Owens v. Acevedo et al
Filing
153
MEMORANDUM Opinion and Order:For the foregoing reasons, Owens's petition for a writ of habeas corpus is denied, and the Court declines to issue a certificate of appealability for any of his claims. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 2/11/2014:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Lawrence Owens,
)
)
)
)
)
)
)
)
)
)
Petitioner,
v.
Marc Hodge, Warden,
Lawrence Correctional Center,
Respondent.
No. 08 C 7159
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
Petitioner Lawrence Owens, an Illinois state prisoner serving a 25-year
prison term for the first degree murder of Ramon Nelson, seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Owens’s petition, filed in December 2008,
raised five claims that he alleged warranted habeas relief: (1) his due process rights
were violated by the state court’s delay in resolving his claims for state
postconviction relief (“Claim 1”); (2) there was no probable cause to arrest him
(“Claim 2”); (3) the trial court admitted a photo array and lineup identification that
were both improperly suggestive (“Claim 3”); the trial court made improper
“extrajudicial” findings regarding Owens’s motive to commit murder and based its
findings of guilt on evidence not produced at trial (“Claim 4”); and (5) trial counsel
was ineffective for failing to investigate and call alibi witnesses and for misleading
Owens regarding his right to testify (“Claim 5”). R. 1.
On May 29, 2012, the Court found Claim 1 to be non-cognizable; Claims 2
and 3 to be procedurally defaulted; and Claim 4 to lack merit. Owens v. Acevedo, No.
1
08 C 7159, 2012 WL 1416432, at *7-9 (N.D. Ill. May 29, 2012) (Pallmeyer, J.). The
Court also ordered an evidentiary hearing on the ineffective assistance claim
presented in Claim 5 and reserved ruling on whether a certificate of appealability
should issue. Id. at *15. 1 On March 18 and 19, 2013, the Court conducted an
evidentiary hearing. R. 125, 126. The parties completed their post-hearing briefing
on January 9, 2014.
Based on the testimony and documentary evidence presented at the
evidentiary hearing, and the credibility determinations the Court makes regarding
the witnesses who testified, Owens’s habeas petition is denied. The Court further
declines to certify any issues for appeal.
Background
A.
Trial Evidence
Owens was convicted at a bench trial. The evidence introduced at trial was
recounted by the state appellate court in its order affirming Owens’s conviction on
direct appeal, R. 152-1 at 136-49, and in the Court’s prior opinion, Owens, 2012 WL
1416432, at *1-4 (Pallmeyer, J.). Absent clear and convincing evidence to the
contrary, which Owens has not presented, these facts are presumed correct for
purposes of federal habeas review. See 28 U.S.C. § 2254(e)(1); Morgan v. Hardy, 662
F.3d 790, 797 (7th Cir. 2011).
On September 22, 1999, at approximately 8:30 p.m., 17-year-old Ramon
Nelson was beaten with a baseball bat outside a liquor store and lounge in
On January 14, 2013, Owens’s § 2254 petition was reassigned to the undersigned
judge’s calendar. R. 108.
1
2
Markham, Illinois. Nelson died as a result of this beating. Before the beating
occurred, Maurice Johnnie was sitting in the passenger seat of his car with two
friends; his friend Johnny Morgan was sitting in the driver’s seat, and Morgan’s
friend was sitting in the backseat. The three were parked about ten feet from the
entrance to the liquor store and were facing the direction of the store’s front doors.
The sun had gone down, but it was not quite dark yet, and the area in front of the
store was illuminated by street lights and lights from the liquor store’s front doors.
At one point, Morgan’s friend exited the car and entered the liquor store.
While Johnnie and Morgan waited in the car for him to return, Nelson pulled
alongside the parked vehicle on a bicycle and began speaking with Morgan. Johnnie
did not know Nelson. After Nelson and Morgan spoke for about three to five
minutes, Nelson rode his bicycle past the front of the car, down the sidewalk,
towards the entrance of the liquor store. Johnnie then saw a man, later identified as
Owens, walking down the sidewalk in the opposite direction and toward Nelson.
Nelson attempted to turn his bicycle around, but Owens caught up with him and
struck him on the head with a baseball bat. Nelson fell from his bicycle into the
doorway of the store, and as he lay on the ground, Owens forcefully struck him in
the head a second time with both hands on the bat. After Owens had hit Nelson a
second time, he turned and walked back in the direction from which he had come.
Johnnie and Morgan exited their vehicle and went to aid Nelson, who was
unconscious and groaning. Morgan insisted they take Nelson to the hospital where
Nelson died the next day as a result of multiple skull fractures.
3
That night, William Evans was also on the same block as the liquor store.
About a half hour before the attack, Evans had spoken to Nelson, whom he knew
from the neighborhood. After talking with Nelson, he observed Nelson ride his
bicycle toward the store’s front entrance. At the time of the attack, Evans was
retrieving a bucket at the northeast corner of the block to wash a car when he then
heard a “wood splitting” sound. Evans looked back in the direction of the sound and
saw Owens, who he did not know but recognized as someone who had previously
been in the liquor store. Evans saw Owens strike Nelson twice on the head with a
baseball bat. When Evans cried out, “hey, what is going on,” Owens and another
individual ran off past him. Evans went to aid Nelson and helped Johnnie and
Morgan put Nelson into Johnnie’s car. Immediately after the attack, Evans spoke
with police, described the approximate height and weight of the two individuals he
saw, and informed them that he recognized Owens from the neighborhood.
At trial, Evans revealed that he had a prior drug conviction for which he was
on probation, and was in custody on another drug charge. He also acknowledged
that he was testifying in exchange for State recommendations of probation on that
pending drug charge and a recommitment of probation on the previous drug offense.
Johnnie did not speak with police officers that night, and when he dropped
Nelson off at the hospital, he provided a false name and address. Responding
officers to the crime scene, however, obtained the license plate number of the
vehicle that transported Nelson to the hospital, and Detective Terry White was able
to identify Johnnie from the vehicle’s registration. About a week after the incident,
4
on September 28, 1999, Johnnie was interviewed at the Markham police station
where he described Nelson’s attacker as a large black male, approximately 6’2” to
6’4”, weighing 220 to 240 pounds and dressed in brown clothing. Based on Johnnie’s
description, Detective White compiled a photo array of six men. From the photo
array, Johnnie selected Owens’s photo as the individual who attacked Nelson.
Detective White stated at trial that at no time while Johnnie viewed the array did
he ever suggest that the attacker was in the array or make any other suggestive
remark. That same day, Evans viewed the photo array at the police station. He also
described Nelson’s attacker as a large black male, dressed in brown or tan clothing.
Detective White testified that Evans identified Owens from the photo array as
Nelson’s attacker.
Following the photo identifications, the police were on the lookout for Owens
in connection with Nelson’s murder. 2 On October 26, 1999, Officer Mike Alexander
observed a speeding vehicle. Officer Alexander activated his emergency lights and
siren, and instead of stopping, the vehicle accelerated through a stop sign and
proceeded down the road with Alexander in pursuit. When the vehicle finally pulled
over, Owens exited the vehicle and ran. Alexander gave chase and apprehended
Owens a block and a half later. At his motion to quash his arrest, Owen claimed
The police did not obtain a warrant for Owens’s arrest. Owens filed a motion to
quash his arrest, arguing that the police lacked probable cause to effect his
warrantless arrest on the homicide charge. The state appellate court found that
based on Johnnie and Evans’ photo array identifications, the police had probable
cause to arrest and detain Owens for Nelson’s murder. R. 152-1 at 151-52.
2
5
that he did not see Alexander’s squad car until 30 seconds before he pulled over and
that he walked, not ran, upon exiting his vehicle.
A day after Owens’s arrest, Detective White arranged a five-man lineup for
Johnnie and Evans to view. Each independently selected Owens from that lineup as
Nelson’s attacker. At trial, Detective White acknowledged that Owens was the only
individual who appeared in both the photo array and lineup viewed by Johnnie and
Evans. Johnnie testified that of the five individuals in the lineup, Owens was the
“biggest and bulkiest” but that he did not select Owens out of the lineup based on
height because everyone in the lineup was seated. When asked to view a
photograph of the lineup at trial, Evans identified Owens as the man he had
identified to Detective White the night he viewed the lineup, though earlier in his
testimony, Evans had twice failed to identify the photo of Owens in the array he
had selected at the police station.
