Booker v. Brannon-Dortch

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOSEPH C. BOOKER (B75795), )

)

Petitioner, )

)

v. ) 10 C 3995

)

)

MARCUS HARDY, Warden, )

)

Respondent. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

Petitioner Joseph C. Booker, a prisoner at the Hill Correctional Center, brings

this pro se habeas corpus action under 28 U.S.C. § 2254 challenging his 2003 murder

conviction 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.

28.) and state appellate court opinions. State court factual findings, including facts set

forth in state court opinions, 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 (2018); Hartsfield v. Dorethy, 949

F.3d 307, 309 n.1 (7th Cir. 2020) (citations omitted). Petitioner has not made such as

showing.

Following a jury trial, Petitioner was convicted of the fatal shooting of Charles

Rails at the Wentworth Gardens housing project on the evening of September 8, 2002.

Illinois v. Booker, No. 1-03-3533 (Ill. App. Ct. 2005) (Dkt. 28-1, pg. 1.). Wentworth

Gardens is a quarter mile south of Comiskey Park (now known as Guaranteed Rate

Field), the home of the Chicago White Sox. Three eyewitnesses, Kenneth Williams,

Darnell Brown, and Louis Dean, all testified at trial that Petitioner was the killer. Id.

at 1-4.

Williams knew Petitioner from the neighborhood because Petitioner frequently

visited a friend who lived at the housing complex. Id. at 1. The victim was

Williams’s longtime friend. Id. at 2. Williams explained that Petitioner and the

victim got into an argument over “gang banging stuff,” sometime between 9:30 and 10

p.m. on the night of the murder. Id. at 1-2. Petitioner and the victim had a second

argument at 10:30 p.m. Id. at 2. At this point, Petitioner got into his car and drove

away. Id.

A few minutes later, Williams saw Petitioner running down the street toward the

victim while holding a gun in his hand. Id. Williams fled in response but saw

Petitioner point the gun at the victim and shoot. Id. Williams then looked back to see

if Petitioner was chasing him. Id. While looking back, Williams saw Petitioner

standing over the victim and he heard more gunshots. Id. Williams said the area was

2

well lit at the time of the shooting. Id. He also identified Petitioner in a lineup two

days after the killings. Id.

A private detective hired by the defense determined that Williams was 35 feet

from the shooting location when he witnessed the killing. Id. at 4. The detective

stated a large tree with a circumference of 29 feet was between Williams’s location and

the killing. Id. Williams repeatedly denied on cross-examination that the tree

obscured his ability to observe the shooting. Id. at 2. Williams also admitted on

cross-examination that he drank two beers earlier that evening, but denied being drunk.

Id.

The second eyewitness, Brown, testified that he was walking with the victim

shortly before the shooting. Id. He stopped to speak to a friend while the victim

continued walking towards Williams, who was sitting on a set of outdoor steps. Id.

Brown, who was then walking towards his home, heard a gunshot followed by four

more shots. Id. at 3. He ducked behind a car when he heard the second set of shots.

Id. He looked up to see Petitioner standing over the victim holding a gun that he placed

on the right side of his body by his hip. Id. Petitioner then got into his car, which

Brown had seen him driving on previous occasions. Id. Brown was four to five car

lengths from Petitioner and the victim when he witnessed these events. Id. He also

said the area was well lit. Id. Brown identified Petitioner at a lineup a few days after

the shooting. Id.

3

On cross examination, Brown stated the shooter’s body was turned sideways

when he stood over the victim preventing him from seeing the shooter’s face. Id. He

also conceded that he picked Petitioner out of the lineup based on what he was wearing

and his build. Id. However, on redirect, Brown clarified that he picked Petitioner out

of the lineup because he saw Petitioner shoot the victim. Id.

The final witness was Louis Dean, a 13-year-old, living in Wentworth Gardens.

Id. He was in his bedroom watching television at 11:30 p.m. on the evening of the

shooting. Id. At some point, he looked out the window and saw the victim, who was

his friend from the neighborhood. Id. Dean explained that he saw Petitioner walk up

behind the victim and shoot him. Id. at 3-4. After the victim fell to the ground, Dean

saw Petitioner standing over the victim firing additional shots. Id. at 4.

Dean admitted on cross examination that he signed a statement given to a police

detective and an assistant state’s attorney two days after the shooting stating that he

heard the gunshots but did not see the shooting. Id. He also stated that he did not

remember telling the grand jury that he did not know where the gunshots came from.

Id. However, Dean clarified at trial that his previous statement to the police and

prosecutor was incorrect, and that he was telling the truth when he testified at trial that

he witnessed Petitioner shoot the victim. Id.

4

The police recovered five cartridge cases and four metal fragments from the

murder scene. Illinois v. Booker, 2017 IL App (1st) 130177-U, ¶ 9. The murder

weapon was not recovered. Id.

