Clarence GARDNER, Petitioner-Appellant, v. Paul BARNETT, Warden, Danville Correctional Center, Respondent-Appellee, 199 F.3d 915

BAUER, Circuit Judge. Joseph Waites, the student manager of the Calumet High School football team, was shot and killed when he and other members of the football team got into a street fight with local gang members. Clarence Gardner (“Gardner”), one of the gang members, was charged with first degree murder based upon a theory of accountability. He was tried, convicted and sentenced to 35 years in prison by a jury in the Circuit Court of Cook County.

Claiming error in the court’s voir dire process and error by the court in failing to permit him a brief recess in the trial to gain the attendance of a witness, Gardner appealed his conviction to the Illinois Appellate Court. The Illinois Appellate Court affirmed the conviction, and the Illinois Supreme Court denied his petition for leave to appeal. See People v. Gardner, 282 Ill.App.3d 209, 217 Ill.Dec. 940, 668 N.E.2d 125 (1st Dist.1996); 168 Ill.2d 606, 219 Ill.Dec. 569, 671 N.E.2d 736 (1996). Gardner’s petition for habeas corpus to the District Court was also denied. See Gardner v.

Barnett, 1998 WL 2838 (N.D.Ill.1998). He appealed and a panel of this Court reversed, but upon the granting of Respondent’s Petition for Rehearing that Order was vacated. This Court heard the matter en banc and now affirms the District Court’s denial of Gardner’s petition for habeas corpus relief. I. BACKGROUND Gardner does not challenge the Illinois Appellate Court’s statement of facts. Those facts are entitled to a presumption of correctness and we adopt them here. Kines v. Godinez, 7 F.3d 674, 677 (7th Cir.1993), cert. denied, 510 U.S. 1200, 114 S.Ct. 1314, 127 L.Ed.2d 664 (1994).

On October 28, 1993, Joseph Waites was fatally shot. The unfortunate events which led to his death began around 4:55 p.m. that day. Petitioner-Appellant Clarence Gardner was at 79th Street and Carpenter. The area of 79th and Carpenter, just a few blocks from the Calumet High School, was the territory of the Gangster Disciples and the Black Disciples, affiliated gangs. Beyond that was the territory of the rival gangs, the Vice Lords and the Blackstones. In between the gangs’ territory was the neutral area between 79th Street and Calumet High.

It was around this edge of the Gangster Disciples’ territory and the neutral territory that the fight erupted. As Gardner was at 79th and Carpenter, a car with two of his friends, “Tony” and “Meechie,” drove up. Gardner, Tony and Meechie are all members of the Gangster Disciples. Tony and Meechie waved Gardner over to the car and got out to talk to him when he reached them. As they stood there they saw Joseph Waites and several other members of the Calumet High School football team walking down 80th and Carpenter. The group was walking toward Morgan, toward the Blackstone’s territory.

Meechie asked Gardner and Tony if the players were “hooks,” i.e. whether they were members of the Blackstone gang. Neither Gardner nor Tony replied. The three ran to the corner of 80th and Carpenter where they were joined by a fourth person, Andre Bridges. Bridges was a Black Disciple. The four then went to 80th and Morgan, where eleven or twelve members of the football team were present. Gardner asked one of the football players what was going on and was told that the football players were “having an egg fight.” He replied “oh” and walked back toward 80th and Carpenter with the other three Disciples.

There were about fifteen Black Disciples waiting at the corner of 80th and Carpenter when Gardner, Tony, Meechie and Bridges got back. Immediately, Meechie and Tony ran back to Meechie’s car and drove down Carpenter to 80th, where they parked the car in the middle of the block. Meechie got out and began walking toward the football players. His hands were in his pockets. Meechie charged the football players, grabbing one and igniting a full blown confrontation involving at least 50 youths.

As this was happening, someone shouted “bust them folks” three or four times. “Bust them” is a street expression meaning “shoot them.” Some of the football players began to flee. Joseph Waites tried to run away but as he was running, he fell, and was beaten by six Black Disciples. Gardner joined in and admittedly punched Joseph Waites in the chest three times. As Waites lay on the ground balled up, the Disciples continued beating him. The beating lasted until Meechie and Tony once again arrived in the car.

