Lee v. Foster

• Citation: 750 F.3d 687
• Decision Date: 28 April 2014
• Docket Number: No. 13–1314.,13–1314.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Parties: Keith A. LEE, Petitioner–Appellant, v. Brian FOSTER, Respondent–Appellee.

750 F.3d 687

Keith A. LEE, Petitioner–Appellant,

v.Brian FOSTER, Respondent–Appellee.

No. 13–1314.

United States Court of Appeals,Seventh Circuit.

Argued Oct. 29, 2013.

Decided April 28, 2014.

Matthew M. Saxon, Attorney, Winston & Strawn LLP, Washington, DC, for Petitioner–Appellant.

Robert G. Probst, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent–Appellee.

Before WOOD, Chief Judge, and KANNE and HAMILTON, Circuit Judges.

KANNE, Circuit Judge.

Keith Lee filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. The district court denied the petition, but certified three issues for appeal: (1) whether an in-court identification of Lee violated his rights to due process; (2) whether an adequate and independent state ground precluded consideration of Lee's claim for ineffective assistance of counsel; and (3) whether admission of an out-of-court statement at trial violated his Sixth Amendment right to confront witnesses. We affirm.

I. Background

Lee was tried and convicted of the first-degree reckless homicide of Joshua Meyers along with two counts of armed robbery. The government presented evidence that he and Victor Thomas traveled to Meyers's residence in Oshkosh, Wisconsin to collect a drug debt. Four people were present when Thomas and Lee arrived: Meyers's half-brother Kristopher Johnston, Meyers's friend Ceilya Paez, Paez's two-year-old daughter, and Meyers. Soon after their arrival, a fight broke out, at which point Lee pulled a gun and shot Meyers in the abdomen. Meyers died shortly after being shot.

Lee and Thomas left the apartment and drove to Milwaukee where they met with Christopher Johnson. Johnson drove Lee and Thomas to a gas station and then dropped Lee off at a street corner in Milwaukee. Shortly thereafter, Johnson and Thomas were pulled over by Milwaukee police and arrested. Lee was apprehended in Chicago approximately one month later.

Lee was found guilty following a five-day jury trial. He appealed his conviction, which was affirmed by the Wisconsin Court of Appeals. Lee then filed a postconviction motion with the Wisconsin circuit court, which was denied. The Wisconsin Court of Appeals affirmed and the Wisconsin Supreme Court denied further review. He then filed a petition for a writ of habeas corpus with the district court, which denied the petition but certified three issues for appeal. We will address each in turn.

II. Discussion

The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254, permits habeas relief only if the state-court adjudication 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 “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.” 28 U.S.C. § 2254(d). When reviewing a petition for a writ of habeas corpus, “we review the district court's findings of fact for clear error and its rulings on issues of law de novo.” Bintz v. Bertrand, 403 F.3d 859, 865 (7th Cir.2005) (quoting Denny v. Gudmanson, 252 F.3d 896, 900 (7th Cir.2001)). As all three of Lee's claims involve issues of law, our review of the district court's ruling is de novo.

A. Identification Procedure

Lee first challenges the in-court identification by Christopher Johnson. Eleven days before Lee's trial, the police showed Johnson a photo array, which included pictures of both Victor Thomas and Lee. Johnson was not able to pick out Lee's photo from the lineup,—though he was able to identify Thomas—but told detectives that he could identify the man he gave a ride if he saw him in person. In return for his testimony against Lee, the detectives told Johnson that they would testify on his behalf in his unrelated trial.

At trial, Johnson testified to the extent that he knew Lee. He stated that though he had seen Lee “a couple of times ... I never shook hands or none of that like that” and that he would be able to recognize him if he “saw him today.” Thereafter, Johnson identified Lee as the man in the courtroom who, while riding with Thomas and himself, admitted “pop[ping]” a “guy” in Oshkosh on the night of January 10, 2006.

On cross-examination, Johnson stated:

Q. So you knew that you were going to be able to say I'm going to look at the defense table and I'm going to point to the African American and that's going to be the guy; isn't that correct?

