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Bishop v. Lemke

United States District Court, Seventh Circuit

December 12, 2013

WILLIE BISHOP, Petitioner,
v.
MICHAEL LEMKE, Warden, Stateville Correctional Center, Respondent.

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge.

This case comes before the Court on the petition for a writ of habeas corpus filed by petitioner Willie Bishop ("Bishop") pursuant to 28 U.S.C. ยง 2254 ("Section 2254"). For the reasons stated below, the Court denies the petition and declines to issue a certificate of appealability.

BACKGROUND

After a jury trial in the Circuit Court of Cook County, Illinois, Bishop was convicted of first degree murder and sentenced to forty years in prison. Bishop is currently incarcerated at the Stateville Correctional Center in Joliet, Illinois, where he is in the custody of the warden of that facility, Defendant Michael Lemke ("Lemke").

Bishop directly appealed his conviction, and on February 9, 2005, the Illinois Appellate Court affirmed his conviction. Bishop unsuccessfully petitioned for rehearing. Bishop filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court, asserting: (i) the trial court had erred in denying his severance motion; (ii) the trial court had improperly restricted petitioner's cross-examination of Tyrice Jones ("Jones"); and (iii) Bishop had been denied a fair trial due to the admission of evidence about his "retaliation" tattoo. On September 29, 2005, the Illinois Supreme Court denied Bishop's PLA. On February 21, 2006, the United States Supreme Court denied Bishop's petition for a writ of certiorari.

On March 20, 2006, Bishop filed a pro se post-conviction petition which was superseded by an amended, counseled post-conviction petition on November 15, 2007. Bishop argued in his amended petition that: (i) he had been denied a fair trial due to the denial of his severance motion; (ii) he had been denied a fair trial due to the admission of evidence about his "retaliation" tattoo; (iii) he had been denied a fair trial due to testimony regarding the May 4th shooting; (iv) he had been denied a fair trial due to testimony regarding his gang affiliation; (v) his trial counsel had been ineffective for having failed to present an alibi defense through Samantha Crump ("Crump"); (vi) his trial counsel had been ineffective for having failed to move to suppress Jones's out-of-court identification of Bishop; (vii) the trial court had improperly restricted cross-examination of Jones; and (viii) the trial court had erred in instructing the jury on the evaluation of eyewitness testimony. The trial court dismissed all but one of Bishop's claims-it ordered an evidentiary hearing on Bishop's claim that trial counsel was ineffective for failing to present an alibi defense through Crump.

At the evidentiary hearing, Bishop testified that on the night of the murder, June 26, 1998, he had been with his girlfriend, Crump, at the apartment they shared together. On June 28, 1998, Bishop learned that police were looking for him in connection with the murder and left for Bloomington, Illinois. He was arrested in October 1999. Crump did not testify at the hearing because she was incarcerated in Wisconsin for first degree murder, but she did submit an affidavit that stated she had been present at Bishop's trial, but had not been called as a witness. The former Assistant State's Attorney on the case testified that Bishop's trial counsel had told him that he was going to call Crump as an alibi witness, but once the trial began, Crump was unable to be located at the various addresses given by Bishop to the authorities. Bishop's trial counsel testified that he remembered Bishop's having informed him that he wanted to use Crump as an alibi witness and that he had investigated her to determine if she could be a viable alibi witness. He testified that he had spoken with Crump in court about being an alibi witness and that he had taken down her contact information, but had been unable to locate her at the time of trial. Bishop then testified that Crump had been present at his trial and that his counsel had never told him that he had been unable to locate her.

After the hearing, the court held that Bishop failed to establish that his trial counsel's performance had been deficient or that Bishop had been prejudiced by the failure to call Crump. The court found that Bishop's representation did not fall below an objective standard of reasonableness because Bishop's trial counsel had challenged the identification of the sole eyewitness in the case, and Bishop could not establish prejudice. Post-conviction relief was denied. Bishop appealed, claiming: (i) his trial counsel had been ineffective for having failed to call Crump; and (ii) post-conviction counsel had provided unreasonable assistance for having failed to amend Bishop's post-conviction petition to include a claim that appellate counsel had been ineffective for not having raised certain claims on direct appeal. The Illinois Appellate Court affirmed, and Bishop filed a petition for rehearing. The Illinois Appellate Court issued a modified opinion on denial of rehearing. Bishop filed a PLA in the Illinois Supreme Court again claiming that: (i) trial counsel had been ineffective forhaving failed to call Crump; and (ii) post-conviction counsel had provided unreasonable assistance for having failed to allege a claim of ineffective assistance of appellate counsel. On May 30, 2012, the Illinois Supreme Court denied Bishop's PLA. Bishop did not file a writ of certiorari with the United States Supreme Court.

