Anthony Bolton v. Guy Pierce
Filing
Filed opinion of the court by Judge Rovner. AFFIRMED. Ilana Diamond Rovner, Circuit Judge; Diane P. Wood, Circuit Judge and Ann Claire Williams, Circuit Judge. [6514604-1] [6514604] [10-3150]
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In the
United States Court of Appeals
For the Seventh Circuit
No. 10‐3150
ANTHONY BOLTON,
Petitioner‐Appellant,
v.
KEVWE AKPORE,
Respondent‐Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 05 CV 801 — Blanche M. Manning, Judge.
ARGUED APRIL 5, 2012 — DECIDED SEPTEMBER 12, 2013
Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Anthony Bolton was convicted of
first degree murder following a bench trial in the State of
Illinois in 1997. He now appeals from the denial of his petition
for a writ of habeas corpus. See 28 U.S.C. § 2254. Because he did
not preserve in the district court the issue he now raises on
appeal, and because he did not raise the issue he now asserts
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through a complete round of state court review, we affirm the
judgment of the district court denying the writ.
I.
Factual determinations by state courts are presumed to be
correct in federal habeas corpus proceedings, and the applicant
has the burden of rebutting that presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Vasquez v. Hillery,
474 U.S. 254, 258 (1986); Sumner v. Mata, 449 U.S. 539, 545‐47
(1981). We glean the following facts from the unpublished
opinions of the state court on direct appeal and in post‐
conviction proceedings. In the evening of October 21, 1994,
Brandy Smith and Daccheus Birmingham were driving near
101st Street and Cottage Grove Avenue in Chicago. They
pulled into the London Towne apartment complex and parked.
Smith started to leave the front passenger seat but noticed a
man standing behind the car. Although it was dark, street
lights illuminated the area. At first, Smith mistook the man for
a friend named Steven, but Birmingham, who was driving,
responded that the man was not Steven. The man pointed a
gun at Smith and Birmingham and shouted, “We got some
GD’s over here.1“ Smith looked directly at the man from a
distance of approximately seven feet and shouted to Birming‐
ham to drive them away. As Smith got back in the car, Bir‐
mingham struggled with the gear shift and then caught the car
on a curb. During those critical moments, the man came
around to Birmingham’s side of the car and began firing the
1
“GD’s” is an abbreviation for Gangster Disciples, a street gang in Chicago.
Smith testified that Birmingham was a member of the Gangster Disciples
but that she was not a member of the gang.
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gun into the car. Smith dropped to the floor as she heard the
bullets shatter the window but was able to see Bolton’s face as
she looked up. Birmingham drove toward the exit of the
complex on Cottage Grove Avenue, but he had been fatally
wounded. As he lost consciousness, the car swerved, hit a trash
can and then rolled to a stop.
Hattie May Singleton, who lived near the apartment
complex, saw the trouble developing. Hearing a commotion
outside her home on 101st Street, she went to her porch and
observed three men standing on a hill near an old, dark‐
colored car, speaking loudly. One of the men was wearing a
dark jacket with white markings.2 When another car drove past
them, she heard one of the men say, “There go that n‐‐‐‐‐ now.”
The three men walked towards the second car as it parked, and
Singleton ran into her home to call the police. She heard gun
shots and returned to the front porch. The old, dark‐colored car
was gone, and the second car was rolling slowly towards
Cottage Grove Avenue.
Officers Danon Bright and Galena Bradley responded to a
radio report of gunfire near 101st Street and Cottage Grove
Avenue, and they arrived in time to see the victim’s car hit a
trash can and roll to a stop after hitting a curb. They found
Birmingham unconscious, with a gun shot wound to his left
side. Officer Bright saw a number of bullet holes in the car and
the driver’s side window was shattered. Smith was inside the
car, crying hysterically. She told the officers that several
2
Smith testified that, on the night of the shooting, Bolton was wearing
“some dark color with white on it.” R. 89‐2, Trial Tr. at B‐78.
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African‐American men approached the car, accused the
occupants of being Gangster Disciples and then shot at them.
Several other police officers rushed to the scene as the
events unfolded. Officers Ronald Holt and Milan Stanford
actually heard the shots being fired. They too saw the victim’s
car emerge from the London Towne complex onto Cottage
Grove Avenue. They saw four African‐American men running
in the complex. One man was wearing a distinctive sleeveless
jacket, red on one side and a dark color on the other side.3
Officer Holt sent a radio message reporting that he had seen
four men running and that one was wearing a sleeveless jacket.
