Galloway v. Lashbrook et al

Filing 78

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 9/1/2023. Mailed notice(air, )

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Terrence Galloway, (R22244),
Petitioner,
v.
Jacqueline Lashbrook, Warden,
Menard Correctional Center,1
Respondent.

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Case No. 18 C 2723
Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
Petitioner Terrence Galloway, an inmate at the Pinckneyville Correctional Center, brings
this pro se habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his first degree murder,
attempted first degree murder, and aggravated battery with a firearm convictions from the Circuit
Court of Cook County. The Court denies the petition on the merits and declines to issue a certificate
of appealability.
I.

Background
The Court draws the following factual history from the state court record (Dkt. 65, 73-1)

and state appellate court opinion, Illinois v. Galloway, 2014 IL App (1st) 122942-U (“Direct
Appeal”). State court factual findings, including facts set forth in a state court appellate opinion,
have a presumption of correctness, and Petitioner has the burden of rebutting the presumption by
clear and convincing evidence. 28 U.S.C § 2254(e)(1); Tharpe v. Sellers, 138 S. Ct. 545, 546

1

Petitioner is now located at the Pinckneyville Correctional Center in the custody of
Warden David Mitchell. The Court substitutes Warden Mitchell in place of the named Respondent
Warden Lashbrook. See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (explaining proper
Respondent in habeas corpus case is prisoner’s immediate custodian such as his warden); Fed. R.
Civ. 25(d) (allowing for automatic substitution of public official named in official capacity).

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(2018); Hartsfield v. Dorethy, 949 F.3d 307, 309 n.1 (7th Cir. 2020) (citations omitted). Petitioner
has not made such a showing.
The victim, Stacy Adams, was shot and killed on the evening of October 9, 2009, while
standing in the 700 block of North Harding Avenue in Chicago’s Garfield Park neighborhood.
Direct Appeal, 2014 IL App (1st) 122942-U, ¶ 4. He was with Randall Knox and David Etheridge
immediately before the shooting. Id. at ¶ 16. Both Knox and Etheridge, who was also shot but
survived the incident testified for the prosecution at trial. Id. at ¶¶ 16, 19.
Both men related that at approximately 8:30 p.m. on the evening of the murder, they were
hanging out with the victim when two men approached their group. Id. They recognized one of the
approaching individuals as a man named “Q,” but they did not know the second person. Id. Both
Knox and Etheridge subsequently identified Petitioner as the second man with Q. Id. Knox
identified Petitioner via a subsequent police photo array and during his in-court testimony at trial,
id. at ¶ 16, while Etheridge identified Petitioner in both a police lineup and his in-court trial
testimony. Id. at ¶ 20; (Dkt. 65-14, pg. 104.).
Knox and Etheridge explained that Petitioner was wearing a hooded sweatshirt and had his
hands in his pockets as he and Q approached. Direct Appeal, 2014 IL App (1st) 122942-U, ¶¶ 16,
19. Seeing the oncoming men, Knox began retreating and was standing in the street about twelve
feet away when Petitioner and Q confronted the victim and Etheridge. Id. at ¶ 16. He saw Petitioner
pull out a gun. Id. At this point, Knox turned and ran. Id. Knox estimated he was 20 steps away
from the group when he heard gunshots. Id. He stopped running when he reached the parking lot
at Orr High School approximately one block from the shooting. Id. Knox witnessed the police
arrest Petitioner outside the high school immediately after the shooting. Id.
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Knox conceded at trial that he did not immediately speak to the police about the shooting,
and did so only after he was arrested on an unrelated matter a month later. Id. at ¶ 17. He was on
probation for a narcotics conviction at the time of the arrest, and those charges were later dropped.
Id.
As for Etheridge, he testified that he remained standing next to the victim as Petitioner and
Q approached. (Dkt. 65-14, pgs. 100.) Petitioner and Q were approximately three feet from
Etheridge and the victim when Petitioner said “what’s up” to the victim. Id. at 99. The victim did
not respond, but Etheridge testified that he said, “nigger, what’s up” to Petitioner and Q. Id. at 100.
Etheridge witnessed Petitioner pull out a gun and saw a flash as the gun was discharged. Direct
Appeal, 2014 IL App (1st) 122942-U, ¶ 19. He fled and eventually realized he had been shot in
the shoulder. Id. at 20.
Etheridge ran home and was taken to the hospital by ambulance. Id. He lied to the
paramedics about the circumstances of his injury. Id. When the police interviewed Etheridge at the
hospital, however, they told him that the victim had been killed, prompting Etheridge to tell the
police about the shooting. Id. He explained that he initially lied because he was frightened and did
not know if anyone else was injured. Id. After receiving treatment for his injuries, Etheridge went
to the police station where he explained what happened and identified Petitioner in a lineup as the
shooter. Id.
In terms of impeaching Etheridge, the jury heard that the Cook County State’s Attorney
paid for his meals and hotel room on the weekend prior to his court testimony. Id. at ¶ 22. He also
acknowledged that he had a pending DUI felony case at the time of his testimony, and that he had
two prior felony convictions. Id. The defense also brought out that Etheridge had testified before
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the grand jury that he had gone to a liquor store alone prior to the shooting, but at trial he said
others had gone with him. Id. His grand jury testimony also implied that he may have started
running before any shots were fired, but he stated unequivocally at trial that he was shot and then
he ran. Id.
A third eyewitness, Xavier Miller, also testified for the prosecution. Id. at ¶ 18. Miller’s
mother had been the victim’s foster mother and the two men had known each other for seven or
eight years before the shooting. Id. Miller was at a friend’s home on the block where the shooting
occurred that evening. Id. He was standing at a third-floor window overlooking the street when he
heard a commotion and voices getting louder on the street. Id. Miller then heard three gunshots.
Id. He witnessed three men then run off, two going south and the other going north on the street.
Id. Miller did not see the faces of the men running or a gun, but he did see the victim fall to the
street. Id. He went down the home’s stairs but did not move quickly due to a gunshot wound to his
foot from a prior unrelated incident. Id. Upon exiting the building, Miller saw Petitioner wearing
a black hooded sweatshirt running through a vacant lot towards Orr High School with a black
object in his hand. Id. Miller also saw Petitioner in the back of a police car later that evening. Id.
He both identified Petitioner in a police station lineup and during his in-court testimony. Id.; (Dkt.
65-14, pg. 77.) Miller conceded during his testimony that he had five prior felony convictions.
Direct Appeal, 2014 IL App (1st) 122942-U, ¶ 18.
At the time of the shooting, Chicago police officers Bottom, O’Brien, and Stanula were
conducting an unrelated traffic stop one block away from the location of the shooting. Id. at ¶¶ 6,
23. Officers O’Brien and Stanula testified regarding their arrest of Petitioner. Id. at ¶¶ 7-9, 23. The
officers explained they heard three loud gunshots and Officers O’Brien and Stanula got into their
4

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squad car and headed in the direction of the shots. When they saw two men in hooded sweatshirts
run by, Stanula jumped out of the car and followed them on foot. Dkt. 65-15 at 8-10; Direct Appeal
at ¶¶ 7, 9, 23. O’Brien continued in the direction of the shots and saw Petitioner, wearing black
jeans and a black hooded sweatshirt, running out of an alley. Direct Appeal at ¶¶ 7, 23. Petitioner
got into the driver’s seat of a parked minivan, and Officer O’Brien responded by pulling his marked
police car “nose to nose” with the van. Id. Officer O’Brien was able to look directly into the
minivan and observed that Petitioner had a goatee. Id. O’Brien got out of the squad car with his
weapon drawn, identifying himself as a police officer and instructing Petitioner to show his hands.
Id. Petitioner then jumped out of the van and fled on foot. Id. Officer O’Brien gave chase and sent
a radio flash message describing Petitioner’s appearance. Id. He believed Petitioner was armed as
he clasped the right side of his waist as he ran. Id.
Upon hearing the flash message, Officer Stanula terminated his pursuit and went to assist
Officer O’Brien. Id. at ¶¶ 9, 23. Officer Stanula came upon Officer O’Brien, who had lost track of
Petitioner and informed Officer Stanula of the direction of Petitioner’s flight. Id. Officer Stanula
came upon Petitioner walking on the street. Id. He stated “stop, police,” to which Petitioner began
fleeing through an empty lot. Id. Officer Stanula gave chase again. Id. While Officer Stanula was
approximately 10 to 15 feet behind Petitioner during the chase, Petitioner took a firearm from his
waistband and threw the gun up over a fence as he continued to run. Id. Officer Stanula eventually
caught up to Petitioner outside of Orr High School and arrested him. Id. Petitioner had thrown the
gun over a locked fence at a ComEd power facility. Id. at ¶ 23. Other police officers were
eventually able to access the facility and recovered the gun. Id.

