White v. Jones

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KENYATTA WHITE,

Petitioner

No. 21 CV 3499

v.

Judge Jeremy C. Daniel

TIFFANIE CLARK,

Respondent

MEMORANDUM OPINION AND ORDER

Following a bench trial in the Circuit Court of Cook County, Petitioner

Kenyatta White was convicted of first-degree murder for the shooting of Aramein

Brown and was sentenced to fifty-five years’ imprisonment. The petitioner seeks a

writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that he was denied his

right to effective assistance of both trial and appellate counsel, and that his due

process rights were violated during his trial. For the reasons below, the Court denies

the petition and declines to issue a certificate of appealability.

BACKGROUND1

I. THE SHOOTING AND THE PETITIONER’S TRIAL

Around 10:30 p.m. on January 6, 2003, Aramein Brown was shot and killed at

a gas station located at the corner of 79th Street and Yates Avenue in Chicago,

1 The background facts are drawn from the state court record, (R. 22; R. 38), and from the

Illinois Appellate Court’s and the Illinois Supreme Court’s opinions on direct appeal and

postconviction review. The Court presumes that the state court’s factual determinations are

correct as the petitioner neither contests them nor points to clear and convincing evidence to

the contrary. See Hartsfield v. Dorethy, 949 F.3d 307, 309 n.1 (7th Cir. 2020) (citing 28 U.S.C.

§ 2254(e)(1); Perez-Gonzalez v. Lashbrook, 904 F.3d 557, 562 (7th Cir. 2018)).

Illinois. People v. White, 956 N.E.2d 379, 381 (Ill. 2011). An investigation into the

murder led to the petitioner’s arrest in East St. Louis, Illinois on February 20, 2003.

Id. A few days later, the petitioner was transported back to Chicago, placed in a

lineup, and positively identified as the shooter by two witnesses. Id. at 381–82, 387.

The petitioner’s attorney was present at the lineup but was not permitted in the room

with the witnesses to observe their identifications. Id. at 381.

The case proceeded to a bench trial on January 24, 2006.2 Id. at 383. Although

multiple eyewitnesses identified the petitioner as the shooter in police interviews, a

photo array, an in-person lineup, and grand jury testimony, the petitioner’s trial was

marred by questionable motives, shifting testimonies, and recantations. People v.

White, 2020 IL App (1st) 182237-U, ¶ 5. “The evidence suggested [the petitioner] was

a known criminal leader in the neighborhood where the shooting took place, the

victim and his family were also involved in criminal activity, and many of the

witnesses feared retaliation by [the petitioner] and/or the victim’s families.” Id. There

was, however, a disinterested witness, namely Sherry Collier, who provided

consistent, unequivocal testimony that the petitioner was the shooter. Id.

Collier testified that, at the time of the shooting, she had just moved to the

neighborhood with her five-year-old grandson. White, 956 N.E.2d at 386. That night,

Collier and her grandson were at the gas station using the payphone. Id. Collier

observed a van at the gas pump and noticed a person coming toward her down 79th

2 On the day of trial, the trial court denied the petitioner’s co-counsel’s motion for leave

to file an appearance on behalf of the petitioner due to a conflict of interest. People v. White,

917 N.E.2d 1018, 1021 (Ill. App. Ct. 2009).

Street. Id. The man came within five feet of her and her grandson, and Collier said

she got a “good look” at the man, testifying that he had a “distinct face.” Id. Collier

explained that the petitioner pulled out a gun, walked toward the pumps, and shot a

man standing by the van before fleeing from the scene. Id. She spoke to police officers

that night and described the shooter as having dreadlocks and wearing black pants,

a black hoodie, a leather jacket, and a skullcap. Id. at 386–87. Collier identified the

petitioner as the shooter in a photo-array, in a lineup, and in open court at trial. Id.

In addition to Collier, the State called two other eyewitnesses at the

petitioner’s trial, Martina Brewer and Shawn Davis. Id. at 383–86, 388. Brewer was

Aramein’s girlfriend and was present with him at the gas station on the night he was

killed. Id. at 383. Brewer testified that the victim was outside talking to his cousin

when she heard a loud sound like a firecracker. Id. She looked up and saw a man

running away and the victim fall to the ground. Id. Brewer testified that she ran after

the shooter but eventually returned to the gas station at which time she was

approached by Ajani Brown, the victim’s brother. Id. According to Brewer, she told

Ajani that she did not know who shot his brother, and he instructed her to say that

“Yatta” did it if anyone asked. Id. Brewer maintained at trial that she did know who

the shooter was but acknowledged that she previously identified the petitioner as the

offender in a photo-array and in her grand jury testimony. Id.

The State’s third eyewitness, Shawn Davis, testified that he was living on

Yates Avenue on the date of the shooting. Id. at 388. Davis was exiting his home that

evening when he heard three gunshots coming from the direction of the gas station.

Id. He looked in the direction of the gunshots and saw a man running toward a

burgundy car. Id. The man got into the passenger side, and the car sped away. Id.

Davis testified that there is a streetlight in front of his house, and he saw the man’s

face illuminated by the light. Id. He identified the petitioner as the man he saw that

night in a photo-array and in open court at trial. Id. at 388, 391.

The State also adduced testimony from multiple police detectives,

investigators, and Assistant State’s Attorneys regarding their investigation of the

murder and the witnesses’ out-of-court identifications. One of the Assistant State’s

Attorneys testified that he met with Brewer prior to her grand jury testimony, and

she related to him that she knew the shooter by the name of “Yatta,” identified the

petitioner as the shooter by his photo and indicated that no one had threatened or

coerced her to identify the petitioner as the shooter. Id. at 386. One of the

investigators testified that he was present for a discussion with Brewer during which

she related that she was afraid to testify against the petitioner because she heard

that there was going to be a “hit” on her if she did. Id. at 389. During that

conversation, Brewer was asked whether the petitioner shot the victim, to which she

responded affirmatively, acknowledging that the petitioner had a distinctive face. Id.

Brewer further related that she had heard the petitioner had intended to kill Ajani

but mistook the victim for his brother. Id. One of the responding police officers

testified that he spoke with Brewer, Collier, and Davis when he arrived on scene, and

all three provided a similar description of the offender as wearing dark or black

clothing. Id. at 390. Finally, one of the detectives testified that Collier identified the

petitioner immediately upon viewing the lineup. Id. at 391.

At the close of the State’s case, the petitioner moved for a directed finding. Id.

at 392. In arguing that motion, the petitioner’s counsel addressed his decision not to

challenge Brewer and Collier’s photo-array and lineup identifications, explaining:

. . . And the reason being, your Honor, is I don’t know how

the police department could create a fair lineup with Mr.

White. I don’t know how they could do it.

When the court as the trier of facts looks over and looks at

Mr. White, there’s one thing that is obvious; and, that is,

Mr. White’s facial features. We can’t get by that. We can’t

get around that.

Id.

