Owens v. Acevedo et al

Filing 79

MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 4/23/2012: Mailed notice(etv, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA, ex rel.
LARRY OWENS,

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Petitioner,
v.
GERARDO ACEVEDO, Warden,
Hill Correctional Center
Respondent.

No. 08 C 7159
Hon. Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
At a bench trial on November 8, 2000, Petitioner Lawrence Owens (“Owens” or “Petitioner”)
was convicted of first degree murder for beating Ramon Nelson to death with a baseball bat outside
a liquor store. Owens was sentenced to 25 years in prison. He challenged his conviction in an
unsuccessful direct appeal and by way of a petition for postconviction relief; his state remedies
have been exhausted. In this action pursuant to 28 U.S.C. § 2254, Owens raises five grounds for
relief: (1) due process violations for the delay in the state trial court’s resolution of his postconviction
relief petition; (2) lack of probable cause for his arrest; (3) admission of improperly suggestive photo
array and line-up evidence at trial; (4) the trial court’s reliance on improper “extrajudicial” findings
regarding Owens’s motive, based on evidence not produced at trial; and (5) ineffective assistance
of counsel for his trial counsel’s failure to investigate Petitioner’s alibi or call alibi witnesses to
testify, and for denying Owens his right to testify on his own behalf. For the reasons explained
here, the court denies the petition with respect to Claims 1-4, but concludes that Petitioner is
entitled to an evidentiary hearing of limited scope on his ineffective assistance on counsel claims
(Claim 5).

FACTUAL BACKGROUND
1

On habeas review, this court presumes the facts as found by the state court correct, absent
clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). The following facts are
derived from the Illinois appellate court’s order affirming Petitioner’s conviction on direct appeal.
(Order, People v. Owens, No. 1-01-0341 (Ill. App. 1st Dist. Dec. 4, 2002) (hereinafter, “Direct
Appeal Order”), Ex. D to Resp’t’s Answer.)
I.

Evidence at Trial
On the evening of September 22, 1999, sometime after 8:00 p.m., an assailant, later

identified by eyewitnesses as Owens, attacked seventeen-year-old Ramon Nelson with a baseball
bat outside a liquor store and lounge in Markham, Illinois, resulting in Nelson’s death. (Id. at 5-7,
11-12, 14.) Maurice Johnnie, one of the two eyewitnesses who appeared at trial, testified that he
was in the passenger’s seat of his own car with two friends, parked about ten feet from the entrance
to the liquor store and facing that direction. (Id. at 6.) It was not quite dark yet, and the front of the
store was illuminated by streetlights and lights from the liquor store’s front door. (Id.) Eventually,
one friend entered the liquor store, leaving Johnnie and the other friend, Johnny Morgan, in the car.
(Id.)
While Johnnie and Morgan waited in Johnnie’s car outside the liquor store, Nelson
approached the car on a bicycle and spoke to Morgan, who was seated on the driver’s side. (Id.)
Johnnie did not know Nelson. (Id.) After speaking to Morgan for three or five minutes, Nelson
proceeded down the sidewalk, away from the passenger’s side of the car, towards the entrance of
the liquor store. (Id. at 6-7.) Johnnie then observed a man walking down the sidewalk in the
opposite direction and toward Nelson. (Id. at 7.) Nelson attempted to turn his bicycle around, but
the man caught up with him and hit Nelson on the head with a baseball bat. (Id.) Nelson fell from
his bicycle into the doorway of the store, where the assailant hit him in the head a second time,
forcefully and with both hands on the bat. (Id.) After the second hit, the attacker turned and walked
back in the direction from which he had come. (Id.) Johnnie testified that he saw the attacker’s
2

face on his approach, but got his best look after the attacker had finished his assault. (Id. at 9.)
Johnnie and Morgan then went to check on Nelson, found him unconscious and groaning, and, at
Morgan’s insistence, took him to the hospital in Johnnie’s car. (Id. at 7.) Nelson died in the hospital
the next day as a result of multiple skull fractures. (Id. at 14; Markham Police Department Case
Report, Brief of Defendant-Appellant Lawrence Owens in People v. Owens, No. 1-01-0341
(hereinafter “Pet’r’s Direct Appeal Brief”), Ex. A to Resp’t’s Answer, at A-7 to -8.)
The second eyewitness to testify at trial was William Evans. (Direct Appeal Order at 10.)
Evans, who had a previous drug conviction and was in custody on another drug charge at the time
of trial, acknowledged that he was testifying in return for a recommendation of probation. (Id. at 1011.) Evans testified that he was on the same block as the liquor store, and that he spoke to Nelson,
whom he knew from the neighborhood, for about a half hour before the attack. (Id. at 11.) After
their conversation, Evans saw Nelson proceed toward the entrance of the liquor store on his
bicycle. (Id.) At the time the attack began, Evans was retrieving a bucket at the northeast corner
of the block in order to wash a car. (Id.) Evans was first made aware of the attack when he heard
a sound like wood splitting. (Id. at 12.) Evans looked around the corner of the building and saw
the assailant hitting Nelson with the bat. (Id.) While Evans did not know the assailant, he
recognized the assailant as someone who had visited the liquor store and lounge in the past. (Id.)
Evans hollered, “hey, what is going on,” whereupon the assailant and another man ran off past him.
(Id.) Following the attack, Evans went to see Nelson, and helped put Nelson into Johnnie’s car.
(Id. at 13.) Immediately after the incident, Evans briefly spoke with police officers, described the
approximate height and weight of the two individuals, and informed them that he had recognized
the assailant from the neighborhood. (Id.)
Johnnie did not speak with police officers on the night of the incident (id. at 8), and he gave
a false name and address when he dropped Nelson off at the hospital.

