Damon Goodloe v. Christine Brannon ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-2908
DAMON GOODLOE,
Petitioner-Appellant,
v.
CHRISTINE BRANNON,
Respondent-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cv-02650 — Sara L. Ellis, Judge.
ARGUED SEPTEMBER 15, 2020 — DECIDED JULY 12, 2021
Before FLAUM, ROVNER, and WOOD, Circuit Judges.
ROVNER, Circuit Judge. An Illinois jury convicted Damon
Goodloe of first degree murder in the death of Pierre Jones.
After losing his direct appeal and all post-conviction proceed-
ings available in state court, Goodloe petitioned for a writ of
habeas corpus in federal court under 28 U.S.C. § 2254. After the
district court denied relief on all of his claims, this court
2 No. 18-2908
granted a certificate of appealability on his claim that evidence
was admitted at his trial in violation of the Confrontation
Clause. We later expanded that certificate to include his
assertion that his trial counsel provided ineffective assistance.
We now affirm the district court’s denial of habeas relief.
I.
We presume that the factual findings of the state court are
correct for the purposes of habeas review unless the petitioner
rebuts the presumption of correctness by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). Goodloe has not provided
clear and convincing evidence rebutting the state court findings
and so we defer to the state court’s version of events. Weaver v.
Nicholson, 892 F.3d 878, 886 (7th Cir. 2018). Shortly before 2
a.m. on December 24, 2002, police officers Joseph Hodges and
Jason Venegas responded to a call of “shots fired” near 113th
Street and South Edbrooke Avenue in Chicago. On arriving at
the scene, the officers found Pierre Jones on the ground,
bleeding from a gunshot wound to the leg. Officer Hodges
called for an ambulance as two additional officers, Ronald
Bialota and Michael Martinez, arrived at the scene. It was then
1:58 a.m. Officer Bialota asked Jones who shot him, and Jones
replied, “Damon shot me.” Jones also told the officers that
Damon was wearing a “black hoodie.”
Officers Hodges and Venegas remained with Jones while
Officers Bialota and Martinez searched for the offender.
Approximately a minute and a half later, Bialota and Martinez
encountered Goodloe coming out of an alley near 114th Street
and Prairie Avenue, just a few blocks away from the scene of
the crime. Goodloe was wearing a black hoodie under a jacket,
No. 18-2908 3
but was not armed. After initially telling the officers that his
name was Mario, Goodloe produced identification revealing
that his first name was Damon. Within minutes, the officers
brought Goodloe back to the scene, where paramedics were
working on Jones in the back of an ambulance. Officer Bialota
asked Jones, “Is this the individual that shot you?” Jones
replied, “That’s him, he’s the one that shot me.” Officer
Martinez asked Jones if he was a hundred percent sure that
Goodloe was the one who shot him, and Jones replied, “Yeah,
that’s the guy.” The officers then arrested Goodloe, with the
arrest report indicating that he was taken into custody at 2:03
a.m. Jones died at a hospital approximately an hour later, of the
gunshot wound to his leg that had caused massive internal
bleeding.
At trial, over Goodloe’s objections, the State entered into
evidence Jones’s statements to the officers identifying Goodloe
as the shooter. Additional evidence also implicated Goodloe.
Gunshot residue tests performed on his hands within a few
hours after the shooting revealed that he either recently fired a
gun or was close to a gun when it was fired.1 A disinterested
witness to the shooting also testified, albeit very reluctantly.
Michelle Lovett appeared at trial in prison garb, having been
taken into custody to assure her appearance at trial. She
testified that she was sitting in a car with a man near the
shooting when she saw Goodloe (whom she knew from the
neighborhood) and another man, both in black hoodies,
1
The expert who testified about the test results conceded that it was also
possible that the particles were transferred to Goodloe’s hands from some
other source.
4 No. 18-2908
coming towards the car. She then heard approximately ten
gunshots but ducked before she could see who was firing a
gun. She called 911 to report the shooting, and subsequently
identified Goodloe in a line-up as one of the men she saw
immediately before the shooting. She also testified that, at the
request of Goodloe’s cousin, she later signed an affidavit
denying that she had seen Goodloe that night, in exchange for
a promise that “they were going to quit threatening” her. She
had been threatened prior to signing the affidavit, and an
unknown person had fired shots at her, but the threats ceased
once she signed the affidavit.