The trial court denied the petitioner’s motion. Id. at 393. In doing so, the trial

court found Brewer’s “grand jury testimony, her statements to the police immediately

following [the shooting], [and] her identification to the defendant in a photo array to

the police” to be more credible than her recantation as to the shooter’s identity at

trial. Id. The trial court also noted that Collier’s testimony supported Brewer’s

testimony and that Davis corroborated the petitioner’s flight from the scene. Id.

For his defense, the petitioner called witnesses who testified that they either

saw the shooter and it was not the petitioner or equivocated in their prior

identifications. Samantha Davis, Shawn’s sister who lived with him on Yates Avenue,

testified that the petitioner was not the man that she saw running away on the night

of the shooting, but acknowledged that she had initially told the police that she would

not be able to identify the shooter. Id. at 393–94. Brian Williams, who was driving

and stopped at a nearby intersection at the time of the shooting, testified that he was

not initially involved in the investigation, but three years later, and one week before

trial, a private defense investigator met with him and showed him a photo of the

petitioner (who he did not recognize as the shooter). Id. at 404–06. Ryan Slaughter,

who was in the car with Williams, identified the petitioner as the shooter by photo,

in a lineup, and in his grand jury testimony, but equivocated on his identification at

trial, testifying that he told the police officers that the person he identified resembled

the shooter, but he never said for certain it was him. Id. at 382, 398–99.

The petitioner also called two alibi witnesses, Annie Mae Handy and Tonya

Evans, who testified that the petitioner was at their house on the night of the shooting

and that he did not leave until around 11:00 p.m. Id. at 395–96. Although Handy

testified that the petitioner would occasionally show up at her residence, neither she

nor Evans could provide any dates that the petitioner had been to their house prior

to the night of the shooting. Id. Both witnesses acknowledged that the petitioner

called them the day after the shooting to secure his alibi, telling them that he had

been accused of killing somebody. Id.

Another witness, Akim Akbar, testified that he and David Jennings, the

victim’s cousin, went to the gas station on the night of the shooting to sell marijuana

to the victim. Id. at 397. Akbar testified that he was returning to his van from inside

the gas station when he saw a man start shooting at the victim. Id. Akbar knew the

petitioner, but said the shooter was not him. Id. He acknowledged that he was aware

the police were looking for the petitioner, but never told anyone that the shooter was

someone else. Id. Akbar testified that he knew that there was animosity between the

petitioner and the victim’s family at the time of the shooting. Id.

The petitioner also testified at trial. He attributed his “distinctive look” to a

condition called acromegaly, a growth hormone defect that causes protruding

growth.3 Id. at 400. The petitioner acknowledged that he knew the victim’s family

and confirmed that they had a “falling out” in late 2002 or early 2003 when the

petitioner discovered that Ajani Brown was “wearing a wire for the government.” Id.

The petitioner further related that his nephew, Antwon White, was killed in

November 2002, and Aramein’s other brother, Sundiata Brown, had been arrested in

connection with the killing. Id. Despite this acrimonious relationship with the Brown

family, the petitioner maintained that he did not have anything to do with the killing

of Aramein. Id. Instead, his testimony regarding his whereabouts that evening

tracked that of Handy’s and Evans’ testimony. Id. at 400–01. He acknowledged that

he knew the police were looking for him in connection with the shooting, but that he

did not go to the police with his alibi. Id. at 401. Instead, he went to East St. Louis

with Handy’s other daughter, Anastasia Smith. Id.

Following presentation of the State’s rebuttal case, during which it called

investigators, police officers, and Assistant State’s Attorneys to testify regarding

their interactions with the defense’s witnesses (Handy, Evans, Smith, Slaughter, and

Samantha Davis), the parties made their closing arguments, and the trial court

3 See Acromegaly, CLEVELAND CLINIC, https://my.clevelandclinic.org/health/diseases/177

43-acromegaly.

rendered its decision. Id. at 403–04, 406. Based on the credibility of the witnesses and

the reasonableness of their testimony, the trial court concluded that the petitioner

was proven guilty of first-degree murder. Id. at 407.

On the hearing date for posttrial motions and sentencing, the petitioner,

through trial counsel, informed the trial court that he wished to have a different

attorney represent him for posttrial proceedings and requested a continuance to

permit the new attorney to appear and “get[ ] up to speed.” White, 2020 IL App (1st)

182237-U, ¶ 10. The trial court denied the petitioner’s request and the matter

proceeded on the petitioner’s trial attorney’s posttrial motion. Id. The trial court

denied the motion, id., and sentenced the petitioner to fifty-five years’ imprisonment.

People v. White, 03 CR 710901, 2006 WL 6394442 (Ill. Cir. Ct. Mar. 9, 2006).

II. DIRECT APPEAL

The petitioner appealed his conviction, arguing that he was denied his Sixth

Amendment right to counsel on two occasions: (1) when the police barred his trial

attorney from observing witnesses identify the defendant in a lineup, and (2) when

the trial court denied co-counsel’s motion for leave to file an appearance at the start

of trial. (R. 38-1 at 26–55.) Although the petitioner procedurally defaulted these

claims by failing to raise them in a posttrial motion, the Illinois Appellate Court

considered them under the closely-balanced-evidence prong of Illinois’ plain-error

doctrine.4 People v. White, 917 N.E.2d 1018, 1026–27 (Ill. App. Ct. 2009). The state

4 Illinois’ plain-error doctrine allows a reviewing court to consider an unpreserved claim

when there is a clear or obvious error and (1) the evidence is closely balanced or (2) the error

is so serious that it affects the fairness of the defendant’s trial. See People v. Piatkowski, 870

N.E.2d 403, 410–11 (Ill. 2007).

appellate court concluded there was no Sixth Amendment violation as to either issue

and affirmed the petitioner’s conviction. Id. at 1036, 1040, 1043–44.

The petitioner, through counsel, challenged the state appellate court’s ruling

in a petition for leave to appeal (“PLA”) to the Illinois Supreme Court. (R. 38-4.) He

argued that the appellate court erred in holding no Sixth Amendment violation with

respect to the lineup procedures. (Id. at 9–17.) The Illinois Supreme Court granted

leave to appeal and affirmed the appellate court’s judgment insofar as it upheld the

petitioner’s conviction. White, 956 N.E.2d at 381. The state’s highest court held,

however, that—contrary to the petitioner’s argument and the appellate court’s

finding—the evidence was not closely balanced and, thus, the Sixth Amendment

claim did not fall within the purview of Illinois’ plain-error doctrine. Id. The Illinois

Supreme Court rejected the parts of the appellate court’s opinion “that discussed, and

rendered holdings on, the issues of attachment of the right to counsel and the lineup

procedure employed,” finding the appellate court’s consideration of these issues

“unnecessary[y].” Id. at 417.