The parties stipulated at trial that 40 bags of crack cocaine were found in
Nelson’s coat pocket. The defense rested without presenting any evidence. After
hearing closing arguments, the state trial court convicted Owens of the first degree
murder of Nelson, and then sentenced him to 25 years of imprisonment.
B.
Postconviction Affidavits
After an unsuccessful round of direct appellate review of his conviction,
Owens pursued further relief in state court by filing a postconviction petition. 3
The Court’s prior opinion recounts the claims that were raised in each round of
review in Owens’s direct appeal. See Owens, 2012 WL 1416432, at *5-6 (Pallmeyer,
J.).
3
6
Owens filed his first petition pro se on September 10, 2003, and then through
appointed counsel filed an amended petition on June 16, 2008 and an amended
supplemental petition on November 7, 2008, claiming that trial counsel was
ineffective for failing to interview and call alibi witnesses and for failing to allow
Owens to testify at trial; Owens also raised an actual innocence claim. R. 152-2 at
24-111, 112-35. 4 In support of his ineffective assistance claim, Owens presented two
sets of affidavits that each included affidavits from Owens, Timothy Blackman,
Sheila Minor, and Owens’s mother, Bertha Marie Owens. All the documents in the
first set were dated in the summer months of 2003 and were filed with the state
court on September 11, 2003; all the documents in the second set were signed on
dates ranging from 2006 to 2009.
Owens asserted in his August 26, 2003 affidavit that he was actually
innocent of Nelson’s murder and that he repeatedly informed his attorney, Frank
Rago of that fact. R. 152-2 at 55-56. According to Owens, he told Rago that he had
an alibi for the night Nelson was murdered and that he had two witnesses who
could corroborate that alibi—Blackman and Minor. Id. at 55. Owens further averred
that Rago told him and his mother that he would investigate Owens’s alibi
witnesses and that he would “allow” Owens to testify in his own defense. Id. at 56.
But, Owens says, Rago failed to investigate or interview his alibi witnesses and
“forb[ade] [Owens] to testify [sic] in [his] own defense.” Id. Owens added in his
January 11, 2008 affidavit that “[a]lthough [he] felt [he] needed to testify at trial . . .
Owens’s initial pro se postconviction petition was not included in the exhibits the
Warden submitted to the Court.
4
7
Rago told [him] not to worry, meaning that [Owens] would be acquitted.” Id. at 98.
Owens claimed that neither Rago nor the trial judge explained that he had a right
to testify at trial and that the decision regarding whether to testify was his. Id. And
had he known it was his decision to testify, Owens adds, he would have testified
that he did not murder Nelson and was with Minor and Blackman at the time. Id.
In his July 18, 2003 affidavit, Blackman details the time he and Owens spent
together on September 22 and 23 in 1999. Blackman avers that at 2:30 p.m., he and
Owens were standing in front of Owens’s house when their mutual friend, Sheila
Minor, drove by and asked them to help her assemble a new dinette set. Id. at 57.
At about 6:15 p.m., Owens and Blackman met Minor at her father’s home, and from
there they drove to Minor’s house where they arrived around 7:20 p.m. Id. At her
house, Owens and Blackman assembled the dinette set and then spent the rest of
the evening talking, eating, and watching television. Id. Around 10 p.m., Minor
offered to drive Owens and Blackman home but also offered to let them spend the
night and drive them home the following morning. Id. Owens and Blackman spent
the night at Minor’s home—they never left her home after they arrived—and Minor
drove them home around 6 a.m. the next morning. Id. Blackman states in his
affidavit that prior to trial, he spoke with Owens’s mother and told her that he
would testify to these events. Id. Owens’s mother told Blackman that Owens’s
attorney would contact him, but Blackman averred that Rago never called,
interviewed, or asked him to testify for Owens. Id.
8
Blackman’s second affidavit, dated August 23, 2009, provides a fairly similar
account, adding that Blackman and Owens met while they were high school
students and that the two had known each other for 18 years. R. 152-2 at 101.
According to Blackman, in September 1999, he and Owens saw each other three or
four times a week, and on September 21, 1999, Owens and Blackman celebrated a
friend’s (Manny) birthday together. Id. Slightly different from his earlier affidavit,
Blackman stated in his 2009 affidavit that on September 22, 1999, he and Owens
met at Blackman’s house—not Owens’s house—and that they returned home from
Minor’s house the next day at 8 a.m.—not 6 a.m. Id. at 101-02. Blackman concludes
his affidavit by saying that although the events described in the affidavit were from
many years earlier, he was “certain of the dates,” because he recalled celebrating
Manny’s birthday. Id. at 103.
Minor’s affidavits recounted the night she spent with Owens and Blackman
in a similar fashion. R. 152-2 at 58, 104-05. According to Minor, she was with
Owens and Blackman at her house from 7:20 p.m. on September 22, 1999 to about 6
a.m. on September 23, 1999. Id. at 58, 104. Minor stated that Owens’s attorney,
Rago, never called, interviewed, or asked her to testify, though she would have been
willing to do so. Id.
Bertha Marie Owens provided two affidavits, which discussed her
involvement in Owens’s defense. Id. at 59-60, 106-07. In her affidavits, she states
that on several occasions, she informed Rago that Blackman, Minor, and Owens
wanted to testify about Owens’s alibi defense, and she provided Rago with
9
Blackman’s and Minor’s names and contact information. Id. at 59-60, 106. Yet Rago
never interviewed them or investigated the alibi defense, despite assurances to Ms.
Owens that he would. Id. Ms. Owens claimed that Rago decided not to use the alibi
defense or allow Owens to testify because the case against Owens was “so weak . . .
that he would never get convicted.” Id. at 60; see also id. at 106.
C.
Procedural History
While his state postconviction proceeding was pending, Owens initiated this §
2254 proceeding on December 15, 2008. R. 1. The Warden moved to dismiss Owens’s
§ 2254 petition based on Owens’s failure to exhaust his available state court
remedies. R. 18. Owens responded, citing the inordinate delay by the state courts in
resolving his postconviction petition, which, at that point, had been pending for
more than five years. R. 21. The Court appointed counsel to investigate the status of
Owens’s long-pending postconviction petition and to assist Owens with responding
to the Warden’s motion to dismiss. R. 57. On March 9, 2010, the Court denied the
Warden’s motion to dismiss, noting that while some of the delay was attributable to
the conduct of his appointed attorneys, Owens had demonstrated that a ruling on
his postconviction petition was delayed for reasons outside of Owens’s control and
that Owens had been diligent in urging action on that petition. R. 24. The Court
then ordered the Warden to answer the § 2254 petition, id., which the Warden did,
R. 41.
Meanwhile, Owens’s postconviction petition made its way through the state
courts. In his postconviction appeal, Owens argued that trial counsel was ineffective
10
for failing to call Minor and Blackman to testify at trial and that he was deprived of
his constitutional right to testify on his own behalf. R. 77 at 115-16. The state
appellate court denied Owens’s postconviction appeal on March 21, 2011, id. at 11819, and Owens’s round of postconviction review concluded when the Illinois
Supreme Court denied Owens’s petition for leave to appeal, raising the same claims
raised in his postconviction appeal, on September 28, 2011, R. 77 at 151.
On May 29, 2012, the Court resolved a number of the claims raised in
Owens’s § 2254 petition, finding Claim 1 to be non-cognizable, Claims 2 and 3 to be
procedurally defaulted, and Claim 4 to lack merit. Owens, 2012 WL 1416432, at *79 (Pallmeyer, J.). As to Claim 5, the Court found that the ineffective assistance
allegations in Claim 5 were not procedurally defaulted and determined that an
evidentiary hearing was necessary to ascertain (1) whether trial counsel failed to
investigate Owens’s alibi defense, interview his alibi witnesses, or call his alibi
witnesses to testify on Owens’s behalf; and (2) whether, and to what extent, Owens
understood his right to testify. Id. at *10-14; see also R. 78.
