Harding v. Sternes
| Decision Date | 23 August 2004 |
| Docket Number | No. 03-2672.,03-2672. |
| Citation | 380 F.3d 1034 |
| Parties | Linnell HARDING, Petitioner-Appellant, v. Jerry L. STERNES, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Northern District of Illinois, Mathew F. Kennelly, J.
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John M. Beal (argued), Chicago, IL, for Petitioner-Appellant.
David H. Iskowich (argued), Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appellee.
Before RIPPLE, KANNE and ROVNER, Circuit Judges.
Linnell Harding was convicted by a jury of armed robbery and possession of a stolen motor vehicle in relation to an armed carjacking. The Illinois Appellate Court rejected his appeal, and the Supreme Court of Illinois summarily denied his petition for leave to appeal. Mr. Harding then filed a petition for post-conviction relief in the state court that was unsuccessful. Mr. Harding then petitioned for federal habeas corpus relief. See 28 U.S.C. § 2254. The district court appointed counsel and granted leave to file an amended petition. In this amended petition, Mr. Harding focused on two claims — ineffective assistance of counsel and the exclusion of evidence. The district court denied the petition. For the reasons set forth in this opinion, we affirm the judgment of the district court.
On August 10, 1991, Rafael Colon had his car stolen at gunpoint. While Colon was stopped at an intersection, a man placed a gun to his head and ordered him out of his car. A second man lunged through the passenger-side window, shifted the transmission into park, turned off the ignition and took the keys. The gunman then took the victim's necklace from his neck. During this time, Colon was face-to-face with the gunman for approximately thirty seconds, and the scene was illuminated by streetlights. The gunman then told Colon to leave, and Colon complied.
After the incident, Colon contacted the police. Police reports described the gunman as a 5'9", 185-pound, thirty-year-old African-American male with black hair and brown eyes. The reports did not include any indication of visible scars and did not contain a description of the second assailant.
One week later, while responding to a disturbance call, the police officers found Colon's car at a house where Mr. Harding was present. Mr. Harding was arrested originally for disorderly conduct as a result of the disturbance. He gave the officers permission to "search my car." R.28, Ex.A at 2. The police found documents bearing Colon's name still in the vehicle. Mr. Harding was charged with armed robbery and possession of a stolen motor vehicle. Police placed Mr. Harding, 5'7", 145 pounds and another suspect, Carl Page, 5'5", 140 pounds, in a lineup with four other men, who were 5'11" to 6'4" in height and weighed from 155 to 200 pounds. Colon identified both Mr. Harding and Page as the perpetrators, but the lineup identification was later suppressed as impermissibly suggestive.
At trial, Colon identified Mr. Harding as the perpetrator. According to Colon's testimony, he had seen Mr. Harding on five occasions prior to his in-court identification. These sightings occurred in the context of court proceedings in which Mr. Harding was clearly the subject of the prosecution. The state trial court found that Colon's face-to-face encounter with the gunman while his necklace was being removed provided a sufficient independent basis for identification and allowed the in-court identification.
Mr. Harding presented a defense of alibi and mistaken identity. He testified that he was recovering from unrelated injuries at his mother's home when Colon's car was stolen. On the date the crime allegedly occurred, part of his head was shaved revealing two partially healed, red scars containing nine and twelve stitches respectively. Mr. Harding's mother, brother and two of his cousins all testified that he was at his mother's house at the time of the carjacking.
Mr. Harding also testified that Artric Jordan had loaned him the car and had given him the keys. Mr. Harding asserted that he did not know that the car was stolen. To establish that Jordan had stolen Colon's car, Mr. Harding sought to introduce evidence that Jordan lived within a block of the scene of the carjacking and had been arrested for armed carjacking less than a month after Colon's car was stolen. The trial court precluded him from introducing this evidence; however, the court did permit Mr. Harding to show a mugshot of Jordan to Colon in court. Colon testified that he had never seen Jordan before and did not see him the night of the carjacking. Mr. Harding nevertheless was allowed to, and did, argue that Jordan had stolen Colon's car.
Mr. Harding had several prior convictions, including one for armed robbery. Prior to trial, the defense submitted a motion in limine to exclude certain information regarding these convictions. In response, the trial court ruled that, if Mr. Harding testified, the prosecution could elicit that he had been convicted of previous felonies and the dates of these felonies; however, the sentences Mr. Harding received and the nature of his offenses were inadmissible because the jury "would tend to convict him just because he's an armed robber." R.28, App. 2 at Z-9.
The prosecution did not elicit Mr. Harding's prior convictions on cross-examination, but Mr. Harding's attorney did raise the issue on re-examination over the prosecution's objections. During cross-examination the prosecution had questioned Mr. Harding about giving the police a false name and address when he was arrested. On re-examination, Mr. Harding's counsel followed up on this questioning by asking Mr. Harding why he had done this. Mr. Harding replied, "You know, it puzzle me right now today, that is one of the fear that you have of polices really, its one of the fears, you know." R.28, App. 3 at AA-235 to AA-236. Then, the following examination took place:
Q Have you ever been arrested before?
A Yes, I have. Yes, I have.
Q And you've been convicted, is that correct?
A Yes, I have.
MR. CALLAHAN [prosecutor]: Objection, this is beyond the scope at this point, Judge.
....
THE COURT: All right. Well, I'm going to leave it. So I'll overrule the State's objection.
MR. STANTON [defense counsel]: Q On October the 7th of 1982 before his Honor Judge McNulty were you convicted of a crime?
A Yes, I was.
A Yes, I was. Yes, I was.
Q On May the 1st of 1989 were you also convicted of the charge of unlawful use of a weapon by a felon?
A Yes, I was.
Q And were you given a sentence of two years in the Illinois Department of Corrections?
A Yes, I was.
Q And on April 25th of 1984 were you convicted of the crime of armed robbery and unlawful restraint, were you convicted?
A I was convicted, I don't know what you mean though, I was convicted.
Q And pursuant to that conviction you received a sentence of ten years Illinois Department of Corrections concurrent with a three year sentence, is that correct?
A Yes; yes.
Q On all of those convictions that you were sentenced to the Illinois State pen did you do your time?
A Yes, I did. Yes, I did.
Id. at AA-236 to AA-238.
A jury convicted Mr. Harding on both the armed robbery charge and the possession of a stolen motor vehicle charge. The trial judge sentenced him to concurrent prison terms of thirty-two years on the armed-robbery charge and fourteen years on the possession charge.
Mr. Harding appealed his conviction on three grounds. The two issues relevant to his current habeas petition are: (1) that the trial court erred by excluding evidence that Jordan had committed another carjacking shortly after Colon's car was stolen, and (2) that his trial attorney was ineffective for eliciting testimony about the details of his prior convictions. The Illinois Appellate Court affirmed the trial court's decision.
The state appellate court addressed whether it was error to refuse to admit evidence of a subsequent carjacking committed by Jordan. The court treated this claim as an evidentiary challenge and held that evidentiary decisions were committed to the sound discretion of the trial court. The appellate court explained that, at trial, Harding attempted to introduce evidence Jordan committed a car theft. He intended to use this evidence to show that subsequent theft revealed a common scheme and similar modus operandi. The appellate court, however, found no meaningful link between the two car thefts; it noted the different times of the thefts, types of location, number of occupants in the vehicle and the use of a real gun during the armed robbery of Colon rather than the use of a toy gun in the subsequent robbery Jordan was alleged to have committed. In light of the differences between the crimes, the appellate court held the state trial court did not abuse its discretion in refusing to admit this evidence.
The state...
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