Banks v. Atchison et al
Filing
30
Enter MEMORANDUM, OPINION AND ORDER: For the reasons stated herein, Bankss Petition for a Writ of Habeas Corpus is dismissed, and he is denied a Certificate of Appealability. Civil case terminated. Signed by the Honorable Virginia M. Kendall on 12/30/2013.Mailed notice(tsa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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United States of America ex rel.
NATHANIEL BANKS,
Petitioner,
v.
RICK HARRINGTON, Warden
Menard Correctional Center,
No. 12 C 7795
Hon. Virginia M. Kendall
Respondent.
MEMORANDUM OPINION AND ORDER
Petitioner Nathaniel Banks brings this Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254. He is incarcerated at the Menard Correctional Center in Menard, Illinois,
where he is in the custody of Rick Harrington, the warden of that facility. A judge convicted him
of attempted first-degree murder, 720 ILCS § 5/9-1(A)(1), and unlawful use of a weapon by a
felon, 720 ILCS §5/24-1.1(A) on July 31, 2006. He is currently serving a sixty-five year
sentence. For the following reasons, Banks’s petition is dismissed.
FACTS
On March 12, 2005, Banks was at a bar called Hill’s Lounge in Chicago when he
encountered Charles Wilson. (Dkt. No. 19-3 at p. 6.) Banks attempted to shake Wilson’s hand,
but Wilson declined because he heard rumors that Banks planned to rob him. (Id.) After leaving
the bar, Wilson met Cassandra Moore and Patricia Jones outside. (Id.) Wilson and Jones waited
in Wilson’s car while Moore went into a nearby sandwich shop. (Id.) While waiting, Thomas
Moore pulled his car (with Banks in the passenger seat) alongside Wilson’s on 63rd Street. (Id.)
Banks then fired a shot at Wilson’s car, breaking the driver’s side front seat window. (Dkt. No.
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19-1 at p. 306.) Banks then exited Moore’s car, stood near Wilson’s car, and shot Wilson twelve
times. (Id.) Both Jones and Wilson suffered permanent injuries in the shooting. (Dkt. No. 19-3
at p. 6.)
After the shooting, Wilson drove himself to a police station two blocks away while
Cassandra Moore ran back into the sandwich shop to call police. (Id. at 6–7.) At the police
station, Wilson told the police that Banks and Thomas Moore shot him, and that they were
driving a white vehicle. (Id. at 7–8.) Chicago Police Department Officers John Granat and
Whitney Russo arrived at the crime scene and began searching for a car matching Wilson’s
description. (Id. at 8.) Officer Granat eventually noticed a man walking towards a white car
parked on the 6300 block of South Aberdeen Street. (Id.) Officer Granat testified that he
recognized the man as Banks. (Id.) Officer Granat approached the car and ordered Banks and
Thomas Moore, who was in the driver’s seat, out of the car. (Id.) Officer Granat questioned
Banks, and learned he lived at 6337 South Aberdeen Street. (Id.)
Police took Cassandra Moore to South Aberdeen Street, where she identified Thomas
Moore’s car. (Id. at 7.) She was then taken back to the police station, where she identified
Banks in a line-up. Officer Fernandez went to Banks’s address and received consent to search,
where he found a gun near the basement stairs. (Id. at 8.) The parties stipulated that the
cartridges found at the scene of the shooting matched the gun found in Banks’s home. (Id.)
On July 31, 2006, following a bench trial, Banks was convicted of two counts of
attempted first degree murder and one count of unlawful use of a weapon by a felon. (Dkt. No.
19-8 at p. 43.) Shortly thereafter, Banks filed a motion for a new trial on grounds that he
received ineffective assistance of counsel, along with a complaint to the Attorney Registration
and Disciplinary Commission (“ARDC”) against his trial counsel. (Dkt. Nos. 19-1 at p. 89; 19-
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14 at p. 2.) Banks’s trial counsel testified at a hearing on this motion, and the court subsequently
denied Banks’s motion and found that his trial counsel was not ineffective. (Dkt. No. 19-1 at p.
