Wilson v. Atchison et al
Filing
27
Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 8/28/2013. Mailed notice (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DARNELL WILSON,
)
)
)
)
)
) Case No.12-CV-10059
)
)
)
)
)
Petitioner,
v.
RICK HARRINGTON, Warden, Menard
Correctional Center,
Respondent.
MEMORANDUM OPINION AND ORDER
At the conclusion of a bench trial on December 8, 2005,
petitioner
Darnell
Wilson
was
found
guilty
of
two
counts
of
first-degree murder and one count of aggravated battery with a
firearm.
The trial court sentenced him to a mandatory term of
natural life imprisonment for the murders of George Holliday and
Lesley Coppage and a concurrent six-year term of imprisonment for
the
aggravated
battery
of
Melvin
Jefferson.
Petitioner
challenged his conviction without success in both direct appeals
and post-conviction proceedings in the Illinois state courts.
Petitioner now seeks a federal writ of habeas corpus based on the
following nine claims: (1) that the trial court denied him due
process and equal protection under the Fourteenth Amendment when
it
found
there
were
independent
1
bases
for
in-court
identifications
of
petitioner
identifications;
(2)
that
his
after
trial
suppressing
counsel’s
line-up
failure
to
introduce evidence necessary for the trial court to rule properly
on the in-court identifications was ineffective assistance of
counsel; (3)
that
his
trial
counsel’s failure
to
call
alibi
witnesses also violated his right to effective trial counsel; (4)
that his conviction, secured through proof that was insufficient
to find that he was guilty beyond a reasonable doubt, violated
his due process rights under the Fourteenth Amendment; (5) that
the trial court’s consideration of evidence that petitioner was
“guilty by association,” including the consideration of hearsay
testimony,
violated
his
Fourteenth
Amendment
right
to
due
process; (6) that petitioner is actually innocent; (7) that his
conviction
violates
the
Fourth,
Sixth,
Eighth
and
Fourteenth
Amendments because it resulted from an unlawful detention that
was not
supported
by
probable
cause;
(8)
that
his appellate
counsel was ineffective when he failed to raise an ineffective
assistance of counsel argument based on trial counsel’s failure
to object to the constructive amendment to the indictment; and
(9) that his due process rights were violated when the State
knowingly presented perjured testimony.
For the reasons stated
below, I deny his petition and decline to issue a certificate of
appealability.
2
I.
The following facts are taken from the Illinois Appellate
Court’s Rule 23 Order affirming petitioner’s conviction and
sentence on direct appeal.
People v. Wilson, No. 03-CR-23709
(Ill.App.Ct. December 8, 2008), Resp. Ans. Exh. A (hereinafter
“Wilson I”).
This case concerns shootings that took place in front of a
Chicago Housing Authority building.
Petitioner, along with five
codefendants, was charged with the first-degree murder of George
Holiday and Lesley Coppage, as well as the aggravated battery
with a firearm of Melvin Jefferson. Prior to trial, petitioner
successfully filed a motion to suppress the lineup
identifications of him on the ground that they were fruits of an
illegal arrest. Once the trial court suppressed those
identifications, the State moved for an attenuation hearing to
determine if the witnesses who identified petitioner in the
lineups had a basis on which to make in-court identifications
independent of the tainted arrest.
Following the hearing, the
trial court concluded that the State witnesses, Melvin Jefferson
and Eddie Jackson, had independent bases for their in-court
identifications of petitioner based on their prior acquaintance
at school and around the neighborhood.
Subsequently, the court
found that two additional State witnesses, Corey Strothers and
3
Anthony Hardy, also had independent bases for their in-court
identifications of petitioner.
At trial the State’s evidence against petitioner included
eye witness testimony, corroborated by the testimony of other
witnesses who saw petitioner fleeing the scene.
Following his
conviction, petitioner asserted various claims on direct appeal
and in post-conviction proceedings. On direct appeal, the
Illinois appellate court rejected each of the five claims
petitioner advanced there: that there was no independent basis
for the eye witnesses’ in-court identification of petitioner,
that petitioner’s trial counsel was ineffective for failing to
point out evidence necessary for the trial court to analyze
whether there was an independent basis for the in-court
identifications, that the trial court erred when it found
petitioner guilty by association, that there was insufficient
evidence to find petitioner guilty beyond a reasonable doubt, and
that the trial court erred when it admitted the hearsay testimony
of William Chambers.
hear his petition.