The evidence offered at the evidentiary hearing conducted on March 18-19,
2013 included live testimony from Owens, Timothy Blackman, Owens’s trial counsel
Frank Rago, and Noel Zupancic, an investigator with the Cook County Public
Defender’s Office. The evidence also included the postconviction affidavits offered by
Owens, Blackman, Minor, and Bertha Marie Owens 5 in support of Owens’s
Minor and Bertha Marie Owens died in 2007 and 2011, respectively. R. 126 at 6265.
5
11
ineffective assistance claim and other documentary evidence relating to Rago and
Zupancic’s investigation into Owens’s alibi defense.
Analysis
Owens is entitled to habeas relief if he is being held under a state court
judgment obtained in violation of the Constitution or laws of the United States. 28
U.S.C. § 2254(a). Owens alleges habeas relief is warranted because his trial counsel
was ineffective for two reasons: (1) counsel failed to investigate his alibi defense and
relatedly, failed to call alibi witnesses to support that defense; and (2) counsel
misled Owens regarding his right to testify at trial.
To prevail on a claim of ineffective assistance under Strickland v.
Washington, Owens must demonstrate that (1) his trial counsel rendered deficient
performance, meaning his representation fell below an objective standard of
reasonableness; and (2) but for counsel’s unprofessional errors or omissions, there is
a reasonable probability the result of the trial would have been different. 466 U.S.
668, 694 (1984); see also Brady v. Pfister, 711 F.3d 818, 823 (7th Cir. 2013).
I.
Counsel’s Failure to Investigate Owens’s Alibi Defense and Call
Timothy Blackman and Sheila Minor as Alibi Witnesses
A.
Factual Background
At the evidentiary hearing, Owens testified that he could not have committed
the murder of Ramon Nelson on September 22, 1999 because he was with Timothy
Blackman and Sheila Minor at Minor’s house at the time the murder took place. R.
12
126 at 70-77. 6 According to Owens, on the afternoon of September 22, 1999, he saw
his friend Tasha (last name then unknown) at 3 p.m.; he then saw his friends Karee
Williams, Jamil, Greg, Kenworth, and Will (last names unknown) around 5 p.m. at
Tasha’s house. Id. at 129-32. After Owens left Tasha’s house around 5:30 p.m., he
then spent the remainder of the evening with Blackman and Minor at Minor’s house
assembling her furniture. Id. at 70-77. Owens claimed that he was with them from
6 p.m. on September 22, 1999 until 6 a.m. the following morning when Minor drove
him and Blackman home. Id. He, Blackman, and Minor were childhood friends, and
during that time period, they saw each other regularly. Id. at 124, 126, 156-58.
Indeed, Minor was one of Owens’s best friends, and after Owens’s arrest and
conviction, Minor visited Owens numerous times at the Cook County Jail and the
Illinois Department of Corrections. Id. at 159-60.
Owens testified that after he was arrested, he told police that he had an alibi
for the night of the murder, and when he met his attorneys, Rago included, he also
told them about that defense. Id. at 78-85; see also R. 140-2 at 2. Owens said that he
gave Rago several names of individuals who could corroborate his whereabouts that
night—Blackman, Minor, Karee Williams, and Jamil, Will, Kenworth, and Tasha 7—
and followed up later with Rago regarding these individuals, further giving Rago
the addresses of Blackman, Tasha, and Minor’s father (Owens did not know Sheila
Citations to the transcripts of the evidentiary hearing are noted as R. 125 (the
transcripts from March 18, 2013) and R. 126 (the transcripts from March 19, 2013).
6
Owens said at the hearing that when he gave Rago the names of his friends, he
only gave Rago their first names because he did not know their last names. Through
her investigation, Investigator Zupancic was later able to identify Tasha as Tasha
Dugar. R. 125 at 136-38; R. 126 at 17-24.
7
13
Minor’s address). R. 126 at 85-88, 99-100, 216-17. According to Owens, Rago told
Owens that he had tried to locate Blackman, but Rago never told Owens that
Blackman had said when Rago found him that he did not recall being with Owens
on the night of the murder. Id. at 199-201. Owens added that he believed that he
tried to contact Blackman to tell him to reach out to Rago, and he told Minor to talk
to Rago when she visited him at the Cook County jail. Id. at 218. Owens further
stated that when he asked Rago about the status of his alibi witnesses, Rago told
Owens that he “didn’t like” those witnesses, an explanation that Owens accepted.
Id. at 110-11, 119.
Owens testified that after he was charged with murder but before his trial,
he sent Rago a letter where he told Rago that he could not have committed the
murder because he was not at the scene at the time. Id. at 135-37; see also Resp.
Exh. 20, Letter from Owens to Rago dated February 19, 2000. Owens acknowledged
that the letter did not mention that he was with Blackman, Minor, Tasha Dugar, or
any of his other friends at the time of the murder. R. 126 at 138-40. After he was
convicted, Owens sent Rago several more letters. Id. at 141-46; see also R. 140-3 at
4-10. Nowhere in those letters, where Owens sets forth several bases for a motion
for a new trial, did Owens mention Tasha, Karee, Jamil, Greg, or Kenworth; nor did
he say that he was with Blackman and Minor on the night of the murder, or
challenge Rago’s failure to investigate Owens’s alibi defense. R. 126 at 146-52; see
also R. 140-3 at 4-10. Indeed, nowhere in these letters did Owens indicate he was
dissatisfied with Rago’s representation of him. Id.
14
Rago testified that he became a licensed attorney in 1975. R. 125 at 31, 92.
After he was licensed, Rago worked as an assistant public defender. Id. at 93.
Around 1982 to 1983, he became a felony trial assistant at the Markham County
courthouse where he worked until 2002. Id. at 94. During that time, the Public
Defender’s Office employed a system with four classification levels of attorneys. Id.
at 31-32, 95. Attorneys classified as Level I attorneys were assigned to
misdemeanor or traffic-level cases; Level II attorneys handled more serious
misdemeanor cases; Level III attorneys were felony trial attorneys; and attorneys
classified as Level IV attorneys were qualified to handle death-penalty cases. Id. at
31-32, 95. Rago was a Level IV attorney. Id. During Rago’s almost 20-year career
with the Public Defender’s Office, Rago handled over 300 murder cases, 10 to 15% of
which were trials, resulting in about 30 to 45 murder trials over the course of his
career. Id. at 32-34, 97-98.
Rago testified that he began representing Owens sometime after Owens’s
October 1999 preliminary hearing. Id. at 100-01. Rago lacked specific recollection
regarding much of his representation of Owens and of his investigation into Owens’s
case, and much of his testimony regarding his representation of Owens was based
on his general practice at the time. See Williams v. Lemmon, 557 F.3d 534, 540 (7th
Cir. 2009) (allowing for conclusion that a lawyer acted in accord with his normal
practice). Rago testified that after assignment to Owens’s case, he would have
reviewed the report generated by the Assistant Public Defender assigned to
represent Owens at his preliminary hearing. R. 125 at 99-103. That report revealed
15
that Owens was asserting a potential alibi defense, namely that on the night of the
murder, he was drinking with friends. Id. at 70-71, 100-103; see also R. 140-2 at 2.
During the course of his representation of Owens, Rago made several
requests to his investigator Noel Zupancic for the purpose of Owens’s defense.
Zupancic began working as an investigator at the Public Defender’s Office in 1994.
R. 126 at 6. Similar to the classification levels of attorneys, the Public Defender’s
Office employed several levels of investigators. According to Zupancic, an
Investigator I served subpoenas, transported witnesses, and accompanied other
investigators on their investigations whereas an Investigator II, which was what
Zupancic was at the time of the Owens investigation, conducted witness interviews.
Id. at 7, 43. An Investigator with a Level III classification handled more complex
cases and could serve as a lead investigator in a case. Id. at 7. Around 2001,
Zupancic became an Investigator III. Id. at 7-8.
Rago’s first investigative request to Zupancic occurred around July 3, 2000.
In that request, Rago asked Zupancic to accompany him to the crime scene—to
observe the locale, its lighting conditions, and the positions of the surrounding
buildings for the purpose of matching these details against the information in the
police reports. R. 125 at 36-39, 76-78, 123-26; R. 126 at 9; see also R. 140-2 at 18.
