Anderson v. Lashbrook et al
Filing
33
MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Petitioner's habeas petition 1 is denied. As explained in the Opinion, a certificate of appealability is issued on the insufficient-evidence claim on the aggravated discharge conviction. The certificate is otherwise denied. The tracking status hearing of 09/18/2020 is vacated. A separate AO-450 judgment shall be entered. Civil case terminated. Mailed notice (mw, )
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 1 of 33 PageID #:1052
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARK ANDERSON,
Petitioner,
v.
JACQUELINE LASHBROOK,
Respondent.
)
)
)
)
)
)
)
)
)
No. 17 C 08350
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Mark Anderson has filed a pro se petition for a writ of habeas corpus, 28 U.S.C.
§ 2254, challenging his 2010 state court convictions for first-degree murder,
aggravated discharged of a firearm, and each offense’s corresponding firearmenhancement charge.1 R. 1, Habeas Pet. Anderson asserts that the trial court erred
in instructing the jury on the firearm-enhancement charges; that there was
insufficient evidence to convict him for aggravated discharge of a firearm, and the
prosecutor misstated the evidence against him; and finally, ineffective assistance of
counsel. Habeas Pet. at 6-8. For the reasons that follow, Anderson’s habeas petition
is denied. But because the aggravated-discharge conviction is a close enough
question, a certificate of appealability shall be granted for that claim only.
1This
Court has subject matter jurisdiction over the case under 28 U.S.C. § 2241.
Citation to the docket is “R.” followed by the entry number and, when necessary, the relevant
page or paragraph number.
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 2 of 33 PageID #:1053
I. Background
When considering habeas petitions, federal courts must presume that the
factual findings made by the last state court to decide the case on the merits are
correct, unless the petitioner rebuts those findings by clear and convincing evidence.
See 28 U.S.C. § 2254(e)(1); Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012). Here,
nearly each of Anderson’s claims was last reviewed in a different state court opinion.
The jury-instruction issue was last substantively reviewed by the Illinois Appellate
Court in 2012, People v. Anderson, 977 N.E.2d 222 (Ill. App. Ct. 2012) (“Anderson I”);
the
sufficiency-of-evidence
and
prosecutorial-misconduct
claims
were
last
substantively reviewed by the Illinois Appellate Court in 2015, People v. Anderson,
2015 WL 7967325 (Ill. App. Ct. Dec. 5, 2015) (“Anderson II”); and the claim for
ineffective assistance of counsel was last reviewed by the Illinois Appellate Court in
2017, People v. Anderson, 2017 WL 1265249 (Ill. App. Ct. Mar. 31, 2017) (“Anderson
III”). Because federal courts must “review the decision of the last state court that
substantively adjudicated each claim,” Gonzales v. Mize, 565 F.3d 373, 379 (7th Cir.
2009) (cleaned up) (emphasis added), this Court will move from opinion to opinion for
each respective claim.2 Overall, however, Anderson has not provided clear and
convincing evidence to rebut the presumption of correctness here, so the factual
background is taken from the state court findings. Pursuant to Rule 5 of the Rules
Governing Section 2254 Cases in the United States District Courts, the facts are also
This Opinion uses (cleaned up) to indicate that internal quotation marks, alterations,
and citations have been omitted from quotations. See Jack Metzler, Cleaning up Quotations,
18 Journal of Appellate Practice and Process 143 (2017).
2
2
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 3 of 33 PageID #:1054
supplemented where appropriate by the state court record lodged with this Court.
See Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002).
A. Trial
In July 2008, Mark Anderson walked into a restaurant with Quentin Cooper
and Centrell Jackson. R. 14-7, Exh. G, Anderson I at 2.3 At the time, at least two men
were already in the restaurant: Darryl Hart and Ozier Hazziez. Id. Long story short,
Hart got into an argument with Anderson’s group, and shots were fired. Id. Hart
ended up being killed. Id. at 4. Hazziez drove away as more shots were fired. Id. at 2.
Anderson was eventually arrested and charged for the shootings. Id. at 1.
Following a jury trial in 2010, Anderson was convicted of the first-degree
murder of Hart, the attempted murder of Hazziez, and the aggravated discharge of a
firearm in the direction of Hazziez’s occupied car. Anderson I at 1. For those
convictions, Anderson was sentenced to a total of 71 years in state prison. Id.
During trial, the jury heard testimony from Hazziez, Cooper, and Jackson.
First, Hazziez told the jury that shortly after 2:00 a.m. on July 25, 2008, he went to
Orbitz Submarine Shop at 71st Street and Euclid Avenue in Chicago. R. 14-16,
Anderson II at 1. According to Hazziez, the only other patron in the shop at that time
was Hart, the murder victim. Id. After Hazziez placed an order for food, he saw
Anderson, Cooper, and Jackson walk into the shop as a group. Id. An “older guy” came
in sometime after that. R. 14-2, Trial Tr. at 12:9-11. Hazziez testified that, when he
3The
three appellate court opinions are attached as exhibits to the state court record
at R. 14. For ease of reference, citations to the opinions will refer to the version of the opinion
attached to the record, and page numbers will refer to the page number of the record exhibit.
3
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 4 of 33 PageID #:1055
was waiting for his food, he saw either Anderson, Cooper, or Jackson sell drugs to
another person inside the sub shop. Anderson II at 1. He did not specify who the other
individual was. But after the drug deal wrapped up, Hart approached Anderson,
Cooper, and Jackson; Hart then started an argument because they apparently sold
in Hart’s “area.” Id. According to Hazziez, as the argument in the shop began to
escalate, Hart and Cooper stepped outside the shop. Id. Hazziez himself also stepped
outside. Id. Anderson then left the shop to confront Hart, at which point Hazziez
heard Hart say, “You might as well just shoot me.” Id. Hazziez then saw Anderson
fire at Hart, and Hart immediately fell to the ground. Id. at 1-2.