The Supreme Court of Illinois declined to
In post-conviction proceedings, the Illinois
Appellate Court rejected petitioner’s claims that he was denied
effective assistance of counsel when his attorney failed to call
alibi witnesses and that he was actually innocent of the crimes
for which he was convicted.
The Illinois Supreme Court declined
to hear that petition as well.
4
II.
Under the Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”), a federal court may not grant a state prisoner
habeas relief unless the decision of the highest state court to
adjudicate the petitioner’s claims “(1) resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) 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.” Smiley
v. Thurmer, 542 F.3d 574, 580 (7th Cir. 2008) (citing 28 U.S.C. §
2254(d)).
And “[b]efore a federal court may grant habeas review
to a state prisoner, the prisoner must exhaust his remedies in
state court ...” by giving “the state courts an opportunity to
act on his claims before he presents those claims to a federal
court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S.
838, 842, 119 S.Ct. 1728, 1731 (1999).
Therefore, where a
petitioner has failed “to present ... his federal habeas claims
to the [Illinois Supreme Court] in a timely fashion” that failure
“has resulted in a procedural default of those claims.” Id. at
848.
Procedural Default
The State argues that some of the petitioner’s claims are
procedurally barred.
The procedural bar doctrine precludes a
5
federal court from reaching the merits of a habeas claim when
“the claim was not presented to the state courts and it is clear
that those courts would now hold the claim procedurally barred.”
Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004) (noting
that “when the habeas petitioner has failed to fairly present to
the state courts the claim on which he seeks relief in federal
court and the opportunity to raise that claim has passed, the
petitioner has defaulted that claim”).
“Fair presentment ...
requires the petitioner to assert his federal claim through one
complete round of state-court review, either on direct appeal of
his conviction or in post conviction proceedings.” Lewis v.
Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004) (explaining that
“the petitioner must raise the issue at each and every level in
the state court system, including levels at which review is
discretionary rather than mandatory”).
The State argues that the
doctrine of procedural default precludes me from reaching the
merits of petitioner’s claims: (1) that his trial counsel’s
failure to introduce evidence that the trial court needed to
determine whether the witnesses had independent bases for their
in-court identifications of petitioner amounted to ineffective
assistance of counsel; (2) that his appellate counsel’s failure
to advance an ineffective assistance of counsel claim based on
the failure to object to the constructive amendment to the
indictment also amounted to a Sixth Amendment deprivation of
6
effective counsel; and (3) that his due process rights were
violated when the Government knowingly presented perjured
testimony at petitioner’s trial.
A review of the state court records confirms that these
claims are procedurally barred because petitioner failed to raise
them before the Illinois Appellate Court or in his petition for
leave to appeal (“PLA”) to the Illinois Supreme Court.
See Guest
v. McCann, 474 F.3d 926, 930 (7th Cir. 2007) (“In Illinois . . .
a petitioner must have [ ] appealed to the Illinois Appellate
Court and presented the claim in a petition for leave to appeal
to the Illinois Supreme Court.”).
First, petitioner’s claim that the State knowingly presented
perjured testimony is advanced for the first time before this
Court.
Petitioner also never raised in his PLA before the
Illinois Supreme Court his claim that his trial counsel was
ineffective for failing to argue that there was no independent
basis for the in-court identification.
He also failed to present
his claim for ineffective assistance of appellate counsel beyond
his initial post-conviction petition before the Illinois Circuit
Court.
Because each of these claims has not been presented for a
complete round of state court review, they are procedurally
defaulted.
Petitioner may overcome the preclusive effect of the
procedural default if he can show that there was either (1) both
7
cause and prejudice for the defaults; or (2) that without federal
habeas review, a “fundamental miscarriage of justice will
result.” Coleman v. Thompson, 501 U.S. 722, 750 (1991) (detailing
the two exceptions to overcome procedural default).
