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United States ex rel Bolton v. Robert

August 19, 2010

UNITED STATES OF AMERICA EX REL. ANTHONY BOLTON, PETITIONER,
v.
BRADLEY J. ROBERT, WARDEN, MENARD CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Blanche M. Manning United States District Judge

MEMORANDUM AND ORDER

Petitioner Anthony Bolton's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the court. For the following reasons, Bolton's petition is denied.

I. Background

The court will presume that the state court's factual determinations are correct for the purposes of habeas review as Bolton has not provided clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The court thus adopts the state court's recitation of the facts, and will briefly summarize the key facts that are relevant to Bolton's § 2254 petition.

A. Procedural Posture

Bolton was convicted of first-degree murder on March 21, 1997. He was sentenced to a fifty-year term of imprisonment. On direct appeal, Bolton argued that the State failed to prove him guilty beyond a reasonable doubt, his counsel was ineffective for not joining in a stipulation between the State and his co-defendants regarding a pre-trial statement made by Marcus Flowers, and his sentence was excessive and based on an improper aggravating factor. On March 15, 1999, the Illinois Appellate Court rejected these claims and affirmed the trial court. Bolton did file a petition for leave to appeal ("PLA") with the Illinois Supreme Court.

On July 9, 1999, Bolton filed a state post-conviction petition asserting: (1) his right to due process was violated when the prosecutor failed to disclose the photographs of the lineup from which he was identified; (2) ineffective assistance of counsel based on his attorney's failure to move for a mistrial when the State could not produce lineup photos; and (3) he was innocent based on newly discovered evidence. The trial court dismissed the petition, and Bolton filed an appeal with the Illinois Appellate Court on December 4, 2007, which was denied on June 27, 2008. Bolton then filed a PLA containing the same three claims with the Illinois Supreme Court, which denied it on November 26, 2008.

In the meantime, on February 8, 2005, and while his state post-conviction proceedings were pending, Bolton filed a § 2254 petition with this court, asserting the three claims raised in his state post-conviction petition. On September 5, 2006 this court stayed proceedings pending completion of the state court proceedings. In 2009, this court concluded that Bolton had exhausted his state court remedies and thus lifted the stay.

B. Facts

On October 21, 1994, Bolton arrived at the London Town apartment complex in Chicago with co-defendants Raymond Clark and Shaparal Watts, as well as Marcus Flowers. Daccheus Birmingham and his passenger, Brandy Smith, drove into the complex. As Smith began to exit the car, she noticed someone standing behind it. The person was Bolton, who approached the car and fatally shot Birmingham because he thought he was a member of a rival gang. The witnesses at trial included Smith and Flowers, who were both present at the scene, and Hattie May Singleton, who viewed the shooting from a distance.

1. Brandy Smith

Smith testified that on October 21, 1994, she and Birmingham were driving to pick up Birmingham's friend. They had trouble locating his address, so Birmingham made the fateful decision to turn into the London Town apartment complex, but then left and drove to a gas station. The couple returned to the complex a short time later. Smith testified that as she started to exit the car in order to check the complex's address, she saw someone behind the car. Bolton ran up to the passenger side of the car, about seven feet away from the door, and said "we got some [Gangster Disciples] over here."

Smith looked directly at Bolton's face as soon as he pointed the gun in her direction. She yelled to Birmingham to put the car in reverse. He did, but the car became stuck on the curb. As Birmingham struggled to free the car, Bolton ran to the driver's side and shot into the car from approximately eight feet away. As bullets flew, Birmingham told Smith to get down. From the floor of the car, Smith saw Bolton from the chest up and heard bullets shatter the car window. Birmingham sped away until he lost consciousness and drove into a trashcan.

Smith identified Bolton in a lineup the following day. With respect to the lineup, Smith expressly denied that the police told her who to identify. She testified that she learned Bolton's name "[a]fter [she] identified him" and that "when [she] picked him out, they told [her] his name." However, between those two questions, she responded positively when asked if "they [told her] he is the guy that [they] think did the shooting . . . before [she] viewed the lineup."

The detective conducting the lineup asserted Smith was never told who to identify. The detective also testified that the lineup consisted of four people, each of whom was asked to turn with their right arm extended in a shooting stance. Photographs of the ...


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