Carter v. Duncan, 13–2243.

• Decision Date: 30 March 2016
• Docket Number: No. 13–2243.,13–2243.
• Citation: 819 F.3d 931
• Parties: Michael CARTER, Petitioner–Appellant, v. Stephen DUNCAN, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

819 F.3d 931

Michael CARTER, Petitioner–Appellant,

v.Stephen DUNCAN, Warden, Respondent–Appellee.

No. 13–2243.

United States Court of Appeals, Seventh Circuit.

Argued April 21, 2015.

Decided March 30, 2016.

Jill L. Nicholson, Benjamin B. Folsom, Foley & Lardner LLP, Chicago, IL, Thomas L. Shriner, Jr., Foley & Lardner LLP, Milwaukee, WI, for Petitioner–Appellant.

Gopi Kashyap, Office of the Attorney General, Chicago, IL, for Respondent–Appellee.

Before EASTERBROOK and RIPPLE, Circuit Judges, and REAGAN, District Judge.^*

RIPPLE, Circuit Judge.

On September 12, 1999, Friday Gardner was shot to death in front of an apartment building on the south side of Chicago. The State of Illinois charged three men, including Michael Carter, with Gardner's murder. Mr. Carter was tried alongside his brother, Michael Stone, in a single trial. Both were convicted of murder; Mr. Carter was sentenced to thirty years' imprisonment. Following an unsuccessful state postconviction proceeding, Mr. Carter filed a pro se petition for habeas corpus in the district court under 28 U.S.C. § 2254. The district court denied relief on each of the eight grounds presented in his petition and also denied a certificate of appealability, see 28 U.S.C. § 2253(c). We granted a certificate as to a single claim—whether Mr. Carter received effective assistance of counsel. We also appointed appellate counsel.

Mr. Carter brings to us an ineffective assistance claim. His claim turns on the potential effect of the testimony of two witnesses who were not called in his defense at trial. The Illinois Appellate Court determined that the proffered testimony would not have changed the outcome of the trial. Although the state court's analysis stumbles in some respects, we nevertheless must conclude that its decision was not unreasonable. Accordingly, given our deferential standard of review, we affirm the district court's judgment denying habeas relief to Mr. Carter.

IBACKGROUND

A.

Gardner was murdered in the course of a heated argument about the robbery of an apartment occupied by Stone and other of Mr. Carter's relatives. Mr. Carter and Stone believed Gardner to have been responsible.

At the time of Gardner's murder, Mr. Carter and Gardner each had relatives living on the second floor of a building at 61st and May in Chicago. In one apartment, Gardner's cousin, Antonio Phillips, lived with his mother, Rena Phillips, and her other children. Stone lived next door, in an apartment he shared with his cousin (and Mr. Carter's cousin) Felicia Anderson, her fiancé, Corey Grant, and their children. Both Gardner and Mr. Carter—neither of whom lived in the building—at times visited their relatives there.

On the afternoon of September 12, 1999, the events culminating in Gardner's murder later that night began to unfold: a robbery, a search for the robber, a larceny in retaliation, and, eventually, a heated argument about the robbery that ended in gunfire. First, two men broke into the apartment occupied by Mr. Carter's relatives and robbed Grant at gunpoint. The robbers took money, jewelry, and marijuana packaged for sale. Grant was not alone at the time of the robbery; another of Mr. Carter and Stone's cousins, Michella Anderson, was present, as were others, although the apartment's other occupants, Felicia Anderson and Stone, were not. One of the robbers had a gun, and, while no one was shot, Grant was struck with a baseball bat on his head in the course of the robbery. After the perpetrators fled, Grant ran next door and began pounding on the door and shouting about the robbery. Antonio Phillips emerged with Gardner, who was visiting at the time, and, according to eyewitnesses, both joined the unsuccessful effort by Grant and Michella Anderson to chase down the robbers.

Later, Stone and Felicia Anderson returned home, accompanied by Felicia's sister, LaTonya Cheeks. At some point after learning of the robbery, Stone called Mr. Carter for help in determining the identity of the robbers. Mr. Carter came to the building with a friend, Cortez Jones. Jones stated that he had heard from a friend that Gardner had been selling packaged marijuana at another location and bragging about robbing someone at 61st and May. Grant, the robbery victim, denied Gardner's involvement, stating that Gardner in fact had tried to chase down the assailants with him. Grant was unable to convince Stone, Cortez, and Mr. Carter. At some point during the day, Stone acquired a gun and stashed it in a locked basement storage area in the apartment building.

