Dixon v. Pfister
| Decision Date | 25 October 2019 |
| Docket Number | No. 11 C 5851,11 C 5851 |
| Citation | 420 F.Supp.3d 740 |
| Parties | Arnold DIXON, Petitioner, v. Randy PFISTER, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
Jennifer Lynne Blagg, Blagg Law, Chicago, IL, for Petitioner.
Eric Michael Levin, Garson Steven Fischer, Illinois Attorney General's Office, Chicago, IL, for Respondent.
On February 25, 2005, a Cook County jury convicted Petitioner Arnold Dixon (AKA "James Fletcher") of the first-degree murder of Willie Sorrell. Dixon has exhausted his state appeals and now seeks a writ of habeas corpus from this court pursuant to 28 U.S.C. § 2254. Dixon seeks relief on the grounds that (1) the introduction of testimonial hearsay at his trial violated the Sixth Amendment's Confrontation Clause; (2) unreliable inculpatory eyewitness identifications were admitted at trial in violation of his due process rights; (3) he was deprived of his right to counsel at a police line-up in violation of the Sixth and Fourteenth Amendments; (4) his trial counsel was constitutionally ineffective for failing to litigate a motion to suppress the eyewitness identifications; and (5) his appellate counsel was constitutionally ineffective for failing to raise issues (3) and (4) on direct appeal. For the following reasons, Dixon's petition is granted.
The case against Petitioner emerged from an incident that took place on December 21, 1990 in Chicago. On that afternoon, multiple armed men stole money from a delivery-truck driver who, in turn, retrieved his own gun and chased the robbers down the street. The robbers and the driver all exchanged gunfire, and a stray bullet struck and killed a bystander named Willie Sorrell. None of the robbers was apprehended at the scene, but police officers spoke to four eyewitnesses: (1) Edward Cooper, the driver; (2) Sheenee Friend, an eyewitness to the robbery; (3) Emmett Wade, an eyewitness to the chase; and (4) Terry Rogers, who had joined Cooper in chasing the robbers. Although none of the witnesses identified the robbers at the scene, Terry Rogers told a police officer that he heard one robber call the other "Fletcher."
Five years later, in 1995, Detectives Jerome Bogucki and Raymond Schalk began investigating the incident. The detectives did not speak to Rogers until 2002. In a 2002 interview, Rogers told Detectives Bogucki and Schalk that one of the robbers was named "Jimmie Fletcher." Petitioner's name is "James Fletcher."3 The detectives then, by their own account, showed Rogers a photo array from which Rogers identified a photo of Petitioner. The detectives showed this photo array to the three other eyewitnesses: Cooper, Friend, and Wade. Cooper and Friend identified Petitioner, but Wade did not. The detectives arrested Petitioner, assembled a police line-up, and presented it to Cooper and Friend, both of whom again identified Petitioner.
Petitioner was tried for first-degree murder in the Circuit Court of Cook County on February 22–25, 2005. The state called Cooper, Friend, Wade, and Detective Bogucki to testify. Although the accounts of Cooper and Friend conflicted in myriad ways, both witnesses affirmed that they recognized Petitioner to be one of the robbers. Rogers—the detectives' original lead to Petitioner based on Rogers' statement to police officers at the scene of the robbery—did not testify. Detective Bogucki, however, testified that a 1990 police report stated that an unspecified witness had "provided the name of Fletcher," and that only after speaking to Rogers in 2002 did the detectives "attempt[ ] to locate James Fletcher." Petitioner then called several witnesses who testified that his appearance in December 1990 did not match the testifying witnesses' descriptions of any of the robbers, and one witness who placed Petitioner outside Illinois in late December 1990. The jury found Petitioner guilty, and the court sentenced him to natural life in prison.
Two significant developments have occurred since Petitioner's conviction. First, Detective Bogucki was accused of using "coercive tactics" to procure false identifications in a murder investigation. In 2012, a federal jury found Detective Bogucki liable for that conduct and awarded damages in the amount of $25 million. See Jimenez v. City of Chicago (Jimenez III ), 732 F.3d 710, 712 (7th Cir. 2013). Additionally, Cooper, Friend, and Wade have prepared affidavits supplementing their testimony at trial. Cooper now avers that he told detectives that he "did not exactly recognize anyone in the [photo array]," and both Friend and Cooper recall Detectives Bogucki and Schalk guiding them to identify Petitioner's photo from the array.
The court attempts to incorporate all relevant facts and allegations here, giving appropriate deference to the state court's findings as mandated by 28 U.S.C. § 2254(e)(1).