5

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Subsequent forensic testing matched bullet fragments taken from the victim’s body during
an autopsy to the firearm recovered at the ComEd facility. Id. at ¶ 26. Gunshot residue was found
on the right cuff of Petitioner’s sweatshirt, but no residue was found on Petitioner’s hands. Id. An
expert explained that residue can be removed from a person’s hands via activity. Id. A small
amount of DNA was located on the recovered firearm. Id. at ¶ 25. The DNA contained samples
from at least two, and potentially up to four, individuals. Id. at 26. The forensic scientist who
compared Petitioner’s DNA to the DNA on the gun testified that Petitioner’s DNA could not be
excluded from the DNA mixture on the gun. But, she also could not exclude one in every four
African Americans, one in every eight Caucasians, and one in every six Hispanics as a possible
DNA match. Id.
Upon completion of the trial, the jury found Petitioner guilty of the murder of Adams, the
attempted murder of Etheridge, and aggravated battery with a firearm. Id. at ¶ 27. Petitioner was
sentenced to 81 years of imprisonment. Id. His convictions and sentence were affirmed by the
Appellate Court of Illinois, id. at ¶ 60, the Supreme Court of Illinois denied his request for a
petition for leave to appeal (PLA), Illinois v. Galloway, No. 118092, 20 N.E.3d 1258 (Ill. Sept. 24,
2014) (Table), and the United States Supreme Court denied his petition for a writ of certiorari,
Galloway v. Illinois, No. 14-7960, 575 U.S. 1556 (Mar. 23, 2015) (Memo.), completing
Petitioner’s direct appeal.
Following the direct appeal, Petitioner brought a postconviction petition, (Dkt. 65-5.)
which was denied by the state trial court. (Dkt. 65-6.) The state appellate court granted Petitioner’s
appointed appellate counsel’s motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S.
551 (1987), and affirmed the denial of the postconviction petition. Illinois v. Galloway, 2017 IL
6

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App (1st) 153142-U; (Dkt. 65-2.) The Supreme Court of Illinois denied Petitioner’s PLA,
completing the proceedings on his first postconviction petition. Illinois v. Galloway, No. 124032
(Ill. Nov. 28, 2018) (Dkt. 65-8, pg. 31.) Petitioner then sought leave to bring a successive state
postconviction petition, but that request was denied. Illinois v. Galloway, 2019 IL App (1st)
161592-U, ¶ 23. The appellate court affirmed the denial, id. at ¶ 43, and the Supreme Court of
Illinois denied his PLA. Illinois v. Galloway, No. 126919, 167 N.E.3d 638 (Ill. Mar. 24, 2021)
(Table). Petitioner now brings this habeas corpus petition before this Court. (Dkt. 1.)2
II.

Analysis
Petitioner advances six grounds for relief in his habeas corpus petition: (1) insufficient

evidence to support his conviction; (2) the state court erred by failing to grant his motion to
suppress the lineup identifications; (3) ineffective assistance of trial counsel; (4) ineffective

2

Petitioner filed the instant habeas corpus petition when his first postconviction appeal
was still pending in the state courts. (Dkt. 1.) The Court granted Petitioner a stay of this case so
that he could complete his state court proceedings. (Dkt. 17.) Over Petitioner’s objection, the Court
lifted the stay following the completion of Petitioner’s successive postconviction proceedings.
(Dkt. 44, 50, 55.) Although Petitioner continued to attempt to bring additional successive
postconviction petitions and also filed requests for forensic testing before the state court, this Court
saw no reason to reinstate the stay in this case. Id. The purpose of a stay is to allow a prisoner to
exhaust his available state court remedies without concern that his habeas corpus petition would
inadvertently become untimely if the case is dismissed without prejudice for failure to exhaust
available state court remedies. Rhines v. Weber, 544 U.S. 269, 276-77 (2005). An available state
court remedy is one that is through which a prisoner can raise a claim before the state courts under
state law. 28 U.S.C. § 2254(c); Carey v. Saffold, 536 U.S. 214, 220 (2002). As a general principle,
a prisoner may raise claims to the Illinois courts through direct appeal and a postconviction
petition. A prisoner cannot bring a successive postconviction petition in Illinois without leave of
court. 725 ILCS 5/122-1(f). The Illinois courts rejected his efforts to bring a successive
postconviction petition. Illinois v. Galloway, 2019 IL App (1st) 161592-U, ¶ 43. Further, a motion
for forensic testing under Illinois law only allows a prisoner to obtain testing of evidence, it does
not allow him to raise a corresponding claim. Price v. Pierce, 617 F.3d 947, 952-53 (7th Cir. 2010).
Equally, the claims raised in the instant habeas corpus petition were adjudicated on either direct
appeal or first postconviction proceeding. There is, therefore, no reason to delay the resolution of
the habeas corpus petition.
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assistance of post-trial counsel; (5) ineffective assistance of appellate counsel; and (6) the state
court erred in imposing Petitioner’s sentence. (Dkt. 1, pgs. 5-6.)
A.

Claim One: Sufficiency of the Evidence

Turning to Petitioner’s first claim challenging the sufficiency of the evidence supporting
his conviction, the last reasoned state court decision addressing the claim on the merits was the
direct appeal before the state appellate court, Direct Appeal, 2014 IL App (1st) 122942-U, ¶¶ 4352, making it the relevant decision for the Court’s review. See Harris v. Thompson, 698 F.3d 609,
623 (7th Cir. 2012) (citing Green v. Fisher, 565 U.S. 34, 40 (2011); Garth v. Davis, 470 F.3d 702,
710 (7th Cir. 2006)). As the state court adjudicated Petitioner’s claim on the merits, the Court
applies the deferential standard set forth by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). Greene, 565 U.S. at 35.
Under the 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 facts. 28 U.S.C. § 2254(d). “The AEDPA’s standard
is intentionally ‘difficult for Petitioner to meet.’” Woods v. Donald, 575 U.S. 312, 316 (2015) (per
curiam) (quoting White v. Woodall, 572 U.S. 415, 419 (2014); Metrish v. Lancaster, 569 U.S. 351,
358 (2013)). This “‘highly deferential standard [] demands that state-court decisions be given the
benefit of the doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Woodford v.
Visciotti, 537 U.S. 19, 24 (2002)).
The Court applies a “twice-deferential standard” in reviewing the state court’s ruling on
the sufficiency of the evidence claim. Parker v. Matthews, 567 U.S. 37, 43 (2012) (per curiam).
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First, the Court must be deferential to the verdict. “‘[I]t is the responsibility of the [finder of fact]
to decide what conclusions should be drawn from evidence admitted at trial.’” Parker, 567 U.S. at
43 (quoting Cavazos v. Smith, 565 U.S. 1, 2 (per curiam)). With this in mind, “[t]he evidence is
sufficient to support a conviction whenever, ‘after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Parker, 565 U.S. at 7 (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)) (emphasis in original). Additionally, the Court must accord an additional level of
deference required by § 2254(d) under the AEDPA. Parker, 567 U.S. at 43 (citing Cavazos, 565
U.S. at 2).
The state appellate court’s rejection of Petitioner’s sufficiency of the evidence claim was
neither contrary to, nor an unreasonable application of, clearly established federal law from the
Supreme Court of the United States. The state court ruling is not contrary to controlling Supreme
Court precedent as the state court identified the correct legal standard. See Kamlager v. Pollard,
715 F.3d 1010, 1015 (7th Cir. 2013) (citations omitted) (“A state court decision is ‘contrary to’
federal law if it applies the wrong legal standard established by Supreme Court precedent or
decides a case differently than the Supreme Court on materially indistinguishable facts.”); Direct
Appeal, 2014 IL App (1st) 122942-U, ¶¶ 45 (quoting Illinois v. Evans, 808 N.E.2d 939, 947 (Ill.
2004)) (“[W]e ‘must determine whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’”). That the state court quoted a Supreme Court of Illinois case for the
relevant standard is of no moment because the state court is not required to cite to, or even be
aware of, the controlling Supreme Court of the United States precedent as long as the state court
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judgment does not contradict the controlling Supreme Court case law. Early v. Packer, 537 U.S.
3, 8 (2002) (per curiam).3
Petitioner also cannot demonstrate the state court decision is an unreasonable application
of clearly established federal law. Kamlager, 715 F.3d at 1015-16 (“[A] state court decision
involves an ‘unreasonable application of’ federal law if the state court correctly identifies the
governing legal principle but unreasonably applies it to the facts of the particular case.”) (internal
quotation marks and citations omitted).
When viewing the evidence in the light most favorable to the prosecution as required by
the sufficiency of the evidence standard, Jackson, 443 U.S. at 319, there is extensive evidence
supporting Petitioner’s conviction. Both Knox and Etheridge identified Petitioner as the shooter.
Direct Appeal, 2014 IL App (1st) 122942-U, ¶¶ 16, 19. They testified that they were standing with
the victim as Petitioner and Q approached and witnessed Petitioner holding a gun. Id. Etheridge
saw Petitioner fire the gun while Knox heard the gun fired as he fled. Id. Miller saw Petitioner
running from the scene immediately after the shooting holding an object in his hand. Id. at ¶ 18.
Chicago police officers O’Brien and Stanula saw and encountered Petitioner moments after
the shots were fired. After O’Brien blocked Petitioner from driving his minivan away from the
scene, Petitioner ignored his commands and fled on foot. As Stanula gave chase, Petitioner threw