Tony got out of the car with a .25 or a .22 automatic, approached Joseph Waites and told the other Disciples to move because he was “fitting to bust” Waites. Gardner understood this meant Tony was going to shoot Joseph Waites. Gardner said “bust him” and began to run away. As Gardner was running away, Tony shot Joseph Waites four times. Gardner was later arrested and charged with first degree murder under a theory of accountability. In a statement given to the police, Gardner admitted the above facts and, importantly, the fact that he said “bust him” to Tony just before Tony shot and killed Joseph Waites.

Michael Waites (Joseph’s brother) was present during the fight and testified at trial. Other members of the football team to testify at trial were Anthony Foster and Cantrell Davis. All three testified that the person shouting “bust them folks” as the brawl began was Clarence Gardner. Their individual testimonies further showed Clarence Gardner’s involvement in and responsibility for Joseph Waites’ death. Michael Waites (“Michael”) said that Gardner and ten to fifteen other gang members came up to the team.

Gardner asked whether the players were “fitting to jump on some of his folks” and told Michael and another player to take off their hats, which they did. At this point, a blue car pulled up and stopped across the street. Two men got out. Gardner said to the two men “bust them folks.” Gardner asked if the players were “hooks.” The team said they were not and showed Gardner their football jerseys. Gardner, Michael testified, replied “fuck that shit, bust them.” The driver of the car then swung at one of the players, and the other boy swung back. Gardner said “bust them” again and the team started to run.

About five seconds later, Michael heard gunshots. Anthony Foster (“Foster”) testified that after telling Gardner they were not “hooks,” Gardner told the driver of the blue car the team members were “hooks.” Gardner then told the driver and his passenger to “bust at their ass.” Foster knew that by this Gardner was telling the other gang members to shoot them. Cantrell Davis similarly testified that Gardner told the car’s driver and passenger the players were “hooks” even though they said they were not.

He also testified that after that Gardner said “fuck that folks shoot them, pop at them, bust at them, bust at them.” Gardner presented only one witness at trial, a police officer called to impeach minor aspects of Michael’s, Foster’s and Davis’ testimony. He would have called one additional witness, Luther Donald (“Donald”), but Donald failed to appear in court when his testimony would have been presented. The trial court refused to continue the case over the weekend so that Donald could be brought in. Gardner did not testify. II. DISCUSSION A.

Standard of Review Federal courts may grant a writ of habeas corpus when a person is held in custody under a state court judgment in violation of the United States Constitution. 28 U.S.C. § 2254; Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir.1996). In order to merit federal habeas relief, a petitioner must establish that the state court proceedings resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). See also Lindh v.

Murphy, 96 F.3d 856 (7th Cir.1996) (en banc) rev’d on other grounds 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Otherwise, a petitioner must demonstrate that the state court decision was based on an unreasonable determination of the facts, given the evidence presented during the state court proceedings. 28 U.S.C. § 2254(d)(2). Where, as here, the district court denied habeas relief, we review the district court’s findings of fact under a clearly erroneous standard and its legal conclusions de novo. Neumann v. Jordan, 84 F.3d 985, 987 (7th Cir.1996). B.

Continuance The trial began on Wednesday, February 15, 1995. By the middle of the afternoon on Friday, February 17th, the pros-After calling the police ecution rested, officer who had taken the witness’ statements, the defense ran out of witnesses. Gardner’s lawyer told the court he had one more witness, Luther Donald, a football player and friend of the victim. Donald had promised to be in court that day but had gone to school instead. Therefore, he requested a continuance to the next court day (which would have been Tuesday since Monday was a court holiday) in order to allow Donald to testify.

When asked what Donald would testify to, defense counsel said: We expect him to say that he was present with other football players and that he saw this car come up with two people in it. And that he heard the words at that point bust him or shoot him. That it came from one of the people in the car neither of whom were seen. The trial judge denied the motion for a continuance, saying: Let the record reflect that.it is now 3:35. It appears to me on Friday — Monday is a court holiday. Tuesday we are 4 judges short.