Hazziez testified that, after he saw Anderson shoot Hart, Hazziez ran to his
car and took off. Anderson II at 2. Hazziez’s car was one of only two cars parked
outside the shop at the time of the shooting. Id. Hazziez then explained that, while
he was driving away, he heard three more gunshots, but he could not tell in what
direction they were fired. Id. Later, it turned out that his car did not have any bullethole markings. Id. Nor was Hazziez himself directly hit. Id. Shortly after the
shooting, Hazziez went to a police station, but he was not able to identify Anderson
in a photo array. Id. Three weeks later, though, during a physical lineup, Hazziez
identified Anderson as the shooter. Id.
Next, Cooper took the stand and told a very different story from Hazziez.
Specifically, Cooper testified that no shooting, no drug deal, and no argument with
Hart had occurred, and that Cooper and Jackson left the sub shop that night without
any incident. Anderson II at 2. In addition to contradicting Hazziez’s testimony,
4
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 5 of 33 PageID #:1056
Cooper’s trial testimony also directly contradicted his own previous written
statement and grand jury testimony, both of which he claimed at trial were coerced
on threat of charging Cooper with the murder and shooting. Id. Nonetheless, Cooper’s
written statement and grand jury testimony were both introduced to impeach his
trial testimony. Id. In those earlier statements, Cooper had claimed that Anderson
shot and killed Hart before turning to shoot at another individual who was standing
outside at the time of the shooting. Id. at 3. Specifically, Cooper described how
Anderson had to reach around Cooper in order to shoot Hart once in the chest. Id.
After Hart fell to the ground, Anderson then shot Hart two more times. Id. Then,
Anderson turned to shoot twice at “another guy who was in the sub shop earlier but
was standing outside” at the moment that Anderson shot Hart. Id. That other guy,
according to Cooper’s statements, “[j]umped into his car and rode off.” Id.
Finally, Jackson took the stand to tell, in Rashomon-like fashion, yet another
version of what happened. First, Jackson testified that when he entered the sub shop
with Anderson and Cooper, Hart was with another person. Anderson II at 3. Jackson
also admitted that he (Jackson) was specifically the one who sold drugs on Hart’s
“turf.” Id. But unlike Hazziez’s version, in which the drug deal happened inside the
shop, Jackson testified that the drug deal actually happened outside the shop’s
entrance. Id. Jackson also did not witness the shooting or the shooter, but he did hear
three or “maybe four at the most” gunshots outside while he was still inside the shop
waiting for his food. Id.
5
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 6 of 33 PageID #:1057
The jury also heard from several police officers and forensic experts, Anderson
III at 2-3, though that testimony was of limited value. Also, the parties stipulated
that a jacket belonging to Anderson may not have contacted gunshot residue and
“may not have been in the environment of a discharged firearm.” Id. at 3. Anderson
himself waived his right to testify. Id. In response to admonishments from the trial
judge, Anderson clarified that his decision was given freely and knowingly. Id.
After jury instructions and closing arguments were given, the jury convicted
Anderson for the first-degree murder of Hart, the attempted murder of Hazziez, and
aggravated discharge of a firearm in the direction of Hazziez’s occupied car. Anderson
I at 5. The jury also found that Anderson personally discharged a firearm during the
commission of the murder and attempted-murder offenses, which meant that the
firearm-enhancement charges would apply. Id. The trial court then sentenced
Anderson to a total of 71 years for the convictions, with the aggravated-discharge
conviction merging into the attempted-murder conviction. Anderson II at 1.
B. First Direct Appeal
In September 2011, Anderson filed his first direct appeal, pointing primarily
to two errors. First, Anderson argued that the trial court erred in giving the jury the
firearm-enhancement instructions in a different sequence than the instructions
allegedly appear in the Illinois Pattern Jury Instructions. R. 14-4, Exh. D at 1, 6.
Second, Anderson argued that the trial court erred by instructing the jury that the
subject of the attempted-murder charge was just an “individual,” instead of
specifically asking the jury to consider Hazziez as the victim; without that
6
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 7 of 33 PageID #:1058
clarification, the jury might have found Anderson guilty of the attempt charge
without finding that he had the specific intent to kill Hazziez. Id. at 1.
In August 2012, the Illinois Appellate Court held that Anderson had forfeited
the jury-instruction claim because he failed to object to the instruction at trial and
also failed to raise the issue in a post-trial motion. Anderson I at 7. Moreover, the
court held that there was no plain error in the reading of the firearm-enhancement
instruction. The appellate court explained that “[e]ven when a trial court gives faulty
instructions, a reviewing court will not review a trial court’s decision unless the
instruction clearly misled the jury and resulted in prejudice to the defendant.”
Anderson I at 8 (cleaned up). And here, the appellate court reasoned, the trial court
“incontestably” provided the jury with a complete statement of the applicable and
correct law such that the state still carried the burden of proving each element of the
offense beyond a reasonable doubt. Id. Anderson filed for leave to appeal this decision,
but the Illinois Supreme Court denied the petition. R. 14-10, Exh. J at 1.
The Illinois Appellate Court did, however, hold that the trial court’s failure to
specify the attempted-murder victim did constitute plain error. Anderson I at 1.
Specifically, the appellate court agreed with Anderson that the instruction to only
consider “an individual” instead of Hazziez specifically meant that the jury could very
well have convicted Anderson based on an erroneous finding that he attempted to
murder anyone, including Hart, instead of finding that he specifically attempted to
murder Hazziez. Id. at 10. That was a plain error because the evidence for the
attempted murder of Hazziez was “closely balanced.” Id. at 11. As the appellate court
7
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 8 of 33 PageID #:1059
noted, the only two real pieces of evidence on this charge were the testimonies of
Hazziez and Cooper; Hazziez only testified that he heard more shots as he was driving
away, while Cooper only testified that he saw Anderson shoot “another person” after
shooting Hart, but without specifying whether that “other person” was Hazziez. Id.
Thus, the appellate court held that the flawed jury instruction could have tipped the
scale in favor of conviction because the evidence was closely balanced. Id. As a result,
the appellate court overturned the attempted-murder conviction and remanded for a
new trial on the attempted-murder charge. Id. at 12.
On remand, the trial court granted the state’s motion to voluntarily dismiss
the attempted-murder charge and then went ahead and imposed a sentence for the
aggravated-discharge conviction (remember that this conviction had previously
merged into the attempted-murder conviction, which itself was now vacated).