Petitioner
urges that it was ineffective assistance of his post-conviction
counsel that was the “cause” of his procedural default of his
claim that his appellate counsel was ineffective for failing to
bring a Strickland claim against his trial counsel for failing to
object to the constructive amendment to the indictment.
As the
Seventh Circuit has explained, “[t]he assertion of ineffective
assistance as a cause to excuse procedural default in a § 2254
petition, is, itself, a constitutional claim that must have been
raised before the state court or be procedurally defaulted.”
Smith v. Gaetz, 565 F.3d 346, 352 (7th Cir. 2009) (citing Lee v.
Davis, 328 F.3d 896, 899 (7th Cir. 2003)).
Petitioner pursued
this claim initially during post-conviction proceedings before
the circuit court, but dropped it after the circuit court
rejected his petition. He now argues that it was the failure of
his post-conviction counsel to pursue the claim against his
appellate counsel.
“The result is a tangled web of defaults
excused by causes that may themselves be defaulted and require a
showing of cause and prejudice– a result that has an ‘attractive
power for those who like difficult puzzles.’” Id. (internal
citations omitted).
However, “even assuming that [petitioner]
8
had preserved his ineffective assistance of appellate counsel
claim, he can prevail now only 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.”Id.
Petitioner cannot accomplish this.
On direct appeal, petitioner’s counsel advanced three claims
all the way through his PLA: that there was no independent basis
for the in-court identification, that there was insufficient
proof to convict petitioner beyond a reasonable doubt, and that
his due process rights were violated when he was found guilty by
association.
Raising trial counsel’s ineffectiveness would have
required petitioner to surmount both prongs of Strickland v.
Washington, proving both that his counsel’s performance fell
below an objective level of reasonableness and that he suffered
prejudice as result. Id.
Moreover, any review of counsel’s
performance “must be highly deferential,” as the presumption is
that “the challenged action might be considered sound trial
strategy.” Id. at 352-53 (quoting Strickland, 466 U.S. 668,
689)).
Petitioner argues that trial counsel erred when he failed
to object when, in closing arguments, the State prosecutor argued
accountability, whereas he was charged with intentional murder
and aggravated battery with a firearm.
According to petitioner,
“this variance was devastating to [his] defense because it
exposed him to charges for which he had no notice, thus no
9
opportunity to prepare a defense for accountability.” (Pet. Hab.
Pet. at 7.)
“A constructive amendment to an indictment occurs when
either the government ... the court ... or both, broadens the
possible bases for conviction beyond those presented by the grand
jury.” United States v. Folks, 236 F.3d 384, 390(7th Cir. 2001)
(“Permitting an indictment to be constructively amended thus
violates the Fifth Amendment, which states in pertinent part that
‘[n]o person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury.’ (Internal citation omitted)). This Circuit has held that
“the allegations in the indictment and the proof at trial must
match in order ‘to insure that the defendant is not subject to a
second prosecution, and to give the defendant reasonable notice
so that he may prepare a defense.’” Id. (citing United States v.
McKinney, 954 F.2d 471, 480 (7th Cir. 19992)).
“Constructive
amendment typically refers to situations where the trial proof or
jury instruction goes beyond the parameters of the indictment in
an attempt to cure a defective indictment and this results in a
prosecution of an offense different from, or in addition to, that
charged by the grand jury.” Lemons v. O’Sullivan, 54 F.3d 357,
363-64 (7th Cir. 1995).
Under Illinois law, “[i]t is proper to charge a defendant as
a principal even though the proof is that the defendant was only
10
an accomplice ... because accountability is not a separate
offense, but merely an alternative manner of proving a defendant
guilty of the substantive offense.” People v. Ceja, 204 Ill.2d
333, 361, 273 Ill.Dec. 796, 816, 789 N.E.2d 1228, 1247 (Ill.
2003)).
Thus, even where an indictment charges a defendant for
murder as a principal, the State is entitled to prosecute under a
theory of accountability. Id.
Here, even if counsel had pursued
this claim in the Illinois state courts, it would not have been
successful.
Therefore, I cannot say that the failure to object
to the so-called constructive amendment of the indictment
resulted in ineffective assistance of counsel.
A review of the
record confirms that trial counsel’s strategy was to attack the
credibility of the witnesses and the sufficiency of the evidence.
