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United States ex rel Nixon v. Wright

February 26, 2008

UNITED STATES OF AMERICA EX REL. BOBBY NIXON, PETITIONER,
v.
STEVE WRIGHT, RESPONDENT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Petitioner Bobby Nixon's ("Nixon") motion for reconsideration and request in the alternative for a certificate of appealability. For the reasons stated below, we deny the motion for reconsideration and deny the request for a certificate of appealability.

BACKGROUND

On March 25, 1998, a shooting occurred in Chicago Illinois ("Shooting"). According to eyewitnesses, a group of men drove by a corner in a car ("Car") and began shooting. The men then exited the Car, fired some more shots, re-entered the Car and fled. Nixon was arrested for alleged participation in the shooting and was tried in a bench trial in the Circuit Court of Cook County, Illinois. At trial, the court was presented with the grand jury testimony of Tarrill Peters ("Peters") and Salatheo Moss ("Moss"), who testified before the grand jury that Nixon was the shooter at the Shooting. Although Peters and Moss recanted their grand jury testimony, contending that Nixon was not the shooter, the trial court admitted into evidence their prior grand jury testimony. In addition, Reginald Duncan ("Duncan") testified at trial that Nixon was the shooter at the Shooting. Nixon was found guilty of first-degree murder, attempted murder, and aggravated battery and was subsequently sentenced to concurrent prison terms of fifty years for the murder, fifteen years for the attempted murder, and fifteen years for the aggravated battery. On June 25, 2002, Nixon's conviction and sentence were affirmed by the Illinois Appellate Court. Nixon's petition for leave to appeal to the Illinois Supreme Court was denied on October 2, 2002, and he failed to file a petition for writ of certiorari in the United States Supreme Court. Subsequently, Nixon filed a post-conviction petition in the Circuit Court of Cook County on November 27, 2002, which was dismissed. Nixon then moved for reconsideration, and the trial court rescinded its order of dismissal. The State filed a motion to dismiss Nixon's post-conviction petition, which was granted. Nixon also filed a state petition for post-judgment relief on the ground that Duncan's testimony was perjured, which was denied as untimely. Nixon appealed the dismissal of his post-conviction petition and post-judgment relief petition to the Illinois Appellate Court, which affirmed the dismissals on February 21, 2006. On May 24, 2006, the Illinois Supreme Court denied Nixon's petition for leave to appeal. Nixon filed the instant petition for a writ of habeas corpus ("Petition") on March 7, 2007, which we denied on August 22, 2007. Nixon now requests that the court reconsider the August 22, 2007, ruling and requests in the alternative a certificate of appealability.

LEGAL STANDARD

Federal Rule of Civil Procedure 59(e) ("Rule 59(e)") permits parties to file, within ten days of the entry of a judgment, a motion to alter or amend the judgment. Fed. R. Civ. P. 59(e). Rule 59(e) motions do not give a party the opportunity to rehash old arguments or to present new arguments or evidence "that could and should have been presented to the district court prior to the judgment." Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996)(citing LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)). Rather, for a Rule 59(e) motion, the movant "must clearly establish either a manifest error of law or fact or must present newly discovered evidence" in order to be successful. LB Credit Corp., 49 F.3d at 1267 (quoting Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)). The decision of whether to grant or deny a motion brought pursuant to Rule 59(e) "is entrusted to the sound judgment of the district court. . . ." In re Prince, 85 F.3d 314, 324 (7th Cir. 1996).

If a court denies a Section 2255 motion and the petitioner wishes to appeal that ruling, the petitioner must obtain a certificate of appealability. 28 U.S.C. § 2253(c). A court should only issue a certificate of appealability "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The petitioner must also show that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDonnell, 529 U.S. 473, 484 (2000)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

DISCUSSION

I. Testimony of Six Eyewitnesses

Nixon argues that the court erred in concluding that he had not shown ineffective assistance of counsel at trial due to the fact that his trial counsel failed to secure the testimony of six eyewitnesses that saw the Shooting and who told police that Nixon was not the shooter. Nixon contends that three of the eyewitnesses either worked or lived on the exact corner where the Shooting occurred and yet Nixon's counsel did not make sufficient effort to contact the eyewitnesses. In addition, Nixon argues that Jose Reyes ("Reyes") who lived across the street from the shooting and was one of the eyewitnesses, made a statement to the police describing the offenders and Car, and indicating that Nixon was not one of the men in the Car. Nixon claims that, although Reyes provided the police with his address and phone number, Nixon's trial counsel did not make sufficient effort to contact him. Nixon also contends that his trial counsel was not diligent in locating Mario Rayyes ("Rayyes"), another eyewitness, who not only indicated that Nixon was not involved in the shooting, but also named who he believed to be the shooter.