(Markham Police

Department Case Report.) Responding officers at the scene of the crime learned the license plate
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number of the car that transported Nelson to the hospital, however, and Detective White was able
to identify Johnnie from the vehicle’s registration. (Id.) Detective White contacted Johnnie, who
agreed to an interview at the Markham police station on September 28, 1999, a week after the
incident. (Id.) Johnnie described the attacker as a large black male, approximately 6'2" to 6'4",
weighing 220 to 240 pounds, and dressed in brown. (Direct Appeal Order at 8.) Detective White
compiled a photo array based on Johnnie’s description. (Id. at 9.) Johnnie selected Owens’s photo
from the array as the photo of the individual who attacked Nelson. Detective White testified at trial
that he never said the assailant was in the array and never made any suggestive remarks regarding
the array. (Id.)
Evans also viewed the photo array at the station on September 28, 1999, and also
described the assailant as a large black male, dressed in brown or tan. (Id. at 3.) Detective White
testified that Evans identified Owens as the person who attacked Nelson. (Id.) At trial, however,
when asked by the prosecutor which photo in the array he had identified as the assailant’s, Evans
pointed to a photograph of a person other than Owens. (Id. at 12.) When given another opportunity
by the prosecutor, Evans again failed to select Owens’s photograph. (Id.)
Following the photo identifications, Detective White directed his fellow officers to be on the
lookout for Owens. (Id. at 4.) No arrest warrant was issued, but Detective White informed Officer
Mike Alexander on September 29, 1999, that Owens, also known as “Big O,” was wanted in
connection with a murder investigation. (Id.)
On October 26, 1999, Officer Alexander observed a blue Mercury Topaz speed by his
unmarked squad car, traveling fifty miles per hour in a twenty-mile-per-hour zone. (Id. at 4.)
According to Officer Alexander, the car did not stop when he activated his emergency lights and
siren. (Id.) Instead, the Topaz accelerated through a stop sign and proceeded northbound, with
Alexander in pursuit. (Id.) When the Topaz eventually pulled over, Owens exited the vehicle and
ran northbound through a crosswalk. (Id.) Alexander gave chase and caught Owens a block and
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a half away. (Id.) At a hearing on Owens’s unsuccessful motion to quash his arrest, Owens denied
that he was speeding or that he ran a stop sign. (Id. at 2-3.) He claimed that he did not see the
squad car until thirty seconds before he pulled over, and that he walked, not ran, from the car. (Id.
at 3.) Owens did not deny, however, that he was driving the car. (Id.) Alexander placed Owens
under arrest and transported him to the Markham police station when Owens could not produce a
driver’s license. (Id. at 4-5.)
On reaching the station, Alexander informed Detective White that Owens was in custody.
(Id. at 5.) On October 27, 1999, witnesses Johnnie and Evans independently selected Owens out
of a five-man lineup organized by Detective White. (Id.) Detective White acknowledged that Owens
was the only man who appeared in both the lineup and the photo array, and Johnnie acknowledged
at trial that Owens was the “biggest and bulkiest” of the people in the lineup. Johnnie asserted,
however, that the identification was not based on height because everyone in the lineup was
seated. (Id. at 8.) Prosecutors also showed Evans a photograph of the lineup at trial and asked
Evans to pick out the individual he selected at the station. (Id. at 12.) Evans pointed out Owens
in the lineup photograph after having failed to identify Owens as the person whom he had selected
from the photo array. (Id.)
Following the witness testimony, the parties presented a series of stipulations regarding
Nelson’s cause of death, the fact that Nelson had forty bags of cocaine on him when attacked, and
that a transcript of Evans’s grand jury testimony was accurate. (Id. at 15.) After these stipulations,
the state rested. (Id.) The court denied Owens’s motion for a directed finding, and the defense
rested without presenting any evidence. (Id.)
After closing arguments in Owens’s bench trial, Judge Joseph Macellaio of the Circuit Court
of Cook County stated:
After hearing this case, I think all of the witnesses skirted the real issue. The issue
to me was you have a seventeen year old youth on a bike who is a drug dealer, who

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[Owens] knew he was a drug dealer. [Owens] wanted to knock him off. I think the
State’s evidence has proved that fact. Finding of guilty of murder.
(Excerpt of Trial Tr., App. to Pet’r’s Direct Appeal Brief, at A-4 to -5.) It is unclear from the record
what evidence the judge considered in support of this finding. Certainly, there was evidence that
Nelson dealt drugs—he had a significant quantity of cocaine in small bags on his person. There
is also evidence that at least one of the prosecution’s two witnesses was involved in the illegal drug
trade. No other record evidence suggests that Owens knew Nelson was a drug dealer, however,
or that Owens himself was involved in drug trade. The judge sentenced Petitioner to twenty-five
years’ imprisonment. (Id. at A-6.)
III.

Postconviction Affiant Testimony
In support of his ineffective assistance of counsel claims, Owens provides his own affidavits,

and those of Tim Blackman, Sheila Minor, and his mother, Bertha Marie Owens. Owens has
presented two sets of these affidavits. He filed the first set with the state court on September 11,
2003, in support of his pro se state petition for postconviction relief. The affidavits in the second
set were prepared on dates ranging from 2006 to 2009. It is not clear from the record what
occasioned the second set of affidavits or whether counsel participated in preparation of any of the
affidavits.
Owens claims that he is innocent of the crime for which he was convicted. (Aug. 26, 2003
Owens Aff. ¶ 2, Ex. A to Pet’r’s Reply.) He further asserts that he repeatedly told his trial counsel,
Frank Rago, that he was innocent, that he had an alibi, and that he had alibi witnesses (Blackman
and Minor). (Id. ¶ 3.) According to Owens, Rago promised that he would investigate Owens’s alibi
and interview his alibi witnesses, and would call Owens and the alibi witnesses to testify on
Owens’s behalf. (Id. ¶ 4.) Despite these assurances, Owens contends, Rago failed to investigate

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or interview the alibi witnesses, and in fact forbade Owens from testifying on his own behalf. (Id.)1
Owens explains that although he wanted to testify, Rago told him “not to worry, meaning that
[Owens] would be acquitted.” (Jan. 11, 2008 Owens Aff. ¶ 4.) Owens asserts that neither Rago
nor Judge Macellaio explained that he had the right to testify or that the decision on whether to
testify was Owens’s alone. (Id. ¶¶ 5-6.) According to Owens, had he known this was his decision
to make, he would have testified, and explained that he was innocent and had an alibi. (Id. ¶ 7.)
In his affidavit, Tim Blackman provides an account of his time with Owens on September
22-23, 1999. According to Blackman’s account, at 2:30 p.m. on September 22, 1999, he and
Owens were in front of Owens’s house in Markham, Illinois when Sheila Minor drove by and asked
them to help her assemble a dinette set later that evening. (July 18, 2003 Blackman Aff. ¶¶ 2-3,
Ex. B to Pet’r’s Reply.) Blackman and Petitioner met Minor at her father’s house, down the street
from Owens’s home, at 6:15 p.m. (Id. ¶ 4.) From there, Minor gave Blackman and Owens a ride
to Minor’s home in Sauk Village, Illinois. (Id. ¶ 5.) They arrived at Minor’s home at 7:20 p.m.,
assembled the dinette set, and then spent the remainder of the evening talking, eating, and
watching television. (Id. ¶ 6.) Instead of heading back to Markham that evening, Blackman and
the Owens spent the night at Minor’s home, staying until 6:00 a.m. the following morning. (Id. ¶¶ 8,
9.) Blackman says that prior to trial, he assured Owens’s mother that he would testify to these
events, but Owens’s attorney never contacted, interviewed, or asked Blackman to testify. (Id.
¶¶ 10, 11.)
Tim Blackman’s second affidavit, prepared several years later, provides an account similar,
though not identical, to the one set forth in his initial affidavit. According to that second affidavit,
Blackman and Owens began their day at Blackman’s home, not at Owens’s home, and returned