3

The case cited to by the state court, Illinois v. Evans, 808 N.E.2d 939, 947 (Ill. 2004), in
turn, cites to Illinois v. Young, 538 N.E.2d 461 (Ill. 1989). Young cites the controlling Supreme
Court standard from Jackson v. Virginia, 443 U.S. 307 (1979)). 538 N.E.2d at 472-73. There is no
question that the state court in this case arrived at the controlling federal law from Jackson.
Moreover, it was the Illinois court’s prerogative to cite to Illinois cases, instead of the Jackson
case, in its opinion on Petitioner’s claim. See Johnson v. Williams, 568 U.S. 289, 300 (citing
Coleman v. Thompson, 501 U.S. 722, 739 (1991)) (“[F]ederal courts have no authority to impose
mandatory opinion-writing standards on state courts.”).
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a gun over the fence at the ComEd facility. Id. at ¶¶ 9, 23. The recovered gun was matched to
bullet fragments recovered from the victim’s body identifying it as the murder weapon. Id. at ¶ 26.
There was also gunshot residue on Petitioner’s sweatshirt (although not on his hands). Id. at ¶ 25.
In sum, there is sufficient evidence to support Petitioner’s conviction. The state court’s rejection
of his sufficiency of the evidence argument was neither contrary to, nor an unreasonable
application of, clearly established federal law.
Despite the abundant evidence of his guilt, Petitioner argues that the evidence is
insufficient because: (1) Knox did not see the shooting but instead heard it as he fled; (2) Etheridge
lied to paramedics about his injury and a portion of his trial testimony was inconsistent compared
to his grand jury testimony; (3) Miller never witnessed Petitioner shoot the victim; (4) the police
officers are lying; and (5) there was no gunshot residue found on his hands and there is no DNA
evidence connecting him to the gun. (Dkt. 77, pgs. 7-10.) Petitioner’s arguments, however, are an
impermissible effort at rearguing the evidence. As mentioned, the evidence is viewed in the light
most favorable to the prosecution. Parker, 565 U.S. at 7; Jackson, 443 U.S. at 319. It is not the
Court’s place to reweigh evidence or resolve conflicts in witness testimony. Jackson, 443 U.S. at
319. The evidence is sufficient to support Petitioner’s conviction, and the state court’s rejection of
this claim is neither contrary to, nor an unreasonable application, of Jackson.
In any event, Petitioner’s arguments do not hold water. Knox saw Petitioner approach the
victim and draw a gun. Knox then heard shooting as he ran, and the victim was later found dead
from a gunshot. This is circumstantial evidence supporting Petitioner’s guilt, and circumstantial
evidence is proper evidence under Jackson. 443 U.S. at 324-25 (explaining that circumstantial
evidence in record was sufficient to support guilty verdict). Moreover, Etheridge testified that
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Petitioner was the shooter, and “[t]estimony of a single eyewitness suffices for conviction even if
20 bishops testify that the eyewitness is a liar.”. Jones v. Butler, 778 F.3d 575, 582 (7th Cir. 2015)
(quoting Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005)). Moreover, the police officers
corroborated that testimony by establishing that Petitioner fled from the scene, attempted to elude
the police, and tossed a gun that was later identified through forensic analysis as the murder
weapon. The forensic evidence was further buttressed by the presence of gunshot residue on
Petitioner’s sweatshirt; the absence of residue on his hands is of no moment in view of the expert
testimony reporting that firearm residue on the hands can be removed by activity. As for the DNA
evidence, its value was not in affirmatively linking Petitioner to the gun but rather in establishing
that Petitioner could not be excluded as one of the two to four individuals whose DNA was found
on the gun. The state court’s rejection of Petitioner’s sufficiency of the evidence argument was
correct. Consequently, Petitioner cannot demonstrate that the state court ruling was contrary to, or
an unreasonable application of, clearly established federal law. Claim One is denied.4

4

Petitioner references his actual innocence argument raised in his state successive
postconviction petition in his sufficiency of the evidence challenge asserted in Claim One. (Dkt.
1, pg. 5 (citing Exh. C.)) His reply in support of the habeas corpus petition also faults Respondent’s
answer for failing to address his actual innocence argument within the context of the sufficiency
of the evidence claim. (Dkt. 77, pg. 10.) Sufficiency of the evidence and actual innocence,
however, are two distinct claims, see Jones v. Calloway, 842 F.3d 454, 461-62 (7th Cir. 2016)
(quoting Hayes v. Battaglia, 403 F.3d 935, 940 (7th Cir. 2005) (Flaum, J., concurring) (“Unlike a
review of the sufficiency of the evidence which focuses on whether a rational juror could have
convicted, a habeas court considering actual innocence determines whether rational jurors would
have convicted.”) (emphasis omitted). Petitioner has not raised an actual innocence claim in this
case, and he cannot backdoor the claim via a sufficiency of the evidence claim.
Even if the habeas corpus petition is construed as raising a freestanding actual innocence
claim in addition to the sufficiency claim, the Court would reject it as meritless. As mentioned,
Petitioner’s actual innocence claim was denied by the state court in the successive postconviction
proceeding, Galloway, 2019 IL App (1st) 161592-U, at ¶ 31, resulting in the AEDPA governing
the review of the claim in this Court. § 2254(d); Greene, 565 U.S. at 35. Whether there is a
cognizable freestanding actual innocence claim in a non-death penalty case is an open question
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B.

Claim Two: Challenge to State Court’s Denial of Petitioner’s Motion to
Suppress Miller’s Identification.

Petitioner challenges Xavier Miller’s identification of him in a police lineup on October
10, 2009, arguing it was the product of an unduly suggestive police procedure. He brought a

that the Supreme Court of the United States has not resolved. Cal v. Garnett, 991 F.3d 843, 85051 (7th Cir. 2021). That dooms the claim under § 2254(d), because the prisoner must show, among
other points, that the state court’s rejection of his claim violated clearly established federal law
from the Supreme Court that was in existence at the time of the relevant state court decision. Wright
v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam).
Moreover, even if the Court could reach the merits, Petitioner would lose. Actual innocence
is a demanding standard that requires the prisoner to present new reliable evidence that would
show that it is more likely than not that no reasonable juror would have found him guilty beyond
a reasonable doubt. Blackmon v. Williams, 823 F.3d 1088, 1101 (7th Cir. 2016). Petitioner
presented an affidavit from Anthony Ward claiming he was in a dice game on the evening of the
shooting when Etheridge got into a confrontation with a third man, Bernand Hopkins. Galloway,
2019 IL App (1st) 161592-U, at ¶ 24. According to Ward, Etheridge pulled out a gun that Hopkins
grabbed leading to a struggle between the two men. Id. The gun went off during the struggle and
Ward claims he ran from the scene. Id. Ward claims Petitioner was not present at this incident. Id.
As the state court recognized when rejecting Petitioner’s actual innocence argument, Ward’s
affidavit does not exculpate Petitioner from Adams’s murder. Id. at ¶¶ 40-41. Far from it, Ward
speaks to Petitioner’s alleged absence from a dice game and Etheridge’s purported confrontation
with Hopkins, but says nothing relevant to Adams’s murder. More fundamentally, the affidavit
does not contradict the multiple eyewitnesses including the police officers who chased after
Petitioner and recovered the murder weapon that he tossed during the pursuit.
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pretrial motion to suppress the identification that was denied by the state court following an
evidentiary hearing. Direct Appeal, 2014 IL App (1st) 122942-U, ¶ 12.
A picture from the lineup is below.

(Dkt. 73-1, pg. 10.)
Chicago Police Homicide Detective Gregory Jones, who, along with his partner, conducted
the lineup, testified at the pretrial suppression hearing. Direct Appeal, 2014 IL App (1st) 12294214

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U, ¶ 12. He testified that prior to the lineup, Miller reviewed and signed the Chicago police lineup
advisory form explaining that: (1) a suspect may or may not be in the lineup; (2) he was not
required to make an identification of an individual in the lineup; and (3) he should not assume that
the person administering the lineup knows which person is a suspect. Id. at ¶ 13; (Dkt. 73-1, pg.
11.)
Petitioner was one of four individuals in the lineup. According to Detective Jones, the four
men were sitting in chairs, and Petitioner, who was allowed to pick his seat, selected seat two.
Direct Appeal, 2014 IL App (1st) 122942-U, ¶ 12. Petitioner’s hair is braided backwards, he has a
goatee, he is wearing a white t-shirt, light colored sweatpants, and black gym shoes. (Dkt. 73-1,
pg. 10.)
The three other individuals in the lineup were drawn from the Chicago Police Department’s
11th District station’s lockup. Id. Jones’s testimony about the lineup participants is consistent with
the above picture in the record. Id.; (Dkt. 73-1, pg. 10.)
A review of the record shows that the lineup participants were each African American men.
(Dkt. 73-1, pg. 10.) The men have the same or substantially similar skin tone, hair color, eye color,
hair length, and facial hair. Id. The men appeared to be of similar age, height, and weight. Id. Any
height disparity is lessoned by the fact that they are sitting in chairs. Id.
There are, to be sure, differences between Petitioner and the other men in the lineup. The
other men each have short hair like Petitioner, but Petitioner is the only man with his hair braided.
Id. He is also the only man with light colored pants, while the other men are each wearing blue
jeans. Id. Petitioner is also the only man with black gym shoes. Id. Two of the other men appear
to have tan colored gym shoes while another man has on tan colored work boots. Id. Petitioner,
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and one other man, are wearing white t-shirts while one other man is wearing a gray colored long
sleeve shirt and the fourth man is wearing a black colored long sleeve shirt. Id. Finally, this fourth
man has some clothing or other items by his feet while the other three men do not. Id. Petitioner
and one other man in the lineup have goatees while the other two men have fuller beards. Id.
The trial court noticed many of these differences in its ruling but concluded that the lineup
was not unduly suggestive when denying Petitioner’s motion to suppress. Direct Appeal, 2014 IL
App (1st) 122942-U, ¶ 12. The state appellate court affirmed the denial on direct appeal, id. at
¶ 42, making it the relevant decision for the Court’s review. Harris, 698 F.3d at 623.
The Constitution’s Due Process Clause requires the suppression of an eyewitness
identification that is tainted by improper police procedures. Perry v. New Hampshire, 565 U.S.
228, 238 (2012) (citing Manson v. Brathwaite, 432 U.S. 98 (1977); Neil v. Biggers, 409 U.S. 188
(1972)); see also Sexton v. Beudreaux, 138 S. Ct. 2555 (2018). There is only a due process concern
when the police identification procedure is both “suggestive and unnecessary.” Perry, 565 U.S.
at 238 (citing Manson, 432 U.S. at 107, 109; Biggers, 409 U.S. at 198); see also Gregory-Bey v.
Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003) (citing Foster v. California, 394 U.S. 440, 442-43
(1969) (emphasis and quotation marks omitted) (“The danger to be avoided in identification
procedures is that of orchestrating the procedure so that one particular suspect stands out from the
others and the procedure implicitly suggests to the witness that this is the man.”).
Even when the police’s identification procedure is improperly suggestive and unnecessary,
there is no per se exclusionary rule requiring suppression of the identification. Perry, 565 U.S. at
239. Instead, the identification should only be suppressed when the corrupting effects of law
enforcement’s improper procedure outweigh the “‘indicators of a witness’ ability to make an
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accurate identification.’” Perry, 565 U.S. at 239 (quoting Brathwaite, 432 U.S. at 114); see United
States v. Griffin, 493 F.3d 856, 865 (7th Cir. 2007) (explaining this standard is a “two-step
approach” of first considering whether the procedures were unduly suggestive and, if so,
evaluating whether the identification was nevertheless reliable). “‘Reliability of the eyewitness
identification is the linchpin’ of the evaluation.” Perry, 565 U.S. at 239 (quoting Brathwaite, 432
U.S. at 114). Factors for the Court to consider when evaluating the “witness’ ‘ability to make an
accurate identification’” include: “‘the opportunity of the witness to view the criminal at the time
of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal,
the level of certainty demonstrated at the confrontation, and the time between the crime and the
confrontation.’” Perry, 565 U.S. at 239 n.5 (quoting Manson, 432 U.S. at 114). The Court must
engage in a “case-by-case basis” of considering whether the “improper police conduct created a
‘substantial likelihood of misidentification.’” Perry, 565 U.S. at 239 (quoting Biggers, 409 U.S. at
201). This is a “‘totality of the circumstances’” approach occurring on a “case-by-case basis”
evaluating