Anderson II at 1. The aggravated-discharge conviction carried a sentence of six years
in prison, which the trial court ordered to be served consecutively to the 45-year term
for first-degree murder, for a new total of 51 years in prison. Id.
C. Second Direct Appeal
In March 2015, Anderson filed a second direct appeal, this time challenging
the aggravated-discharge conviction and sentence. R. 14-12, Exh. L at 1. Anderson
argued that the aggravated-discharge conviction should be reversed because there
was no evidence that he shot at Hazziez’s car, or, in the alternative, that the court
should remand for a new trial on the aggravated-discharge charge because the
prosecutor misstated the evidence during closing arguments. Id. at 2-3.
8
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 9 of 33 PageID #:1060
In December 2015, the Illinois Appellate Court affirmed the aggravateddischarge conviction, rejecting Anderson’s claims of insufficient evidence and
prosecutorial misconduct. R. 14-16, Anderson II at 6. As the appellate court explained,
the standard of review for sufficiency of the evidence was whether “any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id. (cleaned up). And here, the appellate court reasoned, there was sufficient
evidence to prove that Anderson shot at Hazziez’s car. Id. at 4. First, the appellate
court credited Hazziez’s testimony that he heard “three more gunshots” after he had
gotten into his car and was driving away. Id. Then, the appellate court pointed to
Cooper’s testimony (taken from his written statement and grand jury testimony) that
Anderson shot twice at “another guy who was in the sub shop earlier but was standing
outside” at the time Anderson shot Hart. Id. The appellate court concluded that,
viewing these two pieces of testimony in the light most favorable to the prosecution,
there was sufficient evidence to suggest that Anderson shot at Hazziez’s car. Id. at 5.
The Appellate Court also rejected Anderson’s claim that the prosecutor
misstated evidence during closing argument. Anderson II at 6. Specifically, Anderson
had claimed that the prosecutor argued that Cooper testified that he saw Anderson
shoot in the direction of Hazziez’s car. Id. at 5. As discussed above, Cooper actually
testified that he saw Anderson shoot at another guy, but never specified that it was
Hazziez. According to the appellate court, however, prosecutors are “afforded wide
latitude in the content of their closing arguments,” and in this case, the prosecutor
was certainly allowed to draw reasonable inferences from the testimony and present
9
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 10 of 33 PageID #:1061
those reasonable inferences to the jury during closing arguments. Id. at 6. Thus, the
appellate court concluded that there was no plain error in the prosecutor’s statement
of the evidence, so the court rejected Anderson’s request for a new trial. Id. In May
2016, the Illinois Supreme Court again denied Anderson’s petition for leave to appeal.
R. 14-18, Exh. R at 1.
D. Post-Conviction Proceedings
Meanwhile, in April 2014, Anderson filed a post-conviction petition, alleging
that his trial counsel was ineffective because the counsel: (1) entered into the
gunshot-stipulation without Anderson’s consent; (2) did not visit Anderson in jail,
keep him informed of the evidence against him, allow him to make an informed
decision about his right to testify, and in fact coached him not to testify; and (3) did
not interview any witnesses. R. 14-19, Exh. S at 3.
In September 2014, the trial court summarily dismissed the post-conviction
petition. R. 14-20, Exh. T at 11. On the first two issues, the court held that Anderson
did not adequately allege prejudice so as to plausibly plead a claim of ineffective
counsel. Id. at 5. On the third issue, the court rejected the ineffective-assistance claim
because Anderson failed to provide any information or affidavits identifying the
witnesses that his counsel should have interviewed or what those witnesses would
have said. Id. at 11. So, the court rejected all three claims. Id. Anderson then filed his
third appeal in this case. R. 14-21, Exh. U.
In March 2017, the Illinois Appellate Court affirmed the summary dismissal
of Anderson’s post-conviction claims. R. 14-24, Anderson III at 1. The appellate court
10
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 11 of 33 PageID #:1062
explained that the governing legal standard for ineffective assistance of counsel
claims, set forth in Strickland v. Washington, 466 U.S. 668, 687-88 (1984), required
Anderson to show that (1) his counsel’s performance fell below an objective standard
of reasonableness, and (2) he was prejudiced by his counsel’s performance. Anderson
III. at 6 (cleaned up). Based on that framework, the appellate court rejected
Anderson’s first claim—that his counsel stipulated to the gunshot-residue evidence
without his consent—because Anderson failed to show how that decision prejudiced
him. Id. at 8. Similarly, the appellate court rejected Anderson’s second claim—that
his counsel failed to visit him, inform him of the evidence against him, and properly
advise him on his right to testify—because the court found that Anderson failed to
show how his counsel’s failure to communicate prejudiced him, given how not closely
balanced the evidence was against him. Id. at 6.
Finally, the appellate court did not reach the merits of the third issue—his
counsel’s failure to interview witnesses—because Anderson had forfeited that claim
on procedural grounds. Id. at 7. As the appellate court explained, Illinois law requires
a post-conviction petitioner to attach factual information to a petition, or otherwise
explain the absence of such information. Id. And here, Anderson did not attach any
affidavits from Jackson or Cooper, or otherwise explain their absence, to support his
ineffective-assistance claim. So, the appellate court affirmed the dismissal of that
claim as well. Id. In September 2017, the Illinois Supreme Court once again denied
Anderson’s petition for leave to appeal. R. 14-26, Exh. Z at 1.
11
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 12 of 33 PageID #:1063
E. Federal Habeas Petition
Now, Anderson has filed a federal habeas petition. See Habeas Pet. In the
petition, he brings four claims. First, Anderson argues that he was denied a fair trial
when the trial judge instructed the jury on the firearm-enhancement offenses in a
manner inconsistent with the directions of the Illinois Pattern Jury Instructions. Id.
at 6. Second, Anderson claims that there was insufficient evidence to support his
conviction for aggravated discharge of a firearm. Id. Third, Anderson argues that he
was denied a fair trial because the prosecutor misstated the evidence for the
aggravated-discharge charge during closing arguments. Id. Finally, Anderson
contends that his attorney failed to (1) get Anderson’s consent before stipulating to
the gunshot-residue evidence; (2) communicate with Anderson regarding his right to
testify; and (3) interview any of the witnesses in the case. Id. at 7-8. Naturally, the
government asks this Court to deny Anderson’s petition. R. 15, State’s Answer.
