McDowell v. Lemke

• Decision Date: 12 December 2013
• Docket Number: No. 12–2967.,12–2967.
• Citation: 737 F.3d 476
• Parties: Antonio McDOWELL, Petitioner–Appellant, v. Michael LEMKE, Warden, Stateville Correctional Center, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

737 F.3d 476

Antonio McDOWELL, Petitioner–Appellant,

v.Michael LEMKE, Warden, Stateville Correctional Center, Respondent–Appellee.

No. 12–2967.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 26, 2013.

Decided Dec. 12, 2013.

Timothy Chorvat, D. Matthew Feldhaus, Jenner & Block LLP, Chicago, IL, for Petitioner–Appellant.

John R. Schleppenbach, Office of the Attorney General, Chicago, IL, for Respondent–Appellee.

Before POSNER, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Over fifteen years ago, Antonio McDowell was convicted in an Illinois trial court of committing a murder and carjacking on a single December afternoon. Today, he seeks a writ of habeas corpus, arguing that the processes used to identify him as the perpetrator were fatally flawed. Because we find that he procedurally defaulted these claims by failing to adequately present them before each level of the Illinois courts, we decline to grant his petition.

I. Background

A. The Murder and Carjacking

At approximately 3:00 PM on December 21, 1996, Martha Castro looked out her window and saw her husband, Mario Castro, lying on the ground. A man dressed in a black cap, jacket, and pants was leaning over him and searching his pockets. Mrs. Castro and her nephew, Alberto Varela, ran outside. Varela struck the man dressed in black. In response, the man in black picked up a gun and fired it once before running into the alley. Varela followed him briefly, but stopped once the man fired the gun a second time. Mr. Castro later died from a gunshot wound to his shoulder.

The Castros' neighbor, Juan Medina, looked out his window when he heard the gunfire. He saw the man in black searching Mr. Castro's pocket. Medina then walked into the other room to tell his wife Mr. Castro had been shot. When he returned, he saw Varela hit the man in the shoulder and the man fire a shot at Varela.

A few blocks away, Ruth Morales–Santana turned into the alley. When she parked and got out of her car, the man in black approached her, gun drawn, and demanded her car keys and purse. Morales–Santana handed over her bag and keys and the man climbed into her car.

B. The Police Investigation

At 3:30 PM the same day, Detective Renaldo Guevara traveled to the scene of the shooting, where he interviewed Varela and Medina. He then began looking for a black male in his early twenties who was about five foot seven or five foot eight inches tall and was wearing a black jacket and cap.

Detective Guevara did not find anyone right away. Almost seven months later, on July 12, 1997, Guevara went to Medina's home to show him some images from a book containing Polaroid photos. Medina identified one of the pictures on the third page of the book as someone who “looked like” the man in black, but asked for a more recent photo to be sure.

Later that month, on July 21, Detective Guevara returned with an array of five black-and-white photographs. Medina picked the photo of petitioner, Antonio McDowell, as depicting the man he saw standing over Mr. Castro's body. That afternoon, Guevara took the five-photo array to Morales–Santana's home, where she also selected the photo of McDowell. The next day, Guevara took the set of photos to Varela's home, and he similarly identified McDowell as the man in black. On July 23, 1997, Medina, Morales–Santana, and Varela each viewed a lineup and identified McDowell as the offender.

C. McDowell's Trial, Conviction, and Direct Appeal

Before his trial, McDowell filed a motion to suppress the identification testimony, alleging that the police had staged an improper one-on-one photo show up and used overly suggestive photo arrays that resulted in mistaken identifications. Specifically, McDowell argued that the photo array contained too few people and that “the disparity in age, height, weight, dress, complexion, and other distinguishing characteristics ... was improperly conducive to the misidentification of the accused.” The record does not indicate that the state court ever ruled on the motion. McDowell did not continue to argue the point at trial.

At a bench trial, the State presented eyewitness identification testimony from Mrs. Castro, Medina, Varela, and Morales–Santana.¹ Each testified as to their observations at the time of the offenses. Detective Guevara also testified about his investigation and interviews with these witnesses. The State presented no physical evidence linking McDowell to the murder and carjacking. McDowell himself did not testify, but presented an alibi through his good friend, Kenneth Beecham.