The jury found Petitioner guilty at the completion of trial. Dkt. 28-1, pg. 6.

The Appellate Court affirmed Petitioner’s conviction. Id. at 13. The Supreme Court

of Illinois denied his petition for leave to appeal (PLA) completing his direct appeal.

Illinois v. Booker, 217 Ill.2d 607 (2006) (Table).

Petitioner then brought a postconviction petition in the state court that was

denied. Booker, 2017 IL App (1st) 130177-U, ¶ 2. The state appellate court affirmed

the denial, id. at ¶ 3, and the Supreme Court of Illinois denied his postconviction PLA.

Illinois v. Booker, 419 Ill. Dec. 781 (2018) (Table).

Petitioner filed his original federal habeas corpus petition in 2010 when his

postconviction proceedings were then pending before the state trial court. Dkt. 1. The

late Honorable Blanche M. Manning, who was then assigned to this case, stayed the

case pending the completion of Petitioner’s postconviction proceedings. Dkt. 11.

Petitioner returned to this Court and filed an amended petition following the completion

of his state court proceedings. Dkt. 19, pg. 3. The matter was reassigned to this Court

by the Executive Committee. Dkt. 20. The parties have briefed the petition, Dkt. 27,

32, making it ready for the Court’s resolution.1

1 The Court’s December 4, 2018 minute order granted Petitioner’s motion for judicial review.

5

II. Analysis

The amended petition raises the following claims: (1) the trial court erred by

giving a supplemental jury instruction after learning of the numerical division of jurors

regarding the verdict during deliberations; (2) ineffective assistance of trial counsel for

failing to: (a) challenge Petitioner’s arrest, (b) challenge lineup identification, (c)

investigate and secure the attendance of Monica Ramsey at trial; (d) challenge Melissa

Westmoreland as a rebuttal witness to Kenneth Williams’s testimony, and, (e)

investigate potential eyewitnesses Belinda Brown and Antione Ford; (3) ineffective

assistance of appellate counsel for failing to raise Petitioner’s sufficiency of the

evidence claim in his petition for leave to appeal before the Supreme Court of Illinois

on direct appeal; (4) a cumulative error claim predicated upon the sum total of trial and

appellate counsel’s alleged ineffectiveness; (5) a challenge to the sufficiency of the

evidence supporting Petitioner’s conviction; (6) the knowing use of perjured testimony

by the prosecution; and (7) fabrication of evidence by the Chicago Police Department.

We address the claims in turn.

Dkt. 26. The Court granted the motion solely to the extent of allowing Petitioner to proceed

with the arguments along with those in the amended habeas corpus petition. Id.

6

A. Claim One: Jury Instruction Claim

Petitioner argues that the trial judge coerced the jury into rendering a guilty

verdict through the use of a supplemental jury instruction after the jury had informed

the trial court three hours earlier that it seemed deadlocked.

Following the close of evidence, the jury began deliberating at 3:30 p.m, and

later returned a guilty verdict around midnight that evening. Dkt. 28-1, pg. 4, 6. At

6:30 p.m., the jurors sent a note to the judge stating, “we seem to be deadlocked, 9 guilty

3 not guilty, no one wants to change their vote we need direction.” Id. at 4-5. The

trial court instructed the jury to continue deliberating. Id. at 5.

At 7:30 p.m., the trial court granted the jury’s request to review the transcript of

Brown’s testimony. At 9:00 p.m., the jury wrote another letter to the judge stating that

they could not reach a verdict. Id. This time, the trial judge, over defense’s objection,

gave the jury the following Prim instruction:2

Members of the jury, the verdict must represent the considered judgment

of each juror. In order to return a verdict, it is necessary that each juror

agree there to. Your verdict must be unanimous. It is your duty as jurors

to consult with one another and to deliberate with a view to reaching an

agreement if you can do so without violence to your individual judgment.

Each of you must decide the case for yourselves, but do so only after an

impartial consideration of the evidence with your fellow jurors. In the

course of your deliberations do not hesitate to reexamine your own views

and to change your opinions if you are convinced that it is erroneous, but

do not surrender your honest convictions as to the witnesses or effect of

evidence solely because of the opinion of your fellow jurors or for the

mere purpose of returning a verdict. You are not partisans, you are

2 The instruction in this case comes from Illinois v. Prim, 53 Ill. 2d 62 (1972).

7

judges, judges of the facts. Your sole interest is to ascertain the truth of

the evidence in this case. Your continued effort is appreciated.

Id. at 5–6. The trial judge then instructed the jury to continue its deliberations. Id. at

6. At 10:05 p.m., the trial judge granted the jury’s request, over defense’s objection,

to review a transcript of Williams’s testimony. Id. The jury then returned its guilty

verdict at approximately midnight. Id.

