Antonio McDowell v. Michael Lemke , 737 F.3d 476 ( 2013 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 12-2967
    ANTONIO MCDOWELL,
    Petitioner-Appellant,
    v.
    MICHAEL LEMKE, WARDEN,
    STATEVILLE CORRECTIONAL CENTER,
    Respondent-Appellee.
    Appeal from the United States District Court for the
    Northern District of Illinois, Eastern Division.
    No. 1:04-cv-04992 — Joan B. Gottschall, Judge.
    ARGUED SEPTEMBER 26, 2013 — DECIDED DECEMBER 12, 2013
    Before POSNER, MANION, and KANNE, Circuit Judges.
    KANNE, Circuit Judge. Over fifteen years ago, Antonio
    McDowell was convicted in an Illinois trial court of committing
    a murder and carjacking on a single December afternoon.
    Today, he seeks a writ of habeas corpus, arguing that the
    processes used to identify him as the perpetrator were fatally
    flawed. Because we find that he procedurally defaulted these
    2                                                 No. 12-2967
    claims by failing to adequately present them before each level
    of the Illinois courts, we decline to grant his petition.
    I. BACKGROUND
    A. The Murder and Carjacking
    At approximately 3:00 PM on December 21, 1996, Martha
    Castro looked out her window and saw her husband, Mario
    Castro, lying on the ground. A man dressed in a black cap,
    jacket, and pants was leaning over him and searching his
    pockets. Mrs. Castro and her nephew, Alberto Varela, ran
    outside. Varela struck the man dressed in black. In response,
    the man in black picked up a gun and fired it once before
    running into the alley. Varela followed him briefly, but
    stopped once the man fired the gun a second time. Mr. Castro
    later died from a gunshot wound to his shoulder.
    The Castros’ neighbor, Juan Medina, looked out his
    window when he heard the gunfire. He saw the man in black
    searching Mr. Castro’s pocket. Medina then walked into the
    other room to tell his wife Mr. Castro had been shot. When he
    returned, he saw Varela hit the man in the shoulder and the
    man fire a shot at Varela.
    A few blocks away, Ruth Morales-Santana turned into the
    alley. When she parked and got out of her car, the man in black
    approached her, gun drawn, and demanded her car keys and
    purse. Morales-Santana handed over her bag and keys and the
    man climbed into her car.
    B. The Police Investigation
    At 3:30 PM the same day, Detective Renaldo Guevara
    traveled to the scene of the shooting, where he interviewed
    No. 12-2967                                                   3
    Varela and Medina. He then began looking for a black male in
    his early twenties who was about five foot seven or five foot
    eight inches tall and was wearing a black jacket and cap.
    Detective Guevara did not find anyone right away. Almost
    seven months later, on July 12, 1997, Guevara went to Medina’s
    home to show him some images from a book containing
    Polaroid photos. Medina identified one of the pictures on the
    third page of the book as someone who “looked like” the man
    in black, but asked for a more recent photo to be sure.
    Later that month, on July 21, Detective Guevara returned
    with an array of five black-and-white photographs. Medina
    picked the photo of petitioner, Antonio McDowell, as depicting
    the man he saw standing over Mr. Castro’s body. That
    afternoon, Guevara took the five-photo array to Morales-
    Santana’s home, where she also selected the photo of
    McDowell. The next day, Guevara took the set of photos to
    Varela’s home, and he similarly identified McDowell as the
    man in black. On July 23, 1997, Medina, Morales-Santana, and
    Varela each viewed a lineup and identified McDowell as the
    offender.
    C. McDowell’s Trial, Conviction, and Direct Appeal
    Before his trial, McDowell filed a motion to suppress the
    identification testimony, alleging that the police had staged an
    improper one-on-one photo show up and used overly
    suggestive photo arrays that resulted in mistaken
    identifications. Specifically, McDowell argued that the photo
    array contained too few people and that “the disparity in age,
    height, weight, dress, complexion, and other distinguishing
    characteristics … was improperly conducive to the
    4                                                  No. 12-2967
    misidentification of the accused.” The record does not indicate
    that the state court ever ruled on the motion. McDowell did not
    continue to argue the point at trial.
    At a bench trial, the State presented eyewitness
    identification testimony from Mrs. Castro, Medina, Varela, and
    Morales-Santana.1 Each testified as to their observations at the
    time of the offenses. Detective Guevara also testified about his
    investigation and interviews with these witnesses. The State
    presented no physical evidence linking McDowell to the
    murder and carjacking. McDowell himself did not testify, but
    presented an alibi through his good friend, Kenneth Beecham.