Rago made another investigative request to Zupancic around September 12, 2000 to
locate potential alibi witnesses, Timothy Blackman and “Tasha” (last name then
unknown), names Rago presumed he acquired from Owens, the individual, he said,
who was best in the position to provide Rago with this information. R. 125 at 40-41;
16
R. 126 at 15, 35; see also 140-2 at 20. Based on his general practice at the time,
Rago testified that as soon as he learned that Blackman and Tasha could be
potential alibi witnesses, he would have acted immediately on that information
because delayed action on those leads could prove detrimental to Owens’s case. R.
125 at 127. Based on that general practice, Rago believed that since the
investigative report indicated that he requested an investigation into Blackman and
Tasha around September 2000, Owens must have given him the names of these
witnesses around that time. Id. at 126-27. During Rago’s conversations with Owens
regarding his defense, Owens never mentioned Sheila Minor as a potential alibi
witness to Rago. Id. at 60, 128. If Owens had done so, Rago said, he would have
tried to locate her, like he did with Blackman and Tasha. Id. at 128.
During her investigation into Owens’s alibi defense, around early November
2000, Zupancic tracked down an individual who she believed to be Blackman. Id. at
82-83, 134; R. 126 at 25-28; see also R. 140-2 at 21. Zupancic spoke with this
individual, who identified himself as Blackman on the phone, and he told Zupancic
that he “c[ould] not remember anything specific about the night of September 22nd,
1999” and that he “really c[ould] not say that he was with [Owens]” that night. R.
125 at 85, 134; R. 126 at 27-30, 51; see also R. 140-2 at 21-23. Blackman, however,
told Zupancic that he regularly saw Owens during that time period. R. 125 at 85; R.
126 at 30. After this conversation, Zupancic and Blackman made further plans for
an in-person interview, but Blackman failed to appear at the arranged time and
17
place, and did not return subsequent phone calls from Zupancic. R. 125 at 86, 13436; R. 126 at 30-34, 52-53.
Pursuant to Rago’s September 2000 investigative request, Zupancic also
attempted to track down Tasha. R. 125 at 88-89, 136; R. 126 at 17, 19; see also R.
140-2 at 24-25. Around October 4, 2000, after going to the location she had for
Tasha, Zupancic spoke with a man who she believed was Tasha’s brother and
obtained Tasha’s last name (Dugar) and phone number. R. 126 at 17; see also R.
140-2 at 24. Zupancic later returned to that address on October 10, 2000, and
encountered a woman outside the home who refused to identify herself. R. 125 at
89, 137; R. 126 at 18; see also R. 140-2 at 24. The woman told her that Tasha did not
live at that address and that she did not know Tasha’s current address. R. 125 at
90, 137; R. 126 at 17-18, 20-21; see also R. 140-2 at 24-25. Through further
investigation, Zupancic learned that Tasha had a warrant out for her arrest. R. 125
at 90, 138; see also R. 140-2 at 24-25. Zupancic testified that she believed that the
woman she met outside the house was likely Tasha. R. 126 at 22.
According to Rago, this was the extent of what his investigation revealed
regarding Owens’s potential alibi witnesses: a witness who he characterized as
providing a less than definitive alibi and proved difficult to locate, and a witness
who they could not locate at all. R. 125 at 139. Indeed, when asked why he did not
present an alibi defense, Rago provided several strategic reasons: (1) Blackman did
not assist Owens with an alibi defense based on the information Rago received from
Zupancic regarding her phone interview with him; (2) Zupancic could not locate
18
Tasha; and (3) Rago had received no other information from Owens on which to
base an alibi defense or any names for any other potential alibi witnesses. Id. at 5152. Based on the information available to him at the time, Rago decided that his
trial strategy for Owens’s case was not to present an alibi defense but instead to
attack the credibility of the two eyewitnesses who were going to testify that they
saw Owens commit the murder. Id. at 149.
Timothy Blackman testified that he and Owens were childhood friends. Id. at
205. Around the time of the murder, they saw each other fairly regularly at either
Blackman’s mother’s house or Tasha’s house where they would drink and play
cards. Id. at 205, 208-10. Blackman began his testimony by stating that he
remembered being with Owens on September 21, 1999 at his friend Manny Jones’s
birthday party. Id. at 206-07. He also remembered assembling a table with Owens
and Sheila Minor at Minor’s house one evening and staying overnight there. Id. at
213-20. According to Blackman, he and Owens arrived at Minor’s home around 7
p.m. and returned back to their homes the next morning around 7 a.m. Id. at 21819, 221. Blackman said that he learned that Owens had been charged with murder
when he heard other people in the neighborhood talking about it and he read about
it in the newspaper. Id. at 225. But he never reached out to tell anyone—police,
Owens, or Owens’s counsel—that he may have been with Owens on the night of the
murder because ultimately he was not certain of the day that he was actually with
Owens. Id.
19
On cross-examination, Blackman began by testifying that he believed that he
was with Owens on September 22, 1999. Id. at 233. But he then admitted that he
really did not remember which night he went to Sheila Minor’s house. Id. at 236-37.
He remembered celebrating Manny’s birthday with Owens on September 21st, but
he ultimately could not even recall what year that occurred. Id. at 237-38. Later
during cross-examination, Blackman again stated that he thought he partied with
Owens on September 21st and assembled the table with Owens and Minor on
September 22nd. Id. at 268. But he then stated again that he was not sure that he
went to Minor’s house on September 22nd. Id. at 268-69.
B.
Court’s Findings
The Court has carefully considered all of the documentary evidence presented
at the evidentiary hearing and has considered the credibility of the witnesses who
testified and the reasonableness of their testimony in light of other evidence. After
considering all of this evidence, the Court finds the testimony of Rago, Zupancic,
and Blackman credible, the testimony of Owens not credible, and the affidavits
presented by Minor and Owens’s mother suspect.
C.
Deficient Performance
Where, as here, the Court reviews counsel’s performance de novo, see 28
U.S.C. § 2243, the standard for judging counsel’s representation remains a “most
deferential one,” Harrington v. Richter, 131 S. Ct. 770, 788 (2011). The question
under
Strickland
is
“whether
an
attorney’s
representation
amounted
to
incompetence under ‘prevailing professional norms,’ not whether it deviated from
20
best practices or most common custom.” Id. (quoting Strickland, 466 U.S. at 690). In
reviewing counsel’s performance, “every effort [must] be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689. “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Id. at 690-91.
1.
Failure to investigate Tasha Dugar and other non-alibi
witnesses
At the outset, the Court addresses Owens’s claim that Rago was ineffective
for failing to investigate a number of potential alibi witnesses, including Tasha
Dugar and Owens’s friends, Karee Williams, Jamil, Greg, Kenworth, and Will. R.
140 at 102-04. According to Owens, Zupancic’s efforts to investigate Tasha as a
witness were minimal and her attempts to find Tasha ended far too soon. Id. The
Warden argues that this aspect of Owens’s ineffective assistance claim is
procedurally defaulted because it was not raised in one complete round of state
court review. R. 150 at 10. Owens failed to respond to this argument.
In his postconviction proceedings, Owens alleged solely that Rago was
ineffective for failing to investigate and call Minor and Blackman as alibi witnesses.
R. 152-2 at 43-48. He did not mention counsel’s omission regarding any other alibi
witnesses. Id. It is well-established that failure to allege a specific factual basis for
21
an ineffective assistance claim in one complete round of state court review results in
that particular factual basis being procedurally defaulted on federal habeas review.
See, e.g., Pole v. Randolph, 570 F.3d 922, 934-35 (7th Cir. 2009) (“[I]f a petitioner
fails to assert in the state courts a particular factual basis for the claim of
ineffective assistance [in one complete round], that particular factual basis may be
considered procedurally defaulted.”); Stevens v. McBride, 489 F.3d 883, 894 (7th Cir.
2007) (“[T]he failure to alert the state court to a complaint about one aspect of
counsel’s assistance will lead to procedural default.”). Until this proceeding, Owens
never asserted counsel’s failure to investigate Tasha and Owens’s other potential
alibi witnesses as a separate factual basis for a Strickland claim. Because this
specific factual basis was not fully and fairly presented to the state courts in one
complete round of state court review, it is procedurally defaulted. See id.
