Cal v. Dorethy

Decision Date26 December 2019
Docket NumberCase No. 14-cv-3834
Citation430 F.Supp.3d 482
Parties Cedric CAL (B-54397), Petitioner, v. Warden Stephanie DORETHY, Respondent.
CourtU.S. District Court — Northern District of Illinois

Jane E. Raley, Northwestern University School of Law Legal Clinic, Alison R. Flaum, Bluhm Legal Clinic - Northwestern Law Bluhm Legal Clinic, Shobha Lakshmi Mahadev, Reed Smith LLP, Chicago, IL, for Petitioner.

Erin Maureen O'Connell, Illinois Attorney General's Office, Chicago, IL, for Respondent.


Robert M. Dow, Jr., United States District Judge Petitioner Cedric Cal ("Petitioner") is incarcerated at Hill Correctional Center. He brings this habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his conviction in the Circuit Court of Cook County. For the reasons explained below, the Court denies the petition. However, pursuant to 28 U.S.C. § 2253(c)(2), the Court grants a certificate of appealability as to Claim 1. The Court directs the Clerk to enter judgment against Petitioner and in favor of Respondent. Civil case terminated.

I. Background

The following facts are drawn from the state court record, which Respondent has submitted in accordance with Rule 5(c) of the Rules Governing Section 2254 Cases. See [51]. The state court findings of fact are presumed correct, and Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. Brumfield v. Cain , 576 U.S. 305, 135 S. Ct. 2269, 2282 n.8, 192 L.Ed.2d 356 (2015) (citing 28 U.S.C. § 2254(e)(1) ).

Petitioner and his codefendant Albert Kirkman ("Kirkman") were charged in the Circuit Court of Cook County with the first degree murders of Cedric Herron ("Herron") and Sammy Walker ("Walker") and the attempted murder and aggravated battery with a firearm of Willie Johnson ("Johnson"). Petitioner and Kirkman were tried in a joint jury trial.

Johnson testified at the trial. According to Johnson, on the afternoon of April 21, 1992, his sister Latanya came home crying. Johnson went outside to confront his neighbor, Keith Ford ("Ford"). Johnson found Ford standing outside of his house with five other men, including "Duke." Johnson had a physical altercation with some of the men and then returned home. Around 10:00 p.m. that night, Johnson testified, he was standing in his yard with Herron and Walker when Duke and a second man approached, both armed with guns. Johnson saw "the motion of pointing a gun" and he "just laid down and hit the ground." [51-2] at 50. Herron and Walker were hit by gunfire and died at the scene. Johnson was hit with nine bullets but survived.

Detective Michael Miller testified that he first spoke to Johnson in the emergency room while Johnson was being prepared for surgery following the shooting. Johnson described the two shooters, identified one of them as Duke, and provided details about Duke's house and car. A few hours later, Kirkman and Petitioner were apprehended, and Miller returned to the hospital to show Johnson their photographs. Johnson identified Kirkman and Petitioner as the shooters, noting that Kirkman went by the nickname Duke. At trial, Johnson again identified Kirkman and Petitioner as the shooters.

Petitioner and Kirkman were convicted of all charges. The Illinois Appellate Court affirmed Petitioner's convictions and the Illinois Supreme Court denied leave to appeal. Petitioner is currently serving a sixty-year prison sentence.

Since his conviction, Petitioner has filed four post-conviction petitions in Illinois state court.1 Only the third petition, filed in 2009, is at issue here. See [51-24] at 1 et seq. In it, Petitioner asserted a claim of actual innocence based on newly discovered evidence. That evidence consisted primarily of an affidavit from Johnson, signed in 2009, in which Johnson recanted his identification of Petitioner and Kirkman as the shooters and instead identified Ford and an unknown accomplice. According to the affidavit, Ford "was a Regent for the Gangster Disciples" who "ran the drug trade on North Harding." [51-24] at 32. Both Johnson and Herron were members of a rival gang, the Insane Vice Lords, and sold drugs on the street. Id. at 31. Kirkman lived down the block and was known to Johnson as a Conservative Vice Lord. Id. The day before the shooting, Johnson found Kirkman and Petitioner selling drugs in front of his house and confronted them, robbing them of their drugs and money. Id. Johnson's sister Latanya and girlfriend Latrese Buford ("Buford") witnessed the altercation, and the next night told police that Petitioner and Kirkman were the likely shooters. Id. at 34. Johnson "just rolled with it" and identified Petitioner and Kirkman because he "was still pissed that they were taking over [his drug] spot" and wanted to "get[ ] back at them." Id. at 35. Johnson did not tell police that Ford was one of the shooters because he "wanted to take care of it in the streets" and retaliate against Ford for killing his best friend Heron. Id.

