Blount, Walter v. Battaglia, Deirdre , 188 F. App'x 515 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 11, 2006
Decided July 24, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-3326
WALTER BLOUNT, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of
Illinois, Eastern Division
v.
No. 04 C 4007
DEIRDRE BATTAGLIA,
Respondent-Appellee. Matthew F. Kennelly,
Judge
ORDER
Illinois prisoner Walter Blount is serving a 65-year sentence for his role in a
gang-related drive-by shooting. After exhausting his state-court remedies, he
petitioned the district court for a writ of habeas corpus. The district court denied
the petition but granted a certificate of appealability on the issue of whether Blount
received ineffective assistance of counsel. Blount contends that he was prejudiced
by his attorney’s failure to request jury instructions about (1) testimony by an
accomplice-witness, and (2) a witness’s prior inconsistent statements. Because the
Appellate Court of Illinois reasonably concluded that Blount was not prejudiced by
his lawyer’s performance, we affirm the district court’s judgment.
No. 05-3326 Page 2
I.
On July 9, 1997, 71-year-old Mary Harris was attempting to disperse a crowd
of young people who had gathered outside her home at 1608 South 19th Street in
Maywood, Illinois. Unfortunately, the house was located within the territory of the
Black P-Stones, a street gang, and earlier in the day members of that gang had
fired shots at a member of the Four Corner Hustlers, a rival gang. As Harris was
attending to her property, a Chevrolet Citation pulled slowly into a nearby
intersection. The front-seat passenger stuck a gun out the window and fired
between four and six shots into the crowd. One bullet struck and killed Harris, and
another critically injured an 18-year-old in the group. The car sped away.
Walter Blount was later fingered as the driver of the car. He was tried in the
Circuit Court of Cook County on charges of murder, attempted murder, and
aggravated battery with a firearm under a theory of accomplice liability. In Illinois,
a person is guilty of a crime committed by another if, before or during the crime,
and with the intent to promote or facilitate the crime, he “solicits, aids, abets,
agrees or attempts to aid [another person] in the planning or commission of the
offense.” 720 ILCS 5/5-2(c).
The chief witness against Blount at trial was Brian Holmes. Holmes, a fellow
member of the Four Corner Hustlers, admitted that he was a passenger in the
backseat of the car during the shooting. He gave a statement to police at the time
of his arrest. After he was charged with first degree murder, he agreed to testify
against both Blount and Marcus Blackwell, the shooter, in exchange for a reduced
sentence. He later pleaded guilty to aggravated battery with a firearm and was
sentenced to six years in prison.
Holmes testified that on the day of the shooting, he, Blount, Blackwell, and
KeShawn Huston had been riding around Chicago all day before returning to
Maywood. At around 9:30 p.m., they ran into fellow gang member Brian Moore,
who told them that some Black P-Stones had shot at him earlier that day. Blount,
Blackwell, Holmes, and Huston drove to pick up a .380 semiautomatic handgun
that was stashed in some bushes, and proceeded into the rival gang’s territory, with
Blount driving and Blackwell in the front passenger seat. According to Holmes,
Blount drove through the intersection of 19th and Van Buren Streets three or four
times before remarking “I think that’s them,” in reference to the crowd of people
outside Mary Harris’s home. Blount then drove through the intersection once
again, slowly, and Blackwell fired the shots out the window.
Three other eyewitnesses testified against Blount. Kecia Williams, Nayania
Poole, and Antoinette Hughes had been standing in front of Harris’s house before
the shooting. At around 11:15, when Harris asked the group to leave, the girls
No. 05-3326 Page 3
began walking away from the house. Soon after, they saw a burgundy Chevrolet
Citation heading north on 11th Avenue at a slow speed. Hughes asked Blount for a
ride home; he smiled at her but kept on driving.
Finally, Maywood police officer John Mazariegos testified that he responded
to a report of shots fired at about 11:20 p.m. The report identified the suspects as
three black males in a red Chevrolet hatchback. Officer Mazariegos observed the
car the next morning and began pursuit. When the car was about one block in front
of him, and still moving, three occupants jumped out and fled. Though the officer
did not apprehend the men at the time, Blackwell, Blount, and Holmes were later
arrested. At a lineup, witnesses Willams, Poole, and Hughes all identified Blount
as the driver of the car on the night of the shooting, and Williams and Hughes
identified Holmes as a back-seat passenger.
