set of slated blinds. Id. A broken window allowed Olson to hear what was being said outside the gas station. Id.

         At approximately 8 p.m. that evening, Olson witnessed an unknown individual standing in the gas station parking lot yelling, “Sawbucks parts. Got that Weed. Sawbucks Parts.” Id. at 325. Olson understood this to be street slang advertising a ten dollar bag of cannabis. Id. Olson is well-versed in the narcotics trade having observed hundreds of narcotics sales through his work with the Chicago police department. Id. at 327.

         Olson saw a blue Honda pull into the gas station. Id. at 325. A man, later identified as Angel Aranjo, got out of the car and told the man advertising drugs that he (Aranjo) wanted three bags. Id. at 159, 326. The man instructed Aranjo to go into the gas station convenience store. Id. Less than a minute later, Olson observed Aranjo return to his car with an item in his hand. Id. at 327. He could see Aranjo manipulating the bag. Id. at 327-28. Olson explained that, based on his years of experience, Aranjo was manipulating the bag in a manner consistent with how he had seen narcotics purchasers handle drugs in the past. Id. at 328.

         Olson radioed other members of his team instructing them to stop the Honda. Id. The other officers pulled over the car and arrested Aranjo for possession of suspected cannabis. Id. at 329. Following the arrest, Chicago police officer Nicholas Garcia, another member of Olson's team, picked up Olson and they headed to the gas station. Id. at 330.

         Garcia had been involved with the arrest of Aranjo before coming back for Olson. Id. at 330. Garcia related to Olson that Aranjo said he bought the drugs at the GoLo gas station from a black man wearing a white t-shirt and blue jeans. Id. Olson and Garcia went into the gas station convenience store to continue their investigation. Id. at 331. They encountered Petitioner in the store. The interaction between Olson, Garcia, and Petitioner was recorded by the gas station's security camera. The Court reviewed the camera video provided in the record. (Dkt. 19.) The video in the record does not have sound.

         The Court draws the following freeze frame images from the video in the record. The first is the opening scene when the video begins. The second is Petitioner entering the store approximately one minute and fifty seconds into the video. Olson and Garcia enter approximately two minutes later.

         (Image Omitted)

         Petitioner walks over and stands by the store counter where he remains while making a telephone call.

         (Image Omitted)

         He gives what appears to be a friendly fist bump to the store clerk, who is out of camera view, while continuing his call. Following the fist bump, Petitioner is standing facing the store entrance in close proximity to the store counter.

         (Image Omitted)

         Several other customers come and go through the store while Petitioner is on the phone. None of the other customers speak to Petitioner. Other than the apparent fist bump with the store clerk, Petitioner does not interact with anyone else besides the police officers. He spends his time on the phone while in the store. There is nothing on the video suggesting that Petitioner sold drugs directly to Aranjo.

         A second African American man also wearing a bluejacket, a white t-shirt and jeans enters the store at the video's three minute and fifteen second mark. Petitioner finishes his call around the three minute and thirty second mark. The other man wearing a blue jacket is visible in the first image below. In the second image, he is still in the store, but has walked down the far merchandise aisle beyond the camera's view.

         (Image Omitted)

         Petitioner makes a second call. The second man in a blue jacket remains in the store out of camera view. Approximately three minutes and forty-five seconds into the video, the second man reappears from the merchandise aisle and walks over to the store counter, while Petitioner ends his phone call.

         (Image Omitted)

         At approximately four minutes and five seconds into the video, the second man has walked back towards the merchandise shelves while Petitioner is again on his phone. Olson enters the store and can be seen in the doorway. Petitioner is facing towards the door with his body at an almost 90-degree angle to the store counter. Olson immediately confronts the second man in a blue jacket. The tan support pole blocks the camera's view of Olson.

         (Image Omitted)

         The second man in a blue jacket appears to move his head back to the right in apparent frustration when confronted by Olson. The man then raises his hands while Olson places both hands inside the man's coat pockets. According to the video time stamp, Olson has been in the store for a total of two seconds by this point. Petitioner moves closer to the store counter and turns himself closer to the counter while Olson continues his search of the second man. Petitioner continues his call.

         Finding nothing in the second man's jacket, Olson reaches into the second man's left and right front pants pockets. Olson has been in the store for eight seconds at this point. Petitioner continues to move himself closer to the counter, now standing directly in front of the cashier with his right hand on the counter. He continues to hold his phone with his left hand to his left ear.

         (Image Omitted)

         Garcia enters the store fourteen seconds after Olson. Petitioner now has his phone cradled between his left shoulder and ear, while both hands are on the store counter. Petitioner has moved himself close to the counter. His waist is either touching the counter or in very close proximity to it.

         Olson moves toward Petitioner while Garcia is with the second man. Petitioner turns his head, but the rest of his body remains at ¶ 90-degree angle to Olson and he remains next to the counter.

         (Image Omitted)

         Olson and Petitioner engage in a discussion for approximately six seconds. Petitioner turns his head to speak to Olson, but the remainder of his body is facing the store counter. Petitioner's waist appears to be touching or in very close proximity to the counter. Petitioner is at ¶ 90-degree angle to Olson throughout their conversation. The image below is representative of Olson and Petitioner's relative positions to each other during the six-second discussion.

         (Image Omitted)

         Following the six seconds of discussion, Olson places his hand on the exterior of Petitioner's clothing by Petitioner's lower back. Petitioner's right hand is now by his right side.

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         Olson removes his hand from Petitioner. Petitioner and Olson continue to talk for another eight seconds. Petitioner continues to stand at ¶ 90-degree angle to Olson. Garcia walks over from the other man and stands behind Olson while he is speaking to Petitioner during the eight seconds.

         (Image Omitted)

         Garcia then walks around to Petitioner's other side while he and Olson begin physical contact ...