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United States ex rel Blakemore v. Grounds

August 16, 2010

UNITED STATES OF AMERICA EX REL. LAMAR BLAKEMORE, PETITIONER,
v.
RANDY GROUNDS, ACTING WARDEN,*FN1 RESPONDENT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

In 2005, following a jury trial, Petitioner Lamar Blakemore was convicted of possession of a stolen motor vehicle (he was acquitted of the related charge of robbery). He was sentenced to a term of 17 years' imprisonment. Petitioner has now filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, arguing that his right to confrontation was violated by the court's ruling limiting his cross-examination of the state's key witness, and that he was denied a fair trial when the court tendered only the first of the two-day trial's transcripts to the jury. For the reasons set forth below, Blakemore's petition for habeas corpus relief is denied.

BACKGROUND

I. Factual Background

The state court's factual findings are presumed correct for the purpose of a federal habeas review unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). Clear and convincing evidence is that which shows a fact to be "highly probable." See United States v. Boos, 329 F.3d 907, 911 (7th Cir. 2003). In an apparent effort to meet that standard, Petitioner has submitted an affidavit with his petition for habeas corpus relief, in which he asserts that he never met the state's main witness, Theresa Black, until his trial, and that he never had possession of the vehicle in question. (Blakemore Aff. ¶ 1.) That affidavit, however, appears to have been prepared some time in 2008; there is no indication it was ever submitted to the state courts and therefore is not properly before this court on habeas review. See Bradshaw v. Richey, 546 U.S. 74, 79 (2005). No further argument or evidence of any kind is presented in support of these assertions. Accordingly, the factual account set forth below is drawn from the opinion of the Illinois Appellate Court on direct appeal People v. Blakemore, No. 1-05-1355 (1st Dist. Ill.App. 2007) (Order, Ex. D to Respondent's Answer (hereinafter "Resp's Ans").)

Chicago Police Officer Borum (his first name is not in the record) testified that on September 20, 2003, he received a telephone call about a woman found unresponsive in a brown Oldsmobile on the 3800 block of Michigan Avenue in Chicago, Illinois. (Id. at 6.) When questioned, the woman, who had been sleeping in the car, identified herself as Theresa Black (Id.) While conversing with Black, Officer Borum ran the license plate number of the Oldsmobile. (Id.) When the report came back indicating that the car had been stolen, Officer Borum transported Black to a nearby police station for further questioning. (Id.)

The state called Black to testify at Petitioner's trial. She recounted that on September 19, 2003, she was selling crack cocaine on the corner of 44th Street and Prairie Avenue in Chicago when Petitioner drove up in a beige car. (Id.) Petitioner told Black that his name was Gary and that he owned the car. (Id.) He showed her the vehicle's title as well. (Id.) When Petitioner asked Black if she knew anyone to whom he could pawn the car, Black responded with an offer of her own: twenty dollars' worth of crack cocaine in return for her renting the vehicle for one day. (Id.) Petitioner agreed to this proposal, Black testified, and told her to return the vehicle to him the next day at a service station at 47th Street and Michigan Avenue. (Id. at 4.) After she explained this series of events to police, Black testified, officers showed her a group of photographs and she identified Petitioner as the man who gave her the car. (Id.)

During cross-examination, Black admitted that her real name was Tanya Tilden and that on the occasion of her arrest she had given police the false name of Theresa Black. (Id.) Black confirmed that she had given other false information--including more than 20 false names--on the 79 other occasions that she had been arrested for various offenses. (Id.) She admitted that she had been arrested at least once for prostitution. (Id.) While the state appellate court's account of the evidence makes no mention of Black's prior criminal convictions, the trial record and the parties' briefs reveal that defense counsel thoroughly questioned Black about one of her earlier convictions, and Black had 27 other prior convictions that were not explored on cross-examination. (Def.'s Appeal Brief, Ex. A to Resp.'s Ans. at 32; State's Appeal Brief, Ex. B to Resp.'s Ans. at 8.)