Edward Loggins testified at trial that he had been purchas-
ing cocaine from Jones when the shots were fired. He too
observed two men in black hoodies immediately before the
shooting but could not see their faces. When the shots were
fired, he saw Jones fall to the ground. He fled the scene on foot,
running home, only to realize on his arrival that he too had
been shot in the leg. Police officers arrived at his home shortly
thereafter to question him about the shooting, and he was
taken to a hospital for treatment.
The jury convicted Goodloe of first degree murder but
declined to make an additional finding that he personally
discharged a firearm during the commission of the offense, a
finding that could have led to a higher sentence. After the trial
and prior to sentencing, Goodloe moved orally for a new trial
based on ineffective assistance of counsel. The trial court
allowed his trial counsel to withdraw and appointed a public
defender to represent him. The court then held a hearing on a
counseled motion for a new trial based on ineffective assis-
tance. The court rejected Goodloe’s claims after finding that
No. 18-2908 5
counsel’s decisions relating to the investigation of witnesses
and the impeachment of Michelle Lovett were based on a
reasonable trial strategy and did not prejudice Goodloe. The
trial court then sentenced Goodloe to thirty years’ imprison-
ment. Goodloe subsequently lost on direct appeal and in state
post-conviction proceedings before bringing his federal habeas
petition, which the district court denied.
II.
We certified only two issues for appeal. First, we found that
“reasonable jurists could debate whether a reversible violation
of the Confrontation Clause occurred when the trial court
admitted police accounts of statements from the wounded
gunshot victim who soon died.” R. 13. On Goodloe’s motion,
we later expanded the certificate of appealability to address
“whether his trial counsel was ineffective for failing to investi-
gate three witnesses who could have provided an alternative
explanation for Goodloe’s presence near the scene of the
crime.” R. 18. We review the district court’s denial of Goodloe’s
habeas petition de novo. Jordan v. Hepp, 831 F.3d 837, 842 (7th
Cir. 2016). Because this appeal is governed by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), we give
great deference to the state court. Jordan, 831 F.3d at 843.
Where the state court has made a decision on the merits, we
may grant relief only if that decision was “contrary to, or
involved an unreasonable application of clearly established
Federal law” as determined by the Supreme Court. 28 U.S.C.
§ 2254(d)(1); Jordan, 831 F.3d at 843.
We begin with Goodloe’s Confrontation Clause claim. At
this stage of the proceedings, Goodloe does not contend that
6 No. 18-2908
the admission of Jones’s initial statements—that a person
named Damon shot him and that the shooter was wearing a
black hoodie—violated the Confrontation Clause. He chal-
lenges only the statements that Jones made when Goodloe was
brought to the ambulance for identification. In particular, he
asserts that the admission of Jones’s statements, “That’s him,
he’s the one that shot me,” and “Yeah, that’s the guy,” (collec-
tively the “Show-Up Statements”) violated his rights under the
Confrontation Clause.
The Sixth Amendment provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right … to be con-
fronted with the witnesses against him[.]” The Confrontation
Clause bars the admission of testimonial statements against the
defendant, unless the declarant is both unavailable at trial, and
the defendant had a prior opportunity to cross-examine the
declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004).
Because Jones was unavailable at trial and because Goodloe
had no prior opportunity to cross-examine Jones on the Show-
up Statements, the determinative issue for the state courts was
whether Jones’s Show-Up Statements were testimonial in
nature:
Statements are nontestimonial when made in the
course of police interrogation under circumstances
objectively indicating that the primary purpose of
the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that
there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish
No. 18-2908 7
or prove past events potentially relevant to later
criminal prosecution.
Davis v. Washington, 547 U.S. 813, 822 (2006).
The Illinois Appellate Court properly identified the control-
ling Supreme Court precedent, citing both Crawford and Davis,
and applied those cases to conclude that Jones’s statements
were not testimonial but were made to enable police assistance
to meet an ongoing emergency. The appellate court found that
Jones was interrogated in an emergency setting, where the
police were responding to a call of “shots fired,” and found the
victim on the ground with a bullet wound, in obvious pain. The
police were concerned that an armed criminal was at large
nearby, the court remarked, and the purpose of the police
questioning was to meet an ongoing emergency and to protect
the public from an armed shooter. Moreover, the scene was not
tranquil and safe; Jones’s initial statements were made when he
was on the ground immediately after being shot, and the
Show-up Statements were made when he was in the back of an
ambulance at the scene of the shooting, in great pain, and
required assistance breathing. His answers to the officers’
initial questions, the court found, were given to help resolve an
emergency. The court also found that Jones’s Show-up State-
ments confirming that the man the police had apprehended
was the “Damon” in question were not formal or testimonial
because the emergency was ongoing until the officers knew
that they had apprehended the shooter. The shooter might still
have been in the vicinity, the court remarked, and the police
needed the identification in order to end the emergency. The
court rejected Goodloe’s claim that the emergency was over
because the only suspect was in custody at the scene. The court
8 No. 18-2908
noted that the police did not know that they had the right man
until Jones confirmed Goodloe’s identity. The appellate court
also relied on the existence of an unidentified second shooter
as supporting the finding of an ongoing emergency. And in fact
the record reflected that there was a second shooter, although
the officers were not aware of the existence of the second
shooter at the moment they returned to the scene with
Goodloe.
