Lieberman v. Washington

• Decision Date: 27 October 1997
• Docket Number: 95-3194,Nos. 95-3179,s. 95-3179
• Citation: 128 F.3d 1085
• Parties: Brad J. LIEBERMAN, Petitioner-Appellant, v. Odie WASHINGTON, Warden of Dixon Correctional Center and Howard A. Peters, III, Director of Illinois Department of Corrections, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1085

128 F.3d 1085

Brad J. LIEBERMAN, Petitioner-Appellant, v. Odie WASHINGTON, Warden of Dixon Correctional Center and Howard A. Peters, III, Director of Illinois

Department of Corrections, Respondents-Appellees.

Nos. 95-3179, 95-3194.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 8, 1997.

Decided Oct. 27, 1997.

Joshua Sachs (argued), Chicago, IL, for Petitioner-Appellant.

Arleen C. Anderson, Terence Madsen, Robert K. Villa (argued), Office of the Attorney General, Chicago, IL, for Respondents-Appellees in No. 95-3179.

Rita M. Novak, Robert K. Villa (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee in No. 95-3194.

Before POSNER, Chief Judge, COFFEY and DIANE P. WOOD, Circuit Judges.

COFFEY, Circuit Judge.

Petitioner-appellant Brad Lieberman ("Lieberman") was charged with rape and convicted on September 22, 1980, following a jury trial in Cook County, Illinois. In a separate case arising in Lake County, Illinois, he was charged with the offenses of robbery, intimidation, and rape, and convicted by a Lake County jury on November 14, 1980. ¹ The Illinois Court of Appeals affirmed Lieberman's Lake County convictions in an unpublished order, and his Cook County conviction was affirmed by the Illinois Court of Appeals in People v. Lieberman, 107 Ill.App.3d 949, 63 Ill.Dec. 585, 438 N.E.2d 516 (1982). Lieberman filed petitions to appeal each of the Lake County convictions, as well as his Cook County conviction, to the Illinois Supreme Court, but it declined to review either case.

After exhausting his state law post-conviction remedies in each case, Lieberman filed separate pro se habeas corpus petitions with the district court in 1993, pursuant to 28 U.S.C. § 2254. The judge appointed separate counsel to represent Lieberman in the presentation of each of his two petitions, and thereafter both of the appointed attorneys filed separate amended petitions individually challenging Lieberman's Lake County and Cook County convictions. These petitions were consolidated on motion of the respondents. After briefing and oral argument, the court dismissed both petitions on August 24, 1995, without holding an evidentiary hearing. The trial judge concluded that, in light of the overwhelming evidence supporting both the Cook County conviction and the Lake County convictions, Lieberman was not entitled to a writ of habeas corpus in either case. Lieberman appeals. We affirm.

I. BACKGROUND

A. The Lake County Convictions

The victim, a female exchange student, testified that on May 5, 1980, at approximately 3:15 p.m., a white male came to the door of the Highland Park (Lake County), Illinois home at which she resided with her host family. That man, whom the victim later identified as Lieberman, asked her if she was home alone and if anyone else who lived in the house might know what had happened to his automobile, claiming that it had been damaged while parked on the street. When the victim replied that no one else was present and that she knew nothing about his car, Lieberman requested and received permission to enter the house, and also asked if he could leave his phone number in case someone later provided information regarding the alleged damage to his vehicle. After entering the home and engaging in a brief conversation, Lieberman grabbed the victim by the neck, hit her, forcibly pushed her up the stairs and into a bedroom, and sexually assaulted her, thereafter binding her hands with a cord. At trial, the victim testified that she heard him rummaging through her dresser drawers and that, subsequent to his departure, she noticed approximately $180-200 in cash was missing from a dresser drawer. The victim further stated that she was able to see her assailant clearly during the encounter, ² describing him as a white male approximately twenty-five years old, over six feet tall with a slight mustache and a muscular build, and wearing light sunglasses. On the evening of the incident, she identified Lieberman from a photographic lineup of six men, and later made an in-court identification of him as the man who had sexually assaulted her.

Matthew Adler, the son of the family who owned the home where the victim was staying, testified that as he was returning from school around 3:15 p.m. on the day of the assault he observed a man (whom he later identified as Lieberman) leaving his house. Matthew watched the man pass within three or four feet of him, enter a brown Camaro parked about ten feet away, and drive off. He described this man as a white male with broad shoulders in his late twenties. Immediately thereafter, Matthew entered the Adler home, whereupon he heard the victim crying and found her in an upstairs hallway attempting to untie her hands, and promptly called the police.

