Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 C 2656-Matthew F. Kennelly, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
Before EASTERBROOK, Chief Judge, and RIPPLE and TINDER, Circuit Judges.
Efrain Morales was convicted by a jury in Illinois state court of one count of first-degree murder and two counts of attempted murder. His cumulative sentence was ninety years in prison. Morales filed two post-conviction petitions in Illinois state courts, but obtained no relief. He filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254, claiming, inter alia, that he was deprived of his constitutional right to effective assistance of trial counsel and that the prosecution knowingly obtained his conviction on the basis of perjured testimony. The district court held an evidentiary hearing and denied the petition, but granted a certificate of appealability on these two claims. Morales appealed, and we affirm.
On the evening of October 24, 1994, Charles Crawford, Jose Nevarro, and Billy Bradford were gunned down as they worked on Bradford's car in front of his home at 710 North Willard Court, Chicago, Illinois. Bradford was killed. Crawford and Nevarro survived their injuries. Efrain Morales and Mario Gonzalez were charged in connection with the shooting.
On May 13, 1996, Gonzalez pled guilty to first-degree murder and two counts of attempted murder in exchange for a forty-four-year sentence. In doing so, he stipulated under oath to the following facts: On October 24, 1994, he and Morales, members of the Milwaukee Kings gang, agreed to shoot some members of the Satan Disciples, a rival gang. They got into Gonzalez's car (which was painted with gray primer) and drove to the area near North Willard Court. They approached 710 North Willard Court on foot, saw three people (Bradford, Crawford, and Nevarro) working on a car and began shooting at them. After that, Gonzalez and Morales returned to the gray primer car, drove down another street, and looked down Willard Court; Gonzalez saw that three people lay shot in the street.
Morales's jury trial commenced on May 15, 1996. The state's evidence included eyewitness testimony from Crawford and Nevarro, identifying Morales as the second shooter; testimony of Morales's friend, Katrina Scimone, that Morales told her he was involved in the shooting and asked her to say she was with him that night; and physical evidence which confirmed that two gunmen were involved in the shooting. The trial testimony revealed the following:
On the evening of October 24, 1994, Crawford and Nevarro were helping Bradford work on his car, which was located in front of Bradford's house at 710 North Willard Court. Crawford had moved from Chicago to Oklahoma in about 1981 and was in Chicago visiting his son, who lived across the street from Bradford. Nevarro was dating Bradford's daughter. At one point, Bradford and Nevarro went inside Bradford's house to get some tools. Crawford stayed outside and observed two cars, a white Chevy and a gray primer Chevy, each containing three or four people, driving on Willard Court. Crawford recognized Gonzalez as the driver of the gray car and knew that he was a member of the Milwaukee Kings gang. As Gonzalez drove by, he "threw" a hostile gang sign at Crawford. Crawford recognized it because he was a former member of a rival gang, the Satan Disciples. Crawford had left that gang around 1981. Scared, Craw-ford hid in a nearby gangway until Bradford and Nevarro returned. He told them what had happened and the men continued working on the car.
Crawford testified that Nevarro yelled, "Look out," and Crawford looked up and saw Morales and Gonzalez walking across the street from the alley on the east side of Willard Court. Crawford knew them both; he had seen them several times before. He knew Gonzalez's name, but didn't know Morales's name. Both Gonzalez and Morales wore black "hoodies." Crawford looked straight at them and could see their faces. Gonzalez had a black automatic pistol, and Morales had a chrome revolver. Morales and Gonzalez started firing at Crawford, Bradford and Nevarro. Crawford was hit in the knee. Crawford saw the same white Chevy that had driven by earlier pull up and someone yelled, "Hurry up." Morales and Gonzalez stopped shooting and headed into the alley next to Bradford's house.
At approximately 10:45 p.m. that night, Dorothy Brad-ford heard gunshots coming from outside. She ran outside and saw that her husband was shot and lying on the ground. Bradford died from his injuries. As she held her dying husband, Dorothy saw a gray primer car being driven on nearby Huron Street. She had seen that same car "around and around and around" her neighborhood for weeks before. Morales and Gonzalez were usually the drivers. Dorothy knew Morales as "Shotgun" and identified him at trial.
Officers quickly arrived on the scene. They questioned Crawford, seeking a description of the assailants. Crawford reported that there were two shooters, Hispanic males who wore black hoodies. But other than that, he "didn't tell them nothing." He did not tell the officers that he recognized Morales and Gonzalez as the shooters because he was afraid for his own safety. Crawford told the officers that his name was "Charles Vega," also because of concerns for his safety. He was taken to an area hospital where he stayed for a few days. Detectives visited him at the hospital and showed him a photo array. Crawford picked out Gonzalez's picture, identifying him as one of the shooters. Crawford said that Gonzalez was a Milwaukee King. Crawford did not tell the detectives that Morales was a shooter; Crawford explained at trial that he didn't know Morales's name. Crawford arranged to meet with the detectives after being discharged from the hospital, but he never did. Instead, he returned to Oklahoma because he was scared and didn't want to have anything to do with the investigation. A few days before trial, Crawford, who had returned to Chicago under subpoena to testify, identified Morales in a photographic array. He also identified Morales in court.