Petitioner raised this issue on direct appeal. The state appellate court, the last

state court to address the issue on the merits, rejected the claim concluding that the trial

court’s use of the Prim instruction was non-coercive. Id. at 12. He also raised the

issue in his direct appeal PLA completing the exhaustion of the claim, and the state

supreme court denied the PLA. Dkt. 28-2, pg. 3. Petitioner now renews the issue

before this Court.

Petitioner’s claim is governed by the Antiterrorism and Effective Death Penalty

Act (AEDPA). The Court’s review is of the state appellate court opinion on direct

appeal because that was the last state court to resolve the claim on the merits. 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)).

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

8

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, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting White

v. Woodall, 572 U.S. 415, 419 (2014); Metrish v. Lancaster, 569 U.S. 351, 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 Supreme Court has addressed this area of law through two distinct types of

cases: (1) constitutional, and (2) supervisory via its authority over lower federal courts.

The Court is limited to the Supreme Court’s constitutional decisions because the

Supreme Court made clear that its supervisory authority rulings do not implicate the

constitution, and so do not qualify as “clearly established federal law” applicable to

habeas corpus proceedings under 28 U.S.C. § 2254(d)(1) of the AEDPA. Early v.

Packer, 537 U.S. 3, 10 (2002) (per curiam) (“nonconstitutional decisions are off the

table as far as [Section] 2254(d) is concerned . . . .”).

The Supreme Court’s constitutional holdings instruct that a criminal defendant

tried before a jury has a right to an “uncoerced verdict from that body.” Lowenfield v.

Philps, 484 U.S. 231, 241 (1988). A trial court may give a supplemental instruction as

long as it is not coercive to the jury. Id. at 237. When, as here, a prisoner argues that

a supplemental jury instruction resulted in unconstitutional coercion, the Court’s review

9

is of the “supplemental charge given by the trial court in its context and under all

circumstances.” Id. at 237 (internal quotations and citations omitted).

The clearly established federal law in this area is “sparse” and “provides very

little specific guidance.” Wong v. Smith, 131 S. Ct. 10, 11 (2010) (Alito, J., dissenting

from denial of certiorari). Lowenfield, is the only case from the Supreme Court

“address[ing] the constitutional rule against coercive jury instructions.” Id. Early,

the only other relevant Supreme Court case, does not expand further upon the principles

from Lowenfield. 537 U.S. at 11. “About all that can be said is that coercive

instructions are unconstitutional, coerciveness must be judged on the totality of the

circumstances, and the facts of Lowenfield (polling a deadlocked jury and reading a

slightly modified Allen charge) were not unconstitutionally coercive.” Wong, 131 S.

Ct. at 11 (Alito, J., dissenting from denial of certiorari) (citing 484 U.S. at 237-41).

Petitioner argues that his claim is governed by Brasfield v. United States, 272

U.S. 448 (1926). The Supreme Court in Brasfield held that a trial court’s inquiry into

the numerical division of a deadlocked jury results is per se reversible error. United

States v. Banks, 982 F.3d 1103 (7th Cir. 2020) (citing 272 U.S. at 450). Petitioner’s

invocation of Brasfield must be rejected because it was decided via the Supreme Court’s

supervisory power over the lower federal courts, and is not a constitutional decision.

Lowenfield, 484 U.S. at 239-40, n.3; Lyell v. Renico, 470 F.3d 1177, 1182 (6th Cir.

2006); United States ex rel. Kirk v. Dir, Dep’t of Corr., State of Ill., 672 F.2d 723, 727

10

(7th Cir. 1982). It is true that Lowenfield, which is the clearly established federal law

governing this case under Section 2254(d)(1), discussed Brasfield, but it only did so

within the context of rejecting the prisoner’s “attempt to fit the instant facts within the

holding of Brasfield. . . .” 484 U.S. at 230. The result is that Brasfield’s per se

reversal requirement is inapplicable because it is not clearly established federal law

under Section 2254(d)(1). Early, 537 U.S. at 10; Lowenfield, 484 U.S. 240 n.3.3

Petitioner also argues that Lowenfield and Early do not govern because the juries

in those cases did not provide a breakout of their votes for guilty and not guilty. The

jury in Lowenfield was polled regarding whether further deliberation would be helpful

in obtaining a verdict without inquiring in the jury breakdown as to the verdict. 484

U.S. at 234. In Early, the jury was polled regarding the breakout as to the verdict

stating it was 11-1, but the jury was told not to inform the court as to which side the

votes were on. 527 U.S. at 5. However, there is nothing in Lowenfield or Early to

suggest that the totality of the circumstances test should not be applied in this case.