Officers Baron and Gibbons heard that call and drove
toward the London Towne complex. As they drove into the
complex, a gray car was driving out. The driver was wearing
a sleeveless jacket. As the officers turned around to stop the
car, they saw a passenger exit from the back seat and run
away. The officers arrested the other occupants of the car,
including Anthony Bolton (the petitioner here), Raymond
Clark (who was wearing the sleeveless jacket), and Marcus
Flowers. Officer Holt, who had seen the man in the sleeveless
jacket running moments earlier, proceeded to the scene of the
arrest and identified Clark as the man he had seen running
with three other men.
In the meantime, Officers Alexander Curd and Shirley Tate
responded to a radio call regarding the man who fled from the
back seat of the gray car. As they canvassed the London Towne
3
Marcus Flowers, one of the four men later arrested, testified that Clark
was wearing a grey, red and blue Fila jacket. Trial Tr. at B‐208‐09.
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complex, a woman approached them and told them that a man
was hiding in some bushes nearby. As she spoke to the
officers, she noticed the man was now walking towards them
on the sidewalk. The officers detained the man, Shaparral
Watts, and discovered a gun in the bushes where he had been
hiding.4
Approximately two hours later, Detectives Bernatek and
Cross conducted a lineup of the four suspects who had been
arrested. Each man was asked to pose with his right arm
extended in a shooting position. From this lineup, Smith
identified Bolton as the shooter. Photographs were taken of the
lineup, but could not be developed for reasons that do not
appear in the record. Smith also independently identified
Bolton as the shooter at his trial.
Bolton was prosecuted for the murder, as were Clark and
Watts, who were tried separately before the same judge. We
have already recounted the findings of the state courts from
the testimony of Smith, Singleton, and many of the police
officers who responded to the scene and investigated the
murder. Flowers, who was not prosecuted, also testified
against Bolton at trial. According to Flowers, Clark was a
member of the Vice Lords street gang, Flowers and Watts were
Black Disciples and Bolton was unaffiliated with any gang. On
the day of the murder, Flowers accompanied Clark, Watts and
4
Police officers recovered two guns that night: a .22 semi‐automatic pistol
from bushes near 836 E. 101st Street, and a .380 semi‐automatic pistol from
bushes near 725 E. 101st Street. Ballistics tests later showed that neither gun
was the murder weapon. The gun used to kill Birmingham was not
recovered.
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a man named Jo‐Jo5 to the home of Clark’s mother in the
London Towne complex. When Clark went into his mother’s
home, Flowers and the others remained in the car. While they
waited for Clark, three or four men approached the car and
threatened that the occupants would be harmed if they were
not Vice Lords. Someone in the car (Flowers could not recall
who) told the men that Clark was a Vice Lord and the men
then left. When Clark returned to the car, Flowers, Watts and
Jo‐Jo told Clark what had happened. Clark drove them all to
Altgeld Gardens. He went into a building with Jo‐Jo and came
back with Bolton. Clark and Bolton got into the car and Clark
handed a gun to Watts. The four then drove to the London
Towne complex in search of the men who had made the threat.
At trial, Flowers initially testified that he, Bolton, Clark and
Watts then drove through the London Towne complex without
incident until they were stopped by the police. But under
additional questioning at trial, Flowers admitted that he signed
a statement on the night of the murder implicating Bolton,
Clark and Watts in the murder. Flowers then testified that,
when they drove into the London Towne complex, they saw a
car with two occupants, that Clark thought one of the occu‐
pants was a Vice Lord, and that Clark, Watts and Bolton then
exited the car and approached the car containing Smith and
Birmingham.6 According to Flowers, Watts handed a gun to
5
Flowers testified that “Jo‐Jo” was his cousin.
6
Flowers’ account that he remained in the car is consistent with Singleton’s
testimony that she saw three men standing near a car shortly before the
shooting. Although they were purportedly looking for a Vice Lord, the
(continued...)
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Bolton and Bolton approached the car. As the car attempted to
pull away, Bolton fired multiple shots at the car. Watts, Clark
and Bolton then returned to their own car, and Bolton gave the
gun back to Watts.
On cross‐examination, Flowers asserted that he signed the
statement on the night of the murder because he was only
sixteen years old, because the police refused to call his mother,
and because the officers told him he would be imprisoned for
thirty years for his involvement in the murder. But he also
testified that his original written account was true, and that he
changed his testimony after receiving threatening letters at
home. Although Flowers flip‐flopped in telling the story at
trial, his testimony implicating Bolton, Clark and Watts was
consistent with his signed statement made on the night of the
arrest, as well as with his grand jury testimony and with the
testimony of the assistant state’s attorney who interviewed him
on the night of the murder. The trial court found Bolton guilty
of first degree murder. The same court found Clark and Watts
not guilty of murder but guilty of weapons possession.