Adler's friend, David Schaefer, who was with Adler at 3:15 p.m. on the date of the assault, testified at trial that he saw a man leave Adler's home and run from the family's driveway. He described the individual as a white male, approximately six feet tall, in his mid-twenties, with a heavy build. Schaefer explained that he observed the man get into a car, and at that time recited the license plate number aloud. Shortly after entering the house, he wrote down the license number of the vehicle that he and Michael Adler had seen. This information--the license plate number and automobile description--was later relayed to the police. David eventually identified Lieberman at trial as the man he saw enter the car and drive away.

The defendant Lieberman, matching the description provided by Matthew and David, was "picked up" later that day driving a brown Camaro which carried the same license plate number as that one the two boys had reported earlier. The petitioner was subsequently arrested and the Camaro owned by his girlfriend, was impounded. During an ensuing search of the car, $135 in cash was found underneath a rear floor mat. Upon being questioned, Lieberman had no explanation for the presence of the money. A pair of light sunglasses were also found in the Camaro, which the victim later identified as those worn by her assailant.

At trial, Lieberman offered an alibi in the Lake County assault incident, testifying that he was not present at the crime scene at the time of the alleged sexual assault, but rather was having his girlfriend's Camaro repaired at Golf Road Firestone, a service station in DesPlaines, Illinois. Petitioner testified that the station provided a work receipt with the time 3:30 p.m. inscribed thereon. He stated that he later gave this receipt to his girlfriend who, in turn, delivered it to his mother, Harriette Lieberman ("Harriette"). Petitioner further testified that, while being detained at the Highland Park Police Station on the evening of May 5, he contacted his mother to "[m]ake sure those people [at the service station] kn[e]w [he] was at the service station at 3:30." ³ Harriette also appeared as a witness at trial to corroborate her son's alibi. She was prepared to explain that Petitioner had telephoned her from the DesPlaines gas station at 3:35 p.m. on May 5, asking whether she had some cash with which to pay for the repairs to his girlfriend's vehicle. ⁴

Lieberman's alibi conflicted with the timing and substance of those events which took place at the Golf Road Firestone on May 5, as recounted by station employee, Victor Breckler ("Breckler, Jr."). Breckler, Jr. testified that, as he was departing from work at 4:00 p.m. on May 5, he noticed Lieberman pull up to the bay doors of the service station. He went on to explain that "there was never a time put on [Petitioner's work ticket] when the job was done," and that, on the morning of May 6, 1980, Harriette Lieberman visited the Golf Road Firestone, requesting that "a paper [be] filled out stating that he [Lieberman] had the car there for service at 3:30 [the previous day]...." Breckler, Jr. refused to make such a statement because he "knew that the car was not there at 3:30," and suggested that Harriette speak with his father, Victor Breckler ("Breckler, Sr."), who owned the Golf Road Firestone at the time. Harriette approached Breckler, Sr. and urged him to make a written statement that her son, Brad, was at the service station as early as 3:00 p.m. on May 5, but he at first refused to do so. Because Harriette continued to "giv[e][him] a bit of a difficult time" and he "tr[ies] to be kind to people if [he] can," Breckler, Sr. eventually gave in to her demand and wrote on Petitioner's ticket from the previous day, "Mr Lieberman was at station and went to Wag's Deli for coffee while car was being taken care of between 3:30 and 4:45." Breckler, Sr. had previously testified, however, that he in fact "[did]n't know exactly what time [the Camaro] got there [the Golf Road Firestone]" on May 5, and that he first "saw it [at] approximately 4:00 o'clock."

B. Cook County Conviction

The facts relevant to Lieberman's Cook County conviction were recited in detail in the state appellate court's opinion in Lieberman, 63 Ill.Dec. 585, 438 N.E.2d 516, and are not disputed by the petitioner. ⁵ The victim testified that on December 17, 1979, at about 11:30 a.m., she was checking her mailbox in the lobby of her apartment building on the City of Chicago's north side. She was approached by a white male (Lieberman), standing over six feet tall and weighing more than 200 pounds. He flashed some sort of a badge inside a black wallet-type case and claimed to be an off-duty police officer who was also employed as a plumber for the building. When the petitioner told her that there was "a leak" in her apartment that needed repair, the victim acquiesced and allowed Lieberman to enter her apartment. Once inside the apartment, Lieberman walked through a number of rooms, and while he was on his tour of the apartment, the victim got a good look at his face. After peering into her closet, Lieberman told the victim that it would have to be...