The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge
MEMORANDUM OPINION AND ORDER
On March 28, 2008, Walter Russell filed a petition for a writ of habeas corpus seeking to vacate his 2004 conviction for first degree murder and attempted murder. Russell is presently incarcerated at Menard Correctional Center, where Donald Gaetz is the warden.*fn1 He raises six claims for relief: 1) that the state appellate courts denied him a "rational" and "non-arbitrary" review of his conviction by refusing to review the merits of his appeal under a standard consistent and uniform with similar cases; 2) that he was denied due process and a fair trial when the trial court incorrectly instructed the jury on how to analyze witness identification by inserting the conjunction "or" between each of the factors the jury was supposed to weigh; 3) that he was denied due process and a fair trial when evidence obtained through an illegal seizure was introduced to the jury; 4) that he was denied due process and a fair trial when evidence obtained form an overly suggestive lineup was introduced to the jury; 5) that he was denied due process and a fair trial when the trial court gave a jury instruction on accountability when there was insufficient evidence to support a theory that he acted as an accomplice; and 6) that the evidence was insufficient to support his conviction. For the reasons explained below, I deny Mr. Russell's petition.
Because factual determinations made by state courts are presumed to be correct for the purpose of federal habeas petitions, Miller-El v. Cockrell, 537 U.S. 322, 324 (2003), I base my account of the material facts on People v. Russell, No. 1-04-0853 (Ill.App.Ct., Nov. 30, 2006) ("Russell"), Exh. D to Respondent's Answer, in which the Illinois Appellate Court---the highest state court to decide Mr. Russell's claims on the merits---upheld his conviction and sentence. Where helpful, I also include undisputed facts gleaned from my review of the record. Because Mr. Russell asserts, among other grounds for relief, that the trial court violated his rights under the Constitution by failing to suppress certain evidence during pre-trial proceedings, and that the evidence presented at his trial was insufficient to support his conviction, a summary of each of these proceedings is in order. First, however, an overview of the underlying events:
In the early morning of July 19, 2000, in Riverdale, Illinois, petitioner's parked van was struck by an SUV (this accident is sometimes referred to as the "first accident"), which was driven by Raashawn Langford ("Raashawn"). Also in the SUV at the time were passengers Shivone Langford ("Shivone"), who was seated in the front passenger seat, Aletra Slack, seated behind Shivone, and Reginald Tracy, seated behind Raashawn. The four were leaving the home of their friend, Towanda Washington. The SUV fled the scene after hitting the van, and the van gave chase, shooting at the SUV. During the chase, Slack was shot in the head. She later died from the gunshot wound. The chase ended when the SUV crashed into a tree. Following this crash (sometimes, the "second accident,") the van drove up alongside the SUV, then drove off.
Gregory Craig, a friend of Russell's and a passenger in his van at the time of the first accident, was detained and held for three days by the Riverdale Police Department. During this time, he provided a statement identifying Russell as the driver of the van. On July 20, a detective went to Russell's mother's home and told her the police were looking for Russell. Subsequently, Samuel Adam, Jr., contacted the Riverdale police and told them he was Mr. Russell's attorney and that he would bring Russell to the station for questioning. The following day, Adam and Russell went to the Riverdale Police Department, where Russell was arrested, processed, and booked upon his arrival. Several hours later, Russell was subjected to a police lineup and was identified by several eyewitnesses to the events surrounding the two car accidents of July 19. On August 1, 2000, Russell was indicted for the murder of Slack and the attempted murders of Raashawn, Shivone, and Tracy.
B. Motion to Suppress Identification
Prior to his trial, Mr. Russell moved to suppress his identification on the grounds that he was denied his right to counsel and that the lineup was unconstitutionally suggestive.*fn2 Russell argued that the lineup was unduly suggestive because he was physically distinct from the other participants. Russell asserted that at five feet, eleven inches tall and weighing 270 pounds, he was physically different from the other lineup participants. Russell further claimed the lineup was suggestive based on the fact that one of the police officers told him, while the lineup was being observed by a witness, to raise the number he was holding closer to his chin. Russell argued that this singled him out among the lineup participants.
