Brown v. Gaetz
Filing
83
Enter MEMORANDUM Opinion and Order: For the reasons stated, Browns Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 1 is denied, as is his Motion to Stay 74 . Signed by the Honorable Virginia M. Kendall on 5/1/2015.Mailed notice(tsa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PERNELL BROWN,
Petitioner,
v.
DONALD GAETZ,
Respondent.
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No. 10 C 1463
Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Pernell Brown was convicted of first-degree murder on May 21, 2004, following a bench
trial in Cook County, Illinois. Brown is currently serving his sentence at the Lawrence
Correctional Center. On March 4, 2010, Brown filed a Petition for Writ of Habeas Corpus 1
pursuant to 28 U.S.C. § 2254. Brown has also moved to stay this case pending resolution of state
court proceedings. For the following reasons, the Court denies Brown’s habeas petition and his
Motion to Stay and Hold in Abeyance [74].
I. BACKGROUND
The Court adopts the underlying facts set forth by the Illinois Appellate Court in People
v. Brown, No. 1-04-2048 (Ill.App.Ct. 2006) (unpublished) (affirming bench verdict against
petitioner on direct appeal) (Dkt. No. 68-1) because Brown does not present clear and convincing
evidence challenging those facts. See 28 U.S.C. § 2254(e)(1); see also Bolton v. Akpore, 730
F.3d 685, 687 (7th Cir. 2013) (“Factual determinations by state courts are presumed to be correct
1
Warden Donald Gaetz was originally named as the respondent in Brown’s petition as the Warden of Menard
Correctional Center, where Brown was previously detained. Stephen Duncan is the warden and custodian at the
Lawrence Correctional Center and is therefore substituted as the proper respondent. See Fed. R. Civ. P. 25(d) (“An
action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to
hold office while the action is pending. The officer’s successor is automatically substituted as a party.”).
in federal habeas corpus proceedings, and the applicant has the burden of rebutting that
presumption by clear and convincing evidence.”)
A. FACTUAL BACKGROUND
On May 21, 2004, following a bench trial in the Circuit Court of Cook County, Illinois,
Brown was convicted of first-degree murder and sentenced to 50 years’ imprisonment for the
January 16, 2001 shooting death of Robert Byrd. People v. Brown, 2012 IL App (1st) 092597 at
¶ 4 (unpublished). Since the beginning of these state criminal proceedings, Brown has offered the
defenses of alibi and mistaken identity. Specifically, Brown has maintained that he was staying
in Indianapolis at the time of the shooting and that it was his now-deceased half-brother that
committed this crime.
At trial, the State presented six witnesses, including two eyewitnesses. The first
eyewitness, Walter Thomas testified that he was at the Super Sub Shop located at 611 N. Cicero
in Chicago around 1:17 a.m. on January 16, 2001. Brown, No. 1-04-2048 at *2. Thomas was
standing by the door to the sub shop when he observed a small red Buick pull in front of the shop
and the driver—later identified as Brown—get out of the car with a gun. Id. Brown then walked
into the sub shop and began firing the gun, at which point Thomas fled the scene. Id. On
February 9, 2001, Thomas met with Area 4 Chicago Police Officers and identified the vehicle
driven by Brown the evening of the shooting. Id. On May 26, 2001, Thomas returned to Area 4
headquarters and identified Brown in a lineup as the shooter. Id.
Venice Blackburn testified that on January 16, 2001 around 1:00 a.m. she walked with
Thomas and a group of other individuals to the sub shop. Id. at 4. When the group arrived at the
sub shop, Byrd—whom Blackburn knew from the neighborhood—was already there. Id. at 2, 4.
Blackburn said that “everyone was laughing and joking” when someone came into the sub shop
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shooting at Byrd. Id. at 4. Byrd was the only person shot and, as the shooter moved toward him
and he fell to the floor, Byrd reached at Blackburn’s leg and was shot again. Id. Blackburn
identified Brown as the shooter, saying that she had seen him in the neighborhood a few times
prior to the shooting. Id.
Cory Gilmore testified that he had known Brown his whole life, but had no recollection
of the evening in question due to impaired memory from his prior drug addiction. Id. at 5-6. The
State then offered a stipulation that if Assistant State’s Attorney Jennifer Gonzalez was called to
testify she would have testified that she interviewed Gilmore on February 7, 2001 regarding the
shooting death of Robert Byrd and that, during that interview, Gilmore stated that he left the sub
shop with Robert Curry before the time of the shooting, but did talk to Brown just before Brown
went into the sub shop. Id. at 6-7. Curry confirmed in his testimony that he left the sub shop with
Gilmore before the time of the shooting. Id.
Kevin Tenard testified that around 1:30 a.m. on January 16, 2001, he was at the home of
Iesha Rials, the mother of Brown’s child. Id. at 7. At that time, Brown drove up to the house in a
red car and asked Tenard to give the car keys to Rials. Id. Brown then left the premises in a
different car. Id. To close its case, the State called Detective Michael Delassandro, whose
testimony included highlights from his investigation of Thomas, Gilmore, Rials, and Tenard. Id.
at 8-9.
The Defense countered by calling Brown’s mother, Tawana Brown, and Ms. Brown’s
friend of fifteen years, Elaine Jefferson, who both testified that Brown was staying with Jefferson
in Indianapolis at the time of the shooting. Id. at 9-10.