    At the close of the evidence, the judge credited the State’s
    witnesses, noting that their accounts had corroborated each
    other and recounted the same sequence of events. He found
    petitioner guilty of first degree murder, attempted murder, and
    aggravated vehicular hijacking, and imposed a sentence of 103
    years.
    On direct appeal, McDowell argued that the trial court
    abused its discretion in imposing a 103-year sentence based
    upon his lack of remorse, and that the use of consecutive
    sentences violated Apprendi v. New Jersey, 
    530 U.S. 466
     (2000).
    The state appellate court affirmed, and the state supreme court
    denied McDowell’s petition for leave to appeal.
    D. State Post-Conviction Proceedings
    McDowell then filed a pro se state post-conviction petition
    pursuant to 725 ILCS 5/122-1–5/122-7. In part, he argued that
    1
    McDowell waived his right to a jury trial.
    No. 12-2967                                                    5
    he was arrested without probable cause. To support this
    argument, McDowell asserted that the identification
    supporting his arrest was tainted because a computer-
    generated photo was “presented to the victims in … a
    suggestive manner.” In later pleadings, McDowell additionally
    claimed that Medina’s identification was tainted because his
    was the only image common to the two photo sets Guevara
    showed Medina (the photo book, from which Medina
    tentatively identified McDowell, and the five-photo array all
    three witnesses were shown).
    The trial court denied the petition, and McDowell appealed,
    arguing only that his trial and appellate counsel were
    ineffective. Specifically, McDowell argued that his counsel
    should have challenged whether there was probable cause to
    support his arrest. In so arguing, he quoted his arguments
    from his original post-conviction petition.
    The state appellate court affirmed McDowell’s conviction.
    It rejected McDowell’s ineffective assistance claim, noting that
    he was arrested based on three separate photo identifications,
    his allegation that the arrays were suggestive was not
    supported by the record, and that there was no evidence that
    the eyewitnesses were told to identify McDowell. McDowell
    then filed a petition for leave to appeal, which the Illinois
    Supreme Court denied.
    E. Habeas Proceedings
    Pursuant to 
    28 U.S.C. § 2254
    , McDowell filed a pro se
    petition in federal court for a writ of habeas corpus on July 25,
    2004. The district court appointed counsel, and McDowell filed
    an amended, counseled petition. In his amended petition,
    6                                                  No. 12-2967
    McDowell alleged that Detective Guevara had framed him for
    murder after he refused to falsely identify a suspect as the
    person who shot him in the hand earlier that year. Specifically,
    he alleged that the eyewitness identifications arising from the
    lineup were suggestive because Guevara showed a single
    picture of him to the witnesses before they participated in the
    lineup.
    McDowell also argued that any procedural default should
    be forgiven because he could establish he was actually
    innocent of the crime, and thus a grave miscarriage of justice
    would occur were he not allowed to challenge his conviction
    in federal court. He based this claim on the assertion that
    Detective Guevara framed him. McDowell submitted two
    pieces of evidence supporting this claim: an affidavit he made
    himself and a collection of affidavits and transcripts detailing
    Detective Guevara’s misconduct in other, unrelated cases.
    In his affidavit, McDowell averred that police detectives
    visited his mother’s house on July 14, 1997, and told him he
    should go to the station for an interview. When McDowell
    went to the station on July 23, Detective Guevara allegedly
    handcuffed him to a wall for several hours in an attempt to
    coerce him into falsely identifying someone as the person who
    shot him in the hand earlier that year. Guevara then
    purportedly convinced him to participate in a lineup. While
    McDowell was at the station, another detective showed
    McDowell a picture of himself. The detective allegedly said
    that Guevara had used the picture to implicate McDowell
    before the witnesses.
    No. 12-2967                                                   7
    The evidence of Detective Guevara’s misdeeds consisted of
    affidavits, depositions, and trial testimony from other criminal
    defendants, mostly convicted felons, alleging that Detective
    Guevara had coerced them to confess or to identify a specific
    person as a perpetrator. None of the evidence related
    specifically to McDowell’s case.
    The district court accepted McDowell’s contentions in part
    and rejected them in part. It found that McDowell had
    procedurally defaulted his argument that the lineups were
    unduly suggestive based on the allegation that Detective
    Guevara showed a single picture of McDowell to the witnesses
    before they performed any other identifications. The court also
    ruled that McDowell had procedurally defaulted any
    identification claims as to witnesses other than Medina.
