Towers v. Lashbrook

Filing 25

MEMORANDUM OPINION AND ORDER Signed by the Honorable John Z. Lee on 9/3/2019: For the reasons provided in this Memorandum Opinion and Order, the Court denies the petition in part and reserves ruling on the Petitioner's claim of ineffective as sistance of counsel until an evidentiary hearing can be held. The Court will recruit counsel to represent Petitioner for the limited purposes of the evidentiary hearing onPetitioner's ineffective-assistance claim. Plaintiff is granted leave to subpoena trial counsel for records and for a deposition. A status hearing is scheduled for November 5, 2019 at 9:00 a.m. to set a schedule for the evidentiary hearing, witness disclosures, and discovery. Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LUCRECIOUS TOWERS,
Petitioner,
v.
FRANK LAWRENCE, Acting Warden,
Menard Correctional Center,
Respondent.

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17-cv-7481
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Petitioner Lucrecious Towers has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), challenging his conviction for first-degree murder.
Towers advances several grounds for habeas relief: actual innocence based on newly
discovered evidence; ineffective assistance of trial counsel; and improper rulings by
the trial court regarding evidence of his prior criminal convictions. Frank Lawrence,
Acting Warden of Menard Correctional Center (“Respondent”),1 argues that
Petitioner’s claims are meritless, non-cognizable, or procedurally defaulted.
For the reasons set forth herein, the Court denies the petition in part and
reserves ruling as to Petitioner’s ineffective-assistance-of-counsel claim until an
evidentiary hearing can be held.

The Court will recruit counsel to represent

Rule 2(a) of the Rules Governing Section 2254 habeas cases provides that the proper
respondent is the state officer having custody of the petitioner. See Bridges v. Chambers, 425
F.3d 1048, 1049 (7th Cir. 2005). Frank Lawrence is currently the Acting Warden of Menard
Correctional Center. Accordingly, the Court substitutes him as Respondent pursuant to
Federal Rule of Civil Procedure 25(d).
1

Petitioner for the limited purpose of the evidentiary hearing as to Petitioner’s
ineffective-assistance-of-counsel claim.

Petitioner’s counsel is granted leave to

subpoena trial counsel for records and to conduct any necessary depositions. A status
hearing is scheduled for November 5, 2019 at 9:00 a.m. to set a discovery schedule
and a date for the evidentiary hearing.
Factual Background
A jury convicted Towers of the first-degree murder of John Falls. See People v.
Towers, No. 1-14-1474, 2016 WL 7434788, at *4 (Ill. App. Ct. Dec. 23, 2016). The
facts underlying the conviction are as follows.2
In the early morning of January 14, 2006, Falls was driving a Jeep Trailblazer
near Emerald Street and 56th Street in Chicago, Illinois. Id. at *1. Three others
were also in the car: Christopher Doss, James Harper, and April McFulson. Id.
Falls drove north on Emerald Street and pulled up behind a gray Ford Focus
that was stopped in the street, blocking the northbound lane. Id. The Focus was
parked next to a white Pontiac Bonneville. Id. Falls honked his horn, drove around
the Focus, and proceeded north on Emerald Street. Id. He then pulled into an alley
nearby, exited his vehicle, and confronted the driver of the Focus.

A physical

altercation ensued. Id.

Pursuant to 28 U.S.C. § 2254(e)(1), the state courts’ recitations of fact are
presumptively correct in habeas proceedings. See Sumner v. Mata, 449 U.S. 539, 547 (1981).
Because Towers has not attempted to rebut the presumption with clear and convincing
evidence, see 28 U.S.C. § 2254(e)(1), the Court adopts the factual account as provided in
People v. Towers, No. 1-14-1474, 2016 WL 7434788, at *1–6 (Ill. App. Ct. Dec. 23, 2016) and
People v. Towers, No. 1-08-1875, slip op. at 2–11 (Ill. App. Ct. Mar. 9, 2010).
2

2

At this point, the driver of the Bonneville pulled up to the alley and got out of
his car. Id. Doss and Harper then also exited the Trailblazer; McFulson remained
in the SUV.
Doss began fighting with the Bonneville driver, while Harper joined Falls in
fighting the Focus driver. Id. Harper hit the Focus driver with an empty vodka
bottle, causing him to fall to the ground, at which point the Bonneville driver fled.
Id. Harper then got into the Focus and crashed it into a tree. Id. Falls, Harper, and
Doss got back into the Trailblazer and drove away. Id.
Meanwhile, the Bonneville driver returned to his car and began pursuing the
Trailblazer, ultimately rear-ending the SUV and causing it to collide with a parked
vehicle. Id. at *2. The Bonneville driver then sped away. Id.
Falls drove the damaged Trailblazer to 69th Street and Wentworth Avenue
and parked it in front of Harper’s house. Id. The group got into Harper’s truck, drove
to a police station to file a report, then proceeded to a party where they stayed until
6:00 or 6:30 in the morning. Id.
After the party, McFulson and Falls went to Falls’s sister’s house, where they
slept until noon. Id. Falls then borrowed his sister’s white Volkswagen Touareg, and
he and McFulson drove to Popeye’s Louisiana Kitchen (“Popeye’s”), a fast-food
restaurant located at 75th Street and Lafayette Avenue. Id.
As they waited in the drive-through lane of the Popeye’s, a man walked up to
the driver’s side of the Touareg and fired a gun six or seven times through the car’s
window. Id. The shooter pulled a hood over his face and ran around the corner of the