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B. PROCEDURAL BACKGROUND
On May 21, 2004, a trial court in the Circuit Court of Cook County convicted Brown of
the first-degree murder of Robert Byrd. Brown, 2012 IL App (1st) 092597 at ¶ 4. The judgment
of the trial court was affirmed on appeal and Brown began serving his sentence at the Menard
Correctional Center in Menard, Illinois. See People v. Brown, 365 Ill. App. 3d 1096 (1st Dist.
2006) (unpublished) (petition for leave to appeal to the Ill. S.Ct. denied, 221 Ill.2d 646 (2006)).
Brown is currently serving his sentence at the Lawrence Correctional Center in Sumner, Illinois.
(See Dkt. No. 72).
On December 26, 2006, Brown filed his first pro se post-conviction petition in the Circuit
Court of Cook County, Illinois alleging ineffective assistance of trial and appellate counsel and
asserting actual innocence. See Brown, 2012 IL App (1st) 092597 at ¶ 5. Specifically, Brown
argued that his trial counsel was ineffective for failing “to present expert witnesses to testify
about the effects of narcotics on the perceptions and powers of observation of persons under the
influence of such substances.” People v. Brown, No. 1-07-0406 (Ill.App.Ct. 2008) (unpublished)
(Dkt. No. 16-12). He argued that his appellate counsel was ineffective for failing to raise this
ineffective trial counsel argument on direct appeal. Id. The trial court dismissed his petition; the
Illinois Appellate Court affirmed; and the Illinois Supreme Court denied Brown’s petition for
leave to appeal. People v. Brown, 385 Ill. App. 3d 1126 (1st Dist. 2008) (unpublished); Brown,
2012 IL App (1st) 09259 at ¶ 5; People v. Brown, 231 Ill.2d 638 (2009).
In June 2009, Brown filed a pro se petition for leave to file a successive post-conviction
petition, alleging newly discovered evidence demonstrating his actual innocence. See Brown,
2012 IL App (1st) 092597 at ¶ 6. The newly discovered evidence was his own affidavit and an
affidavit from a witness present at the scene of the crime. Id.
4
On March 4, 2010, while Brown’s petition for leave to file his successive post-conviction
petition was pending in Illinois State Court, Brown filed a petition for habeas corpus relief in this
Court under 28 U.S.C. § 2254. (Dkt. No. 1). On February 24, 2011, the Court appointed counsel
to represent Brown on his habeas petition. (Dkt No. 24). His case was then stayed, beginning on
April 19, 2011, due to pending state law claims. (Dkt. No. 31). The Illinois Court of Appeals
subsequently affirmed the trial court’s denial of leave for Brown to file a successive petition for
post-conviction relief. People v. Brown, No. 1-09-2597 (Ill.App.Ct. 2011) (unpublished). But,
about a year later, the Illinois Supreme Court entered a supervisory order directing the Illinois
Appellate Court to vacate that order and reconsider its ruling in light of People v. Edwards, 2012
IL 111711. People v. Brown, 967 N.E.2d 807 (2012).
While proceedings were pending in the Illinois Appellate Court, Brown supplemented his
habeas petition and was granted a second stay of proceedings in this Court. (Dkt. No. 43). On
December 21, 2012, the Illinois Appellate Court affirmed the trial court’s denial of Brown’s
petition for leave to file his successive post-conviction petition. Brown, 2012 IL App (1st)
092597 (petition for leave to appeal denied) (Dkt. No. 68-21); see also Brown, 967 N.E.2d 807
(2012).
The stay on Brown’s habeas petition was lifted and his habeas petition became fully
briefed on March 4, 2015. However, in October 2014, Brown requested a third stay of
proceedings in this Court pending resolution of his second motion for leave to file a successive
post-conviction petition. His new request for leave to file a successive post-conviction petition
again alleges actual innocence, this time based on affidavits by two more witnesses. Since
requesting a stay of these proceedings, Brown’s motion for leave to file a successive post-
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conviction petition was denied in the Illinois trial court and is currently pending before the
Illinois Appellate Court. (See Dkt. No. 78, Ex. A).
Petitioner filed this petition for writ of habeas corpus under 28 U.S.C. § 2254. In his
petition, Petitioner presents essentially six grounds for habeas relief: (1) admission of “hearsay
statements” where there “was no contradiction between the witness trial testimony and his prior
statement” and the witness “could not recall anything about the shooting incident or any
connection of the incident to the defendant Brown, or could not challenge any statement
attributed to him, where the defense could not test the veracity of the written document;” (2) the
trial court’s failure to find Brown guilty beyond a reasonable doubt; (3) ineffective assistance of
trial counsel for failing to present evidence regarding the effect of narcotics on the observational
abilities of two drug-addicted eyewitnesses; (4) ineffective assistance of appellate counsel for
failing to raise this ineffective trial counsel argument on direct appeal; (5) actual innocence and
the denial of right to fair trial where evidence showing Brown is actually innocent could have
been discovered prior to trial had his attorney been effective; and (6) ineffective assistance of
trial counsel for failing to conduct a meaningful pretrial investigation or adequately prepare for
trial. (Dkt. No. 1, p. 6-8).
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs petitions for
writs of habeas corpus filed after April 24, 1996. Benefiel v. Davis, 357 F.3d 655, 659 (7th Cir.