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Owens has also asserted that Rago did not prepare Owens to testify before calling
him as a witness at the hearing on his motion to quash the arrest. (Jan. 11, 2008 Owens Aff. ¶ 3,
Ex. F to Pet’r’s Reply.) Owens does not, however, advance this argument in his federal habeas
petition.
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at 8:00 a.m., not 6:00 a.m., the following day. (Aug. 23, 2006 Blackman Aff. ¶¶ 7, 12,Ex. G to
Pet’r’s Reply.)
Sheila Minor also provided affidavits recounting her time with Owens and Blackman on
September 22-23,1999, the details of which mirror those set forth in Blackman’s first affidavit. (July
18, 2003 Minor Aff., Ex. C to Pet’r’s Reply.) Like Blackman, Minor was never contacted or
interviewed by Owens’s attorney and was never called to testify on Owens’s behalf. (Id. ¶ 11.)
Minor’s second affidavit repeated her earlier account. (Jan 22, 2007 Minor Aff., Ex. H to Pet’r’s
Reply.)
Finally, Petitioner’s mother, Bertha Marie Owens, provided affidavits concerning her active
involvement in Petitioner’s defense. Ms. Owens asserts that she told Frank Rago numerous times
that Blackman, Minor, and her son wanted to testify and could provide an alibi defense. (Sept. 10,
2003 Ms. Owens Aff. ¶ 3, Ex. D to Pet’r’s Reply.) She supplied Rago with Blackman’s and Minor’s
names and contact information, but despite his numerous assurances about presenting the alibi
defense, he never interviewed them or investigated the alibi. (Id. ¶¶ 4-5.) According to Ms. Owens,
Rago decided not to use the alibi defense because, he told her, the prosecutor’s case against her
son was too weak and he would never be convicted. (Id. ¶ 6.) Ms. Owens’s second affidavit
presents the same information. (Oct. 31, 2006 Ms. Owens Aff., Ex. I to Pet’r’s Reply.)
PROCEDURAL HISTORY
Following trial, Owens appealed to the Illinois Appellate Court, First District. On direct
appeal, Petitioner argued (1) that Petitioner was not proven guilty beyond a reasonable doubt; (2)
that Petitioner’s arrest and the lineup evidence should have been suppressed because the police
had no probable cause to arrest for the murder charge; (3) that the photo array and lineup evidence
should have been suppressed because they were overly suggestive; (4) that the judge’s
extrajudicial findings concerning Owens’s motive for the crime denied Petitioner a fair trial; (5) that
Petitioner was denied the effective assistance of counsel; and (6) that the sentence was excessive.
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(Pet’r’s Direct Appeal Brief at 15, 25, 30, 32, 34.) Concerning Owens’s ineffective assistance of
counsel claim, his brief noted that his claim was limited on direct appeal to evidence in the trial
record, which precluded consideration of evidence of his desire to testify or the availability of alibi
witnesses. (Id. at 33 n.3.) In a 2-1 decision, the Illinois Appellate Court affirmed the trial court’s
judgment on December 4, 2002. (Direct Appeal Order at 34.)
The court concluded that police had probable cause for both the warrantless arrest for the
traffic violations and the subsequent arrest for murder based on the eyewitness identifications. (Id.
at 17-18.) Further, the court held that Owens had waived his right to the admission of the photoarray and lineup identifications by failing to raise a trial objection, and that in any event, Owens
failed to establish that the identification procedures were impermissibly suggestive. (Id. at 19-22.)
Concerning the sufficiency of the evidence, the court noted that the prosecution could carry its
burden through the testimony of a single, credible eyewitness. (Id. at 22.) Although the court noted
that Evans’s testimony was “severely called into question”—both by his misidentification of Owens’s
photograph in the photo array at trial and by his deal to testify in exchange for a recommendation
of lenient sentencing in his own criminal trial—the court concluded that “Johnnie’s identification
testimony is reliable and sufficient enough to support the trial court’s guilty verdict.” (Id. at 25-26.)
In light of the identifications, the majority concluded that “the trial court’s speculation as to
defendant’s motive for assaulting Nelson, will be construed as harmless error.” (Id. at 27.) The
dissenting judge disagreed with this analysis; the dissent observed that the trial judge had
“manufactur[ed], suppl[ied], and interject[ed] its own evidence into a trial and then affirmatively
stat[ed] on the record that this manufactured evidence constituted the basis of its verdict.” (Id. at
37 (South, J., dissenting).)

Finally, the Illinois appellate court rejected Owens’s ineffective

assistance of counsel claim on direct appeal. In the absence of the post-trial affidavit testimony
mentioned above, the court concluded that Owens failed to point to anything in the trial record
“which indicates that defense counsel failed to investigate the case” or “that defendant ever
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expressed a desire to testify or that defense counsel frustrated defendant’s request to testify.” (Id.
at 31-32 (majority opinion).)
Owens filed a Petition for Leave to Appeal (“PLA”) with the Illinois Supreme Court on
January 8, 2003. (Lawrence Owens’s Pet. for Leave to Appeal, Ex. E to Resp’t’s Answer.) Owens
sought review only of the appellate court’s conclusion that the evidence was sufficient for conviction
and that the trial court’s extrajudicial finding concerning Owens’s motive was harmless error. (Id.
at 1.) Petitioner also attempted to preserve other errors not raised in the PLA by stating that
“several other instances of trial error were fully briefed in the Appellate Court, but space limitations
here prevent discussion. If this Petition is granted, defendant wishes to preserve those issues
which were presented as well in the appellate court, in a supplemental brief.” Id. at 3-4.) The
Illinois Supreme Court denied Owens’s PLA on April 2, 2003. People v. Owens, 203 Ill.2d 563, 788
N.E.2d 733 (2003).
After his unsuccessful direct review concluded, Owens pursued further review by way of a
petition for post-conviction relief. Owens filed a pro se petition on September 10, 2003. (Pet. for
Writ of Habeas Corpus (hereinafter “Habeas Pet.”), at 3.)2 A number of years later, counsel filed
a supplemental petition for posconviction relief on Owens’s behalf on June 16, 2008. Owens
claimed that he was deprived of effective assistance of counsel because Rago, his trial counsel,
neither investigated his alibi nor called alibi witnesses to testify at trial, and because Rago forbade
Petitioner from testifying on his own behalf. (Supplemental Pet. for Post-Conviction Relief, Ex. G

