Abrams v. Barnett, 95-4065.

• Decision Date: 08 November 1996
• Docket Number: No. 95-4065.,95-4065.
• Parties: Sylvester ABRAMS, Petitioner-Appellant, v. Paul BARNETT, Warden, Danville Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

121 F.3d 1036

Sylvester ABRAMS, Petitioner-Appellant, v. Paul BARNETT, Warden, Danville Correctional Center, Respondent-Appellee.

No. 95-4065.

United States Court of Appeals, Seventh Circuit.

Argued September 27, 1996.

Decided November 8, 1996.^*

On Remand June 27, 1997.

Submitted July 25, 1997.^**

Decided August 14, 1997.

Frederick F. Cohn (submitted), Chicago, IL, for Petitioner-Appellant.

Rita M. Novak, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before BAUER, FLAUM and DIANE P. WOOD, Circuit Judges.

On Remand from the Supreme Court of the United States, June 27, 1997.

FLAUM, Circuit Judge.

The Supreme Court vacated our earlier judgment in this case and remanded for further consideration in light of the Court's decision in Lindh v. Murphy, ___ U.S. ___, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). See Abrams v. Barnett, 100 F.3d 485 (7th Cir. 1996), vacated, Abrams v. Barnett, ___ U.S. ___, 117 S.Ct. 2503, 138 L.Ed.2d 1008 (1997). Reversing a decision of this court, the Supreme Court held in Lindh that the amendments to chapter 153 of Title 28 enacted by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), do not apply to cases, such as petitioner Sylvester Abrams', that were pending at the time the AEDPA was passed. See Lindh v. Murphy, ___ U.S. ___, 117 S.Ct. 2059, rev'g Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996). Because we relied upon this provision in deciding Abrams' appeal, reconsideration of his claims is necessary.

Abrams raised three issues on appeal: (i) that his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment right to testify were violated when the trial court prohibited him from consulting privately with counsel during a noon-time recess in the trial; (ii) that the use of a suggestive identification procedure by police denied him due process in violation of the Fourteenth Amendment; and (iii) that various evidentiary rulings made by the trial judge violated his Fourteenth and Sixth Amendment rights. Applying the prior version of section 2254, we once again conclude that Abrams' petition was properly denied by the district court.

I.

We begin by noting the manner in which our review of Abrams' claims under the old version of section 2254 differs from our prior review of these same claims under the amended version of section 2254. Petitioners seeking a writ under the new section 2254(d) face some additional obstacles in demonstrating that they are in custody in violation of federal law. First, the AEDPA made it more difficult for a petitioner to challenge the manner in which a state court applied federal law to the particular facts of his case. Under the new section 2254(d), a federal court reviews these determinations for reasonableness only, whereas the prior law provided for plenary review of these claims.

Second, the amended provision narrowed the body of law on which a petitioner may rely in challenging a state conviction. A petition is granted under the new law only if a state court's decision is contrary to "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). As this court has recognized, this is a "retrenchment from former practice, which allowed the United States courts of appeals to rely on their own jurisprudence in addition to that of the Supreme Court." Lindh, 96 F.3d at 869. Because we now review Abrams' claims under the old section 2554, he is entitled to both the benefit of an expanded body of law in challenging his conviction and to a more exacting review of any claims involving the application of federal law to the facts of his case.¹

II.

Under either version of section 2254, this court must accept the reasonable factual findings of the state trial and appellate courts as true. 28 U.S.C. § 2254(e)(1) (1996);² Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981); Mills v. Jordan, 979 F.2d 1273, 1279 (7th Cir.1992). The following facts, taken from our original opinion in this case, see Abrams, 100 F.3d at 487-89, were derived from the state appellate court opinion and from the trial record.

At trial, two witnesses testified to having seen Abrams shoot Leroy Williams on January 3, 1990. The first of these witnesses was Jennifer Williams, the victim's sister. Jennifer was standing in the entryway of her aunt's apartment watching her brother load boxes into his car when she noticed a group of seven males huddled on the street corner. She recognized one of these men as Abrams, whom she knew by the nickname "Dusty." Jennifer had an unobstructed view of Abrams from where she was standing approximately 50 or 60 feet away. She saw him fire two shots at her brother, run around the building toward the alley, and then fire three more shots at Leroy, fatally wounding him.