3

restaurant. Id. McFulson eventually ran into the restaurant and told someone to
call the police. Id. Falls died after suffering five gunshot wounds to his left side. Id.
at *3.
Detectives Paul Spagnola and Rick Harrison were assigned to investigate the
shooting. Id. at *2. They interviewed witnesses who described the shooter as a black
male, between 26 and 27 years old, approximately 5’8” tall, weighing approximately
160 pounds, and wearing a dark leather jacket, dark clothes, and a hooded sweater,
with the hood down. Id. McFulson stated that she saw the man walk up to the
Touareg’s window before lowering her head to avoid falling glass from the shooting.
Another witness, Edwina Ross, said that she had been sitting in a car in front of the
Touareg in the drive-through lane and saw the entire scene unfold. Id.
Detectives Spagnola and Harrison also went to 5639 South Emerald Street to
look at a dark blue 1992 Chevrolet Lumina, which matched the description of a car
that witnesses described as the getaway car for the murder. The car was registered
to a Marco McNeal. Id. at *2.
On January 16, 2006, Detective Spagnola composed a black-and-white photo
array to show to Doss, Harper, and McFulson. The array included photographs of
McNeal and another individual, Arian Bonds. But the array did not include a picture
of Towers, presumably because Towers was not a suspect at that time. Id. at *3.
After reviewing the photo array, Doss said that McNeal looked like the Focus
driver from the altercation and that Bonds resembled the Bonneville driver. Id.

4

Harper also identified McNeal as the Focus driver. Id. McFulson was unable to make
any identifications from the array. Id.
From this, Detective Spagnola turned his attention to McNeal and Bonds. He
was unable to locate McNeal, but was able to interview Arian Bonds and his brother
Carlos Bonds. Id. at *3. Based upon these interviews, Detective Spagnola then
shifted the focus of his investigation to Towers. Id.
Detective Spagnola created a second photo array that included color
photographs of Towers and a person named Terrence Cobb and showed it to Doss,
Harper, and McFulson. Id. This time, Doss and Harper identified Cobb as the driver
of the Focus, and Towers as the driver of the white Bonneville. Id. Furthermore,
McFulson identified Towers as the person whom she saw walk in front of the Touareg
immediately before the shooting started. Id. Ross also identified Towers as the
shooter. Id.
Towers was arrested in March 2006 and placed in a lineup. Id. Doss, Harper,
McFulson, and Ross each identified Towers in the lineup consistent with their
identifications from the second photo array. Id.
At Tower’s trial, Doss, Harper, McFulson, Ross, and Detective Spagnola each
testified to the facts described above. Id. at *1–3. Doss and Harper identified Towers
as the Bonneville driver with whom they had fought, id. at *1, and McFulson
identified Towers as the person whom she saw walk in front of the Touareg before
she heard the gunshots and lowered her head. Id. at *2. Ross also identified Towers
as the person who fired multiple shots at the Touareg. Id.

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Additionally, at the trial, Harper testified that, prior to the altercation, the
four were driving in the area because Falls was looking for his ex-girlfriend, Ebony
Ester, who was staying at a friend’s house. Id. at *2.
After the prosecution rested, the defense called Carlos Bonds, who testified
that, in January 2006, he had been living with his brother, Arian Bonds, at 5638
South Emerald Street. Id. at *3. He explained that both Arian and Towers drove
white Bonnevilles, and both men wore their hair in braids. Id. He also testified that
Arian was dating Ebony Ester at the time of the incident. Id. When asked on crossexamination whether he had told the police on January 14, 2006, and the state’s
attorney on March 14, 2006, that he had seen Towers driving a dark-colored Lumina,
Carlos stated that he had not. Id.
Towers testified on his own behalf. Id. He acknowledged that, in January
2006, he drove a white Bonneville and wore his hair in braids. Id. He also stated
that he lived at 5630 South Emerald Street for about a month, and that he was
frequently in the area. Id. But he denied any involvement in the traffic altercation
or shooting of January 14, 2006. Id. He testified that he knew Arian Bonds and that
Arian also drove a white Bonneville. Id.
Prior to the trial, Towers had moved in limine to exclude evidence of his felony
convictions in 1998 and 2000 for controlled-substances offenses. See State Court
Record, Ex. D, People v. Towers, No. 1-08-1875, slip op. at 2–3 (Ill. App. Ct. Mar. 9,
2010), ECF No. 17. The trial court reserved ruling on this testimony until after
Towers testified. Id.

6

During his cross-examination, Towers testified without objection that he had
previously used the names “Demetrius Hicks” and “Demetrius Coleman.” Id. at 9.
Then, in response to the prosecutor’s questions and over defense counsel’s objection,
Towers admitted that he had given those names to police to obscure his identity and
avoid going to jail. Id. After hearing this testimony, the trial court ruled that
evidence of Towers’s prior convictions would be admissible, noting that Towers had
already admitted to “prior interaction with the law enforcement,” and thus “the
probative value [of his prior convictions] outweigh[ed] the prejudicial effect.” Id. at
9–10. The court ruled, however, that the prosecution would be limited to introducing
only the mere fact that Towers had been previously convicted of felonies. Id. at 10.
Defense counsel responded that this approach was “fine.” Id. On rebuttal, the
prosecution

presented

three

certified

statements

reflecting

Towers’s

prior

convictions. Id. at 10–11.
The prosecution also used its rebuttal to impeach Carlos Bonds’s testimony.
Assistant State’s Attorney Mary Anna Planey testified that, in March 2006, she had
interviewed Carlos Bonds, who had told her that he had seen Towers driving a darkcolored Lumina on January 14, 2006. See People v. Towers, 2016 WL 7434788, at *4.
During closing arguments, defense counsel argued that Arian Bonds, not
Towers, had committed the crime. Id. He noted that Arian Bonds lived near 56th
and Emerald Streets, drove a white Bonneville, and wore his hair in braids, just like
Towers.