2

No copy of this pro se petition appears in the record, but Respondent does not
dispute that it was filed.
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to Resp’t’s Answer, at 1-2.)3 In support of his petition, Owens submitted the post-trial affidavit
testimony discussed above.
While his state postconviction petition was still pending, Owens filed the instant habeas
petition on December 15, 2008. Respondent moved to dismiss the petition due to Petitioner’s
failure to exhaust his state court remedies. (Motion to Dismiss [18].) Owens cited “inordinate
delay” to explain his decision to file a federal habeas petition before his state petition, then pending
more than five years, had been resolved. (Habeas Pet. at 3.) This court initially delayed ruling on
the motion to dismiss, in the hope that completion of the state court process would render
Respondent’s motion moot. On March 9, 2010, however, the court denied Respondent’s motion,
noting that despite Petitioner’s diligence “in making contact with his lawyers, seeking information
from them, and urging action,” the state trial court had taken more than six years to rule on the
petition, and no further ruling was in sight. (Mar. 9, 2010 Minute Order [24].) Although some of the
delay was evidently attributable to his appointed counsel, this court noted that the state trial court
was also responsible for delays, for reasons that appeared unrelated to any request made by
Owens or his attorneys or by the state. (Id.)
During the pendency of this federal habeas petition, Petitioner’s state postconviction petition
continued to wind through the state courts. In its oral ruling, rendered on September 29, 2009, the

3

Petitioner’s counsel later filed an amended supplemental petition in which Petitioner
claimed, pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1(a)(1), and the due
process clause of the Illinois Constitution, see People v. Washington, 171 Ill. 2d 475, 489, 665
N.E.2d 1330, 1337 (1996), that he was actual innocent based on newly discovered evidence. (Am.
Supplemental Pet. for Post-Conviction Relief, Ex. H to Resp’t’s Answer, at 1.) The trial court
ultimately dismissed Owens’s petition on this ground. (Brief and Argument for Petition-Appellant
in People v. Owens, No. 1-09-2626 (hereinafter “Pet’r’s Postconviction Appeal Brief”), Ex. J to
Supplemental Index of State Court Record Exhibits (hereinafter “Supplemental Record”), at 12.)
It is not clear from the record on what grounds the trial court rejected Petitioner’s actual innocence
claim, but the court notes that the affidavits from Blackman and Minor do not constitute “newly
discovered evidence” because the facts to which they attest were available to Petitioner at the time
of his trial. Petitioner did not challenge the trial court’s determination of his actual innocence claim
on appeal.
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state trial court explained that because Petitioner raised ineffective assistance of counsel claims
on direct appeal, the postconviction petition claims were barred by res judicata.

(Pet’r’s

Postconviction Appeal Brief, at 12; Certified Report of Disposition in People v. Owens, No. 99 CR
25287-01, App. to Pet’r’s Postconviction Appeal Brief, at A-7.) Petitioner appealed this decision
to the Illinois appellate court, arguing that the trial court erred in dismissing his petition without an
evidentiary hearing. (Pet’r’s Postconviction Appeal Brief at 1.) Further, Petitioner asserted that the
court erred in applying the doctrine of res judicata because Petitioner’s state postconviction petition
presented evidence outside the trial record, not available to the Illinois appellate court or the Illinois
Supreme Court on direct appeal. (Id. at 27.)
The Illinois appellate court denied Petitioner’s appeal on March 21, 2011. (Summary Order
in People v. Owens, No. 1-09-2626 (Ill. App. 1st Dist. Mar. 21, 2011) (hereinafter “Postconviction
Order”), Ex. M to Supplemental Record.) The court acknowledged that under Illinois law, “[r]es
judicata does not bar a defendant from raising an ineffective assistance claim in a petition for
postconviction relief if the claim is based on evidence outside the record.” (Id. at 2 (citing People
v. Ward, 187 Ill. 2d 249, 257, 718 N.E.2d 117, 124 (1999)).) Nevertheless, the court concluded that
the post-trial affidavits “do not constitute evidence outside the record sufficient to preclude the
application of res judicata to this claim.” (Id. at 3.) The court characterized counsel’s decision not
to investigate and present alibi witnesses, and instead to present no evidence in Owens’s defense
at all, as a “tactical choice made on the basis of strategic considerations.” (Id. at 3.) Further, the
court concluded that Petitioner had not alleged that he asserted his right to testify on his own behalf
and that he had not established how absence of his testimony prejudiced his defense. (Id. at 4.)
Following this appeal, Petitioner filed a Petition for Rehearing on March 31, 2011 (Ex. N to
Supplemental Record), which the appellate court denied on June 22, 2011. (Ex. O to Supplemental
Record.) Finally Petitioner filed a PLA with the Illinois Supreme Court. (Ex. P to Supplemental
Index.) The PLA was denied on September 28, 2011. (Ex. Q to Supplemental Record.)
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DISCUSSION
In his petition to this court, Owens claims that (1) the long delay in resolution of his state
court postconviction petition violated his due process rights; (2) there was no probable cause to
arrest him; (3) the trial court should have suppressed the photo array and lineup evidence because
it was improperly suggestive; (4) the trial court made improper “extrajudicial” findings regarding
Owens’s motive, basing its finding of guilt on evidence not produced at trial; and (5) trial counsel
provided ineffective assistance of counsel. In response, Respondent argues that an “inordinate
delay” claim (Claim 1) is not cognizable on habeas review; that rejection of Owens’s “extrajudicial
findings” claim (Claim 4) was not an unreasonable application of, or contrary to, United States
Supreme Court precedent; and that the remaining claims (Claims 2, 3, and 5) are procedurally
defaulted. This court addresses the threshold issues raised in Respondent’s answer—whether the
claims are cognizable or procedurally defaulted—before considering the merits of those claims that
are appropriately before this court.
I.