399.)
On April 23, 2007, Banks was sentenced to consecutive terms of forty and twenty-five
years on the attempted murder convictions, and a concurrent seven-year term on the unlawful use
of a weapon conviction. (Id. at pp. 402, 407.) Banks directly appealed his conviction on May 1,
2007, and on May 11, 2007, counsel from the Office of the State Appellate Defender (“OSAD”)
was appointed to represent him. (Id. at pp. 10, 99.) On May 5, 2008, appellate counsel filed a
motion with the Illinois Appellate Court requesting leave to withdraw from representing Banks
pursuant Anders v. California, 386 U.S. 738 (1967). (Dkt. No. 19-3 at p. 1.) Counsel explained
in her brief that she considered raising several issues on appeal, but concluded that none of the
issues were of arguable merit. (Id. at p. 11.) The Illinois Appellate Court granted the OSAD’s
motion to withdraw and affirmed Banks’s conviction on December 31, 2008. (Dkt. No. 19-1 at
p. 308–10.) Banks then filed a petition for leave to appeal (“PLA”) with the Illinois Supreme
Court on March 27, 2009. (Dkt. No. 19-4 at p. 1.) The Illinois Supreme Court denied Banks’s
PLA on May 28, 2009. (Dkt. No. 19-5 at p. 1.)
On December 8, 2009, Banks filed a pro se petition for postconviction relief. (Dkt. No.
19-6 at p. 28.) The trial court rejected his claims on March 8, 2010 as “frivolous and patently
without merit.” (Id. at p. 23.) He appealed that decision on March 29, 2010. (Id. at 38.)
Counsel was appointed to represent Banks for this appeal on April 2, 2010. (Id. at p. 14.)
Banks’s post-conviction appellate counsel subsequently filed a brief arguing that Banks’s trial
counsel was ineffective for failing to subpoena his wireless telephone records, among other
reasons. (Dkt. No. 19-8 at pp. 1, 6.) On January 31, 2012, the Illinois Appellate Court affirmed
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the dismissal of Banks’s petition. (Dkt. No. 19-14 at p. 1–2.) Banks then filed a PLA with the
Illinois Supreme Court, arguing the appellate court erred in dismissing his ineffective assistance
of counsel claim. (Dkt. No. 19-15 at pp. 1–15.) The Illinois Supreme Court denied his PLA on
May 30, 2012. (Dkt. No. 19-6 at p. 1.)
Banks filed the present petition for a writ of habeas corpus on September 28, 2012. He
alleges is trial counsel was ineffective for failing to:
Ground One.
Interview four people listed in the State’s discovery
who may have witnessed the shooting to see if they
had any credible information;
Ground Two.
Fully investigate the case or interview any of the
State’s witnesses prior to trial, leaving him unable
to impeach those witnesses;
Ground Three.
Subject the prosecution’s case to meaningful
adversarial testing by not fully cross-examining the
State’s witnesses;
Ground Four.
“Raise reasonable doubt due to insufficient
evidence” because the physical evidence did not
match the State’s witnesses accounts of the
shooting;
Ground Five.
Obtain a copy of the surveillance tape (“exculpatory
evidence”) from the Citgo gas station located near
the scene of the shooting;
Ground Six.
Issue a subpoena for Banks’s wireless phone
records, which would have allowed his counsel to
corroborate Banks’s testimony at trial;
Ground Seven.
File a motion to suppress Cassandra Moore’s
identification of Banks after trial counsel was
informed there was a “possible show-up while
identifying the alleged car involved in the
shooting;” and
Ground Eight.
Move for a directed finding at the close of the
State’s case in chief because such failure is
evidence that “counsel went into trial without a
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strategy or adequate defense and only relied upon
defendant’s testimony, which is not enough to
[overcome] the [S]tate’s case.”
He also alleges that his appellate counsel was ineffective: 1
Ground Nine.