Nevarro testified that he had been a member of the Satan Disciples but quit three to four years before trial. He had known Morales for at least nine years and knew he was a Milwaukee King nicknamed "Shotgun." Nevarro testified that after he and Bradford returned to the street from Bradford's house, Crawford was hiding in the gangway and looked like he had "seen a ghost." The three men started working on the car again and Nevarro heard a noise coming from the alley on the east side of Willard Court. He turned toward the alley and saw Morales and Gonzalez with guns. Nevarro also saw a third man who retreated back into the alley. Nevarro shouted, "Watch out," and Morales and Gonzalez began shooting. Nevarro testified that Morales was shooting a "big chrome revolver" and Gonzalez had a "black automatic." Nothing blocked Nevarro's view as the assailants came through the alley shooting, and a streetlight was right in front of Bradford's house. Nevarro testified that Morales and Gonzalez wore black hoodies. Nevarro was shot in the leg; Crawford and Bradford were also shot. Nevarro testified that right after the shooting, he looked toward Huron Street and saw a gray "jacked up kind of car" which he recognized as one he had seen in the neighborhood every day. He testified that it was often driven by Gonzalez, Morales, or another Milwaukee King Nevarro identified as "Adrian."
At the scene, Nevarro spoke to the officers very briefly, describing the gray, jacked-up car he had seen. He was uncooperative with the police, even attempting to walk away. He didn't give them either the names or descriptions of the shooters. Nevarro testified that he "wanted to take care of them [him]self," meaning that he was going to go back to his "street ways." He later realized that the "best way to deal with it" was to let the police handle it. While Nevarro was being treated at the hospital, two detectives asked him to come down to the police station and view a line-up. He agreed. Once he arrived at the station and saw the line-up, which included Gonzalez, he knew that Gonzalez was in custody. At that point, he identified Gonzalez as one of the shooters. Right after that, Nevarro viewed a photo array and identified Morales as the other shooter.
Katrina, Morales's friend, testified at trial about her relationship with Morales and interaction with him between the date of the shooting and subsequent to his arrest on November 15, 1994. Katrina had lived in Chicago and was familiar with the Milwaukee Kings gang, including one of its members, Shotgun, whom she identified as Morales. She had been a member of the Milwaukee Queens for approximately one week three years before. In October 1994, Katrina was friendly with Morales and was living with her father in the suburbs. Katrina testified at trial that Morales was not with her at all on October 24, 1994.
Katrina further testified that the afternoon of October 28, Morales telephoned her and said, "Katrina, I need to talk to you. That I need your help. That they were shooting. The MKs [Milwaukee Kings] are at war with the SDs [Satan Disciples] and a man got shot." Morales said that the "MKs were shooting at the SDs," he was there and that he was involved when they were shooting. He said that he needed to talk to her and she needed to come over to his sister's house. Morales told Katrina that the police were looking for him and had a warrant out for his arrest. Katrina testified that Morales asked her to say that she was with him on October 24 from 6:00 p.m. until 1:00 a.m. the next morning; that she and her father picked him up at 6:00 p.m., got to her house at 6:37 p.m., and then dropped him off at 1:00 a.m. He asked her to tell these things to the police if they came to talk to her. In addition, she testified that Morales asked her to say things to the police about their relationship-that she had been with him for one-and-a-half years, that she was his girlfriend, and they were engaged to be married, all of which she testified was untrue. Katrina also stated that Morales asked her to describe the way the rooms in her house were arranged and the color of the furniture for him, and she did so.
According to Katrina's testimony, on the evening of October 28, she went to Morales's sister's house with her father. She met with Morales, who essentially repeated what he told her earlier that day, and she agreed to help him. He stated that "I was shooting, me and the gang were shooting." She said he asked her to say that she was his girlfriend, his fiancee, or whatever and would marry him. He asked her to say he was at her house on the 24th from 6:30 or 7:00 p.m. until 1:00 a.m. in the morning, and that her dad picked him up and dropped him off. She stated that he went over the times that she was supposed to tell the police three times. At first she told him that she would help him, but was scared that she would be arrested or go to jail. Morales assured her that she wouldn't go to jail as long as she stuck to the story.
On November 15, 1994, an assistant state's attorney and detective came to Katrina's home. She spoke with them, advising that Morales wanted her to lie for him. She said that she did not lie to them, but told them what Morales had instructed her to say to the police.
Katrina testified that on November 19, Morales called her and said that he knew she did not tell the police what she said she was going to tell them, that is, what he told her to say. He called her a "bitch" and said he was mad because she didn't tell the police what she had agreed to say. Katrina stated that Morales seemed angry with her for not telling the police the lie that he had told her to say. He asked her to place a three-way telephone call to Ricky, the Chief of the Milwaukee Kings. She called Ricky's home. He wasn't there, so Morales spoke with Ricky's grandmother. Katrina heard Morales say that Ricky had to get in touch with the SDs [Satan Disciples] to tell Littleman, whom Katrina knew to be Nevarro, not to sign a statement or sign something against Morales. Katrina stated that Morales continued to telephone her several more times and was angry with her for not lying for him.
The physical evidence collected at the scene of the shooting tended to support the eyewitness testimony about the shooting. Officers discovered eight cartridge cases at the mouth of the alley south of 710 North Willard. They found two metal bullet fragments on the sidewalk in front of Bradford's house and two metal fragments on the street. The fragments indicated that two types of ammunition were used: one was soft lead, likely from a revolver; the other was copper-jacketed, "usually from an automatic." A forensics investigator testified that based on this evidence, two different weapons were used in the shooting. An October 24 search of Gonzalez's apartment led to the recovery of a loaded .9-millimeter semiautomatic handgun; forensic testing established that the weapon had fired the discharged cartridge cases found at the mouth of the alley. The police did not recover any other weapon used in the shooting.
The jury found Morales guilty of first-degree murder and two counts of attempted murder. He was sentenced to a sixty-year prison term for murder, consecutive to two concurrent ...