Threshold Issues
A.

Cognizablility

Respondent is correct that the long delay in resolution of Owens’s state postconviction
petition does not support habeas relief. The object of habeas corpus relief “‘is not to make whole
someone who has suffered a loss,’ but ‘to determine whether a person is being confined in violation
of basic norms of legality.’” Jackson v. Duckworth, 112 F.3d 878, 880 (7th Cir. 1997) (quoting Allen
v. Duckworth, 6 F.3d 458, 460 (7th Cir. 1993)). Accordingly, “‘delay in receiving a ruling on a
discretionary state collateral appeal is not a ground for federal habeas corpus relief.’” Id. (quoting
Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996)). Thus, habeas relief is denied on this
claim (Claim 1).

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B.

Procedural Default

Analysis of Respondent’s procedural default argument is more complicated. Before seeking
habeas review, a petitioner must exhaust available state remedies. 28 U.S.C. § 2254(b). Courts
interpret this provision to require a petitioner to “‘fairly presen[t] federal claims to the state courts in
order to give the State the opportunity to pass upon and correct alleged violations of its prisoners’
federal rights.’” Johnson v. Pollard, 559 F.3d 746, 751 (7th Cir. 2009) (alteration in original) (quoting
Duncan v. Henry, 513 U.S. 364, 365 (1995)). To fairly present his federal claim, a petitioner must
put the claim through one complete round of the State’s established appellate review process. Id.
at 752 (citing Woodford v. Ngo, 548 U.S. 81, 92 (2006)). “Failure to do so precludes review by
federal courts.” Id.
Petitioner has not challenged Respondent’s contention that Petitioner’s challenge to probable
cause for arrest (Claim 2) and to the identification procedures (Claim 3) were presented only to the
Illinois appellate court, and were not explicitly argued in Petitioner’s direct appeal PLA to the Illinois
Supreme Court. Petitioner wisely does not argue that the “catch-all” language in his PLA, purporting
to preserve errors not included due to space constraints, preserves these errors for habeas review.
Those claims for habeas relief are procedurally defaulted.
Respondent also argues that Petitioner’s ineffective assistance of counsel claims are
procedurally defaulted. Respondent is correct that Petitioner did not raise these claims in his direct
appeal PLA. Respondent filed his brief before the resolution of the postconviction petition, however.
That petition did present his ineffective assistance claims, which Petitioner then raised in both the
Illinois appellate court and the Illinois Supreme Court. Thus, the claims were subject to a full round
of review.
Respondent argues that res judicata, under Illinois law, bars Petition from asserting these
ineffective assistance claims. But the Seventh Circuit has “‘repeatedly held that res judicata is not
a bar to consideration of claims in a federal habeas action.’” Davis v. Lambert, 388 F.3d 1052, 1058
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(7th Cir. 2004) (quoting Moore v. Bryant, 295 F.3d 771, 776 n.1 (7th Cir. 2002)). In doing so, the
Seventh Circuit has concluded that a state court’s determination on postconviction review that a
petitioner’s ineffective assistance claim is barred by res judicata is not an “adequate and
independent state ground for rejecting the petition.” Id. “‘[F]ederal review is precluded only by
procedural forfeitures, not by res judicata concerns.” Id. (citing Page v. Frank, 343 F.3d 901, 907 (7th
Cir. 2003)). Because Petitioner’s ineffective assistance claims were fully and fairly presented
through one complete round of state court review, they are not procedurally defaulted.
II.

Merits Analysis
Two of the five claims survive to be decided on the merits: the claim that the court made

improper “extrajudicial” findings regarding petitioner’s motive and the ineffective assistance of
counsel claims. Where the state courts deny a petitioner’s federal claim on the merits, a federal
court may grant habeas relief only where the state courts’ decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States,” or “resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d);
see also Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010). The Seventh Circuit has observed that
a review for reasonableness “is highly deferential; indeed, ‘a state decision may stand as long as
it is objectively reasonable, even if the reviewing court determines it to be substantively incorrect.’”
Morgan v. Hardy, 662 F.3d 790, 797 (7th Cir. 2011) (quoting Barrow v. Uchtman, 398 F.3d 597, 602
(7th Cir. 2005)); see also Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir. 2004) (“A federal habeas
court must find that the state’s application of federal law was unreasonable and not simply erroneous
or incorrect.”). To be “objectively unreasonable,” a state court’s decision must fall “‘well outside the
boundaries of permissible differences of opinion.’” Morgan, 662 F.3d at 797 (quoting Watson v.
Anglin, 560 F.3d 687, 690 (7th Cir. 2009)). The petitioner bears the burden to show that the state
courts’ application of federal law was unreasonable. Sturgeon v. Chandler, 552 F.3d 604, 609 (7th
19

Cir. 2009) (citing 28 U.S.C. § 2254(e)(1); Harding, 380 F.3d at 1043). Where, however, the state
court’s adjudication of the claims was not on the merits, a federal habeas court reviews the claims
de novo. Cone v. Bell, 556 U.S. 449, 472 (2009).
A.