We have five jury trials, 2 judges to do it, myself and Judge Erickson * * * It seems to me that this witness’ testimony is cumulative * * * including that somebody in the car said bust him. * * * [A]ll the witnesses have said this person got out of the car, said he wanted to bust him or something to that effect. It’s already been said. And it’s also opinion. * * * [I]f it was just one day tomorrow, that wouldn’t be so bad. I don’t want the jury out on this case for three days and coming in on the 4th especially in view of" the Court’s

schedule and in view of the fact that this is cumulative. The appellate court “express[ed its] uneasiness with the trial court’s excessive concern about the next week’s” trial schedule, but nonetheless determined that Donald’s proposed testimony was not material and that its absence did not prejudice Gardner’s right to a fair trial. 282 Ill.App.3d 209, 215-216, 217 Ill.Dec. 940, 668 N.E.2d 125. The court correctly reasoned that “[wjhether Gardner said it once (as he admitted) or four times (as eyewitnesses testified), ‘bust him’ is a directive to shoot.

We cannot see that Donald’s testimony about the initial ‘bust him’ would have made any difference.” 282 Ill.App.3d at 216, 217 Ill.Dec. 940, 668 N.E.2d 125. This type of harmless error analysis has been approved by the Supreme Court, Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)), and thus we cannot say that the Illinois Appellate Court’s decision was contrary to or involved an unreasonable application of federal law.

The prosecution’s theory at trial was that Gardner was the gang leader and it was his order to “bust” Joseph Waites that Tony was following when he shot Waites. Presumably, Gardner’s attorney sought to counter this theory with Donald’s testimony that someone (in addition to) Gardner used the' words “bust him” during the melee. But, whether other orders were given as the fight started is of little help to the defense. Gardner admitted saying “bust him” as Tony was standing over Waites with a cocked gun. Immediately after Gardner gave the order to shoot, Tony fired four shots into Waites, killing him.

Gardner was tried and convicted under a theory of accountability. That statute provides that “[w]here two or more persons engage in a common criminal design or agreement, any acts in furtherance thereof by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts.” 720 ILCS 5/5-2(c). Therefore, the fact that someone other than Gardner may have said “bust him” is not dispositive of Gardner’s guilt. The proffered testimony was, as the appellate court correctly concluded, not material.

We are mindful, as the petitioner urges, that every defendant has a right to present witnesses in his defense. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). But, that right is not unfettered and is within the discretion of the trial judge. The trial court’s failure to grant a continuance to secure the presence of a witness will result in a writ of habeas corpus only if the defendant can demonstrate the possibility that the error caused the trial to be fundamentally unfair. United States ex rel. Searcy v. Greer, 768 F.2d 906, 912 (7th Cir.1985). This Gardner cannot do.

To determine whether the trial court abused its discretion in denying the request for a continuance, thus rendering the trial fundamentally unfair, the court must determine (1) whether due diligence was exercised to secure the availability of the witness; (2) whether the witness would offer substantial favorable testimony; (3) whether the witness is both willing and available to testify; and (4) whether the defendant would be materially prejudiced by the denial of the continuance. Id. at 913.

The appellate court considered these factors, although under the guise of state law, and quite correctly concluded “Donald’s testimony about hearing ‘bust him’ from someone in the car would not have materially impeached any State witness. The eyewitness testimony and Gardner’s own confession place the defendant squarely within a violent enterprise.” People v. Gardner, 282 Ill.App.3d at 216, 217 Ill.Dec. 940, 668 N.E.2d 125. The appellate court, pursuant to its consideration of these factors, also concluded “[wjhether Gardner said it once or four times, ‘bust him’ is a directive to shoot.

We cannot see that Donald’s testimony about the initial ‘bust him’ would have made any difference.” Id. Having analyzed the same factors in its inquiry that this court would examine to determine whether the petitioner’s rights to due process and a fair trial were violated, and having reached the same result, we cannot say that the Illinois court’s determination was “contrary to, or involved an unreasonable application of clearly established federal law” or was “based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).