Because the representation was “poor” and he is
unable to properly prepare any brief or do necessary
research because due to lack of law library access
(Dkt. No. 1 at p. 6); and
Ground Nine.
For failing “to raise any issues on appeal,” and also
for “filing an unwarranted Anders brief” because
there were “numerous issues of merit that were
clearly debatable.” (Dkt. No. 1 at p. 8.)
DISCUSSION
I.
Procedural Default
A federal district court may issue a writ of habeas corpus when a prisoner is in state
custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Before a federal court will consider his claims, a federal habeas petitioner must
exhaust state remedies. See 28 U.S.C. § 2254(b)(1)(A). In order to exhaust state remedies,
“state prisoners must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate review process.”
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). During this one complete round, a petitioner
must present fully and fairly the federal law or constitutional protection violated and the
operative facts underlying the violation, thus affording the state courts a “meaningful opportunity
to pass upon the substance of the claim later presented in federal court.”
Chambers v.
McCaughtry, 264 F.3d 732, 737–38 (7th Cir. 2001). A petitioner in Illinois completes one round
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Banks labels two claims “Ground Nine.” The Court cites to the location of the claims in Banks’s petition to
distinguish them.
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by presenting his claims on either direct appeal or post-conviction review at each stage of the
appellate process, including to the Illinois Supreme Court. O’Sullivan, 526 U.S. at 847–48;
White v. Godinez, 192 F.3d 607, 608 (7th Cir. 1999) (applying O’Sullivan rule to claims
presented in petitions for state post-conviction relief).
Second, a petitioner must not have procedurally defaulted any of his claims. If a prisoner
fails to present his claims in a petition for discretionary review to a state court of last resort,
those claims are procedurally defaulted. Rodriguez v. Scillia, 193 F.3d 913, 917 (7th Cir. 1999).
As part of this requirement, a petitioner must have fairly presented both the operative facts and
legal principles that control each claim to the state judiciary. See Wilson v. Briley, 243 F.3d 325,
327 (7th Cir. 2001); Rittenhouse v. Battles, 263 F.3d 689, 695 (7th Cir. 2001). A petitioner’s
failure to fairly present each habeas claim to the state’s appellate and supreme court in a timely
fashion leads to procedural default of the claim. O’Sullivan, 526 U.S. at 848. Under Illinois law,
claims raised on direct appeal but not presented in a petition for leave to appeal to the Supreme
Court are generally deemed waived. Warren v. Campagna, 1997 WL 471241, *1 (7th Cir.
1997).
A federal court may grant a petition for habeas relief on a defaulted claim only if the
petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claim will result in a
fundamental miscarriage of justice. Anderson v. Cowan, 227 F.3d 893, 899–900 (7th Cir. 2000)
(quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991). Cause is defined as “an objective
factor, external to defense, that impeded the defendant’s efforts to raise the claim in an earlier
proceeding.” McKee, 598 F.3d at 382. Prejudice requires “an error which so infected the entire
trial that the resulting conviction violates due process.” Id. The fundamental miscarriage of
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justice exception required a claim that the defendant be actually innocent of the crime for which
he or she is imprisoned. Sawyer v. Whitley, 505 U.S. 333, 339 (1992).
Banks fairly presented his ineffective assistance claims to the Illinois appellate court on
direct review by presenting an appeal listing specific acts of his trial counsel that allegedly
constituted ineffective assistance. (See Dkt. No. 19-2 at pp. 2–5.) At issue, then, is whether
Banks’s PLA to the Illinois Supreme Court satisfies the fair presentment requirement. The State
argues that Banks’s PLA did not fairly present his ineffective assistance of counsel claim to the
Illinois Supreme Court because he failed to cite specific acts of his trial counsel or any legal
principles. (See Dkt. No. 18 at p. 16.) In his PLA, Banks does not specifically mention any
particular acts that constituted ineffective assistance, unlike his highly specific direct appeal.