II.
On direct appeal, Bolton contended that (1) the evidence
presented at trial was insufficient to support his conviction; (2)
trial counsel was ineffective for failing to join a stipulation
between the State and one of Bolton’s co‐defendants concern‐
ing an exculpatory pre‐trial statement made by Flowers; and
(3) his fifty year sentence was excessive. In the course of
6
(...continued)
victim was a Gangster Disciple, a discrepancy not explained in the record.
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arguing that the evidence was insufficient, Bolton contended
that Smith’s identification evidence was “weak.” In addition to
pointing out poor lighting conditions, Smith’s obstructed line
of vision from the floor of the car, and her emotional state at
the time of the shooting, Bolton also contended that her lineup
identification was flawed. In particular, Bolton argued that
Smith could not make an identification based solely on the
physical appearance of the four men but identified Bolton only
after the suspects were told to turn and pose with an arm
extended in a shooting position. Bolton also complained of an
“even greater taint” to the lineup identification, citing to
Smith’s trial testimony:
Q Now, how many other people were out there
besides—you called him Anthony Bolton. You didn’t
know his name was Anthony Bolton that night, did
you?
A No.
Q How did you find out his name?
A When I did the line up.
Q Police told you who he was?
A After I identified him.
Q Did they tell you he is the guy that we think did the
shooting?
A Yes.
Q And that was before you viewed the line up, right?
A Yes.
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R. 89‐2, at B‐77. Bolton contended that this testimony demon‐
strated that the lineup procedure was improperly suggestive.
Bolton acknowledged in his direct appeal that Smith also
testified on redirect that the police did not tell her who to pick
in the lineup but he contended that her initial testimony of
“unfairly suggestive taint” rendered her identification of
Bolton unreliable and a deprivation of his due process rights.7
He cited Stovall v. Denno, 308 U.S. 293 (1967), in support of this
due process claim. The Illinois appellate court affirmed Bol‐
ton’s conviction and sentence. The court specifically found that
the trial court properly resolved any inconsistencies in Smith’s
testimony, that Smith consistently testified to her identification
of Bolton as the shooter, that Bolton cited no authority for his
contention that the lineup was tainted by a directive that the
participants assume a particular pose, and that there was no
factual merit to the contention that the police told Smith whom
to pick from the lineup. Bolton did not seek leave to appeal this
judgment to the Illinois Supreme Court.
Bolton next filed a pro se post‐conviction petition in the
state court. Citing Brady v. Maryland, 373 U.S. 83, 87 (1963), he
asserted that the State fraudulently withheld the photographs
of the lineup. He also asserted that trial counsel was ineffective
for failing to move for a mistrial when the State was unable to
produce the lineup photos, citing Strickland v. Washington,
7
On redirect, the prosecution asked Smith, “Do you remember when
counsel asked you about looking at the line up in the police station?” and
she replied, “Yes.” The prosecutor then asked, “When the police took you
in to look at the line up, did they tell you who to pick out in that line up?”
and Smith replied, “No.” R. 89‐2, Tr. at B‐89.
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466 U.S. 668 (1984). He submitted an affidavit from Velcin
Thomas in support of his petition, arguing that it constituted
newly discovered evidence that bolstered his other claims. In
the affidavit, Thomas asserted that he was in custody at the
police station on the night of the lineup. He said that he was
being held in a room with Watts and was taken from the room
to participate in a lineup related to the death of Birmingham.
Thomas maintained that, as he was being brought to the
lineup, he heard Detective Cross tell Detective Bernatek that
Smith did not know who the shooter was, and he was going to
have Smith pick out Bolton, the man wearing dark blue pants.
Thomas was subsequently returned to the room where Watts
was being held. In the course of making his Strickland and
Brady arguments, Bolton again contended that Smith’s lineup
identification was weak, and that her testimony indicated that
the police officers told her to select him from the lineup. In the
course of his Brady argument, he characterized the suggestive‐
ness surrounding Smith’s lineup identification as a violation of
his due process rights but cited no law in support of this as an
issue separate from the Brady claim.