Thus, the appellate counsel’s decision not to pursue a doomed
claim is protected by the presumptions guaranteed to counsel
under Strickland.
Petitioner also argues that he can demonstrate cause for his
failure to present to the state court his claim that the
Government knowingly presented perjured testimony in violation of
his due process rights.
He alleges that he was unable to obtain
“proper documentation such as police reports, grand jury
testimony, and witness statements,” which was an excusable
“external impediment.” Pet. Reply Br. [#24] at 12.
This argument
fails, however, because the record indicates that the Government
11
did provide copies of those reports, and petitioner entered into
stipulations about their contents at trial.
But even without the
records, the Seventh Circuit has held that a petitioner’s
inability to produce records cannot serve as cause for failure to
raise issues. Montgomery v. Meloy, 90 F.2d 1200, 1203-04 (7th
Cir. 1996).
Therefore, petitioner is unable to overcome the procedural
default hurdle for any of the claims subject to that bar.
Additionally, petitioner’s Fourth Amendment claim that he was
unlawfully detained without probable cause is not cognizable here
because he had a “full and fair opportunity to litigate his claim
that his arrest was illegal.” Cabrera v. Hinsley, 324 F.3d 527,
533 (7th Cir. 2003).
The Seventh Circuit has defined a “full and
fair opportunity to litigate” as one where “(1) he has clearly
informed the state court of the factual basis for that claim and
has argued that those facts constitute a violation of his fourth
amendment rights and (2) the state court has carefully and
thoroughly analyzed the facts and (3) applied the proper
constitutional case law to the facts.” Id. at 530. Petitioner
successfully filed a suppression motion, and there is no
indication that the state court was “careless” with petitioner’s
claim, which resulted in the suppression of the line-up
identifications. Therefore, petitioner is not entitled to further
review of this claim.
12
Actual Innocence Claim
Petitioner also argues that he was actually innocent, a
claim that he argues is a “gateway through which a habeas
petitioner must pass to have his otherwise barred constitutional
claim considered on the merits.” Pet. for Writ Hab. Corp. [#1] at
Ex. 1 p. 3 (quoting Herrera v. Collins, 506 U.S. 390, 404, 113
S.Ct. 853 (1993)).
He also appears to argue actual innocence as
a stand-alone claim.
As this Circuit has held, “[a] claim of
actual innocence is relevant to determining whether a habeas
corpus petition may be brought before a federal tribunal at all;
it is not ordinarily cognizable in determining whether the writ
should issue.” Milone v. Camp, 22 F.3d 693, 699 (7th Cir. 1994).
Petitioner is correct that a “colorable claim” of actual
innocence serves as a “gateway through which a habeas petitioner
must pass to have his otherwise barred constitutional claim
considered on the merits,” but “[o]nce the petitioner has
persuaded the federal court to hear his constitutional claims,
his guilt or innocence of the crime is relevant only insofar as
it bears on a constitutional issue or a matter of federal
statutory law.” Milone, 22 F.3d at 699 (internal citations
omitted).
Thus, this court is not empowered to issue a writ of
habeas corpus on the ground that petitioner “is, or might be,
innocent of the . . .
murder[s] . . . this Court may consider
[petitioner’s] claim of actual innocence only in determining
13
whether to excuse his failure to exhaust all state court remedies
before pursuing this habeas petition.” Id. at 700.
To prove actual innocence, petitioner must “demonstrate
innocence so convincingly that no reasonable jury could convict,”
and the Seventh Circuit has noted that petitioners “must have
documentary, biological (DNA), or other powerful evidence:
perhaps some non-relative who placed him out of the city, with
credit card slips, photographs, and phone logs to back up the
claim.” Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005).
“To be credible,” a claim of actual innocence “requires
petitioner to support his allegations of constitutional error
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, 115 S.Ct. 851, 866 (1995) (emphasis added).
Because the evidentiary bar is exacting, “claims of actual
innocence are rarely successful.” Id.