III. POSTCONVICTION PROCEEDINGS

Following completion of his direct appeal, the petitioner, through counsel, filed

a postconviction petition that raised various claims, including:

1. Actual innocence

2. Ineffective assistance of trial counsel for failing to:

(a) call Sundiata Brown as a witness

(b) impeach Collier with a prior statement

(c) retain an independent ballistics expert

3. Ineffective assistance of appellate counsel for failing to argue:

(a) the denial of the petitioner’s motion for substitution of

counsel violated the Sixth Amendment

(b) Illinois’ plan-error doctrine permitted review of the Sixth

Amendment lineup procedure claim

(c) trial counsel was ineffective for failing to move to suppress

the lineup on grounds that: (i) trial counsel was barred

from observing the witnesses’ identifications; (ii) there was

a delay in presenting the petition for his initial court

appearance; and (iii) the lineup was unduly suggestive

(d) trial counsel was ineffective for failing to challenge the

photo-array as suggestive

4. Cumulative error

(R. 22-3 at 223–45.)

In support of his actual innocence argument, the petitioner advanced a theory

that Daryl Boston, a hitman from the Gangster Disciples street gang, shot Aramein

in retaliation for a home invasion that was allegedly perpetrated by Aramein’s

brother, Ajani. (Id. at 223–24.) The petitioner submitted various affidavits in support

of this theory, including affidavits authored by: Monte Dawson, an investigative

consultant retained by the petitioner for his post-conviction proceedings, (R. 22-3 at

249–53 (“Dawson Aff.”)); Marshaun Laws, a Gangster Disciples member who

allegedly assisted Boston with the hit on Aramein, (R. 22-3 at 280 (“Laws Aff.”));

David Jennings, Aramein’s cousin who was present at the gas station on the night of

the shooting, (R. 22-3 at 264–66 (“Jennings Aff.”)); and Blessth Beacham, a friend of

the petitioner. (R. 22-3 at 268–69 (“Beacham Aff.”).)

Dawson’s affidavit stated that he interviewed Laws who told him that Boston

shot Aramein. (Dawson Aff. ¶¶ 2, 14.) Laws’ affidavit stated he was near the gas

station at the time of the shooting, that he saw the person who shot Aramein, and

that the petitioner was not the man he saw. (Laws Aff. ¶¶ 1–6.) Jennings’ affidavit

related that “[t]he guy who shot [his] cousin was smaller, much younger guy than

[the petitioner].” (Jennings Aff. ¶ 7.) And Beacham said that she visited Ajani in Cook

County Jail after hearing rumors that he had framed the petitioner for Aramein’s

murder and that Ajani admitted to the framing. (Beacham Aff. ¶¶ 3–5.)

The petitioner also submitted a DEA Report summarizing an interview with

Aramein’s brother, Sundiata Brown, to corroborate Brewer’s testimony that she was

approached by Ajani following the shooting. (R. 22-3 at 225.) In the report, Sundiata

related that he and Ajani went to the scene after Ajani received a phone call from

Jennings that Aramein had been shot. (Id. at 260.)

The post-conviction trial court denied the petitioner’s post-conviction petition

at the first stage of proceedings as “patently frivolous and without merit and res

judicata from Appellate Court.” (R. 38-9 at 63–64.) The petitioner appealed, (id. at 1–

52), and the Illinois Appellate Court reversed, holding that the petition was sufficient

to advance to the second stage of postconviction proceedings. People v. White, 24

N.E.3d 158, 167–68 (Ill. App. Ct. 2014).

On remand, the petitioner, through counsel, filed a supplemental petition that

added a due process claim, alleging that the State failed to disclose that Shawn Davis

had recanted his testimony and knowingly used the witness’ perjured testimony at

trial. (R. 22-3 at 520–26.) To support these supplemental claims, the petitioner

attached Shawn Davis’ affidavit to his postconviction petition. (Id. at 529–30 (“Davis

Aff.”).) In his affidavit, Davis stated that, he “only got a quick glance” at the man

running away from the scene of the shooting, describing the individual as “wearing a

dark hoodie with the hood over his head” and with “dreadlocks sticking out of the

hood.” (Id. ¶ 4.) He identified the petitioner in a photo-array as the man he saw that

night, (id. ¶ 5), but began to question his identification prior to the petitioner’s trial.

(Id. ¶ 6.) Davis’ affidavit claimed that, on the day he was scheduled to testify, he told

the prosecutor that he had “picked the wrong guy.” (Id. ¶ 8.) According to Davis, the

prosecutor responded, “it was him,” and told Davis that if he didn’t say it was the

petitioner, he would be “charged with contempt and locked up.” (Id.)

The State moved to dismiss the petition and, following a hearing on the motion,

the trial court dismissed the petitioner’s petition for postconviction relief. (Id. at 546–

66, 626–58.) The petitioner appealed the court’s dismissal, arguing:

1. Actual innocence

2. Ineffective assistance of trial counsel for failing to:

(a) call Sundiata Brown as a witness

(b) impeach Collier with a prior statement

3. Ineffective assistance of direct appeal counsel for failing to argue:

(a) a Sixth Amendment violation based on the denial of the

petitioner’s motion for substitution of counsel

(b) trial counsel was ineffective for failing to move to suppress

the lineup as unduly suggestive

(c) trial counsel was ineffective for failing to challenge the

photo-array as suggestive

4. The State violated the petitioner’s right to due process by:

(a) failing to disclose Shawn Davis’ recantation to the defense

(b) knowingly using Shawn Davis’ perjured testimony at trial

(R. 38-12 at 29–62.)

The Illinois Appellate Court affirmed the judgment of the trial court dismissing

the petitioner’s postconviction petition. White, 2020 IL App (1st) 182237-U, ¶ 67. The

petitioner then presented his claims, through counsel, in a PLA to the Illinois

Supreme Court. His PLA, however, did not raise his ineffective assistance of trial

counsel claim for failing to call Sundiata Brown, nor did it raise his ineffective

assistance of appellate counsel claims for failing to challenge trial counsel’s

ineffectiveness on grounds that he failed to contest the lineup and the photo array as

suggestive. (R. 38-15 at 15–25.) The Illinois Supreme Court denied his PLA. People v.

White, No. 12-6608, 167 N.E.3d 633 (Table) (Ill. Mar. 24, 2021).

IV. HABEAS PROCEEDINGS

The petitioner timely filed a habeas corpus petition on June 30, 2021, (R. 1),

which he later amended. (R. 29.) The amended petition raises four claims:

1. A Sixth Amendment violation because the petitioner’s attorney

was not permitted to view the witnesses’ identifications during

the lineup

2. Ineffective assistance of trial counsel for the failure to:

(a) call Sundiata Brown as a defense witness at trial

(b) impeach Collier with her prior statement to police

3. Ineffective assistance of appellate counsel for the failure to argue:

(a) the trial court’s denial of the motion to substitute counsel

violated the Sixth Amendment

(b) ineffective assistance of trial counsel for failing to move to

suppress the lineup as unduly suggestive

(c) ineffective assistance of trial counsel for failing to

challenge the photo-array as unduly suggestive

4. A due process violation based on the State’s:

(a) failure to disclose Shawn Davis’ recantation

(b) use of Shawn Davis’ perjured testimony at trial

(Id. at 22–58.)