“whether

improper

police

conduct

created

a

‘substantial

likelihood

of

misidentification.’” Perry, 565 U.S. at 239 (quoting Brathwaite, 432 U.S. at 110; Biggers, 409 U.S
at 201).
The state appellate court’s rejection of Petitioner’s suggestive identification claim was
neither contrary to, nor an unreasonable application of, clearly established federal law from the
Supreme Court of the United States. The state court ruling is not contrary to controlling Supreme
Court precedent as the state court identified the correct legal standard. Direct Appeal, 2014 IL App
(1st) 122942-U, ¶¶ 38 (quoting Illinois v. Enis, 645 N.E.2d 856, 870 (Ill. 1994); Illinois v. Love,
878 N.E.2d 789, 794 (Ill. App. Ct. 2007)) (explaining that a “‘pretrial identification was
17

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impermissibly suggestive” when “it creates ‘a very substantial likelihood of misidentification.’”).
Again, that the state court quoted Illinois cases for the relevant standard is of no moment because
the state court is not required to cite to, or even be aware of, the controlling Supreme Court of the
United States precedent as long as the state court judgment does not contradict the controlling
Supreme Court case law. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam).
Petitioner also cannot demonstrate that the state court decision is an unreasonable
application of clearly established federal law. As mentioned above, the Court’s review of the state
court’s determination is deferential under the AEDPA with the state court being given the “benefit
of the doubt.” Cullen, 563 U.S. at 181. Additionally, the Court is mindful that it is reviewing a
state court ruling involving a standard applying a “case-by-case” analysis that is evaluating the
totality of the circumstances. Perry, 565 U.S. at 239. “The more general the rule, the more leeway
courts have in reaching outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541
U.S. 652, 664 (2004).
The state court concluded that the lineup was not improperly suggestive.5 Id. at ¶ 42 (“[W]e
agree with the trial court that the minor differences identified by defendant did not render the
lineup impermissibly suggestive to require its suppression.”) The Court cannot say that this
determination was an unreasonable application of clearly established law from the Supreme Court.
It is true that looking at the lineup picture, (Dkt. 73-1, pg. 10.) one can find differences
between Petitioner and the other three men. Most notably, Petitioner is the only one wearing light
colored pants and black shoes. He is also the only one with his hair in braids. The other men in the

5 As the state court concluded that the identification was proper, it understandably did not
proceed to the second step of evaluating the reliability of the identification.
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lineup, moreover, also have some distinctive characteristics not shared by the others, a fact that
mitigates the significance of Petitioner’s differences—that is, the lineup does not consist of one
distinct individual posing with a group of three other homogenously appearing men.
These differences are not outcome determinative because a “‘lineup of clones is not
required’” under the constitutional standard. United States v. Johnson, 745 F.3d 227, 230 (7th Cir.
2014) (quoting United States v. Arrington, 159 F.3d 1069, 1073 (7th Cir. 1998)). By definition,
there will be some differences between the lineup participants (unless they are all identical twins).
United States v. Ford, 683 F.3d 761, 766 (7th Cir. 2012). Equally, a lineup of completely identical
individuals possesses its own issue as the witness would be unable to identify a suspect from the
homogenous group of carbon copies. Johnson, 745 F.3d at 230; Ford, 683 F.3d at 766. The
question instead is whether the lineup is unduly suggestive. Perry, 565 U.S. at 239.
Looking at the picture taken from the lineup in the record, (Dkt. 73-1, pg. 10.) the Court
cannot say that the state court’s determination on this point was unreasonable, and so Claim Two
is denied. See Johnson, 745 F.3d at 230 (holding that photo array was not unduly suggestive
because, despite slight differences, there was nothing that made the defendant standout from the
others); Gregory-Bey, 332 F.3d at 1045 (citing Foster, 394 U.S. at 442-43) (explaining unduly
suggestive identification procedure is one that is “orchestrat[ed]” by the police to “suggest[] to the
witness that this is the man.”); United States v. Traeger, 289 F.3d 461, 474 (7th Cir. 2002)
(“Authorities conducting lineups are required only to make reasonable efforts under the
circumstances to conduct a fair and balanced presentation. They are not required to search for

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identical twins in age, height, weight, or facial features. [] The fact that the other lineup participants
could not pass for [the defendant’s] twins did not make the lineup unduly suggestive.”).6
C.

Claims Three, Four, and Five: Ineffective Assistance of Counsel Arguments

Petitioner raises multiple challenges to the performance of his trial, post-trial, and appellate
counsel. Respondent organizes the arguments into Claims Three, Four, and Five (with
corresponding subclaims) in the answer, (Dkt. 64, pgs. 9-10.) and Petitioner follows this format in
his reply. (Dkt. 77, pgs. 15-31.) The Court follows the structure adopted by the parties.
Claim Three alleges ineffective assistance of trial counsel for failing to: (a) investigate a
participant in the lineups viewed by Etheridge (Dkt. 1-2, pgs. 4-8.); (b) move to suppress Etheridge,
Miller, and Knox’s eyewitness identification based on their trial testimony (id. at 8-11); (c)
impeach the police officers with their radio transmissions during the foot chase of Petitioner at the
motion to suppress hearing (id at 11-18); (d) investigate and call an eyewitness to the shooting (id.
at 18-20); and (e) move to suppress Petitioner’s sweatshirt (id. at 21-24). Claim Four alleges that
post-trial counsel was ineffective for failing to raise trial counsel’s purported ineffectiveness in a
post-trial motion. Id. at 24-26. Finally, Claim Five alleges that appellate counsel was ineffective

6

Additionally, although the state court permissibly terminated its inquiry at the first step
finding the lineup was not unnecessarily suggestive, the Court also notes that the identification is
also reliable under the second step of the analysis. Miller had an opportunity to view Petitioner,
was certain of his identification, and there was a short time lapse between the viewing of Petitioner
and the identification. Finally, for arguments sake, even if the Court is wrong and the state court’s
determination was hypothetically contrary to, or an unreasonable application, of clearly established
federal law, the admission of Miller’s identification of Petitioner would not have had a substantial
and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The
suppression of Miller’s identification of Petitioner does nothing to Knox and Etheridge’s
eyewitness identification of Petitioner, Officer Stanula’s testimony that Petitioner threw the
murder weapon over the ComEd facility fence during the police pursuit, the gunshot residue on
Petitioner’s sweatshirt sleeve, and the forensic evidence identifying the recovered gun as the
murder weapon.
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for failing to: (a) raise trial counsel’s ineffectiveness on appeal; and (b) include a picture of the
line-up viewed by Miller as part of the record on direct appeal. Id. at 27.
1.

Claims 3(d): Procedural Default

Respondent argues that Claim 3(d), alleging ineffective assistance of trial counsel for
failing to investigate and call an eyewitness, is procedurally defaulted because Petitioner failed to
properly raise the claim through one full round of state court review as required.7 (Dkt. 64, pg. 11)
“[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate review process” either
on direct appeal or in postconviction proceedings. O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); see also Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). In Illinois, this includes
presenting the claims in a PLA to the state supreme court. Snow v. Pfister, 880 F.3d 857, 864 (7th
Cir. 2018) (citing Boerckel, 526 U.S. at 845-46). If the “‘federal issue was not fairly presented to
the state courts and those courts would now hold the claim procedurally barred,’ the procedural