II. Standard of Review
A petition for habeas corpus is governed by the Anti-Terrorism and Effective
Death Penalty Act of 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). A state
petitioner seeking a writ of habeas corpus in federal court must first exhaust the
remedies available in state court, 28 U.S.C. § 2254(b)(1)(A), “thereby giving the State
the opportunity to pass upon and correct alleged violations of its prisoners’ federal
rights.” Cheeks v. Gaetz, 571 F.3d 680, 685 (7th Cir. 2009) (cleaned up). This means
that a state petitioner must fully and fairly present federal claims through one
complete round of the state appellate review process before filing a federal habeas
12
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 13 of 33 PageID #:1064
petition. Smith v. Gaetz, 565 F.3d 346, 352 (7th Cir. 2009). If a petitioner has failed
to properly assert federal constitutional claims at each level of state review, then the
claims are procedurally defaulted. Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir.
2009).
Alternatively, a claim is also procedurally defaulted when a petitioner fails to
raise federal claims in compliance with state procedural rules, making the state
court’s refusal to decide the merits of the claims an independent and adequate state
ground for denying federal review. Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir.
2010). Under this second way, the state court must have actually relied on the state
procedural bar as an independent basis in deciding the case. Smith v McKee, 598 F.3d
374, 382 (7th Cir. 2010). Either way, procedural default precludes federal court
review of a petitioner’s habeas claims. See Mulero v. Thompson, 668 F.3d 529, 536
(7th Cir. 2012).
A habeas petitioner may overcome procedural default either by demonstrating
cause and actual prejudice from the default, or by showing that the federal court’s
refusal to consider the claim would result in a fundamental miscarriage of justice.
Kaczmarek, 627 F.3d at 591. A fundamental miscarriage of justice occurs when a
habeas petitioner establishes that “a constitutional violation has probably resulted in
the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496
(1986).
Even if a habeas petitioner has exhausted administrative remedies or
overcome a defaulted claim, still a federal court may only grant habeas relief for a
13
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 14 of 33 PageID #:1065
state-court conviction if the habeas petitioner meets one of two statutory
requirements: (1) the state-court decision involved an unreasonable application of
clearly established federal law, 28 U.S.C. § 2254(d)(1), or (2) the decision was based
on an unreasonable determination of the facts in light of the evidence presented
during the state-court proceeding, 28 U.S.C. § 2254(d)(2). Under the “unreasonable
application of law” avenue, a federal court can grant relief only if the state court's
decision was “objectively” unreasonable, not merely an incorrect or erroneous
application of Supreme Court precedent. Wiggins v. Smith, 539 U.S. 510, 520 (2003).
This standard is difficult to meet because “a state court’s determination that a claim
lacks merit precludes federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court's decision.” Harrington v. Richter, 562
U.S. 86, 131 (2011). As for the “unreasonable determination of the facts” avenue, a
petitioner must demonstrate that the state court decision “rests upon fact-finding
that ignores the clear and convincing weight of the evidence.” McManus v. Neal, 779
F.3d 634, 649 (7th Cir. 2015) (cleaned up). The state court decision “must be so
inadequately supported by the record as to be arbitrary and therefore objectively
unreasonable.” Alston v. Smith, 840 F.3d 363, 370 (7th Cir. 2016) (cleaned up).
Similar to the unreasonable-law analysis, the unreasonable-facts analysis
incorporates a deferential standard that sets a high bar for a state habeas petitioner
to overcome.
14
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 15 of 33 PageID #:1066
III. Analysis
Having spent nearly a decade litigating his claims in state court, Anderson
now asserts four claims in support of his federal habeas petition: (1) the trial court
erred in instructing the jury on the firearm-enhancement charges; (2) there was
insufficient evidence on the conviction for aggravated discharge of a firearm; (3) the
prosecutor misstated the evidence on the aggravated-discharge offense during closing
arguments; and (4) his counsel was ineffective for stipulating to the gunshot-residue
evidence, failing to properly advise Anderson about his right to testify, and neglecting
to interview witnesses before trial. Habeas Pet. at 6-8. For the reasons explained
below, Anderson’s petition is denied, but a certificate of appealability will issue on
the insufficient-evidence claim.
A. Jury Instructions for the Firearm Enhancement
First, Anderson argues that the trial court erred when it gave the firearmenhancement jury instructions “in a manner contradicting” the Illinois Pattern Jury
Instructions. Habeas Pet. at 5. “Manner contradicting” is rather vague, but in state
court, this issue was first presented in the direct appeal as an alleged error in the
sequence in which the instructions were read to the jury. R. 14-4, Exh. D at 1, 6. In
response, the State contends that this claim has been procedurally defaulted. State’s
Answer at 7. The State is correct.
As mentioned earlier, when a state court refuses to reach the merits of a
petitioner’s claim based on an independent and adequate state-based procedural
ground, then a federal court cannot entertain the claim on habeas review. Kaczmarek,
15
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 16 of 33 PageID #:1067
627 F.3d at 591. Here, the jury-instruction issue was last substantively reviewed by
the Illinois Appellate Court in 2012 as part of Anderson’s first direct appeal. See
Anderson I. In that decision, the court refused to decide the merits of the claim
because Anderson failed to preserve the challenge for appeal. Id. at 7. Specifically, in
order to preserve the jury-instruction challenge under Illinois law, Anderson’s trial
counsel was required to object contemporaneously during the trial and then raise the
issue in a post-trial motion. Anderson I at 8; see also, e.g., People v. Herron, 830 N.E.2d
467, 472-73 (Ill. 2005). That did not happen. For that reason, the jury-instruction
claim has been procedurally defaulted because the Illinois Appellate Court refused to
reach the merits of that claim based on an independent and adequate procedural
ground. For the sake of completeness, the Illinois Appellate Court did conduct a plainerror analysis, holding that even if the jury instruction was an error, the error did
not rise to the level of a plain error necessary to overcome Anderson’s failure to object
and raise the issue post-trial. Anderson II at 8-9. As the Seventh Circuit has
explained, though, that plain-error review does not vitiate the default. Miranda v.