To meet this demanding
burden, petitioner has come forward with four affidavits: one
from Corey Strothers, stating that the only reason he “falsely
identified” petitioner was because state witnesses Eddie Jackson
(“Jackson”) and Melvin Jefferson (“Jefferson”) threatened the
lives of his children; from Darrian Williams and Arthur Mudrow,
petitioner offers testimony that petitioner was heavily
intoxicated the night before the murders; and one from
14
petitioner’s mother, who provides an alibi for his whereabouts
during the murder.
Petitioner argues that this new evidence
serves to “put the whole case in a different light” and that
without habeas review a “fundamental miscarriage of justice” will
result.
The evidence presented, however, is not sufficient to
demonstrate that his conviction was a “fundamental miscarriage of
justice” or that with this new evidence “no reasonable fact
finder would have found the [petitioner] guilty of the underlying
offense.” Hayes, 403 F.3d at 938.
Even if Corey Strothers’
affidavit is to be credited, there were other witnesses who
identified petitioner as the shooter, including Jefferson,
Jackson, and Hardy.
meet the burden.
Discrediting one of them will not suffice to
As for the testimony of the friends with whom
he got drunk the night before, that certainly fails to meet
exacting standards required here.
At most, they corroborate
petitioner’s whereabouts the night before the murders, but are
not alibis for the murders since they do not speak to where
petitioner was at the time of the shootings.
With respect to his
mother’s testimony that petitioner was asleep during the murders,
that too is insufficient to meet the burden required here. The
Seventh Circuit has recognized that “[e]ither family solidarity
or threats of harm could produce false alibi testimony, given how
rarely prosecutors bring perjury charges against defense
15
witnesses.” Hayes, 403 F.3d at 938.
Because none of his newly-
acquired evidence is sufficient to convince a reasonable fact
finder not to find petitioner guilty of the underlying offenses,
he cannot establish actual innocence, which would serve as a
means to overcome the procedural defaults.
No Independent Basis for the In-Court Identification of
Petitioner
Petitioner argues the Illinois Appellate Court erred when it
found that State witnesses, Jackson and Jefferson,1 who
identified petitioner in court as the shooter, had independent
bases for their identification.
The Illinois Appellate Court
correctly identified Neil v. Biggers, 409 U.S. 188, 34 L.Ed.2d
401, 93 S.Ct. 375 (1972), as the standard for assessing whether a
witness has an independent basis for making an in-court
identification.
In Biggers, the Supreme Court identified six
factors courts must consider when determining whether an in-court
identification has an independent basis, including (1) the
opportunity of the witness to view the criminal at the time of
the crime, (2) the witness’s degree of attention, (3) the
accuracy of the witnesses’ prior description of the criminal, (4)
the level of certainty demonstrated by the witness at the time of
the confrontation, (5) the length of time between the crime and
1
Petitioner also argues here that Anthony Hardy and Corey Strothers’s
identification of him as the shooter do not pass Constitutional muster;
however, those claims are procedurally defaulted because he did not raise that
challenge before the Illinois Appellate Court. See Pet. For Leave To Appeal,
Ex. G to Resp. Answer [#20].
16
the confrontation, and (6) the witness’s acquaintance with the
defendant prior to the crime. Id. at 199-200.
The Illinois
Appellate Court reviewed the trial court’s decision in light of
the Biggers factors and credited the trial court’s finding that
Jackson and Jefferson were “close enough to the defendant for a
sufficient length of time under ideal conditions to adequately
observe him.” Wilson I at 19.
Moreover, the Illinois Appellate
Court found that because “[t]he shootings occurred in the
afternoon on a clear and sunny summer day and the defendant was
observed in an open outdoor parking lot where the witnesses had
unobstructed views of him during the shootings,” there was the
requisite clear and convincing evidence that Jackson and
Jefferson offered reliable testimony that petitioner was one of
the shooters. Wilson I at 13.
That court also noted that Jackson
and Jefferson were focused on petitioner and were familiar with
him before the shootings took place, which enhanced the
reliability of their in-court identification. Id.
Thus, it was
not unreasonable for the Illinois Appellate Court to uphold the
trial court’s decision that upon consideration of the Biggers
factors, the State had established that the witnesses had
independent bases for identifying petitioner as the shooter.