Improper Extrajudicial Findings

Petitioner claims he was deprived of a fair trial when, while announcing the verdict, the trial
court judge made extrajudicial findings regarding Petitioner’s motive to commit the murder. On direct
appeal, the appellate court concluded that the judge’s comments were not based on the evidence
because there was “no evidence presented that [Owens] knew Nelson was dealing drugs, and there
was no evidence presented that [Owens] was involved with gangs or the illegal drug trade.” (Direct
Appeal Order at 25.) Nevertheless, the majority of the appellate panel determined that the trial
court’s speculation as to Owens’s motive for assaulting Nelson constituted harmless error because
the eyewitness testimony was reliable enough to sustain the conviction.
Petitioner bears the burden to show that the state courts’ decision violates the Constitution.
Petitioner has asserted that he was denied a fair trial because the judge’s extrajudicial findings were
based on his personal opinion, bias, or prejudice. (Habeas Pet. at 7.) Beyond this initial assertion,
however, the Petitioner does little to advance this line of argument. In Petitioner’s pro se reply brief,
he asserts that the extrajudicial findings were “racist.” (Pet’r’s Pro-Se Habeas Corpus Reply Pet.
[52], at 3.) Later, in a brief prepared by counsel, Petitioner does not even address the trial court’s
extrajudicial findings, and instead focuses on his ineffective assistance of counsel claim. Thus,
Petitioner has not identified any Supreme Court precedent that the Appellate Court allegedly applied
in an unreasonable or contrary way. Petitioner’s failure to carry his burden is, alone, enough reason
to deny habeas relief on his “extrajudicial findings” claim.
Even if Plaintiff could establish that extrajudicial findings by a state court judge violated a
clearly established Supreme Court precedent, the relevant inquiry is whether the appellate court’s
determination that the extrajudicial findings were harmless error was a reasonable application of
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Chapman v. California, 386 U.S. 18 (1967). See Johnson v. Acevedo, 572 F.3d 398, 404 (7th Cir.
2009) (explaining that where a state court conducted a harmless error analysis, the question for
federal courts is whether it was a reasonable application of Chapman). Under Chapman, in order
for a constitutional error to be considered harmless, it must be considered harmless beyond a
reasonable doubt. Chapman, 386 U.S. at 24.
The appellate court’s harmless error analysis was not an unreasonable application of
Chapman. In discussing the evidence, the Appellate Court reviewed the testimony of the two
eyewitnesses in detail. The Appellate Court thought it significant that a witness within a few feet of
the attack had ample opportunity to observe the assailant. Additionally, although their testimony was
not entirely consistent, each of the two witnesses positively put the Petitioner at the scene. With
such evidence, it is not unreasonable for the appellate court to determine the error of motive
speculation as harmless beyond a reasonable doubt. As the Petitioner made no substantive
argument to further his claim, and the appellate court applied Supreme Court precedent in a
reasonable manner, habeas relief on Count 4 is denied.
B.

Ineffective Assistance of Counsel

The court turns, finally, to the ineffective assistance claims. Petitioner claims trial counsel
was ineffective in (1) failing to investigate, interview, or call alibi witnesses to testify and (2) failing
to put Petitioner on the stand at trial.4 “‘[T]he right to counsel is the right to the effective assistance
of counsel.’” Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson,
397 U.S. 759, 771 n.14 (1970)). To establish a claim under Strickland, Petitioner must show he
received deficient assistance, and that this deficiency resulted in prejudice. Morgan, 662 F.3d at
802.

4

Petitioner does not raise his trial counsel’s failure to object to the photo array and
lineup identifications as additional grounds for an ineffective assistance argument.
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Deficiency is established where the attorney’s performance falls below “an objective standard
of reasonableness.” Id. (citing Strickland, 466 U.S. at 688). Review of an attorney’s performance
is “highly deferential and reflects a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. . . . So long as an attorney articulates a strategic
reason for a decision that was sound at the time it was made, the decision generally cannot support
a claim of ineffective assistance of counsel.” Yu Tian Li v. United States, 648 F.3d 524, 527-28 (7th
Cir. 2011).
To establish prejudice, Petitioner must demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.

A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Morgan,
662 F.3d at 802 (citing Strickland, 466 U.S. at 694). The error must be “so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. (citing Strickland, 466 U.S. at 687). “The
likelihood of a different result must be substantial, not just conceivable.” Id. Further, there is no
need to consider the performance prong of the Strickland analysis if the court finds the prejudice
prong cannot be satisfied. Id. (citing Matheney v. Anderson, 253 F.3d 1025, 1042 (7th Cir. 2001)).
This case presents complications in determining the appropriate level of deference toward
the state court’s adjudication of Petitioner’s ineffective assistance claims. Where a federal habeas
court reviews a state court’s adjudication of a petitioner’s ineffective assistance claim on the merits,
28 U.S.C. § 2265(d) applies and the question is whether “whether the state court’s application of the
Strickland standard was unreasonable.” Harrington v. Richter, 131 S. Ct. 770, 785 (2011). When
AEDPA’s “highly deferential” standard for review of a state court’s application of federal law applies
in tandem with Strickland’s “highly deferential” standard for an attorney’s performance, “review is
‘doubly’ so.” Id. at 788 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). Thus, “[w]hen
§ 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is

22

whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.”
Id.
In this case, however, the state courts did not directly resolve the ineffective assistance
argument on the merits, instead denying the postconviction petition on res judicata grounds.
Although res judicata implies that the merits of the issue had already been decided, Petitioner’s
postconviction petition included factual assertions outside the trial record that could not have been
part of his claims on direct appeal, a fact that the Illinois appellate court itself acknowledged. At no
point during the state court postconviction proceedings did the state courts conduct an evidentiary
hearing to evaluate the merits of Petitioner’s ineffective assistance claims. This court is inclined to
take the state courts at their word: denial of the ineffective assistance claims in Petitioner’s
postconviction petition was based on res judicata. Furthermore, the Illinois appellate court never
addressed Strickland’s prejudice prong with regards to Owens’s postconviction petition on the
grounds that Rago did not call alibi witnesses to testify, and did not address Rago’s alleged failure
to investigate Owens’s alibi at all. In similar cases, the Supreme Court has reviewed habeas
petitions de novo. See, e.g., Rompilla v. Beard, 545 U.S. 374, 390 (2005) (applying de novo review
where the state courts did not address Strickland’s prejudice prong); Wiggins v. Smith, 539 U.S. 510,
534 (2003) (same). As the court explains here, the state court’s application of Strickland in its res
judicata analysis appears inadequate under either standard of review.
1.

Failure to Investigate or Call Alibi Witnesses

On appeal from denial of his post-conviction petition, the Illinois appellate court rejected
Petitioner’s claim that his trial counsel was ineffective for failing to call his alibi witnesses to testify.
According to that court, the new evidence submitted by Petitioner was “not sufficient to preclude the
application of res judicata” because Petitioner had failed to demonstrate that Rago’s decision to call
Blackman and Minor to present an alibi defense was anything other than sound trial strategy. The
court observed that Rago had been informed of the alibi testimony prior to trial, but that he
23

concluded that the testimony was unnecessary “after assessing the perceived weaknesses in the
State’s case.” (Postconviction Order at 3.) Thus, the court concluded that Rago’s decision to
present no evidence in Petitioner’s defense was a “tactical choice made on the basis of strategic
considerations.” (Id.)
Based on the uncontroverted evidence presented by Petitioner, however, this court cannot
divine any reasonable argument that resting without presenting any evidence in Petitioner’s defense
is a sound alternative to presenting evidence that, if accepted by the trier of fact, would establish an
absolute defense.