As we stated in our prior ruling, the decision concerning which witnesses to call at trial is a strategic one that is committed to the professional discretion of a defendant's attorney. See United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002)(stating that a "defense attorney is not obligated to track down each and every possible witness or to personally investigate every conceivable lead"); United States v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997)(stating that "[a] lawyer's decision to call or not to call a witness is a strategic decision generally not subject to review" and that "'[t]he Constitution does not oblige counsel to present each and every witness that is suggested to him'")(quoting in part United States v. Balzano, 916 F.2d 1273, 1294 (7th Cir. 1990)).

In regards to Rayyes, who named another shooter, the record indicates that Nixon's trial counsel made extensive efforts and employed several resources to locate Rayyes and secure his testimony. Nixon argues in the instant motion that the court misunderstood his argument in denying his Petition. Nixon contends that although his counsel made efforts to locate Rayyes before the trial, during the trial his counsel learned that Rayyes was in Washington, D.C. Nixon contends that a third party told Nixon's counsel that Rayyes was in Washington, D.C., but that he would not consent to come to Illinois to testify. Nixon contends that his trial counsel should not have accepted the word of the third party and instead should have asked for a recess and should have attempted to contact Rayyes to verify whether he was willing to come to Illinois. We do not agree that Nixon has shown that his trial counsel was ineffective in not seeking a recess of the trial to further search for Rayyes. Nixon's counsel made significant efforts prior to trial and could have had a variety of reasons for his actions, including that he may have reasonably concluded that the trial was proceeding in a favorable manner and that interrupting the trial to engage in a further search, which would have delayed the trial and could have proved fruitless, was not to the advantage of his client.

In regards to the other five eyewitnesses referenced in the Petition, Nixon argues that the witnesses could have been located through due diligence. However, the Illinois state courts reviewing Nixon's appeals and post-conviction petition concluded that there was insufficient evidence to show that Nixon's trial counsel was ineffective based upon his efforts to locate witnesses to the shooting. (Ex. G 24); (Ex. K 5); (Ex. Q 23). For example, the state court initially addressing Nixon's post-conviction petition properly concluded that there was insufficient evidence that indicated that the testimony of the six eyewitnesses would have altered the result in Nixon's trial. (Ex. K 5-6). Also, the Illinois Appellate court reviewing Nixon's post-conviction petition noted that the record indicated that Nixon had not provided his counsel with information to assist his counsel in locating exonerating witnesses. (Ex. Q 23). Nixon has not shown in his Petition or in his instant motion that the level of effort made by his trial counsel to locate the six eyewitness was such that his counsel failed to provide effective assistance of counsel. Also, in regards to the eyewitnesses referenced in the Petition, in light of the other evidence presented at the trial, Nixon has not shown that his case was prejudiced by the level of effort put forth by his counsel to locate the witnesses. See Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007)(stating that for an ineffective assistance of counsel claim a petitioner must show that "the deficient performance prejudiced the defense"). Thus, in regard to the efforts to procure the testimony of the six eyewitnesses, Nixon offers no new evidence or arguments and merely indicates his disagreement with the court's conclusion that the efforts of his counsel were sufficient under the law. Nixon has not shown that the court erred in concluding that Nixon had not shown ineffective assistance of counsel at trial. In addition, on this point Nixon has not made a substantial showing of the denial of a constitutional right and he has not shown that the arguments deserve further encouragement on appeal. Nor has Nixon pointed to sufficient facts or evidence that would warrant an evidentiary hearing concerning the six eyewitnesses. See 28 U.S.C. ยง 2254(e)(2)(explaining when a court must hold an evidentiary hearing such as if there are sufficient facts that "but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense"); see also Spreitzer v. Peters, 114 F.3d 1435, 1454 (7th Cir. 1997)(stating that the state courts need not have given a "full-fledged evidentiary hearing" in order to give ...


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