United States v. Williams, 819 F.3d 1026, 1031 (7th Cir. 2016) (citing Lowenfield, 484

U.S. at 250; United States v. Blitch, 622 F.3d 658, 668 (7th Cir. 2010)) (“To evaluate

3 Beyond the fact that the AEDPA bars the Court’s consideration of Brasfield because it is not clearly

established federal law, Brasfield’s per se reversal rule would be inapplicable to this case even if Petitioner

could overcome the AEDPA hurdle because the jury sua sponte informed the trial court of its numerical

division. United States v. Vanvliet, 542 F.3d 259, 268 (1st Cir. 2008) (explaining that Brasfield’s per se

reversal rule applies when the trial court inquiries into the deadlocked jury’s numerical division, but does

not apply when, like in this case, the jury reveals its division to the court voluntarily); United States v.

Parsons, 993 F.2d 38, 42 (4th Cir. 1993) (same).

11

potential coercion we look at the totality of the circumstances.”)). Therefore, the

totality of the circumstances test from Lowenfield and Early governs this case.

With these principles in mind, the Court turns to Petitioner’s claim. The state

court decision is not contrary to the clearly established federal law as it identified and

applied the controlling standard of evaluating whether the supplemental instruction

coerced the jury based upon the totality of the circumstances. Dkt. 28-1, pgs. 10-13.

That the state court decision did not cite to, nor discussed, Lowenfield or Early, is

irrelevant as the state court need not cite to, nor even be aware of, the Supreme Court’s

cases, “so long as neither the reasoning nor the result of the state-court decision

contradicts them.” Early, 537 U.S. at 8.

The state court ruling is also not an unreasonable application of the clearly

established federal law. As mentioned above, the question of whether a supplemental

jury instruction is coercive is resolved by considering the totality of the circumstances.

Lowenfield, 484 U.S. at 241. “A totality of the circumstances test gives courts

considerable room for judgment,” Dassey v. Dittmann, 877 F.3d 297, 313 (7th Cir.

2017) (en banc), requiring deference under the AEDPA, Yarborough v. Alvarado, 541

U.S. 652, 664 (2004) (citations omitted) (“Applying a general standard to a specific

case can demand a substantial element of judgment. As a result, evaluating whether a

rule application was unreasonable requires considering the rule’s specificity. The more

general the rule, the more leeway courts have in reaching outcomes in case-by-case

12

determinations.”).

The jury instructions in this case are very close to the ones approved of in

Lowenfield. Compare, 484 U.S. at 235, and Dkt. 28-1, pgs. 5-6. The instant

instructions do not single out the jurors in the minority and reinforce the jurors’ right to

stick with their own views while encouraging them to reexamine their own positions

through jury deliberation.

Jury coercion is a greater concern with a traditional Allen instruction, but an Allen

instruction was not given in this case. Allen v. United States, upholds the use of

“dynamite” supplemental jury instructions, “which encouraged the jurors to reconsider

their individual positions and asked minority dissenters whether they ‘might not

reasonably doubt the correctness of a judgment which was not concurred in by the

majority.’” United States v. Collins, 223 F.3d 502, 508 (7th Cir. 2000) (quoting 164

U.S. 492, 501 (1896)). Although the use of an Allen charge is not without controversy,

Collins, 223 F.3d at 508–09, Lowenfield reaffirmed the use of the “traditional” Allen

charge, and in turn, the less invasive “modified” Allen charge approved of in Lowenfield

is of even less concern on the question of jury coercion. 484 U.S. at 237-38.

The challenged instruction in this case comes from Illinois v. Prim, 53 Ill. 2d 62

(1972). The Prim instruction, which is codified as Illinois Criminal Pattern Jury

Instruction 26.07, was adopted by the Supreme Court of Illinois as a rejection of Allen’s

standard which urged the jurors in the minority to reevaluate their positions. Illinois

13

v. Jones, 2011 IL App (1st) 090675-U, ¶ 34. That the jury instruction in this case is

similar to the approved instruction of Lowenfield, supports the reasonableness of the

state court determination there was no jury coercion. See Early, 537 U.S. at 8 (noting

that use of state court’s standard jury instructions rejecting Allen charge and instead

opting for a less coercive standard is evidence in support of conclusion that there was

no jury coercion in that case).

The state’s determination of no jury coercion is also supported by the passage of

time during deliberations. Lowenfield, 484 U.S. at 240 (“We are mindful that the jury

returned with its verdict soon after receiving the supplemental instruction, and that this

suggests the possibility of coercion.”). In the instant case, the jury provided its

numerical breakout to the trial court at 6:30 p.m. after three hours of deliberating. The

trial court’s answer at that time was simply to instruct them to continue deliberating.

