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Shaw v. Hammer

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

January 16, 2020

DONALD A. SHAW (R48130), Petitioner,
JUSTIN HAMMER, Warden, Illinois River Correctional Center, Respondent.


          Sharon Johnson Coleman United States District Judge.

         Before the Court is pro se petitioner Donald A. Shaw's petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254(d)(1). For the following reasons, the Court denies Shaw's habeas petition and further declines to certify any issues for appeal under 28 U.S.C. § 2253(c)(2).


         When considering habeas petitions, federal courts presume that the factual findings made by the last state court to decide the case on the merits are correct unless the habeas petitioner rebuts those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Sims v. Hyatte, 914 F.3d 1078, 1095 (7th Cir. 2019). Where Shaw has not provided clear and convincing evidence to rebut this presumption, the following factual background is based on the Illinois Appellate Court's decisions on direct and post-conviction appeal.

         Shaw and his co-defendant Lance Edwards were each charged with one count of first degree felony murder based on armed robbery and one count of first degree felony murder based on an aggravated battery with a firearm after the victim Shakir Beckley was shot and killed. Shaw was convicted of felony murder after his initial jury trial. On his direct appeal, however, the Illinois Appellate Court vacated his conviction and remanded for a new trial based on the trial court's refusal to grant a continuance allowing defense counsel to call an eyewitness who would have corroborated Shaw's version of the events.

         Prior to Shaw's second jury trial, the State filed a motion in limine to admit certain gang evidence to explain the motive for the shooting and the deliberate misidentification of the shooter. The trial court granted the motion. Trial evidence established that the fatal shooting of Beckley and the wounding of another victim, Vernard Davis, resulted from two gang-related incidents. More specifically, witnesses testified that Shaw, Vernard Davis, and Mycal Davis were members of the Apache Stones street gang. Co-defendant Edwards-a longtime friend of Shaw-was a member of the Vice Lords street gang. On April 10, 2002, Shaw brought Edwards over to Mycal's residence. A physical altercation ensued between Shaw and Vernard because Shaw brought a rival gang member (Edwards) over to Mycal's house. Eventually, Shaw left, leaving behind his jacket, a cell phone, and keys. Vernard subsequently phoned him to set up a meeting to retrieve the personal items.

         On April 13, 2002, Shaw drove his car to the meeting accompanied by Edwards and two other Apache Stones members Tavares Hunt and Natari Gordon. Hunt was armed with an AK-47 assault rifle. Beckley, who was driving an SUV, had offered Vernard a ride to the meeting. As Beckley, Vernard, and Terrill Evins were walking toward the SUV, Shaw, Edwards, and Hunt approached them. Hunt put the AK-47 rifle to Evins' head and told the men to walk to the SUV. Edwards then punched Vernard in the face and Gordon pistol-whipped Vernard while Shaw kicked him. When Vernard attempted to run away, Hunt shot him in the shoulder and stomach. One of the shots struck Beckley in the neck, killing him.

         The jury returned a general verdict finding Shaw guilty of first degree felony murder. The trial court sentenced him to 22 years in prison. On direct appeal, Shaw raised one issue, namely, that he was denied a fair trial when the trial court allowed the State to introduce prejudicial gang evidence, including photographs of Hunt's tattoos. Shaw's arguments in support of this claim were based on state evidentiary rules and case law. See People v. Smith, 565 N.E.2d 900, 907, 152 Ill.Dec. 218, 225, 141 Ill.2d 40, 58 (Ill. 1990) (gang-related evidence “is only admissible where there is sufficient proof that such membership or activity is related to the crime charged.”). On March 27, 2012, the Illinois Appellate Court rejected Shaw's argument and affirmed his conviction. Shaw filed a petition for rehearing arguing that the appellate court denied him full appellate review by failing to address his argument that the admission of Hunt's gang tattoos was unduly prejudicial and that the court's gang evidence assessment was erroneous. The Illinois Appellate Court denied the petition for rehearing without comment in August 2012. Shaw filed a petition for leave to appeal (PLA) in the Illinois Supreme Court arguing, in relevant part, that the Illinois Supreme Court should provide guidance to the lower courts about applying People v. Smith. The Illinois Supreme Court denied Shaw's PLA on November 28, 2012.

         Shaw then filed a pro se post-conviction petition pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq. Relevant to the present habeas petition, Shaw argued that his trial counsel was constitutionally ineffective for failing to file a pre-trial motion to dismiss the felony murder charge predicated on aggravated battery with a firearm under Illinois' independent felonious purpose rule. He also brought an ineffective assistance of appellate counsel claim based on counsel's failure to raise this argument about trial counsel's ineffectiveness. In December 2013, the trial court summarily denied Shaw's post-conviction petition.

         On post-conviction appeal, Shaw, by counsel, brought a different ineffective assistance of trial counsel claim based on counsel's failure to request separate verdict forms for the two counts of felony murder and for failing to request a jury instruction on the independent felonious purpose rule. Shaw further argued that his appellate counsel on direct appeal was ineffective for failing to raise trial counsel's errors in this respect. On April 25, 2016, the Illinois Appellate Court upheld the summary dismissal of Shaw's post-conviction petition concluding that Shaw had forfeited his arguments on appeal by not raising them in his post-conviction petition. The appellate court also rejected Shaw's arguments on the merits. Shaw filed a counseled PLA in the Illinois Supreme Court asserting that his trial counsel was constitutionally ineffective for failing to request separate verdict forms and a jury instruction on the independent felonious purpose rule. The Illinois Supreme Court denied Shaw leave to appeal in September 2016.

         Legal Standards

         “Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court cannot issue a writ of habeas corpus on a claim rejected on the merits in state court unless the petitioner surmounts high obstacles.” Janusiak v. Cooper, 937 F.3d 880, 888 (7th Cir. 2019). Specifically, the Court cannot grant habeas relief unless the state court's decision was contrary to, or an unreasonable application of federal law clearly established by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Felton v. Bartow, 926 F.3d 451, 464 (7th Cir. 2019). The Supreme Court has explained that a state court's decision is “contrary to” clearly established Supreme Court law “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.” Williams, 529 U.S. at 405. Under the “unreasonable application” prong of the AEDPA standard, a habeas petitioner must demonstrate that although the state court identified the correct legal rule, it unreasonably applied the controlling law to the facts of the case. Id. at 407.

         “Inherent in the habeas petitioner's obligation to exhaust his state court remedies before seeking relief in habeas corpus, is the duty to fairly present his federal claims to the state courts.” King v. Pfister, 834 F.3d 808, 815 (7th Cir. 2016) (citation omitted). “A federal court will not hear a state prisoner's habeas claim unless the prisoner has first exhausted his state remedies by presenting the claim to the state courts for one full round of review.” Crutchfield v. Dennison, 910 F.3d 968, 972 (7th Cir. 2018); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

         Habeas ...

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