2004). Under the AEDPA, habeas relief cannot be granted unless the state court’s decision was
contrary to, or an unreasonable application of, federal law clearly established by the Supreme
Court. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 403 (2000). Under
the “contrary to” prong of this standard, a habeas petitioner must show that “the state court
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confront[ed] facts that are materially indistinguishable from a relevant Supreme Court precedent
and arrive[d] at a result opposite [to the Court's].” Williams, 529 U.S. at 405. Under the
“unreasonable application” prong, a habeas petitioner must show that although the state court
identified the correct legal rule, it unreasonably applied the controlling law to the facts of the
case. See id. at 407. “This reasonableness determination is quite deferential, such that a state
decision may stand as long as it is objectively reasonable, even if the reviewing court determines
it to be substantively incorrect.” Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir.2005); see also
Williams, 529 U.S. at 410 (an unreasonable application of federal law is different from an
incorrect application of federal law). A state court's decision must lie “well outside the
boundaries of permissible differences of opinion” to be found objectively unreasonable. Watson
v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009) (internal citation omitted); see also Simpson v.
Battaglia, 458 F.3d 585, 592 (7th Cir. 2006) (to be reasonable, a state court's decision must be
“at least minimally consistent with the facts and circumstances of the case.”).
As a threshold matter, Brown’s claims must clear two procedural hurdles: exhaustion of
remedies and procedural default. Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995).
Exhaustion is satisfied where the habeas petitioner has presented his claims to the highest state
court for a ruling on the merits or no state remedies remain available to the petitioner at the time
his habeas petition is filed. Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009). This
requirement provides the State an “‘opportunity to pass upon and correct’ alleged violations of
its prisoners’ federal rights.” Duncan v. Harvey, 513 U.S. 364, 365 (1995) (per curiam) (quoting
Picard v. Connor, 404 U.S. 270, 275 (1971)). “To provide the State with the necessary
‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state court
(including a state supreme court with powers of discretionary review), thereby alerting that court
7
to the federal nature of the claim.” Bolton, 730 F.3d at 694-95 (quoting Baldwin v. Reese, 541
U.S. 27, 29 (2004) (internal citations omitted)). However, failure to exhaust a claim does not
necessarily preclude the claim. Where “‘state remedies remain available to a habeas petitioner
who has not fairly presented his constitutional claim to the state courts, the exhaustion doctrine
precludes a federal court from granting him relief on that claim: although a federal court now has
the option of denying the claim on its merits, 28 U.S.C. § 2254(b)(2), it must otherwise dismiss
his habeas petition without prejudice so that the petitioner may return to state court in order to
litigate the claim.’” Id. at 696 (quoting Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir. 2004)).
Procedural default, meanwhile, occurs where the petitioner fails to fairly and properly
raise an issue on direct appeal or post-conviction review, or where the state court relies on a state
procedural bar as an independent basis for its disposition of the case. Caldwell v. Mississippi,
472 U.S. 320, 327 (1985). Of course, like exhaustion, procedural default does not necessarily
terminate the petitioner’s claim. See House v. Bell, 547 U.S. 518, 536 (2006). This Court may
still hear a petitioner’s procedurally defaulted claims if he can demonstrate both cause and
prejudice resulting from procedural default, or that a fundamental miscarriage of justice would
occur if this Court refused to hear his claims because he is actually innocent. Id.
In this case, all of Brown’s claims fail because they are meritless, procedurally defaulted,
or both. Those that are procedurally defaulted—including those currently before the Illinois State
Appellate Court—are not excused because Brown has failed to show cause for the default and he
has not presented any new evidence establishing that it is “more likely than not” that no
reasonable juror would have convicted him in light of the new evidence. See Holmes v. Hardy,
608 F.3d 963, 967-68 (7th Cir. 2010).
8
III. DISCUSSION
A. HEARSAY STATEMENTS & THE CONFRONTATION CLAUSE
Claims 1 and 2 of Brown’s habeas petition attack the trial court’s admission of the
testimony and written statement of Cory Gilmore. Following the shooting, Gilmore provided a
written statement to Assistant State’s Attorney Stephanie Gonzalez and Detective Michael
Delassandro. According to Gilmore’s written statement and the testimony of Gonzalez and
Delassandro, Gilmore was outside of the sub shop when Brown arrived in the red Buick just
before the shooting. Gilmore, a friend of Brown’s since childhood, spoke to him briefly outside
the sub shop and then left without witnessing the shooting. Gilmore identified the car and
described the scene, but he was not an identification witness. At trial, Gilmore testified that he
was unable to recall the shooting or the written statement he allegedly provided law enforcement,
but he did identify the signature on the written statement as his own. Gilmore explained that he
had suffered severe memory loss due to drug addiction.
To the extent Brown is challenging the trial court’s application of Illinois rules of
evidence, this Court notes that such challenges generally do not present a cognizable claim for
federal habeas relief. See, e.g., Dellinger v. Bowen, 301 F.3d 758, 764 (7th Cir. 2002);
Perruquet, 390 F.3d at 511 (“Because a state trial court’s evidentiary rulings and jury
instructions turn on state law, they are matters that are usually beyond the scope of federal
habeas review”). It is not “the province of a federal habeas court to reexamine state-court
determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
However, the federal habeas court must evaluate a question otherwise reserved for state-court
review where a specific constitutional right is implicated or where “mechanistic application of
state evidentiary rules may deprive criminal defendants of a fair trial.” Rice v. Bowen, 264 F.3d
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698, 702 (7th Cir. 2001); see also Perruquet, 390 F.3d at 511. Here, therefore, this Court will
consider whether Brown’s constitutional right of confrontation was violated where the party
bearing witness against him did not recall the events in question.
