Evans v. Lashbrook

Shannon Evans (M-05017), Petitioner, v. Jacqueline Lashbrook Warden, Menard Correctional Center, Respondent.

No. 17 C 8571

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

March 26, 2020

Hon. Jorge L. Alonso

MEMORANDUM OPINION AND ORDER

Petitioner Shannon Evans, a prisoner at Menard Correctional Center proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He challenges his 2004 Cook County conviction for murder. Respondent has answered the petition, arguing that Petitioner's claims are procedurally defaulted. As more fully explained below, Respondent is correct. The Court denies the § 2254 petition and declines to issue a certificate of appealability.

BACKGROUND¹

Petitioner was convicted of shooting and killing Robert Duffy on October 13, 2005. People v. Evans, 81 N.E.3d 534, 537 (Ill. App. Ct. 2017). At trial, Tina Mosley, Duffy's longtime girlfriend, testified that: Duffy and Petitioner were friends; they were members of the Gangster Disciples; and they sold drugs together at a house located at 2210 South Parnell Ave. in Chicago(the "Parnell house"). Id. One of their regular customers was Rashad Bethany, and Mosely often saw Petitioner, Duffy, and Bethany together. Id.

On the day after Duffy was shot and killed, Mosley saw both Petitioner and Bethany. Id. Petitioner's eyes were bloodshot, he was shaking, and he appeared nervous. Id. He told Mosley that he and Duffy were conducting a drug deal at the Parnell house with members of another gang. Id. Petitioner told Mosley that one of the other gang members pulled out a gun, a fight ensued, and Duffy was shot. Id. Petitioner further stated that he shot one of the other gang members and fled to hide his gun. Id. When he returned, he saw two bodies being placed in an ambulance. Id.

Eischa Tooney testified that she lived about a block from the Parnell house. Id. She stated that, on October 13, 2005, Petitioner, Bethany, and two other men known as Little Ricky and Peanut were on her porch drinking, as they often did. Id. She saw all four men leave her porch and walk toward the Parnell house. Id. Five to ten minutes later, Tooney heard gunshots and then saw all four men running away from the Parnell house, along with other people on that block. Id.

The next time Tooney saw Petitioner was at Duffy's funeral. Id. He told her that he was worried he was being framed for the murder. Id. Tooney replied she had heard nothing about the shooting. Id. One or two months later, when Petitioner, Bethany, Little Ricky, and Peanut were again at Tooney's house, she heard Bethany brag about shooting Duffy and stealing his drugs. Id. Although Tooney testified at trial that she could not remember if Petitioner said anything about the shooting, she was reminded of her grand jury testimony where she stated that Petitioner admitted to being a "part of it" and helped steal Duffy's money and drugs. Id. at 537-38. When asked about her grand jury testimony, Tooney responded: "I was asked those questions, and you say I answered that. Evidently, I answered that." Id. at 538. After her grand jury testimony, the State helped Tooney relocate for her safety and paid her travel expenses. Id.

Patrick Fallie testified that he had known Petitioner since childhood. Id. Although Fallie stated at trial that he did not know his whereabouts on October 13, 2005, he was impeached with his grand jury testimony, wherein he stated that he witnessed the shooting. Id. According to his grand jury testimony, on the night of the shooting, Fallie was in his car across the street from the Parnell house waiting for two friends to purchase cigarettes from the house next to it (the "cigarette house"). Id. Fallie stated he saw Duffy limp out of the Parnell house, followed by Petitioner and another man, both holding guns. Id. Duffy was facing Petitioner, had his hands in front of his face as if to block bullets, and said: "Don't shoot, don't shoot, it aint worth it, don't kill me." Id. at 538. Fallie stated that Petitioner shot Duffy four or five times, then picked up a bag Duffy was carrying, and ran. Id. Fallie further told the grand jury that he did not tell the police this information sooner because he feared for his life. Id.

Chicago police officer Roberta Honeycutt testified that she was the first officer at the scene after the shooting. See People v. Evans, No. 1-09-1389, 2011 WL 9692669, at *4 (Ill. App. Ct. July 15, 2011). Duffy was still alive when she arrived. Id. An ambulance came shortly thereafter, and Duffy was transported to a hospital. Id. Honeycutt stated there was no one other than Duffy injured at the scene. Id.