Id.

Counsel also pointed out that Arian Bonds was dating Falls’s ex-

girlfriend who, according to Harper, Falls had been trying to catch with her new

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boyfriend (which we now know was Bonds) in the early morning hours of January 14,
2006.

Id.

Counsel attacked the prosecution’s witnesses’ credibility, highlighted

discrepancies in their testimony, and argued that McFulson’s and Ross’s
identifications were unreliable. Id.
The jury convicted Towers of first-degree murder, and the trial court sentenced
him to a 100-year term of imprisonment. Id.
Direct Appeal
On direct appeal, Towers contended that the trial court improperly admitted
evidence of his prior convictions and interactions with police. See State Court Record,
Ex. A, Pet’r’s Opening Br., People v. Towers, No. 1-08-1875, at 15–24 (Ill. App. Ct.
2010). In particular, Towers argued that the trial court erred by: (1) reserving ruling
on his pretrial motion to exclude evidence of his prior convictions until after he
testified; (2) permitting the prosecution to cross-examine him about his previous
encounters with police; (3) relying on his testimony from that cross-examination to
find his prior convictions admissible; and (4) requiring the prosecution to use the
“mere-fact” method of introducing the prior convictions. Id. at 15, 18, 21. The
combined effect of these errors, Towers argued, was prejudicial. Id. at 22.
The Illinois Appellate Court affirmed Towers’s conviction and sentence. See
generally id., Ex. D, People v. Towers, No. 1-08-1875, slip op. (Ill. App. Ct. Mar. 9,
2010). Towers then filed a petition for leave to appeal (“PLA”) with the Illinois
Supreme Court. See generally id., Ex. E, Pet’r’s Direct Appeal PLA. In the PLA, he
raised the same issues regarding the use of his prior convictions and police encounters

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during trial. Id. at 3. The Illinois Supreme Court denied the PLA on May 26, 2010.
See id., Ex. F, Order Denying PLA, People v. Towers, No. 110183 (Ill. 2010). The
United States Supreme Court denied certiorari on November 8, 2010. Id., Ex. G,
Order Denying Certiorari, Towers v. Illinois, No. 10-6451 (U.S. 2010).
Post-Conviction Proceedings
On March 7, 2011, Towers, proceeding pro se, filed a postconviction petition in
the state trial court. See generally id., Ex. H, Pet’r’s Pro Se Postconviction Petition,
People v. Towers, No. 06 CR 8139. In the petition, among other things, he alleged
that his trial counsel was ineffective for failing to investigate and call witnesses such
as Marco McNeal. Id. at 17–22.
On September 27, 2012, Towers submitted an amended postconviction petition
through counsel. See id., Ex. I, Pet’r’s Counseled Postconviction Petition, People v.
Towers, No. 06 CR 8139. In the amended petition, Towers raised the following claims:
(1) actual innocence based on the newly discovered affidavit of a purported eyewitness
to the shooting, Ralph Lewis, who could testify that Arian Bonds was the shooter; and
(2) ineffective assistance of trial counsel for failing to investigate or call as witnesses
Marco McNeal, Eric Carson, Gregory Brooks, or Terrence Cobb. Id. at 3–4. In
support of the amended petition, Towers attached his own affidavit, as well as
statements from McNeal, Carson, Brooks, Cobb, and Lewis. See Towers, 2016 WL
7434788, at *4. On May 1, 2014, the trial court dismissed Towers’s petition. See State
Court Record, Ex. J, Order Dismissing Postconviction Petition, People v. Towers, No.
06 CR 8139 (Cir. Ct. Cook Cty. 2014).

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On appeal to the Illinois Appellate Court, Towers claimed that the trial court
erred in dismissing his postconviction petition without an evidentiary hearing
because he had (1) presented newly discovered evidence (i.e., Lewis’s affidavit) that
would change the result on retrial, and (2) shown that his trial counsel was ineffective
for failing to investigate or call Brooks, Cobb, and McNeal as witnesses. See id., Ex.
L, Pet’r’s Opening Br. Postconviction Appeal at 15, 26, People v. Towers, No. 1-141474 (Ill. App. Ct. 2016). Towers did not challenge the trial court’s decision with
respect to Eric Carson. See generally id. at 26–41. The appellate court affirmed the
dismissal of his postconviction petition. See Towers, 2016 WL 7434788, at *7–10.
In his subsequent PLA to the Illinois Supreme Court, Towers claimed that
(1) he was actually innocent, and (2) trial counsel was ineffective for not calling
Brooks, Cobb, and McNeal as defense witnesses and for not interviewing McNeal.
See State Court Record, Ex. P, Postconviction PLA at 11, 16–18, People v. Towers, No.
121925 (Ill. 2017). The Illinois Supreme Court denied Towers’s postconviction PLA
on May 24, 2017. See id., Ex. Q, Order Denying Postconviction PLA, People v. Towers,
No. 121925 (Ill. 2017).
Federal Habeas Claims
Towers’s habeas petition presents the following claims: (1) denial of due
process from the trial court’s delay in ruling on his pretrial motion to bar evidence of
his prior convictions and decision to allow cross-examination about his interactions
with police; (2) ineffective assistance of trial counsel for failing to properly investigate
and call certain witnesses; and (3) actual innocence based on Ralph Lewis’s affidavit.