The Supreme Court issued its opinion in Crawford v. Washington on March 8, 2004:
about two months before Brown was convicted on May 21, 2004, but about four months after
Gilmore testified on December 10, 2003. 541 U.S. 36, 68 (2004). This Court need not inquire
into the applicability of Crawford under this unusual timing, however, because the weight of
authority both before and after Crawford suggests that there was no Confrontation Clause
violation on these facts. See U.S. v. Ghilarducci, 480 F.3d 542, 548 (7th Cir. 2007) (witness’s
partial memory loss did not deprive defendant effective cross-examination) (citing U.S. v.
DiCaro, 772 F.2d 1314, 1327–28 (7th Cir.1985) (finding that, on the facts, a witness's assertions
of memory loss did not deprive the defendant of an effective cross-examination); Creekmore v.
Dist. Ct. of the Eighth Judicial Dist. of Montana, 745 F.2d 1236, 1238 (9th Cir.1984); U.S. v.
Riley, 657 F.2d 1377, 1386 (8th Cir.1981); U.S. v. Payne, 492 F.2d 449, 454 (4th Cir.1974));
accord U.S. v. Owens, 484 U.S. 554, 557, 564 (1988).
First of all, Gilmore did not have complete memory loss and unequivocally recalled
growing-up with Brown and having relationship with him. See Ghilarducci, 480 F.3d at 548
(partial memory loss did not deprive defendant effective cross-examination). Moreover, the factfinder did not consider Gilmore’s testimony in a vacuum: Brown’s counsel tested Gilmore’s
credibility extensively, probing him on his drug addiction and criminal history, and generally
subjecting him to the crucible of cross examination. (Dkt. No. 68-29, p. 37-43). Gilmore
cooperated in answering all of the defense attorney’s questions and recounted with some detail
his relationship with Brown leading-up to the shooting, as well as the various drugs he was and
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was not addicted to at the time of the shooting. While there may be circumstances under which a
witness’ memory loss gives rise to confrontation concerns, this Court doubts that Brown’s
opportunity to cross-examine Gilmore fell below constitutional standards based on the facts in
this case. See, e.g., Ghilarducci, 480 F.3d at 548 (witness’s partial memory loss did not deprive
defendant effective cross-examination)
Furthermore, even if it were error to admit Gilmore’s testimony and written statement,
that error was harmless. See Ghilarducci, 480 F.3d at 549 (conducting harmless error analysis on
alleged violation of Confrontation Clause) (citing Murillo v. Frank, 402 F.3d 786, 791 (7th Cir.
2005)). Relevant factors in determining whether a violation of the Confrontation Clause
constitutes harmless error include whether the testimony was cumulative; the presence of
corroborating or contradicting testimony of the witness; the extent of cross-examination
permitted; and the overall strength of the prosecution’s case. Anderson v. Cowan, 227 F.3d 893,
897-98 (7th Cir. 2000) (citing Del. v. Van Arsdall, 475 U.S. 673, 684 (1986)). In this case,
Brown’s attorney vehemently objected to the admission of Gilmore’s written statement as
lacking foundation and as hearsay statements that the witness did not recall making. (Dkt. No.
68-29, p. 18-37). He then cross-examined Gilmore regarding his drug addiction, criminal history,
and lack of memory. (Dkt. 68-29, p. 37-43). Meanwhile, the State not only provided the
corroborating testimony of ASA Gonzalez and Detective Delassandro indicating that Gilmore
credibly made the subject statement, but also provided a significant amount of evidence other
than this statement to prove its case, including the testimony of other witnesses and a
surveillance video. The trial court weighed all of these considerations and ultimately admitted
the subject statements, noting: “we’re not talking about a witness who says that he actually saw
the shooting or identifies the Defendant as the shooter, he gave testimony about a vehicle and
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about the scene, the Defendant at the scene, driving a certain vehicle, but, he is not an
identification witness…in terms of the significance of the testimony that this witness gave for
purposes of reversible error, or any kind of error that I might commit by allowing this statement
under Counsel’s argument into evidence. The error would certainly in my opinion be harmless.”
(Dkt. 68-30, p. 53-54). The trial court clearly considered the importance—or lack of
importance—of Gilmore’s statements against the other evidence before him in determining
whether to admit the statements and based on these statements by the trial court, this Court
cannot conclude that the trial court’s admission and consideration of the contested statements
violated Brown’s constitutional rights.
Therefore, because Gilmore testified at Brown’s trial and was subject to crossexamination and because the admission of his out-of-court statement was at most harmless error,
the admission of his testimony and his out-of-court statements did not violate Brown’s Sixth
Amendment rights to confrontation and a fair trial.
B. SUFFICIENCY OF THE EVIDENCE
Brown also claims that there was insufficient evidence to support his conviction: in his
view, the state’s identification witnesses were “neither credible nor reliable.” (Dkt. No. 1, p. 57).
