Bolton v. Akpore

• Citation: 730 F.3d 685
• Decision Date: 12 September 2013
• Docket Number: No. 10–3150.,10–3150.
• Parties: Anthony BOLTON, Petitioner–Appellant, v. Kevwe AKPORE, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

730 F.3d 685

Anthony BOLTON, Petitioner–Appellant,

v.Kevwe AKPORE, Respondent–Appellee.

No. 10–3150.

United States Court of Appeals,Seventh Circuit.

Argued April 5, 2012.

Decided Sept. 12, 2013.

Ethan R. York, Attorney, Winston & Strawn, LLP, Chicago, IL, for Petitioner–Appellant.

Eric M. Levin, Attorney, Office of the Attorney General, Chicago, IL, for Respondent–Appellee.

Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

Anthony Bolton was convicted of first degree murder following a bench trial in the State of Illinois in 1997. He now appeals from the denial of his petition for a writ of habeas corpus. See28 U.S.C. § 2254. Because he did not preserve in the district court the issue he now raises on appeal, and because he did not raise the issue he now asserts through a complete round of state court review, we affirm the judgment of the district court denying the writ.

I.

Factual determinations by state courts are presumed to be correct in federal habeas corpus proceedings, and the applicant has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Vasquez v. Hillery, 474 U.S. 254, 258, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); Sumner v. Mata, 449 U.S. 539, 545–47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). We glean the following facts from the unpublished opinions of the state court on direct appeal and in postconviction proceedings. In the evening of October 21, 1994, Brandy Smith and Daccheus Birmingham were driving near 101st Street and Cottage Grove Avenue in Chicago. They pulled into the London Towne apartment complex and parked. Smith started to leave the front passenger seat but noticed a man standing behind the car. Although it was dark, street lights illuminated the area. At first, Smith mistook the man for a friend named Steven, but Birmingham, who was driving, responded that the man was not Steven. The man pointed a gun at Smith and Birmingham and shouted, “We got some GD's over here.¹” Smith looked directly at the man from a distance of approximately seven feet and shouted to Birmingham to drive them away. As Smith got back in the car, Birmingham struggled with the gear shift and then caught the car on a curb. During those critical moments, the man came around to Birmingham's side of the car and began firing the gun into the car. Smith dropped to the floor as she heard the bullets shatter the window but was able to see Bolton's face as she looked up. Birmingham drove toward the exit of the complex on Cottage Grove Avenue, but he had been fatally wounded. As he lost consciousness, the car swerved, hit a trash can and then rolled to a stop.

Hattie May Singleton, who lived near the apartment complex, saw the trouble developing. Hearing a commotion outside her home on 101st Street, she went to her porch and observed three men standing on a hill near an old, dark-colored car, speaking loudly. One of the men was wearing a darkjacket with white markings.² When another car drove past them, she heard one of the men say, “There go that n––––– now.” The three men walked towards the second car as it parked, and Singleton ran into her home to call the police. She heard gun shots and returned to the front porch. The old, dark-colored car was gone, and the second car was rolling slowly towards Cottage Grove Avenue.

Officers Danon Bright and Galena Bradley responded to a radio report of gunfire near 101st Street and Cottage Grove Avenue, and they arrived in time to see the victim's car hit a trash can and roll to a stop after hitting a curb. They found Birmingham unconscious, with a gun shot wound to his left side. Officer Bright saw a number of bullet holes in the car and the driver's side window was shattered. Smith was inside the car, crying hysterically. She told the officers that several African–American men approached the car, accused the occupants of being Gangster Disciples and then shot at them.

Several other police officers rushed to the scene as the events unfolded. Officers Ronald Holt and Milan Stanford actually heard the shots being fired. They too saw the victim's car emerge from the London Towne complex onto Cottage Grove Avenue. They saw four African–American men running in the complex. One man was wearing a distinctive sleeveless jacket, red on one side and a dark color on the other side.³ Officer Holt sent a radio message reporting that he had seen four men running and that one was wearing a sleeveless jacket.