Goodloe contends that the court unreasonably applied
Supreme Court precedent when it concluded that Jones’s
statements were not testimonial. But the “unreasonable
application” standard is a rigorous one:
Under § 2254(d), a habeas court must determine
what arguments or theories supported or, as here,
could have supported, the state court’s decision;
and then it must ask whether it is possible
fairminded jurists could disagree that those argu-
ments or theories are inconsistent with the holding
in a prior decision of this Court.
Harrington v. Richter, 562 U.S. 86, 102 (2011). The Court has
noted that this standard is difficult to meet and was meant to
be so:
It preserves authority to issue the writ in cases
where there is no possibility fairminded jurists
could disagree that the state court’s decision
conflicts with this Court’s precedents. It goes no
further. Section 2254(d) reflects the view that
habeas corpus is a “guard against extreme malfunc-
tions in the state criminal justice systems,” not a
No. 18-2908 9
substitute for ordinary error correction through
appeal.
Harrington, 562 U.S. at 102–03 (quoting Jackson v. Virginia, 443
U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).
Goodloe has not met the standard for habeas relief here. The
state court reasonably concluded that statements made to
identify the perpetrator in the minutes following a shooting,
with a manhunt underway, were made to meet an ongoing
emergency. Goodloe’s position that the emergency passed as
soon as he was handcuffed presumes that the police knew at
that time that they had the right man and that the hunt for the
shooter was over. But Goodloe only partly matched the
description of the shooter. Although his name was Damon, he
initially gave the officers another name. He was not armed, and
although he was wearing a black hoodie, it was partly hidden
under a coat.2 Given these discrepancies, it was prudent for the
police to confirm that they had the right suspect before
stopping the search, and reasonable for the Illinois courts to
decide that the questions posed and answers given were
intended to meet an ongoing emergency in the minutes
following the shooting. The Illinois court reasonably found that
this was not a formal interrogation conducted to create a
2
Goodloe contends that because he was unarmed, he posed no further
danger. We disagree. A shooter could stash the gun nearby and retrieve
it. And in any case, the police officers recovered no gun from Goodloe,
and that discrepancy (together with the slightly different clothing and the
denial that his name was Damon) created doubt regarding his identity as
the shooter, necessitating the show-up to verify that they had the right
man.
10 No. 18-2908
substitute for live testimony. Indeed, the officers could not
have known at that time that they would need a substitute for
Jones’s live testimony because they did not know that his leg
wound would soon lead to his death. Moreover, the appellate
court’s use of the existence of a second shooter (a fact not
known by the officers at the time) in finding that the emer-
gency was ongoing even after Goodloe was in custody is
largely irrelevant to the question presented in this appeal:
whether the state appellate court unreasonably applied
Crawford and Davis when it concluded that the emergency was
ongoing in the minutes after the shooting when the officers did
not know whether any armed offender was still in the area.
It might be fair to characterize the question of whether there
was an ongoing emergency when the officers brought Goodloe
to the ambulance in handcuffs as a close question, and reason-
able jurists may even disagree with the state court’s answer to
that question. But a “state court’s determination that a claim
lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington, 562 U.S. at 101 (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Because
fairminded jurists could disagree on the correctness of the state
court’s determination, the district court correctly held that
habeas relief is precluded here.