At the suppression hearing, the court heard testimony from seven witnesses, including three witnesses who identified Russell in the lineup, three police officers who conducted the lineup, and Russell himself. None of the witnesses who identified Russell testified that they recalled seeing any of the lineup participants move his number. One of the witnesses said that all of the men were holding their numbers in the same way, another said they were all holding their numbers toward the center of their bodies, and the third said she could not recall whether any of the participants had moved. Russell testified that at least two or three other participants were "about" his size.
The court also considered a group photograph of the lineup participants that was taken by the Riverdale police either just before or just after the lineup. The record reflects that three of the other participants were six feet tall, one was five-foot-ten, and another was six-foot-five, and that one participant weighed 205 pounds, two weighed 215 pounds, one weighed 220 pounds, and one weighed 330 pounds. The record also reveals that the participants were seated on a bench during the lineup.
After considering the parties' evidence and arguments, the court denied the motion to suppress. The court found that the lineup was not unduly suggestive, relying heavily on the photograph of the participants and on the testimony of the witnesses. Observing the photograph, the court stated, "I see six male blacks. I would say except for one that might be a smaller build, I would say five of those six are substantial height and weight." Exh. A to Respondent's Answer at OO-63. The court also noted that the testimony of various witnesses was consistent, and concluded that defendant had not met his burden of demonstrating that the lineup was "suggestive, unfair, illegal, or unconstitutional." Id. at OO-65.
Russell moved to reconsider the court's denial of his motion based on the newly obtained, stipulated testimony of Samuel Thomas, another participant in the lineup. According to the stipulation, Thomas would have testified that he heard a police officer tell Mr. Russell during the lineup to hold his number up. The court considered this additional testimony but declined to reconsider its earlier ruling. The court noted that there was conflicting testimony as to whether Russell was, in fact, told to move his number while witnesses were viewing the lineup, but reasoned that "[e]ven if I believe that happened...the Put your number up conversation, I think it's an unobvious inference or leap of logic to say that that clearly would be a suggestive fact of this --- of the totality of this lineup." Exh. A to Resp.'s Ans. at TT-23.
At trial, the state presented the testimony of eleven witnesses: Bruce Fairfield, Aletra Slack's stepfather; Mitra Kalekar, a Cook County Medical Examiner; Gregory Craig; LaShanda Robinson; Towanda Washington; Reginald Tracy; Shivone Langford; Raashawn Langford; Lynne Russell, Walter Russell's mother; Detective Darrell Shaw, of the Chicago Police Department; and Detective Peter Satriano, of the Riverdale Police Department. The defense called two witnesses, Stella Bailey and Samuel Adam, Jr. Because the Illinois Appellate Court found only the testimony of the state's eyewitnesses--Craig, Robinson, Washington, Tracy, Shivone and Raashawn--relevant to Russell's appeal, I focus on that testimony below.
Gregory Craig testified that he and Russell had been friends for a number of years, and that the two had been drinking together on the night of Slack's death. They were joined at some point by Craig's girlfriend, Robyn Reynolds, and a woman named LaShanda. While Russell's van was parked outside Reynolds's house, with Russell in the driver's seat and Craig in the passenger's seat, a silver SUV backed into the front passenger side door of the van. Russell got out to inspect the damage, and when the SUV drove off, Russell yelled at Craig to hand him his pistol. Craig testified that Russell then reached into a glovebox on the floor of the van between the two front seats and pulled out a black, nine millimeter pistol. Russell pointed the pistol at the SUV, then drove off after it, with Craig still in the passenger's seat. At some point, the SUV turned back in the opposite direction because fire trucks were blocking the street, and the van followed. As the vehicles were changing course, Craig told Russell he wanted to get out to get the SUV's license plate number, then jumped out the side door.
The van drove off, and Craig later heard shots fired from what sounded like a nearby area.
Craig then returned to Reynolds's house, where he met up with Reynolds, Robinson, and another woman from across the street. About twenty minutes later, Russell pulled up in his brother's gray Monte Carlo, told Craig, Reynolds, and LaShanda that the SUV he was chasing had hit a tree, and asked whether they wanted to see it. The group then drove towards 128th and Halsted in the Monte Carlo. At some point, Russell got out of the car to speak to a man named Steve Green, who was in another car. Russell returned to the car he was driving, then dropped off LaShanda and Reynolds. Russell and Craig then retrieved Russell's van from Russell's grandmother's house.