The State argues that the petitioner is not entitled to habeas corpus relief on

any of his claims because they are either procedurally defaulted or meritless. (See,

generally, R. 37.) For the reasons discussed below, the Court agrees.

LEGAL STANDARD

Section 2254, as amended by the Antiterrorism and Effective Death Penalty

Act (“AEDPA”), provides the statutory authority for federal courts to grant habeas

corpus relief to individuals in state custody. Pierce v. Vanihel, 93 F.4th 1036, 1044

(7th Cir. 2024). Under the AEDPA, federal habeas corpus relief is not warranted

unless “the state court’s adjudication of the claim (1) was contrary to, or involved an

unreasonable application of, clearly established federal law, as determined by the

Supreme Court, or (2) was based on an unreasonable determination of the facts.” Id.

(citing 28 U.S.C. § 2254(d); Schmidt v. Foster, 911 F.3d 469, 476 (7th Cir. 2018) (en

banc)). “A state court’s determination is ‘contrary to’ clearly established law if it

applies a rule that contradicts the law.” Reyes v. Nurse, 38 F.4th 636, 647 (7th Cir.

2022) (citing Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). If the state court

identifies the proper law, the inquiry then turns to whether its application of that

rule is unreasonable, that is whether “there was no reasonable basis for the state

court’s decision.” Id. (internal quotation marks and citations omitted).

This “difficult to meet” and “highly deferential standard” reflects the view that

“habeas corpus is a guard against extreme malfunctions in the state criminal justice

systems, not a substitute for ordinary error correction through appeal.” Minnick v.

Winkleski, 15 F.4th 460, 468 (7th Cir. 2021) (internal quotation marks and citations

omitted). In applying this standard, the Court looks to the “last reasoned state court

decision to decide the merits of the case, even if the state’s supreme court then denied

discretionary review.” Pierce, 93 F.4th at 1044–45 (internal quotation marks and

citations omitted).

ANALYSIS

I. PROCEDURAL DEFAULT

The State argues that the Court cannot review several of the petitioner’s claims

on the merits because they are procedurally defaulted. (R. 37 at 23–25.) Procedural

default can occur in several ways, but “two are paradigmatic.” Clemons v. Pfister, 845

F.3d 816, 819 (7th Cir. 2017) (citing Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir.

2014)). First, procedural default can occur if “the state court rejects a federal claim

based on a state procedural rule ‘that is both independent of the federal question and

adequate to support the judgment.’” Id. (quoting Richardson, 745 F.3d at 268).

Second, a state prisoner can procedurally default a federal claim “if he fails to ‘fairly

present’ it ‘throughout at least one complete round of state-court review, whether on

direct appeal of his conviction or in post-conviction proceedings.’” Id. (quoting

Richardson, 745 F.3d at 268). A procedural default bars the Court from considering

the merits of the claim “unless the petitioner demonstrates cause for the default and

prejudice resulting therefrom,” or, alternatively, “that a miscarriage of justice would

result if his claim were not entertained on the merits.” Perruquet v. Briley, 390 F.3d

505, 515 (7th Cir. 2004) (citations omitted) (emphasis in original).

A. Independent and Adequate State Grounds

In Claim 1, the petitioner argues that his Sixth Amendment right to counsel

was violated when his attorney was not permitted to observe witnesses identifying

the petitioner in the lineup. The State argues that this claim is procedurally defaulted

because the Illinois Supreme Court rejected it based on an independent and adequate

state-law ground. (R. 37 at 23–24.)

Illinois law requires a defendant to include all claims of error in a posttrial

motion for a new trial. Miranda v. Leibach, 394 F.3d 984, 992 (7th Cir. 2005); People

v. Enoch, 522 N.E.2d 1124, 1129–30 (Ill. 1988). Failure to comply with this

requirement results in a waiver of the claim. Miranda, 394 F.3d at 992 (citing Enoch,

522 N.E.2d at 1129–30). “[W]hen a state court refuses to reach the merits of a

petitioner’s federal claims because they were not raised in accord with the state’s

procedural rules[,]” such as when the claim has been waived, “that decision rests on

independent and adequate state ground.” Kaczmarek v. Rednour, 627 F.3d 586, 591

(7th Cir. 2010); see also Sturgeon v. Chandler, 552 F.3d 604, 611 (7th Cir. 2009) (“A

finding of waiver by the state postconviction court is enough to establish an adequate

an independent state ground.”). “[A]n Illinois court does not reach the merits of a

[waived] claim simply by reviewing it for plain error.” Miranda, 394 F.3d at 992.

There is no dispute that the Illinois Supreme Court, the last state court to

consider this claim, found on direct appeal that the petitioner failed to raise the Sixth

Amendment lineup issue in a posttrial motion and, thus, waived the claim for

appellate review. White, 956 N.E.2d at 407–08. Indeed, the petitioner rightfully

concedes this point. (R. 29 at 32.) The state court’s discussion of the plain-error

doctrine does not otherwise undermine the petitioner’s waiver. See Miranda, 394 F.3d

at 992. Claim 1 is, thus, procedurally defaulted because the Illinois Supreme Court’s

decision rests on independent and adequate state grounds.

B. Fair Presentment

In Claim 2(a), the petitioner raises an ineffective assistance of counsel claim

premised on trial counsel’s failure to call Sundiata Brown as a witness. The petitioner

further asserts, in Claims 3(b) and 3(c), ineffective assistance of appellate counsel

claims based on the failure to challenge trial counsel’s performance in not moving to

suppress the lineup or the photo-array as unduly suggestive. The State argues these

claims are procedurally defaulted under the fair presentment rule. (R. 37 at 24–25.)

Failure to exhaust a habeas claim in the state courts results in procedural

default. See Richardson, 745 F.3d at 268. To satisfy the exhaustion requirement, a

petitioner must “fairly present his federal claim to the state courts through one

complete round of state court review.” Richardson, 745 F.3d at 268 (citing McDowell

v. Lemke, 737 F.3d 476, 482 (7th Cir. 2013)); see also O’Sullivan v. Boerckel, 526 U.S.

838, 844–45 (1999) (explaining the rule “is designed to give the state courts a full and

fair opportunity to resolve federal constitutional claims before those claims are

presented to the federal courts”). In Illinois, a habeas petitioner must present the

claim to both the Illinois Appellate Court and to the Illinois Supreme Court in a

petition for discretionary review. Snow v. Pfister, 880 F.3d 857, 864 (7th Cir. 2018).

Although the petitioner raised Claims 2(a), 3(b), and 3(c) to the Illinois

Appellate Court on postconviction appeal, (R. 38-12 at 29–62), he abandoned these

claims in his postconviction PLA to the Illinois Supreme Court. (R. 38-15 at 15–25.)

And while the petitioner raised other grounds of ineffective assistance of trial and

appellate counsel in his postconviction PLA, this does not avoid the procedural

default of Claims 2(a), 3(b), and 3(c). Rather, the fair presentment rule “requires that

the factual and legal substance of the claim remain essentially the same when the

petitioner has exhausted his state court remedies and moved on to federal court.”