7

Respondent’s procedural default argument is limited to challenging Claim 3(d) for failing
to fairly present the claim through one complete round of state court review as required. On an
unrelated point, the state postconviction trial court held that the ineffective assistance of trial
counsel arguments were barred from being raised in the postconviction petition because they could
have been raised on direct appeal as they involved matters that were in the record. (Dkt. 65-6, pg.
3.) That ruling could be a ground for a different procedural default argument before this Court. It
appears, however, that the postconviction petition raised matters that were outside the record on
direct appeal despite the state post-conviction trial court’s ruling to the contrary. This Court,
however, need not consider whether the state court’s ruling on this question “rests on a novel and
unforeseeable state-court procedural decision,” Cruz v. Arizona, 143 S. Ct. 650, 661 (2023), that
could undue an otherwise proper adequate and independent state ground of decision, as
Respondent does not raise the state court’s waiver finding in the procedural default argument. The
procedural default raised by Respondent is unrelated to the question of the state court’s waiver
finding. The Court, therefore, will not consider this question any further.
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default doctrine precludes” federal habeas corpus review. Thomas v. Williams, 822 F.3d 378, 384
(7th Cir. 2016) (quoting Ward v. Jenkins, 613 F.3d 692, 696 (7th Cir. 2010)).
Respondent is correct that the argument is procedurally defaulted. Although Petitioner
raised the argument in his postconviction petition, (Dkt. 66-5, pg. 18.) and postconviction appeal,
(Dkt. 65-7, pgs. 20-21.) he did not raise it in his postconviction PLA. (Dkt. 65-8.) Thus, the
argument is procedurally defaulted.
Neither cause and prejudice nor the fundamental miscarriage of justice doctrines excuse
this default. Regarding cause and prejudice, cause is an “‘objective factor, external to [Petitioner]
that impeded his efforts to raise the claim in an earlier proceeding.’” Weddington v. Zatecky, 721
F.3d 456, 465 (7th Cir. 2013) (quoting Smith v. McKee, 596 F.3d 374, 382 (7th Cir. 2010)).
Examples of cause include: (1) interference by officials making compliance impractical; (2) the
factual or legal basis was not reasonably available to counsel; or (3) ineffective assistance of
counsel. Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007) (citing McCleskey v. Zant, 499 U.S.
467 (1991)). None of the grounds are available to Petitioner as the failure to raise the argument
occurred in a postconviction PLA brought pro se by Petitioner.8
This leaves the fundamental miscarriage of justice (actual innocence) gateway to excuse
Petitioner’s defaults. To show actual innocence to defeat a default, Petitioner must demonstrate

8

It is true that Petitioner exhausted other ineffective assistance of counsel arguments in
this case. While ineffective assistance of counsel is a single claim, Pole v. Randolph, 570 F.3d
922, 934 (7th Cir. 2009) (citing Peoples v. United States, 403 F.3d 844, 848 (7th Cir. 2005)),
Petitioner must raise the particular factual basis for each aspect of an alleged ineffective assistance
of counsel allegation to preserve the respective argument. Pole, 570 F.3d at 935 (citing Stevens v.
McBride, 489 F.3d 883, 894 (7th Cir. 2007)). He did not do that as to this particular ground of
alleged ineffective assistance, so this argument is defaulted. Stevens, 489 F.3d at 894.
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that “‘in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.’” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (quoting Schlup v.
Delo, 513 U.S. 298, 329 (1995)). This is a “demanding” and “seldom met” standard. McQuiggin,
569 U.S. at 386 (citing House v. Bell, 547 U.S. 518, 538 (2006)). Petitioner must present new,
reliable evidence that was not presented at trial—such as exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—to make a credible claim of actual
innocence. House, 547 U.S. at 537 (citing Schlup, 513 U.S. at 324); see McDonald v. Lemke, 737
F.3d 476, 483-84 (7th Cir. 2013) (quoting Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005)
(“[A]dequate evidence is ‘documentary, biological (DNA), or other powerful evidence: perhaps
some non-relative who places him out of the city, with credit card slips, photographs, and phone
logs to back up the claim.’”)). Petitioner cannot meet this demanding standard as multiple
eyewitnesses identified Petitioner as the murderer, he was immediately arrested by the police
fleeing from the crime scene, and he was in possession of the murder weapon that he tossed over
the fence of the ComEd facility. In sum, Claim 3(d) is procedurally defaulted, and Petitioner cannot
excuse the default.
2.

Claims Three, Four, and Five are Meritless.

Petitioner’s remaining ineffective assistance of counsel arguments raised in Claims Three
(trial counsel’s performance), Four (post-trial counsel’s performance), and Five (appellate
counsel’s performance) are meritless (and his defaulted argument in Claim 3(d) is meritless as
well). The state trial court denied Petitioner’s ineffective assistance of counsel arguments on the
merits. (Dkt. 65-6, pgs. 4-13.) The state appellate court granted Petitioner’s postconviction
appellate counsel’s request to withdraw from the appeal pursuant to Pennsylvania v. Finley, 481
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U.S. 551 (1987), (Dkt. 65-2.) and the state supreme court denied Petitioner’s request to bring a
PLA. Galloway, 167 N.E.3d at 638. The Court “looks through” the state appellate court’s Finley
order to the state trial court’s ruling when evaluating Petitioner’s arguments. Wilson v. Sellers, 138
S. Ct. 1188, 1193, 1195-96 (2018).
Strickland v. Washington, 466 U.S. 668 (1984), is the clearly established federal law
governing an ineffective assistance of counsel arguments. To demonstrate ineffective assistance
of counsel, Petitioner must show both deficient performance and prejudice. Premo v. Moore, 562
U.S. 115, 121 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). The Court’s
review of counsel’s performance is, itself, deferential under Strickland, 466 U.S. at 689 (“a court
must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance”), and applying Strickland under the AEDPA (which, as stated above, also
requires deference) results in a double level of deference to the state court determination. Knowles,
556 U.S. at 123.
Petitioner cannot demonstrate that the state appellate court’s rejection of his claim was
contrary to, or an unreasonable application of, Strickland. The state court correctly identified the
controlling Strickland standard. (Dkt. 65-6, pg. 4.) (“In examining petitioner’s claims of ineffective
assistance of counsel, this court follows the familiar two-pronged test of Strickland v. Washington,
466 U.S. 668, 687 (1984)). Petitioner cannot make an argument that the state employed a standard
contrary to Strickland in evaluating his ineffective assistance claims.
The state court also reasonably applied Strickland when rejecting Petitioner’s arguments.
“The Supreme Court insists that judges must not examine a lawyer’s error (of omission or
commission) in isolation.” Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir. 2009) (per curiam)
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(citing Strickland, 466 U.S. at 690-96). “It is essential to evaluate the entire course of the defense,
because the question is not whether the lawyer’s work was error-free, or the best possible approach,
or even an average one, but whether the defendant had the ‘counsel’ of which the sixth amendment
speaks.” Id. A review of trial proceedings as a whole show that trial counsel provided a competent
defense of Petitioner.
Defense counsel litigated a number of pretrial matters including a challenge to Petitioner’s
arrest and seeking to suppress the gun recovered by the police, (Dkt. 65-9, pg. 120.), seeking
suppression of Xavier Miller’s identification of Petitioner, Direct Appeal, 2014 IL App (1st)
122942-U, ¶ 12, pretrial discovery from the prosecution, (Dkt. 65-9, pgs. 73.) seeking to bar the
prosecution’s introduction of Petitioner’s prior crimes at trial, id. at 109, moving to bar mentioning
that Petitioner requested an attorney, id. at 130, barring introduction of the fact that Petitioner was
being represented by the Cook County Public Defender, id. at 132, preventing mention of
Petitioner’s purported gang affiliation, id. at 134, and barring introduction of the fact that the van
Petitioner attempted to flee in after the shooting was stolen. Id. at 139. Defense counsel also
engaged in extensive examination of the police officers at the motion to suppress pretrial hearings.
(Dkt. 65-12.)
At trial, defense counsel presented a coherent theme of the case in opening statements
proclaiming Petitioner’s innocence and arguing that he did not shoot anyone. (Dkt. 65-14, pg. 15.)
He emphasized the chaotic nature of the events that would impact witnesses’ ability to make
correct identifications, that witnesses changed their stories, and the lack of fingerprints on the
recovered gun. Id. at 17. During trial, defense counsel attempted to impeach the prosecution’s
witnesses’ credibility through cross-examination. (Dkt. 65-14, pgs. 52-76; pgs. 85-88; pgs. 11425

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133.; Dkt. 65-16, pgs. 29-33; pgs. 55-58; pgs. 66-68; pgs. 79-85; pgs. 96-98; pgs. 130-141; pg.
178; pgs. 198-200; Dkt. 65-16, pgs. 16-17; pgs. 30-34; pgs. 56-57.) Defense counsel’s closing
argument attacked the credibility of the witnesses presented by the prosecution, raised various
questions about the forensic evidence, and sought to diminish the probative weight of Petitioner’s
flight. (Dkt. 65-16, pgs. 104-134.) Following the guilty verdict, defense counsel raised a posttrial motion, (Dkt. 65-12, pgs. 110.), raised arguments at sentencing, id. at 122, and raised a number
of issues on direct appeal. (Dkt. 65-4, pg. 2.) Although defense counsel’s efforts were ultimately
unsuccessful, when viewing counsel’s performance as whole, the record shows competent defense
attorneys analyzing the case and implementing a strategy attacking the prosecution’s case.
Petitioner also raises individual concerns regarding counsel’s performance. Before turning
to these individual matters, the Court is mindful that a “single error may suffice” for a Strickland
violation when it is sufficiently “‘egregious and prejudicial,’” Williams, 557 F.3d at 538 (quoting
Murray v. Carrier, 477 U.S. 478, 496 (1986)), but that is the exception to the general rule of
viewing counsel’s performance as a whole. Coleman v. Neal, 990 F.3d 1054, 1056 (7th Cir. 2021)
(per curiam) (“Strickland says [] that it is the full course of representation that matters. There is a
potential exception for a whopper of an error that nullifies all of the good things that counsel did .
. . .”) (citing 466 U.S. at 690-96; Williams, 557 F.3d at 538). However, Petitioner cannot
demonstrate a single alleged error is sufficient to demonstrate a Strickland violation.
a.

Claims 3(a): Failure to Investigate Etheridge and Miller’s
Lineups.

