Shepard v. Lane, No. 85-2885

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUDAHY, EASTERBROOK, and RIPPLE; RIPPLE
PartiesRoland SHEPARD, Petitioner-Appellant, v. Michael LANE, Director, Illinois Department of Corrections, and Neil Hartigan, Illinois Attorney General, Respondents-Appellees.
Docket NumberNo. 85-2885
Decision Date06 May 1987

Page 615

818 F.2d 615
Roland SHEPARD, Petitioner-Appellant,
v.
Michael LANE, Director, Illinois Department of Corrections,
and Neil Hartigan, Illinois Attorney General,
Respondents-Appellees.
No. 85-2885.
United States Court of Appeals,
Seventh Circuit.
Argued Oct. 30, 1986.
Decided May 6, 1987.

Page 616

Gayle Terry, Federal Defender Program, Chicago, Ill., for petitioner-appellant.

David E. Bindi, Atty. Gen. of Illinois Office, Chicago, Ill., for respondents-appellees.

Before CUDAHY, EASTERBROOK, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

In this appeal, we are asked to review the district court's denial of the appellant's petition for a writ of habeas corpus, originally brought pursuant to 28 U.S.C. Sec. 2254. The petitioner has alleged three grounds for habeas corpus relief: 1) ineffective assistance of trial counsel in violation of his sixth amendment right to counsel; 2) denial of his fourteenth amendment due process right to a fair trial because of the prosecutor's misconduct; and 3) denial of due process through the cumulative effect of the ineffective assistance of counsel and prosecutorial misconduct. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I

Background

A. Facts

The facts leading to the petitioner's arrest and conviction are not in dispute. The district court skillfully set forth the pertinent facts in its unpublished Memorandum

Page 617

Opinion and Order. No further elaboration is required:

The State's case leading to Petitioner's conviction was forceful, and hence we recount it in some detail. Joyce Blair was at home at about 1:00 p.m. on June 16, 1981, when a black man she identified in court as Petitioner, wearing a yellow construction hat, white shirt and black pants, knocked on her door and claimed to be a meter reader. Ms. Blair took out a flashlight which the man grabbed from her and used to strike her face. He demanded money, which Blair gave him. He told her he had a gun, pushed her into a bedroom and raped her. The man then broke into a locker from which he took several guns and shells, which he had Blair wrap in a cloth. Then he left the house at approximately 1:30. Blair's father-in-law took her to the hospital and called the police with a description of the assailant who he said was headed toward North Avenue. That evening, Blair selected Petitioner's photograph from among photographs of six people shown to her by the police.

A man named Michael Goy was driving across North Avenue between 1:00 and 1:30 that afternoon. From a distance of about eight feet, he saw a black man he identified in court as Petitioner standing on a corner, wearing a yellow hard hat, white shirt and black pants, and carrying a long parcel with what appeared to be gun butts sticking out of the end. Goy saw the man enter an apartment building gangway, and then exit without the parcel or his hat. Goy himself went into the gangway and found two guns wrapped in a cloth. Goy identified the same cloth that Blair had identified as the one in which she wrapped the guns. Goy gave the guns to a police officer, Sheckells, in the area. Sheckells and Goy then found a yellow hard hat in a garbage can. That hat was identified by Blair and Goy as the hat worn by Petitioner. Goy later made a photographic identification of Petitioner.

Officer John Amoroso heard a radio message that a home invasion and rape suspect was wanted. Amoroso searched the area and began to follow a black man wearing a white shirt, driving a blue Mercury. He followed the man to a gas station. Amoroso and the man got out of their cars. The man, whom Amoroso identified in court as Petitioner, wore black pants and a white shirt, and had gold-capped teeth. Amoroso asked him for his driver's license. The officer then radioed the dispatcher to ask whether the suspect had gold-capped teeth. Ms. Blair was contacted at the hospital, and she told the police that the offender did have gold teeth. Amoroso requested an assist car. Petitioner pushed Amoroso to the ground and pulled the officer's revolver out from his holster. Amoroso and Petitioner lay on the ground struggling over the gun which was, at various moments, approximately three inches from the officer's face, pointed toward his body and toward bystanders. Petitioner tried to pull the trigger and said he was going to kill Amoroso, but Amoroso held the cylinder.

Another police officer, Korhonen, arrived to see Amoroso struggling with Petitioner, Petitioner's finger on the trigger of Amoroso's gun. Korhonen got on top of the two men and wedged his hand in the gun between the pulled hammer and the firing pin to prevent it from firing.

Another police officer, Frugoli, arrived and hit Petitioner over the head with a flashlight, causing Petitioner to release the gun. Petitioner was arrested. Amoroso twice attacked Petitioner and had to be subdued.

At approximately 3:00 p.m., Detective Michael Heridogt advised Petitioner of his Miranda rights. Petitioner then told Heridogt that he had gone to a house (at Blair's address) at about noon to meet a woman named Dolores, with whom he had frequently had sexual relations. Dolores told him she was having trouble with her husband and asked him to remove guns from her house. He took several guns and placed them in a gangway and then drove off.