This is not a situation where the presentation of certain evidence might

undermine other defense evidence, or where counsel believes one defense to be stronger than or
inconsistent with another. Petitioner’s alibi defense was compatible with, and in fact considerably
bolstered, the perceived weaknesses in the prosecution’s case due to the credibility problems with
the only witness for the prosecution who claimed familiarity with the assailant from before the
incident—Evans. See Malone v. Walls, 538 F.3d 744, 761 (7th Cir. 2008) (“Especially when there
are vulnerabilities in the prosecution’s identification testimony, ‘[o]pposing testimony from other
eyewitnesses . . . give[s] the jury a qualitatively different and more powerful reason to believe that
the State’s witnesses [a]re mistaken in their identifications.’” (quoting United States ex rel. Hampton
v. Leibach, 347 F.3d 219, 250 (7th Cir. 2003))). Furthermore, the evidence does not support the
conclusion that Rago made a strategic decision not to call alibi witnesses; according to the
uncontroverted affidavit testimony submitted by Petitioner, Rago neither investigated Petitioner’s alibi
nor interviewed his alibi witnesses at all. Thus, it appears that Rago’s decision not to call alibi
witnesses was “one that occurred by default rather than design.” Hampton, 347 F.3d at 249.
The Illinois appellate court did not address the prejudice prong with regard to trial counsel’s
failure to call alibi witnesses, but the court concludes that it is easily satisfied here. There was a
substantial likelihood that the presentation of a persuasive alibi defense would have altered the
outcome at trial in a case where the only evidence against Petitioner was testimony from two
24

eyewitnesses, one of whom–the only one who claimed previous familiarity with the assailant–had
“severe[]” credibility problems. Cf. Malone, 538 F.3d at 761 (holding unreasonable a state appellate
court’s determination that a petitioner was not prejudiced when his counsel failed to call a witness
who would have rebutted the testimony of the prosecution’s witness); Hampton, 347 F.3d at 253
(“Given the central role that eyewitness testimony played in this case, the vulnerabilities of the
testimony of the State’s eyewitnesses, and the shortcomings in human perception that so frequently
render eyewitness testimony less reliable than other types of evidence, we are more than satisfied
that the failure to investigate exculpatory eyewitnesses likely affected the outcome of [the
petitioner’s] trial.” (citation omitted)).
Failure to call alibi witnesses was only one aspect of petitioner’s ineffective assistance
argument. The Illinois appellate court did not in any fashion address Petitioner’s claim that his trial
counsel failed to investigate the alibi defense or to interview the alibi witnesses. This failure affords
an independent basis for an ineffective assistance of counsel claim.
The duty to investigate derives from counsel’s basic function, which is “to make the
adversarial testing process work in the particular case.” “Because that testing
process generally will not function properly unless defense counsel has done some
investigation into the prosecution’s case and into various defense strategies, [the
Supreme Court has] noted that counsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular investigations unnecessary.”
Hampton, 347 F.3d at 247 (alteration in original) (citations omitted) (quoting Kimmelman v. Morrison,
477 U.S. 365 (1986)) (internal quotation marks omitted). If Petitioner’s counsel did not investigate
Petitioner’s alibi, as Petitioner’s unchallenged post-trial affidavits attest, Petitioner’s defense was
prejudiced for the same reasons described above with respect to Petitioner’s failure-to-call-albiwitnesses claim.
The court is nevertheless unwilling to assume that the affidavits Petitioner presents to
substantiate his ineffective assistance claims are sufficient to support habeas relief without further
investigation. One of those affidavits is from Petitioner himself, and another from his mother.

25

Although the other affiants do not have the same obvious motive to fabricate evidence, their
exculpatory assertions have never been subject to cross-examination. Additionally, the record
contains no testimony from Petitioner’s trial counsel either affirming or denying Petitioner’s factual
assertions about counsel’s performance. An evidentiary hearing is necessary to give both Petitioner
and the State an opportunity to develop evidence concerning his trial attorney’s performance.
In reaching this conclusion, the court recognizes the limitations imposed by AEDPA on a
federal habeas court’s authority. If, under § 2254(d), a federal court is limited to reviewing a state
court’s “adjudication on the merits,” recent Supreme Court precedent would preclude this court from
holding an evidentiary hearing. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (“review
under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim
on the merits”). Accordingly, where the state courts have dismissed a collateral challenge on the
merits without holding an evidentiary hearing, but in doing so have unreasonably misapplied clearly
established federal law to the petitioner’s evidence, it appears (somewhat perversely) that his court
would have no choice other than to grant habeas relief–in spite of the possibility that the petitioner’s
(and his witnesses’) assertions are complete fabrications. As noted above, however, the state court
here rested its determination of the ineffective assistance claim on res judicata grounds, and did not
decide the claim on its merits. At a minimum, it is clear that state courts did not address Petitioner’s
failure-to-investigate claim and did not address the prejudice prong for Petitioner’s failure-to-callalibi-witnesses claim, and therefore did not adjudicate those claims on the merits.
Even outside of § 2254(d), AEDPA generally bars federal courts from holding evidentiary
hearings to supplement the record. 28 U.S.C. § 2254(e)(2). Where, however, “the ‘fail[ure] to
develop the factual basis of a claim in State court proceedings’ can not be attributed to something
the petitioner ‘did or omitted,’ Section 2254(e)(2) does not apply and it is then necessary to evaluate
the request for an evidentiary hearing under pre-AEDPA standards.” Matheney, 253 F.3d at 1039
(alteration in original). “Under pre-AEDPA standards, a federal evidentiary hearing is required if (1)
26

a habeas petitioner alleges facts which, if proved, would entitle him to relief and (2) the state
courts—for reasons beyond the control of the petitioner—never considered the claim in a full and
fair hearing.” Id. (citing Porter v. Gramley, 112 F.3d 1308, 1317 (7th Cir. 1997)).
The court is satisfied that Petitioner meets these requirements. Trial counsel’s failure to
interview or call alibi witnesses did not appear on the face of the trial court record, and direct appeal
was limited to review of that record—a principle that Petitioner’s appellate counsel mentioned in the
brief on direct appeal. Petitioner’s requests for a evidentiary hearing on state postconviction review
were denied even though Petitioner diligently came forward with affidavit testimony that, if true,
would establish that trial counsel failed to provide effective assistance.

