Blackmon v. Williams, 052416 FED7, 14-3059

Docket Nº:14-3059
Opinion Judge:Hamilton, Circuit Judge.
Party Name:Eric Blackmon, Petitioner-Appellant, v. Tarry Williams, Respondent-Appellee.
Judge Panel:Before Posner, Sykes, and Hamilton, Circuit Judges. Posner, Circuit Judge, concurring and dissenting.
Case Date:May 24, 2016
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Eric Blackmon, Petitioner-Appellant,

v.

Tarry Williams, Respondent-Appellee.

No. 14-3059

United States Court of Appeals, Seventh Circuit

May 24, 2016

Argued October 2, 2015

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 C 2358 - Ronald A. Guzmán, Judge.

Before Posner, Sykes, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

This appeal from the denial of a habeas corpus petition presents a thicket of procedural and substantive issues arising from a murder on the streets of Chicago. On the Fourth of July in 2002, Tony Cox was standing outside a restaurant when he was gunned down by two men. The gunmen fled, but two women driving cars near the scene saw the murder and the shooters' faces. Not quite two months later, both women independently chose petitioner Eric Black-mon's photograph out of arrays, identifying him as the second shooter. They repeated those identifications at a live line-up and then again at trial. Primarily on the strength of their testimony, Blackmon was convicted of first-degree murder and sentenced to sixty years in prison.

Blackmon petitioned the state courts for post-conviction relief, arguing that his attorney was constitutionally ineffective because he failed to present certain eyewitness and alibi testimony, and in the alternative, that he was actually innocent. The state courts summarily denied relief. Blackmon then sought relief in federal court under 28 U.S.C. § 2254. The district court denied Blackmon's petition.

The record before us supports the conclusion that Black-mon's trial counsel was constitutionally ineffective by failing to investigate the alibi witnesses and shows that the state court's summary dismissal of the claim was unreasonable. But a "state court's mistake in summarily rejecting a petition, i.e., without fully evaluating conflicting evidence on disputed factual issues, does not necessarily mean the petitioner is ultimately entitled to relief." Mosley v. Atchison, 689 F.3d 838, 842 (7th Cir. 2012). Because of that summary dismissal, the alibi witnesses have not yet been tested in any sort of adversary proceeding, and the record contains no evidence from Black-mon's trial counsel as to what he did or did not do. Accordingly, we vacate the denial of the habeas petition and remand to the district court to assess whether Blackmon "is actually 'in custody in violation of the Constitution or laws or treaties of the United States.'" Id., quoting 28 U.S.C. § 2254(a).

I. Background

A. The Murder of Tony Cox

At about 4:30 p.m. on July 4, 2002, Tony Cox was shot and killed in front of a restaurant called Fat Albert's located at 1143 South Pulaski Road in Chicago. Though the various accounts of the shooting differ in some ways, the basic outline is relatively consistent, with one exception discussed below.

At the time of the shooting, Cox and Richard Arrigo, the owner of Fat Albert's, were outside the restaurant with two other men. The first assailant shot Cox at least twice, and Cox fell to the ground. The second assailant then shot Cox twice more, and both men fled. The State's theory is that Blackmon was the second shooter. Cox died from four bullet wounds to the head, each of which would have been fatal alone. The medical examiner recovered two bullets from Cox's body, and a forensic scientist with the Illinois State Police later testified that those bullets had come from two different guns.

Frencshun Reece and Lisa McDowell, the witnesses who would later form the core of the State's case, saw Cox's murder from their respective vehicles. Reece was stopped at a red light when she saw the first assailant shoot Cox twice. According to Reece, both assailants began to flee, but the second assailant turned back and shot Cox in the head again before running away. Reece pulled over and called the police, although Arrigo urged her to hang up and claimed he had already called. Reece remained at the scene to speak with police. Later that day, she viewed a photographic array and selected three pictures that "resembled" one or both of the assailants, though she made no definitive identification that day. Blackmon was not part of this first photo array.

McDowell was driving south when she stopped at a red light, about two car-lengths back from the intersection. She did not see the first two gunshots, but she looked over after hearing them and saw Cox lying on the ground, with Arrigo standing nearby. She then saw the two assailants approach Cox. One of them shot him twice more, and both men fled. McDowell also called 911 but did not remain at the scene, and she did not view photographs of possible suspects that day.

Arrigo, too, witnessed the crime. According to his account, he was locking the doors of his restaurant when he heard two gunshots. He turned and saw the second assailant shoot Cox twice and flee with the first. Like Reece, Arrigo remained at the scene and spoke to police, but he told them he had not recognized the shooters and could not identify them.

B. The Investigation

A few days into the investigation, a possible explanation for the shooting began to emerge. George Davis, also known as "Booney Black, " was the founder of the New Breed gang, of which Cox was a member. According to an "Investigation Time-Line" produced during discovery, police received a tip indicating that Davis had lent Cox money to start a drug corner but had ordered him killed when things went badly. There was also evidence suggesting that Arrigo, who was Davis's friend, helped arrange the murder. The investigators found a message from Arrigo on Cox's voicemail instructing Cox to meet him at the restaurant. Arrigo confirmed it was his voice on the recording but claimed not to remember leaving the message, and he denied arranging the murder. Cell phone records also showed that Arrigo had called Davis immediately after the shooting.

Police also received information that two individuals nicknamed "Pride" and "Keno" may have killed Cox. "Keno" was the nickname of Michael Davis, the nephew of George Davis; "Pride" was the nickname of a man named Eric Bridges, who, like Cox, was a member of the New Breed gang.

At some point, the police began to focus on Eric Blackmon instead, though the record does not show how he became a suspect. The "Investigation Time-Line" mentions "Pride" and "Keno" but does not even mention Blackmon (whose nickname is or was "Forty"). The rest of the record provides little additional insight. A detective testified during grand jury proceedings that Blackmon and Cox were "members of the same street gang, " but the State's counsel conceded at oral argument that no trial evidence supports this assertion. There was also testimony at trial that "family members" had verified Blackmon was "involved" in the murder, but the detective did not explain further and the "Investigation Time-Line" does not mention them.

Regardless, Blackmon did come under suspicion, and his picture was placed in a photo array that Reece, McDowell, and Arrigo all viewed in late August or early September, about two months after the shooting. Arrigo did not identify anyone from the photo array as one of the shooters. Reece and McDowell, however, both selected Blackmon's photograph. A live line-up yielded the same results: Arrigo did not identify anyone, while both Reece and McDowell chose Blackmon, who was arrested and charged with Cox's murder.

C. Blackmon's Trial

At a bench trial in September 2004, the State presented the testimony of McDowell and Reece to prove that Blackmon was the second shooter on July 4, 2002. McDowell testified that she was stopped in traffic on South Pulaski Road when she heard a gunshot. When she looked to her left, she saw "an Italian guy"-that is, Arrigo-and then watched as two men came around a building. One of the men, she testified, stood over a body lying on the sidewalk and then fired two more shots at the victim. She described that shooter as a black male, a "tall guy, maybe about six feet, slender build." She testified that she saw the gunman's face and identified Blackmon in court as the man she saw. McDowell said she had seen the shooter from about fifteen to sixteen feet away, and that after firing, both the shooter and the other man had run across Pu-laski Road.

On cross-examination, Blackmon's counsel tried to undermine the reliability of McDowell's identification. For example, he elicited testimony that she had seen the shooter's face straight-on for only about five seconds. McDowell also testified that as she watched the shooter running away, she had only a view of his profile in her car's rearview mirror from about forty-five feet away. Counsel also emphasized that McDowell had not viewed the photo array until...

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