The jury then asked for a transcript of Brown’s testimony at 7:30 p.m., and then only

received the challenged instruction at 9:00 p.m. after again stating they could not reach

a verdict. The lapse of two and half hours between informing the trial court of their

numerical division at 6:30 p.m. and the challenged instruction at 9:00 p.m. (along with

the intervening event of asking for a transcript) lessens any concern regarding jury

coercion. Beyond this point, the jury continued to deliberate for an additional three

hours after receiving the challenged instruction and delivering its verdict at midnight.

This three-hour period also supports the state court’s conclusion that there was no jury

14

coercion. United States v. Banks, 982 F.3d 1098, 1105 (7th Cir. 2020); United States

v. Williams, 819 F.3d 1026, 1034 (7th Cir. 2016). In sum, the state court’s conclusion

that there was no jury coercion in this case is not an unreasonable determination under

the AEDPA’s deferential standard. Accordingly, Claim One is denied.

B. Petitioner’s Remaining Claims

Respondent argues that Petitioner’s remaining claims are procedurally defaulted.

To preserve a claim for federal habeas corpus review, a prisoner must fairly present the

claim through one complete round of state court review, including through a PLA

before the Supreme Court of Illinois. O’Sullivan v. Boerckel, 526 U.S. 838, 845–46

(1999); Weaver v. Nicholson, 892 F.3d 878, 886 (7th Cir. 2018).

Petitioner, represented by private counsel, raised two claims before the state

appellate court on direct appeal: (1) a challenge to the sufficiency of the evidence

supporting his conviction; and (2) the trial court’s supplemental jury instruction resulted

in jury coercion. Dkt. 28-2, pg. 2. His direct appeal PLA before the Supreme Court

of Illinois was limited to the jury coercion issue, and the sufficiency of the evidence

claim was not raised. Dkt. 28-2, pg. 9. The result is that the jury coercion claim,

which was raised in Claim One and resolved above, was the only properly preserved

claim on direct appeal. The sufficiency of the evidence claim, that Petitioner now

raises in Claim Five, is procedurally defaulted for failing to be raised in his direct PLA.

Boerckel, 526 U.S. at 845–46.

15

Petitioner’s postconviction proceedings did not properly exhaust any claims for

federal habeas corpus review. His postconviction petition before the state trial court

alleged ineffective assistance of trial and appellate counsel, prosecutorial misconduct

for wrongfully withholding material information from the defense, and new evidence

demonstrating his actual innocence. Booker, 2017 IL App (1st) 130177-U, ¶ 14. The

trial court initially summarily dismissed the petition, but the state appellate court

reversed and remanded for additional proceedings. Id. at ¶ 16. The state trial court

again dismissed the ineffective assistance of counsel claims, but held an evidentiary

hearing on the actual innocence claim. Id. at ¶¶ 17, 20. The state court again denied

the postconviction petition following the evidentiary hearing, and Petitioner again

appealed to the appellate court. Id. at ¶¶ 23–24.

Importantly, Petitioner only raised the actual innocence claim (along with a claim

for DNA testing) in his appeal before the state appellate court. Id. at ¶ 2; Dkt. 28-4,

pgs. 2-6. Petitioner’s postconviction PLA only raised the actual innocence issue.

Dkt. 28-5, pg. 52. Petitioner therefore only properly preserved an actual innocence

claim in his postconviction proceedings, but he does not bring a freestanding actual

innocence claim in this case.4 As a result, Petitioner only properly preserved Claim

One—the jury coercion claim—and his remaining claims in the instant habeas corpus

4 Petitioner does argue that actual innocence excuses his procedural defaults, which the Court addresses

below.

16

petition are procedurally defaulted.

The Court recognizes that Petitioner attempted to submit pro se supplemental

briefs before the state appellate and supreme court in his postconviction proceedings.

Dkt. 19, pgs. 26-33; 62-72. However, these requests were denied by the state courts

because Petitioner was represented by counsel in those proceedings, and had no right

to bring his own pro se supplemental filings. Id. at 43, 75; see also United States ex

rel. Harvey v. Lemke, 2014 WL 2598843, at *3 (C.D. Ill. 2014) (noting that Illinois has

a “well-established rule” barring hybrid representation). The state court’s denial of

Petitioner’s attempt at hybrid representation results in an adequate and independent

state ground of decision barring these filings from exhausting claims for habeas corpus

review. Clemons v. Pfister, 845 F.3d 816, 820 (7th Cir. 2017). Respondent is correct

that all of Petitioner’s claims, except for the Claim One jury coercion issue, are

procedurally defaulted.

Petitioner cannot excuse his defaults through either cause and prejudice, or a

fundamental miscarriage of justice. 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

17

counsel. Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007) (citing McCleskey v.

Zant, 499 U.S. 467 (1991)).

