Mason v. Godinez, 93-1213

• Decision Date: 03 March 1995
• Docket Number: No. 93-1213,93-1213
• Citation: 47 F.3d 852
• Parties: Lester B. MASON, Petitioner-Appellant, v. Salvador GODINEZ, Warden, Stateville Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 852

47 F.3d 852

Lester B. MASON, Petitioner-Appellant, v. Salvador GODINEZ, Warden, Stateville Correctional Center Respondent-Appellee.

No. 93-1213.

United States Court of Appeals Seventh Circuit.

Argued Dec. 14, 1994.

Decided Feb. 7, 1995.

Rehearing Denied March 3, 1995.

John D. Long (argued), Patrick M. Long, Chicago, IL, for petitioner-appellant.

Penelope Moutoussamy George (argued), Office of the Atty. Gen., Criminal Appeals Div., Chicago, IL, for respondent-appellee.

Before COFFEY, RIPPLE and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Lester Mason, convicted of armed robbery by the State of Illinois and sentenced as a habitual criminal to life imprisonment, ¹ appeals the district court's denial of his petition for a writ of habeas corpus. 28 U.S.C. Sec. 2254. He argues that he received ineffective assistance of counsel in violation of the Sixth Amendment when his trial counsel failed to file a motion to suppress evidence obtained from a warrantless entry and search of his home. Also, he contends that the evidence presented at trial was insufficient to convict him of armed robbery beyond a reasonable doubt. We affirm.

BACKGROUND

On April 22, 1982, Elmer Schoch, the owner of Schoch's Market, and his sister, a clerk, were robbed at knife-point by a black male wearing a beige coat and a nylon stocking over his face. As the robber left the store still in disguise, he ran in front of a van occupied by Jose and Anita Huerta. The Huertas pursued him. They followed the suspect until he ran down an alley and into a fenced backyard. After driving to the corner of Warren Street, the Huertas waited several minutes before proceeding down the street. As they approached the house with the fenced backyard at 924 South Warren Street, they witnessed a black male coming out the front door. He was of the same height, weight and build as the robbery suspect but was dressed differently. The man entered a car and drove away. The Huertas testified at trial that they did not see any other black male in the vicinity during this entire episode. They then returned to the store and spoke with police officers who immediately went to the house on Warren Street.

Officer Ricky Donald secured the rear of the residence while Officers Hoskins, Cannon and Fisher went to the front and knocked on the outer screen door. Receiving no answer, they opened the screen door and knocked again. They then opened the front door which was unlocked and identified themselves as police officers. When no one responded, the officers entered the house and again identified themselves. They then proceeded to search the entire house for occupants. Although no one was found, the officers confiscated a green pair of pants sitting on a chair, a knife lying on top of the pants, and a $1 bill protruding from the pocket of the pants. The beige coat was discovered on the floor of a closet and the stocking was found in a hole in the closet's rear wall. Later that day, the police arrested Mason, who resided at 924 South Warren. The physical evidence was used against him at trial. In addition, the following testimony was presented:

Elmer Schoch testified that the robber, a black man, was slightly shorter than his sister, who is 5' 5 1/2"' tall. He noticed a three to four inch hole on the left side of the robber's mask through which the robber's high cheekbone protruded. Schoch believed he recognized this facial feature as belonging to an individual that frequented his store. Although he selected a photograph of the robbery suspect at the police station, at the time Schoch was not certain if his identification was accurate. Schoch's sister testified only that the robber was a black male, and she remembered that there was a hole on the left side of the mask.

Mrs. Huerta testified that the robber was a black male, about 5' 7"' tall, weighing 180 pounds. Although she never saw the robber without a mask, she identified Mason as the same person who fled from the store after the robbery, who ran into the backyard, and who walked out of the house on Warren Street. She also identified him after looking at a group of photographs. Although Mr. Huerta identified Mason as the man who left the house, unlike his wife he could not declare unequivocally that Mason was also the same man he and his wife chased into the backyard. He stated only that Mason was of the same height, weight, build, and color as the robbery suspect and that they were probably the same person. He told the police that the suspect was 5' 10"' or 5' 11"' tall, weighed 175 pounds, and wore sunglasses over his stocking mask. Mr. Huerta was unable to identify the suspect from police photographs.