Black admitted that she had used heroin earlier on the day that she received the car from Petitioner, though she denied being high at the time that she talked with police. (Id.) Black also confirmed that she had not been charged with selling crack cocaine in connection with her arrest, even though her account of the events on September 19 included an offer and exchange of cocaine for the use of the car. (Id.) Black further admitted on cross that she had been unable to identify Petitioner from a group of photographs that were presented to her by defense counsel before the trial. (Id.) Nevertheless, Black did identify Petitioner in court as the man who had given her the stolen car on September 19, 2003. (Id.)

The stolen car belonged to Kenneth Becker, who in September 2003 lived in an apartment on Chicago's north side. (Id. at 6.) At trial, Becker testified that on September 11 and 12, 2003, he had twice traveled to the lakefront near Wilson Avenue, where he had met a man who, Becker indicated, looked like Petitioner. Becker-who, this court infers, is elderly or disabled in some way-explained to the man that he was looking for a "caretaker" but could not afford to hire someone full-time. (Id.) Becker offered to pay the man a modest fee if he would move in with Becker and take care of him. (Id.) Following this exchange, the man returned with Becker to his apartment, where Becker introduced the man to the landlord, Betty Lowe. (Id.) The man lived with Becker for the rest of the week, and on several occasions throughout the week Becker did in fact pay the man twenty dollars. (Id.) Becker testified that he had previously hired men and women from Catholic Charities to care for him, but the man from the lakefront was the first caregiver he had ever met in the park. (Id. at 3.) Becker also explained that he owned a 1994 light-brown Oldsmobile, and that he had never given anyone permission to drive the car except when he was in the vehicle. (Id.)*fn2

At about 8:45 p.m. one evening near the end of the first week that the man from the park lived with Becker, Becker was assaulted in his bedroom. (Id.) Becker testified that as he entered his bedroom that night, a man approached him from behind and announced, "I'm going to tie you up." (d.) The man then forced Becker to lie face-down on the bed and threatened to kill him if he attempted to get up. (Id.) Although Becker could not see his assailant, he testified that he recognized the voice as belonging to the man that he had hired as his care provider. (Id.) Eventually, Becker was able to roll off the bed and into the living room, where he freed himself with a pair of scissors and proceeded to call the police. (Id.) The assailant had taken some cash as well as the keys to Becker's apartment and car. (Id. at 2-3.)

Police responded to the apartment and found Becker with his wrists swollen and his bedroom looking as if it had been ransacked. (Id. at 5.) When they discovered that Becker's vehicle was missing, they reported the car as stolen, using Becker's insurance card to get the vehicle identification number. (Id.) Officer Christopher Schenk testified that he interviewed Becker, who was sketchy about his companion's last name, but did tell Schenk that the name was something "like Brockmyer, Brockmeyer." (Id.) Chicago Police Detective Landgraff testified that he obtained the name "Lamar Blakemore" from a sign-in sheet in the lobby of Becker's building.

(Id.) At Landgraf's request, officers ran that name against a police database and found an image of Petitioner from an earlier police line-up. (Id.) The photograph showed Petitioner and several other men standing in the line-up. Landraff presented the photograph to Becker. Becker did not immediately recognize Petitioner, but, after Landgraf told him to take into account the possibility that a person might change his appearance, Becker did pick Petitioner out from the other men in the photograph. (Id.) Landgraf testified that Becker told him that Petitioner had shaved his head and beard. (Id.at 6.) Becker also identified Petitioner in court as the man who had lived with him. (Id. at 3.)

The defense presented several witnesses in its case, although Petitioner himself exercised his right not to testify. (Id. at 9.) Noel Zupancic, a criminal investigator, testified that when he interviewed Theresa Black, Black reported that the investigating officers had warned her "that they would have to charge her with the case if there was no identification made. She said that she was held in the police station for a couple of days and she did see a lineup and she did make an identification." (Id.) Zupancic further testified that he interviewed Black again on the first day of trial and showed Black the same group of photos that she ...


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