Any failure by Petitioner’s counsel to raise a claim either in the direct appeal

PLA or postconviction proceedings does not excuse the default. An ineffective

assistance of counsel argument asserted to excuse a default must, itself, be properly

preserved in the state courts. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Smith

v. Gaetz, 565 F.3d 346, 352 (7th Cir. 2009). Petitioner has not exhausted any

ineffective assistance of counsel argument to excuse the default of his claims.

Moreover, ineffective assistance of counsel in these settings are not grounds for

excusing a procedural default. Davila v. Davis, 137 S. Ct. 2058, 2062-63 (2017)

(holding that ineffective assistance of postconviction appellate counsel does not excuse

a default of claims); Contreras v. Lashbrook, 2018 WL 888754, at *3 (N.D. Ill. 2018)

(noting that ineffective assistance of direct appeal PLA counsel does not excuse

defaulted claims).

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 that “‘in light of the new evidence, no juror, acting reasonably, would

have voted to find him guilty beyond a reasonable doubt.’” McQuiggins 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. McQuiggins, 569 U.S. at 386 (citing

18

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 claims that Kenneth Williams, who testified as an eyewitness against

him at trial, is the actual killer. The state court conducted an evidentiary hearing on

Petitioner’s freestanding state law actual innocence claim where he testified on his own

behalf. In his testimony, Petitioner placed himself in Wentworth Gardens very close

to the crime scene on the evening of the shooting. Dkt. 28-8, pg. 16. He explains that

he went to Melissa Westmoreland’s Wentworth Gardens’ apartment at 257 West 38th

Place in Chicago, Illinois. Id. Petitioner concedes he is a drug dealer and used

Westmoreland’s apartment as a drug selling location. Id. at 15–16. He conducted

drug sales with an individual at Westmoreland’s apartment and then stayed after while

Westmoreland braided his hair. Id. at 16. According to Petitioner, Williams was

across the street from Westmoreland’s apartment while Petitioner was in the apartment

19

selling drugs. Id. at 15-16. Per Petitioner, one of the men to whom he sold drugs in

the apartment got into a verbal altercation with Williams after the man left

Westmoreland’s apartment. Id. at 16-17. Petitioner was not present for the

altercation between his customer and Williams as Petitioner was still in Westmoreland’s

apartment at that time. Id. at 17.

Petitioner states he left Westmoreland’s apartment and went to the apartment of

his fiancé Caroline Wilson and their three children at 2931 South Federal in Chicago

later that evening, but does not give an exact departure or arrival time. Id. Google

Maps shows that Wilson’s apartment is approximately 1.7 miles from Westmoreland’s

apartment.5 Neither Westmoreland nor Wilson testified at the state evidentiary

hearing, and neither provides an affidavit in support of Petitioner’s actual innocence

claim.

The record contains a portion of a police report summarizing an interview of

Westmoreland taken by investigating detectives. Dkt. 19, pg. 73. According to the

detectives’ report, Petitioner, who Westmoreland identified as her boyfriend, arrived at

her apartment on the evening of the murder at approximately 7 p.m. Id. He stayed

until approximately 10 or 10:30 p.m. Id. Five other men came to her home with

Petitioner and stayed the entire time while he was there. Id. She walked out with

Petitioner and the men when they exited her apartment. Id. Westmoreland saw a

5 http://tiny.cc/bwpwtz

20

group of approximately 20 people standing across from her apartment drinking and

talking among themselves. Id. Westmoreland parted ways from Petitioner and the

other men and walked to the rear of her home where she sat down. Id. While sitting,

she heard several gunshots being fired at the front of her building. Id. She ran into

her apartment to check on her children and then exited the front of her apartment to

investigate. Id. She saw a man laying on the ground shot and heard people in the

group saying that one of the men from the group that exited Westmoreland’s apartment

had shot the victim. Id. A handwritten statement by Westmoreland given to the

police stated that Petitioner left her house approximately a half hour before she heard

the gunshots. Booker, No. 2017 IL App (1st) 130177-U, ¶ 19.

Antione Ford and his then-fiancé Belinda Brown were Westmoreland’s next-

door neighbors at the time of the shooting. Dkt. 28-6, pg. 1. Ford provided an

affidavit more than 12 years after the murder, and also testified at the state evidentiary

hearing. Dkt. 28-6, pg. 1; Booker, No. 2017 IL App (1st) 130177-U, ¶ 20. His

testimony at the evidentiary hearing and his affidavit are essentially the same. Booker,

2017 IL App (1st) 130177-U, ¶ 22.

Ford stated that he and his fiancé were very social with their neighbors including

Westmoreland. Dkt. 28-6, pg. 1. Westmoreland had previously introduced them to

Petitioner. Id. Ford also claimed to know Williams. Id. According to Ford,

Williams was a “senior regent” in the Gangster Disciples street gang. Id. He

21

effectively “called the shots for the entire neighborhood.” Id. Ford was previously a

member of a different gang, Black Disciples, but alleges he stopped being a member of

the gang in 2001 after he was shot. Id. at 2.