10

Legal Standard
A writ of habeas corpus will be granted only if the Petitioner demonstrates that
he is “in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Under AEDPA, the Court may not grant habeas relief
unless the state court’s decision on the merits was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States, or the state-court decision is based on an
unreasonable determination of the facts. 28 U.S.C. § 2254(d).
“A federal habeas court may issue the writ under the ‘contrary to’ clause if the
state court applies a rule different from the governing law set forth in [the Supreme
Court’s] cases, or if it decides a case differently than [the Supreme Court has] done
on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002).
“An ‘unreasonable application’ occurs when a state court ‘identifies the correct
governing legal principle from [the Supreme Court’s] decisions but unreasonably
applies that principle to the facts’ of petitioner’s case.” Rompilla v. Beard, 545 U.S.
374, 380 (2005) (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003)).
Clearly established federal law consists of the “holdings, as opposed to the
dicta, of [the Supreme Court’s] decisions as of the time of the relevant state-court
decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams v. Taylor, 529
U.S. 362, 412 (2000)). The state court is not required to cite to, or even be aware of,
the controlling Supreme Court standard, as long as the state court does not contradict
that standard. Early v. Packer, 537 U.S. 3, 8 (2002). The Court begins with a

11

presumption that state courts both know and follow the law. Woodford v. Visciotti,
537 U.S. 19, 24 (2002). Moreover, the Court’s analysis is “backward-looking.” Cullen
v. Pinholster, 131 S. Ct. 1388, 1398 (2011). The Court is limited to reviewing the
record before the state court, as well as the Supreme Court precedent in existence, at
the time of the state-court decision. Id.; Greene v. Fisher, 132 S. Ct. 38, 44 (2011).
“AEDPA’s standard is intentionally ‘difficult [for Petitioner] to meet.’” Woods
v. Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting White v. Woodall, 572
U.S. 415, 419 (2014); Metrish v. Lancaster, 569 U.S. 351, 352 (2013)). “As a condition
for obtaining habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562
U.S. 86, 103 (2011).
This “highly deferential standard . . . demands that state-court decisions be
given the benefit of the doubt.” Woodford, 537 U.S. at 24 (internal quotation marks
omitted). Habeas corpus is a “guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction through
appeal.” Harrington, 562 U.S. at 102–03 (internal quotation marks omitted). “Under
§ 2254(d), a habeas court must determine what arguments or theories supported,
or . . . could have supported, the state court’s decision; and then it must ask whether
it is possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of th[e] [Supreme] Court.” Id. at 102.

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Analysis
I.

Evidence of Prior Convictions
Towers contends that the trial court denied him due process by delaying its

ruling on his pretrial motion to exclude evidence of his prior convictions and by
allowing the prosecution to open the door to the prior convictions by cross-examining
him about his previous interactions with the police. Furthermore, he argues, the
state appellate and supreme courts unreasonably applied the law in upholding these
decisions. Respondent asserts that these claims are procedurally defaulted in part,
non-cognizable in a habeas petition, and ultimately meritless.
A.

Procedural Default

The Court “will not review questions of federal law presented in a habeas
petition when the state court’s decision rests upon a state-law ground that ‘is
independent of the federal question and adequate to support the judgment.’” Cone v.
Bell, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729
(1991)). “A claim will be procedurally defaulted—and barred from federal review—if
the last state court that rendered judgment ‘clearly and expressly states that its
judgment rests on a state procedural bar.’” Lee v. Foster, 750 F.3d 687, 693 (7th Cir.
2014) (quoting Harris v. Reed, 489 U.S. 255, 263 (1989)). The state court must have
“actually relied on the procedural bar as an independent basis for its disposition.”
Thompkins v. Pfister, 698 F.3d 976, 986 (7th Cir. 2012). “A state law ground is
adequate when it is a firmly established and regularly followed state practice at the
time it is applied.” Id.

13

The cross-examination portion of Towers’s claim is procedurally defaulted. On
direct appeal, the appellate court concluded that Towers had forfeited any argument
about the propriety of the prosecution’s cross-examination by failing to raise it in a
post-trial motion. See State Court Record, Ex. D, People v. Towers, No. 1-08-1875,
slip op. at 17–18 (Ill. App. Ct. Mar. 9, 2010).

Forfeiture is an adequate and

independent state ground. See Szabo v. Walls, 313 F.3d 392, 395–96 (7th Cir. 2002).
Additionally, although not raised in his petition, the Court notes that any
challenge to the trial court’s use of the “mere fact” method of introducing Towers’s
prior convictions also would be procedurally barred.3 On direct appeal, the appellate
court concluded that the use of this method was erroneous. See State Court Record,
Ex. D, People v. Towers, No. 1-08-1875, slip op. at 20–21 (Ill. App. Ct. 2010) (citing
People v. Patrick, 908 N.E.2d 1 (2009)). The court concluded, however, that Towers
had invited the error by agreeing to the method. Id. This concept—“invited error”—
is another flavor of the forfeiture doctrine, and thus provides an adequate and
independent state ground for the decision. See Szabo, 313 F.3d at 395–96; see also
Coleman v. O’Leary, 845 F.2d 696, 699–700 (7th Cir. 1988) (holding that use of the
“invited error” doctrine precluded federal habeas review).
B.

Delayed-Ruling Claim

The only remaining portion of Towers’s due-process claim is his challenge to
the trial court’s delay in ruling on his pretrial motion to exclude evidence of his prior
convictions.

3

As the state appellate court explained, the trial court’s practice of

Towers raises this issue in his reply brief. See Pet’r’s Reply at 24–25, ECF No. 18.