(See Dkt. No. 19-2 at p. 2.) Nor does Banks cite any relevant federal or state cases regarding
ineffective assistance of counsel. (Id. at p. 4.) Instead, he cites a lengthy transcript of his trial
counsel’s testimony from a post-trial hearing, asserting, “[i]t will show that counsel was in fact
ineffective and violated the 6th and 14th Amendments to the U.S. Constitution.” (Id.) He
concludes his claim by stating, “appellant was in fact denied his constitutional rights to have a
fair trial and the effectiveness of counsel.” (Id. at 22.) Thus, all but one of Banks’s claims are
procedurally defaulted because he did not present the factual underpinnings through one
complete round of state review. See Pole v. Randolph, 570 F.3d 922, 935 (7th Cir. 2009) (“[I]f a
petitioner fails to assert in the state courts a particular factual basis for the claim of ineffective
assistance, that particular factual basis may be considered defaulted.”).
The only claim not defaulted because it was not subjected to a complete round of state
court review is Banks’s argument that his trial counsel was ineffective for failing to subpoena his
cell phone records, which was argued in post-conviction proceedings to the trial court, the
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appellate court, and to the Illinois Supreme Court in a PLA. (Dkt. Nos. 19-8 at pp. 52–54; 19-14
at pp. 6–8; 19-15 at pp. 11–15.) However, a federal court will not reach the merits of a habeas
claim where: (1) the claim was presented to the state courts and their ruling against the petitioner
rested on an adequate and independent state procedural ground; or (2) the claim was not
presented to the state courts but it is clear that those courts would not hold the claim procedurally
barred. See Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). Thus, “[a] federal court
entertaining a petition for a writ of habeas corpus will not review a question of federal law if it
determines that the state decision rests on a state procedural ground that is independent of the
federal question and adequate to support the judgment.” Page v. Frank, 343 F.3d 901, 905 (7th
Cir. 2003). A procedural default does not preclude a federal court from considering a habeas
claim if the petitioner demonstrates either cause for the default and prejudice resulting from it or
that a miscarriage of justice will result if the claim is not considered on the merits. Id. However,
procedural default only precludes habeas review where the last state court rendering judgment on
the claim ‘clearly and expressly’ stated that it rested its judgment on procedural default. Harris
v. Reed, 489 U.S. 255, 262–63 (1989).
Here, the appellate court reviewing Banks’s post-conviction petition expressly held that,
under Illinois law, Banks waived this claim because he could have but did not argue it on direct
appeal. (Dkt. No. 19-14 at pp. 7–8 (citing People v. Harris, 224 Ill. 2d 115, 124–25 (2007) and
People v. Scott, 194 Ill. 2d 268, 274 (2000).) Instead, the appellate court found that Banks raised
the issue in his motion for a new trial and therefore could have directly appealed it. (Id.) The
Court therefore finds that this (and all) of Banks’s claims are procedurally defaulted.
Because his claims are procedurally defaulted, for this Court to grant Banks’s habeas
petition, he must show “cause for the default and actual prejudice as a result of the alleged
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violation of federal law, or demonstrate that failure to consider the claim will result in a
fundamental miscarriage of justice.” Anderson, 227 F.3d at 899–900. Banks argues that he has
shown cause because his appellate counsel failed to raise any of the issues on direct appeal and
instead filed an Anders brief. Ineffective assistance of counsel can sometimes be sufficient to
show cause. Murray v. Carrier, 477 U.S. 478, 488–89 (1986). However, Banks’s argument
does not explain why he failed to raise his claims in his PLA on direct review, before the
appellate court and Illinois Supreme Court on post-conviction review, or on direct appeal for the
phone records claim. Because Banks does not show cause, this Court will not review his
procedurally defaulted claims.
Nor can Banks meet the fundamental miscarriage of justice exception. In order to meet
this exception, Banks has the burden of demonstrating that he is actually innocent. Buie v.
McAdory, 341 F.3d 632, 627 (7th Cir. 2003). To support a claim of actual innocence, Banks
must come forward with “new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.”