Goodloe also contends that the state courts unreasonably
applied Strickland v. Washington, 466 U.S. 668 (1984), in finding
that his trial counsel was not ineffective. According to Goodloe,
counsel was ineffective because he failed to investigate three
witnesses who could have provided an innocent explanation
No. 18-2908 11
for his presence near the scene of the crime on the night in
question. In particular, he asserts that counsel should have
interviewed and presented testimony from his friend, Maceo
Lee; his girlfriend, Shana Young; and his uncle, Algeron
McKinley. According to Lee’s 2010 affidavit, Lee would have
testified that he was with Goodloe in the early morning hours
of December 24, 2002. From midnight to approximately 1:30
a.m., Goodloe, Lee and a man named Trell were drinking in
Goodloe’s car at 48th Street and Prairie to celebrate Trell’s
birthday. After Goodloe dropped Trell off at his home, Lee and
Goodloe headed south so that Goodloe could meet his girl-
friend, Shana, at 2:00 a.m. when she got off work at 114th
Street and Calumet Avenue. Goodloe’s car began acting up as
they drove, so he told Lee that he intended to park the car and
walk to meet Shana. Goodloe then dropped Lee off at 113th
and Forest Street.
Shana Young provided in her 2010 affidavit that she would
have testified that, on December 24, 2002, she was supposed to
get off work at 1:00 a.m., go home to her aunt’s house at 114th
Street and Calumet Avenue by 2:00 a.m., and then meet
Goodloe there. She averred that she called Goodloe throughout
the previous day to make sure he would be at her aunt’s house
on time to pick her up. After arriving home, she waited thirty
minutes before calling Goodloe’s cellphone, only to go into his
voicemail. Goodloe then called her back a few minutes later
and told her that he was at the police station after being
stopped on his way to meet her.
Finally, Goodloe was unable to obtain an affidavit from his
uncle, Algeron McKinley, who had apparently moved from the
area, so Goodloe filed an affidavit stating what McKinley’s
12 No. 18-2908
testimony would be if he had been called. According to
Goodloe, McKinley would have testified that between 1:45 a.m.
and 2:15 a.m. on December 24, 2002, he was at his home at
114th Street and Indiana Avenue cooking for the holidays when
Damon came into the house and went into the washroom.
McKinley would have testified that when Damon came out of
the washroom, he asked McKinley if Shana had called. Damon
then left and walked east towards Calumet Avenue to meet
Shana.
The State argues that Goodloe procedurally defaulted this
claim as it relates to Lee and McKinley by failing to raise it
through one complete round of state court review. The State
similarly contends that Goodloe procedurally defaulted the
claim as to Young by waiving it. The district court rejected the
State’s claim of procedural default, found both claims pre-
served, and then rejected them on the merits, finding that the
state courts reasonably concluded that Goodloe was not
prejudiced by his counsel’s failure to investigate or call these
three witnesses.
We agree with the district court that the claims were not
procedurally defaulted. The State argues that the claims related
to Lee and McKinley were defaulted because Goodloe did not
raise them through a complete round of state-court review on
direct appeal, instead attempting to bring them through a
complete round of post-conviction review, where the Illinois
Appellate Court held that they were barred by res judicata. The
State also argues that the claim pertaining to Young was
procedurally defaulted because the Illinois Appellate Court
found that it had been waived. But in both instances, the
Illinois Appellate Court, in post-conviction proceedings, ruled
No. 18-2908 13
on the merits of the claim in addition to citing these state
procedural obstacles, and the state appellate court decision
lacked any plain statement that the court was relying on a
state-law ground. As the Supreme Court recently reiterated in
McGirt v. Oklahoma, when the state court “opinion ‘fairly
appears to rest primarily on federal law or to be interwoven
with federal law’ and lacks any ‘plain statement’ that it was
relying on a state-law ground, we have jurisdiction to consider
the federal-law question presented to us.” 140 S.Ct. 2452, 2479
n.15 (2020) (quoting Michigan v. Long, 463 U.S. 1032, 1040–41,
1044 (1983)). See also Harris v. Reed, 489 U.S. 255, 263 (1989) (“a
procedural default does not bar consideration of a federal claim
on either direct or habeas review unless the last state court
rendering a judgment in the case clearly and expressly states
that its judgment rests on a state procedural bar.”) (internal
quotation marks omitted). At no point in the state appellate
court opinion in the post-conviction proceedings did the court
“clearly and expressly state[]” that it was resting its decision on
a state procedural bar. The state appellate court instead
addressed the claim of ineffective assistance with regard to
these three witnesses both on the merits and on state proce-
dural grounds, without ever indicating that it intended to rest
its decision on a state procedural bar, and we may therefore
treat the claim as preserved for habeas review on the merits.