14

waiting to hear Towers’s testimony before ruling on the motion was erroneous under
Patrick, 908 N.E.2d 1. Respondent contends that this was an error of only state
evidentiary law, and thus is not cognizable on federal habeas review.
It is true that evidentiary rulings generally are not cognizable in a habeas
proceeding. See, e.g., United States ex rel. Searcy v. Greer, 768 F.2d 906, 910 (7th Cir.
1985) (“Violations of state evidentiary laws generally do not form the basis upon
which federal habeas corpus relief can be granted. A habeas proceeding concerns only
whether federal constitutional rights were infringed.”). Still, a state court’s erroneous
evidentiary ruling may be reviewable if it is “so prejudicial that it compromises the
petitioner’s due process right to a fundamentally fair trial,” and produces a
“significant likelihood that an innocent person has been convicted.”

Howard v.

O’Sullivan, 185 F.3d 721, 723–24 (7th Cir. 1999). Towers casts his claim as such a
due-process violation.
Towers’s due-process claim, however, fails as a matter of law. Towers has not
cited, and this Court has not found, any Supreme Court case holding that a
defendant’s right to testify is infringed by a trial court’s decision to reserve ruling on
prior-conviction impeachment until after the defendant’s testimony. In fact, as other
courts addressing Patrick have concluded, Supreme Court precedent cuts the other
way. See, e.g., Rials v. Harrington, No. 12 C 05342, 2013 WL 6633191, at *6 (N.D.
Ill. Dec. 16, 2013). As the Rials court explained, cases such as Luce v. United States,
469 U.S. 38 (1984), and Ohler v. United States, 529 U.S. 753 (2000), clarify that “it is
not thought inconsistent with the enlightened administration of criminal justice to

15

require the defendant to weigh such pros and cons [like the possibility of
impeachment with prior convictions] in deciding whether to testify.” Rials, 2013 WL
6633191, at *7 (quoting Ohler, 529 U.S. at 760). Accordingly, there is “no clearly
established federal law that requires a trial judge to decide whether a defendant’s
prior convictions are admissible before he testifies.” Id.; accord Taylor v. Nicholson,
No. 17 C 1552, 2018 WL 4052172, at *5 (N.D. Ill. Aug. 24, 2018); Weatherspoon v.
Harrington, No. 13 C 8621, 2014 WL 4771853, at *10 n.3 (N.D. Ill. Sept. 24, 2014).
Accordingly, Towers’s petition is denied with respect to his claims regarding
the trial court’s rulings on the admission of his prior convictions and police
interactions.
II.

Ineffective Assistance of Counsel
Towers next asserts that the state courts unreasonably applied Strickland

v. Washington, 466 U.S. 668 (1984), in concluding that his trial counsel was not
ineffective for failing to investigate and call several witnesses who, he says, would
have supported his misidentification theory. Respondent takes issue with the scope
of Towers’s claim, argues that the state courts decided Towers’s claim regarding
investigation of witnesses on an adequate and independent state ground, and
contends that the state courts reasonably applied Strickland to counsel’s decisions
regarding which witnesses to call.
A.

Scope of the Claim

Towers asserts generally that his trial counsel was ineffective for failing to
investigate and call witnesses. Respondent points out that Towers’s petition does not

16

clarify which witnesses he believes his counsel should have investigated or called.
Accordingly, Respondent contends, this claim violates Rule 2(c) of the Rules
Governing Section 2254 Cases, which requires a habeas petition to describe the facts
supporting each ground for relief. But Respondent also addresses the merits of
Towers’s claims, contending that trial counsel was not ineffective for failing to call
McNeal, Brooks, or Cobb as defense witnesses.
In response, Towers has filed (1) a reply brief in support of his petition, which
challenges trial counsel’s failure to investigate McNeal or to call McNeal, Brooks, and
Cobb as witnesses, (2) a motion to amend his petition to include this elaboration, and
(3) a proposed amended petition. Respondent takes “no position” on whether Towers
can amend his petition, but responds to what he sees as the additional elements of
Towers’s ineffective-assistance claim as laid out in his supplemental filings.
Respondent argues that (1) the state courts reasonably concluded that McNeal’s
affidavit does not establish that he was never contacted by counsel, and (2) the state
courts reasonably concluded that McNeal’s testimony would not change the outcome
of the case.
The Court grants Towers’s motion to amend his petition [20] as uncontested.
What is more, the Court notes that Respondent has had a full and fair opportunity to
address Towers’s contentions with respect to trial counsel’s investigation of McNeal
and decision not to call McNeal, Brooks, and Cobb as defense witnesses. Accordingly,

17

the Court will address Towers’s ineffective-assistance claim as it pertains to these
witnesses and decisions by trial counsel.4
B.

The “Affidavit Rule”

Respondent contends that Towers’s claim regarding the investigation of
witnesses was addressed on an adequate state ground and is therefore procedurally
defaulted. Namely, Respondent points to the state appellate court’s invocation of
Illinois’s “affidavit rule.” Under 725 Ill. Comp. Stat. 5/122-2, a state postconviction
petition must “have attached thereto affidavits, records, or other evidence supporting
its allegations or shall state why the same are not attached.” The state appellate
court looked at McNeal’s, Cobb’s, and Brooks’s statements and concluded:
At the outset, we note that none of the affidavits attached to the
defendant’s amended petition support his claim that his trial attorney
failed to interview McNeal, Brooks, and Cobb. That is, none of the
affiants swore that they were not contacted by an attorney or
investigator regarding the defendant’s trial. Because the affidavits do
not foreclose the possibility that trial counsel or his private investigator
contacted and interviewed the three witnesses, the defendant’s
assertion that his trial attorney failed to interview McNeal, Brooks, and
Cobb is not supported by the affidavits or other evidence as required by
section 122-2 of the Act (725 ILCS 5/122-2 (West 2012)). . . .
Towers, 2016 WL 7434788, at *9.
Illinois courts’ use of 5/122-2 is often regarded as an independent state
procedural ground precluding federal review. See, e.g., Jones v. Calloway, 842 F.3d

To the extent Towers attempts to raise other arguments about his counsel’s failure to
investigate witnesses other than McNeal or call witnesses other than McNeal, Brooks, and
Cobb, those claims are procedurally defaulted, as the only claims that Towers pursued
through all three levels of the Illinois courts are the claims pertaining to these witnesses.
See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (explaining that a petitioner must
present claims through “one complete round” of the appellate process).
4

18

454, 461 (7th Cir. 2016); Thompkins, 698 F.3d at 986–87. In this case, however, the
appellate court did not make a procedural ruling.