Ford claimed that he and his fiancé were sitting on the front steps of their

apartment when Petitioner arrived at Westmoreland’s apartment next door around 6:30

or 7:00 p.m. Id. Williams and a group of other men were sitting across the way for

several hours that evening drinking and doing drugs. Id. at 3. At approximately 10

or 10:30 p.m., Petitioner and two other men left Westmoreland’s apartment. Id.

Petitioner got into his car and drove away according to Ford. Id.

Ford claims that the victim appeared on the scene 15-20 minutes after Petitioner

left. Id. According to Ford, the victim was upset with Williams and the other

Gangster Disciples in the group across the way. Id. at 3-4. The victim, who had been

released from the penitentiary that day, was mad that the gang had not provided him

financial support in prison, bond money, or paid for a lawyer during his criminal matter.

Id. at 4. Ford stated that the victim told the group that he would start cooperating with

the police in response to being abandoned by the gang. Id. This led to an argument

between Williams and the victim, and then a fight. Id. Williams and the victim were

initially separated, but eventually the men would speak again. Id. at 4-5. At this

point, Ford and his fiancé had gone into the apartment out of concern that there might

22

be trouble. Id. Ford claims he was sitting in their apartment looking out the window

when he witnessed Williams shoot the victim. Id.

Ford conceded that he initially told the investigating police officers on the night

of the shooting that he did not see anything explaining he lied out of fear that speaking

to the police would place him and his family in danger. Booker, 2017 IL App (1st)

130177-U, ¶ 19. Ford was imprisoned in 2004 for an unrelated 60-year murder and

armed robbery sentence. Beyond fearing for his life, Ford explained that he initially

did not come forward due to not knowing Petitioner’s real name. Id. at ¶ 35.

The trial court at the conclusion of the evidentiary hearing rejected Ford’s

testimony finding he was not credible. Id. at ¶ 23. The court noted that Ford waited

more than 12 years after the shooting, including more than a decade of which was in

prison, before coming forward. Id. at ¶ 35. The trial court also found Ford less

credible due to his status as a convicted felon. Id. at ¶ 36.

Petitioner’s final witness at the state evidentiary hearing was Ellen Anderson.

Id. at ¶ 15. Anderson provided an affidavit in which she stated that she witnessed

Williams shoot the victim. Id. She also said that Williams followed her after the

shooting and told her to “keep her mouth shut.” Id.

Anderson, however, recanted her affidavit when testifying at the evidentiary

hearing. Id. at ¶ 21. She explained that she and Petitioner had sporadically dated over

a 10-year period and did not want to see him in prison. Id. She visited him about 10

23

times in prison and believed him to be innocent. Id. The trial court concluded her

affidavit was “a lie, that she was not out there, that she did not see any shooting, that

she had a relationship with Petitioner and she felt badly for him, she wanted to help

him.” Id. at ¶ 23.

Petitioner cannot demonstrate actual innocence based on the foregoing evidence.

The reports involving Westmoreland do not help Petitioner. Westmoreland conceded

to the police that she was not with Petitioner when she heard the gun shots, and that

Petitioner had left her company shortly before the shooting in front of her home.

Westmoreland is not an alibi witness nor an eyewitness. Petitioner does not account

for his whereabouts at the time of the shooting and no one claims to be with Petitioner

at the time of the shooting. Notably, Petitioner places himself very close to the

shooting location at Westmoreland’s apartment for much of the evening, and then says

he traveled to another apartment less than two miles away.

The two witnesses who testified at the evidentiary hearing, Anderson and Ford,

were rejected by the state trial court. A state court’s credibility determination has a

presumption of correctness, but the Court can reject that presumption when the state

decision is objectively unreasonable. Coleman v. Hardy, 628 F.3d 314, 320 (7th Cir.

2010) (applying presumption of correctness to state court factual findings when federal

court is considering actual innocence argument). The state trial court’s credibility

24

determinations are reasonable and so are afforded the required presumption of

correctness.

First, Anderson recanted her affidavit and testified that she was not present at the

shooting. There is no reason to reject the state court’s determination on this point.

Second, the state court was reasonable in rejecting Ford’s testimony. As the

state court correctly noted, more than 14 years passed between Ford allegedly

witnessing the shooting and providing an affidavit in support of Petitioner. A delay in

tendering new evidence undermines the credibility of the evidence. McQuiggin, 569

U.S. at 399–400. As the state trial court properly recognized, Ford’s multiple year

delay, especially once he was incarcerated and thus theoretically no longer in danger

from retaliation, undermines his credibility. Equally, Petitioner made no apparent

efforts to seek out Ford’s testimony even though he allegedly would have known Ford

was a likely witness having been friendly with him in the past and walking by him when

going into and out of Westmoreland’s neighboring apartment. Finally, the state trial

court was correct to note that Ford’s credibility was undermined by his prior felony

conviction. Fed. R. Evid. 609(a).