Mason's neighbor testified that he had been in his backyard for a couple of hours the morning of the robbery and did not see anyone run down the alley. However, he did see a black man walk out of Mason's house and drive away; he identified Mason from a group of photographs. He did not see any other black male enter or leave the house.

Charles Cannon, the arresting officer, testified that Mason was taken into custody with $54 in bills on his person. According to Cannon, Mason said that he had been visiting some friends that morning. Shortly after his arrest, Mason asked to speak with Officer Cannon. He stated that he was facing a prison term and that he would confess to the robbery if he was permitted to first speak with his girlfriend. Cannon allowed the meeting after which Mason refused to speak.

Mason's claims are properly before this court, having unsuccessfully raised the ineffective assistance of trial counsel claim on direct appeal and the insufficiency of the evidence claim in a petition for post-conviction relief.

ANALYSIS

A. Ineffective Assistance of Counsel

A defendant wishing to vacate his conviction on the basis of ineffective assistance of counsel must establish that his attorney's performance fell below an objective level of reasonableness and that he was prejudiced by his attorney's error such that the result of the proceeding was rendered fundamentally unfair or unreliable. Lockhart v. Fretwell, --- U.S. ----, ----, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993); Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). Where the principal allegation of ineffectiveness is the attorney's failure to file a motion to suppress evidence from an illegal search pursuant to the Fourth Amendment, the petitioner must also prove that his Fourth Amendment claim has merit, and that there is a reasonable probability that the verdict would have been different without the excludable evidence. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986). Mason's claim fails because he does not overcome the strong presumption that his counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

In evaluating whether counsel's performance was ineffective for failing to file a motion to suppress the physical evidence in this case, we must first consider the relative merit of that motion. Mason argues that the physical evidence was obtained illegally as the result of a warrantless entry into his home. Warrantless searches and entries absent exigent circumstances and probable cause are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). On direct appeal, the state appellate court held that the search of Mason's house was conducted under exigent circumstances because the police officers could have reasonably concluded from the Huertas' statements that the robber "may have still been in the house." In denying Mason's petition for a writ of habeas corpus, the federal district court concluded that exigent circumstances existed for the following reasons:

[F]irst, police arrived at the scene shortly after the robbery and thus were in "hot pursuit" of a fleeing felon; second, the felon was armed with a knife and dangerous; third, if the police were uncertain as to whether the robber had left the house because the man who drove away wore different clothes, then this doubt would warrant an entry to prevent escape in case the person who left was not the suspect.

On appeal, Mason contests the existence of both probable cause and exigent circumstances to enter and search the house at 924 South Warren.

Probable cause means more than bare suspicion but less than absolute certainty that a search will be fruitful. Llaguno v. Mingey, 763 F.2d 1560, 1565 (7th Cir.1985) (en banc). The amount of information the police are required to gather before establishing probable cause for a warrantless entry is a function of the gravity of the crime and the threat of its imminent repetition. Id. at 1566; Reardon v. Wroan, 811 F.2d 1025, 1029 (7th Cir.1987). It is undisputed that a fleeing armed robbery suspect poses a serious threat to the community. Yet, the commission of a serious felony alone does not justify a warrantless entry into a person's home without probable cause that the occupant is the suspect. See Llaguno, 763 F.2d at 1565.

The Llaguno case involved a warrantless entry into a home after two Hispanic men killed four people and wounded three others in two robberies. Following a car chase, one suspect was killed and the other man fled on foot. The getaway car was registered to Vilma Llaguno, a person of possible Hispanic origin....