Leibach, 394 F.3d 984, 992 (7th Cir. 2005).
It is possible for a petitioner to overcome procedural default if he “can establish
cause and prejudice for the default or that the failure to consider the claim would
result in a fundamental miscarriage of justice.” Kaczmarek, 627 F.3d at 591. Here,
for instance, Anderson could have asserted an ineffective assistance of counsel
argument based on his lawyer’s failure to raise the issue during trial and in postconviction proceedings. See Gray, 598 F.3d at 330. But Anderson did not raise any
16
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 17 of 33 PageID #:1068
argument like that in his federal habeas petition. (Even though he did raise an
ineffective-assistance claim as part of his direct appeal, Anderson I at 9, the federal
petition failed to present the claim here as good cause to excuse the default). So
procedural default blocks consideration of the merits of this claim.
B. Insufficient Evidence
Next, Anderson argues that there was insufficient evidence to support his
conviction for aggravated discharge of a firearm in the direction of Hazziez’s occupied
car. Habeas Pet. at 5. For the reasons explained below, this is a close call, but
ultimately, given the deferential standard of review, this claim is rejected. A
certificate of appealability, however, will be issued for this claim.
The insufficient-evidence claim was properly raised through one full round of
state court review (starting with the 2015 second direct appeal). See Anderson II at
1; R. 14-17, Exh. Q at 1. So there is no procedural default and the Court can go ahead
and review the merits of the Illinois Appellate Court’s 2015 decision. On the merits,
the appellate court analyzed Anderson’s insufficient-evidence claim under the legal
framework articulated by the Supreme Court in Jackson v. Virginia, 443 U.S. 307,
319 (1979). Anderson II at 4. That is, the appellate court asked “whether, 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.
That was the correct legal standard for insufficient-evidence claims under the
Due Process Clause, so the only way for Anderson to prevail on habeas review is if
the Illinois Appellate Court decision applied the legal standard unreasonably. 28
17
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 18 of 33 PageID #:1069
U.S.C. § 2254(d)(1). What that means is that the Court “may only overturn the
Appellate Court’s finding of sufficient evidence if it was objectively unreasonable.”
Maier v. Smith, 912 F.3d 1064, 1074 (7th Cir. 2019) (cleaned up). It is worth bearing
in mind that the Illinois Appellate Court itself was required to apply a deferential
standard of review to the original jury finding on the aggravated-discharge offense:
as long as any rational trier of fact could find that the evidence supported the
conviction, then the appellate court was required to affirm that finding. Now, under
the “objectively unreasonable” standard at the habeas stage, the Illinois Appellate
Court’s holding on the rational-trier-of-fact question can only be overturned if it was
“well outside the boundaries of permissible differences of opinions.” Jackson v. Frank,
348 F.3d 658, 662 (7th Cir. 2003).
Turning now to the substance of the state court holding, state law supplies the
elements of the aggravated-discharge offense. Coleman, 556 U.S. at 655. Under
Illinois law, Anderson committed aggravated discharge of a firearm if he knowingly
or intentionally discharged a firearm in the direction of a vehicle that he knew or
reasonably should have known was occupied by a person. See 720 ILCS 5/24–1.2(a)(2).
Even though the statute defines aggravated discharge as in the direction of a person
or an occupied vehicle, the jury in this case was only instructed to decide whether
Anderson was guilty of knowingly or intentionally firing at an occupied vehicle. Trial
Tr. at X-184:9-11. So, the relevant question is whether there was enough evidence to
support Anderson’s conviction for aggravated discharge of a firearm in the direction
of Hazziez’s occupied car.
18
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 19 of 33 PageID #:1070
On that question, the Illinois Appellate Court held that there was a reasonable
inference that Anderson shot at Hazziez’s car based on a combined reading of the
testimonies of Hazziez, Cooper, and Jackson. First, the appellate court noted that
Hazziez testified that he heard three shots fired when he was in his car. Anderson II
at 4. Second, the appellate court credited Cooper’s written statement and grand jury
testimony that Anderson shot twice at “another guy who was in the sub shop earlier
but was standing outside” at the time Anderson shot Hart, id., which reasonably
could describe Hazziez. Finally, the appellate court reasoned that, according to both
Hazziez’s own testimony and Jackson’s testimony, Hazziez fit the description of
someone who had been inside the sub shop earlier. Id. at 5. Taking all of this
testimony in the light most favorable to the jury’s verdict, the appellate court
concluded that “Hazziez was in his vehicle when the second round of shots were fired,
and therefore, when defendant shot at Hazziez, he necessarily had to shoot at the
vehicle occupied by Hazziez.” Id.
To be clear, this conclusion required the appellate court (and, before that, the
jury) to make two separate inferences about the trial testimony. First, the appellate
court would have had to interpret Cooper’s statement, which referenced “another
guy,” to specifically describe Hazziez. Second, the appellate court would have had to
infer that Anderson shot at Hazziez while he was sitting in his car, as opposed to
while he was just standing outside. (Remember, the jury was only instructed on the
occupied-vehicle element of the aggravated-discharge charge.)
19
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 20 of 33 PageID #:1071
In the Court’s view, as detailed in the next subsection, this is a much closer
call than the appellate court decision characterizes it. That is, both of the inferences
that the appellate court relied on to arrive at its conclusion—that Anderson
“necessarily” shot at Hazziez’s car—are not clear cut. But given the double layer of
deference required on habeas review, it is not enough that this Court might reach a
different conclusion on the issue. The appellate-court decision has to be objectively
unreasonable, a high bar that is not quite met here. Nonetheless, it is still worth
walking through the trial evidence and discussing what the appellate court
considered and what the court omitted from its analysis.