Schlup v. Delo, 513 U.S. 298, 324 (1995). Banks must establish that “it was more likely than not
that no reasonable juror would have convicted him in light of the new evidence.” Id. at 327. The
new evidence that Banks presents is his wireless telephone records, the surveillance tape from a
gas station near the crime scene, and testimony of two alibi witnesses.
This evidence does not meet the high burden to satisfy the “extremely rare” exception.
The video camera at the gas station pointed towards the gas pumps and not the scene of the
shooting, and could not have bolstered Banks’s defense that he was elsewhere when the shooting
occurred. Further, Banks’s counsel testified that the police report in the case noted that the video
did not show the scene of the shooting. Nor would his wireless phone records prove his
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innocence because, as his counsel testified, they had little or no probative value of demonstrating
where Banks actually was that night. Finally, Banks does not point to what, exactly, these alibi
witnesses would have testified. The State’s case consisted of testimony from several police
officers and three eye witnesses to the shooting, two of whom positively identified Banks as the
shooter. The mere presence of possible alibi witnesses cannot demonstrate that their testimony
would prove Banks’s innocence. Even if Banks’s numerous ineffective assistance of counsel
claims were not procedurally defaulted, they would nevertheless fail on the merits.
II.
Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, Banks must establish that he
was prejudiced as a result of his counsel’s alleged deficiencies under the two-prong test set forth
in Strickland v. Washington, 466 U.S. 668 (1984). See McDowell v.. Kingston, 497 F.3d 757,
761 (7th Cir. 2007) (citing Strickland, 466 U.S. at 694). Under Strickland, the moving party
must prove: (1) that his attorney’s performance fell below an objective standard of
reasonableness; and (2) that the attorney’s deficient performance prejudiced the defendant such
that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” McDowell, 497 F.3d at 761. The burden of proof on
a defendant asserting an ineffective assistance of counsel claim is a heavy one. See Harris v.
Reed, 894 F.2d 871, 874 (7th Cir. 1990).
“The benchmark for judging any claim to
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686.
If either the performance prong or the prejudice prong of the Strickland test is not met,
there is no need to consider the other prong and the petition fails as a matter of law. See Ebbole
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v. United States, 8 F.3d 530, 533 (7th Cir. 1993) (“A defendant’s failure to satisfy either prong is
fatal to his claim.”); United States v. Slaughter, 900 F.2d 1119, 1124 (7th Cir. 1990). And “[i]f it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at 697.
A.
Wireless Telephone Records
Banks alleges that his wireless telephone records would have showed that he could not
have been with his co-defendant at the time of the shooting.
However, his trial counsel
explained that he did not subpoena the records because “the wireless phone records would not
tell me where he was physically located because he could be anywhere making phone calls.”
(Dkt. No. 19-6 at p. 37.) Counsel considered the possibility of offering Banks’s wireless
telephone records, but decided that the evidence would not contribute to his defense, as the
records had no probative value regarding his location the night of the shooting. Counsel’s
actions are presumed, under the circumstances, to be “sound trial strategy.” Strickland, 466 U.S.
at 689.
B.
Cross-Examination of State’s Witnesses
Next, Banks alleges counsel was ineffective for failing to subject the State’s case to
meaningful adversarial testing by fully cross-examining the State’s witnesses. On this claim, we
consult the trial record. The State offered testimony from three witnesses: Charles Wilson,
Patricia Jones, and Cassandra Moore. According to the State, Wilson and Jones were the
intended targets of the shooting, and testified as eyewitnesses. Moore was also present with
Jones on the night of the shooting, and provided an identification of Banks. Thus, the State’s
case rested heavily on the perceptions and identifications of Banks as one of the shooters on the
night in question.
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Banks’s trial counsel conducted cross-examination of all three witnesses.