The jury found Blount guilty on all counts. He was sentenced to a 45-year
term of imprisonment for murder and a consecutive 20-year term for attempted
murder and battery. The Appellate Court of Illinois affirmed. Blount then filed a
petition for postconviction relief, arguing in relevant part that his trial counsel was
ineffective for failing to request two jury instructions relating to Holmes’s
testimony. The first admonishes jurors that testimony of an accomplice-witness is
“subject to suspicion and should be considered by you with caution.” See Ill. Pattern
Jury Instr. Crim. 3.17. The second advises that a witness’s believability may be
challenged with evidence that on a prior occasion he made statements inconsistent
with his trial testimony and instructs that such evidence “may be considered by you
only for the limited purpose of deciding the weight to be given the testimony you
heard from the witness in this courtroom.” See Ill. Pattern Jury Instr. Crim. 3.11.
Blount cited as major inconsistencies several facts from Holmes’s trial testimony he
had not mentioned in earlier statements to police.
The trial court summarily denied Blount’s petition. The state appellate court
affirmed, concluding that Blount could not establish prejudice as a result of his
attorney’s failure to request either jury instruction. With respect to the first
argument, the court reasoned that the jury had been instructed to weigh each
witness’s credibility and had been made aware of Holmes’s plea deal through cross-
examination. Moreover, “an overwhelming amount of evidence established that
defendant was the driver when the shooting occurred.” As to the second argument,
the court reasoned that the inconsistencies Holmes cited did not go to a “material
matter” as required to instruct the jury on the issue of prior inconsistent statements
by a witness. The Supreme Court of Illinois denied Blount’s application for leave to
appeal.
Blount then filed a petition under 28 U.S.C. § 2254, raising the same
ineffective-assistance claim. The district court first determined that, whether or
No. 05-3326 Page 4
not the evidence of Blount’s guilt was “overwhelming,” the state appellate court did
not unreasonably apply federal law in concluding that Blount was not prejudiced by
the lack of a jury instruction on accomplice-witness testimony given the sum of the
evidence and the other jury instructions. Likewise the district court held that
Blount was not prejudiced by counsel’s failure to request an instruction on prior
inconsistent statements, concluding that “[f]our of the alleged omissions . . . were, at
most, relatively insignificant details” and the fifth was not an inconsistency at all.
The court denied Blount’s petition but granted a certificate of appealability.
II.
On appeal Blount renews his argument that his trial attorney was
ineffective, contending that if his lawyer had ensured the inclusion of the two
instructions in the charge to the jury, Holmes’s testimony would have been
undermined and he would not have been convicted.
The district court’s decision to deny the habeas corpus petition is subject to
de novo review. See Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir. 2005). A state
prisoner seeking habeas corpus relief must establish that the criminal proceedings
in his case 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 “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d);
Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006). This court looks to the
decision of the last state court to rule on the merits of the petitioner’s claim: here,
the state appellate court’s decision affirming the denial of postconviction relief. See
Charlton, 439 F.3d at 374.
Blount’s ineffective-assistance claim is governed by the principles established
in Strickland v. Washington, 466 U.S. 668 (1984). He must show that counsel’s
performance fell below an objective standard of reasonableness and that the
substandard performance prejudiced him—that is, that but for counsel’s errors
there is a reasonable probability that the result of the trial would have been
different. See id. at 687-88, 694. We do not apply the principles of Strickland
directly, but instead we analyze whether the state courts reasonably applied federal
law in concluding that Blount’s counsel was not ineffective. See Conner v. McBride,
375 F.3d 643, 657 (7th Cir. 2004). Our review is “quite deferential,”and we will not
disturb the state court’s decision as long as it is objectively reasonable, even if it is
substantively incorrect. See Barrow, 398 F.3d at 603.
Blount devotes a significant portion of his brief to arguing that counsel’s
performance was deficient, despite the Illinois appellate court’s focus on the lack of
prejudice. He seems to suggest that, because he was entitled to the instructions
No. 05-3326 Page 5
under “controlling State law,” he need not show prejudice. Although the Illinois
courts have expressed doubt that valid strategic reasons exist for failing to request
the accomplice-witness instruction, see People v. Davis, 819 N.E.2d 1195, 1200 (Ill.
App. 2004), that failure does not amount to per se ineffectiveness as Blount
suggests. A defendant must still show that counsel’s decision not to request the
instruction prejudiced him. See id at 1201.