On December 21, 1990, between 1:00 and 1:30 P.M., Edward Cooper drove a Holsum Bread truck to an Uncle Remus Restaurant located at 5615 West Madison Street in Chicago to make a delivery. (Trial Tr. Vol. III at 55–56, Ex. S to State Ct. R. [28].) Once parked, Cooper took loaves of bread into the restaurant and then returned to his truck with empty bread trays in hand. (Id. at 56.) Outside of the restaurant, Cooper encountered a woman named Sheenee Friend. (Id. ) Cooper testified that he was acquainted with Friend because he knew her parents. (Id. at 57.) Friend, similarly, testified at trial that she knew Cooper as a friend of her father. (Id. at 133.) In earlier testimony before a grand jury, however, Friend stated that she met Cooper in approximately 1989, when he made bread deliveries to a grocery store at which she was employed. And a police report prepared by Detective Raymond Schalk on March 8, 2002, which was not introduced at trial, reflects that Friend stated she had dated Cooper. (Id. at PageID #:1657.)
At trial, Friend and Cooper both described their December 21, 1990 encounter; their accounts differed on several details.4 Cooper recalled that as he was leaving the restaurant, Friend approached and asked him for change to use at a nearby laundromat and that, although Cooper had change in his pocket, but he asked Friend to wait while he put his bread trays away in his truck. (Trial Tr. Vol. III at 57.) Cooper then, according to his testimony, walked toward his truck and opened its side door, but was stopped by the robbers before he could enter or give Friend any money. (Id. ) Friend, in contrast, recalled that although she was coming from a laundromat, she asked Cooper for money to give to her daughter. (Id. at 134.) Friend did not specify where her daughter was, or why she needed money. (Id. ) According to Friend's testimony at trial, she then entered Cooper's truck with Cooper and, while the two were inside, received the money she had requested from Cooper. (Id. at 134–35.) In a signed statement prepared prior to trial (but not mentioned at trial), Friend averred that she actually encountered Cooper already in his truck, entered through its side door, and spoke with him for "about 20 minutes." And before a grand jury, Friend testified that she asked Cooper for money in order to buy shoes for her daughter. (Id. at PageID #:1646.)
Cooper and Friend both testified at trial that they were accosted by two men. Again, however, their accounts of the events differed. Cooper testified that just after he opened the side door of his truck, before he could enter, a man stuck an object into Cooper's back and asked, "You know what this is?" to which Cooper responded, "Yeah." (Trial Tr. Vol. III at 57–58.) According to Cooper, this man ordered Cooper to step into the truck, and Cooper complied, followed by that man and another one, both of whom were carrying revolvers. (Id. at 58–59.) Friend testified, in contrast, that when the two men approached, she and Cooper were already in the truck. (Id. at 135.) According to Friend, she was about to leave the truck when one of the men grabbed her arm and said, "What the fuck you think you're doing?" (Id. ) Friend said, "Let me go" and pulled her arm away, then exited the truck. (Id. at 135.) The two men then entered the truck and closed the door. (Id. at 138.) Friend said she did not see whether the men were armed when they entered the truck. (Id. at 136.)
Cooper testified that once inside the truck, one of the gunmen leaned on the dashboard while the other pointed a gun at Cooper's side. (Trial Tr. Vol. III at 59–60.) The first man then pointed his own gun at Cooper and demanded money. (Id. at 58.) Cooper removed cash from his left pocket and handed it over, while the other gunman reached into Cooper's right pocket and pulled out additional money. (Id. ) According to a private investigator who spoke to Cooper in 2004, however,5 Cooper recalled only one of the robbers carrying a gun.
In total, Cooper testified that about $334 was taken from him. (Trial Tr. Vol. III at 61.) Cooper told the armed men that the rest of the money was in a safe in the truck. (Id. at 61–62.) They asked Cooper to open it, but he told them that he was not able to do so because he did not have a key, and volunteered that the men could instead take the truck. (Id. ) Friend testified that she was able to see part of this interaction through the truck's windows. (Id. at 137.) Specifically, she saw the man who had earlier grabbed her putting his hands in Cooper's pockets while the other man pointed a gun at Cooper. (Id. at 137–38.) Cooper testified that after the gunmen took the money from his pocket, they spoke for "30 more seconds or so before leaving." (Id. at 62.) Friend testified that the men were in the truck for ten to fifteen minutes in total. (Id. at 138.)
Cooper testified that, as the two gunmen were...
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...the above narrative was to suggest another evidence source (the victim) inculpated Petitioner in the crime. See e.g., Dixon v. Pfister, 420 F.Supp.3d 740, 764 (N.D.Ill. 2019) (rejecting course-of-conduct theory where “[n]othing in the trial record suggested that [p]etitioner might challenge......