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United States ex rel Mosby v. Dawson

November 15, 2010

UNITED STATES OF AMERICA EX REL. CARL MOSBY, PETITIONER,
v.
ALEX DAWSON, WARDEN, LOGAN CORRECTIONAL CENTER,*FN1 RESPONDENT.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Petitioner Carl Mosby, an inmate incarcerated at the Logan Correctional Center, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.§ 2254, claiming ineffective assistance of counsel. For the following reasons, the petition is denied.

BACKGROUND

The evidence presented at trial showed that, on the evening of July 16, 1994, petitioner was loitering on a Chicago street corner with about ten other people. At around 10:15 p.m., a car carrying four young men approached the corner and turned left. Some of the men in petitioner's group flashed gang signs, and one of the men shouted, "there them n*****s go right there." Petitioner stepped into the middle of the street, gun in hand, and fired multiple rounds at the car, shattering its rear window and shooting one of its passengers, who died later at a hospital.

Three eyewitnesses, all residents of third-floor apartments overlooking an alley near the corner where the shooting had occurred, testified at trial. Maria Diaz testified that, just before the shooting, she heard yelling on the street below her open bedroom window. She looked out on the street below, which was illuminated by two streetlights, and saw petitioner standing in the middle of the street firing a shot at the victim's car. Maria told her mother, Florence, what she had seen, and as another shot rang out, the two of them looked out the window and observed petitioner and another man, Martin Donaldson, walking toward an alley, which was also illuminated by a streetlight. Maria recognized both men, whom she had frequently seen in or near her apartment building. She later identified petitioner and Donaldson in separate police lineups.

John Toro, the third eyewitness, testified that after hearing gunshots, he went to his window (which overlooked the alley) and saw petitioner, shirtless, walking briskly into the alley with Donaldson. He heard petitioner tell Donaldson, "nobody f***s with me." Petitioner then stopped walking and handed Donaldson a gun wrapped in a t-shirt. Toro stated that before the shooting, he had seen petitioner around the neighborhood, often in that alley. Toro later identified petitioner and Donaldson in separate police lineups.

After a jury trial in the Circuit Court of Cook County, Illinois, during which petitioner was represented by Assistant Public Defender Anthony Eben, petitioner was convicted of first degree murder and sentenced to 50 years' imprisonment. People v. Mosby, No. 94 CR 20210-1.

Petitioner appealed, and the Illinois Appellate Court affirmed his conviction. People v. Mosby, No. 1-97-4545 (Ill. App. Ct. May 7, 1999) (unpublished order pursuant to Illinois Supreme Court Rule 23). Petitioner filed a petition for leave to appeal ("PLA"), which the Illinois Supreme Court summarily denied. People v. Mosby, No. 87792 (Ill. Oct. 6, 1999).

On March 21, 2000, petitioner filed a pro se post-conviction petition pursuant to 725 ILCS 5/122-1 et seq., arguing (among other things) that trial counsel was ineffective for failing to investigate and present an alibi defense based on the accounts of three witnesses petitioner had suggested to him. Citing petitioner's failure to raise the claim on direct appeal, the post-conviction trial court dismissed the PLA.

The Illinois Appellate Court reversed and remanded for an evidentiary hearing on the issue of trial counsel's alleged ineffective assistance. People v. Mosby, No. 1-00-2472 (Ill. App. Ct. 2001) (unpublished order pursuant to Illinois Supreme Court Rule 23). On November 6, 2003, petitioner filed a counseled amended post-conviction petition. That petition reiterated petitioner's argument that trial counsel was ineffective for failing to investigate petitioner's alibi defense, and introduced a new ineffective assistance theory based on counsel's failure to present evidence that petitioner, a member of the Gangster Disciples street gang, had been framed by members of the rival Black P Stones gang (including Martin Donaldson) for the murder, which petitioner alleged was actually committed by Kurt McKinzey ("the McKinzey theory").

On February 28, 2005, the post-conviction trial court held an evidentiary hearing, at which petitioner called two witnesses: his mother, Carol Tinsley, and his trial cousel. Tinsley testified that she had told petitioner's trial counsel about a rumor that McKinzey, who allegedly resembled petitioner, actually committed the offense. On cross-examination, she further testified that petitioner's trial counsel told her he believed McKinzey committed the offense. Petitioner's trial counsel testified that he could not recall making such a statement, nor could he recall whether he and petitioner had ever discussed the McKinzey theory. His testimony also established that he made reasoned, strategic decisions to pursue a trial strategy of casting reasonable doubt on the state's evidence, and that his work on petitioner's case was diligent and active, both before and during the trial.

The post-conviction trial court determined that counsel was not ineffective and denied the petition on March 9, 2005. The court found that trial counsel's strategy was reasonable and that, because no evidence presented showed that McKinzey was the actual shooter, there was no reasonable probability that if counsel had pursued that theory, he would have discovered exonerating evidence.

Petitioner appealed, and the Illinois Appellate Court affirmed. People v. Mosby, No. 1-05-0909 (Ill. App. Ct. Nov. 21, 2007). In so doing, the Appellate Court explained that petitioner had failed to overcome the Strickland presumption that his trial counsel's reasonable doubt defense was a reasonable trial strategy. Petitioner filed a PLA, which the Illinois Supreme Court denied. People v. Mosby, No. 106115 (Ill. May 29, 2008).

On March 9, 2009, petitioner filed the instant petition for a writ of habeas corpus. Petitioner raises only one claim: that trial counsel was ineffective for failing to investigate the theory that petitioner was framed by members of a ...


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