1. Inference that Anderson Shot at Hazziez
The initial inference needed to arrive at the conclusion that Anderson shot
Hazziez’s occupied car was that Anderson shot at Hazziez, as opposed to a different
person. On this point, the most direct evidence is Cooper’s written statement that
after Anderson shot Hart, Anderson then turned around and started firing at
“another guy who was in the sub shop earlier but was standing outside” when
Anderson shot Hart. Anderson II at 4-5. Assuming that the only people at the scene
were Anderson, Hart, Cooper, Jackson, and Hazziez, then this description would
seem to narrow down the only possible candidate to Hazziez.
But what if there had been another person in the sub shop before the shooting
started? During trial, Hazziez testified that an “older guy” came into the store after
Anderson, Cooper, and Jackson all arrived. Trial Tr. at 12:5-11. According to Hazziez,
after the “older guy” walked in, “somebody must have sold him drugs or something.”
20
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 21 of 33 PageID #:1072
Id. at 12:12-15. It is clear that “older guy” does not refer to Hart, Anderson, Cooper,
or Jackson because, throughout the testimony, Hazziez refers to all four of them with
different descriptors (“the man on the phone” for Hart, and then “short,” “tall,” and
“heavyset” for Anderson’s group of three). The appellate court makes no mention of
this “older guy.” When this testimony is pieced together with Cooper’s description of
the shooting victim, the “another guy” that Cooper mentions could very well have
referred to someone other than Hazziez. Similarly, Cooper’s grand jury testimony
described the second person who Anderson shot at as someone who entered the sub
shop and ordered food after Cooper, Anderson, and Jackson arrived. Trial Tr. at 89:913. According to Hazziez’s own testimony, though, he was already in the sub shop and
had already ordered food before Cooper, Anderson, and Jackson arrived. Id. at 11:2124. If the person who Anderson shot at came into the shop and ordered food after
Anderson, Cooper, and Jackson arrived, then the person that Anderson shot was not
necessarily Hazziez. The appellate court also did not mention this part of Cooper’s
grand jury testimony, even though it did credit the “another guy” portion of that
testimony. See Anderson II at 3.
Also muddying the waters: the appellate court did also mention Jackson’s
testimony in support of this point, but without identifying which part of the testimony
it was relying on. According to Jackson, when he walked into the shop with Cooper
and Anderson that night, Hart was speaking with another man. Trial Tr. at 122:2-5.
Jackson, however, does not remember whether the man speaking with Hart ever left
the sub shop that night. Id. at 122:2-9. And then after the drug deal (which Jackson
21
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 22 of 33 PageID #:1073
testified happened outside the shop, not inside, as Hazziez claims, id. at 120:18-20),
“there was a lot of arguing, everybody.” Id. at 121:15-16. Jackson specified that
“everybody” included Hart “and all his friends.” Id. at 121:17-19. To be fair, it is
entirely possible that the other man speaking with Hart inside the store in Jackson’s
testimony could have simply been Hazziez, as opposed to a third person, but the fact
that Jackson did not see that person leave the shop supports an inference that Hart
was in fact talking to a third person when the group arrived. Moreover, the reference
to Hart “and all his friends,” plural, again suggests that there were other bystanders
in the shop besides just Hazziez.
Given the inconsistencies between the testimonies of Hazziez, Jackson, and
Cooper about who was in the sub shop and who walked out of the sub shop, the
evidence is—at the very least—closely balanced as to the identity of the victim of the
aggravated discharge of a firearm. Indeed, the appellate court that heard Anderson’s
first direct appeal in 2012 held that the evidence was closely balanced as to whether
Anderson shot at Hazziez at all, for purposes of overturning the attempted murder
charge. Anderson I at 11. It is also worth noting that the lone dissenter to the 2012
decision went even further than the majority by recognizing that were other patrons
in the sub shop that night and that the State’s evidence against Anderson for the
attempted murder of Hazziez was “woefully inadequate.” Id. at 12. So, whether
Anderson even fired at Hazziez is a close call.
22
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 23 of 33 PageID #:1074
2. Inference that Anderson Shot at Hazziez in Car
Even if it was reasonable to infer that Anderson did shoot at Hazziez, the
aggravated-discharge conviction cannot stand unless Anderson shot at Hazziez while
he was in his car. On this point, the most direct evidence is Hazziez’s testimony that
Anderson fired shots while Hazziez was driving away from the scene. See Anderson
II at 4. But Hazziez could not specify the direction in which Anderson fired his gun,
nor was his car struck with any bullets (though that is not dispositive, of course). Id.
To understand this inference, it is useful to briefly walk through a timeline of
the gunshots. At most, Anderson fired five bullets. As the 2012 Illinois Appellate
Court recounted, forensic experts found five cartridge cases at the scene. Anderson I
at 4. Hazziez testified that he saw Anderson shoot Hart and then heard Anderson fire
three more shots. Id. at 2. Cooper, in his written statement, testified that Anderson
initially fired one shot at Hart, and after Hart fell, Anderson fired two more shots at
Hart. Id. at 3. After those three shots, Anderson then fired two more shots at “another
man.” Id. As for Jackson, he testified that he heard a total of three or four shots but
did not see anything because he was inside the store at the time. Id. at 4. Later,
forensic experts found the five cartridge cases, and the parties stipulated that Hart
had suffered from “multiple gunshot wounds.” Id.
On that evidence, it is relatively clear that the first shot was directed at Hart.
It is also relatively clear that at least a second shot (if not more) was also directed at
Hart. That just leaves, at the most, two or three final shots that Anderson fired at
another person. The appellate court relied on Hazziez’s testimony that, after the
23
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 24 of 33 PageID #:1075
initial shots directed at Hart, but before Anderson fired three more shots, Hazziez
fled in his car. Anderson II at 5. According to the appellate court, this testimony
matched up with Cooper’s written statement, in which he identified the second
shooting victim as someone who had been in the sub shop earlier and was standing
outside at the time Anderson shot Hart. Id. Moreover, the appellate court pointed to
the fact that there were only two cars parked outside the sub shop at the time:
Hazziez’s car and Cooper’s car. Id. Because there was no basis to believe that
Anderson shot at Cooper’s car, the only reasonable inference, according to the
appellate court, was that Anderson fired the remaining shots at Hazziez’s car as he
was driving away. Id.