    Further, McDowell had not established actual innocence
    sufficient to excuse these defaults, because his affidavit was
    inconsistent with the chronology of the investigation and
    testimony at trial, and because McDowell’s submissions
    concerning Detective Guevara’s past misdeeds were not direct
    evidence of wrongdoing in McDowell’s case.
    The district court did find, however, that McDowell had not
    procedurally defaulted a generic “Sixth Amendment/sugges-
    tive identification claim” or his ineffective assistance claim
    relating to counsel’s failure to challenge the identifications.
    After substantive briefing, the district court rejected the
    suggestive identification claim on the merits. It held that the
    claim lacked any factual basis because McDowell did not
    provide any evidence (1) that his photo was the only image
    common to the two photo arrays Medina saw or (2) that the
    second photo array included individuals who did not share
    8                                                          No. 12-2967
    McDowell’s salient characteristics. Because the suggestiveness
    claim failed, and because of the significant evidence against
    him, the court also found that McDowell could not establish
    that counsel was ineffective for failing to pursue the
    suggestiveness issue at trial. The trial court declined to grant
    a certificate of appealability.
    McDowell filed a notice of appeal from the district court’s
    denial of his petition and an application for a certificate of
    appealability with this court. This court granted the certificate
    on two issues: (1) whether photo arrays in which McDowell
    was the only individual in common and which contained
    individuals of a different race were improperly suggestive and
    (2) whether McDowell fairly presented his due process claim
    in the state courts.
    II. ANALYSIS
    On appeal, McDowell argues that he fairly presented his
    due process claim in state court, that the photo arrays were
    unduly suggestive, violating his due process rights, and that he
    has presented sufficient actual innocence evidence for us to
    hear his other, procedurally defaulted claims. We find that
    because McDowell did not present his due process claim to
    each level of the Illinois state courts, the claim is procedurally
    defaulted.2
    2
    We will not reach the claims the district court found to be procedurally
    defaulted. These claims are outside the certificate of appealability we
    granted, and we decline to exercise our discretion to hear them now. See
    Ouska v. Cahill-Masching, 
    246 F.3d 1036
    , 1045 (7th Cir. 2001).
    No. 12-2967                                                     9
    McDowell puts forth two factually-distinct suggestive
    identification claims: (1) showing a witness two separate photo
    arrays in which McDowell was the only individual in common
    was unduly suggestive and (2) showing a witness a single
    photo array which contained individuals of different races was
    unduly suggestive. The district court found that the first of
    these claims—the “individual-in-common” claim—was not
    procedurally defaulted. United States ex rel McDowell v. Hardy,
    No. 04-cv-04992, 
    2012 WL 2921512
     at *2 (N.D. Ill. July 17, 2012).
    It did not specifically determine whether the second claim—the
    “mixed-race photo array” claim—was defaulted, but discussed
    the theory in its general discussion of the suggestive
    identification claim. 
    Id.
    The government contends that both of these arguments
    were forfeited in the district court because McDowell did not
    include them in his habeas petition. It relies on Rule 2(c) of the
    Rules Governing Section 2254 Cases in the United States
    District Courts, which requires that a habeas petition “specify
    all the grounds for relief available to the petitioner” and “state
    the facts supporting each ground.” According to the
    government, Rule 2(c) should be construed strictly, such that
    any argument not included in the habeas petition, even if
    raised and ruled on by the district court, is forfeited. But our
    cases have not focused solely on whether an argument was
    developed in the initial petition. Rather, they consider whether
    the argument was adequately presented to the district court.
    See Kunz v. DeFelice, 
    538 F.3d 667
    , 681 (7th Cir. 2008) (focusing
    on whether presentation of issue in reply brief gave the district
    court “the first opportunity to rule with full briefing and
    consideration.”); Winsett v. Washington, 
    130 F.3d 269
    , 274 (7th
    10                                                    No. 12-2967
    Cir. 1997) (“we cannot consider [petitioner’s] voluntariness
    challenge because he did not present it to the district court.”).
    McDowell did present these arguments to the district court,
    albeit in a reply brief, and the state responded in a surreply.
    The district court recognized the legal basis for the claims and
    ruled that they were insufficiently grounded in record
    evidence for it to rule on them. The argument was thus before
    the district court and not forfeited.
    This leaves the question of procedural default. Although
    the district court found that McDowell had not procedurally
    defaulted the suggestive identification claims described above,
    we are not bound by its ruling. We review the district court’s
    procedural default ruling de novo. Mulero v. Thompson, 
    668 F.3d 529
    , 536 (7th Cir. 2012).