At the close of the evidence, the judge credited the State's witnesses, noting that their accounts had corroborated each other and recounted the same sequence of events. He found petitioner guilty of first degree murder, attempted murder, and aggravated vehicular hijacking, and imposed a sentence of 103 years.

On direct appeal, McDowell argued that the trial court abused its discretion in imposing a 103–year sentence based upon his lack of remorse, and that the use of consecutive sentences violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The state appellate court affirmed, and the state supreme court denied McDowell's petition for leave to appeal.

D. State Post–Conviction Proceedings

McDowell then filed a pro se state post-conviction petition pursuant to 725 ILCS 5/122–1–5/122–7. In part, he argued that he was arrested without probable cause. To support this argument, McDowell asserted that the identification supporting his arrest was tainted because a computer-generated photo was “presented to the victims in ... a suggestive manner.” In later pleadings, McDowell additionally claimed that Medina's identification was tainted because his was the only image common to the two photo sets Guevara showed Medina (the photo book, from which Medina tentatively identified McDowell, and the five-photo array all three witnesses were shown).

The trial court denied the petition, and McDowell appealed, arguing only that his trial and appellate counsel were ineffective. Specifically, McDowell argued that his counsel should have challenged whether there was probable cause to support his arrest. In so arguing, he quoted his arguments from his original post-conviction petition.

The state appellate court affirmed McDowell's conviction. It rejected McDowell's ineffective assistance claim, noting that he was arrested based on three separate photo identifications, his allegation that the arrays were suggestive was not supported by the record, and that there was no evidence that the eyewitnesses were told to identify McDowell. McDowell then filed a petition for leave to appeal, which the Illinois Supreme Court denied.

E. Habeas Proceedings

Pursuant to 28 U.S.C. § 2254, McDowell filed a pro se petition in federal court for a writ of habeas corpus on July 25, 2004. The district court appointed counsel, and McDowell filed an amended, counseled petition. In his amended petition, McDowell alleged that Detective Guevara had framed him for murder after he refused to falsely identify a suspect as the person who shot him in the hand earlier that year. Specifically, he alleged that the eyewitness identifications arising from the lineup were suggestive because Guevara showed a single picture of him to the witnesses before they participated in the lineup.

McDowell also argued that any procedural default should be forgiven because he could establish he was actually innocent of the crime, and thus a grave miscarriage of justice would occur were he not allowed to challenge his conviction in federal court. He based this claim on the assertion that Detective Guevara framed him. McDowell submitted two pieces of evidence supporting this claim: an affidavit he made himself and a collection of affidavits and transcripts detailing Detective Guevara's misconduct in other, unrelated cases.

In his affidavit, McDowell averred that police detectives visited his mother's house on July 14, 1997, and told him he should go to the station for an interview. When McDowell went to the station on July 23, Detective Guevara allegedly handcuffed him to a wall for several hours in an attempt to coerce him into falsely identifying someone as the person who shot him in the hand earlier that year. Guevara then purportedly convinced him to participate in a lineup. While McDowell was at the station, another detective showed McDowell a picture of himself. The detective allegedly said that Guevara had used the picture to implicate McDowell before the witnesses.

The evidence of Detective Guevara's misdeeds consisted of affidavits, depositions, and trial testimony from other criminal defendants, mostly convicted felons, alleging that Detective Guevara had coerced them to confess or to identify a specific person as a perpetrator. None of the evidence related specifically to McDowell's case.

The district court accepted McDowell's contentions in part and rejected them in part. It found that McDowell had procedurally defaulted his argument that the lineups were unduly suggestive based on the allegation that Detective Guevara showed a single picture of McDowell to the witnesses before they performed any other identifications. The court also ruled that McDowell had procedurally defaulted any identification claims as to witnesses other than Medina. Further, McDowell had not established actual innocence sufficient to excuse these defaults, because his affidavit was inconsistent with the chronology of the investigation and testimony at trial, and because McDowell's submissions concerning Detective Guevara's past misdeeds were not direct evidence of wrongdoing in McDowell's case.

The district court did find, however, that McDowell had not procedurally defaulted a generic “Sixth Amendment/suggestive identification claim” or his ineffective assistance claim relating to counsel's failure to challenge the identifications. After substantive briefing, the district court...