But all of that still assumes that Anderson shot at the second person while that
person was in a car. And the problem with that assumption is that Cooper’s grand
jury testimony actually contradicts the inference that Anderson fired at the second
person while that person was driving away. Specifically, Cooper stated that after
Anderson shot Hart, Anderson turned and shot a different person “twice.” Trial Tr.
at 96:8-17. In response, that other person “jumped into his car and rode off.” Id. at
96:18-21. Taken together, Cooper’s written statement and grand jury testimony
strongly suggest that Anderson shot at another person while that person was
standing outside the shop—not while the person was driving away in his car. Only
after Anderson fired shots at the person did he jump into his car and drive off. On top
of that, Hazziez only testified to hearing shots while he was driving away. It is thus
entirely possible that what Hazziez heard was Anderson shooting at a third person
24
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 25 of 33 PageID #:1076
before that person got into a car and drove off. The appellate court did not address
this part of Cooper’s grand jury testimony either.
In short, the conclusion that Anderson shot in the direction of Hazziez’s
occupied car rests on two inferences: Anderson both had to shoot at Hazziez and had
to shoot at Hazziez while he was inside his car. If either of those inferences is
undermined, then the conviction cannot stand. As the foregoing analysis has shown,
the evidence on both of those inferences is closely balanced. Having said that, the
Court recognizes that the inference that Anderson generally shot at Hazziez is
probably reasonable. Even if it is ultimately true that there were other people in the
shop besides Hazziez who could have been the other target of Anderson’s shots, a
rational jury could still have reasonably inferred that, among those choices, Anderson
shot at Hazziez, given that Hazziez did fit Cooper’s description of “another guy who
had been in the sub shop earlier” and walked outside later. See Anderson II at 3.
The second inference, however, is weaker. Really, the only basis for the jury’s
conclusion that Anderson shot at Hazziez’s car is the initial inference that Anderson
shot at Hazziez, and then because Hazziez heard shots as he was driving away, then
those shots must have been aimed at Hazziez’s car. But that does not gel with
Cooper’s grand jury statement, which suggested that Anderson shot at a person before
that person jumped into their car. Perhaps in overcoming these inconsistencies, the
appellate court reasoned that a rational jury could have relied on a piecemeal
interpretation of the testimonies of Cooper, Jackson, and Hazziez—that is, the jury
is allowed to pick and choose which parts of which testimonies it chooses to believe,
25
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 26 of 33 PageID #:1077
and it could very well be the case that the jury simply chose to discount Cooper’s
grand jury testimony about Anderson shooting at the person before they got into their
car, while simultaneously choosing to credit other parts of that same testimony by
Cooper. After all, the events were chaotic and variation in eyewitness testimony is
not surprising.
In any event, given the deferential double-layered standard of habeas review,
it was not objectively unreasonable for the appellate court to conclude that any
rational factfinder could have decided that Anderson shot at Hazziez while Hazziez
was driving away in his car. So this claim is denied, but the Court will issue a
certificate of appealability on it.
C. Misstatement of Evidence
Relatedly, Anderson argues that the aggravated-discharge conviction should
be overturned because the prosecutor misstated the evidence during closing
arguments. Habeas Pet. at 5. Specifically, as outlined in the appellate court’s
decision, Anderson took issue with the prosecutor’s statement to the jury that “Cooper
testified that he saw defendant shoot in the direction of Hazziez’s vehicle.” Anderson
II at 5. In reality, Cooper only testified that Anderson shot at “another guy,” without
ever specifying that the other guy was Hazziez. Id. So in essence, the prosecutor,
instead of carefully walking through the evidence and explaining each link in the
chain of reasoning necessary to establish the inference that the “other guy” Anderson
targeted could have been Hazziez, simply told the jury that Cooper said that
Anderson shot at Hazziez’s car. It is easy to see how the jury might have taken that
26
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 27 of 33 PageID #:1078
statement to mean that Cooper, as a factual matter, said the words: “Anderson shot
at Hazziez’s car.”
Ultimately, though, the appellate court refused to decide the merits of the issue
because Anderson failed to contemporaneously object or raise the issue in postconviction, in accordance with Illinois law. Anderson II at 5. This means that, on
habeas review, Anderson procedurally defaulted the claim because he failed to comply
with an independent and adequate state procedural rule. Kaczmarek, 627 F.3d at
591. Even though the appellate court engaged in a plain-error analysis (and held that
there was no plain error), undertaking that analysis does not obviate the procedural
default for purposes of habeas review. Miranda, 394 F.3d at 992.
This Court might have been able to review the issue on its merits had Anderson
successfully raised a claim of ineffective assistance of counsel in his federal habeas
petition. Exh. L at 2. See also Gray, 598 F.3d 324, 330 (7th Cir. 2010). But he did not.
So, this claim is procedurally defaulted.
D. Ineffective Assistance of Counsel
Finally, Anderson brings an ineffective assistance of counsel claim on the basis
that his trial counsel erred by (1) stipulating to the gunshot-residue evidence; (2)
failing to properly advise Anderson about his right to testify; and (3) neglecting to
interview witnesses. Habeas Pet. at 7-8. The relevant state court decision here is the
Illinois Appellate Court’s 2017 opinion rejecting Anderson’s post-conviction petition.
See Anderson III.
27
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 28 of 33 PageID #:1079
Claims of ineffective assistance of counsel are governed by the two-part test
set out in Strickland v. Washington, 466 U.S. 668, 674 (1984). First, Anderson must
show that his trial counsel provided constitutionally deficient performance, meaning
the attorney’s errors were so significant that he or she “was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. In assessing
a lawyer’s performance, courts are expected to “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Id. at 689. Then, Anderson must show that his attorney’s performance prejudiced his
defense—meaning that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at
694. The Court need not consider both elements if the petitioner fails to show
prejudice. Felton v. Bartow, 926 F.3d 451, 463-64 (7th Cir. 2019).
And as always, under AEDPA, this Court’s decision must be doubly deferential
because “[t]he question is not whether [we believe] the state court’s determination
under the Strickland standard was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S.