Jennifer told the police when they arrived on the scene that "Dusty" had shot her brother. She testified that she provided no description of the assailant to any officer with whom she spoke at the scene. Later that night, the police took Jennifer to the station. She was told that she would view a lineup in order to identify the suspected murderer. Police led her into a room with a window that exposed another room where Abrams was seated at a table by himself.

Jennifer denied on cross-examination that the police had warned her beforehand that Abrams would be in the room. However, Detective Mike Miller, the officer who arrested Abrams, responded affirmatively on cross-examination when asked whether he had informed Jennifer beforehand that she would be seeing Abrams. Miller explained that a lineup was not employed in this case because there was no question that Jennifer knew the identity of the shooter. Because the purpose of the identification would be to exclude Abrams, if possible, a lineup would be a waste of police resources. Officer Williams also testified that, when he went to Abrams' home to arrest him, Abrams attempted to slam the door, ran for the back of the apartment, and had to be wrestled to the ground by the police.

Jennifer had known Abrams for approximately five years prior to the shooting and had seen him in the neighborhood nearly every day in those five years. They were fairly well-acquainted and had played cards together. She testified that, although Abrams weighed approximately 260 pounds at the time of trial, he had been "lighter," weighing approximately 160 pounds, at the time of the shooting. This testimony was contradicted by that of Detective Miller, the arresting officer, who described Abrams as weighing approximately 260 pounds at the time of his arrest. Jennifer was also acquainted with three of Abrams' brothers, including his brother Jimmy, with whom she went to school. She described Jimmy as shorter than Abrams, with a light-brown complexion and curls in his hair.

Officer Bruce Brady testified that while he was on patrol on January 4, 1990 he observed a man being followed by a group of men wielding baseball bats. The group of men shouted that the man they were pursuing was carrying a gun. Officer Brady arrested the man and, in the course of a custodial search, recovered a .38 caliber revolver. The officer later learned that the arrestee was Jimmy Abrams, petitioner's brother. Ballistics reports revealed that the .38 that was recovered was the weapon used to kill Leroy. At the time of his arrest, Jimmy was 5'5" and weighed 145 pounds.

Chicago police officer Consuelo Morgan and her partner were the first officers to arrive at the scene. Morgan questioned the persons who had gathered around the body of the victim. Her report indicates that she was given a description of the perpetrator as being 5'6" and 185 pounds. She testified that she had written the names of some of the witnesses with whom she spoke but omitted others "because they were afraid to speak." The defendant objected to this statement. The trial judge sustained the objection and ordered the response stricken but denied Abrams' motion for a mistrial. Morgan testified that Jennifer did not give a description of the shooter because she was in shock, but that Jennifer did identify the shooter as "Dusty." Detectives John McKenna and Dave Delponte, who were assigned to investigate the murder, filed a report at the end of their shift in which the perpetrator was described as 5'6" and weighing 160 pounds.

The second witness who testified to having seen the defendant shoot Leroy was Nakita Bailey, the victim's cousin. Nakita had an unobstructed view from the front window of her third floor apartment of the street and saw "Dusty" fire two shots at Leroy, disappear for about a minute, and then fire three more shots. Nakita had been aware of who Abrams was for approximately three years prior to the shooting. On cross-examination, after being reminded that she had not told anyone what she had witnessed until almost two years after the shooting, she explained that she decided to tell Jennifer what she had witnessed after Jennifer complained to her that no one had come forward to testify against Abrams. On redirect examination, after being asked why she had not come forward earlier, she stated, "I was afraid the gang members would do the same to me." The trial judge overruled Abrams' objection to this answer.

Near the close of the state's case, the court allowed a two-hour recess for lunch. When court reconvened, defense counsel objected to the conditions under which he was permitted to speak with the petitioner during the recess. The following exchange took place:

THE COURT: Here comes Mr. Cohn. Mr. Cohn, you have had an opportunity to speak with your client now, is that right?

MR. COHN: Well, I don't think I have had an adequate opportunity to speak to my client. I object to the fact that during the noon recess I have been prohibited from being able to meet with my client in a private place in a private way other than through speaking to him

...