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Bailey v. Lemke

United States Court of Appeals, Seventh Circuit

November 15, 2013

Hernandez BAILEY, Petitioner-Appellant,
Michael LEMKE, Warden, Respondent-Appellee.

Argued Jan. 16, 2013.

Page 946

Richard H. Mcleese, Attorney, Chicago, IL, for Petitioner-Appellant.

Page 947

Lindsay Beyer Payne, Attorney, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before BAUER and HAMILTON, Circuit Judges and MILLER,[*] District Judge.

MILLER, District Judge.

An Illinois trial court convicted Hernandez Bailey of one count of murder and two counts of attempted murder. His trial counsel, William Swano, hadn't filed a discovery motion, so he (like the prosecutor through much of the prosecution's case) didn't know that one of the eyewitnesses had testified before a grand jury. Mr. Swano received a transcript of that grand jury testimony after the witness left the stand, and entered into a stipulation that the witness hadn't told the grand jury that Mr. Bailey was at the murder scene. Mr. Bailey contends that Mr. Swano's performance was constitutionally deficient and that he is entitled to a new trial under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). All of the courts to consider this claim so far agree that Mr. Swano's failure to file a discovery motion fell below prevailing professional norms, and the state doesn't question that finding in this court. We agree with the Illinois Appellate Court and the federal district court that Mr. Bailey hasn't shown a reasonable probability that the result of his trial would have differed but for Mr. Swano's error. We affirm the denial of Mr. Bailey's petition for relief under 28 U.S.C. ยง 2254(d).

Anthony Jackson was shot to death, and Brandon Adams and Anthony Camphor were shot but survived, during a gang fight in May 1987. Someone had thrown a brick at a group of people and fled. The three victims gave chase into a building, where rival gang members opened fire. Mr. Bailey and Darryl Moten were charged with the shootings. Mr. Moten was said to have been the actual shooter, and Mr. Bailey (known to the trial participants as " Peanut" ) was said to have directed Mr. Moten to shoot. Mr. Bailey waived his right to a jury, and the case proceeded to a trial to the court. Mr. Swano filed no pretrial discovery motion, but the state had given him a transcript of the grand jury proceedings that led to Mr. Bailey's indictment.

Victim Brandon Abrams testified at trial that he found a group of about ten people standing around the building, and asked them where the brick-thrower had gone. He testified that someone (he couldn't say who) shouted, " shoot them marks," and someone else he couldn't identify opened fire. Torrence Adams testified that he and Michael Thompson were at the building when they came upon a group of four Gangster Disciples, including Mr. Bailey and Mr. Moten. Others ran in, asking about the brick-thrower, Mr. Adams said, and Mr. Moten turned with a gun, Mr. Bailey yelled, " shoot," and Mr. Moten fired. Mr. Adams's identification of Mr. Bailey as the shouter wobbled a bit on cross-examination.

Michael Thompson, the next witness, agreed with Mr. Adams up to the point of identification: Mr. Thompson said he didn't see who fired the shots and didn't hear Mr. Bailey tell anyone to shoot. The State moved to have Mr. Thompson declared a hostile witness because of inconsistent statements he'd made to police a few days after the shooting. Officer Thomas Kelly testified that Mr. Thompson had told him that he heard Mr. Bailey say, " shoot him, shoot him," and saw Mr. Moten fire several shots at Anthony Jackson;

Page 948

Officer Kelly testified that he also heard Mr. Thompson say the same things to the prosecutor on the day of trial. During this process, it came to light that Mr. Thompson had testified before a pre-indictment John Doe grand jury (as had Mr. Adams). The prosecutor told the court she hadn't known about that testimony until Mr. Thompson mentioned it at trial. The trial judge adjourned the trial to allow the John Doe grand jury transcript to be obtained. The state gave attorney Swano a copy of that transcript before trial resumed.

Upon resumption of his direct examination, Mr. Thompson agreed that he had told the police (and later told the John Doe grand jury) he heard Mr. Bailey give the order and saw Mr. Moten shoot, and that he had identified Mr. Bailey in a lineup. On cross-examination, Mr. Thompson said that everything he said was untrue, that he had lied because the prosecutors promised him shelter in exchange for cooperation, and that he implicated Mr. Bailey out of a personal dislike.

The John Doe grand jury transcript showed that Mr. Adams hadn't mentioned Mr. Bailey's name to the grand jury. Mr. ...

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