LaShanda Robinson testified that Russell and Craig picked her up at her house on July 18, 2000 and went to Robyn Reynolds's house. When they arrived, Craig exited the van and Robinson remained inside, talking to Russell. At that point, Russell took a black gun out of the glove compartment and showed it to her, then returned the gun to the glovebox. Robinson then got out of the van, and Craig got back in. Robinson saw a truck from across the street back into the van. Russell then got out of his van to inspect the damage. Robinson testified that she believed Russell asked Craig for his gun at that point. Russell got back into the van and followed the SUV as it drove off. The two vehicles then drove back past where Robinson and Reynolds were standing, and Robinson later heard gunshots.
Robinson began walking down the street with Reynolds and Towanda Washington, a neighbor from across the street. They met up with Craig, and Washington later left the group with a man named Steve Green. While Craig, Robinson, and Reynolds stood on the street, Russell drove up in a gray car and asked if they wanted to see the crash. Craig, Robinson, and Reynolds all got into the grey car. Robinson testified that she asked Russell whether he had shot anyone, and he said no. At some point, Russell got out of the car and had a conversation with Steve Green. He then returned to the car, and the group proceeded to Russell's house on Dearborn to pick up Russell's van. Russell then dropped Robinson and Reynolds off at a recreation center near Robinson's home.
Towanda Washington testified that on July 18, 2000 she was home with friends including Slack, Tracy, Shivone and Raashawn. As Raashawn's SUV backed out of her driveway carrying these friends, it hit an Astro van parked across the street. Washington identified Russell in court as the person she heard say in a "mad voice" that somebody had hit his van and to get his gun. Washington said she saw a male pass Russell a gun. Both vehicles drove off, then came back in the other direction. Washington began walking down the street with Robinson and Reynolds, where they met up with Craig. Washington later got into a car with Steve Green and rode with him until Green stopped the car to have a conversation with Russell. Washington asked Russell what had happened "on 120th street," and Russell told her it was "just an accident." Green dropped Washington off at 120th and Halsted, where she saw friends who told her that Slack had been shot in the head.
Reginald Tracy testified that he was in the back seat of Raashawn's SUV with his girlfriend, Aletra Slack, when the SUV backed into an Astro van parked across the street. As Raashawn drove away, the van chased them, ultimately towards 138th and Halsted Street. As they drove along Halsted, one gunshot hit Aletra in the head. The van continued to chase the SUV, and Tracy heard about twelve more gunshots. The SUV crashed into a tree at 120th Street and Wentworth. After the crash, the van briefly drove up, then drove away. Tracy pulled Slack out of the SUV and on to the sidewalk, then called for help.
Shivone Langford testified that as Raashawn, Tracy, Slack and she were pulling out of Washington's driveway in Raashawn's SUV, Raashawn hit an Astro van that was parked across the street. Raashawn opened the door of the SUV but did not get out, then he pulled away. The van they hit followed them, and when they got to around 138th and Halsted, she heard one gunshot followed by about fifteen more. At 120th and Wentworth, the SUV crashed into a tree. After the crash, Shivone got out of the SUV and saw the van pull up along side of her, where she was able to see the driver. In court, Shivone identified Russell as the driver of the van.
Raashawn testified that as he was backing out of Washington's driveway in his SUV, he collided with a van parked behind him. Raashawn saw the driver of the van get out to look at the damage, then saw the passenger in the van raise his hand with a gun and put it on the dashboard. Raashawn then drove off to get away, and the van followed him. Raashawn later saw the passenger of the van get out through the sliding door. When the SUV got to Halsted Street, a shot was fired through the back of the SUV, and that more shots followed. Raashawn testified that he attempted to drive to a hospital, since Slack had been shot in the head, but at 120th and Wentworth, he slid on wet pavement and crashed into a tree. Raashawn testified that he saw two men drive past in the van after he hit the tree, but that he was not able to identify them.