On March 23, 2007, Bishop filed his first federal habeas petition pursuant to Section 2254. However, since Bishop's post-conviction petition remained pending in the state trial court, it was dismissed without prejudice by this Court for failure to exhaust state remedies. After fully exhausting his state remedies, Bishop timely filed this federal habeas petition on May 5, 2013 pursuant to Section 2254.

DISCUSSION

Bishop raises eight arguments in his habeas petition: (i) trial counsel was ineffective for failing to present Crump's testimony ("Claim One"); (ii) Bishop was denied a fair trial due to the denial of his severance motion ("Claim Two"); (iii) Bishop was denied a fair trial because the trial court admitted evidence about his "retaliation" tattoo ("Claim Three"); (iv) Bishop was denied a fair trial because of the admission of evidence about the May 4th shooting ("Claim Four"); (v) Bishop was denied a fair trial due to the testimony about his gang affiliation ("Claim Five"); (vi) Bishop was denied due process and his confrontation right when he was denied leave to cross-examine Jones about certain arrests and convictions ("Claim Six"); (vii) Bishop was denied a fair trial because the trial court failed to properly instruct the jury as to the evaluation of eyewitness testimony ("Claim Seven"); and (viii) Bishop's appellate counsel on direct appeal was ineffective for failing to raise Claims Two, Three, Four, Five and Seven before the Illinois Appellate Court and the Illinois Supreme Court ("Claim Eight").

I. Claim One-Ineffective Assistance of Trial Counsel

In Claim One, Bishop argues that his trial counsel was ineffective for failing to present Crump's testimony as an alibi defense in violation of Strickland v. Washington, 466 U.S. 668 (1984). Bishop fully presented this claim in his state post-conviction petition and appeal. After the post-conviction evidentiary hearing, the Illinois Appellate Court rejected his argument on the merits, finding that Bishop could not satisfy either prong of Strickland. Irrespective of the trial court's findings at the post-conviction evidentiary hearing, Bishop states in his habeas petition that trial counsel's failure to call Crump was objectively unreasonable because he claims Crump was available to testify, contrary to the assertions of Bishop's trial counsel and state investigators that they were unable to locate Crump during the trial. He claims his trial counsel should have subpoenaed Crump's appearance or asked for a continuance. Lemke relies on the Illinois Appellate Court's conclusion that Bishop failed to satisfy either prong of Strickland when presenting his arguments at the evidentiary hearing to refute Claim One.

Bishop must demonstrate that the Illinois Appellate Court's adjudication of this claim was an unreasonable application of Strickland. Under Strickland, to establish an ineffective assistance of counsel claim, Bishop must show that: (i) his counsel's performance fell below an objective standard of reasonableness; and (ii) he suffered substantial prejudice as a result. See 466 U.S. at 674. With regard to the first prong, the Illinois Appellate Court concluded that Bishop had failed to meet the performance prong because his trial counsel had spoken with Crump as a possible alibi witness, but both defense and state investigators had been unable to locate her. Also, the Illinois Appellate Court found that Bishop's trial counsel had presented a challenging defense by questioning the identification of the sole eyewitness in the case, therefore reiterating that Bishop's trial counsel had not performed deficiently. The Illinois Appellate Court found that Bishop had failed to meet his burden of establishing substantial prejudice under the second prong of Strickland because the eyewitness testimony against Bishop at trial had been strong, and Crump's credibility as a witness would have most certainly been attacked when impeached.

Upon review of the record, this Court holds that Bishop has failed to establish that the Illinois Appellate Court's rejection of his claim of ineffective assistance of trial counsel was an unreasonable application of Strickland. The record reflects that Bishop's trial counsel did interview and identify Crump as a possible alibi witness to the state before the trial commenced. During the post-conviction hearing on this claim, it was clearly determined that there had been multiple attempts to locate Crump to testify as an alibi witness, but the defense investigators, as well as state investigators, had been unable to locate her. There is no evidence that a continuance would have been effective because Crump's whereabouts were unknown at that point in time. Also, even if a subpoena had been issued mandating Crump's presence, this Court acknowledges that a trial counsel's tactical decision not to present an alibi witness does not fall below an objective standard for reasonableness. See Mosley v. Atchison, 689 ...


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