McNary v. Lemke

• Decision Date: 26 February 2013
• Docket Number: No. 11–2759.,11–2759.
• Citation: 708 F.3d 905
• Parties: Dishon McNARY, Petitioner–Appellant, v. Michael LEMKE, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

708 F.3d 905

Dishon McNARY, Petitioner–Appellant,

v.Michael LEMKE, Warden,¹ Respondent–Appellee.

No. 11–2759.

United States Court of Appeals,Seventh Circuit.

Argued Sept. 10, 2012.

Decided Feb. 26, 2013.

Shannon Young Shin (argued), Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner–Appellant.

Eric M. Levin (argued), Attorney, Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent–Appellee.

Before EASTERBROOK, Chief Judge, and CUDAHY and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Dishon McNary is currently serving two life sentences, without the possibility of parole, in an Illinois state prison. After failing in state court on both direct appeal and post-conviction review, McNary petitioned the district court for a writ of habeas corpus. McNary sought relief on the grounds that he received ineffective assistance of trial and appellate counsels in his state court proceedings. The district court denied the writ, and we now affirm.

I. Background

The facts presented here come from the witnesses' testimony at trial and the Illinois Appellate Court's summation of that testimony in its three opinions on this case.

At approximately 8:00 a.m. on March 20, 1998, 25–year–old Dishon McNary departed from his mother's house for his carpentry job. A few hours later, at 1:00 p.m., he left work for the day and proceeded straight to the liquor store. There, he bought a half-pint of Hennessy cognac and a six-pack of beer. McNary returned to his mother's house, where he drank most of the cognac and one beer. He then decided to take his 1986 Chevy Caprice to a car wash, where he sat for about an hour and finished the rest of the cognac. From that point, the timing of events is fuzzy. McNary drove to a lounge. He had a few drinks before returning to the liquor store and purchasing a full pint of cognac. McNary then headed to a friend's house, where he and three others played cards for a few hours. In that time, the four consumed most of the pint of cognac, along with a twelve-pack of beer. When the games ended, McNary drove to his sister's house. Finally, at well past 1:00 a.m., McNary decided it was time to head home. He was “feeling high” but thought he could drive. (R. 16–2 at 471.)

When McNary pulled away from his sister's home, he noticed a car that appeared to be following him. As he continued on his way, the car pulled alongside his own vehicle. When he saw one of the car's occupants bend down, McNary feared he would be carjacked and stepped on the gas. He accelerated to between fifty and sixty miles per hour on a road with a posted limit of thirty-five. Speeding down the road, McNary hit something. But he kept going. As he glanced back, the menacing car still pursued. So, when McNary came to a red light, he ran it. The car behind him did the same. McNary accelerated to an estimated eighty or ninety miles per hour. He ran another red light and deliberately bypassed his home. He did not want to lead his pursuers there. McNary ran one more red light and remembered nothing further until waking up in the hospital the next morning, sometime after 10:00 a.m.

* * *

Sadly, McNary claimed the lives of three individuals that evening. When he first hit “something” on his way home, he collided with Eric Marshall, a pedestrian attempting to cross the street. The impact sent Marshall flying into the air, and McNary's car struck him a second time as he descended to the ground. Marshall later died of injuries sustained in the collision. He was the father of two children, who, at the time, were ages seven and one.

Police officers observed the hit-and-run and began pursuing McNary, who continued to drive. After running his third red light, McNary remembered nothing further. In that time, he ran through a fourth red light and struck a Dodge Neon. Both occupants of that vehicle, Benjamin Burrage and Shauntel Moffett, died. Several police officers, including José Martinez and Richard Hardesty, caught up to McNary at the accident scene. The officerspulled McNary from the burning wreckage of his vehicle. He was unconscious but smelled strongly of alcohol. Martinez would later testify that he “placed [McNary] in custody” at that time. (R. 16–2 at 350.) Within a few minutes, an ambulance came and transported McNary to Cook County Hospital. Officer Martinez was ordered to the site of the hit-and-run with Marshall, while Officer Hardesty stayed at the scene of the auto accident to investigate.

