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United States ex rel McDowell v. Hardy

August 6, 2010

UNITED STATES OF AMERICA, EX REL. ANTONIO MCDOWELL PETITIONER,
v.
MARCUS HARDY, WARDEN RESPONDENT.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Petitioner Antonio McDowell was convicted of murder, attempted murder, and aggravated vehicular hijacking. (Tr. R. Vol. 1 at D173-76, Resp. Ex. 1.) This matter comes before the court on McDowell's Second Amended Petition for Writ of Habeas Corpus. (Doc. No. 60.)

I. BACKGROUND

McDowell was convicted of first degree murder, attempted murder, and aggravated vehicular hijacking after a bench trial in the Circuit Court of Cook County.*fn1

(Tr. R. Vol. 1 at D173-76.) According to the testimony at trial, McDowell shot and killed Mario Castro on December 21, 1996; while attempting to escape from the scene of the crime, McDowell shot at Alberto Varela and hijacked Ruth Morales-Santana's car. (See Tr. Trans. Vol. 1; Tr. Trans. Vol. 2, Resp. Ex. 2.)

McDowell's convictions were affirmed by the Illinois Appellate Court, and his petition to the Supreme Court of Illinois was denied. (Order of Ill. App. Ct., Resp. Ex. B; Order of Ill. Sup. Ct., Resp. Ex. C.) McDowell subsequently filed a petition for post-conviction relief, which the Circuit Court rejected. (Pet. for Post-Conviction Relief, Resp. Ex. E; Order of Ill. Cir. Ct. at A-3, Resp. Ex. G.) The Illinois Appellate Court upheld the Circuit Court's decision, and the Illinois Supreme Court denied McDowell's petition for leave to appeal. (Order of Ill. App. Ct., Resp. Ex. J; Order of Ill. Sup. Ct., Resp. Ex. K.)

Having exhausted his state court remedies, McDowell has filed a petition for writ of habeas corpus.*fn2 (Second Amend. Pet.) Count I of McDowell's habeas petition alleges ineffective assistance of counsel under the Sixth Amendment. (Id. at 2, 25-32.) Specifically, McDowell contends that his trial counsel did not:

(1) attempt to question the witnesses on the circumstances of their identification of McDowell, nor did he investigate Mr. McDowell's assertion that a picture was improperly shown to the witnesses before they identified him;

(2) adequately interview and present the sole defense witness or investigate any other witnesses who could support Mr. McDowell's alibi; [or]

(3) advise Mr. McDowell of the risks and benefits of testifying on his own behalf and did not afford him the opportunity to do so.

(Id. at 26-27.) In Count II of the petition, McDowell claims that his right to due process was violated by "the admission of witness identification testimony at trial that resulted from an unduly suggestive identification procedure." (Id. at 2, 33-36.)

II. ANALYSIS

A. Procedural Default

Respondent argues that "Petitioner's ineffective assistance . . . and suggestive identification claims are procedurally defaulted" because McDowell failed to raise them on direct appeal or in his post-conviction proceedings. (Answer. to Second Amend. Pet. at 18-28.) McDowell urges the court to find that the ineffective assistance and "suggestive identification claims" were included in his post-conviction petition, and are therefore not procedurally defaulted.*fn3 (Reply at 5-6, Doc. No. 66.) The court agrees with McDowell.

The court "cannot review a habeas petitioner's constitutional issue unless he has provided the state courts with an opportunity to resolve it 'by invoking one complete round of the state's established appellate review process,'" Byers v. Basinger, --- F.3d ---, 2010 WL 2696522, at *4 (7th Cir. 2010) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)), "either on direct appeal or post-conviction review," Gonzales v. Mize, 565 F.3d 373, 380 (7th Cir. 2009). "If the claim comes from the Illinois state courts, the petitioner must have presented each claim in the habeas petition to the Illinois Appellate Court and to the Illinois Supreme Court in a petition for discretionary review." Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010).

In order to have "fairly presented" an issue, "[t]he petitioner must have placed both the operative facts and the controlling legal principles before the state courts." Sturgeon v. Chandler, 552 F.3d 604, 610 (7th Cir. 2009) (quoting Chambers v. McCaughtry, 264 F.3d 732, 738 (7th Cir. 2001)). "A mere passing reference to a constitutional issue certainly does not suffice." Id. (quoting Chambers, 264 F.3d at 738). Rather, "[t]he argument must be placed in the petitioner's brief to the court; the 'requirement is not met if a judge must go outside the four corners of the document in order to understand the contention's nature and basis.'" Id. (quoting Lockheart v. Hulick, 443 F.3d 927, 929 (7th Cir. 2006)). That said, "a 'hypertechnical congruence' of the claims is not required between federal and state court for a claim to be fairly presented," Crockett v. Hulick, 542 F.3d 1183, 1192-93 (7th Cir. 2008) (quoting Anderson v. Benik, 471 F.3d 811, 814-15 (7th Cir. 2006)), nor is a habeas petitioner required to cite "'book and verse' of the Constitution," Lieberman v. Thomas, 505 F.3d 665, 670 (7th Cir. 2007) (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)). Instead, the court ...


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