Instead, he mainly argued that the withheld photographs
would have shown that Watts did not participate in the lineup,
contrary to the testimony of Detective Bernatek. In addition to
impeaching Detective Bernatek with the photographs and with
the Thomas affidavit, Bolton contended that Thomas’s affidavit
also demonstrated that Smith testified falsely at trial when she
identified Bolton as the shooter and when she denied that the
police officers told her to select Bolton from the lineup. As for
ineffective assistance, he contended only that counsel should
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have moved for a mistrial when the State was unable to
produce the lineup photographs.
Bolton subsequently filed an amended post‐conviction
petition with the assistance of counsel. Under Illinois law, as a
general rule, an amendment which is complete in itself and
which makes no reference to the prior pleading supersedes
that prior pleading. People v. Cross, 494 N.E.2d 703, 705 (Ill.
App. 3d Dist. 1986). The original pleading ceases to be part of
the record, being in effect abandoned and withdrawn. Id. In
this instance, however, the amended petition does not purport
to supersede the prior pleading and specifically refers back to
Bolton’s pro se petition in several instances. It is unclear
whether the state courts incorporated the original pro se
petition into the amended petition or treated it as superseded.
In the amended petition, Bolton claimed that the affidavit
of Velcin Thomas presented new evidence of actual innocence
(a claim under Illinois law) because it established that Smith
could not positively identify Bolton on the night of the murder.
In addition to impeaching the credibility of Smith, Bolton
claimed that the affidavit contradicted the testimony of the
officers who conducted the lineup. Citing Smith’s testimony
that the police identified the shooter to her before she viewed
the lineup, Bolton argued that Smith’s trial admission bolstered
the newly discovered evidence from Thomas. Bolton also
asserted a claim of prosecutorial misconduct under Illinois law
based on the failure of the prosecution to produce the lineup
photographs. According to the amended petition, the photo‐
graphs would have shown that both Smith and Detective
Bernatek were lying about the lineup procedure. In particular,
Detective Bernatek testified that the lineup consisted of Bolton,
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Watts, Clark and Flowers but the photos would have shown
that Watts did not participate in the lineup. Bolton also
asserted that the prosecution was obliged to produce the
photos under Brady. Finally, Bolton maintained that he
received ineffective assistance of trial counsel. In particular, he
alleged that counsel was aware that photos were taken but not
produced and yet failed to move for a mistrial on the basis of
the missing evidence. He also asserted that a competent
attorney would have investigated the lineup, discovered Velcin
Thomas and called him as a witness.
The state trial court gave short shrift to Bolton’s amended
post‐conviction petition. The court rejected Bolton’s Brady
claim because there was no reasonable probability that the
photographs would have altered the outcome of the trial. In
reaching this conclusion, the court characterized the evidence
against Bolton as “overwhelming,” based on the eye witness
identifications made by Smith and Flowers. The court also
rejected Bolton’s Strickland challenge, concluding that he
waived the claim by not raising it in his direct appeal. The
court noted (incorrectly) that Bolton’s claim was based entirely
on the trial record, and thus could have been raised on direct
appeal. The court did not expressly address Bolton’s claim that
the affidavit of Velcin Thomas constituted newly discovered
evidence of actual innocence. In fact, the court’s only reference
to the Thomas affidavit was a cryptic comment regarding the
missing photographs:
These photos, according to petitioner, would reveal
that Detective Bernatek committed perjury when he
testified that Shaparral Watts was in the line‐up and
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that the identification made by Velcin Thomas was
suggestive.
R. 65‐8, at 3.
Bolton filed a pro se appeal of this ruling, raising three
arguments. He again maintained that the prosecution withheld
exculpatory evidence in violation of Brady when it failed to
produce the photos of the lineup. In the course of that argu‐
ment, he repeated his earlier claims that the lineup was
suggestive because the police told Smith who the shooter was
before she viewed the lineup. He relied in part on the Thomas
affidavit to bolster this claim. But he did not argue that the
suggestive lineup procedure violated his due process rights.
He next argued that counsel was ineffective in violation of
Strickland for failing to move for a mistrial based on the State’s
failure to produce the photographs of the lineup. Lastly, he
asserted that the affidavit of Velcin Thomas was newly
discovered evidence of actual innocence. He cited no case law
in support of this argument but recited the Illinois standards
for an actual innocence claim based on newly discovered
evidence.
The Illinois appellate court rejected each of the claims. The
court first noted that there was no evidence that the allegedly
withheld photographs actually existed, and that the only
evidence regarding the photos was that they could not be
developed. Because there was no evidence supporting the
existence of the photographs, the court rejected any claim
under Brady that the State withheld the photographs and any
claim under Strickland that counsel was ineffective for failing
to move for a mistrial based on the absence of the photographs.