Blackmon v. Williams, 823 F.3d 1088, 1100 (7th Cir. 2016). Thus, “if a petitioner fails

to assert in the state courts a particular factual basis for the claim of ineffective

assistance, that particular factual basis may be considered defaulted.” Pole v.

Randolph, 570 F.3d 922, 935 (7th Cir. 2009). Such is the case here. The petitioner did

not present the specific factual bases that predicated Claims 2(a), 3(b), and 3(c) to the

Illinois Supreme Court. Accordingly, these claims are procedurally defaulted.

C. Grounds to Excuse Default

The petitioner argues that, even if his claims are procedurally defaulted, the

defaults should be excused. As stated above, to overcome his procedural defaults, the

petitioner must demonstrate either “cause for the default and actual prejudice as a

result of the alleged violation of federal law, or . . . that the failure to consider the

claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson,

501 U.S. 722, 750 (1991).

1. The Cause and Prejudice Exception

First, the petitioner contends that his trial counsel’s failure to preserve his

Sixth Amendment lineup claim by failing to raise it in a posttrial motion constitutes

cause to excuse the procedural default of Claim 1. (R. 29 at 52–53.)

“Cause” for purposes of excusing a procedural default “is an objective factor

external to the defense that impeded the presentation of the claim to the state courts.”

Booker v. Baker, 74 F.4th 889, 894 (7th Cir. 2023) (internal citations omitted). “A

factor is external to the defense if it ‘cannot be fairly attributed to’ the prisoner.”

Davila v. Davis, 582 U.S. 521, 528 (2017) (quoting Coleman, 501 U.S. at 753).

Attorney error may constitute an objective external factor that provides cause for

excusing a default, but “only if that error amounted to a deprivation of the

constitutional right to counsel.” Id. (citing Edwards v. Carpenter, 529 U.S. 446, 451

(2000)). Further, because “[t]he assertion of ineffective assistance as a cause to excuse

procedural default in a § 2254 petition, is, itself, a constitutional claim[,]” the claim

“must have been raised before the state court” or it, too, will be “procedurally

defaulted.” Mata v. Baker, 74 F.4th 480, 488 (7th Cir. 2023) (citing Smith v. Gaetz,

565 F.3d 346, 352 (7th Cir. 2009)).

For the petitioner, this means that he was required to raise the claim that his

trial counsel was ineffective for failing to preserve his Sixth Amendment claim in a

posttrial motion at each level of state court review. See Smith, 565 F.3d at 352. The

petitioner, however, did not do so. Thus, any alleged error by trial counsel for failing

to preserve the Sixth Amendment lineup issue for appellate review cannot excuse the

procedural default of Claim 1.

2. The Fundamental Miscarriage of Justice Exception

Next, the petitioner asserts that he is actually innocent and, thus, the

procedural defaults of Claims 1, 2(a), 3(b), and 3(c) should be excused under the

fundamental miscarriage of justice exception. (R. 29 at 32–42.)

“A habeas petitioner may use a claim of actual innocence to overcome a

procedurally defaulted . . . habeas claim, as a way to prevent a miscarriage of justice.”

Dixon v. Williams, 93 F.4th 394, 403 (7th Cir. 2024), reh’g denied, No. 21-1375, 2024

WL 1510579 (7th Cir. Apr. 8, 2024). The bar to proving actual innocence, however, is

an onerous one. Id. The “standard is demanding and permits review only in the

‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006) (quoting Schlup v. Delo,

513 U.S. 298, 327 (1995)). A petitioner does not establish actual innocence “unless he

persuades the district court 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 (2012) (citing Schlup, 513 U.S. at 329).

To pass through the actual-innocence gateway, the petitioner must support his

claim with “reliable evidence—whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence—that was not

presented at trial.” Schlup, 513 U.S. at 324; see also Hayes v. Battaglia, 403 F.3d 935,

938 (7th Cir. 2005) (“To demonstrate innocence so convincingly that no reasonable

jury could convict, a prisoner must have documentary, biological (DNA), or other

powerful evidence: perhaps some non-relative who placed him out of the city, with

credit card slips, photographs, and phone logs to back up the claim.”). “New evidence”

in this context does not mean “newly discovered evidence,” rather it is “any evidence

that was not presented at trial.” Dixon, 93 F.4th at 403. “In evaluating the claim, the

court is to conduct a comprehensive assessment that takes into account any reliable

evidence probative of petitioner’s innocence or guilt, even evidence that was

previously excluded.” Arnold v. Dittmann, 901 F.3d 830, 837 (7th Cir. 2018). In other

words, “the court is not bound by the rules of evidence that would govern at trial.” Id.

Like he did in state court, the petitioner points to the affidavits of Jennings

and Laws as proof of his innocence. (R. 29 at 33.) The petitioner contends that these

affidavits demonstrate that he did not murder Aramein; rather, the killing was

plotted and carried out by members of the Gangster Disciples in retaliation for a home

invasion thought to be perpetrated by Ajani. (Id.) Neither of these affidavits, however,

constitute the type of “powerful evidence” needed to surpass the high hurdle to show

actual innocence.

The first concern with these affidavits is the unexplained length of time that it

took for the affiants to come forward with their statements. In evaluating the

reliability of the evidence of actual innocence, the Court considers “the timing of the

submission and the likely credibility of [a petitioner’s] affiants.” McQuiggin, 569 U.S.

at 399 (citing Schlup, 513 U.S. at 332). Jennings and Laws, individuals with criminal

felony convictions themselves, signed their respective affidavits in 2012 (as did

Dawson and Beacham)—more than nine years after the shooting and six years after

the petitioner’s guilty verdict. See McDowell, 737 F.3d at 484 (“Such ‘eleventh hour’

affidavits, containing facts not alleged at trial and accompanied by no reasonable

explanation for delay are inherently suspect.”); Morales v. Johnson, 659 F.3d 588, 606

(7th Cir. 2011) (explaining that “convicted felons have diminished credibility.”)

Further, although Dawson related in his affidavit that Jennings and Laws inculpated

a man named Boston in the shooting, (Dawson Aff. ¶¶ 14, 22), neither Jennings nor

Laws averred as much in their respective affidavits. (See generally, Jennings Aff.;

Laws Aff.)

Credibility and timing aside, the DEA Report, which the petitioner submitted

in support of his actual innocence argument in his state post-conviction proceedings,

corroborates the State’s theory at trial—i.e., that the petitioner had an acrimonious

relationship with the victim’s family. In the report, Sundiata Brown relates that he

and his brothers, Ajani and Aramein, worked for a “mobile heroin distribution

organization” led by the petitioner until they decided to start “operating on their own”

in October 2002—a timeline that tracks the “falling out” that the petitioner testified

to at trial. (R. 22-3 at 256, 258–59.) The report recounts various shootings following

the Browns split from the petitioner, including the one that resulted in the killing of

Aramein. (Id. at 260–61.)