To the extent that Blount addresses the question of prejudice with respect to
the accomplice-witness instruction, he argues from the faulty premise that the jury
could not have considered Holmes’s testimony at all if counsel had tendered the
proper jury instruction. For example, he labels Holmes the “sole, real accusatory
witness against defendant” and states that “[w]ithout [Holmes’s] testimony,
defendant is merely a person driving a car when a passenger shot without any
evidence defendant is accountable.” But what the jury would have done “without”
Holmes’s testimony is irrelevant. The admissibility of Holmes’s statements is not at
issue; the jury instruction addressed only how that testimony was to be weighed.
Regarding the accomplice-witness instruction, the Illinois appellate court
concluded that Blount suffered no prejudice because there was considerable
evidence against him, his trial was fair, the jury knew of Holmes’s plea agreement
with the state, and, the court emphasized, another instruction admonished the jury
to weigh Holmes’s credibility. Pattern Instruction 1.02 advises the jurors that they
are the sole “judges of the believability of the witnesses” and instructs them to
consider, when evaluating a witness’s credibility, “any interest, bias, or prejudice he
may have.” Jury instructions are viewed in their entirety. See Charlton v. Davis,
439 F.3d 369, 375 (7th Cir. 2006) (explaining that no prejudice resulted from
counsel’s decision not to request an instruction the substance of which “was covered
by other instructions”); see Conner, 375 F.3d at 667. Most importantly, the jury
knew that Holmes had received a substantial benefit in exchange for testifying
against Blount; that fact was drawn out on cross examination and repeated during
closing argument. We will not disturb the Illinois appellate court’s reasonable
conclusion that counsel’s failure to request the accomplice-witness instruction did
not sway the outcome of the trial.
Blount also argues he was prejudiced by counsel’s failure to tender IPI 3.11,
regarding Holmes’s prior inconsistent statements. He asserts that Holmes made
five key statements at trial that Holmes had not made previously: that Blount and
the others had driven around for nine hours on the day of the shooting; that
Blackwell retrieved the gun from a bush in an alley; that Brian Moore was the
reason for the shooting and was in the car when it happened; that Blount stated “I
think that’s them” before the shooting; and that KeShawn Huston was a passenger
in the car.
No. 05-3326 Page 6
As a preliminary matter, it should be noted that Holmes did not testify that
Brian Moore was one of the four men in the car during the shooting. Moreover, the
Illinois appellate court noted that on the day of his arrest, though not in his initial
statement to police, Holmes told the assistant state’s attorney that Blount had
stated “I think that’s them,” so there was no inconsistency. The court ultimately
concluded that Blount was not prejudiced because counsel lacked a solid basis on
which to request the jury instruction: although it is warranted by a witness’s prior
omissions as well as affirmative statements, it is required only if the inconsistency
goes to “a material matter.” E.g., People v. Eggert, 754 N.E.2d 474, 477 (Ill. App.
2001). The court deemed the inconsistent statements Blount identified as
peripheral, not material.
The Illinois appellate court reasonably applied federal law in concluding that
Blount was not prejudiced. The instruction would not have been given if requested.
Moreover, it is difficult to see how the instruction would have helped Blount had it
been given. The instruction restricts the jurors’ use of evidence, allowing them to
consider prior inconsistent statements only for the “limited purpose of deciding the
weight to be given the testimony” at trial. Blount, however, portrays IPI 3.11 as if
it orders the jury to weigh inconsistent statements against Holmes’s credibility
(much like IPI 3.17 advises that an accomplice’s testimony is inherently suspicious).
For example, he faults his attorney for “not instructing the jury as to the effect of
inconsistent statements,” deems the omission of this instruction a “failure to
instruct concerning impeachment,” and argues that the instruction “could cause the
jury to doubt Holmes’s credibility.” Blount’s argument reflects a misunderstanding
of the reason for the instruction: simply to limit the purposes for which the jurors
might consider the evidence. And, we have already noted, IPI 1.02 broadly
instructs the jury on weighing the credibility of witnesses. See People v. Larry, 578
N.E.2d 1069, 1075 (Ill. App. 1991) (no error in not giving IPI 3.11 because IPI 1.02
covered the “applicable principle of law”).
In light of the deferential standard we must apply, Blount has not
established that the Illinois appellate court unreasonably concluded that no
prejudice resulted from counsel’s failure to request the instructions. Accordingly,
the judgment of the district court is AFFIRMED.