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United States of America, Ex Rel. Larry Owens v. Gerardo Acevedo

April 23, 2012

UNITED STATES OF AMERICA, EX REL. LARRY OWENS, PETITIONER,
v.
GERARDO ACEVEDO, WARDEN, HILL CORRECTIONAL CENTER RESPONDENT.



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

MEMORANDUM OPINION AND ORDER

At a bench trial on November 8, 2000, Petitioner Lawrence Owens ("Owens" or "Petitioner") was convicted of first degree murder for beating Ramon Nelson to death with a baseball bat outside a liquor store. Owens was sentenced to 25 years in prison. He challenged his conviction in an unsuccessful direct appeal and by way of a petition for post-conviction relief; his state remedies have been exhausted. In this action pursuant to 28 U.S.C. § 2254, Owens raises five grounds for relief: (1) due process violations for the delay in the state trial court's resolution of his post-conviction relief petition; (2) lack of probable cause for his arrest; (3) admission of improperly suggestive photo array and line-up evidence at trial; (4) the trial court's reliance on improper "extra-judicial" findings regarding Owens's motive, based on evidence not produced at trial; and (5) ineffective assistance of counsel for his trial counsel's failure to investigate Petitioner's alibi or call alibi witnesses to testify, and for denying Owens his right to testify on his own behalf. For the reasons explained here, the court denies the petition with respect to Claims 1-4, but concludes that Petitioner is entitled to an evidentiary hearing of limited scope on his ineffective assistance on counsel claims (Claim 5).

FACTUAL BACKGROUND

On habeas review, this court presumes the facts as found by the state court correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). The following facts are derived from the Illinois appellate court's order affirming Petitioner's conviction on direct appeal. (Order, People v. Owens, No. 1-01-0341 (Ill. App. 1st Dist. Dec. 4, 2002) (hereinafter, "Direct Appeal Order"), Ex. D to Resp't's Answer.)

I. Evidence at Trial

On the evening of September 22, 1999, sometime after 8:00 p.m., an assailant, later identified by eyewitnesses as Owens, attacked seventeen-year-old Ramon Nelson with a baseball bat outside a liquor store and lounge in Markham, Illinois, resulting in Nelson's death. (Id. at 5-7, 11-12, 14.) Maurice Johnnie, one of the two eyewitnesses who appeared at trial, testified that he was in the passenger's seat of his own car with two friends, parked about ten feet from the entrance to the liquor store and facing that direction. (Id. at 6.) It was not quite dark yet, and the front of the store was illuminated by streetlights and lights from the liquor store's front door. (Id.) Eventually, one friend entered the liquor store, leaving Johnnie and the other friend, Johnny Morgan, in the car. (Id.)

While Johnnie and Morgan waited in Johnnie's car outside the liquor store, Nelson approached the car on a bicycle and spoke to Morgan, who was seated on the driver's side. (Id.) Johnnie did not know Nelson. (Id.) After speaking to Morgan for three or five minutes, Nelson proceeded down the sidewalk, away from the passenger's side of the car, towards the entrance of the liquor store. (Id. at 6-7.) Johnnie then observed a man walking down the sidewalk in the opposite direction and toward Nelson. (Id. at 7.) Nelson attempted to turn his bicycle around, but the man caught up with him and hit Nelson on the head with a baseball bat. (Id.) Nelson fell from his bicycle into the doorway of the store, where the assailant hit him in the head a second time, forcefully and with both hands on the bat. (Id.) After the second hit, the attacker turned and walked back in the direction from which he had come. (Id.) Johnnie testified that he saw the attacker's face on his approach, but got his best look after the attacker had finished his assault. (Id. at 9.) Johnnie and Morgan then went to check on Nelson, found him unconscious and groaning, and, at Morgan's insistence, took him to the hospital in Johnnie's car. (Id. at 7.) Nelson died in the hospital the next day as a result of multiple skull fractures. (Id. at 14; Markham Police Department Case Report, Brief of Defendant-Appellant Lawrence Owens in People v. Owens, No. 1-01-0341 (hereinafter "Pet'r's Direct Appeal Brief"), Ex. A to Resp't's Answer, at A-7 to -8.)

