Case: 1:04-cv-04992 Document #: 68 Filed: 08/06/10 Page 1 of 17 PageID #:<pageID> UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION UNITED STATES OF AMERICA, ex rel. ) ) ANTONIO MCDOWELL ) ) Petitioner, ) ) Case No. 04 CV 04992 v. ) ) Judge Joan B. Gottschall MARCUS HARDY, Warden ) ) Respondent. ) MEMORANDUM OPINION AND ORDER Petitioner Antonio McDowell was convicted of murder, attempted murder, and aggravated vehicular hijacking. (Tr. R. Vol. 1 at D173-76, Resp. Ex. 1.) This matter comes before the court on McDowell’s Second Amended Petition for Writ of Habeas Corpus. (Doc. No. 60.) I. BACKGROUND McDowell was convicted of first degree murder, attempted murder, and aggravated vehicular hijacking after a bench trial in the Circuit Court of Cook County.1 (Tr. R. Vol. 1 at D173-76.) According to the testimony at trial, McDowell shot and killed Mario Castro on December 21, 1996; while attempting to escape from the scene of the crime, McDowell shot at Alberto Varela and hijacked Ruth Morales-Santana’s car. (See Tr. Trans. Vol. 1; Tr. Trans. Vol. 2, Resp. Ex. 2.) 1 McDowell is currently incarcerated at the Stateville Correctional Center in Joliet, Illinois, where he is in the custody of Warden Marcus Hardy, the nominal defendant in this case. (Answer to Second Amend. Pet. at 1, Doc. No. 61.; Second Amend. Pet. at 5.) Case: 1:04-cv-04992 Document #: 68 Filed: 08/06/10 Page 2 of 17 PageID #:<pageID> McDowell’s convictions were affirmed by the Illinois Appellate Court, and his petition to the Supreme Court of Illinois was denied. (Order of Ill. App. Ct., Resp. Ex. B; Order of Ill. Sup. Ct., Resp. Ex. C.) McDowell subsequently filed a petition for post- conviction relief, which the Circuit Court rejected. (Pet. for Post-Conviction Relief, Resp. Ex. E; Order of Ill. Cir. Ct. at A-3, Resp. Ex. G.) The Illinois Appellate Court upheld the Circuit Court’s decision, and the Illinois Supreme Court denied McDowell’s petition for leave to appeal. (Order of Ill. App. Ct., Resp. Ex. J; Order of Ill. Sup. Ct., Resp. Ex. K.) Having exhausted his state court remedies, McDowell has filed a petition for writ of habeas corpus.2 (Second Amend. Pet.) Count I of McDowell’s habeas petition alleges ineffective assistance of counsel under the Sixth Amendment. (Id. at 2, 25-32.) Specifically, McDowell contends that his trial counsel did not: (1) attempt to question the witnesses on the circumstances of their identification of McDowell, nor did he investigate Mr. McDowell’s assertion that a picture was improperly shown to the witnesses before they identified him; (2) adequately interview and present the sole defense witness or investigate any other witnesses who could support Mr. McDowell’s alibi; [or] (3) advise Mr. McDowell of the risks and benefits of testifying on his own behalf and did not afford him the opportunity to do so. (Id. at 26-27.) In Count II of the petition, McDowell claims that his right to due process was violated by “the admission of witness identification testimony at trial that resulted from an unduly suggestive identification procedure.” (Id. at 2, 33-36.) 2 McDowell originally filed his habeas petition pro se. (Pet., Doc. No. 1.) The court later appointed counsel, who filed an amended petition and a second amended petition on McDowell’s behalf. (Amend. Pet., Doc. No. 50; Second Amend. Pet.) 2 Case: 1:04-cv-04992 Document #: 68 Filed: 08/06/10 Page 3 of 17 PageID #:<pageID> II. ANALYSIS A. Procedural Default Respondent argues that “Petitioner’s ineffective assistance . and suggestive identification claims are procedurally defaulted” because McDowell failed to raise them on direct appeal or in his post-conviction proceedings. (Answer. to Second Amend. Pet. at 18-28.) McDowell urges the court to find that the ineffective assistance and “suggestive identification claims” were included in his post-conviction petition, and are therefore not procedurally defaulted.3 (Reply at 5-6, Doc. No. 66.) The court agrees with McDowell. The court “cannot review a habeas petitioner’s constitutional issue unless he has provided the state courts with an opportunity to resolve it ‘by invoking one complete round of the state’s established appellate review process,’” Byers v. Basinger, --- F.3d ---, 2010 WL 2696522, at *4 (7th Cir. 2010) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)), “either on direct appeal or post-conviction review,” Gonzales v. Mize, 565 F.3d 373, 380 (7th Cir. 2009). “If the claim comes from the Illinois state courts, the petitioner must have presented each claim in the habeas petition to the Illinois Appellate Court and to the Illinois Supreme Court in a petition for discretionary review.” Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010). In order to have “fairly presented” an issue, “[t]he petitioner must have placed both the operative facts and the controlling legal principles before the state courts.” Sturgeon v. Chandler, 552 F.3d 604, 610 (7th Cir. 2009) (quoting Chambers v. McCaughtry, 264 F.3d 732, 738 (7th Cir. 2001)). “A mere passing reference to a 3 McDowell does not dispute that his other ineffective assistance claims, those based on counsel’s alleged failure to prepare alibi witnesses or advise McDowell as to his right to testify, are procedurally defaulted. (See Second Amend. Pet.; Reply.) 3 Case: 1:04-cv-04992 Document #: 68 Filed: 08/06/10 Page 4 of 17 PageID #:<pageID> constitutional issue certainly does not suffice.” Id. (quoting Chambers, 264 F.3d at 738). Rather, “[t]he argument must be placed in the petitioner’s brief to the court; the ‘requirement is not met if a judge must go outside the four corners of the document in order to understand the contention’s nature and basis.’” Id. (quoting Lockheart v. Hulick, 443 F.3d 927, 929 (7th Cir. 2006)). That said, “a ‘hypertechnical congruence’ of the claims is not required between federal and state court for a claim to be fairly presented,” Crockett v. Hulick, 542 F.3d 1183, 1192-93 (7th Cir. 2008) (quoting Anderson v. Benik, 471 F.3d 811, 814-15 (7th Cir. 2006)), nor is a habeas petitioner required to cite “‘book and verse’ of the Constitution,” Lieberman v. Thomas, 505 F.3d 665, 670 (7th Cir. 2007) (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)). Instead, the court must assess “whether the petitioner alerted the state court to the federal nature of his claim in a manner sufficient to allow that court to address the issue on a federal basis.” Lieberman, 505 F.3d at 670. In evaluating whether a petitioner has “fairly presented” his or her claim, courts consider: 1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; 3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and 4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation. Byers, --- F.3d ----, 2010 WL 2696522, at *4. 1. Ineffective Assistance McDowell met the requirements necessary to avoid procedural default by setting forth the “operative facts and . controlling legal principles” of an ineffective assistance claim in his post-conviction briefing. See Sturgeon, 552 F.3d at 610. McDowell set forth the “controlling legal principle” by directly invoking his Sixth Amendment right to 4 Case: 1:04-cv-04992 Document #: 68 Filed: 08/06/10 Page 5 of 17 PageID #:<pageID> effective counsel. In his briefs to the Illinois Appellate and Supreme Courts, McDowell argued that “the trial [court] erred in summarily denying Antonio McDowell’s petition which alleged that he was denied his Sixth Amendment right to effective assistance of both trial and appellate counsel.” (Opening Br. and Argument for Def.-Appellant at 1, Resp. Ex. G; Pet. for Leave to Appeal at 2, 16, Resp. Ex. K.) McDowell set forth the “operative facts” of his claim by asserting that “a reasonable doubt argument should have been raised on petitioner’s behalf . [because] the pre-trial identifications were unduly suggestive.” (Opening Br. and Argument for Def.-Appellant at 6.) Specifically, McDowell explained that: Joseph Medina [one of the witnesses who testified against McDowell] was shown two different groups of photographs prior to identifying Mr. McDowell. What is not explored is whether Antonio McDowell was the only person common to both groups of photographs. (Reply Br. and Argument for Pet.-Appellant at 5, Resp. Ex. I.) Though this may not be the most clearly-worded argument, McDowell obviously means to suggest that the practice of showing a witness multiple photo arrays containing a common suspect is unduly suggestive.4 (See id.) Nor can there be any doubt that McDowell sufficiently “alerted the state court to the federal nature of his claim,” since the Illinois Appellate Court expressly rejected McDowell’s ineffective assistance claim. See Lieberman, 505 F.3d at 670. (Order of Ill. App. Ct. at 8.) In denying McDowell’s petition for post- conviction relief, the Illinois Appellate Court held that: Allegations of ineffective assistance of trial and appellate counsel are intertwined with the argument that defendant’s arrest was unlawful. Petitioner’s allegation that the photographic identifications were suggestive was not supported by the record. 4 At this stage of the proceedings, the court declines to consider whether the identification procedure described by McDowell in his post-conviction briefing was unduly suggestive. 5 Case: 1:04-cv-04992 Document #: 68 Filed: 08/06/10 Page 6 of 17 PageID #:<pageID> (Order of Ill.