111, 129 (2009) (cleaned up). Under this framework, Anderson has failed to make an
ineffective assistance of counsel claim.
1. Gunshot Stipulation
First, Anderson argues that his trial counsel was ineffective for agreeing to
stipulate to the gunshot residue evidence without Anderson’s consent. Habeas Pet. at
6. Specifically, Anderson asserts that his lawyer’s decision was unreasonable because
28
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 29 of 33 PageID #:1080
the gunshot-residue evidence was highly favorable to Anderson, so his lawyer should
have explained to the jury why the evidence was so favorable to the defense instead
of simply stipulating to it. Id.
In rejecting this claim, the Illinois Appellate Court applied Strickland and
reasoned that Anderson had not been prejudiced by the stipulation because his
defense counsel was still able to argue to the jury the value of the gunshot residue in
Anderson’s defense. Anderson III at 8. Specifically, Anderson’s lawyer explained to
the jury that the stipulated gunshot evidence showed that Anderson was not in the
vicinity of a gun when it was fired. Id. According to the appellate court, because the
jury was able to hear this favorable evidence, in addition to other evidence in support
of the defense, Anderson could not satisfy the prejudice prong of Strickland. Id.
On habeas review, the question is not whether the appellate court was
incorrect, but rather whether the court was objectively unreasonable in rejecting
Anderson’s ineffective-assistance claim. Here, the appellate court fully explained why
Anderson was not prejudiced by his lawyer’s decision to stipulate to the gunshotresidue evidence. Not only that, but the appellate court found that the jury was able
to hear the value of the evidence despite the stipulation. There was nothing
objectively unreasonable about the appellate court’s decision, so Anderson’s
ineffective-counsel claim must be denied.
2. Right to Testify
Same with Anderson’s next ineffective-assistance claim, in which he claims
that his trial counsel failed to visit him in jail, did not keep him informed of the
29
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 30 of 33 PageID #:1081
evidence against him, failed to advise him on his right to testify at trial, and coached
him to incorrectly answer the trial court’s questions about whether his decision not
to testify was truly his own choice. Habeas Pet. at 6.
As the Illinois Appellate Court interpreted it, what Anderson was really
claiming here was that his lawyer’s general “failure to communicate with him” caused
him to make the “uninformed decision not to testify.” Anderson III at 6. But again,
the appellate court reasoned that Anderson had not been prejudiced under Strickland
because he failed to allege how additional pretrial communication would have altered
the outcome of the case. Id. Specifically, the appellate court referred back to its own
2012 ruling in Anderson’s first direct appeal, in which the court had found that “the
evidence in this case was not close.” Id. Given the “substantial evidence” against
Anderson, the appellate court concluded that his counsel’s failure to communicate
alone would not have been enough to change the outcome of the case. Id. at 7.
Once again, whether or not this Court agrees with the appellate court’s
reasoning is not at issue. All that matters is that there is nothing in the record to
suggest that the appellate court was unreasonable in its determination that
Anderson’s post-conviction petition failed to plausibly meet the second element of
Strickland. So, this ineffective-assistance claim is also denied.
3. Neglecting to Interview Witnesses
Finally, Anderson argues that his trial counsel should have interviewed Cooper
and Jackson. Habeas Pet. at 7. The argument here is that Cooper at some point
admitted to Anderson and Jackson that it was Cooper who actually shot and killed
30
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 31 of 33 PageID #:1082
Hart. Anderson III at 7. If Anderson’s lawyer had interviewed Cooper or Jackson,
then that information could have been used to support Anderson’s defense. Id.
The problem is that Anderson never submitted any affidavits from Cooper or
Jackson in support of this claim. Anderson III at 7. And unfortunately for Anderson,
Illinois law dictates that a post-conviction petition must be supported by “factual
documentation” or an explanation for why that documentation could not be obtained.
Id. (citing 725 ILCS 5/122–2). Granted, with regards to Cooper’s missing affidavit, it
makes intuitive sense why Cooper would not want to sign an affidavit admitting that
he is guilty of murder. But that excuse does not extend to Jackson, and Anderson
provided no explanation in his post-conviction petition as to why he could not get an
affidavit from Jackson. So the Illinois Appellate Court denied this claim on an
independent and adequate procedural ground. Id. at 7. And as explained above, a
habeas claim is procedurally defaulted where a state court refuses to reach the merits
of a petitioner’s claim based on an independent and adequate state-based procedural
ground. Kaczmarek, 627 F.3d at 591. Indeed, the Seventh Circuit has specifically
noted that a habeas claim is procedurally defaulted when a state court denies a
petitioner’s claim due to a failure to submit affidavits of potential witness testimony
in accordance with Illinois law. Thompkins v. Pfister, 698 F.3d 976, 986 (7th Cir.
2012). Anderson’s final ineffective counsel claim has been procedurally defaulted, and
he does not make any argument on cause and prejudice, so this claim is denied.
31
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 32 of 33 PageID #:1083
IV. Conclusion
Anderson’s habeas petition is denied. If Anderson wishes to appeal this denial
of his habeas petition, then he must first obtain a certificate of appealability. Under
28 U.S.C. § 2253, “an appeal may not be taken to the court of appeals from the final
order in a habeas corpus proceeding in which the detention complained of arises out
of process issued by a State court” unless the circuit justice or judge first issues the
certificate. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability may issue only
when “the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, a petitioner must show
that “reasonable jurists could debate whether … the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(cleaned up).
Here, as explained above, the insufficient-evidence claim on the aggravated
discharge conviction is a close-enough question to warrant a certificate. Under Rule
11(a) of the Rules Governing § 2254 Cases, a certificate of appealability shall
accordingly issue for Anderson’s insufficient-evidence claim as to the conviction for
aggravated discharge of a firearm. A certificate of appealability is denied for the other
claims in light of the procedural defaults and the significant deference owed to the
Illinois Appellate Court.
32
Case: 1:17-cv-08350 Document #: 33 Filed: 09/03/20 Page 33 of 33 PageID #:1084
The tracking status hearing of September 18, 2020 is vacated.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: September 3, 2020
33
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?