Under the Due Process Clause, a defendant cannot be convicted unless the State proves all the
elements of the crime 2 beyond a reasonable doubt. Jackson v. Va., 443 U.S. 307, 316 (1979).
When considering a sufficiency of the evidence claim on federal habeas review, the Court
considers “whether, after viewing the evidence in the light most favorable to the prosecution, any
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
2
In this case, under Illinois law, the crime of murder occurs when a person kills an individual without lawful
justification and either intends to kill or do great bodily harm to that individual, or knows that his actions will cause
death to the individual. 720 ILCS 5/9–1(a).
12
Jackson, 443 U.S. at 319. In reviewing such a claim, this Court has a limited role and may not
reweigh evidence or substitute its own judgment for that of the trier of fact. Ford v. Ahitow, 104
F.3d 926, 939 (7th Cir. 1997).
A sufficiency of the evidence claim premised on witness credibility is particularly
difficult to prove. See McFowler v. Jaimet, 349 F.3d 436, 456 (7th Cir. 2003). To find in favor of
the petitioner on such a claim, the Court must determine not only that the witnesses were
unreliable as a matter of law, “but that no court could reasonably think otherwise.” Id. The Court
considers the reliability of a witness’s identification of the defendant under the “totality of the
circumstances.” Id. at 449 (quoting Neil v. Biggers, 409 U.S. 188, 199 (1972)). Relevant factors
include “the opportunity of the witness to view the criminal at the time of the crime, the witness’
degree of attention, the accuracy of the witness’ prior description of the criminal, the level of
certainty demonstrated by the witness at the confrontation, and the length of the time between the
crime and the confrontation.” Id.
Brown argues that his conviction by the trial court was unreasonable because it was based
on the testimony of Thomas and Blackburn who both had a history of drug use and minor
inconsistencies in their testimony and prior statements. However, the conviction was clearly not
based solely on the testimony of those two witnesses and, as the Illinois Court of Appeals found
on direct review, so too does this Court find that the trial court fully considered Thomas’s and
Blackburn’s drug use, as well as inconsistencies in their testimony in making its final decision.
See Brown, No. 1-04-2048, *13-18 (Dkt. No. 68-1); (Dkt. 68-30, p. 501-14). The trial judge
considered the length of time each witness was able to view Brown, (id. at 15-16), and used the
video of the incident to corroborate their testimony, (id.) He also considered that they were both
cross-examined at length “about where they were in the sub shop, which is where the murder
13
occurred, and their positions relative to the shooter when the shots were fired, their opportunity
to see his face and the time that passed during the incident.” (Id. at 503). Brown was “basically
in front of Thomas when he starts shooting” and Blackburn is “at the counter…and looks over
when she hears the first shot.” (Id. at 504). The trial court noted that Blackburn “had seen the
shooter in the neighborhood over the thirteen to fourteen years she lived there” playing
basketball or hanging around. (Id. at 506-07). The trial court also considered that although
Gilmore testified that he did not remember the night of this incident, he had a motive to forget as
he sat on the stand facing the defendant, who was a childhood friend he knew all his life. (Id. at
509).
Not only does the trial court discuss and consider the strength and weaknesses of the
testimony of Blackburn and Thomas, but he also considered the corroborating testimony of
Kevin Tenard who received the car keys from Brown following the shooting. He considered the
biases of the witnesses, including that the two alibi witnesses were Brown’s mother and a very
close family friend and that the eyewitnesses were uninterested parties with no apparent bias or
reason to lie. (Id. at 510). Considering all the evidence presented at trial, this Court finds that the
trial court was reasonable in finding Brown guilty beyond a reasonable doubt.
C. INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL
Brown’s last four claims are all founded on ineffective assistance of counsel and are all
procedurally defaulted: two of the claims were resolved on an independent and adequate state
ground and two were never fairly before the Illinois State courts. Although federal courts “are
[generally] precluded from considering habeas claims that were procedurally defaulted,” a
petitioner may still obtain review by “establishing that a fundamental miscarriage of justice
would result from denial of his petition because he or she is actually innocent.” Coleman v.
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Lemke, 739 F.3d 342, 349 (7th Cir. 2014). As discussed below, Brown’s final claims are
procedurally defaulted and cannot be saved by the McQuiggin gateway of actual innocence.
As a preliminary matter, however, this Court notes that it refuses to stay these
proceedings while the Illinois Court of Appeals rules on Brown's third post-conviction
proceeding, which involves the “newly discovered” witnesses Austin and Norwood. (See Dkt.
No. 79, p. 3). Brown claims that these witnesses are related to his ineffective assistance of
counsel claims. Under Illinois law, a criminal defendant is only entitled to one post-conviction
petition as a matter of right. 725 ILCS 5/122-1(f). This Court has the discretion to stay a mixed
habeas petition and hold it in abeyance pending exhaustion of remedies available to the petitioner
in state court, but should “only be available in limited circumstances” since such action plainly
frustrates the AEDPA’s objectives of “encouraging finality by allowing a petitioner to delay the
resolution of the federal proceedings” and of “streamlining federal habeas proceedings by
decreasing a petitioner’s incentive to exhaust all his claims in state court prior to filing his
federal petition.” See Rhines v. Weber, 544 U.S. 269, 276-77 (2005). In this case, these
proceedings have already been stayed twice to allow Petitioner to resolve pending state law
claims and a third stay is not warranted.