For each
witness, counsel asked leading questions meant to establish certain facts that would undermine
each witness’s testimony. On cross-examination of Wilson, counsel elicited that Wilson was a
convicted felon, and called into question his competence on the night in question by establishing
that he had consumed alcohol. Counsel also called into question Wilson’s identification of
Banks’s weapon.
On cross-examination of Jones, counsel established that Banks was not
arguing with anyone at Hill’s Lounge and did not appear to be angry, nor did he appear to be
armed. Counsel further elicited from Jones that while the shooting was in progress, Wilson
never mentioned Banks’s name or nickname.
On cross-examination of Moore, counsel
attempted, albeit unsuccessfully, to attack Moore’s identification of the victim, which was
Moore’s purpose as a witness. Banks’s trial counsel appeared to grasp each witness’s relevance
to the State’s theory of the case, and tailored his cross-examinations in an attempt to undermine
their testimony on critical points. Banks’s attorney “represented him with vigor and conducted a
skillful cross-examination.” Harrington, 131 S.Ct. at 791. Thus, Banks has not shown his trial
counsel was ineffective due to inadequate cross-examination of the State’s witnesses.
C.
Counsel’s Investigation
Banks alleges that counsel failed to interview potential witnesses listed in the State’s
discovery. According to Banks, these witnesses could have provided exculpatory evidence that
would have caused “the results of the verdict [to be] different.” (Dkt. No. 1 at p. 5.) Counsel
testified that although he was aware of these witnesses, he believed the police did not obtain any
exculpatory evidence (or anything of evidentiary value at all) from these persons. Therefore,
interviewing these persons would not have provided any benefit to Banks’s defense.
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Further, Banks does not identify who these potential witnesses are, or to what they would
have testified. The mere fact that counsel did not call these witnesses does not render his
assistance ineffective. See United States v. Balzano, 916 F.2d 1273, 1294 (7th Cir. 1990) (“[t]he
Constitution does not oblige counsel to present each and every witness that is suggested to
him.”).
Further, Banks cannot establish these witnesses would have aided his defense—they
may very well have positively identified either Banks or his vehicle, thereby strengthening the
State’s case against him. Thus, Banks cannot show that the results of his trial would be different
were these witnesses called. See Harris v. Reed, 894 F.3d 871, 879 (7th Cir. 1990) (holding
counsel ineffective when he knew of, and failed to call, two specific witnesses who told police
they saw a different suspect running from crime scene, thus leaving State’s witness as the only
account of the crime).
D.
Counsel’s Alleged Failure to Interview State’s Witnesses
Banks’s next claim alleges that counsel was ineffective for failing to interview any of the
state’s witnesses in order to impeach them at trial. In order to prevail under Strickland, Banks
must demonstrate that the outcome of the trial would have been different had counsel
interviewed these witnesses, or else that he was prejudiced by his counsel’s conduct. Banks
provides no information regarding what these interviews would have allowed counsel to use on
cross-examination. As described above, counsel still conducted meaningful cross-examination
on the State’s eyewitnesses and attacked their credibility and identifications. Because Banks
does not show what these interviews would have revealed or that he was prejudiced because they
were not conducted, this claim also fails under the Strickland test.
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E.
Cassandra Moore’s Identification of Banks
Banks next claims that counsel was ineffective for failing to file a motion to suppress
Cassandra Moore’s identification of him, after counsel was informed of a possible show-up
while Moore identified the car involved in the shooting. Counsel testified that he chose not to
file a motion to suppress because he believed Moore’s in-court testimony would be admitted, as
she could identify Banks based on photographs and recognized him from Hill’s Lounge earlier in
the evening. Not filing a motion to suppress identification can be a defensible strategic choice
when a witness may still be able to identify a defendant at trial. Banks’s trial counsel “could
have logically concluded that it would be meaningless to keep out testimony . . . if the other
evidence was admissible anyway, and so rather than fighting to keep the testimony out, he would
discredit it with aggressive cross-examination.”
Pittman v. Warden, Pontiac Correctional
Center, 960 F.2d 688, 691 (7th Cir. 1992). Indeed, Banks’s trial counsel specifically attacked
Moore’s identification of Banks on cross-examination.