    To avoid procedural default, a habeas petitioner must
    “fairly present” a claim to each level of the state courts.
    Anderson v. Benik, 
    471 F.3d 811
    , 814 (7th Cir. 2006); Lewis v.
    Sternes, 
    390 F.3d 1019
    , 1026 (7th Cir. 2004). Both the operative
    facts and controlling law must be placed before the state
    courts. Ellsworth v. Levenhagen, 
    248 F.3d 634
    , 639 (7th Cir. 2001).
    At bottom, we must consider whether “the state court was
    sufficiently alerted to the federal constitutional nature of the
    issue to permit it to resolve that issue on a federal basis.” 
    Id.
    This analysis typically focuses on four factors: (1) whether the
    habeas petitioner relied on federal cases that engage in
    constitutional analysis, (2) whether the petitioner relied on
    state cases that apply constitutional analysis to similar facts, (3)
    whether the petitioner framed the claims in terms so particular
    as to call to mind a specific constitutional right, and (4)
    No. 12-2967                                                      11
    whether the petition alleges a pattern of facts within the
    mainstream of constitutional litigation. 
    Id.
    In Illinois, which has a two-tiered appellate review system,
    a petitioner must present a claim at each level of the state court
    system, either on direct appeal or in post-conviction
    proceedings. Lewis, 
    390 F.3d at
    1025 (citing O’Sullivan v.
    Boerckel, 
    526 U.S. 838
    , 845 (1999)). Because McDowell raised
    only sentencing issues on direct appeal, our analysis focuses on
    the arguments he made on post-conviction review.
    McDowell did not fairly present his suggestive
    identification claim to the trial court that heard his post-
    conviction petition. He stated only, amid an argument about
    whether the police had probable cause to arrest him, that a
    computer-generated photo was shown to the eyewitnesses “in
    such a suggestive manner that there was little room to exclude
    him.” We must construe this pro se petition liberally. Ward v.
    Jenkins, 
    613 F.3d 692
    , 697 (7th Cir. 2010). But even giving
    McDowell the benefit of the doubt, this single sentence does
    not suffice to alert the court of the federal, constitutional nature
    of McDowell’s claim. McDowell did not reference either the
    Illinois or federal constitutions, cite any cases, or provide any
    facts on which the Illinois court could have evaluated his
    claim. Cf. Ward, 
    613 F.3d at 698
     (finding that a pro se habeas
    petitioner had fairly presented his ineffective assistance of
    counsel claim to the state courts where he cited the Sixth and
    Fourteenth Amendments, a leading Supreme Court case, a
    number of state cases involving constitutional analysis, and
    facts that placed his claim within the mainstream of
    constitutional analysis).
    12                                                    No. 12-2967
    Further, this single sentence appears within the discussion
    of McDowell’s probable cause claim. We have, at times, found
    a claim to be fairly presented where the only discussion of it
    appeared within the discussion of another claim. But in those
    cases, we have required that the nested claim be either (1)
    framed so it could stand on its own, were it presented in a
    different section of the post-conviction petition or (2)
    supported by “very substantial analysis” throughout the
    petition. Lewis, 
    390 F.3d at 1027
     (finding Brady claim not
    defaulted where, although it appeared within an ineffective
    assistance of counsel claim, the claim “did not advance a
    theory as to why [petitioner’s] attorney was ineffective for
    failing to raise this issue; it simply suggested that the evidence
    was improperly destroyed); Rittenhouse v. Battles, 
    263 F.3d 689
    ,
    696 (7th Cir. 2001) (finding challenge to jury instructions not
    defaulted where, although petitioner’s only discussion of the
    jury instructions came within an ineffective assistance of
    counsel argument, he presented the court with a “very
    substantial analysis” of alleged problems with the jury
    instructions).
    Usually, a finding that a habeas petitioner did not fairly
    present his claim to one level of the state courts would doom
    his quest for the writ. But in McDowell’s case, the district court
    found the suggestive identification claim was not procedurally
    defaulted because the Illinois appellate court addressed it on
    the merits. Where the last state court to consider the issue does
    not rely on a procedural bar, but instead addresses it on the
    merits, there is no procedural default. Pole v. Randolph, 
    750 F.3d 922
    , 937 (7th Cir. 2009). And the district court cited the Illinois
    appellate court’s statement that “McDowell’s allegation that
    No. 12-2967                                                    13
    the photographic identifications were suggestive was not
    supported by the record” as proof that the court addressed
    McDowell’s claim on the merits. McDowell, 
    2012 WL 2921512
    at *2.