Stay and abeyance is only available where (1) there was good cause for the petitioner’s
failure to exhaust his claim first in state court; (2) the unexhausted claim is potentially
meritorious; and (3) the petitioner did not engage in intentionally dilatory litigation tactics.” Id.
at 277-78. This Court does not need inquire into whether Brown has been engaging in
intentionally dilatory litigation tactics or whether his pending claim is potentially meritorious
because Brown has failed to demonstrate good cause for failing to exhaust his most recent claims
in state court before proceeding here. See Rhines, 544 U.S. at 277–78; Arrieta v. Battaglia, 461
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F.3d 861, 866 (7th Cir. 2006); see, e.g., U.S. ex rel. Young v. McCann, No. 07 C 1100, 2007 WL
2915634, *4 (N.D. Ill. 2007).
Brown maintains that he was delayed in finding these witnesses and bringing the claims
currently in state court because he is indigent and imprisoned; suffered at the hands of ineffective
trial counsel; and as a result of his ineffective trial counsel, did not have access to surveillance
footage of the shooting. (Dkt. No. 79, p. 5-6). The proceeding currently pending in state court,
however, does not involve eyewitnesses that would have been visible on the surveillance video
and—even if they were—that footage was available to Brown no later than at the time of his
trial: more than nine-and-a-half years before he ascertained the affidavits of Austin and
Norwood. Even if his trial counsel were ineffective, such gross delay in bringing the claims
currently in the state court is not justified by the record before this Court, especially since Brown
has already exhausted a post-conviction petition based on "new" witnesses identified from the
video surveillance. The mere fact that a prisoner acting pro se is incarcerated and lacks legal
knowledge is insufficient to demonstrate good cause. See, e.g., Johnson v. Huibregtse, 2008 WL
462135, *7 (W.D. Wis. 2008) (pro se status insufficient to demonstrate good cause for failing to
timely exhaust state court remedies); Smith v. Giurbino, 2008 WL 80983, *5 (S.D.Cal. 2008)
(granting stay on basis of prisoner's lack of legal expertise would be contrary to admonition in
Rhines that stay and abeyance be available only in “limited circumstances”). This Court is not
unsympathetic to the difficulties that pro se prisoners face in maneuvering the state and federal
court systems, however, those difficulties are insufficient to excuse Brown’s failure to exhaust
his claims currently pending in state court. Therefore, his Motion to Stay is denied.
1. Ineffective Assistance of Trial Counsel for Failure to Present Expert Testimony
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Brown first claims that his trial counsel provided ineffective assistance of counsel for
“failing to call an expert witness to testify about the effects of narcotics on the perceptions and
powers of observation of persons under the influence of such substances.” Brown, No. 1-070406, at 2 (Dkt. No. 16-12). This claim is procedurally defaulted because it was denied by the
Illinois Appellate Court on the independent and adequate state ground that Brown failed to
comply with the Illinois Post-Conviction Hearing Act. See Smith v. McKee, 598 F.3d 374, 382
(7th Cir. 2010) (“[A] federal court may not review a claim which was presented to the state
courts but which was rejected on an independent and adequate state ground”) (citing Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991)). Under the Act, a petition for post-conviction relief
“shall have attached thereto affidavits, records, or other evidence supporting its allegations or
shall state why the same are not attached.” 725 ILCS 5/122-2. This rule, well-recognized and
frequently applied in Illinois (see People v. Guest, 655 N.E.2d 873, 883 (1995)), constitutes an
adequate and independent ground for default. See Thompkins v. Pfister, 698 F.3d 976, 986–87
(7th Cir. 2012) (failure to submits affidavits with post-conviction petition “is an independent and
adequate state ground for rejecting” a claim) (cert. denied 133 S.Ct. 1830 (2013)); Kaczmarek v.
Rednour, 627 F.3d 586, 592 (7th Cir. 2010) (“A state law ground is independent when the court
actually relied on the procedural bar as an independent basis for its disposition of the case.”). The
Illinois Appellate Court plainly and justifiably relied on the affidavit rule to bar Brown's claim
that his counsel was ineffective for not calling an expert to testify about the effects of narcotics
on the perceptions of persons under the influence of such substances and such reliance is
generally accepted as a procedural bar to habeas relief in this Court. Brown, No. 1-07-0406, at 7
(Dkt. No. 16-12) (petition for leave to appeal denied, Brown, 231 Ill.2d 638).
2. Ineffective Assistance of Appellate Counsel
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Brown next asserts a claim for ineffective assistance of appellate counsel for failing to
raise the ineffective assistance of trial counsel argument just discussed. For the same reasons
discussed above, this claim is also procedurally defaulted because it was denied by the Illinois
Appellate Court on the independent and adequate state ground that Brown failed to comply with
the Illinois Post-Conviction Hearing Act. See Smith, 598 F.3d at 382 (“[A] federal court may not
review a claim which was presented to the state courts but which was rejected on an independent
and adequate state ground”) (citing Thompson, 501 U.S. at 729-30); see also Brown, No. 1-070406, at 7 (Dkt. No. 16-12) (petition for leave to appeal denied, Brown, 231 Ill.2d 638).