A. Basically, yeah.

Lee argues that this statement proves that Johnson identified Lee solely on the basis of his race. He alleges that this fact, coupled with Johnson's inability to identify Lee in the photo array and the favorable testimony received from detectives at his own trial, constitutes an impermissible identification procedure.

We have held that a “witness's identification violates a defendant's right to due process when the identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” United States v. Recendiz, 557 F.3d 511, 524 (7th Cir.2009) (internal quotation marks omitted). Yet “the admission of evidence rarely implicates due process,” as courts typically rely on other means—such as the Sixth Amendment rights to counsel and confrontation—to safeguard the reliability of evidence. United States v. Sanders, 708 F.3d 976, 983 (7th Cir.2013). Due process will only prohibit evidence when it “is so extremely unfair that its admission violates fundamental conceptions of justice.” Perry v. New Hampshire, ––– U.S. ––––, 132 S.Ct. 716, 723, 181 L.Ed.2d 694 (2012) (quoting Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)). In determining whether an identification procedure reaches this substantial threshold, we engage in a two-pronged analysis. First, we determine whether the identification procedure was suggestive and unnecessary. Sanders, 708 F.3d at 984–85. Second, we determine under the totality of the circumstances whether the procedure was nonetheless reliable. Id.

Lee's assertion that Johnson was aware that Lee would be the African–American at the defense table is neither suggestive nor unnecessary. We have noted that “a defendant's mere presence at the defense table is not enough to establish a violation of due process.” Recendiz, 557 F.3d at 525;see also United States v. Bush, 749 F.2d 1227, 1232 (7th Cir.1984). There is nothing in the record to establish that Johnson's identification was made solely on the basis of Lee's race or that Johnson was instructed to point to the African–American man at the defense table. Rather, Johnson was simply testifying to his knowledge of the situation at hand: he had seen Lee, an African–American, on several occasions and was aware that he was testifying at Lee's trial. While the question itself may seem fairly suspect, it does not itself establish any wrongdoing that might implicate due process. Similarly, Johnson repeatedly admitted that he was unable to pick out Lee's picture in the photo array, but could identify Lee if he saw him in person. The fact that Johnson was not able to select Lee's photo may tend to discredit Johnson's testimony, but this is not our concern, for examining the accuracy of the identification falls within “the exclusive province of the jury.” Recendiz, 557 F.3d at 524. Johnson's testimony took place in front of the jury, “which observed and presumably weighed any arguably suggestive circumstances.” Id. at 526;see also Johnson v. McCaughtry, 92 F.3d 585, 597 (7th Cir.1996) (though an in-court identification may not be “especially convincing,” that does not render it inadmissible; the ultimate accuracy of the identification is to be determined by the jury as the trier of fact). Our role is only to determine whether an identification is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Neither the in-court identification nor the photo array meet this threshold.

Even if we found Johnson's identification procedure to be unnecessarily suggestive, however, it was nonetheless reliable under the circumstances. The Supreme Court set forth several factors for courts to use to determine whether an unduly suggestive identification procedure was still to be considered reliable under the circumstances: (1) the opportunity of the witness to observe the criminal at the time of the crime (or prior to the identification); (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the time of the identification; and (5) the length of time between the crime and the identification. Neil v. Biggers, 409 U.S. 188, 199–200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

Applying the factors to Johnson's testimony, we find it was sufficiently reliable to be admitted at trial. First, Johnson testified that he was in the car with Victor Thomas and Lee after the shooting and drove the two men around before dropping Lee off on a Milwaukee street corner. He also stated that at one point, he and Lee were alone in the vehicle and had a brief discussion. Second, Johnson did admit that he was not paying particular attention to Lee or the backseat where Lee was located. As to the third factor, Johnson did not provide a prior description of Lee, but did testify that he had seen Lee driving around on several occasions. And while he could not pick him out in the photo lineup, he repeatedly stated that he would be able to identify Lee if he saw him in person. Fourth, Johnson confirmed that he was “sure” that the man who was in the car with him and Victor Thomas the night of the shooting was in fact Keith Lee. Finally, over...