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The court also concluded that Bolton could not satisfy the
standard for prejudice on his ineffective assistance of counsel
claim. The original trial court had denied a co‐defendant’s
motion for a mistrial based on the absence of the photographs,
and the appellate court found there was no reasonable proba‐
bility that a motion would have succeeded had Bolton’s
counsel filed one. Finally, the court concluded that Thomas’s
affidavit was not newly discovered evidence of actual inno‐
cence. Rather, the affidavit merely sought to impeach Smith’s
corroborated lineup identification, and the evidence was not of
such a character that it would have changed the outcome of the
trial. The court noted that both Smith and Detective Bernatek
testified that Smith was not told whom to identify. Her
“momentary answer” that she was told who Bolton was before
the lineup was clearly negated, the court found, by her
testimony both before and after that moment, where she
clearly indicated that she was not told who Bolton was until
after the lineup. Bolton filed a petition for leave to appeal the
ruling to the Illinois Supreme Court, repeating verbatim his
three claims. The Illinois Supreme Court denied the petition for
leave to appeal.
III.
That brings us to Bolton’s federal habeas corpus petition. In
his pro se petition, Bolton asserted that (1) the affidavit of
Velcin Thomas was newly discovered evidence in support of
his constitutional claims; (2) the State engaged in prosecutorial
misconduct when it withheld photographic evidence of the
lineup that was favorable to the defense; and (3) trial counsel
was ineffective because he failed to move for a mistrial when
the State failed to produce the photographs of the lineup. In his
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argument regarding the State’s failure to produce the photos,
Bolton once again contended that the photos could have been
used to impeach Smith and Detective Bernatek, and that
Thomas would have testified that Detective Cross told Smith
to select Bolton from the lineup, rendering the lineup “im‐
properly suggestive.” The district court denied the petition,
concluding that none of Bolton’s claims met the standards set
by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). 28 U.S.C. § 2254(d)(1). Bolton appeals.
A.
We granted a certificate of appealability to Bolton, noting
that he had ”made a substantial showing of the denial of a
constitutional right in connection with the admission of his
lineup identification.” Bolton v. Pierce, Case No. 10‐3150, Order
(7th Cir. Feb. 18, 2011). Our review of the district court’s
decision to deny the habeas petition is de novo, and is governed
by the terms of the AEDPA. Pole v. Randolph, 570 F.3d 922, 933‐
34 (7th Cir. 2009). The AEDPA provides, in relevant part:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim—(1) resulted in a decision that was contrary
to, or involved an unreasonable application of,
clearly established Federal law, as determined by
the Supreme Court of the United States[.]
28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 402‐403
(2000).
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On appeal, Bolton contends that his due process rights were
violated when the state trial court admitted identity testimony
acquired when the police placed him in an unduly suggestive
lineup. The Illinois courts, he contends, unreasonably applied
federal law and constitutional principles when they failed to
assess whether the lineup was unduly suggestive, whether
there were any unusual or exigent circumstances that could
justify the suggestiveness, and whether the identification was
nonetheless reliable. See 28 U.S.C. § 2254(d)(1). For the first
time in any forum, Bolton now contends that the lineup was
suggestive in two distinct ways. First, as he previously claimed
in the context of his Brady and Strickland claims, Detective
Cross told Smith to select Bolton, rendering the lineup literally
suggestive. Second, the participants were grossly dissimilar in
appearance, also resulting in an unfairly suggestive lineup. He
also maintains that the state courts unreasonably applied
federal law in assessing the Thomas affidavit which he now
contends is newly discovered evidence that supports his due
process claim regarding the unduly suggestive lineup. None of
these errors were harmless, Bolton asserts, and the court
therefore should have granted the writ.
As should be apparent from our recitation of the procedural
history of the case, this is the first time that Bolton has raised
a stand‐alone suggestive lineup claim, arguing that the
procedure employed violated his due process rights. Prior to
his appeal in this court, Bolton framed the lineup issue as a
claim for prosecutorial misconduct, asserting that the State
improperly withheld photographic evidence of the lineup in
violation of Brady. Bolton also previously asserted a claim of
ineffective assistance of counsel, in violation of Strickland,
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based on his trial counsel’s failure to move for a mistrial with
respect to the missing lineup photographs. In the course of
those arguments, he asserted that the photographic evidence
would have further supported his attacks on the credibility of
the two main witnesses against him, Brandy Smith and
Detective Bernatek, both of whom testified that Watts was in
the lineup, when, according to Bolton, he was not. Bolton also
previously asserted that the affidavit of Velcin Thomas was
newly discovered evidence of actual innocence that would
demonstrate that Smith could not independently identify
Bolton as the shooter and that Detective Cross directed her to
select Bolton. Finally, he previously argued that effective
counsel would have investigated the lineup, discovered Velcin
Thomas and presented his testimony to the trial court.