Finally, the petitioner’s new evidence does not sufficiently rebut the trial

testimony of Collier—an eyewitness witness who, unlike Jennings and Laws, was

new to the neighborhood and had no knowledge of, or relation to, the petitioner or the

Browns. Indeed, Collier’s identification and testimony, alone, is enough to reject the

petitioner’s actual-innocence argument. See Hayes, 403 F.3d at 938 (“[I]t is black

letter law that testimony of a single eyewitness suffices for conviction even if 20

bishops testify that the eyewitness is a liar.”). And though the petitioner attempts

(unsuccessfully so) to undermine Collier’s testimony with a prior statement to the

police,5 as the Illinois Supreme Court articulated:

5 See infra p. 25–29.

It would truly be an incredible sequence of coincidences

that Martina Brewer would, immediately after the

shooting, falsely identify the very person that Sherry

Collier mistook for the killer; that Keith Slaughter would,

without reservation, initially identify defendant as the

shooter; and that Shawn Davis would identify the

defendant as the man running from the gas station seconds

after the shooting. Four unrelated individuals initially

identified defendant as the person present, or running

from, the gas station the night of the shooting. Obviously,

those identifications were not mere coincidence.

White, 956 N.E.29 at 409–10.

In sum, the petitioner has not presented “the sort of evidence that could

confidently demonstrate his innocence—no exonerating DNA evidence, record of

incarceration at the time of the crime, video evidence of him in a faraway location, or

other evidence that could establish innocence conclusively.” Dixon, 93 F.4th at 405.

Accordingly, the petitioner cannot overcome his procedural defaults of Claims

1, 2(a), 3(b), and 3(c) under either the cause and prejudice exception, or the

fundamental miscarriage of justice exception. These claims are therefore denied.

II. MERITS REVIEW

The Court now turns to its merits review of the petitioner’s remaining claims:

Claims 2(b), 3(a), 4(a), and 4(b). In conducting this review, the Court looks to the

decision of the Illinois Appellate Court on postconviction appeal, as that is the last

state court to address each of these claims in a reasoned decision on the merits. See

Pierce, 93 F.4th at 1044–45.

A. Claim 2(b) – Ineffective Assistance of Trial Counsel

In Claim 2(b), the petitioner asserts an ineffective assistance of counsel claim

based on his trial attorney’s failure to impeach Collier with a prior statement that

she provided to police officers at the scene of the shooting. In this statement, Collier

related that, while standing at the payphone, she observed the victim pumping gas

and then drive his van to the rear of the gas station where the petitioner approached

and started shooting. (R. 22-3 at 289.) The petitioner contends that trial counsel

should have used this statement to impeach Collier’s credibility because the rear of

the gas station is not visible from the payphone. (R. 29 at 47–49.)

The relevant clearly established law governing the petitioner’s ineffective

assistance of counsel claim derives from Strickland v. Washington, 466 U.S. 668

(1984). Under Strickland, the petitioner “must show both deficient performance by

counsel and prejudice.” See Premo v. Moore, 562 U.S. 115, 118 (2011) (citing Knowles

v. Mirzayance, 556 U.S. 111, 122 (2009)). “To establish deficient performance, a

person challenging a conviction must show that ‘counsel’s representation fell below

an objective standard of reasonableness.’” Harrington v. Richter, 562 U.S. 86, 104

(2011) (quoting Strickland, 466 U.S. at 688). “With respect to prejudice, a challenger

must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.’” Id. at 104 (quoting

Strickland, 466 U.S. at 694).

Strickland instructs that “[j]udicial scrutiny of counsel’s performance must be

highly deferential,” and a reviewing court “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable assistance.” 466 U.S. at

689. This deferential review in combination with “the constraints that the AEDPA

imposes on” a federal habeas court’s review of state court decisions means that the

Court’s “application of Strickland here is ‘doubly deferential.’” Meyers v. Gomez, 50

F.4th 628, 643 (7th Cir. 2022) (quoting Knowles, 556 U.S. at 123).

Applying Strickland, the Illinois Appellate Court rejected the petitioner’s

ineffective assistance claim, holding that trial counsel’s lack of questioning of Collier

about the location of the victim’s van at the time of the shooting did not fall below an

objective standard of reasonableness. White, 2020 IL AP (1st) 182237-U ¶ 12. The

state court’s correct identification of Strickland as the governing rule dooms any

contrary-to argument under the AEDPA. See Reyes, 38 F.4th at 647. Equally, the

state court’s application of Strickland was not unreasonable.

There is no question that Collier’s testimony was a key piece of the State’s

evidence. Unlike many of the other witnesses, Collier had no established connection

to the neighborhood, the petitioner, or the victim. As the trial court put it in denying

the petitioner’s motion for a directed verdict, Collier “was credible. She was

unimpeached. She had no motive to lie, to pick out a man she has never seen before

in her life. She had only lived in that neighborhood for three days at the time of her—

the shooting and when she made the identification to the police.” (R. 22-1 at 423–24.)

The petitioner nevertheless argues impeaching Collier with her prior

statement to the police was critical to his case, as it would have raised questions as

to her observations and credibility. (R. 29 at 48–49.) But as the Illinois Appellate

Court noted, trial counsel did challenge Collier’s observations and did so “utilizing

the very police report [the petitioner] now argues counsel failed to utilize more.”

White, 2020 IL App (1st) 182237-U, ¶ 43. Indeed, trial counsel used Collier’s

statement in the police report to challenge the strength of her identification,

questioning her regarding the “opportunity to view the perpetrator at the time of the

crime, her degree of attention to the perpetrator, and the accuracy of her prior

description of the perpetrator.” Id. This strategy cannot be said to fall outside “the

wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. The

petitioner’s distinctive facial characteristics was a focal point of the defense that even

the petitioner highlighted in his own testimony. (R. 22-1 at 902 (“Well, there are no

two people that I know of that look like me, so when you talk about mistaken identity,

I know that that’s almost impossible.”). Thus, when Collier testified that the shooter

had a “distinct,” “unusual,” “long,” “ugly” face, (id. at 149, 210), it was sound trial

strategy to reference the police report and to question her on why she did not say as

much to the responding officers at the scene.

By contrast, impeaching Collier on the location of the victim’s van at the time

of the shooting would do little to challenge the strength of the State’s evidence,

particularly because Brewer and Akbar, who were also present at the gas station,

testified that the shooting occurred while Aramein was parked at the gas pumps. (Id.

at 81–88; 752–56.) As the Illinois Appellate Court put it, “[t]rial counsel could

reasonably choose to forego a point that would have gained him nothing and possibly

cost [the petitioner]” by bolstering, rather than undermining, Collier’s credibility.

White, 2020 IL App (1st) 182237-U, ¶ 43. On these facts, the Court cannot conclude

that the state appellate court’s rejection of the petitioner’s ineffective assistance claim

under Strickland’s performance prong was unreasonable.6 See, e.g., Meyers, 50 F.4th

at 643 (explaining that habeas relief is available “[o]nly if no reasonable argument

can be made that” counsel’s decision “was a legitimate strategic decision under

Strickland.”). Claim 2(b) is thus without merit and denied.