The Illinois trial court granted Petitioner leave to file the third petition and held an evidentiary hearing at which Johnson, Buford, and Lillian Rivera ("Rivera") testified. Johnson testified that after a police officer at the hospital showed him photographs of Petitioner and Kirkman, he identified them as the shooters because he "didn't like them." [51-26] at 89. When asked why he did not name Ford as the real perpetrator, Johnson said, "my mother had already started receiving silent calls and guys was following my mother around and my sister was being threatened," and claimed that "the things I said I said out of fear, you know, for my life as well as my sister's and my mother." Id. at 90. Johnson also testified that, before signing his affidavit, he spoke with Ray Ray Longstreet, a "very high ranking" Vice Lord who had the authority to tell Johnson what to do before Johnson "retired" from the gang sometime earlier. [51-26] at 136-39. Longstreet "gave [Johnson] the green light" to recant his trial testimony, telling him that "he had [Johnson's] back." Id. at 136. Johnson testified that Longstreet's phone call was "the only reason, Judge, I'm here." Id.

Buford testified at the hearing that she told detectives only that she heard gunshots, but "[d]idn't know anything" else. [51-26] at 205. According to Buford, Johnson told her that "Duke and Cal" were the shooters. Id. at 210. Rivera testified that Ford visited her on the night of the shooting around 9:30 p.m., staying for an hour. [51-26] at 252. Ford was accompanied by a second person, who was neither Petitioner nor Kirkman. Id. at 252-53.

Following the hearing, the trial judge determined that Johnson's recantation was not credible, and therefore not material. Thus, the judge denied post-conviction relief. See [51-26] at 350. The trial judge found Johnson's testimony internally inconsistent and implausible. Among other things, the trial court determined that it was improbable Johnson was receiving threatening telephone calls while in the emergency room, see id. at 346, and Johnson identified conflicting motives for failing to identify Ford immediately after the shooting, id. at 347. The trial court also determined that Petitioner's original identification of Petitioner and Kirkman, which Petitioner made when he "thought he was going to die [and] his family was threatened" [51-26] at 346, was reliable. By contrast, the trial court found, Longstreet's phone call to Johnson provided Johnson a motive to lie in his 2009 affidavit. According to the trial court, "[n]one of the circumstances of that phone call, how it originated, seems to indicate that it was done for any reason other than to his alliance and his loyalty with th[e] continuing criminal enterprise" of the Vice Lords. [51-26] at 348.

The Appellate Court affirmed, concluding that the trial judge's rejection of Johnson's recantation was not manifestly erroneous. See People v. Cal , 2013 WL 6687252 (Ill. App. Dec. 17, 2013). The Illinois Supreme Court ultimately denied leave to appeal.

Petitioner subsequently filed this habeas corpus action pursuant to 28 U.S.C. § 2254. Petitioner claims that: (1) his continued incarceration constitutes both a due process violation and an Eighth Amendment violation because he put forth a "truly persuasive" demonstration of actual innocence in state post-conviction proceedings; and (2) his continued incarceration constitutes a due process violation because his conviction rests solely on irredeemably unreliable evidence—namely, Johnson's now-recanted identification of Petitioner as one of the shooters. Petitioner requests that this Court grant his petition, vacate his conviction, and order the State to retry him within 60 days or release him. In the alternative, Petitioner requests an evidentiary hearing before this Court so that any additional factual record may be developed in order to determine de novo whether Petitioner's constitutional claims have merit.

II. Legal Standards

The Court's review of Petitioner's petition for writ of habeas corpus is governed by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). "The statute significantly limits the scope of our review; habeas relief cannot be granted for persons in custody pursuant to a judgment of a state court unless the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ " Sims v. Hyatte , 914 F.3d 1078, 1086-87 (7th Cir. 2019) (quoting 28 U.S.C. § 2254(d)(1), (2) ). Petitioner frames both of his claims as (d)(2) challenges to the Illinois courts' determinations of fact in post-conviction proceedings. See [49] at 16 (Claim 1); id. at 29-30 (Claim 2). " ‘Under § 2254(d)(2), a decision involves an...

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2 cases
  • Justise v. Warden
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    • March 1, 2022 proceedings when it failed to consider certain evidence was not cognizable on federal habeas review); Cal v. Dorethy, 430 F.Supp.3d 482, 490 (N.D. Ill. 2019), aff'd sub nom. Cal v. Garnett, 991 F.3d 843 (7th Cir. 2021) (alleged errors by the state court on post-conviction re......
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    ...however, recently issued a certificate of appealability to allow the Seventh Circuit to address this very question. Cal v. Dorethy, 430 F. Supp. 3d 482, 490 (N.D. Ill. 2019). ("In support of his actual innocence claim (Claim 1), Petitioner has identified favorable facts suggesting that he m......

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