And even if this factual basis were not defaulted, it lacks merit in any event.
Even Owens acknowledged at the hearing that he was not with Tasha or any of his
other potential “alibi” witnesses at the time of the murder. According to Owens, on
the afternoon of September 22, 1999, he saw Tasha at 3 p.m., and Karee, Jamil,
Greg, Kenworth, and Will around 5 p.m. at Tasha’s house. R. 126 at 129-32. None of
these witnesses, as Owens now admits, would have provided an alibi for him for the
time of the murder, which occurred at 8:30 p.m., see id. at 229, at which time Owens
was purportedly with Blackman and Minor. Thus, even if counsel was deficient for
curtailing his investigation into Tasha and for failing to sufficiently investigate
Owens’s other identified friends, Owens can certainly not demonstrate any
22
prejudice by counsel’s omissions in this regard given Owens’s admission that these
witness would not have been able to provide exculpatory testimony at trial.
2.
Failure to investigate Minor and Blackman as potential
alibi witnesses and failing to call them to testify at trial
Turning to the other factual bases of Owens’s ineffective assistance claim,
Owens claims that Rago was ineffective for failing to investigate Minor and
Blackman as potential alibi witnesses and further by failing to call them as alibi
witnesses at trial. But the evidence adduced at the evidentiary hearing
demonstrates that the investigation Rago conducted into Blackman and Minor was
within the bounds of reasonable professional judgment and not deficient under
Strickland.
Beginning with Rago’s investigation into Minor, Rago admitted at the
evidentiary hearing that he conducted no investigation into Minor. Rago explained
that the reason for this omission was because Owens never told Rago that Minor
was a potential alibi witness. R. 125 at 60 (“That name never came to us.”); id. at
128 (“If we had been given a name Sheila Minor, yes. Just as we did with these two
[Blackman and Tasha], we certainly would have tried to find Sheila Minor too.”); id.
(“Never knew of a Sheila Minor, never.”). Had Owens done so, Rago claimed, Rago
would have attempted to locate her like he did with the witnesses Owens actually
identified—Blackman and Tasha. Id. at 128. Rago acknowledged that Owens
asserted a potential alibi defense soon after he was arrested for Nelson’s murder.
Id. at 182-83. The initial alibi was that Owens was drinking with friends at the
time, not that he was with Blackman and Minor at Minor’s house, his current alibi
23
defense. But according to Rago, Owens only told him about two potential alibi
witnesses: Blackman and “Tasha.” Id. at 51-52. From Rago’s perspective at the
time, all he knew regarding a potential alibi for Owens was that Owens was with
Blackman and Tasha at Tasha’s house between 5 and 10 p.m. on the night of
Nelson’s murder. Based on that information, Rago instructed his investigator,
Zupancic, to locate and interview them. Indeed, Rago’s testimony in this regard is
credible given the records in the Public Defender’s investigative files. Minor’s name,
unlike Blackman and “Tasha’s” names, was nowhere in those records. Given that
Blackman and Tasha were in the investigative records, if Owens had, in fact, told
Rago about Minor, then her name would have been in the records too. It is not.
Because Owens never identified Minor to Rago as a potential alibi defense—an
assertion from Rago that the Court finds to be supported by Rago’s testimony
regarding his past practices and thus credible—Rago cannot be said to have
rendered deficient performance for failing to investigate (and call to testify) a
potential witness about whom Owens had not made him aware.
As for Rago’s investigation into Blackman, the Court finds that investigation
to be constitutionally reasonable. After Owens identified Blackman as a potential
alibi witness, Rago instructed Zupancic to locate and interview him. Zupancic spoke
with Blackman on the telephone, and he told her that while he was friends with
Owens and that he regularly saw Owens, he could not recall whether he was with
Owens on the night of the murder. Zupancic made further arrangements to followup on this conversation with a face-to-face interview, but Blackman failed to appear
24
where the two had arranged to meet. Following this missed appointment, Zupancic
made further efforts to find Blackman until the week before Owens’s trial, but these
efforts proved unsuccessful. Rago stated that it would have been his general
practice to ask for Owens’s assistance in contacting Blackman since Blackman was
proving uncooperative. R. 125 at 53. These efforts to investigate Blackman’s
potential as a witness were reasonable under the circumstances known to Rago at
the time. Finding Blackman uncooperative and given the uncertainty regarding his
potential testimony, counsel instead of pursuing the Blackman lead reasonably
chose to focus on attacking the credibility of the State’s two eyewitnesses. The Court
cannot say that counsel was deficient for pursuing this option where it cannot be
said that Blackman possessed any exculpatory information.
Nor was Rago deficient for failing to call Blackman to testify at Owens’s trial
given the testimony Blackman likely would have given. At best, Blackman would
have testified that he was not sure whether he was with Owens on the night of the
murder. At the evidentiary hearing, Blackman initially thought he remembered
being with Owens on September 21, 1999 because his friend, Manny, had a birthday
party that night, and he remembered being at that party with Manny and Owens.
And he recalled spending the following night with Minor and Owens assembling
Minor’s furniture. But Blackman later testified that he could not be sure even what
year Manny’s birthday party took place. Ultimately, Blackman could only
definitively say that there was a night when he celebrated Manny’s birthday with
Owens and another night when he and Owens spent the night at Minor’s home. But
25
he could not say for certain what night that was. That was the reason, Blackman
said, that he never reached out to Owens’s defense attorney because he was not
sure that he was with Owens that night. Blackman’s potential testimony does not
establish that he was with Owens at the time the murder took place, and his
weakness as a potential witness was highlighted by the Court’s questioning at the
hearing:
Q [the Court]:
So it’s clear, you believe your friend Manny’s party
was on September 21st because that’s his birthday.
A [Blackman]:
Mm-hmm, correct.
Q:
You’re not sure of the year of it that—well, putting two events
together.
A:
Right.
Q:
There’s Manny’s birthday, and there’s a night you put a table
together in Sheila’s house, correct?
A:
Correct.
Q:
Do you know if the putting the table together at Sheila’s house
occurred after the night of the birthday party?
A:
I’m not a hundred percent sure.
***
Q:
All right. And do you know what year you put the table together
at Sheila’s house?
A:
Not exactly sure. 8
Owens makes the argument that Blackman could not say with certainty that he
was not with Owens at the time of the murder. Such testimony would not have been
helpful at Blackman’s trial. The only helpful testimony would be if Blackman could
affirmatively testify that he was with Owens at the time of the murder. Blackman
could not so testify.
8
26
R. 125 at 277-78. The uncertainty at the hearing was not the result of the passage of
time. Zupancic testified that Blackman was similarly uncertain when she
interviewed him years earlier. 9 Counsel cannot be said to have been deficient by
failing to present such ambivalent testimony at Owens’s trial for such testimony
would not have helped Owens’s defense.
Moreover, in light of the testimony presented at the hearing and due to her
bias and familial relation to Owens as his mother, the Court finds the averments in
Bertha Marie Owens’s two affidavits regarding counsel’s investigation to be
incredible. See e.g., Johnson v. Loftus, 518 F.3d 453, 457 (7th Cir. 2008); Hayes v.
Battaglia, 403 F.3d 935, 938 (7th Cir. 2005). Ms. Owens indicated that she told
Rago that Blackman and Minor wanted to testify about an alibi defense and that
she gave him both their numbers and contact information, but Rago failed to
interview them or investigate the defense, despite assurances that he would. R. 1522 at 59-60, 106. But at the evidentiary hearing, Rago denied that this occurred,
because if Ms. Owens had, in fact, given Rago this information, he would have
immediately acted on it. R. 125 at 162-64. Moreover, Blackman acknowledged
during his testimony that he never told Owens’s mother that he wanted to testify at
Owens’s trial. Id. at 263-64. 10 Based on Rago’s and Blackman’s demeanor at the
hearing, the Court finds their testimony on these points to be credible. On the other
Blackman provided different information in the affidavits attached to Owens’s
postconviction petitions. But Blackman’s testimony at the evidentiary hearing
effectively disavowed the averments in those affidavits.