The second eyewitness to testify at trial was William Evans. (Direct Appeal Order at 10.) Evans, who had a previous drug conviction and was in custody on another drug charge at the time of trial, acknowledged that he was testifying in return for a recommendation of probation. (Id. at 10-11.) Evans testified that he was on the same block as the liquor store, and that he spoke to Nelson, whom he knew from the neighborhood, for about a half hour before the attack. (Id. at 11.) After their conversation, Evans saw Nelson proceed toward the entrance of the liquor store on his bicycle. (Id.) At the time the attack began, Evans was retrieving a bucket at the northeast corner of the block in order to wash a car. (Id.) Evans was first made aware of the attack when he heard a sound like wood splitting. (Id. at 12.) Evans looked around the corner of the building and saw the assailant hitting Nelson with the bat. (Id.) While Evans did not know the assailant, he recognized the assailant as someone who had visited the liquor store and lounge in the past. (Id.) Evans hollered, "hey, what is going on," whereupon the assailant and another man ran off past him. (Id.) Following the attack, Evans went to see Nelson, and helped put Nelson into Johnnie's car. (Id. at 13.) Immediately after the incident, Evans briefly spoke with police officers, described the approximate height and weight of the two individuals, and informed them that he had recognized the assailant from the neighborhood. (Id.)

Johnnie did not speak with police officers on the night of the incident (id. at 8), and he gave a false name and address when he dropped Nelson off at the hospital. (Markham Police Department Case Report.) Responding officers at the scene of the crime learned the license plate number of the car that transported Nelson to the hospital, however, and Detective White was able to identify Johnnie from the vehicle's registration. (Id.) Detective White contacted Johnnie, who agreed to an interview at the Markham police station on September 28, 1999, a week after the incident. (Id.) Johnnie described the attacker as a large black male, approximately 6'2" to 6'4", weighing 220 to 240 pounds, and dressed in brown. (Direct Appeal Order at 8.) Detective White compiled a photo array based on Johnnie's description. (Id. at 9.) Johnnie selected Owens's photo from the array as the photo of the individual who attacked Nelson. Detective White testified at trial that he never said the assailant was in the array and never made any suggestive remarks regarding the array. (Id.)

Evans also viewed the photo array at the station on September 28, 1999, and also described the assailant as a large black male, dressed in brown or tan. (Id. at 3.) Detective White testified that Evans identified Owens as the person who attacked Nelson. (Id.) At trial, however, when asked by the prosecutor which photo in the array he had identified as the assailant's, Evans pointed to a photograph of a person other than Owens. (Id. at 12.) When given another opportunity by the prosecutor, Evans again failed to select Owens's photograph. (Id.)

Following the photo identifications, Detective White directed his fellow officers to be on the lookout for Owens. (Id. at 4.) No arrest warrant was issued, but Detective White informed Officer Mike Alexander on September 29, 1999, that Owens, also known as "Big O," was wanted in connection with a murder investigation. (Id.)

On October 26, 1999, Officer Alexander observed a blue Mercury Topaz speed by his unmarked squad car, traveling fifty miles per hour in a twenty-mile-per-hour zone. (Id. at 4.) According to Officer Alexander, the car did not stop when he activated his emergency lights and siren. (Id.) Instead, the Topaz accelerated through a stop sign and proceeded northbound, with Alexander in pursuit. (Id.) When the Topaz eventually pulled over, Owens exited the vehicle and ran northbound through a crosswalk. (Id.) Alexander gave chase and caught Owens a block and a half away. (Id.) At a hearing on Owens's unsuccessful motion to quash his arrest, Owens denied that he was speeding or that he ran a stop sign. (Id. at 2-3.) He claimed that he did not see the squad car until thirty seconds before he pulled over, and that he walked, not ran, from the car. (Id. at 3.) Owens did not deny, however, that he was driving the car. (Id.) Alexander placed Owens under arrest and transported him to the Markham police station when Owens could not produce a driver's license. (Id. at 4-5.)

On reaching the station, Alexander informed Detective White that Owens was in custody. (Id. at 5.) On October 27, 1999, witnesses Johnnie and Evans independently selected Owens out of a five-man lineup organized by Detective White. (Id.) Detective White acknowledged that Owens was the only man who appeared in both the lineup and the photo array, and Johnnie acknowledged at trial that Owens was the "biggest and bulkiest" of the people in the lineup. Johnnie asserted, however, that the identification was not based on height because everyone in the lineup was seated. (Id. at 8.) Prosecutors also showed Evans a photograph of the lineup at trial and asked Evans to pick out the individual he selected at the station. (Id. at 12.) Evans pointed out Owens in the lineup photograph after having failed to identify Owens as the person whom he had selected from the photo array. (Id.)