In any event, a successful motion likely would not have affected the trial’s outcome.
Charles Wilson would still have identified Banks as one of the shooters, and the remaining
evidence would still have been sufficient to permit a jury to convict him. Therefore, Banks
cannot show that this failure to file a motion to suppress constitutes ineffective assistance of
counsel.
F.
Reasonable Doubt
Banks alleges that counsel was ineffective for failing to cast reasonable doubt on the
State’s case, in that the physical evidence did not match eyewitness accounts. Banks fails to
elaborate on exactly what physical evidence did not match the State’s witnesses’ testimony. In
the absence of any specific piece of evidence, Banks cannot show that his trial counsel did not
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attempt to cast reasonable doubt on the State’s case. As discussed above, counsel’s crossexaminations were designed specifically to cast doubt on the competence of the State’s witnesses
and their ability to identify Banks. Under Strickland, this Court refrains from second-guessing
what otherwise appears to be sound trial strategy.
G.
The Gas Station Surveillance Tape
Banks next alleges that trial counsel was ineffective for failing to subpoena a surveillance
tape from the Citgo gas station. Banks alleges that this tape would have provided evidence that
he did not commit the shooting. However, Banks’s trial counsel did, in fact, attempt to secure
surveillance footage from the night in question. Counsel testified in his hearing that he visited
the Citgo station and spoke to a clerk; the clerk referred counsel to the station manager. Counsel
contacted the manager in an attempt to view the surveillance footage. The manager informed
counsel that the station’s policy was to tape over the footage every seven to ten days, however,
so the footage from the night in question no longer existed. Further, counsel testified that even if
he could have obtained the surveillance footage, the video cameras at the station were aimed at
the gas pumps, out of the line of sight from the crime scene. Although counsel conceded that
Chicago police were able to obtain the tape, he testified that the police report showed that the
police officer did not inventory a copy of the tape, and that the tape did not show the shooting as
it happened. The State did not offer the surveillance tape as evidence at trial. Thus, counsel
failing to obtain the tapes cannot be said to have prejudiced the defendant.
H.
Moving for Directed Finding
Banks argues that his trial counsel’s failure to move for a directed finding of acquittal at
the close of the State’s case in chief constitutes ineffective assistance. On direct examination at
his hearing, counsel testified that he did not move for an acquittal because he believed the
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prosecution had proven their case. Banks does not provide any facts alleging why such a motion
would have been granted. The State made a prima facie case for attempted murder in their casein-chief. Two eyewitnesses identified Banks in court as the shooter, and the State offered
testimony from several officers whose investigation of the crime scene matched the car in the
shooting to Banks. Further, evidence showed that spent cartridges found at the scene of the
shooting matched a handgun recovered from Banks’s home.
The State presented sufficient evidence to sustain Banks’s convictions. Had Banks’s trial
counsel moved for a directed finding of acquittal, the motion likely would have failed. Because
the evidence against Banks was sufficient to sustain his conviction, he did not suffer prejudice
from counsel’s performance. See United States v. Syverson, 90 F.3d 227, 233 (7th Cir. 1996)
(“Putting aside any question about whether [defendant’s] trial counsel performed deficiently, we
conclude that [defendant] did not suffer any prejudice from counsel’s failure to move for an
acquittal. Because the evidence against [defendant] was sufficient to warrant his conviction, no
prejudice could arise from trial counsel’s failure to challenge the sufficiency of that evidence
through a motion for acquittal.” (citing United States v. Pedigo, 12 F.3d 618, 623 (7th Cir.
1993)).
I.
Ineffective Assistance of Appellate Counsel
Banks’s final claim is that by virtue of filing an Anders brief and withdrawing from
representation, he received ineffective assistance by appellate counsel. The Sixth Amendment
requires effective assistance by appellate counsel on direct review. See Evitts v. Lucey, 469 U.S.