    But this single statement by the Illinois court was
    embedded in its discussion of whether McDowell’s counsel
    was ineffective. The court did not address any of the federal
    constitutional law on the issue, nor reference the Due Process
    clause. It is not clear it addressed the merits of the suggestive
    identification claim as a federal, constitutional issue, rather
    than as a factual matter. All the Illinois court found was that
    McDowell’s claim of suggestiveness was not supported by the
    record. With no factual predicate, it could not have decided, on
    the merits, whether the arrays McDowell challenged were so
    suggestive that they denied him due process. Therefore, we
    find that McDowell procedurally defaulted any claim that the
    processes used to identify him as the perpetrator were unduly
    suggestive.
    It is true that a habeas petitioner can avoid procedural
    default if he can establish either cause and prejudice or that the
    court’s failure to consider the defaulted claim would result in
    a “fundamental miscarriage of justice.” Promotor v. Pollard, 
    628 F.3d 878
    , 885 (7th Cir. 2010). McDowell does not argue that he
    can establish cause and prejudice, so we will focus on the latter
    exception.
    The fundamental miscarriage of justice standard erects an
    extremely high bar for the habeas petitioner to clear. It applies
    only in the rare case where the petitioner can prove that he is
    actually innocent of the crime of which he has been convicted.
    14                                                  No. 12-2967
    Gomez v. Jaimet, 
    350 F.3d 673
    , 679 (7th Cir. 2003) (quoting
    Schlup v. Delo, 
    513 U.S. 298
    , 324 (1995)). Such proof must take
    the form of “new reliable evidence—whether it be exculpatory
    scientific evidence, trustworthy eyewitness accounts, or critical
    physical evidence—that was not presented at trial.” Schlup, 
    513 U.S. at 324
    . The petitioner must prove, based on this evidence,
    that it was more likely than not that no jury would have
    convicted him at trial were the new, exculpatory evidence
    available. 
    Id. at 327
    .
    McDowell did present new evidence with his habeas
    petition: an affidavit in which he stated that Detective Guevara
    framed him and a plethora of affidavits and transcripts that
    contain allegations of misconduct against Detective Guevara in
    other cases. This evidence, however, is insufficient to meet the
    actual innocence bar; adequate evidence is “documentary,
    biological (DNA), or other powerful evidence: perhaps some
    non-relative who placed him out of the city, with credit card
    slips, photographs, and phone logs to back up the claim.”
    Hayes v. Battaglia, 
    403 F.3d 935
    , 938 (7th Cir. 2005). Only such
    “powerful” evidence can establish that it is more likely than
    not that no jury would have convicted a habeas petitioner.
    McDowell’s affidavit is obviously self-serving and contains
    no indicia of reliability. Such “eleventh hour” affidavits,
    containing facts not alleged at trial and accompanied by no
    reasonable explanation for the delay are inherently suspect.
    Morales v. Johnson, 
    659 F.3d 588
    , 606 (7th Cir. 2011) (citing
    Herrera v. Collins, 
    506 U.S. 390
    , 423 (1993) (O’Connor, J.,
    concurring)). Further, none of the witnesses mentioned any
    irregularities in the identification procedures. McDowell’s
    argument essentially counters the evidence the State presented
    No. 12-2967                                                   15
    at trial with his own version of the events; this relatively weak
    evidence cannot excuse his procedural default. See Smith v.
    McKee, 
    598 F.3d 374
    , 388 (7th Cir. 2010).
    The voluminous evidence of Detective Guevara’s
    misfeasance in other cases similarly fails to establish that
    McDowell was actually innocent. Even if we believed all of the
    allegations, they remain collateral to McDowell’s case. While
    they may be able to establish that Detective Guevara
    intentionally induced erroneous identifications in other cases,
    they cannot definitively prove he did so in McDowell’s case.
    Rather than establishing McDowell’s innocence, they tend to
    impeach Guevara’s credibility. And latter-day impeachment
    evidence “seldom, if ever, make[s] a clear and convincing
    showing that no reasonable juror would have believed the
    heart of [the witness’s] account … .” Sawyer v. Whitley, 
    505 U.S. 333
    , 334 (1992).
    III. CONCLUSION
    Because McDowell procedurally defaulted his suggestive
    identification claims by failing to present them to each level of
    the Illinois state courts and cannot establish that a fundamental
    miscarriage of justice will occur if we do not review his claims,
    we decline to grant his petition for a writ of habeas corpus and
    AFFIRM the decision of the district court.