The claim that Bolton now brings, that he was denied due
process because the lineup was suggestive in two respects, is
a claim he never raised in the state courts and did not raise in
the district court. Because he did not raise this stand‐alone
suggestive lineup argument in either his habeas petition or in
his briefing before the district court, he has waived it on
appeal. Pole, 570 F.3d at 937 (where a petitioner does not raise
an issue in either his habeas petition or his brief in the district
court, he has waived the issue in federal proceedings). See also
Johnson v. Hulett, 574 F.3d 428, 432 (7th Cir. 2009) (claims not
made in the district court in a habeas petition are deemed
waived and cannot be raised for the first time on appeal).
B.
But even if we do not treat the issue as waived, Bolton
failed to meet the exhaustion requirement of the AEDPA
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because he did not fairly present this claim to any of the state
courts that reviewed his case, much less present it through a
complete round of state court review. Pole, 570 F.3d at 934
(under section 2254ʹs exhaustion requirement, a petitioner
must assert his federal claim through one complete round of
state court review, either on direct review or in post‐conviction
proceedings). The AEDPA requires state prisoners seeking a
federal writ of habeas corpus to exhaust available state remedies.
28 U.S.C. § 2254(b)(1); Baldwin v. Reese, 541 U.S. 27, 29 (2004).
The exhaustion requirement provides the State an “‘opportu‐
nity to pass upon and correct’ alleged violations of its prison‐
ersʹ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995)
(per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971));
Baldwin, 541 U.S. at 29. “To provide the State with the neces‐
sary ‘opportunity,’ the prisoner must ‘fairly present’ his claim
in each appropriate state court (including a state supreme court
with powers of discretionary review), thereby alerting that
court to the federal nature of the claim.” Baldwin, 541 U.S. at 29
(quoting Duncan, 513 U.S. at 365‐366); OʹSullivan v. Boerckel,
526 U.S. 838, 845 (1999); Perruquet v. Briley, 390 F.3d 505, 513
(7th Cir. 2004). Adequate presentation of a claim to the state
courts requires the petitioner to present both the operative
facts and the legal principles that control each claim. Pole, 570
F.3d at 934‐35. See also Harrison v. McBride, 428 F.3d 652, 661
(7th Cir. 2005) (at its core, the task of the habeas court is to
assess, in concrete, practical terms, whether the state court was
sufficiently alerted to the federal constitutional nature of the
issue to permit it to resolve that issue on a federal basis).
At no stage of the state proceedings did Bolton present a
claim that his due process rights were violated by a suggestive
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lineup procedure. Indeed, on direct appeal, Bolton failed to
present any claim through a complete round of state court
review because he failed to seek leave to appeal his case to the
Illinois Supreme Court. Moreover, to the extent that he raised
the suggestive identification issue in his direct appeal (which
was the only pleading in which he cited a relevant federal case
regarding a due process right to a fair lineup), he claimed only
that a police officer told Smith to select him from the lineup,
and never contended that the participants in the lineup were
grossly dissimilar in appearance. In any case, because he did
not move for leave to appeal to the Illinois Supreme Court in
his direct appeal, he may not rely on his direct appeal to satisfy
the exhaustion requirement. Boerckel, 526 U.S. at 848 (peti‐
tioner’s failure to present his federal habeas claims for discre‐
tionary review to the Illinois Supreme Court in a timely fashion
resulted in a procedural default of those claims).