Because the facts

concerning his attorney’s performance are undeveloped, the state courts never had the opportunity
to consider Petitioner’s ineffective assistance of counsel claims in a “full and fair hearing.” Under
circumstances similar to these, the Seventh Circuit vacated a district court’s order denying habeas
relief and remanded for an evidentiary hearing. See, e.g., Davis, 388 F.3d at 1058-67 (concluding
that a petitioner was entitled to an evidentiary hearing where the Illinois appellate court dismissed
the petitioner’s Strickland claim on res judicata grounds without conducting an evidentiary hearing).
The court concludes Petitioner is entitled to an evidentiary hearing on his claim that trial counsel was
ineffective for failing to investigate Petitioner’s alibi and for failing to call alibi witnesses.
2.

Petitioner’s Right to Testify

On postconviction appeal, the Illinois appellate court also rejected Petitioner’s ineffective
assistance claim predicated on his trial counsel’s refusal to let Petitioner testify on his own behalf.
The court cited People v. Barkes, 399 Ill. App. 3d 980, 989, 928 N.E.2d 102, 112 (2d Dist. 2010),
for the proposition that Petitioner was required to assert his right at trial, which Petitioner did not do.
Under Illinois law, a criminal defendant’s “conviction cannot be reversed on the basis that he was
prevented from exercising that right unless he contemporaneously asserted his right to testify by
informing the trial court that he wished to do so.” People v. Smith, 176 Ill. 2d 217, 234, 680 N.E.2d
27

291, 302 (1997); see also Thompson v. Battaglia, 458 F.3d 614, 619 (7th Cir. 2006) (recognizing
Illinois as among the jurisdictions that require “a defendant to protest a lawyer’s refusal to allow her
to testify during trial to preserve the right”). The court also noted that Petitioner’s affidavit did not
indicate “how or when defendant informed counsel of his alleged desire to testify.” (Postconviction
Order at 4.) Additionally, the Illinois appellate court concluded that Petitioner had failed to explain
how the absence of his testimony prejudiced his defense.
Under clearly establish Supreme Court precedent, “[a] criminal defendant’s right to testify is
‘a fundamental constitutional right.’” Thompson, 458 F.3d at 619 (quoting Rock v. Arkansas, 483
U.S. 44, 53 n.10 (1987)). Although a criminal defendant may waive that right, Petitioner contends
that his trial counsel forbade him from testifying, and that neither his trial counsel nor the judge
explained that the decision to testify was his alone. In his sworn affidavits, Petitioner asserts that
had he been allowed to testify, he would have asserted his “actual innocence” and explained that
he had an alibi defense.5 Had he so testified, there is at least a reasonable probability that his alibi
defense would have altered the outcome at trial; as noted above, the eyewitness testimony that
provided the sole evidence against Petitioner was not overwhelming. In the absence of testimony
from alibi witnesses, Petitioner’s testimony on his own behalf would have been the only opportunity
the court had to hear Petitioner’s alibi defense. This court concludes that the Illinois appellate

5

Petitioner’s proposed testimony is distinguishable from the proposed testimony
described in Barkes, the case cited by the Illinois appellate court in support of its conclusion on
prejudice. In Barkes, a criminal defendant convicted of criminal sexual assault and aggravated
criminal sexual abuse failed to establish prejudice where the “defendant did not indicate that had
he been called to testify he would have stated that he did not have sexual intercourse with [the
victim] or that he was not in a position of trust, authority, or supervision over her, the central issues
in the case.” Barkes, 399 Ill. App. 3d at 990, 980 N.E.2d at 113. Similarly, Barkes relied on a case
in which the court found no prejudice where the defendant, accused of biting a police officer, “did
not indicate that, if he had been called to testify, he would have stated that he had no altercation
with the officer, that the officer’s finger was injured before the altercation began, or that he did not
bite the officer.” People v. Youngblood, 389 Ill. App. 3d 209, 218, 906 N.E.2d 720, 728 (2009) (2d
Dist. 2009). In this case, in contrast, Petitioner alleges that he would have testified that he was not
even in the same city as Nelson at the time Nelson was murdered.
28

court’s conclusion that Petitioner did not explain how absence of his testimony prejudiced him
appears to be an unreasonable determination of the facts and an unreasonable application of
Strickland.
Further, Petitioner appears to have adequately pleaded facts sufficient to justify an
evidentiary hearing on an ineffective assistance claim predicated on the denial of his right to testify.
The Seventh Circuit has “steer[ed] a middle course” between courts, such those in Illinois, which
require a criminal defendant to protest at trial counsel’s refusal to allow the defendant to testify, and
those jurisdictions that “require judges to inquire of defendants directly whether they want to testify.”
Thompson, 458 F.3d at 619. The Seventh Circuit requires “a defendant who wishes to raise this
claim to meet a heightened pleading standard before the court must hold an evidentiary hearing on
the question of waiver.” Id. Under this heightened pleading standard, “a ‘barebones assertion by
a defendant, albeit made under oath, is insufficient’; something more, such as an affidavit from the
lawyer who allegedly forbade his client to testify, is required.” Id. (quoting Underwood v. Clark, 939
F.2d 473, 476 (7th Cir. 1991)). Petitioner does not present an affidavit from his trial counsel, but he
does provide more than just his own sworn affidavit to substantiate his claim. Although the court
notes the affiant’s obvious conflict of interests, Petitioner presents sworn testimony from his mother,
who appears to have participated in Petitioner’s defense preparation. Ms. Owens testifies that she
informed Petitioner’s trial counsel several times that her son wanted to testify, but that at trial,
counsel declined to present any evidence or to call his client to the stand. Petitioner’s claim is
bolstered by Minor’s and Blackman’s affidavits, which suggest that counsel’s performance was
deficient in other respects. Even if Petitioner’s evidence supporting his right-to-testify claim were
not sufficient on its own to merit an evidentiary hearing, this claim obviously overlaps with the failureto-call-alibi-witnesses and failure-to-investigate claims. The court will conduct a single evidentiary
hearing on all of Petitioner’s ineffective assistance claims.
29

CONCLUSION
For the reasons state above, the court will convene an evidentiary hearing of limited scope
to determine (a) whether trial counsel failed to investigate Petitioner’s alibi defense, interview his alibi
witnesses, or call his alibi witnesses to testify; and (b) whether, and to what extent, Petitioner
understood his right to testify. All other claims are denied. With resolution of a constitutional issue
pending an evidentiary hearing, the court declines to issue a certificate of appealability at this time.
Status conference is set for Thursday, May 10, 2012, at 9:30 a.m. for purposes of scheduling.
ENTER:

Dated: April 23, 2012

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

30