On the merits, the state appellate court rejected Goodloe’s
claims of ineffective assistance as related to Lee and McKinley
because neither man’s affidavit provided an alibi for Goodloe
and in fact their testimony might have been damaging to
14 No. 18-2908
Goodloe’s theory of the case.3 Because Goodloe could not point
to any favorable testimony from either Lee or McKinley, the
appellate court concluded that counsel was not ineffective for
failing to investigate or call them, essentially finding that
Goodloe was not prejudiced by his counsel’s failure. As for
Young, the court similarly concluded that because she was not
in the area with Goodloe at the time of the shooting, she could
not have provided an alibi, could not have contributed to
Goodloe’s theory of the case, and could not have provided any
exculpatory testimony. The court concluded that counsel was
therefore not ineffective for failing to call her, again essentially
finding that Goodloe was not prejudiced by the failure to
investigate or call this witness. Goodloe complains that the
state court’s conclusion was unreasonable because the evidence
against him was slim, and these witnesses could have provided
an innocent explanation for his presence near the shooting. He
asserts that their testimony would also have buttressed
Loggins’s “unequivocal testimony that he did not see Goodloe
at the scene and did not believe Goodloe was one of the
shooters.”4 He also points out that the jury declined to find that
3
Counsel testified in part that the police report contained information
about Lee’s membership in a gang, and he did not want Lee possibly
testifying about being in the same gang as Goodloe.
4
Loggins’s testimony was far less favorable than Goodloe portrays.
Goodloe ignores Loggins’s admission that he could not see the faces of the
two men in black hoodies. Although he also testified that he knew
Goodloe and did not see him that night, because he could not see the faces
of the two men in black hoodies, his testimony does little to support
Goodloe’s claim that Loggins would verify that he was not present at the
(continued...)
No. 18-2908 15
he personally fired a gun. Finally, he complains that the state
court wrongly limited the value of these witnesses to whether
they could provide an alibi for him.
A fair reading of the Illinois appellate court’s opinion
demonstrates that the court did not limit the value of these
three potential witnesses to alibi testimony, as Goodloe claims.
But even if we were to find that trial counsel’s performance
was deficient, an assessment we need not make in this case, we
cannot conclude that the state court unreasonably applied
Strickland when it determined that Goodloe was not prejudiced
by the failure to call these witnesses. Strickland, 466 U.S. at 692(any deficiencies in counsel’s performance must be prejudicial
to the defense in order to constitute ineffective assistance under
the Constitution). The evidence against Goodloe was actually
quite strong. The victim named him, described an article of
clothing he was wearing when he was apprehended, and
confirmed his identity to police officers, all within a matter of
minutes after the shooting. Not only was Goodloe found a few
blocks from the scene shortly after the shooting, he gave a false
name at first and forensic tests demonstrated that he had either
recently fired a gun or had been near a gun when it was fired.
Finally, a disinterested witness, a woman who knew him from
the neighborhood, testified to his presence at the scene at the
4
(...continued)
shooting. Moreover, Loggins did not testify, as Goodloe claims, that he
“did not believe that Goodloe was one of the shooters.” Instead, when
asked how he replied to police questions regarding whether Goodloe was
involved in the shooting, he testified that he told the police officers, “Not
that I know of, no.”
16 No. 18-2908
time of the shooting. She also testified that she had signed an
affidavit denying that Goodloe was at the scene only after she
had been threatened and shot at. So reluctant was she to testify
that she had been taken into custody to assure her appearance
at trial.
Weighed against this relatively strong evidence, the
testimony of these witnesses that Goodloe had an innocent
reason for being near the scene of the shooting was unlikely to
create a reasonable probability that the result of the proceeding
would have been different had the jury considered their
accounts.5 Strickland, 466 U.S. at 694. Under Strickland:
The defendant must show that there is a reason-
able probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in
the outcome.
Strickland, 466 U.S. at 694. The state appellate court reasonably
applied Strickland when it found that counsel’s failure to
present the testimony of these three witnesses did not meet this
standard. Harrington, 562 U.S. at 104 (it is not enough to show
that the errors had some conceivable effect on the outcome of
the proceeding; counsel’s errors must be so serious as to
5
In addition to the fact that none of these witnesses were with Goodloe
at the time of the shooting, we note that the record already contained an
innocent reason for Goodloe to be present at 114th Street and Prairie
Avenue. The identification that he provided to Officer Bialota showed a
home address at 11514 South Indiana, just a few blocks away. He was not
out of place in the neighborhood.
No. 18-2908 17
deprive the defendant of a fair trial, a trial whose result is
reliable). The district court therefore correctly denied Goodloe’s
petition for a writ of habeas corpus.
AFFIRMED.