Following the witness testimony, the parties presented a series of stipulations regarding Nelson's cause of death, the fact that Nelson had forty bags of cocaine on him when attacked, and that a transcript of Evans's grand jury testimony was accurate. (Id. at 15.) After these stipulations, the state rested. (Id.) The court denied Owens's motion for a directed finding, and the defense rested without presenting any evidence. (Id.)

After closing arguments in Owens's bench trial, Judge Joseph Macellaio of the Circuit Court of Cook County stated:

After hearing this case, I think all of the witnesses skirted the real issue. The issue to me was you have a seventeen year old youth on a bike who is a drug dealer, who [Owens] knew he was a drug dealer. [Owens] wanted to knock him off. I think the State's evidence has proved that fact. Finding of guilty of murder. (Excerpt of Trial Tr., App. to Pet'r's Direct Appeal Brief, at A-4 to -5.) It is unclear from the record what evidence the judge considered in support of this finding. Certainly, there was evidence that Nelson dealt drugs-he had a significant quantity of cocaine in small bags on his person. There is also evidence that at least one of the prosecution's two witnesses was involved in the illegal drug trade. No other record evidence suggests that Owens knew Nelson was a drug dealer, however, or that Owens himself was involved in drug trade. The judge sentenced Petitioner to twenty-five years' imprisonment. (Id. at A-6.)

III. Post-conviction Affiant Testimony

In support of his ineffective assistance of counsel claims, Owens provides his own affidavits, and those of Tim Blackman, Sheila Minor, and his mother, Bertha Marie Owens. Owens has presented two sets of these affidavits. He filed the first set with the state court on September 11, 2003, in support of his pro se state petition for post-conviction relief. The affidavits in the second set were prepared on dates ranging from 2006 to 2009. It is not clear from the record what occasioned the second set of affidavits or whether counsel participated in preparation of any of the affidavits.

Owens claims that he is innocent of the crime for which he was convicted. (Aug. 26, 2003 Owens Aff. ¶ 2, Ex. A to Pet'r's Reply.) He further asserts that he repeatedly told his trial counsel, Frank Rago, that he was innocent, that he had an alibi, and that he had alibi witnesses (Blackman and Minor). (Id. ¶ 3.) According to Owens, Rago promised that he would investigate Owens's alibi and interview his alibi witnesses, and would call Owens and the alibi witnesses to testify on Owens's behalf. (Id. ¶ 4.) Despite these assurances, Owens contends, Rago failed to investigate or interview the alibi witnesses, and in fact forbade Owens from testifying on his own behalf. (Id.)*fn1

Owens explains that although he wanted to testify, Rago told him "not to worry, meaning that [Owens] would be acquitted." (Jan. 11, 2008 Owens Aff. ¶ 4.) Owens asserts that neither Rago nor Judge Macellaio explained that he had the right to testify or that the decision on whether to testify was Owens's alone. (Id. ¶¶ 5-6.) According to Owens, had he known this was his decision to make, he would have testified, and explained that he was innocent and had an alibi. (Id. ¶ 7.)

In his affidavit, Tim Blackman provides an account of his time with Owens on September 22-23, 1999. According to Blackman's account, at 2:30 p.m. on September 22, 1999, he and Owens were in front of Owens's house in Markham, Illinois when Sheila Minor drove by and asked them to help her assemble a dinette set later that evening. (July 18, 2003 Blackman Aff. ¶¶ 2-3, Ex. B to Pet'r's Reply.) Blackman and Petitioner met Minor at her father's house, down the street from Owens's home, at 6:15 p.m. (Id. ¶ 4.) From there, Minor gave Blackman and Owens a ride to Minor's home in Sauk Village, Illinois. (Id. ¶ 5.) They arrived at Minor's home at 7:20 p.m., assembled the dinette set, and then spent the remainder of the evening talking, eating, and watching television. (Id. ¶ 6.) Instead of heading back to Markham that evening, Blackman and the Owens spent the night at Minor's home, staying until 6:00 a.m. the following morning. (Id. ¶¶ 8, 9.) Blackman says that prior to trial, he assured Owens's mother that he would testify to these events, but Owens's attorney never contacted, interviewed, or asked Blackman to testify. (Id. ¶¶ 10, 11.)

Tim Blackman's second affidavit, prepared several years later, provides an account similar, though not identical, to the one set forth in his initial affidavit. According to that second affidavit, Blackman and Owens began their day at Blackman's home, not at Owens's home, and returned at 8:00 a.m., not 6:00 a.m., the ...


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