9
Blackman acknowledged later in his testimony that Owens’s mother asked him if
he would testify for Owens if it became necessary. R. 125 at 278.
10
27
hand, the Court finds Ms. Owens’s statements in her affidavit suspect. In
particular, the Court finds credible Rago’s testimony that if he had been given
Minor’s name as an alibi witness, either from Owens or Owens’s mother, he would
have investigated it, just as Blackman and Tasha were investigated.
3.
Overall Representation
In the end, Owens received constitutionally adequate representation. In
evaluating counsel’s representation, the federal habeas court examines not only the
lawyer’s claimed error “(of omission or commission),” but evaluates the “entire
course of the defense.” Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir. 2009); see
also Richter, 131 S. Ct. at 791 (“[I]t is difficult to establish ineffective assistance
when counsel’s overall performance indicates active and capable advocacy.”); Pole,
570 F.3d at 934 (stating that under Strickland, federal habeas court must “assess
counsel’s work as a whole, and it is the overall deficient performance, rather than a
specific failing that constitutes the ground for relief”) (internal quotation marks
omitted).
An analysis of Rago’s overall representation here reveals that in addition to
investigating Blackman, counsel investigated the other potential alibi witness
Owens identified prior to trial. Zupancic was able to identify “Tasha” as Tasha
Dugar and made multiple (though unsuccessful) attempts to track Tasha down.
Counsel also visited the crime scene with Zupancic to gather information that would
assist him in challenging the credibility of the State’s eyewitnesses. Also, as part of
Rago’s representation, he subpoenaed documents from the Markham Police
28
Department, R. 125 at 106-07; see also R. 140-2 at 4-5, and when the Department
did not timely comply with that subpoena, Rago filed a successful petition for rule to
show cause, R. 125 at 109-11; see also R. 140-2 at 6-9. Even though Rago was
entitled to these materials under Illinois law, Rago testified that he subpoenaed
them to make sure that he had access to them as early in the process as possible so
he could act on any pertinent information in them. R. 125 at 108. Rago also filed a
motion to preserve evidence so that any evidence the police possessed would not be
destroyed or misplaced. R. 125 at 109; see also Resp. Exhs. 2 & 3. After Rago
received the materials from the police, Rago consulted with Owens who would have
told him the basis on which to file a motion to quash arrest, which counsel filed. R.
125 at 112-13; see also R. 140-2 at 13. Rago further filed a formal motion for
discovery so that he received information from the State more quickly. R. 125 at
115; see also R. 140-2 at 10-12.
Further, at trial, counsel advanced a reasonable doubt defense, attacking the
testimony of the State’s eyewitnesses. Rago impeached Johnnie’s eyewitness
testimony with: (1) his failure to immediately notify police after the murder
occurred—he did not speak with police when he returned to the liquor store from
the hospital, and indeed did not speak with police until six days later; (2) the
inconsistencies between Johnnie’s description of Nelson’s assailant and Owens’s
actual appearance; and (3) the suggestiveness of the photo array from which
Johnnie identified Owens—Johnnie described the attacker as “big and bulky” and
agreed with counsel’s characterization that Owens was the “biggest and the
29
bulkiest” person in the photo line-up. R. 152-1 at 142. Rago elicited on crossexamination of Detective White that Owens was the only individual in both the
photo array and the lineup. Id. at 145. And Rago further brought out
inconsistencies between Evans’s account of the events and Johnnie’s account, id. at
159-60, R. 112-1 at 109-10, and Evans’s prior criminal history and the deal he made
with the State for his truthful testimony, R. 112-1 at 81-84. Rago also forcefully
stressed the credibility issues regarding Johnnie and Evans in his closing
argument. Id. at 100-17. And finally, after Owens was found guilty, Rago filed a
motion for new trial in which counsel raised numerous grounds for relief. R. 140-2
at 28-30.
Owens questions Rago’s belated attempt to investigate Blackman as a
potential witness and for curtailing that investigation when Blackman proved
uncooperative. According to Owens, Rago was on notice three days after Owens’s
arrest that Owens had a potential alibi, but Rago waited nearly ten months before
attempting to locate him. Owens also claims that Zupancic’s efforts to locate
Blackman were minimal, citing Zupancic’s acknowledgment that she could have
done more to locate Blackman after their failed in-person meeting. But accepting
Owens’s first argument would require the Court to credit Owens’s speculative
testimony that he gave Rago actionable information before Rago asked Zupancic to
locate and interview Blackman and Tasha and that Rago then failed to act on it.
Instead, the Court credits Rago’s testimony that it was his general practice to have
acted on such information immediately, and if the reports reflected no action on his
30
part, that was because Owens had failed to pass that information to him. See
Williams, 557 F.3d at 540. Rago cannot be faulted for failing to act on information
that he was not given.
Owens’s post-trial correspondence to Rago supports Rago’s testimony in this
respect. In the Court’s view, those detailed and well-written letters demonstrated
that they were written by an intelligent individual. In those letters, Owens sets
forth what he perceived to be weaknesses in the State’s case and numerous (nonfrivolous) bases for a motion for a new trial. R. 126 at 141-47, 149-52. Notably,
nowhere in those letters did Owens express dissatisfaction with Rago’s failure to
call Minor as a witness—indeed, nowhere is Minor even mentioned—and only one
time is Blackman even referenced. Id. In fact, Owens’s post-trial letters were
generally complimentary to Rago in his evaluation of Rago’s efforts. Id. at 141 (“Mr.
Rago, I would like to truly commend you on your valiant effort on defending me.”).
Given these letters, the Court does not credit Owens’s testimony that Owens
provided actionable information regarding his alibi defense that Rago ignored.
And even if it were true that Rago and Zupancic could have done more to
locate Blackman and they were deficient in this one respect, that one deficiency
does not render their overall work for Owens deficient. See Williams, 557 F.3d at
538. Ultimately, Rago believed that based on the (reasonable) efforts they had made
to investigate Owens’s alibi defense, Owens did not have a viable alibi defense.
Blackman’s potential testimony did not provide Owens a definitive alibi for the
night of the murder and thus would not have aided Owen’s alibi defense, and
31
Blackman was proving uncooperative. Nor were Rago and Zupancic able to locate
Tasha, Owens’s other proposed alibi witness. R. 125 at 49, 139. And Rago and
Zupancic received no other information from Owens regarding any other potential
alibi witness. Id. at 49-52. At that time, Owens made no mention of Minor. Rago
acknowledged that without the testimony of these witnesses, he could still have
presented an alibi defense based on Owens’s testimony that he was not at the crime
scene and provided he could locate him, the testimony of Blackman who would have
testified to his version of the alibi defense. Id. at 139. And true, a reasonable doubt
defense and an alibi defense are not inconsistent defenses. But instead of
presenting both defenses, Rago reasonably made a strategic decision to focus on
attacking the credibility of the State’s two eyewitnesses, which he did fairly
effectively, despite the ultimate conviction. Id. at 49, 139. Based on the testimony
presented and the present record, it cannot be said that this decision was deficient
under Strickland.
D.
Prejudice
Even if Rago’s omissions constitute deficient performance, Owens has failed
to demonstrate Strickland prejudice. In assessing prejudice, “[i]t is not enough to
show that the errors had some conceivable effect on the outcome of the proceeding.”
Strickland, 466 U.S. at 693. Instead, “Strickland asks whether it is ‘reasonably
likely’ the result [of the trial] would have been different.” Richter, 131 S. Ct. at 792
(quoting Strickland, 466 U.S. at 696). To make this showing, Owens need not
simply demonstrate that counsel’s deficient conduct “more likely than not altered
32
the outcome” in the case, but rather “[t]he likelihood of a different result must be
substantial, not just conceivable.” Richter, 131 S. Ct. at 792.