Claim 3(a) argues that there were constitutional violations in the lineup viewed by
Etheridge, and those alleged errors also poisoned the lineup viewed by Miller. (Dkt. 1-2, pgs. 48.) Petitioner’s pretrial motion to suppress only challenged Miller’s lineup identification; no issue
26

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as to Etheridge’s lineup was raised. Direct Appeal, 2014 IL App (1st) 122942-U, ¶¶ 11. In turn,
Miller’s identification was challenged on direct appeal, while the challenge to the Etheridge
identification was raised in the postconviction petition via a claim of ineffective assistance of trial
counsel for failing to challenge the Etheridge lineup. (Dkt. 1-2, pgs. 4-8.) The ineffective assistance
of trial counsel argument was rejected by the state trial court in the postconviction proceedings,
the last reasoned ruling on the merits, and the state appellate court affirmed via appellate counsel’s
Finley motion. (Dkt. 65-2; Dkt. 65-6, pgs. 5-6.) Petitioner now renews the Etheridge lineup claim
and the corresponding allegation of its impact on Miller’s identification.
Etheridge and Miller identified Petitioner in different lineups. Both lineups occurred at the
Chicago Police Department’s 11th District station on October 10, 2009. (Dkt. 65-12, pgs. 11-12.)
Etheridge’s lineup occurred shortly after midnight that morning, while Miller’s lineup was later
that day around 12:45 p.m. Id. Etheridge’s lineup consisted of five men, while Miller’s consisted
of four. Id. The picture from Etheridge’s lineup is immediately below followed by the Miller line
up photo (which was also shown above in the Court’s analysis of Claim Two).

27

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(Dkt. 73-1, pg. 13.)

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(Dkt. 73-1, pg. 10.)
Petitioner claims that lineup participant number five in Etheridge’s lineup, who is to
Petitioner’s immediate left at the end of the lineup, became angry when told by the police to stand
up and step forward during the lineup. (Dkt. 1-2, pg. 5.) According to Petitioner, participant five
said “You forced me to be in this lineup, I didn’t want to do this, you told me you had your person
already, I’m going to sue you if you put some bullshit on me.” Id. at 6. Petitioner claims he told
his trial attorney about this outburst from participant five prior to the filing of the motion
challenging Miller’s lineup identification, but his attorney failed to take any actions regarding
Etheridge’s identification. Id.
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Petitioner speculates, without any evidence, that the outburst by participant five occurred
because Etheridge had initially selected participant five, but the outburst caused Etheridge to alter
his selection to Petitioner improperly. (Dkt. 1-2, pg. 7.) His speculation continues as he claims
Etheridge and Miller were friends and therefore might have spoken after Etheridge’s identification,
but before Miller’s. Id. Petitioner believes that Etheridge could have given Miller information
about who he identified in the lineup, and the fact that Petitioner is the only person in an all-white
outfit in Miller’s lineup helped to point to him as the suspect. Id.
In rejecting Petitioner’s argument, the state trial court began by noting that it previously
held that Petitioner’s line-up was not unduly suggestive and that holding had been affirmed by the
state appellate court. (Dkt. 65-6, pg. 6.) The state court went on to conclude that even if the
statement had been made by participant five, the lineup would still not have been unduly
suggestive. Id. Finally, the state court concluded that there was no prejudice. Id. (“For counsel to
bring to the court’s attention the statements of line up participant No. 5 would not have superseded
the abundant amount of eyewitness evidence testimony from Randall Knox, David Etheridge, and
Xavier Miller which led to the denial of petitioner’s motion and conviction.”).
The state trial court misunderstood Petitioner’s argument by evaluating the claim within
the context of Miller’s lineup, not Etheridge’s lineup. The state court notes it previously found the
lineup was not suggestive and the state appellate court affirmed that ruling, but the lineup
considered in the motion to suppress and direct appeal was Miller’s lineup, not Etheridge’s. In
fact, there are only four participants in Miller’s lineup—the alleged angry fifth participant is clearly
from Etheridge’s lineup.

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Although neither party recognized this issue, the state court decision is predicated upon an
unreasonable determination of fact, 28 U.S.C. § 2254(d)(2), namely that the state court
misunderstood that the alleged outburst occurred in Etheridge’s lineup, not Miller’s. An
unreasonable determination of the facts is one that ignores the clear and convincing weight of the
evidence and is “‘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) (quoting Ward v.
Smith, 334 F.3d 696, 704 (7th Cir. 2016)). The record is clear that Petitioner is claiming the
outburst by participant five occurred in Etheridge’s lineup, yet the state court analyzed the claim
as an alleged outburst occurring in Miller’s lineup.
Despite the state court’s unreasonable determination of fact under § 2254(d)(2), the Court
must still evaluate Petitioner’s claim under § 2254(a). Brown v. Davenport, 142 S. Ct. 1510, 1524
(2022); Mosley v. Atchison, 689 F.3d 838, 853 (7th Cir. 2012). Although the state court’s ruling is
no longer afforded deference under the AEDPA, and this Court must therefore conduct a de novo
review, the state court correctly rejected Petitioner’s claim.
Turning to the first prong of Strickland evaluating counsel’s performance, defense counsel
had the duty to either investigate Petitioner’s allegations regarding participant five’s outburst and
coordination between Etheridge and Miller, or make a reasonable decision that an investigation
was unnecessary. Strickland, 466 U.S. at 691. Petitioner claims he told his attorney about these
allegations, but the attorney took no actions. Thus, the defense attorney’s decision to allegedly not
take any further action “must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgment.” Id. An attorney is not required to
pursue every suggestion from a client. She may “avoid activities that appear ‘distractive from more
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important duties.’” Harrington v. Richter, 562 U.S. 86, 107 (2011) (quoting Bobby v. Van Hook,
558 U.S. 4, 11 (2009) (per curiam)). She is also under no obligation to raise a losing argument.
Whitehead v. Cowan, 263 F.3d 708, 731 (7th Cir. 2001).
Petitioner’s attorney’s alleged failure to follow up on these allegations was reasonable.
Petitioner believes that participant five’s alleged outburst was due to Etheridge first identifying
him as the offender. This raises the question of how Petitioner knew what Etheridge said during
the lineup as presumably he was shielded from the lineup participants. Petitioner provides no basis
here—and does not maintain that he provided any to his trial counsel—to support his contention
that Etheridge initially selected participant five as the shooter. Counsel’s performance cannot be
deemed constitutionally deficient by virtue of failing to act on the basis of Petitioner’s mere
speculation that Etheridge changed his pick after participant five’s outburst.
There is, moreover, a logical link missing between participant five’s purported outburst
and Petitioner’s identification by Etheridge. According to Petitioner, participant five said “You
forced me to be in this lineup, I didn’t want to do this, you told me you had your person already,
I’m going to sue you if you put some bullshit on me.” (Dkt. 1-2, pg. 5.) Participant five’s alleged
statement does nothing to suggest that Petitioner should be selected in his place or for that matter
that the suspect was in the lineup. At most, participant five is effectively saying “don’t pick me,”
but that would leave four other men in the lineup. Petitioner fails to explain how Etheridge
allegedly settled on him over the other three remaining men. And certainly nothing suggests that
the police orchestrated this alleged outburst from participant five or steered Etheridge towards
picking Petitioner. See Gregory-Bey, 332 F.3d at 1045 (citing Foster, 394 U.S. at 442-43)
(explaining unduly suggestive identification procedure is one that is “orchestrat[ed]” by the police
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to “suggest[] to the witness that this is the man.”). A lineup participant saying, “I’m not the man,”
is different than the police suggesting to the witness, “this is the man.”9
Moving to Miller’s lineup, Petitioner suggests it is possible that Etheridge and Miller spoke
after Etheridge’s lineup to help coach Miller into identifying Petitioner. Again, there is no evidence
to support this speculation. A prisoner’s self-serving statements or speculation is not enough to
meet the Strickland standard. Julian v. Bartley, 495 F.3d 487, 499-500 (7th Cir. 2007). Petitioner
provides no evidence suggesting police misconduct making either lineup unduly suggestive. His
defense attorney could reasonably choose to not pursue this line of argument.
Additionally, Petitioner’s attorney was reasonable to not pursue this line of inquiry as
Etheridge’s and Miller’s identifications of Petitioner were reliable when considering the relevant
factors. Perry, 565 U.S. at 239 n.5 (quoting Manson, 432 U.S. at 114)). As discussed above in
Claim Two, Miller’s identification has the hallmark of reliability, and Etheridge’s has as well.
Etheridge testified that Petitioner walked directly up to him and the victim, he had an extensive
period to observe Petitioner, and he was certain about his identification.
Petitioner also fails to demonstrate prejudice under Strickland. Even if Petitioner had
successfully suppressed Etheridge’s and Miller’s identifications, Knox’s identification remains
unaffected. Knox was in the group with the victim and Etheridge when Petitioner approached and
drew his gun. Although Knox turned and fled, he immediately heard a gunshot. Additionally, there
is the testimony from the police officers who apprehended Petitioner and recovered the murder

9

Petitioner also makes a reference in challenging the composition of the lineup
participants in Etheridge’s lineup. Viewing the picture from the lineup, the Court concludes that
there is no evidence that the lineup was unduly suggestive. Johnson, 745 F.3d at 230.
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weapon that Petitioner discarded during the chase. Petitioner cannot demonstrate a reasonable
probability that, but for counsel’s alleged unprofessional errors, the result of the proceedings would
have been different. Strickland, 466 U.S. at 694. Accordingly, Claim 3(a) is denied.
b.

Claim 3(b):

Counsel’s Failure to move to suppress
Etheridge’s, Miller’s, and Knox’s Eyewitness
Identifications.