B. Claim 3(a) – Ineffective Assistance of Appellate Counsel

For Claim 3(a), the petitioner argues his appellate counsel provided ineffective

assistance where he did not argue on direct appeal that the trial court violated the

petitioner’s Sixth Amendment rights when it denied his motion to substitute counsel.

The petitioner contends that this claim would have been meritorious on direct appeal,

as the trial court’s denial of his request for a short continuance to allow his new

attorney to appear for posttrial proceedings violated his constitutional right to

counsel of his choosing. (R. 29 at 50–53.)

The Strickland standard also governs ineffective assistance of appellate

counsel claims. McNary v. Lemke, 708 F.3d 905, 920 (7th Cir. 2013) (citing Smith v.

Robbins, 528 U.S. 259, 285 (2000)). As with claims based on the assistance of trial

counsel, the petitioner must establish both deficient performance and resulting

prejudice to prevail. Id. (citing Strickland, 466 U.S. at 687). With respect to

Strickland’s performance prong, “appellate counsel . . . need not (and should not) raise

every nonfrivolous claim, but rather may select from among them in order to

6 As Strickland instructs, “there is no reason for a court deciding an ineffective assistance

claim . . . to address both [the performance and the prejudice] components of the inquiry if

the defendant makes an insufficient showing on one.” 466 U.S. at 697. It is therefore of no

consequence that the Illinois Appellate Court did not reach Strickland’s prejudice prong in

rejecting the petitioner’s claim.

maximize the likelihood of success on appeal.” Id. (internal quotation marks and

citations omitted). “That said, it is ‘possible,’ albeit ‘difficult,’ to show that ‘counsel’s

failure to raise a particular claim’ amounted to ineffective assistance.” Id. (quoting

Robbins, 528 U.S. at 288). At bottom, the Court cannot “second-guess ‘informed

strategic choices.’” Id. (quoting Strickland, 466 U.S. at 691).

Correctly noting that Strickland governed the petitioner’s ineffective

assistance of appellate counsel claim, the Illinois Appellate Court rejected the claim,

finding the underlying issue—i.e., the denial of the motion to substitute counsel—

lacked merit and, thus, counsel was not ineffective for not arguing it on appeal. White,

2020 IL App (1st) 182237-U, ¶ 51. In rejecting this claim, the state appellate court

concluded that the trial court did not abuse its discretion in denying the petitioner’s

motion for substitution of counsel. Id. at ¶¶ 45–51. This conclusion was neither

contrary to, nor an unreasonable application of, Supreme Court precedent.

The Sixth Amendment right to counsel for criminal defendants includes the

right to choice of counsel, but this right is not absolute. Wheat v. United States, 486

U.S. 153, 159 (1988). “[W]hile the right to select and be represented by one’s preferred

attorney is comprehended by the Sixth Amendment, the essential aim of the

Amendment is to guarantee an effective advocate for each criminal defendant rather

than to ensure that a defendant will inexorably be represented by the lawyer whom

he prefers.” Id. Thus, while “a court may not ‘arbitrarily or unreasonably deny a

defendant the right to retain chosen counsel,’ it is well-established that a trial judge

‘retains wide latitude to balance the right to choice of counsel against the needs of

fairness to the litigants and against the demands of its calendar.’” United States v.

Balsinger, 910 F.3d 942, 949–50 (7th Cir. 2018) (quoting United States v. Sellers, 645

F.3d 830, 834 (7th Cir. 2011)); see also United States v. Gonzalez-Lopez, 548 U.S. 140,

152 (2006) (“We have recognized a trial court’s wide latitude in balancing the right to

counsel of choice against the needs of fairness.”).

“This means . . . that trial courts have broad discretion to grant or deny a

request for a continuance to substitute new counsel.” Sellers, 645 F.3d at 834 (citing

Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir. 2008)). In making this determination,

Illinois state courts, like the federal courts, consider various factors, including

“whether the request is a guise to temporarily thwart the administration of justice;

lack of evidence that new counsel is ready, willing, and able to proceed with the case;

failure of the defendant to articulate an acceptable reason for desiring new counsel;

and representation by counsel for a lengthy period of time before the substitution

request.” People v. Abernathy, 926 N.E.2d 435, 445 (Ill. App. Ct. 2010); cf. United

States v. Harris, 394 F.3d 543, 552 (7th Cir. 2005) (outlining factors to consider when

deciding whether denial of a motion for substitute counsel is an abuse of discretion).

As the Illinois Appellate Court noted, the petitioner orally requested a

continuance to substitute new counsel on the date his case was set for hearing on

posttrial motions and sentencing. White, 2020 IL App (1st) 182237-U, ¶ 46. At that

time, the petitioner’s attorney, who had represented the petitioner for over three

years—from the initial lineup procedures through trial—had fully prepared a

posttrial motion and was ready to represent the petitioner at the hearing. Id. The

petitioner’s proposed substitute attorney, on the other hand, was “apparently in the

building for another trial” on this date, but “failed to appear (even briefly that day or

sooner) to request the continuance.” Id. What is more, the petitioner gave no reason

for desiring new counsel, nor did he raise any deficiencies with his trial counsel’s

performance regarding posttrial matters.7 Id. ¶ 51. The Illinois Appellate Court thus

found no error in the denial of the petitioner’s motion for substitution and,

consequently, no merit to his ineffective assistance claim Id.

Other than arguing that the state court should have reached the opposite

conclusion, the petitioner does not demonstrate how the state appellate court’s

consideration of the above factors was unreasonable, much less objectively so. See

Shinn v. Kayer, 592 U.S. 111, 118 (2020) (quoting Harrington, 562 U.S. at 103) (To

meet AEDPA’s standard, “[t]he prisoner must show that the state court’s decision is

so obviously wrong that its error ‘lies beyond any possibility for fairminded

disagreement.’”). And because the Illinois Appellate Court determined that there was

no error in denying the petitioner’s motion for substitution, it was reasonable for the

state court to conclude that the petitioner’s ineffective assistance of appellate counsel

claim failed. See Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996) (“Failure to raise a

losing argument . . . on appeal . . . does not constitute ineffective assistance of

counsel.”). Accordingly, Claim 3(a) is without merit and denied.

7 In his habeas petition, the petitioner contends the denial of his motion for substitution

“foreclosed” him “from asserting any challenge to [trial] counsel’s conduct during trial,” an

issue he says is concerning given that his posttrial motion failed to raise a Sixth Amendment

claim regarding the lineup procedures. (R. 29 at 52–53.) But the petitioner’s proposed

substitute counsel for posttrial proceedings represented him on direct appeal and, thus, could

have raised the very ineffective assistance claim that he argues was foreclosed.