As discussed above, Blackman could not provide an alibi for Owens on the
night of Nelson’s murder because Blackman could not recall if he was with Owens
that night. If Blackman, one of Owens’s good friends, had offered the same
equivocal testimony he offered at the hearing at Owens’s trial—and from what
counsel knew at the time from Zupancic’s telephone conversation with him, that
seemed a likely possibility—there is no reasonable probability that Owens would
have been acquitted given the evidence that was presented in support of Owens’s
guilt. Indeed, Blackman’s ambivalent testimony must be considered weak when
compared to the evidence the State marshaled at Owens’s trial. At trial, Johnnie
and Evans both positively identified Owens as Nelson’s murderer, and their
accounting of the event was fairly consistent with each other. Johnnie testified that
he saw Owens hit Nelson from a few feet away, and at a time when it was not yet
totally dark and the area in front of the liquor store was illuminated by street lights
and lights near the liquor store’s front doors. He also saw Owens’s face immediately
prior to and after the attack. Johnnie’s post-attack description of the offender and
his clothing was consistent with Owens’s actual appearance and Evans’s testimony
regarding Owens’s appearance that night. Shortly after Nelson’s murder, Johnnie
selected Owens’s photo from a photo array as the murderer, and he identified
Owens in both a lineup and in court, expressing a high level of certainty in his
33
identifications. R. 152-1 at 161-63 (state appellate court’s analysis of the reliability
of Johnnie’s eyewitness identification).
Add to that Evans’s testimony that on that evening, there was sufficient light
to see the events in question, and his identification of Owens as Nelson’s murderer.
True, he twice identified the wrong photo when asked to select the photo of Owens
from the photo array that he viewed at the police station, but he successfully
identified Owens from a photo of the lineup that he viewed at the police station
after Owens’s arrest, when he identified Owens to police as the murderer.
Accordingly, given this evidence, even if counsel had presented Blackman’s
testimony, it cannot be said that given the evidence demonstrating that Owens
killed Nelson, there is a reasonable probability that the result of Owens’s trial
would have been different. See Brady, 711 F.3d at 828 (holding that failure to
present “marginally exculpatory” testimony did not prejudice habeas petitioner).
In the end, Owens received the constitutionally effective counsel that he was
entitled to receive under the Sixth Amendment and the Court makes the following
findings:
●
Owens failed to argue to the state courts in one complete round of state
court review that counsel was ineffective for failing to investigate Tasha and other
potential alibi witnesses. And regardless of whether the claim has been properly
preserved for federal habeas review, there is no reasonable probability that the
result of Owens’s trial would have been different had Tasha’s testimony or the
testimony of the other “alibi” witnesses had been presented. Even Owens testified at
34
the hearing that all of these “alibi” witnesses (Tasha, Karee Williams, Jamil, Greg,
Kenworth, and Will) only placed Owens at some location up to 5 p.m. or earlier,
which does not aid an alibi for a murder that occurred at 8:30 p.m.
●
Counsel did not render deficient performance when he failed to
investigate Minor as a potential alibi witness because despite Owens’s claim to the
contrary, the Court finds Owens never told Rago about Minor. Rago could not have
been deficient for failing to investigate a witness of whom he was not aware.
●
Counsel conducted a reasonable investigation into Blackman as a
potential alibi witness, and when Blackman proved uncooperative and revealed that
he had, at best, marginally exculpatory testimony, counsel reasonably decided to
focus his efforts on presenting a reasonable doubt defense and attacking the
credibility of the State’s eyewitnesses. Nor can Owens demonstrate that he would
have been acquitted had counsel called Blackman to testify at trial given his
equivocal testimony.
●
Finally, despite Owens’s claim of the insufficiency of Rago’s
representation, an examination of counsel’s overall efforts reveals that the work
Rago performed for Owens, while perhaps curtailed in some respects, cannot be
deemed deficient under Strickland. Nor did Owens suffer prejudice from counsel’s
omissions given the ambivalent testimony Rago is faulted for not presenting and
the evidence presented in support of Owens’s guilt at trial.
35
II.
Counsel’s Advice to Owens Regarding Owens’s Right to Testify
A.
Factual Background
At the evidentiary hearing, Owens testified that at one or two meetings
before trial, he told Rago that he wanted to testify that he was not at the scene of
the murder. R. 126 at 120. Owens said that he had another discussion with Rago
during the trial about testifying, but Rago told him that given William Evans’s
“botched” testimony regarding the photo array identification, Owens’s testimony
was unnecessary. Id. at 121-22. According to Owens, Rago never explained why
Owens should not testify, nor was there any other discussion with Rago regarding
his right to testify. Id. at 122, 126-27. But yet he agreed to follow Rago’s
recommendation that Owens not testify. Id. at 122-23. The trial judge also, Owens
claimed, never asked him whether he wanted to testify. Id. at 123.
During cross-examination, Owens admitted that Rago simply recommended
that he not testify and that Owens followed Rago’s recommendation. Id. at 206-07.
He further added during questioning by the Court that Rago never absolutely told
him that he could not testify or that Owens had no right to testify, but Owens
inferred from Rago’s discouraging him from testifying that he should not testify;
Owens nevertheless insisted that he did not know that he would have been allowed
to testify if he had wanted to. Id. at 222-25. He acknowledged, however, that in his
post-trial correspondence to Rago he never mentioned that Rago prohibited him
from testifying or that he had wished to testify. Id. at 148, 152-53; see also R. 140-3
at 4-10. Owens also admitted that he had a stepfather who was a criminal defense
36
attorney, R. 126 at 98, 215-16, and that Owens, through a number of misdemeanor
and felony arrests, had prior experience with the criminal justice system, id. at 18487.
Rago testified that he did not specifically recall advising Owens regarding his
right to testify at trial, but his general practice would have been to discuss that
right with a client multiple times during the course of his representation. R. 125 at
60, 153. Rago said that he would have even specifically advised Owens of that right
after the State rested its case and before the defense rested theirs. Id. According to
Rago, the general practice of the trial judges at the Markham County courthouse
was to admonish criminal defendants of their right to testify, but if a trial judge
omitted that admonishment, then either the prosecutor or Rago would remind the
judge to ask the defendant about it. Id. at 65. Although Rago acknowledged that the
record did not reflect an on-the-record admonishment of Owens regarding his right
to testify, Rago believed that the trial court admonished Owens of his right to
testify off the record. 11 Id. at 63, 187.
Rago reiterated that when representing clients, he would advise them of their
right to testify and further advise them that the decision to testify was theirs. Id. at
154. Thus, if Owens had demonstrated a desire to testify, Owens would have
testified. Id. at 150 (“If [Owens] wanted to testify, I would not block him in any way,
shape, or form.”), 151 (“The ultimate decision [of] whether or not [Owens] [would]
The Court finds Rago’s testimony in this regard somewhat perplexing. But
although the Court does not credit Rago’s recollection regarding the trial court’s offthe-record admonishment to Owens regarding his right to testify, that does not
change the result here.
11
37
testify rests with him.”); 154 (stating the client gets the “final say” on whether he
testifies at trial). Rago denied that he ever forbid Owens from testifying. Id. at 155.
B.
Strickland Claim
Owens’s claim regarding his right to testify has evolved since his state court
litigation. On direct appeal, Owens argued that Rago “failed to allow [him] to
testify” and “did not put [him] on the stand to testify on his own behalf.” R. 152-1 at
37-38. In his postconviction petition, Owens alleged that he received ineffective
assistance when Rago “would not allow [Owens] to testify at trial.” R. 152-2 at 25.
According to Owens’s state petitions, Rago “forbid [him] [from] testify[ing] [on] his
own behalf.” Id. at 36. Owens elaborated on this claim with his own affidavits in
which he averred that “[a]lthough [he] felt [he] needed to testify at trial . . . Rago
told [him] not to worry, meaning that [Owens] would be acquitted.” R. 152-2 at 98.
Owens alleged that neither Rago nor the trial judge explained to him that he had a
right to testify at trial and that the decision regarding whether to testify was his.
Id. And had he known it was his decision to testify, Owens says, he would have
testified that he did not murder Nelson and that at the time, he was with Minor and
Blackman. Id. To further support this claim, Owens presented the affidavit of
Owens’s mother in which she stated that she informed Rago on several occasions
that Owens wanted to testify about his alibi defense, but that Rago decided not to
“allow” Owens to testify because the State’s case against Owens was “so weak . . .
that he would never get convicted.” Id. at 59-60. Owens then brought the claim
raised in his state court proceedings in this federal habeas proceeding, claiming
38
that Rago forbade him from testifying and that neither Rago nor the judge
explained that the decision to testify was his alone to make.