United States v. Clark, 989 F.2d 1490, 1495-96 (7th Cir. 1993)
(noting that even where an incident lasts only a few moments,
where “the witnesses had an opportunity, albeit not an lengthy
17
See
one, ‘to obtain a definite impression on an individual’s
appearance,’ there may be ample time to identify the
perpetrator).
Nevertheless, petitioner maintains that Jackson’s initial
failure to identify him to the police and Jefferson’s alleged
misidentification of petitioner proves that the Illinois
Appellate Court erred when it found that the two witnesses had
independent bases to identify petitioner.
arguments are availing.
Neither of those
As for Jackson’s initial failure to
identify petitioner, this Circuit has held that the failure to
make an earlier positive identification bears on his credibility.
“The weight to be given to their in-court identification is for
the [fact finder] to determine.” United States v. Briggs, 700
F.2d 408, 413 (7th Cir. 1983) (internal citations omitted).
Here, the Illinois Appellate Court was charged with evaluating
the totality of the circumstances and ultimately found that the
trial judge properly assessed the discrepancies in the
descriptions that both Jackson and Jefferson offered of the
shooters both in court and when they initially spoke to police
officers.
I cannot say that determination was an unreasonable
determination of facts in light of the Constitutional standards
enumerated in Biggers.
18
Insufficient Evidence
Petitioner also argues that the state court incorrectly
found that there was sufficient evidence to support his
convictions because none of the witnesses named him as a shooter
in their initial statements to police officers and because there
was no physical evidence connecting him to the shootings.
The
Illinois Appellate Court properly identified the standard for
reviewing a challenge to the sufficiency of the evidence as
enunciated by Jackson v. Virginia, 443 U.S. 307, 319 (1979):
whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Wilson I at 16.
It found that the evidence was sufficient
because both Jackson and Jefferson identified petitioner as the
shooter “in conditions permitting them to positively identify him
as one of the shooters.” Wilson I at 17.
The Illinois Appellate
Court credited the trial court’s assessment of the eye witnesses’
testimony, noting that both Jackson and Jefferson were subject to
rigorous cross-examination, but “both continuously reasserted
that they were certain defendant was one of the shooters.” Id.
The Illinois Appellate Court also noted that the trial court
considered the witnesses’s consistencies, but nevertheless found
the witnesses credible.
“Due process of law requires that guilt
in a criminal proceeding be proved beyond a reasonable doubt.”
Milone v. Camp, 22 F.3d 693, 703 (7th Cir. 1994).
19
“A federal
court engaged in collateral review of a state court conviction
must determine ‘whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” Id. at 703 (quoting Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560
(1979)(emphasis in original)).
evidence.
This inquiry is based on record
Like Milone, “[i]n this case to state the standard of
review is to dispose of the claim: Mere perusal of the Illinois
Appellate Court summary of the evidence adduced against
[petitioner] at trial reveals that there was sufficient evidence
to support his conviction.” Id. at 703.
Here, I cannot say that
the Illinois Appellate Court’s determination that the evidence
was sufficient was objectively unreasonable.
Because the trial
court was in the best position to weigh the credibility of the
witness testimony and it credited the eye witness testimony of
Jackson and Jefferson, along with the other witnesses who saw
petitioner fleeing the scene or with a gun, I cannot say the
Illinois Appellate Court decision was objectively unreasonable or
that no rational trier of fact could have found petitioner guilty
of the crimes beyond a reasonable doubt.
20
Ineffective Assistance of Counsel
Petitioner also urges that his trial counsel was ineffective
for not pursuing his alibi witnesses.
To prevail on this claim,
petitioner must surmount the two prongs of Strickland: (1) that
his counsel’s performance “fell below an objective standard of
reasonableness”; and (2) that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Harris v. Thompson, 698 F.3d 609, 639 (7th Cir. 2012).
Petitioner’s failure to make a sufficient showing on either prong
dooms his claim and obviates the need for me to consider the
other factor before rejecting this claim. Pole v. Randolph, 570
F.3d 922, 940 (7th Cir. 2009).