Petitioner called one witness, Markina Polk, to testify. Id. Polk stated that, on the night of the shooting, she and a friend (referred to as "Mike Mike") went to the cigarette house to buy cigarettes. Evans, 81 N.E.3d at 538. Polk saw Fallie, who she knew, sitting in a car across the street. Id. As Polk approached the cigarette house, she saw Duffy on the lawn of the Parnell house arguing with two men she did not know. Id. One of the men was armed. Id. One of the men pushed Duffy, and the man with a gun then began shooting him. Id. According to Polk, neither of the two men was Petitioner. Id. Once the shooting began, Polk ran into the cigarette house. Id. She statedshe heard around five shots. Id. Polk testified that she attempted to contact police officers after she heard that Petitioner had been arrested for the shooting. Id. She did not pursue the matter, however, because she was afraid of the actual shooters. Id.

A jury found Petitioner guilty of murdering Duffy. Id. Petitioner was sentenced to 45 years' imprisonment, and received an additional 20-year consecutive sentence for personally discharging a firearm. Id.

On direct appeal, Petitioner argued: his Illinois right to a speedy trial was violated; the trial court improperly admitted hearsay evidence; and the trial evidence was insufficient to support his conviction. Evans, 2011 WL 9692669, at *6-9. The state appellate court denied all three claims. Id. Petitioner filed a petition for leave to appeal (PLA) in the Illinois Supreme Court, asserting only his speedy-trial claim. (Dkt. 7-1.) The state supreme court denied the PLA. People v. Evans, 962 N.E.2d 484 (Ill. 2011).

Petitioner filed a state post-conviction petition and then, after counsel was appointed, an amended petition. Evans, 81 N.E.3d at 538. His amended post-conviction petition argued: (1) new evidence—affidavits from Mike Miles and Tiara Murph and DNA evidence found in the Parnell house—demonstrated Petitioner's actual innocence; and (2) ineffective assistance of counsel for failing to adequately investigate and present evidence of Petitioner's innocence. Id. at 538-39. Miles's affidavit, similar to Polk's testimony, stated: he drove Polk to the cigarette house; he was in his car when he saw two men chase Duffy out of the Parnell house; one of the men, who Miles recognized as "Gotta," shot Duffy; neither of the two men was Petitioner; Miles did not contact the police because he feared for his safety; and Miles would have testified for Petitioner at his trial if he was asked to do so. Id. at 539.

Murph stated in her affidavit that, as she was walking home, she saw two men chase Duffy out of the Parnell house. Evans, 81 N.E.3d at 539. Upon hearing gunshots, she ran home. Id. Murph's grandmother moved Murph to Indiana for her safety. Id. She returned to Chicago sometime later to learn that Petitioner had been convicted for Duffy's murder. Id. Murph knew Petitioner from the neighborhood and knew he was not one of the men who chased Duffy out of the Parnell house. Id.

The DNA evidence consisted of swabs taken from two juice bottles found in the Parnell house which did not match Petitioner's DNA. (Dkt. 7-5, pg. 54-55.) The state trial court denied Petitioner's post-conviction claims on the merits. Id. at 539-40.²

In his post-conviction appeal, Petitioner argued: (1) he presented new, noncumulative evidence (Miles's and Murph's affidavits) establishing his actual innocence and (2) his trial attorney was ineffective for failing to reasonably investigate and call Miles as a witness. (Dkt. 7-5.) The state appellate court rejected both claims. Evans, 81 N.E.3d at 541-45. In his PLA to the Illinois Supreme Court, Petitioner argued only his state-law actual innocence claim. (Dkt. 7-2.)

DISCUSSION

Petitioner's § 2254 petition asserts four claims: (1) his constitutional speedy-trial right was violated; (2) the evidence was insufficient to support his conviction; (3) new evidence—Murph's and Miles's affidavits and DNA evidence—"made a substantial showing that Petitioner was actually innocent," and (4) ineffective assistance by both trial and appellate counsel—(a) trial counsel allegedly "failed to investigate/present evidence discrediting the state's theory of the case," "failed to explain sentencing consequences" with respect to a plea offer, and "failed to objectto inadmissible evidence/improper argument," and (b) appellate counsel failed to argue trial counsel's ineffective assistance and failed to challenge the "trial court ruling on Eischa Tooney" (presumably with admission of her grand jury testimony into evidence). (Dkt. 1, pg. 5-6.)

Respondent argues that Petitioner's claims are procedurally defaulted because he did not exhaust state court remedies. Respondent, for the most part, is correct.

The Exhaustion Requirement and Procedural Default:

State prisoners seeking habeas corpus relief in federal court must "exhaust[ ] the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). They must "give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts," which is accomplished "by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). As the Supreme Court explains, "[s...