According to witnesses at Mr. Carter's murder trial, later that evening, Mr. Carter, Stone, and Jones broke into Gardner's van, which was parked outside the apartment building, stole his radio, and left. Gardner saw them through a window and yelled at them to stop and that he had nothing to do with the earlier robbery. Gardner called his friend, Tommy Gaston, who arrived sometime later. Gaston and Gardner met downstairs and went to the van, where they observed that the radio had been stolen. Gardner's relative, Rena Phillips, and her boyfriend, Paul Calmese, arrived and began talking with Gardner and Gaston outside.

While Gardner and the others were still outside, Mr. Carter and Jones returned, and a heated argument ensued. Stone witnessed the beginning of the exchange from upstairs and went to retrieve the gun from the storage space. Now armed, he emerged from the adjacent alley and headed towards the argument on the street. In the ensuing minutes, Gardner was shot fatally, struck by two bullets in the abdomen. Stone, Jones, and Mr. Carter all fled the scene.

Police officers patrolling the area were in close enough proximity to view flashes and hear gunshots. Officer Cedric Taylor ran to the scene, arriving within seconds. He attempted to chase the assailants but lost sight of them and returned to the scene. Officers immediately began taking statements from the numerous eyewitnesses.

B.

The State charged Mr. Carter, Stone, and Jones with the murder of Gardner. In 2002, Mr. Carter and Stone proceeded to trial together, represented by separate counsel. Jones was tried in a separate proceeding.

In Mr. Carter and Stone's trial, the State's theory was that two sets of shots were fired: an initial set by Stone and a second set from either Jones or Mr. Carter. It argued that all of the defendants were armed and that they fled after the fatal shots were fired and discarded their weapons. The State told the jury that, under an accountability theory, it was irrelevant which individual actually had fired the fatal shots.

Stone admitted to shooting Gardner and presented both self-defense and defense of others as a justification. Stone contended that he had seen Gardner point a gun, or attempt to point a gun, at Mr. Carter, and that only then did Stone fire. Mr. Carter argued that he was unarmed and was not responsible for the actions of Stone or Jones.

The eyewitness statements, both to the police and at trial, varied widely, and several witnesses testified inconsistently with their prior statements to law enforcement in the days following Gardner's murder. Based on those initial statements given to police and testimony before the grand jury, the State assembled a witness list to support its case, consisting of law enforcement officers, Lenisha Pearson (Gardner's then-girlfriend), Grant, Felicia Anderson, Rena and Antonio Phillips, and Cheeks.¹

Except for the officers, each of the witnesses who testified at trial had some preexisting relationship either to Gardner or to the alleged perpetrators. The first group had a relationship to the victim, Gardner. At trial, Gardner's relatives, Rena and Antonio Phillips, testified that the shots fired at Gardner came from the direction of Mr. Carter and Jones, not Stone. Both testified that they saw Jones fire shots first, and both testified that they saw Mr. Carter with a gun. Rena Phillips testified that she saw Mr. Carter shoot as well. Antonio Phillips testified that by the time the second set of shots were fired, he was running toward the scene from his prior vantage point. Both testified that they saw Mr. Carter and Jones flee. Neither witness said anything about Stone. Pearson, Gardner's then-girlfriend, testified that she had heard two sets of shots, the first of which came from Stone, and the second of which came from either Mr. Carter or Jones. She also testified that she saw Gardner throughout the exchange and that he did not have a gun. Gaston, a friend of Gardner's, testified that he heard, but did not see, an initial shot. He then saw Jones pull a gun from his pocket and shoot at Gardner four times, these shots being louder than the initial single shot. He testified that he then saw Mr. Carter and Jones flee. He did not see Gardner with a gun that night.

The second set of State's witnesses were Mr. Carter's relatives and friends—Felicia Anderson, Grant and Cheeks. Although their testimony was part of the State's case-in-chief, it was more problematic for the prosecution. Felicia Anderson, Mr. Carter's cousin, testified that she did not see the shooting, but that she did see Gardner with a gun and also saw Gaston remove it from the scene. She was impeached, however, with her prior signed statement to police and her grand jury testimony. In those earlier statements, she had said that she was standing near the shooting, heard shots, turned to face the scene, and witnessed Mr. Carter pointing a gun at Gardner. She left the scene shouting that Mr. Carter had "shot him."² At trial, she attempted to explain these discrepancies by claiming that her earlier statements were based on what others had told her rather than what she personally had observed.

Grant, Felicia's fiancé, claimed to have been inside the apartment during the shooting. Grant testified only that he saw people running from the scene after hearing shots. He stated on cross-examination that he had seen Gardner with a gun earlier in the day when he had tried to chase down ...