387, 397 (1985). The two-pronged Strickland standard governs the inquiry of whether appellate
counsel’s assistance was effective. Smith v. Robbins, 528 U.S. 259, 285 (2000); Shaw v. Wilson,
721 F.3d 908, 915 (7th Cir. 2013).
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Appellate counsel is not required to raise every issue presented by the client. Robbins,
528 U.S. at 288. Further, if counsel determines that an appeal will be “wholly frivolous” and
contains no colorable claims, counsel may follow procedures to withdraw from the
representation. Anders v. State of Cal., 386 U.S. 738, 744 (1967). First, counsel must conduct a
conscientious examination of the case. Id. If counsel finds the case to be without merit, counsel
may submit a brief to the court and request permission to withdraw, referring to “anything in the
record that might arguably support the appeal.” Id.
Banks’s appointed counsel from OSAD followed the procedure outlined in Anders. After
an investigation of the record, appellate counsel decided that an appeal would be without merit.
Counsel then submitted a proper Anders brief to the state appellate court, including specific
references to the record. Banks argues appellate counsel should be found ineffective because he
did, in fact, raise nonfrivolous claims. However, just as in the trial setting, the Court does not
engage in hindsight and second-guessing counsel’s decisions. See Valenzuela v. United States,
261 F.3d 694, 698 (7th Cir. 2001) (in applying the Strickland test, the Court’s examination of an
ineffectiveness of counsel claim is “highly deferential” to counsel, presumes reasonable
judgment, and declines to “second guess strategic choices” (citing Strickland, 466 U.S. at 689));
see also Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000) (“[The Court] must resist a
natural temptation to become a Monday morning quarterback.”). No state court has found any of
Banks’s claims raised in his appeal to be meritorious. This Court, then, cannot say that counsel
deviated from prevailing professional norms by filing the Anders brief and withdrawing from
representation.
17
III.
Certificate of Appealability
Unless this Court issues a certificate of appealability, an appeal may not be taken to the
United States Court of Appeals from this Court’s judgment in a habeas proceeding. See 28
U.S.C. § 2253(c); see also Bolton v. Akpore, 730 F.3d 685, 697 (7th Cir. 2013). The decision of
whether or not to grant a certificate of appealability is a screening device used to conserve
judicial resources and prevent the Courts of Appeals from being overly burdened with
unmeritorious habeas corpus petitions. See Ouska v. Cahill-Masching, 246 F.3d 1036, 1046 (7th
Cir. 2001). Courts may only grant a certificate of appealability when the petitioner has presented
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also
Gonzalez v. Thaler, –––– U.S. ––––, ––––, 132 S.Ct. 641, 649 (2012). A substantial showing of
the denial of a constitutional right requires the petitioner to show that reasonable jurists could
find room to debate whether the petition should have been resolved in a different manner or that
the issues presented are adequate to entitle the petitioner to proceed further with his claims. See
Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893
(1983)).
Banks’s claims are denied on procedural grounds. When a court dismisses a petition on
procedural grounds, a certificate of appealability “should issue when the prisoner shows, at least,
that jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that reasonable jurists would find it debatable whether the
district court was correct in its procedural ruling.” Slack, 529 U.S. 485. “Where a plain
procedural bar is present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district court erred in dismissing the petition
or that the petitioner should be allowed to proceed further.” Id. at 484. Here, it is indisputable
18
that all of Banks’s ineffective assistance of counsel claims are procedurally defaulted.
Accordingly, Banks has failed to make a substantial showing of the denial of a constitutional
right, and the Court denies him a certificate of appealability for the claims raised in his habeas
petition. See 28 U.S.C. § 2253(c)(2); see also Gonzalez, 132 S.Ct. at 649.
CONCLUSION
For the reasons stated herein, Banks’s Petition for a Writ of Habeas Corpus is dismissed,
and he is denied a Certificate of Appealability.
________________________________________
Virginia M. Kendall
United States District Court Judge
Northern District of Illinois
Date: December 30, 2013
19
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