Owens now argues in his post-hearing brief that although Rago “never
specifically told [him] not to testify, the import of his legal opinion was such that
[Owens] believed that he could not testify.” R. 140 at 113. Thus, it seems from
Owens’s post-hearing brief and his testimony at the evidentiary hearing that Owens
claims now not that counsel prevented him from testifying at trial, but that counsel
discouraged him from testifying, and that this advice amounted to ineffective
assistance of counsel. 12 Id. at 113-14. The Warden argues that Owens’s claim
regarding his right to testify, as now formulated, is procedurally defaulted because
Owens never argued to the state courts that, while he made the ultimate decision
whether to testify, counsel’s advice to him regarding testifying amounted to
constitutionally deficient advice. R. 150 at 19. Owens failed to respond to the
Warden’s argument.
“A state petitioner seeking a writ of habeas corpus in federal court must first
exhaust the remedies available to him in state court, thereby giving the State
[courts] the opportunity to pass upon and correct alleged violations of its prisoners’
federal rights.” Cheeks v. Gaetz, 571 F.3d 680, 685 (7th Cir. 2009) (internal citation
and internal quotation marks omitted). To afford the state courts this opportunity, a
habeas petitioner must fully and fairly present his constitutional claim to the state
Owens’s earlier claim that he did not know that he had the right to testify is
belied by the testimony he gave at the evidentiary hearing. According to Owens, he
agreed to Rago’s recommendation that he not testify, meaning that he necessarily
was aware of his right to testify. R. 126 at 206-07.
12
39
courts before seeking relief in federal court. Gray v. Hardy, 598 F.3d 324, 327 (7th
Cir. 2010). Fair presentment of a federal claim to the state courts contemplates
presentment of both the claim’s operative facts and controlling legal principles.
Gonzales v. Mize, 565 F.3d 373, 380 (7th Cir. 2009).
Here, the operative facts underlying Owens’s current claim—counsel
misadvised Owens not to testify or gave him advice which wrongly influenced his
decision not to testify—are wholly different than the operative facts underlying
Owens’s original claim—counsel forbade or prevented him from testifying. The state
courts were never presented with the operative facts that form the basis of the
claim that Owens currently advances, and thus never had a full and fair
opportunity to address Owens’s claim that counsel’s advice regarding Owens’s
decision whether to testify was ineffective assistance under Strickland. Accordingly,
Owens’s presentment of his current claim for the first time in the Court and failure
to present the claim’s operative facts at all in the state courts renders it
procedurally defaulted on federal habeas review.
But even if the Court were to evaluate Owens’s current claim on the merits, it
lacks merit in any event. “[I]ncorrect advice that induces a defendant to waive his
right to testify can constitute ineffective assistance.” Starkweather v. Smith, 574
F.3d 399, 403 (7th Cir. 2009) (emphasis omitted). To prevail on this claim, Owens
must demonstrate that counsel’s advice fell below an objective standard of
reasonableness, and that there is a reasonable probability that had Owens testified
he would have been acquitted of murder. Owens can show neither.
40
Owens testified that prior to trial, he told Rago about his desire to testify,
and Rago stated his opinion that Owens need not testify given the weaknesses in
the State’s case. R. 126 at 120, 206. Rago at no time told Owens that he could not
testify. Id. at 222. Owens trusted counsel’s judgment, agreed to follow Rago’s
recommendation, and decided not to testify. Id. at 207. Owens testified that during
the trial, he again discussed his right to testify with Rago, and at that time, Rago
recommended that Owens need not testify, particularly given Evans’s “botched”
photo array selection. Id. at 121. Owens again agreed to follow Rago’s
recommendation, believing that his testimony was not critical evidence given the
State’s evidence, and in none of his post-trial correspondence with Rago did he
mention that he had wanted to testify or that he disagreed with counsel’s
recommendation that he not testify. Id. at 122-23, 222.
There is no indication from Owens’s testimony that Rago misinformed him of
his rights or his chances of acquittal. Indeed, Rago testified that he would never
have predicted an outcome of a trial to a client. R. 125 at 148 (“I never, ever predict
an outcome regarding either a jury trial or a bench trial with my clients.”). Thus,
the Court is left with Owens’s allegations that counsel advised him not to testify
and pursuant to that recommendation, Owens decided not to testify. Even assuming
Rago advised Owens against testifying, Owens has not demonstrated that this
advice would have been objectively unreasonable under the circumstances as they
existed at the time. Rago may have believed that it was better strategy to focus
Owens’s defense on aggressively attacking the credibility of the State’s eyewitnesses
41
by challenging the reliability of their identifications. Id. at 149; see also R. 112-1 at
100-17 (Rago’s closing argument). Or he may have believed the State’s case was
weak, particularly after Evans’s testimony regarding the photo array, and decided
to rely on that trial strategy rather than also running the risk of Owens’s testifying
and relying on Owens’s uncorroborated alibi defense. Such a decision was not
unreasonable and outside the bounds of reasonable professional assistance. See
United States ex rel. Parker v. Chandler, No. 09 C 4321, 2011 WL 221834, at *10
(N.D. Ill. Jan. 24, 2011).
Nor can Owens demonstrate that he has met Strickland’s prejudice
requirement. Even if Owens had testified that he was not present at the scene at
the time of the murder, there is no reasonable probability that he would have been
acquitted. His alibi was uncorroborated—Blackman would not have been able to
confirm Owens’s whereabouts at the time of the murder. Johnnie and Evans
testified that they saw Owens commit the murder, and despite Rago’s attempts to
discredit their identifications, the trial court found their testimony credible. It
cannot be said that if Owens’s unsupported and self-serving testimony that he was
with friends that night had been presented that would have resulted in the trial
court’s acquittal of Owens for Nelson’s murder. Because Owens cannot demonstrate
either counsel’s deficient performance or prejudice resulting from counsel’s
performance, Owens cannot prevail on his current claim regarding his right to
testify.
42
III.
Certificate of Appealability
Because Owen’s ineffective assistance of counsel claim lacks merit, his
petition for a writ of habeas corpus is denied. Rule 11(a) of the Rules Governing §
2254 Cases provides that the district court “must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” To obtain a
certificate of appealability, a habeas petitioner must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This demonstration
“includes showing that reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks omitted);
see also Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011). And where a petition is
disposed of based on a procedural bar, without reaching the merits of the
underlying constitutional claims, a certificate of appealability should issue only if
reasonable jurists would find the adjudication of the antecedent procedural ruling
“debatable.” Slack, 529 U.S. at 484-85; see also Lavin, 641 F.3d at 832.
The Court’s earlier denial of Owens’s inordinate delay and Fourth
Amendment claims rests on well-settled precedent governing procedural default
and the non-cognizability of these claims in § 2254 proceedings. The Court’s further
determination that Owens’s claim regarding the state trial court’s admission of the
photo array and lineup identification was procedurally defaulted is not a conclusion
that reasonable jurists could debate. Nor is the Court’s rejection of Owens’s
43
improper extrajudicial findings claim on the merits a finding that is debatable.
Finally, the Court’s denial of both grounds of Owens’s ineffective assistance of
counsel claim rests on well-settled precedent governing procedural default.
Moreover, based on Rago’s and Zupancic’s credible testimony regarding their
investigation into Owens’s alibi defense, Blackman’s credible testimony regarding
the limited extent to which he remembered being with Owens the night of the
murder, and Rago’s credible testimony regarding his advising of Owens about his
right to testify, Owens has not demonstrated that the application of Strickland to
Owens’s ineffective assistance claim presents questions that jurists of reason could
debate should be resolved in a different manner. Accordingly, certification of any of
Owen’s habeas claims for appellate review is denied.
Conclusion
For the foregoing reasons, Owens’s petition for a writ of habeas corpus is
denied, and the Court declines to issue a certificate of appealability for any of his
claims.
ENTERED:
__________________________
Thomas M. Durkin
United States District Judge
Dated: February 11, 2014
44
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?