Page 618

The defense case consisted primarily of Petitioner's testimony. Petitioner raised an alibi defense as to the rape, armed robbery, and home invasion charges, and a different version of the facts as to the attempted murder charge. He testified, in short, that at around 10:00 a.m. on June 16, 1981, he went to his ex-wife's house and remained there visiting with her and their children until around noon. He was wearing black pants and a white shirt. He did not have a hard hat. He drove to a factory where he used to work and remained there until about 1:00. Then, as he was driving, his car overheated and he pulled into a gas station. A policeman pulled up behind him. Both men got out of their cars and the officer approached Petitioner. Petitioner gave the officer his driver's license and then, noticing that his car was beginning to roll, got into the car to stop it. The officer, Amoroso, took out his pistol and hit Petitioner in several spots on the back of his head. Petitioner grabbed Amoroso's arm in self-defense and they wrestled for several minutes. Amoroso had possession of the pistol the entire time. Another officer arrived and Petitioner was hit on the head and knocked unconscious. When he regained consciousness, he was in handcuffs, and Amoroso was kicking and punching him countless times. Petitioner was then taken by squad car to a police station. There, he was dragged out of the car, pushed down steps, kicked and beaten. He was pushed into a wire cage, handcuffed to a wall, and hit again. Officers put him in a van to take him to the hospital, then stopped the ... van in a dark alley and beat Petitioner with a rubber hose blackjack. He was hospitalized for several days. Hospital personnel testified, corroborating the fact that Petitioner was hospitalized.

Petitioner denied having ever been in Blair's home, meeting Blair, having intercourse with her, or attempting to kill Amoroso. Petitioner admitted to a prior guilty plea conviction for bank robbery. On cross-examination, Petitioner admitted to prior convictions for rape and deviate sexual assault, and for escaping from a penitentiary.

Also on cross-examination, Petitioner denied having talked with Detective Heridogt other than giving his name, address, and age, denied having been given his Miranda rights, and denied having made a confession to Detective Heridogt.

United States ex rel. Shepard v. Lane, No. 85 C 0391, mem. op. at 2-6 (N.D.Ill. Oct. 1, 1985) [hereinafter cited as Mem. op.]

B. District Court Opinion

The district court held that it was precluded from granting the writ of habeas corpus because of the overwhelming evidence of petitioner's guilt. The court did find, however, that "it is questionable whether petitioner's counsel provided adequate representation" and that "the prosecution engaged in reprehensible conduct." Mem. op. at 1-2.

Despite the alleged ineffective assistance of counsel, the district court, applying the prejudice component of the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), held that there was no reasonable probability that, but for defense counsel's ineffectiveness, the petitioner would have been found not guilty. The court stated that it had "confidence in the jury's outcome." Mem. op. at 7.

With respect to the conduct of the prosecutor, the court stated that it agreed with the Appellate Court of Illinois that the prosecutor's conduct was "reprehensible" and "uncalled for," and that the prosecutor engaged in "ugly tactics." Mem. op. at 9. However, because of the overwhelming evidence against the petitioner, "any constitutional error created by the State's improper conduct was harmless." Id. at 10.

II

Discussion

A. Ineffective Assistance of Counsel

1.

Mr. Shepard claims that he was denied the effective assistance of counsel because:

Page 619

1) counsel failed either to move to suppress statements made by petitioner to police officers after he was allegedly beaten or to investigate the voluntariness of the statements; 2) counsel failed to investigate petitioner's prior criminal record; and 3) counsel made an inadequate pre-trial investigation.

Mr. Shepard argues that he was overwhelmingly prejudiced through the introduction of a pre-trial statement he made to Detective Heridogt regarding his whereabouts at the time of the alleged incident. Detective Heridogt testified that, after petitioner was given his Miranda warnings, Mr. Shepard told him that he had gone to the victim's address to meet a woman by the name of Dolores whom he had met on previous occasions. This testimony was introduced in...

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52 practice notes
  • Resnover v. Pearson, Civ. No. S88-128.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 14, 1991
    ...Indiana State Reformatory, 820 F.2d 217 (7th Cir.1987), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 44......
  • Gerald v. Duckworth, No. 93-1192
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 20, 1994
    ...Cir. 1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir. 1987), cert. denied, 484 U.S. 867 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. denied, 484 U.S. 929 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 448 (7th Cir.), cert. denied, 484 ......
  • Williams v. Chrans, No. 90-2707
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 1, 1991
    ...Cir.1987). We examine the trial in its entirety to determine whether the prosecutor's comments violated due process. See Shepard v. Lane, 818 F.2d 615, 621 (7th Cir.), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); United States ex rel. Crist v. Lane, 745 F.2d 476, 482 (7......
  • Prince v. Parke, No. 3:95cv0499 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • October 18, 1995
    ...Indiana State Reformatory, 820 F.2d 217 (7th Cir.), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); Perri v. Director, Dep't of Corrections, 817 F.2d 448 (7th Cir.),......
  • Request a trial to view additional results
52 cases
  • Resnover v. Pearson, Civ. No. S88-128.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 14, 1991
    ...Indiana State Reformatory, 820 F.2d 217 (7th Cir.1987), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 44......
  • Gerald v. Duckworth, No. 93-1192
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 20, 1994
    ...Cir. 1987); Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217 (7th Cir. 1987), cert. denied, 484 U.S. 867 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. denied, 484 U.S. 929 (1987); and Perri v. Director, Department of Corrections, 817 F.2d 448 (7th Cir.), cert. denied, 484 ......
  • Williams v. Chrans, No. 90-2707
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 1, 1991
    ...Cir.1987). We examine the trial in its entirety to determine whether the prosecutor's comments violated due process. See Shepard v. Lane, 818 F.2d 615, 621 (7th Cir.), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); United States ex rel. Crist v. Lane, 745 F.2d 476, 482 (7......
  • Prince v. Parke, No. 3:95cv0499 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • October 18, 1995
    ...Indiana State Reformatory, 820 F.2d 217 (7th Cir.), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987); Shepard v. Lane, 818 F.2d 615 (7th Cir.), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987); Perri v. Director, Dep't of Corrections, 817 F.2d 448 (7th Cir.),......
  • Request a trial to view additional results

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