The Illinois Appellate Court correctly cited Strickland as
the governing standard, and acknowledged that petitioner was
required to demonstrate “both that counsel’s performance ‘fell
below an objective standards of reasonableness’ and that the
deficient performance prejudiced the defense.’” People v. Wilson,
No, 1-10-0178, 2012 WL 6939803, at * 2 (Ill.App.Ct. Jan. 17,
2012), Resp. Ans., Exh. O, at 2 (“Wilson II”).
Having identified
the correct standard, the court proceeded to analyze petitioner’s
claim in light of the “strong presumption that counsel’s
performance fell within the wide range of reasonable professional
assistance.” Wilson II at 2.
Ultimately, the Illinois Appellate
21
Court found that decisions about which witnesses to call at trial
fall under the category of trial strategy, which “are generally
immune from ineffective assistance of counsel claims.” Id.
That
court was unwilling to find petitioner’s counsel deficient for
failing to pursue petitioner’s so-called alibi witnesses, because
Arthur Muldrow and Darrian Williams could not testify about
petitioner’s whereabouts at the time of the shooting, and
testimony from petitioner’s mother would carry little weight at
trial because of her bias.
Having found petitioner unable to
make a sufficient showing of counsel’s deficiency, the Illinois
Appellate Court declined to analyze the prejudice component of
petitioner’s Strickland claim.
Petitioner argues that the Illinois Appellate Court’s
decision is an unreasonable application of Strickland because its
conclusion ignores that the presentation of his so-called alibi
witnesses would have resulted in a different outcome at trial.
Petitioner’s argument goes to prejudice, however, and does not–
nor cannot– cure the fact that counsel’s decision to forego
calling two witnesses who drank with him the night before the
murders does not amount to deficient performance. See United
States v. Ashimi, 932 F.2d 643, 649 (7th Cir. 1991) (“‘Alibi’
evidence is unlikely to affect a trial if it does not account for
the defendant’s presence at the time of the crime.”)
Similarly,
counsel’s decision not to call petitioner’s mother as an alibi
22
witness was also reasonable trial strategy since their close
relationship provided her motive to lie in order to protect her
son. See Smith v. Gaetz, 565 F.3d 346, 354 (7th Cir. 2009)
(“Rather than asking the court to believe a seemingly flimsy
alibi, [counsel] elected to hold the State to its high burden of
proof after having attempted to cast some doubt on the State’s
best identification witness.”) Having failed to prove his
counsel’s deficient performance, petitioner cannot succeed on
this claim.
Therefore, the decision of the Illinois Appellate
Court rejecting petitioner’s Strickland claim was not
unreasonable.
Guilt By Association Claim
Petitioner argues that the trial court impermissibly found
that he was guilty by association in violation of his due process
rights guaranteed by the Fourteenth Amendment. To support this
argument, petitioner points to the testimony of William Chambers,
which petitioner claims was impermissible hearsay.
As an initial
matter, the admission of hearsay testimony is a state evidentiary
issue that is not cognizable here, because “errors of state law
in and of themselves are not cognizable on habeas review.”
Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004).
Moreover, other than a passing reference to the due process
clause of the Fourteenth Amendment, petitioner does not point to
23
any federal authority that creates a Constitutional right based
on this error.
He argues that the trial judge deprived him of a
fair trial “by lumping together all the evidence” against
petitioner and his co-defendants.
The Illinois Appellate Court
determined, however, that “there was no indication that evidence
offered against one defendant was considered improperly against
another, and there was no evidence of antagonistic defenses
between the defendant and codefendants.” Wilson I at 21-22.
Under 28 U.S.C. § 2254(e)(1), that factual finding “shall be
presumed to be correct,” and petitioner “shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence,” which he has failed to do.
Likewise, having failed to
assert that the Illinois Appellate Court’s decision on this claim
was “contrary to, or involved an unreasonable application of,
Supreme Court precedent,” 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,” petitioner
is not entitled to habeas review of this claim.
III.
For the foregoing reasons, Petitioner’s petition for a writ
of habeas corpus is denied.
For the same reasons, I conclude
that petitioner has not made a “substantial showing of the denial
of a constitutional right” as required by 28 U.S.C. § 2253© and
24
decline to issue a certificate of appealability.
ENTER ORDER:
Dated: August 28, 2013
____________________________
Elaine E. Bucklo
United States District Judge
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