Instead, the appellate court

evaluated the substance of the affidavits and concluded that they did not support
Towers’s allegations of counsel’s failure to investigate.

This conclusion was

interwoven with the merits of Towers’s ineffective-assistance claim, and thus does
not provide an independent state ground for the denial of the claim. See Sanders v.
Cotton, 398 F.3d 572, 579–80 (7th Cir. 2005) (explaining that when the state court’s
decision “fairly appears to rest primarily on the resolution of [the petitioner’s] claims,
or to be interwoven with those claims, and does not clearly and expressly rely on the
procedural default, we may conclude that there is no independent and adequate state
ground and proceed to hear the federal claims”); see also Williams v. Hardy, No. 12 C
5345, 2016 WL 1247448, at *6–7 (N.D. Ill. Mar. 30, 2016) (applying the “interwoven
with the merits” standard to an Illinois court’s invocation of 5/122-2).
C.

Ineffective Assistance of Counsel

The Court thus turns to the merits of Towers’s claim that his trial counsel was
constitutionally ineffective for (1) failing to adequately investigate McNeal and
(2) unreasonably deciding not to call McNeal, Brooks, and Cobb as witnesses.
Under AEDPA, “ineffective assistance of counsel is a mixed question of law and
fact reviewed de novo with a strong presumption that the attorney performed
effectively.” Allen v. Chandler, 555 F.3d 596, 600 (7th Cir. 2009). To establish
ineffective assistance, a petitioner must show both that his counsel’s performance fell
below an objective standard of reasonableness under prevailing professional norms,

19

and that the deficient performance prejudiced his defense. Strickland, 466 U.S. at
688–93; see Ebert v. Gaetz, 610 F.3d 404, 411 (7th Cir. 2010).
Furthermore, “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Strickland, 466 U.S. at 689. A habeas petitioner “must do more than
show he would have satisfied Strickland’s test if his claim were being analyzed in the
first instance. . . . [H]e must show that the [state court] applied Strickland to the facts
of his case in an objectively unreasonable manner.” Emerson v. Shaw, 575 F.3d 680,
685 (7th Cir. 2009). Simply put, the court’s decision must be “well outside the
boundaries of permissible differences of opinion.” Hardaway v. Young, 302 F.3d 757,
762 (7th Cir. 2002).
i.

Performance

As to counsel’s performance, “a lawyer’s decision to call or not call a witness is
a strategic decision generally not subject to review,” and counsel need not present
each and every possible witness. Carter v. Duncan, 819 F.3d 931, 942 (7th Cir. 2016)
(internal citation and quotation marks omitted).

“If counsel has investigated

witnesses and consciously decided not to call them, the decision is probably strategic.
An outright failure to investigate witnesses, however, is more likely to be a sign of
deficient performance.” Id. Accordingly, the question is whether a strategic decision
was made, because “the consequences of inattention rather than reasoned strategic
decisions are not entitled to the presumption of reasonableness.” Id. (quoting Mosley
v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012)).

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Here, the Illinois Appellate Court concluded that trial counsel was not
constitutionally ineffective. First, the court found that “none of the affiants swore
that they were not contacted by an attorney or investigator regarding the defendant’s
trial.” Towers, 2016 WL 7434788, at *9. Accordingly, the court moved on to counsel’s
decision not to call McNeal, Brooks, or Cobb as witnesses, and concluded that this
was a matter of reasonable trial strategy. Id. The court noted that trial counsel
presented Towers’s misidentification theory through cross-examination of the
prosecution’s witnesses, the testimony of Carlos Bonds, and testimony that a dark
blue Lumina was parked outside of Arian Bonds’s house within a few days of the
shooting. See id. Trial counsel, the court then determined, could have reasonably
concluded that McNeal, Brooks, and Cobb would not have been useful witnesses
because none were present at the shooting. See id.
The Illinois appellate court’s conclusion that there was no evidence that
Towers’s trial counsel had failed to investigate these witnesses was unreasonable.
McNeal’s affidavit states: “Had I known an innocent person was locked up, I would’ve
been [sic] told my statement. From what [Arian Bonds] told me I know he committed
that crime that [Towers is] in jail for. No one ever contacted me to come to his trial
but I will if my statement can help an innocent man.” Id. at *5. The only reasonable
interpretation of McNeal’s statement is that, prior to being contacted to write his
affidavit, he did not know that Towers was “locked up” for the crime that he believed
Arian Bonds had committed. See id. Yet if counsel had contacted him prior to trial,
McNeal necessarily would have known about Towers’s arrest and incarceration for

21

the murder. Accordingly, the appellate court’s conclusion—that “none of the affiants
swore that they were not contacted by an attorney or investigator regarding the
defendant’s trial”—finds no support in the record. See id. at *9.
Given the uncertainty surrounding trial counsel’s investigation of witnesses,
particularly McNeal, it was improper for the state appellate court to presume from
the limited record before it that counsel’s decisions regarding calling witnesses were
strategic. 5 See Carter, 819 F.3d at 942 (explaining that “strategic choices made after
less than complete investigation are reasonable” only to the “extent that reasonable
professional judgments support[ed] the limits on [the] investigation”) (emphasis in
original); see also Lee v. Kink, 922 F.3d 772, 774 (7th Cir. 2019) (finding an
evidentiary hearing necessary where “we just don’t know” what counsel did to
investigate witnesses’ potential testimony before trial). In other words, without
evidence as to whether trial counsel fully investigated potential witnesses, the Illinois
appellate court could not reasonably have concluded that trial counsel’s performance
was sufficient. See Carter, 819 F.3d at 942–43.
ii.