C. Claims 4(a) and 4(b): Due Process Violations

Finally, in Claims 4(a) and 4(b), the petitioner raises two due process violations

concerning the State’s handling of eyewitness Shawn Davis. The petitioner contends

that the State violated his right to due process when it (a) failed to disclose that Davis

had recanted his identification of the petitioner in the photo-array and (b) knowingly

used Davis’ perjured testimony that the petitioner was the man he saw running from

the scene at trial. (R. 29 at 53–57.)

1. Claim 4(a): Brady Claim

The first of the petitioner’s due process claims—that the State failed to disclose

favorable evidence to the defense—is governed by Brady v. Maryland, 373 U.S. 83

(1963). To establish a Brady violation, a defendant must point to evidence that was

(1) favorable to the defense, (2) suppressed by the government, and (3) “material to

an issue at trial.” United States v. Shields, 789 F.3d 733, 746 (7th Cir. 2015).

The Illinois Appellate Court rejected the petitioner’s Brady claim on

postconviction appeal, holding that the petitioner failed to show that any failure by

the State to disclose Davis’ alleged recantation was material. White, 2020 IL App (1st)

182237-U, ¶ 60. This decision was not contrary to clearly established Supreme Court

precedent, as the state appellate court correctly identified Brady as the governing

rule. Id. ¶ 52. Likewise, the state court’s application of Brady was not unreasonable.

Evidence is material for Brady purposes “only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” Socha v. Richardson, 874 F.3d 983, 989 (7th

Cir. 2017) (citing United States v. Bagley, 473 U.S. 667, 682 (1985)). “Such a

probability exists where the suppressed evidence . . . undermines confidence in the

outcome reached.” Boss v. Pierce, 263 F.3d 734, 744 (7th Cir. 2001) (citing Kyles v.

Whitley, 514 U.S. 419, 434 (1995)). In reviewing materiality under Brady, a court

must assess the cumulative effect of the suppressed evidence in the context of the

entire record. Goudy v. Cummings, 922 F.3d 834, 842 (7th Cir. 2019).

The Illinois Appellate Court reasonably concluded that Davis’ recantation was

not material, in that the prosecution’s failure to disclose it did not undermine the

court’s confidence in the outcome. As the state appellate court noted, Davis’ testimony

did not stand alone. Rather, three other witnesses—Brewer, Collier, and Slaughter—

“actually witnessed the shooting” and subsequently identified the petitioner as the

shooter in a photo-array, in a lineup, or at trial. White, 2020 IL App (1st) 182237-U,

¶ 58. Davis, by contrast, did not witness the shooting; he saw only the perpetrator’s

flight from the scene. Indeed, at trial, the state court credited Davis’ testimony for

corroborating “the path that the [petitioner] took following the shooting.” (R. 22-1 at

424.) As the Illinois Appellate Court put it, “[a]t best . . ., the trier of fact would have

been presented with Davis’s identifications of defendant close to the time of

observation and his recantation years later based, not on something seemingly less

than certainty that he identified the wrong man . . .” White, F2020 IL App (1st)

182237-U, ¶ 58. Although shifting testimony was prevalent throughout the

petitioner’s trial, the exculpatory effect of any contradictory testimony elicited was

ultimately outweighed by the strength of the State’s evidence, including the positive,

unwavering identification of Collier who stood within a few feet of petitioner before

he approached the victim and began shooting. See Hayes, 403 F.3d at 938 (“testimony

of a single eyewitness suffices for conviction”).

All considered, the state appellate court reasonably concluded the undisclosed

evidence concerning Davis was immaterial. Claim 4(a) is without merit and denied.

2. Claim 4(b): Napue Claim

For the petitioner’s second due process claim, the Court looks to the Supreme

Court’s decision in Napue v. Illinois, 360 U.S. 264 (1959). Napue holds that a State’s

knowing use of perjured testimony to secure a defendant’s conviction violates his

right to due process under the Fourteenth Amendment. Id. at 269. Like Brady, Napue

claims also contain a materiality prong. See United States v. Cosby, 924 F.3d 329, 336

(7th Cir. 2019). To prevail on a Napue claim, the petitioner must show (1) the

prosecution’s case included perjured testimony, (2) the prosecution knew, or should

have known, of the perjury, and (3) there is a likelihood that the false testimony

affected the judgment of the jury. See Meyers, 50 F.4th at 647; Cosby, 924 F.3d at 336.

The Illinois Appellate Court’s rejection of the petitioner’s perjured testimony

claim was neither contrary to, nor an unreasonable application of, Napue. Although

exclusively citing to state law cases, the state appellate court correctly articulated

the constitutional standard for evaluating such a claim. See Early v. Packer, 537 U.S.

3, 8 (2002) (per curiam) (explaining that AEDPA “does not even require awareness of

[Supreme Court] cases, so long as neither the reasoning nor the result of the state-

court decision contradicts them.”) (emphasis in original). Like the Brady claim, the

Illinois Appellate Court rejected the petitioner’s perjury claim on Napue’s materiality

prong. As discussed above, this conclusion was not unreasonable. Davis’ testimony,

even if perjured, corroborated only the petitioner’s flight from the scene. Meanwhile,

the testimony of three other eyewitnesses placed the petitioner at the scene with a

gun in his hand. Accordingly, Claim 4(b) is without merit and denied.

For the foregoing reasons, this Court cannot grant federal habeas relief on any

of the petitioner’s claims because they are either procedurally defaulted or meritless.

The petitioner’s habeas corpus petition is therefore denied.

III. CERTIFICATE OF APPEALABILITY AND NOTICE OF APPEAL RIGHTS

The Court declines to issue a certificate of appealability. A certificate of

appealability shall issue only if the petitioner can make a substantial showing of the

denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)

(citing 28 U.S.C. § 2253(c)(2)). To make a substantial showing, the petitioner must

show that “reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the issues

presented were ‘adequate to deserve encouragement to proceed further.’” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983)). For the reasons stated above, the Court finds that there is no substantial

constitutional question for appeal because reasonable jurists would not find this

Court’s assessment of the petitioner’s constitutional claims or procedural rulings

debatable or wrong. See Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011) (citing

Slack, 529 U.S. at 484–85).

The petitioner is advised that this is a final decision ending his case in this

Court. If the petitioner wishes to appeal, he must file a notice of appeal with this

Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a)(1). The petitioner

need not bring a motion to reconsider this Court’s ruling to preserve his appellate

rights. However, if the 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. Fed. R. Civ. P.

59(e). The time to file a motion pursuant to Rule 59(e) cannot be extended. 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. 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. Fed. R. Civ. P. 60(c)(1). The time to file a Rule 60(b) motion cannot be

extended. 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. Fed. R. App. P. 4(a)(4)(A)(vi).

CONCLUSION

Petitioner Kenyatta White’s habeas corpus petition [1, 29] is denied. 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 Tiffanie Clark and

replace her with Chance Jones, Day-to-Day Warden, Illinois River Correctional

Center; (2) alter the case caption to White v. Jones; and (3) enter judgment in favor of

the respondent. Civil case terminated.

ASSO

Date: May 17, 2024

JEREMY C. DANIEL

United States District Judge

36