Moreover, even if Brown properly preserved his ineffective assistance of appellate
counsel claim, he may only prevail here if he establishes that his appellate counsel “failed to
raise an issue that was both obvious and clearly stronger than the issues he did raise,” which he
cannot do. Smith v. Gaetz, 565 F.3d 346, 352 (7th Cir. 2009) (citing Kelly v. U.S., 29 F.3d 1107,
1112 (7th Cir. 1994)). On appeal, Brown’s appellate counsel made three arguments: (1) that the
State failed to prove Brown guilty of murder beyond a reasonable doubt because the testimony of
the identification witnesses was not credible; (2) that Brown was denied his sixth amendment
right to confrontation; and (3) that the trial court improperly admitted the prior inconsistent
statements of a witness under the relevant state evidentiary rules. Raising trial counsel’s
ineffectiveness in this case would have required meeting the rigorous standards under Strickland
and, as review of trial counsel’s conduct reveals, such argument would neither have been
obvious, nor clearly stronger than the issues raised. Brown’s trial counsel put on two alibi
witnesses and developed the twin defenses of alibi and mistaken identity throughout trial. On the
record before it, this Court cannot speculate as to the prudence of trial counsel’s trial strategy
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and—more importantly—it cannot conclude that appellate counsel was ineffective for failing to
raise this ineffective assistance of trial counsel claim.
3. Ineffective Assistance of Trial Counsel for Failing to Conduct a Meaningful Pretrial
Investigation
Finally, Brown claims that his trial counsel was ineffective for failing to adequately
investigate and identify exculpating witnesses prior to trial. These claims are barred because they
were never raised in state court. Generally, a federal court can only consider a petition under §
2254 after the petitioner has exhausted all available state remedies. 28 U.S.C. § 2254(b)(1);
McAtee v. Cowan, 250 F.3d 506, 508 (7th Cir. 2001). To prevent procedural default for failing to
exhaust state remedies, the petitioner must have presented fairly his federal claims and those
claims must have been resolved on the merits during the state proceedings. O'Sullivan v.
Boerckel, 526 U.S. 838, 848 (1999); Mahaffey v. Schomig, 294 F.3d 907, 914-15 (7th Cir. 2002).
If a petitioner fails to satisfy either of these requirements, the petition is barred. Mahaffey, 294
F.3d at 914-15.
Though Brown has raised a number of issues in his direct appeal, post-conviction
proceeding, and successive post-conviction proceeding, he has never raised a “failure to
investigate” claim prior to entering this Court. A petitioner fairly presents his federal claim to the
state courts where he provides them “both the operative facts and the controlling legal principles
on which his claim is based.” Perruquet, 390 F.3d at 520. Though he need not, especially in the
case of a pro se petitioner, cite “book and verse on the federal constitution,” he must alert the
state courts to the federal underpinnings of his claim. See Perruquet, 390 F.3d at 520. Review of
Brown’s briefs on direct appeal and appeal of his post-conviction petitions, as well as the three
corresponding Illinois Appellate Court orders and three petitions for leave to appeal to the
Illinois Supreme Court include a myriad of allegations, including that Brown is actually innocent
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and that his trial counsel was ineffective for failing to put on expert testimony regarding the
impact of narcotics on eyewitnesses, but nothing in those documents—or any other documents in
the record—convince this Court that Brown ever presented the Illinois courts with a failure to
investigate claim. The Illinois court need not guess at every conceivable claim a petitioner is
making—especially where a petitioner such as Brown has carefully considered, prepared, and
presented a number of other claims. Rather, a state court need only look at the “appellant’s brief
and the cases cited there in order to ascertain whether the appellant is making a federal claim.”
Perruquet, 390 F.3d at 521 (citing Baldwin v. Reese, 124 S.Ct. 3147).
4. Actual Innocence
Generally, federal courts “are precluded from considering habeas claims that were
procedurally defaulted.” Coleman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014). Nevertheless,
Brown seeks review of his four defaulted claims for ineffective assistance of counsel by claiming
that a fundamental miscarriage of justice would result from denial of his petition because he is
actually innocent. See id. (petitioner can still obtain review by “establishing that a fundamental
miscarriage of justice would result from denial of his petition because he or she is actually
innocent”). “ ‘[T]enable actual-innocence gateway pleas are rare: A petitioner does not meet the
threshold requirements unless he persuades the district court that, in light of the new evidence,
no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.’ ”
Lemke, 739 F.3d at 349 (quoting McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013) (internal
quotation marks omitted)). This standard is extremely demanding and “permits review only in
the extraordinary case.” Id. at 349 (internal quotation marks omitted).
In support of his actual innocence claim, Brown relies primarily on four “newly
discovered” witnesses. Terrell Austin, Randy Norwood, and Martell Halbert have all submitted
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affidavits essentially claiming that Brown’s now-deceased half-brother, David Payton, was the
shooter in this case; and Brown avers that Mario Nixon would testify similarly if subpoenaed.
Each affidavit explains in illustrative detail the affiant’s version of the events that occurred the
evening of the shooting. Austin asserts that he was next door to the sub shop acting as a “Look
Out” for individuals selling heroine the evening of the shooting when he saw David Payton
“jump” out of a car with a gun in his hand and go into the sub shop. (Dkt. No. 74, p. 58). He then
heard shots fired inside the shop. (Id.) Norwood claims he was in an apartment building around
12:30 am the night of the shooting when he overheard David Payton ask another man in the
apartment for a gun. (Dkt. No. 74, p. 62). The man asked Payton what he needed the gun for and
Payton responded that he wanted to scare Byrd. (Id.) Martell Halbert avers that he and Mario
Nixon were present in the sub shop the night of the shooting and saw David Payton shoot and
kill the victim. (Dkt. No. 68-23). Brown claims that Mario Nixon would testify similarly if
subpoenaed to testify—though no affidavit from Nixon was made part of this record. (Dkt. No.