Prejudice

Even if his counsel’s performance was deficient, however, Towers is not
automatically entitled to habeas relief.

Rather, unless there is a “reasonable

There is little evidence in the record regarding counsel’s attempts to investigate or
interview these witnesses. What we do know is that counsel considered Brooks as a potential
witness (as Brooks’s statement indicates that he was subpoenaed) and hired an investigator
to talk to Cobb (as Cobb’s statement appears on an investigator’s letterhead). See State Court
Record, Ex. I, Pet’r’s Counseled Postconviction Petition at 12, 14, People v. Towers, No. 06 CR
8139. Counsel also listed McNeal as a potential witness. Towers, 2016 WL 7434788, at *9.
But as to whether counsel actually interviewed them is unclear.
5

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probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different,” habeas relief is unavailable. Strickland, 466 U.S. at 694.
If trial counsel had called McNeal, Brooks, and Cobb, they would have
presented the following testimony—at least according to the affidavits they
submitted to the state courts. McNeal—who owns the dark-colored Lumina that
investigators believed may have been the getaway car—says that Arian Bonds
borrowed that car in 2006 after Arian’s brother “had an altercation with his
girlfriend’s ex-boyfriend” and “tore [Arian’s] car up.” See Towers, 2016 WL 7434788,
at *5. McNeal attests that Arian brought the car back the next evening, telling him
that he had “found the guy who his brother was fighting and who tore up his car
and . . . ‘made the n*** pay for it.’” See id. Arian said “that the guy had thought
Carlos was him and tried to get him back because he was dating his girl.” See id.
McNeal states that he does not know Towers and would never have let Towers borrow
his car. See id.
Cobb’s statement explains that he was in an altercation outside Arian Bonds’s
house on Emerald Street in December or January 2006. See id. He was standing
outside the house when the driver of a gray Jeep stopped and asked him if he knew
who lived there, and if he knew who drove the white Bonneville parked outside. See
id. Cobb knew that the Bonneville was Arian Bonds’s car, but said “f*** you” to the
Jeep driver. See id. In response, the driver swung at Cobb, and the other passengers
of the Jeep joined in beating him, culminating in a glass bottle being broken on Cobb’s
head. See id. Cobb attests that he “heard from the neighborhood that Arian Bonds

23

was seeing a girl who had a jealous boyfriend,” and that the men who attacked him
were looking for Arian. See id. Cobb claims, however, that he never drove a Focus
and that neither he nor Towers was in an altercation on January 14, 2006. See id.
Lastly, Brooks claims to have witnessed a fight at 55th and Emerald Streets
that involved Carlos Bonds, Cobb, and “some dudes,” but not Towers. Id. He says he
has never claimed to have seen Towers in a fight on 55th and Emerald Streets. Id.
The Illinois Appellate Court held that McNeal, Brooks, and Cobb would not
have been useful witnesses because they were not present for the shooting of John
Falls. See Towers, 2016 WL 7434788, at *9. The court explained:
[T]heir proposed testimony establishes only that the defendant was not
involved in a traffic altercation at 56th and Emerald during the early
morning hours of January 14, 2006, and that McNeal loaned his vehicle
to Arian Bonds. Because McNeal, Brooks, and Cobb were not at the
scene of the shooting, which occurred in the afternoon of January 14,
2006 at a Popeye’s restaurant, their proposed testimony does not
establish that the defendant was not the shooter.
Id. But prejudice does not require a showing that the omitted evidence would prove
the defendant’s innocence.

Rather, it merely requires a showing that, but for

counsel’s failure to present the testimony, the result of the proceeding would have
been different. Strickland, 466 U.S. at 694; see Toliver v. McCaughtrey, 539 F.3d 766,
776 (7th Cir. 2008) (finding that prejudice had been shown where the omitted
testimony “no doubt would have enhanced significantly the chances of the jury’s
accepting [petitioner’s] characterization of the facts”).
Applying the Strickland standard, the Court concludes that the result of the
proceeding would likely have been different had the jury heard testimony from

24

McNeal, Brooks, and Cobb. As the appellate court noted, trial counsel’s presentation
of the misidentification defense consisted of (1) attempting to discredit Ross’s and
McFulson’s testimony, (2) examining Carlos Bonds, who did not testify to being
present for either the morning altercation or the shooting, and (3) “vigorously crossexamin[ing] Harper” regarding the fact that Falls was looking for his ex-girlfriend
Ebony Ester (who, Carlos Bonds testified, was dating his brother Arian). See Towers,
2016 WL 7434788, at *9. But none of this constituted affirmative rebuttal of Towers’s
identity as either the Bonneville driver from the morning altercation or as the
shooter. By contrast, McNeal would have placed Arian Bonds in the purported
getaway car and provided a motive for him to have shot Falls. What is more, McNeal,
Brooks, and Cobb would have provided alternate versions of the altercation—each of
which, although different in some ways, describes individuals other than Towers
being involved in the fight. This testimony would have cast significant doubt on the
prosecution’s theory, in which the altercation was the impetus for Towers to murder
Falls.
The proposed testimony offers “unique information, available from no other
witnesses, that was corroborative of” Towers’s theory of defense. Toliver, 539 F.3d at
776. Accordingly, the state court’s conclusion that the loss of these witnesses did not
prejudice Towers—because they do not unmistakably prove his innocence—is an
unreasonable application of Strickland. See id.; see also Lee, 922 F.3d at 774–75
(explaining that affidavits are merely a starting point and that it can be assumed
that exculpatory witnesses will more fully flesh out their testimony at a hearing or