Petitioner argues in Claim 3(b) that Etheridge’s, Miller’s, and Knox’s trial testimony
demonstrates that they lied about the events of the murder, and in turn, that their eyewitness
identifications were fraudulent. (Dkt. 1, pgs. 8-11.) He further claims that his defense attorney
should have called them as witnesses during the suppression hearing or alternatively sought
reconsideration of the motion to suppress their identifications in a post-trial motion. Id. He also
believes his attorney should have called participant five from the Etheridge lineup in support of
this line of argument. As these arguments were resolved by the state trial court in the
postconviction proceeding, (Dkt. 65-6, pgs. 5-9.), they are governed by the AEDPA standard
before this Court. Greene, 565 U.S. at 35.
Petitioner’s arguments regarding Etheridge, Miller, and Knox demonstrate a
misunderstanding of the relevant legal standard. As discussed above, an identification should only
be suppressed if: (1) it is the product of an unnecessarily suggestive police procedure; and (2) the
resulting identification is unreliable. Perry, 565 U.S. at 238-39. Petitioner’s belief that they were
unreliable witnesses is insufficient, by itself, to require suppression of their eyewitness
identifications when there was no finding of an unnecessarily suggestive police procedure in this
case. Id. at 245 (“The fallibility of eyewitness evidence does not, without the taint of improper
state conduct, warrant a due process rule requiring a trial court to screen such evidence for
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reliability before allowing the jury to assess its creditworthiness.”). The question of the credibility
of Etheridge’s, Miller’s, and Knox’s identifications of Petitioner as the shooter was correctly left
to the jury because the “jury, not the judge, traditionally determines the reliability of evidence.”
Perry, 565 U.S. at 246. Petitioner’s argument on this point is a losing argument, and his attorney
cannot be faulted for failing to raise it. Whitehead, 263 F.3d at 731.
As for Petitioner’s other argument, as discussed in Claim 3(a), Petitioner cannot
demonstrate an error in the Etheridge lineup even if participant five did disrupt the lineup as he
alleges. As such, there is no error in failing to call participant five to testify regarding the alleged
disruption.
In sum, Petitioner’s arguments are meritless, and so the state court’s rejections of them are
not an unreasonable application of Strickland. Claim 3(b) is denied.
c.

Claim 3(c):

Counsel’s Failure to Impeach the Police Officers
with their Radio Transmissions during the Foot
Chase at the Suppression Hearing.

Petitioner next argues that his trial counsel was ineffective for failing to impeach Officers
O’Brien and Stanula at the suppression hearing.10 (Dkt. 1-1, pgs. 11-18.) Prior to trial, defense
counsel moved to quash Petitioner’s arrest and suppress the introduction of the recovered gun
under the Fourth Amendment. Direct Appeal, 2014 IL App (1st) 122942-U, ¶¶ 30-33. Following
an evidentiary hearing where Officers O’Brien and Stanula testified, the trial court denied the
motion to suppress. Id. at ¶ 10. The state appellate court on direct appeal affirmed the denial of the

10

Petitioner’s argument focuses on defense counsel’s alleged failure to impeach the
officers at the suppression hearing. He does not extend the argument to the officers’ trial testimony.
Regardless, that argument would also be meritless for the same reasons.
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motion holding that Petitioner’s case was controlled by California v. Hodari D., 499 U.S. 621
(1991). Direct Appeal, 2014 IL App (1st) 122942-U, ¶¶ 30-33.
Hodari D. holds that a person is seized for Fourth Amendment purposes when there is
either an application of physical force by the police officer against the person with intent to restrain
or the person submits to the officer’s show of authority. Torres v. Madrid, 141 S. Ct. 989, 995
(2021) (citing Hodari D., 499 U.S. at 626). There is no seizure when the suspect is in the process
of fleeing from the police. Hodari D., 499 U.S. at 626. Equally, evidence abandoned by the suspect
while fleeing is not considered fruit of the seizure because no seizure has occurred while a chase
is underway. Id. at 629 (“In sum, assuming that Pertoso’s pursuit in the present case constituted a
‘show of authority’ enjoining Hodari to halt, since Hodari did not comply with that injunction he
was not seized until he was tackled. The cocaine abandoned while he was running was in this case
not the fruit of a seizure, and his motion to exclude evidence of it was properly denied.”). The state
appellate court on direct appeal applied these principles explaining “defendant did not comply but
rather continued to flee. Without evidence of a Fourth Amendment seizure, the circuit court
properly denied defendant’s motion.” Direct Appeal, 2014 IL App (1st) 122942-U, ¶ 33.
In his postconviction petition, Petitioner argued that his attorney was ineffective for failing
to impeach Officers O’Brien and Stanula with their radio transmissions during the foot chase. He
also attached the police department’s summary of the radio transmissions to his postconviction
petition. (Dkt. 65-5, pgs. 38-47.) Petitioner’s view is that the transmissions show that the officers
were lying in their testimony. The state trial court denied Petitioner’s argument under Strickland
concluding that the Petitioner was not prejudiced by the failure to present the radio transmission
records because of the “voluminous amount of eyewitness and forensic evidence presented against
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Petitioner.” (Dkt. 65-6, pg. 11.) Petitioner now renews this argument in his instant habeas corpus
petition.11 (Dkt. 1-2, pgs. 11-18.)
The Court rejects Petitioner’s argument concluding that the state court’s decision was not
an unreasonable application of Strickland. Although the trial court based its ruling on Strickland
prejudice’s prong, the Court notes that there is no evidence that counsel was deficient in failing to
pursue the police radio transmission records. Contrary to Petitioner’s view, the records are
consistent with the officers’ testimony of responding to shots being fired, chasing an individual in
a sweatshirt, the individual jumping out of a van and fleeing and being arrested by Orr High
School, and a handgun being recovered. (Id.) Beyond the general consistency of the radio
transmissions with the testimony of O’Brien and Stanula (which was reason enough for trial
counsel to have decided not to try to impeach the officers with the radio calls), the purported
impeachment on which Petitioner rests his claim warranted little weight. He “assumes” that the
radio records show that while Stanula was chasing and apprehending Petitioner, O’Brien was
actually chasing someone else who got away.12 Even if true, that an unknown suspect got away

11

Petitioner may raise this argument pursuant to Strickland without running afoul of Stone
v. Powell, 428 U.S. 465 (1976). See Kimmelman v. Morrison, 477 U.S. 365, 383 (1986); Owens v.
United States, 387 F.3d 607, 609 (7th Cir. 2004).
12

It bears noting that the purported inconsistencies Petitioner identifies are predicated on
his assumption that transmissions by “PD40” were from O’Brien and those from “PD41” were
Stanula’s transmissions. See Dkt. 65-5 at 14 (“It would be reasonable to associate Officer Stanula
with PD41 … [and to] associate Officer O’Brien with PD40”). But it is not reasonable to jump to
that conclusion; some of the entries demonstrate that the opposite is true—namely that Stanula is
PD40 and O’Brien is PD41. O’Brien testified that he transmitted the first description of the suspect
and the radio calls reflect that the first description was transmitted by “PD41.” So, too, was the
transmission reporting that the suspect “jumped out of the van”; that was an event that O’Brien,
not Stanula, witnessed, Petitioner’s trial counsel did not render ineffective assistance by failing to
impeach the officers’ accounts of what happened on the basis of Petitioner’s unsubstantiated and
seemingly erroneous interpretation of their radio calls.
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from O’Brien would be of little help to Petitioner, as that fact would do nothing to undermine the
evidence that Stanula chased and arrested Petitioner after he tossed a gun during the pursuit. The
records tendered by Petitioner with his postconviction petition do not support his position that the
officers lied during their testimony. Defense counsel cannot be faulted for failing to present these
records in the pretrial suppression hearing.13 Whitehead, 263 F.3d at 731.
Moving on, the state court also did not unreasonably apply Strickland’s prejudice prong,
either. To demonstrate prejudice for counsel’s alleged deficient performance for failing to raise a
Fourth Amendment claim, Petitioner must show both: (1) the Fourth Amendment claim is
meritorious; and (2) a reasonable probability that the verdict would have been different absent the
excluded evidence. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
Petitioner cannot demonstrate a meritorious Fourth Amendment claim. As the state court
correctly held, Petitioner was not seized for purposes of the Fourth Amendment while fleeing from
the police, and in turn, the gun he abandoned during the pursuit was not subject to suppression.
Hodari D., 499 U.S. at 626. Additionally, there was also probable cause for his subsequent arrest
once the police caught up to him. Petitioner’s flight from the police immediately after the police
heard the gunshots plus his tossing the gun over the fence of the ComEd facility to avoid having
the gun on his person provided probable cause for the arrest. United States v. Wilson, 963 F.3d

13

A consistent theme of Petitioner’s case is that the witnesses against him are lying. This
argument is another example; Petitioner claims that the officers intentionally lied during their
testimony, “fabricating their stories to make it seem as if it were the petitioner that ran to and from
a van, and threw a gun.” Dkt. 65-5 at 18. As explained above, however, state court factual findings
have a presumption of correctness, The testimony from the witnesses against Petitioner, including
the police officers, was accepted by the state court at the pretrial suppression hearing and at the
jury at trial. In relying on the radio transmissions, Petitioner falls well short of rebutting this
presumption by clear and convincing evidence. 28 U.S.C § 2254(e)(1); Tharpe v. Sellers, 138 S.
Ct. at 548; Hartsfield, 949 F.3d at 309.
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701, 704 (7th Cir. 2020) (citing Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). Finally, the trial
court is further correct that the multiple eyewitnesses, who are independent of any Fourth
Amendment challenge, are sufficient to demonstrate a lack of prejudice. The state court’s rejection
of this argument is not an unreasonable application of Strickland. Claim 3(c) is denied.
d.

Claim 3(d):

Counsel’s Failure to Investigate and Call an
Unnamed Witness.