In the course of post‐conviction proceedings, Bolton argued
in the context of his Brady and Strickland claims that the lineup
was suggestive in the sense that Detective Cross literally
suggested to Smith that she select Bolton from the lineup. In
both his Brady and Strickland claims, he argued only that the
suggestive lineup demonstrated that he was prejudiced by the
absence of the photographs. But he has never argued to any
court, including the district court, that the lineup procedure
violated his due process rights. Instead, he argued that the
State should have produced the photographs of the lineup and
that his counsel was ineffective was failing to move for a
mistrial when the State failed to produce the photographs,
claims he has abandoned on appeal. And he did not argue in
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any court that the lineup was unduly suggestive because the
participants were grossly dissimilar in appearance.8
As for his claim regarding the affidavit of Velcin Thomas,
Bolton now argues that the affidavit is newly discovered
evidence that supports his due process claim regarding the
suggestive lineup. But in the district court, Bolton argued that
the affidavit supported his Strickland and Brady claims, both of
which he has abandoned on appeal. He also previously
asserted that the affidavit was newly discovered evidence of
actual innocence, but he does not pursue that claim on appeal
either. In no sense did he ever raise a stand‐alone due process
claim based on the suggestive lineup. Instead, he used evi‐
dence of the suggestive lineup to demonstrate that he was
prejudiced by the Brady and Strickland violations. Having failed
to present the operative facts and the relevant legal argument
to support a suggestive lineup due process claim through a
complete round of state court review, Bolton has failed to meet
the exhaustion requirement. Perruquet, 390 F.3d at 513; Pole,
570 F.3d at 934‐35.
8
In fact, there is an internal inconsistency between his two suggestive
lineup arguments: in claiming that the participants were of grossly
dissimilar appearance, Bolton contends that Watts (some thirty pounds
lighter and six inches shorter than Bolton) was one of the participants in the
lineup. Yet he supports his claim that Detective Cross told Smith to select
Bolton with an affidavit that asserts that Watts was not part of the lineup at
all. Instead, the affidavit suggests that Thomas (whose resemblance to the
other participants is not apparent from the record) was in the lineup in
place of Watts. The two claims cannot be factually reconciled, but more
importantly, Bolton never argued until his appeal in this court that the
lineup was faulty because the participants were of dissimilar appearance.
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21
But exhaustion is not always the end of the analysis.
“Where state remedies remain available to a habeas petitioner
who has not fairly presented his constitutional claim to the
state courts, the exhaustion doctrine precludes a federal court
from granting him relief on that claim: although a federal court
now has the option of denying the claim on its merits, 28 U.S.C.
§ 2254(b)(2), it must otherwise dismiss his habeas petition
without prejudice so that the petitioner may return to state
court in order to litigate the claim.” Perruquet, 390 F.3d at 514;
Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455
U.S. 509, 522 (1982); see 28 U.S.C. § 2254(b)(1)(A). Where the
petitioner has already pursued his state court remedies “and
there is no longer any state corrective process available to him,
it is not the exhaustion doctrine that stands in the path to
habeas relief, see 28 U.S.C. § 2254(b)(1)(B)(i), but rather the
separate but related doctrine of procedural default.” Perruquet,
390 F.3d at 514. See also Coleman v. Hardy, 628 F.3d 314, 318 (7th
Cir. 2010) (when a petitioner fails to raise a particular claim on
direct appeal or in post‐conviction proceedings, the claim is
procedurally defaulted). Procedural default generally pre‐
cludes a federal court from reaching the merits of a habeas
claim when the claim was not presented to the state courts and
it is clear that the state courts would now find the claim
procedurally barred. Perruquet, 390 F.3d at 514.
Procedural default may be excused, however, if the
petitioner can show both cause for and prejudice from the
default, or can demonstrate that the district courtʹs failure to
consider the claim would result in a fundamental miscarriage
of justice. Dretke v. Haley, 541 U.S. 386, 393 (2004) (a federal
court will not entertain a procedurally defaulted constitutional
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claim in a petition for habeas corpus absent a showing of cause
and prejudice to excuse the default); Coleman, 628 F.3d at 318
(procedural default may be avoided if a petitioner can demon‐
strate cause and prejudice, or a fundamental miscarriage of
justice); Gray v. Hardy, 598 F.3d 324, 327‐28 (7th Cir. 2010)
(same); Perruquet, 390 F.3d at 514‐15 (same). Bolton fails to
meet these standards. Although he claims that the Thomas
affidavit is newly discovered evidence that was unavailable to
him at trial, Bolton himself participated in the lineup and knew
at the time of trial whether or not Watts was part of the lineup
and whether the participants were grossly dissimilar in
appearance. Smith’s ambiguous testimony regarding whether
a police officer directed her to select Bolton was also known at
the time of trial, and thus was not a new issue. Although it is
true that Thomas would have been an additional witness who
could have bolstered this claim, Bolton abandoned his claim
that counsel was ineffective for failing to investigate the lineup
and discover Thomas as a potential witness. Thus, although
ineffective assistance of counsel may have supplied the
“cause” in the “cause and prejudice” analysis, Bolton dropped
his claim of ineffective assistance, dooming his claim on
appeal. Martinez v. Ryan, 132 S. Ct. 1309, 1317 (2012) (“an
attorneyʹs errors during an appeal on direct review may
provide cause to excuse a procedural default; for if the attorney
appointed by the State to pursue the direct appeal is ineffec‐
tive, the prisoner has been denied fair process and the opportu‐
nity to comply with the Stateʹs procedures and obtain an
adjudication on the merits of his claims.”); Promotor v. Pollard,
628 F.3d 878, 887 (7th Cir. 2010) (ineffective assistance of
counsel can constitute cause to set aside a procedural bar, but
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not where a petitioner defaulted his ineffective assistance of
counsel claim and he does not offer cause‐and‐prejudice to
excuse this default).