In sum, the state trial court correctly dispatched Petitioner’s proposed evidence.

Applying the required presumption of correctness in this proceeding, Petitioner lacks

the necessary evidence to demonstrate his actual innocence.6

6 For argument sake, even if the state court’s factual determination was unreasonable and not afforded the

25

One final point needs to be addressed. In addition to the evidence presented at

the evidentiary hearing, Petitioner now raises new allegations of police misconduct that

he believes supports his innocence claim. The first involves the Chicago Police

Department’s past use of “street files.” Street files are investigative files compiled by

police detectives containing exculpatory evidence. Fields v. City of Chicago, 981 F.3d

534, 542 (7th Cir. 2020). Street files are wrongfully withheld from the prosecution

and defense attorney preventing the use of the exculpatory evidence at trial. Id.

Petitioner argues that his case involves an improper street file, but the evidence he

presents in the record does not support that conclusion. The only material he provides

on this point is a single page letter from attorney H. Candace Gorman. Ms. Gorman

explains that she represents a client in an unrelated case that involved a suppression of

evidence in a street file. Dkt. 32, pg. 55. Although the letter is unclear, it appears that

Ms. Gorman and Petitioner were in contact as part of her efforts to conduct a systemic

review of Chicago Police Department street files in support of a Monell v. Department

of Soc. Servs. of the City of New York, 436 U.S. 658 (1978), claim in an unrelated civil

presumption of correctness, Petitioner would still be unsuccessful with his actual innocence argument.

Most charitably, Petitioner can muster two witnesses (Anderson and Ford) who claim they witnessed

Williams shoot the victim. As mentioned above, these witnesses are discredited, but even if they were not,

they would still not be enough to demonstrate actual innocence as the three eyewitnesses who testified

against Petitioner at trial remain unimpeached. Smith v. McKee, 598 F.3d 374, 388 (7th Cir. 2010)

(explaining that creating a battle of conflicting eyewitnesses does not demonstrate actual innocence);

Hayes, 403 F.3d at 937 (same).

26

rights case brought by a different individual represented by Ms. Gorman. Fields, 981

F.3d at 542–43.

The Court sees no value to Petitioner from Ms. Gorman’s letter. There is

nothing in the record suggesting that there is a street file in Petitioner’s case or that it

contains exculpatory evidence demonstrating his innocence. Alleged misconduct by

police officials in other cases does not, by itself, demonstrate the prisoner is innocent

in his case. McDowell, 737 F.3d at 484. Petitioner provides no evidence to tie the

alleged police misconduct Ms. Gorman was investigating to the instant matter.

Petitioner also points to further concerns of police misconduct. He claims that

Chicago police detectives Chester Bach and David Evans worked on his case. He

asserts these officers were part of disgraced detective Ronald Watts’ corrupt group of

officers who extorted drug dealers. United States v. Watts, No. 12 CR 87 (N.D. Ill.).

He also notes that the officers worked a case of a different defendant, Norman

McIntosh, who was later released from custody due to police wrongdoing. Petitioner

argues that the officers framed him for the murder when he failed to provide them

payoffs as they demanded.

Like the street file allegation, Petitioner fails to connect misconduct in other

cases to his case. He provides no evidence demonstrating that the police officers

framed him for this crime as he alleges. Moreover, it is notable that this proceeding,

now almost two decades after the murder, is the first time Petitioner is making this

27

allegation of police misconduct. The lateness of the argument undermines its

credibility. McQuiggin, 569 U.S. at 399–400.

In sum, Petitioner cannot demonstrate actual innocence to excuse his procedural

default of his remaining claims. Accordingly, Claims Two through Seven are denied.

The habeas corpus petition is therefore denied on the merits.

III. Certificate of Appealability and Notice of Appeal Rights

The Court declines to issue a certificate of appealability. Petitioner cannot make

a substantial showing of the denial of a constitutional right; i.e., 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)).

Petitioner is advised that this is a final decision ending his case in this Court. If

Petitioner wishes to appeal, he must file a notice of appeal with this Court within thirty

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

Petitioner 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).

28

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 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).

IV. Conclusion

Petitioner’s amended habeas corpus petition (Dkt. 19.) 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

Marcus Hardy, and replace him with Petitioner’s current custodian, Christine Brannon-

Dortch, Warden, Hill Correctional Center; (2) alter the case caption to Booker v.

Brannon-Dortch; and, (3) enter a Rule 58 judgment in favor of Respondent and against

Petitioner. Civil Case Terminated.

Dated: 05/13/2021 O P v

CharlesP.Kocoras

United States District Judge

29