Petitioner faults his attorney for failing to investigate and call a female eyewitness to the
shooting. (Dkt. 1-2, pgs. 18-20.) In addition to being procedurally defaulted, this argument is also
meritless.
According to Petitioner, the witness is identified in the police reports, but the report is not
included in the record. As the state court noted when rejecting the argument, Petitioner fails to
show that the witness was both available to testify and had evidence that supported Petitioner.
(Dkt. 65-6, pg. 7.) The Court agrees with this assessment. Petitioner’s instant argument consists of
identifying this potential witness and then jumping to the unsupported conclusion that she is the
key witness that would win the case for him.
The state court’s application of Strickland on this point was correct, and therefore,
Petitioner cannot demonstrate an unreasonable application. Petitioner has the burden under
Strickland. 466 U.S. at 693; see also United States ex rel. Cross v. DeRobertis, 811 F.3d 1008,
1017 (7th Cir. 1987) (“Therefore, if the potential witnesses are not called, it is incumbent on the
petitioner to explain their absence and to demonstrate, with some precision, the content of the
testimony they would have given at trial.”). The lack of evidence regarding what this potential
witness’s testimony would have been is sufficient to support the state’s rejection of this argument.

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Additionally, as has been discussed throughout this opinion, the evidence of Petitioner’s
guilt is overwhelming, preventing him from demonstrating prejudice under Strickland. Assuming
arguendo that the witness is favorable to Petitioner as he claims, this does nothing to undermine
the fact that multiple eyewitnesses identified him as the shooter, Petitioner abandoned the murder
weapon while being chased by the police and gunpowder residue was found on his sweatshirt. The
state court’s rejection of this argument is not an unreasonable application of Strickland. Claim 3(d)
is denied.
e.

Claim 3(e):

Counsel’s Failure to Challenge Chain of Custody
for the Sweatshirt.

Petitioner alleges a defect in the chain of custody for his seized sweatshirt that contained
the gunshot residue. He alleges his trial counsel was ineffective for failing to raise this issue. (Dkt.
1-2, pgs. 21-23.) The state court rejected this argument, explaining that the prosecution presented
sufficient foundation at trial to make the sweatshirt admissible regardless of any chain of custody
concerns. (Dkt. 65-6, pg. 11.) Additionally, according to the state court, any concerns regarding
the sweatshirt were irrelevant as the overwhelming nature of the evidence supporting Petitioner’s
guilt, so he could not demonstrate Strickland prejudice regardless of the outcome of any chain of
custody issue. Id. at 12.
Under Illinois law, when the prosecution seeks to introduce an object into evidence, there
must be sufficient foundation presented either via witness identification of the object or by
establishing a chain of custody. Illinois v. Postlewaite, 2023 IL App (4th) 221027-U, ¶ 36 (citing
Illinois v. Woods, 828 N.E 247, 254 (Ill. 2005)). The type of evidence determines the necessary
foundation. Id. Uniquely identifiable items that are not subject to change can have foundation

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established by eyewitness testimony, while ubiquitous items that are subject to tampering or
contamination must have foundation established by chain of custody. Id.
The problem for Petitioner in challenging the state court’s ruling on this issue is that
foundation and chain of custody are questions of Illinois state evidentiary law. Herndon v. Dorethy,
No. 17 C 4356, 2020 WL 777249, at *3 (N.D. Ill. Feb. 18, 2020). This Court is bound by a state
court’s interpretation of state law. Harper v. Brown, 865 F.3d 857, 859 (7th Cir. 2017) (“[H]is
argument is really an attack on the state court’s resolution of a question of state law embedded
within its analysis of a Strickland claim. Federal courts are not empowered to review questions of
state law under § 2254.”) (emphasis omitted).
With the state court’s ruling that the sweatshirt was admissible and that there was no chain
of custody concern, defense counsel was not deficient for failing to raise this losing argument.
Whitehead, 263 F.3d at 731. Moreover, as the state court noted, the evidence of Petitioner’s guilt
was overwhelming, meaning there was no prejudice on the issue. As such, the state court’s
rejection of the argument was not an unreasonable application of Strickland. Claim 3(e) is denied.
3.

Claims Four and Five:

Ineffective Assistance of Post-Trial and
Appellate Counsel

Building upon the arguments challenging trial counsel’s performance raised in Claim
Three, Petitioner alleges his post-trial attorney should have raised these issues of trial counsel’s
ineffectiveness in a post-trial motion (Claim Four), and that his appellate counsel similarly failed
him by neglecting to raise them on direct appeal (Claim Five). The state trial court rejected these
arguments, noting that the underlying ineffective assistance of counsel arguments were meritless,
and so a subsequent attorney could not be faulted for failing to raise the ineffective assistance of
counsel issue in a later motion or appeal. (Dkt. 65-6, pg. 13.) The state court’s application of
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Strickland is correct, as an attorney cannot be faulted for failing to raise a losing argument.
Whitehead, 263 F.3d at 731.
Finally, Petitioner faults his appellate attorney for failing to include a picture of the lineup
viewed by Miller on direct appeal. Even if he should have done so, that failure did not prejudice
Petitioner because the picture, which is in the record before this Court, demonstrates that the lineup
was not unduly suggestive as discussed in the Court’s rejection of Claim Two. (Indeed, that may
have been why Petitioner’s appellate counsel did not include it in the appellate record, preferring
to selectively focus the appellate court only on the points included in a written submission.) The
state court’s rejection of these arguments is not an unreasonable application of Strickland. Claims
Four and Five are denied.
D.

Claim Six:

Sentencing Challenge

Petitioner’s final argument is that his sentence was enhanced for personally discharging
the firearm during the offense that resulted in the death of the victim. (Dkt. 1-2, pgs. 28-32.) He
alleges a violation of Alleyene v. United States, 570 U.S. 99 (2013), on this point. Alleyene is an
application of Apprendi v. New Jersey, 530 U.S. 466 (2000), 570 U.S. at 103, so Petitioner is
actually raising an Apprendi claim. The rule of Apprendi is that a fact, other than a prior conviction,
that increases the maximum penalty for a crime must be charged in the indictment, submitted to
the jury, and proven beyond a reasonable doubt. 530 U.S. at 476. Petitioner argues that the
Apprendi rule was not complied with in his case. The state court rejected this claim, explaining
that the allegation that he personally fired the gun was charged in the indictment and found by the
jury beyond a reasonable doubt. (Dkt. 65-6, pg. 13.)

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Petitioner’s claim that the jury did not find that he personally discharged a firearm during
the murder of Adams and the attempt murder of Etheridge is simply wrong. As the state court
correctly noted, the fact of Petitioner personally discharging the weapon that killed the victim was
charged in the indictment, (Dkt. 65-9, pgs. 34-68), the jury was instructed on this point, id. at 168,
and the jury found that fact beyond reasonable doubt. Id. at 176 (Special Verdict form). Apprendi
was complied with in this case. The state court decision is neither contrary to, nor an unreasonable
application of, Apprendi.14 Claim Six is denied. The habeas corpus petition is denied.
III.

Notice of Appeal Rights and Certificate of Appealability

Petitioner is advised that this is a final decision ending his case in this Court. If he wishes
to appeal, he must file a notice of appeal with this Court within 30 days of the entry of judgment.
See Fed. R. App. P. 4(a)(1). Petitioner need not bring a motion to reconsider this Court’s ruling to
preserve his appellate rights. However, if he wishes the Court to reconsider its judgment, he may
file a motion under Federal Rule of Civil Procedure 59(e) or 60(b). Any Rule 59(e) motion must
be filed within 28 days of the entry of this judgment. See Fed. R. Civ. P. 59(e). The time to file a
motion pursuant to Rule 59(e) cannot be extended. See Fed. R. Civ. P. 6(b)(2). A timely Rule 59(e)
motion suspends the deadline for filing an appeal until the Rule 59(e) motion is ruled upon. See
Fed. R. App. P. 4(a)(4)(A)(iv). Any Rule 60(b) motion must be filed within a reasonable time and,
if seeking relief under Rule 60(b)(1), (2), or (3), must be filed no more than one year after entry of

14

Beyond the fact that Apprendi was complied with in this case, the Court further notes
that any theoretical error would not have had a substantial and injurious effect in this case. Brecht,
507 U.S. at 637. Multiple eyewitnesses testified to Petitioner personally discharging the weapon
that killed the victim. Petitioner was in possession of the murder weapon immediately after the
shooting while being chased by the police and had gunpowder residue on the sweatshirt he was
wearing.
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the judgment or order. See Fed. R. Civ. P. 60(c)(1). The time to file a Rule 60(b) motion cannot be
extended. See Fed. R. Civ. P. 6(b)(2). A Rule 60(b) motion suspends the deadline for filing an
appeal until the Rule 60(b) motion is ruled upon only if the motion is filed within 28 days of the
entry of judgment. See Fed. R. App. P. 4(a)(4)(A)(vi).
The Court declines to issue a certificate of appealability. Petitioner cannot make a
substantial showing of the denial of a constitutional right, and reasonable jurists would not debate,
much less disagree, with this Court’s resolution of Petitioner’s claims. Arredondo v. Huibregtse,
542 F.3d 1155, 1165 (7th Cir. 2008) (citing 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.
473, 484 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
IV.

Conclusion
Petitioner’s habeas corpus petition (Dkt. 1, 13.) is denied on the merits. Any other pending

motions are denied as moot. The Court declines to issue a certificate of appealability. The Clerk is
instructed to: (1) terminate Respondent Lashbrook, (2) add David Mitchell, Warden, Pinckneyville
Correctional Center as Respondent; (3) alter the case caption to Galloway v. Mitchell; and (4) enter
a Rule 58 judgment in favor of Respondent and against Petitioner. Civil case terminated.
ENTERED:

___
_ ________
_
_______________________
____________________________________
OH
HN J. THARP,
THA
HA
ARP, JR.
JOHN
it d States
St t District
Di t i t Judge
J d
United

Dated: September 1, 2023

44