Officers Baron and Gibbons heard that call and drove toward the London Towne complex. As they drove into the complex, a gray car was driving out. The driver was wearing a sleeveless jacket. As the officers turned around to stop the car, they saw a passenger exit from the back seat and run away. The officers arrested the other occupants of the car, including Anthony Bolton (the petitioner here), Raymond Clark (who was wearing the sleeveless jacket), and Marcus Flowers. Officer Holt, who had seen the man in the sleeveless jacket running moments earlier, proceeded to the scene of the arrest and identified Clark as the man he had seen running with three other men.

In the meantime, Officers Alexander Curd and Shirley Tate responded to a radio call regarding the man who fled from the back seat of the gray car. As they canvassed the London Towne complex, a woman approached them and told them that a man was hiding in some bushes nearby. As she spoke to the officers, she noticed the man was now walking towards them on the sidewalk. The officers detained the man, Shaparral Watts, and discovered a gun in the bushes where he had been hiding.⁴

Approximately two hours later, Detectives Bernatek and Cross conducted a lineup of the four suspects who had been arrested. Each man was asked to pose with his right arm extended in a shooting position. From this lineup, Smith identifiedBolton as the shooter. Photographs were taken of the lineup, but could not be developed for reasons that do not appear in the record. Smith also independently identified Bolton as the shooter at his trial.

Bolton was prosecuted for the murder, as were Clark and Watts, who were tried separately before the same judge. We have already recounted the findings of the state courts from the testimony of Smith, Singleton, and many of the police officers who responded to the scene and investigated the murder. Flowers, who was not prosecuted, also testified against Bolton at trial. According to Flowers, Clark was a member of the Vice Lords street gang, Flowers and Watts were Black Disciples and Bolton was unaffiliated with any gang. On the day of the murder, Flowers accompanied Clark, Watts and a man named Jo–Jo ⁵ to the home of Clark's mother in the London Towne complex. When Clark went into his mother's home, Flowers and the others remained in the car. While they waited for Clark, three or four men approached the car and threatened that the occupants would be harmed if they were not Vice Lords. Someone in the car (Flowers could not recall who) told the men that Clark was a Vice Lord and the men then left. When Clark returned to the car, Flowers, Watts and Jo–Jo told Clark what had happened. Clark drove them all to Altgeld Gardens. He went into a building with Jo–Jo and came back with Bolton. Clark and Bolton got into the car and Clark handed a gun to Watts. The four then drove to the London Towne complex in search of the men who had made the threat.

At trial, Flowers initially testified that he, Bolton, Clark and Watts then drove through the London Towne complex without incident until they were stopped by the police. But under additional questioning at trial, Flowers admitted that he signed a statement on the night of the murder implicating Bolton, Clark and Watts in the murder. Flowers then testified that, when they drove into the London Towne complex, they saw a car with two occupants, that Clark thought one of the occupants was a Vice Lord, and that Clark, Watts and Bolton then exited the car and approached the car containing Smith and Birmingham.⁶ According to Flowers, Watts handed a gun to Bolton and Bolton approached the car. As the car attempted to pull away, Bolton fired multiple shots at the car. Watts, Clark and Bolton then returned to their own car, and Bolton gave the gun back to Watts.

On cross-examination, Flowers asserted that he signed the statement on the night of the murder because he was only sixteen years old, because the police refused to call his mother, and because the officers told him he would be imprisoned for thirty years for his involvement in the murder. But he also testified that his original written account was true, and that he changed his testimony after receiving threatening letters at home. Although Flowers flip-flopped in telling the story at trial, his testimony implicating Bolton, Clark and Watts was consistent with his signed statement made on the night of the arrest, as well as with his grand jury testimony and with the testimony of the assistant state's attorney who interviewed him on the night of the murder. The trial court found Bolton guilty of first degree murder. The same court found Clark and Watts not guilty of murder but guilty of weapons possession.

II.

On direct appeal, Bolton contended that (1) the evidence presented at trial was insufficient to support his conviction; (2) trial counsel was ineffective for failing to join a stipulation between the State and one of Bolton's co-defendants concerning an exculpatory pre-trial statement made by Flowers; and (3) his fifty year sentence was excessive. In the course of arguing that the evidence was insufficient, Bolton contended that Smith's identification evidence was “weak.” In addition to pointing out poor lighting conditions, Smith's obstructed line of vision from the floor of the car, and her emotional state at the time of the shooting, Bolton also contended that her lineup identification was flawed. In particular, Bolton argued that Smith could not make an...