Nor can he demonstrate a fundamental miscarriage of
justice. In order to meet that standard, he must convince the
court that no reasonable trier of fact would have found him
guilty but for the error allegedly committed by the state court.
Schlup v. Delo, 513 U.S. 298, 327‐29 (1995); Perruquet, 390 F.3d at
515. His further challenges to Smith’s lineup identification do
not meet that standard. The Thomas affidavit is untested and
does nothing to overcome the testimony of Smith, Flowers, and
the numerous officers on the scene. Bolton does not even
attempt to challenge Smith’s independent in‐court identifica‐
tion of him as the shooter. There is nothing here that would
convince a court that no reasonable trier of fact would have
found Bolton guilty but for an error allegedly committed by
the state court. Schlup, 513 U.S. at 327‐29. That is not to say that
this lineup procedure was without flaws. As best we can tell
from the largely undeveloped record on this issue, the partici‐
pants in the lineup were not of similar appearance, which, in
general, is an unnecessarily suggestive procedure that creates
a substantial risk of unfair prejudice to a suspect. United States
v. Wade, 388 U.S. 218, 232‐33 (1967) (listing a variety of improp‐
erly suggestive lineup procedures including, among other
things, that all in the lineup but the suspect were known to the
identifying witness, that the other participants in a lineup were
grossly dissimilar in appearance to the suspect, that only the
suspect was required to wear distinctive clothing which the
culprit allegedly wore, that the witness is told by the police
that they have caught the culprit after which the defendant is
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brought before the witness alone or is viewed in jail, or that the
suspect is pointed out before or during a lineup). But Bolton
was identified as the shooter by Flowers as well as by Smith,
and there is simply not enough here to overcome Bolton’s
procedural failures in preserving the issue for federal habeas
review.
C.
Finally, Bolton also contends that, because our certificate of
appealability invited him to address the denial of his constitu‐
tional rights in connection with the admission of his lineup
identification, he may raise any violation of his constitutional
rights related to the lineup. But Bolton misunderstands the
import of the certificate of appealability. Prisoners pursuing a
collateral attack on their criminal conviction under § 2254 are
required to obtain a certificate of appealability before proceed‐
ing on appeal. 28 U.S.C. § 2253(c); Lavin v. Rednour, 641 F.3d
830, 832 (7th Cir. 2011). “To receive certification under
§ 2253(c), the prisoner must show that reasonable jurists would
find the district courtʹs assessment of the constitutional claim
and any antecedent procedural rulings debatable or wrong.”
Lavin, 641 F.3d at 832 (citing Slack v. McDaniel, 529 U.S. 473,
484–85 (2000); Davis v. Borgen, 349 F.3d 1027, 1029 (7th Cir.
2003)). When a petitioner’s case is subject to § 2253(c),
non‐certified claims are not properly before this court. Lavin,
641 F.3d at 832. A lawyer who wishes to raise claims that are
not within the scope of the certificate of appealability “should
not simply brief the additional claims, but should first request
permission to do so.” Lavin, 641 F.3d at 832. Counsel made no
such request here. In this case, we certified the issue of a
possible denial of Bolton’s constitutional rights in connection
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with the admission of his lineup identification, an issue which
had been raised in the context of Brady and Strickland. Any
other issues were beyond the scope of the certificate. More
importantly, Bolton does not explain how a certificate of
appealability could resurrect procedurally defaulted claims or
allow a petitioner to make claims in the first instance when the
petitioner has not met the exhaustion standards set by the
AEDPA.
IV.
Bolton waived the issue he now raises by not raising it in
his petition for habeas corpus relief and by not arguing it before
the district court. He also failed to fairly present the issue
through a complete round of state court review, and the claim
is procedurally defaulted. We can discern no factual or legal
argument that would excuse any of these procedural failures.
The judgment of the district court denying the petition is
therefore
AFFIRMED.
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