The judgment of the District Court denying the writ of habeas corpus on this issue is therefore affirmed. C. Voir Dire Gardner also argues that he was deprived of his Sixth Amendment right to be tried by an impartial jury when the trial court refused to voir dire potential jurors on four out of five questions he submitted regarding potential bias against street gangs.

The question asked by the trial court was “[hjave you or any other member of your immediate family ever had any direct involvement with a street gang?” The court indicated that if any member of the venire responded affirmatively to that question it would follow up with additional questions. Despite having said he would not ask the other proposed questions regarding street gangs, the trial judge did ask the additional question of whether anyone had an indirect involvement with street gangs. Only one gentleman answered positively.

He was not selected for the jury even though another juror who had a potential bias because he had children who played on a high school football team was. These questions, in addition to the promise to follow-up on any affirmative responses, and the general admonishments about being able to follow the law and set aside any sympathy and prejudice in rendering judgment were sufficient to address the possibility of juror bias. The conduct of voir dire is left to the trial court’s sound discretion. Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).

The litigants do not have a right to have a particular question asked. Ham v. South Carolina, 409 U.S. 524, 527, 98 S.Ct. 848, 35 L.Ed.2d 46 (1973). Although the Constitution does require inquiries into certain biases (such as race), Ham, 409 U.S. at 527, 93 S.Ct. 848, bias against street gangs is not among them. Thus, Gardner had no entitlement to the questions he proposed. In the state courts of Illinois, however, a litigant is entitled to have the venire questioned as to potential biases against gang members. People v. Jimenez, 284 Ill.App.3d 908, 220 Ill.Dec. 97, 672 N.E.2d 914, 917 (1st Dist.1996).

In that case, Jimenez’s conviction was reversed because the trial court refused to ask any questions that could expose jurors’ knowledge of or predisposition against gangs. Id. at 919. Obviously, in our case, the situation is much different. The trial court here did ask questions to discover who among the panel had familiarity with gangs through experience. That line of questioning revealed only one prospective juror who had an “indirect” experience with gangs. Had there been any need to go any further with the questioning, the court indicated it would be willing to do so.

The Petitioner cites us to the Jimenez holding in a footnote of his brief. We note that Jimenez is state law and not binding upon this court. Nor do we believe it should be followed. The subject matter of gangs and the unlawful activities their members engage in is delicate and long inquiries can be more detrimental to a fair trial than serve to expose an unwarranted prejudice. Not only does it invite a trip through a mine field it can actually serve to educate some persons whose understanding of gangs is limited, and create prejudice where none existed before.

Certainly, there are areas of suburbia where gangs and street crime are not pervasive and the only knowledge of gangs those citizens have is of hanging out with “the gang” after school. Or of getting their friends (“the gang”) together for an evening of reminiscing about “the good old days.” In areas where this is the prevalent way of thinking, lengthy inquiries into possible predispositions against gangs is not necessary. Thus, unlike the state court in Jimenez, we believe the better way is to leave the matter to the sound discretion of the trial judge.

Federal habeas relief is only available where a petitioner establishes that the state court proceedings resulted in a decision that was “contrary to, or involved an unreasonable application of clearly established federal law” or was “based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). Gardner fails to show the Illinois Appellate Court unreasonably applied federal law when it determined the trial judge’s question was sufficient to address the issue of gang bias. Thus, relief is unwarranted on this claim. III.

CONCLUSION Although things did not turn out as Clarence Gardner wished, we do not believe that the errors about which he complains denied him a fair trial. They certainly do not rise to the level of constitutional violations and deprivation of due process. Accordingly, we affirm the District Court’s denial of Clarence Gardner’s petition for writ of habeas corpus. . In a statement given to the police, Gardner admitted that he knew that Meechie sometimes kept a gun in his car under the dashboard. Gardner had last seen it there three or [our weeks before the shooting. .

The defense contends that Donald was under subpoena to appear in court that day. But that cannot be confirmed. There is no subpoena in the record. . The Illinois Supreme Court denied the petition for leave to appeal. 172 Ill.2d 559, 223 Ill.Dec. 198, 679 N.E.2d 383.