68-22, ¶¶ 10-11).
The first concern with these affidavits is the unexplained length of time it took for the
affiants to come forward with their statements. In evaluating the reliability of the evidence of
actual innocence, this Court considers “the timing of the submission and the likely credibility of
[a petitioner’s] affiants.” McQuiggin, 133 S.Ct. at 1935 (internal quotation marks omitted).
Halbert’s affidavit was signed in 2007 and the other two were signed in 2014: more than twoand-a-half years and nine-and-a-half years after Brown’s guilty verdict. Even if, as Brown
claims, his delay was due to not having proper access to the surveillance video and ineffective
trial counsel, this Court has no reason to discredit the state appellate court’s finding that:
…the surveillance footage in question was available to [Brown] before trial, and
was played at trial on at least two occasions. In addition, [Brown] acknowledged
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in his affidavit that the […] witnesses were visible on the surveillance footage. It
thus follows that [Brown] should have discovered Halbert [and the other
witnesses] at or before trial through the exercise of minimal due diligence, and
that this evidence is therefore not newly discovered.
Brown, 2012 IL App (1st) 092597, at ¶ 17 (internal citation omitted). Though this Court finds
this large and unexplained delay persuasive in finding that Brown has ultimately not made the
requisite actual innocence showing, the Court need not rely exclusively upon such dilatoriness.
See McQuiggin, 133 S.Ct. at 1935.
In addition to the timing problem, Brown’s new evidence does not sufficiently rebut the
evidence presented by the state at trial. The only “new” eyewitness of the shooting is Martell
Halbert. This Court assigns Brown’s self-serving affidavit that Nixon would corroborate
Halbert’s account of the evening very little weight. Austin was only present—like prosecution
witnesses Gilmore and Curry—outside of the sub shop; and Norwood—like prosecution witness
Tenard—was not present at or immediately near the scene of the crime. Against the state’s six
witnesses and corroborating surveillance video, the affidavits of these four witnesses simply do
not warrant the application of the miscarriage of justice exception or an evidentiary hearing. See,
e.g., Hayes v. Battaglia, 403 F.3d 935 (7th Cir.2005) (affidavits of six alibi witnesses not called
at trial insufficient to show actual innocence because government had put on six witnesses
claiming petitioner committed crime); McKee, 598 F.3d at 387-88 (statements from two
witnesses not called at trial insufficient to counter state’s two eyewitnesses and defendant’s own
self-inculpating statements); §§ 2254(e)(2)(A)(ii), (B); McQuiggin, 133 S. Ct. at 1934 (under
AEDPA, a petitioner seeking an evidentiary hearing must show diligence and, in addition,
establish her actual innocence by “clear and convincing evidence”). After reviewing the
evidence, old and new, of Brown’s guilt, this Court cannot conclude that “no juror, acting
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reasonably, would have voted to find him guilty beyond a reasonable doubt.” Lemke, 739 F.3d at
354 (internal quotation marks omitted).
5. Cause and Prejudice
Nor, for the sake of completeness, does the Court find that Brown has shown cause for
the default. See Holmes, 608 F.3d 963) (two ways to avoid procedural default are to show cause
for the default or to show actual innocence). It is true that ineffective assistance of counsel can
sometimes be sufficient to show cause. McKee, 598 F.3d 374, 384 (7th Cir. 2010). However,
even if this Court suspends reality and assumes for a moment that Brown’s appellate counsel was
ineffective for failing to raise this the failure to investigate claim, not even then would Brown
have an explanation for not raising his failure to investigate claim in his first petition for postconviction relief, the PLA from the dismissal of his petition for post-conviction relief, or second
petition for post-conviction relief. See id. There is simply no reason in the record to adequately
explain why Brown defaulted on his ineffective assistance claims. This is not an extraordinary
case warranting excusal from procedural default and Brown’s ineffective assistance claims are
denied.
IV. CERTIFICATE OF APPEALABILITY
A petitioner may not appeal the final order in a habeas corpus proceeding where the
detention complained of arises out of process issued by a state court unless the court issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(a). A certificate of appealability may issue
only when “the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). To make a substantial showing, a petitioner must show that “reasonable
jurists could debate whether ... the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.” Miller–El
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v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks omitted). For the reasons
discussed above, Brown has not made that substantial showing of the denial of a constitutional
right: reasonable jurists would not debate whether the challenges in his habeas petition should
been resolved differently or determine that Brown deserves encouragement to proceed further
with his habeas claims. See Rutledge v. U.S., 230 F.3d 1041, 1047 (7th Cir. 2000). Not only were
the procedural defaults proven by the record, and no exceptions applicable, but the claims that
were decided on the merits were also well within the deference owed to state courts under
AEDPA. The Court therefore declines to issue a certificate of appealability.
CONCLUSION AND ORDER
For the reasons stated, Brown’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 is denied, as is his Motion to Stay.
Date:
May 1, 2015
Virginia M. Kendall
United States District Judge
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