At approximately 3:50 a.m., Officer Hardesty went to Cook County Hospital to interview McNary. McNary claims not to remember this conversation, ( id. at 478), but Hardesty described him as “[l]ucid,” ( id. at 410). Hardesty introduced himself as an officer investigating the crash and asked McNary if he had been drinking. McNary responded that he had had two beers and two shots. Hardesty then asked how the accident happened. McNary said, “I seen the man standing in the middle of the street[;] I beeped my horn[;] he did not move [;] I kept on going.” ( Id. at 411.) At that point, Hardesty informed McNary that he was being placed under arrest. Hardesty read McNary the “Warnings to Motorist,” which Illinois police officers read to individuals arrested for driving under the influence. The warnings discuss the penalties associated with refusing to have blood alcohol content (BAC) tested and with registering a result above the legal limit. Upon hearing the warnings, McNary agreed to have his BAC tested. Blood samples collected between 4:30 and 4:45 a.m.—almost three hours after the accident—came back with a BAC of .22, nearly three times the legal limit in Illinois. See625 ILCS 5/11–501.

At approximately 8:00 a.m. the same morning, Investigator Theodore Ptak also interviewed McNary in the hospital. Again, McNary does not remember this conversation. Prior to speaking, Investigator Ptak advised McNary of his Miranda rights, which McNary indicated he understood. McNary subsequently told Ptak that he had consumed two shots of cognac, three beers, another half-pint of cognac, and several more beers over the course of the evening. McNary also told Investigator Ptak about the car that had caused him to flee. McNary admitted that while trying to outrun the pursuing vehicle, he had hit a pedestrian, but “he did not stop because he knew that he was drunk and that there were squad cars behind him, chasing after him for striking the pedestrians [sic].” (R. 16–2 at 523.)

After further investigation, the State of Illinois charged McNary with three counts of reckless homicide and three counts of murder. As the case proceeded to trial, McNary claimed that his statements to Hardesty and Ptak were not knowingly or voluntarily made and thus moved to suppress them. Notably, defense counsel conceded that McNary was not in custody until sometime after talking with Officer Hardesty. ( Id. at 85.) After holding a suppression hearing, the state trial court found McNary's arguments unpersuasive and denied the motion.

Two months later, on the morning jury selection was scheduled to start, defense counsel informed the court that McNary's sister, Carla, had important additional information. Counsel did not renew the motion to suppress but merely wanted to get Carla's testimony on the record to preserve the matter for appeal. ( Id. at 147–48.) Counsel explained that he had “interviewed the members of the family” but “did not find ... out [about Carla's information until] after the motion [to suppress] had been ruled upon.” ( Id. at 148.) During a break in trial, and outside the presence of the jury, the trial court allowed Carla to testify on the record. She said that at “1:00 something” a.m., a friend came to her house and let her know about McNary's car accident. ( Id. at 600.) Carla then said that she went immediately to Cook County Hospital. The trip took her between fifteen and twenty minutes, so she arrived at “almost 2:00” a.m. ( Id. at 599.) When Carla entered the trauma center, she saw McNary handcuffed to his hospital bed with a police officer sitting in a chair next to him. ( Id. at 598–99.) She also claimed that a nurse told her McNary was under arrest. ( Id. at 598.) Carla stayed until McNary was wheeled out of the room at “2:00 something.” ( Id. at 602–03.)

At trial, Officers Martinez and Hardesty, as well as Investigator Ptak, testified to the facts described earlier. McNary also testified to what he remembered. At the close of evidence, the defense requested a jury instruction on voluntary intoxication. The trial court heard arguments on both sides but ultimately rejected the instruction. The court reasoned that voluntary intoxication, under Illinois law, could only be a defense to a crime if the “condition existed to such a degree as to render [the] defendant wholly incapable of forming the requisite intent.” ( Id. at 556–57.) The court decided that “[t]here [was] evidence ... which clearly establishe[d] that the defendant was not intoxicated to such an extent”; thus, the instruction was not warranted. ( Id. at 558.)

On May 27, 1999, the jury found McNary guilty of two counts of first-degree murder for the deaths of Benjamin Burrage and Shauntel Moffett, the occupants of the Dodge Neon. The jury also found McNary guilty of one count of aggravated reckless homicide for the death of Eric Marshall, the pedestrian. At his sentencing on June 29, McNary received two life sentences in prison, without the possibility of parole, for the first-degree murder convictions, and a ten-year sentence for the aggravated reckless homicide conviction. He would serve all sentences concurrently.

McNary timely appealed his convictions to the Illinois Appellate Court. People v. McNary, No. 1–99–2370 (Ill.App.Ct.2001) (unpublished order). There, McNary made several arguments, including ineffective assistance of trial counsel. Two of counsel's alleged failures are relevant here: not proving that McNary was in custody while speaking to Officer...