25

trial); U.S. ex rel. Hampton v. Leibach, 347 F.3d 219, 250–53 (7th Cir. 2003)
(emphasizing the importance of exculpatory occurrence witnesses and collecting
cases); Washington v. Smith, 219 F.3d 620, 633–34 (7th Cir. 2000) (explaining that
counsel was ineffective for failing to investigate and call disinterested alibi
witnesses); Crisp v. Duckworth, 743 F.2d 580, 585 (7th Cir. 1984) (“Having
independent witnesses corroborate a defendant’s story may be essential—especially
in a first degree murder case[.]”).
iii.

Necessity of an Evidentiary Hearing

“Where a habeas petitioner shows that a state court’s decision denying relief
was contrary to or an unreasonable application of federal law, that will often show
that the petitioner is entitled to relief, but the critical point here is that it will not do
so always and automatically.” Mosley, 689 F.3d at 852. In other words, “[w]hether
the petitioner is actually entitled to relief—whether under § 2254(a) he is in custody
in violation of the Constitution or laws or treaties of the United States—is a separate
question.”

Id.

Here, although the Court has determined that the state courts’

decisions were unreasonable in light of the contents of the affidavits before them,
“that does not mean the . . . affidavits are actually true or that they provide the
complete picture of the facts relevant to [petitioner’s] claim of ineffective assistance
of counsel.” Id.; see also Lee, 922 F.3d at 774–75.
“[A] habeas petitioner is entitled to an evidentiary hearing . . . if he has alleged
facts that would entitle him to relief and the state courts, for reasons not attributable
to him, denied him a full and fair hearing to explore those facts.” Hampton, 347 F.3d

26

at 244.

Here, the facts as presented in the petition and supporting affidavits

potentially would entitle Towers to relief. Furthermore, “[b]ecause the postconviction
court [ ] summarily dismissed [Petitioner’s] ineffectiveness claim, the state court
record was never developed as to what [trial counsel] knew about” McNeal as an
exculpatory occurrence witnesses, what steps he may have taken to speak with
McNeal, and what his reasons were (if any) for not presenting any of the three
proposed witnesses. Id. The failure of the state court to hold a hearing on these
issues was no fault of Towers’s, as he requested a hearing at multiple points in the
procedural posture. See id. This Court cannot assess the scope of trial counsel’s
investigation and decisionmaking without a hearing. See id. at 244–45; see also Lee,
922 F.3d at 774–75.
Accordingly, the Court will schedule an evidentiary hearing in this matter with
respect to Towers’s ineffective-assistance claim. The Court will recruit counsel to
assist Towers for the limited purposes of this hearing. See Rule 8(c), Rules Governing
Section 2254 Cases (“If an evidentiary hearing is warranted, the judge must appoint
an attorney to represent a petitioner who qualifies to have counsel appointed under
18 U.S.C. § 3006A.”).
III.

Actual Innocence
Towers’s final claim is that he is actually innocent based on Ralph Lewis’s

affidavit, which explains that Lewis was riding in a car with Arian Bonds in the “early
morning hours” of January 14, 2006, when Bonds pulled into a Popeye’s and shot at

27

a white truck. Towers, 2016 WL 7434788, at *4. Respondent contends that this claim
is non-cognizable in a federal habeas proceeding.
Respondent is correct. “Claims of actual innocence based on newly discovered
evidence have never been held to state a ground for federal habeas relief absent an
independent constitutional violation occurring in the underlying state criminal
proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993); see also Milone v. Camp,
22 F.3d 693, 699–700 (7th Cir. 1994) (explaining that unless a prisoner is facing a
death sentence, “actual innocence” is not a cognizable claim).

In any event, as

described by the Illinois Appellate Court, Lewis’s affidavit does not prove Towers’s
innocence, but rather contradicts his theory of defense.

See Towers, 2016 WL

7434788, at *7. Accordingly, the Court denies his petition as to this claim.6

Since Lewis’s affidavit is unhelpful to Towers, the Court also rejects Towers’s
suggestion that it can be used as a “gateway claim” of actual innocence to excuse his
procedural default. See Pet’r’s Reply at 13; Jones, 842 F.3d at 461.
6

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Conclusion
For the reasons provided in this Memorandum Opinion and Order, the Court
denies the petition in part and reserves ruling on the Petitioner’s claim of ineffective
assistance of counsel until an evidentiary hearing can be held. The Court will recruit
counsel to represent Petitioner for the limited purposes of the evidentiary hearing on
Petitioner’s ineffective-assistance claim. Plaintiff is granted leave to subpoena trial
counsel for records and for a deposition. A status hearing is scheduled for November
5, 2019 at 9:00 a.m. to set a schedule for the evidentiary hearing, witness disclosures,
and discovery.

IT IS SO ORDERED.

ENTERED:

____________________________________
John Z. Lee
United States District Judge
Date: September 3, 2019

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