Although the Illinois Appellate Court did not include the testimony of the defense witnesses in its summary of the evidence presented, I briefly note the thrust of their testimony. Samuel Adam testified about bringing Russell to the Riverdale Police station on July 21, 2002, and about the circumstances of Russell's arrest and participation in the police lineup. Stella Bailey testified that she lived in a house at the corner of 120th Street and Wentworth, and that at about 1:00 am on July 19, 2000, she was awakened by the sound of a loud crash. She looked out her front window and saw that an SUV had crashed into a tree. Bailey said that she saw the occupants of the SUV pull someone out of the vehicle and onto the sidewalk. The SUV's occupants then got back into the SUV and sped away, hitting Bailey's parked car on the way. Bailey stated that she did not see any other vehicles drive past before the SUV sped away.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant a state prisoner habeas relief unless the decision of the highest state court to adjudicate the petitioner's claims on the merits, "(1) 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 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Smiley v. Thurmer, 542 F.3d 574, at 580 (7th Cir. 2008) (citing 28 U.S.C. § 2254(d)). Only errors of federal law may support a writ of habeas corpus under § 2254; errors of state law are not grounds for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991). Moreover, the state court's application of federal law "'must be shown to be not only erroneous, but objectively unreasonable.'" Waddington v. Sarausad, 129 S.Ct. 823, 831 (2009) (quoting Middleton v. McNeil, 541 U.S. 433, 436, (2004) (per curiam) (internal quotations omitted)).
In addition, before a state prisoner may have his or her claims adjudicated in a federal habeas petition, the prisoner must exhaust his or her state court remedies. 28 U.S.C. § 2254(b). This means, among other things, that the prisoner must have presented his or her federal claims consistently throughout "one complete round of the State's established appellate review process," before a federal court may review the merits of the claims. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). "[F]or a constitutional claim to be fairly presented to a state court, both the operative facts and the 'controlling legal principles' must be submitted to that court." Verdin v. O'Leary, 972 F.2d 1467, 1474 (quoting Picard v. Connor, 404 U.S. 270, 277 (1971).
Even if a state prisoner fairly presented a constitutional claim throughout his or her state proceedings, if the state courts resolved the claim under state law, a federal habeas court is without authority to overturn the state court judgment. "When the last state court to issue an opinion on a petitioner's federal claim has resolved that claim on an adequate and independent state ground, federal habeas review of the claim is foreclosed." Miranda v. Leibach, 394 F.3d 984 (citing Lambrix v. Singletary, 520 U.S. 518, 523 (1997)(collecting cases)). In short, a federal claim is procedurally defaulted under § 2254 unless it was both fairly presented throughout the state proceedings and resolved on the basis of federal law.
Russell's first claim---that the Illinois Supreme Court arbitrarily declined to review the Illinois Appellate Court's decision denying his appeal--does not entitle him to habeas relief under AEDPA. The underlying substantive claim that Russell argues was arbitrarily denied review is his claim---also asserted separately as an independent basis for habeas relief--that he was denied due process when the trial court incorrectly instructed the jury on how it should weigh witness testimony. As I discuss in the next section, the Illinois Appellate Court resolved this claim on the merits.
The Illinois Supreme Court is a court with a discretionary power of review, ILCS S.Ct. Rule 315. Where it declines to exercise its discretionary power to review a lower court decision, its reasons for doing so have no bearing on a habeas petitioner's right to relief, since federal courts simply look through the denial of review to the decision of the highest state court to have adjudicated the petitioner's claims on the merits. Stevens v. McBride 489 F.3d 883, 902 n. 2 (7th Cir. 2007) ("For purposes of our review under AEDPA, the operative state-court decision 'is that of the last state court to address the claim on the merits.'" (quoting Garth v. Davis, 470 F.3d 702, 710 (7th Cir. 2006); McFowler v. Jaimet, 349 F.3d 436, 446 (7th Cir. 2003) ("The relevant decision, for purposes of [review under AEDPA], is the decision of the last state court to rule on the merits of the petitioner's claim."); see also Cone v. Bell,---S.Ct.---, 2009 WL 1118709 at *16 n. 1 (Alito, J., concurring in part and dissenting in part) (citing Baldwin v. Reese, 541 U.S. 27, 30-32 (2004) and O'Sullivan v. Boerckel, 526 U.S. 838, 842-43 (1999). Because ...