Argued September 26, 2014.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13-C-3838 -- Matthew F. Kennelly, Judge.
For Brian Jones, Petitioner - Appellant: Jodi Garvey, Attorney, Lisa Lundell Wood, Attorney, Patrick W. Blegen, Attorney, Blegen & Garvey, Chicago, IL.
For Kim Butler, Respondent - Appellee: Michael M. Glick, Attorney, Sameena Mohammed, Attorney, Office of The Attorney General, Chicago, IL.
Before FLAUM, MANION, and KANNE, Circuit Judges.
MANION, Circuit Judge.
Petitioner Brian Jones seeks post-conviction review of his convictions in Illinois state court for first-degree murder and first-degree attempted murder under 28 U.S.C. § 2254. He seeks relief on three separate grounds: that his convictions were based on insufficient evidence; that he received ineffective assistance from his trial and appellate counsel; and that his rights to due process were violated by the denial of a post-conviction petition. We affirm the district court's denial of habeas relief.
In § 2254 proceedings, federal courts are foreclosed from fact-finding. We therefore defer to the findings of the Illinois trial court, which have not been challenged and are presumed to be correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Harris v. Thompson, 698 F.3d 609, 613 (7th Cir. 2012).
Brian Jones was tried in a bench trial for the first-degree murder of Kenneth Dunne and the first-degree attempted murder of Lance Priest. People v. Jones, No. 1-01-947, [published in table format at 332 Ill.App.3d 1136, 835 N.E.2d 994] (Ill. App. Aug. 6, 2002). The trial focused on a shooting that took place at 91st Street and Ashland Avenue in Chicago during the early morning (1:45 a.m.) of August 17, 1998.
Priest served as the State's primary witness. He testified that Jones, whom he knew from the neighborhood as " Bird," was a member of the Blackstones gang. Priest and Dunne were standing in front of a liquor store speaking to Raleigh Pritchett, who was sitting in his car. At that moment, Jones approached from a distance of seventy-five feet, and said " what's up folks." After saying this, Jones, who was wearing jeans and a blue and white checkered shirt, reached into his waistband for a gun, whereupon Priest and Dunne immediately set off running. Jones opened fire. As he was running, Priest looked back momentarily and saw Jones shooting at them.
Dunne was fatally shot and fell to the ground. As Priest attempted to assist Dunne, he saw a red car approach, causing him to flee several blocks away. By the time Priest returned to Dunne, police officers had arrived. Priest described the shooter to the police, including that he wore a blue and white checkered shirt. Priest identified Jones from a photograph produced by the police. While speaking with the officers, he spotted Jones driving the red car and alerted the police, who started running towards the car as it drove away. A few hours later, the officers took Priest to the apartment of Lasandra Mathies, where they had apprehended Jones. There, Priest once again identified him as the shooter.
Chicago police officers Don Ordanas and Richard Maxwell corroborated Priest's account of the incident with the red car. The car, with its engine still warm, was found at a nearby vacant lot. Police found
Jones shirtless and running down the back stairs of the building in which Lasandra Mathies's apartment was located. The officers identified Jones as the driver of the red car. They also recovered a blue and white checkered shirt from the apartment, which Sergeant Anita Medina identified as the shirt that Jones was wearing as he drove the car.
Raleigh Pritchett testified that he was sitting in his car speaking with Priest and Dunne at the time of the shooting. Pritchett stated that a man approached, said " what's up folks," and began shooting. Altogether, the man fired nine or ten shots from a distance of fifteen to twenty feet. Despite the hour, the area was well-lighted, " like almost broad daylight." Although he was unable to see the man's face, he described the shooter as a brown-skinned black man wearing blue jeans and a blue and white checkered shirt. Pritchett did not recognize the man and could not say from which direction the man approached.
Another witness, Sharee Jackson, testified that she saw Jones at the apartment of her cousin, Lasandra Mathies, on the night of the shooting. She described him as wearing a blue and white checkered shirt and carrying a black gun in his pants. At about 1 a.m., Jones left the apartment with Byron Manson to get cigarettes. Over the course of her testimony, Jackson offered various versions of a statement she heard Jones make when he returned home. On direct examination, she claimed that she heard Jones say " I shot a moe" --the term " moe" signifying a member of the Blackstones gang. On cross-examination, Jackson repeated this statement but acknowledged that she did not tell the police about this statement when she first spoke with them. When asked on re-direct examination what Jones's exact words were, Jackson said, " I shot a moe." On re-cross examination, Jackson denied telling police that she heard Jones say " I shot the moe."
On cross-examination, Steven Kramer, the defense counsel, elicited the following testimony from Jackson in an attempt to impeach Jackson about her statement:
Q: I want to direct your attention back to the early part of June. You remember receiving a call from someone who identified himself as Steven Kramer?
Q: And do you recognize that person's voice as being my voice?
Q: And you answered the phone?
A: I did.
Q: And identified you [sic]--telling you my name and who I ...