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McKinley v. Harrington

United States District Court, N.D. Illinois, Eastern Division

March 31, 2014

BENARD McKINLEY, Petitioner,


JOHN J. THARP, Jr., District Judge.

Petitioner Benard McKinley, an inmate at the Menard Correctional Center in Illinois, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The State of Illinois, through respondent Rick Harrington, maintains that all but one of McKinley's grounds for relief are (1) raised in an untimely manner; (2) procedurally defaulted; or (3) not cognizable as grounds for federal habeas relief. McKinley contends that any procedural default is excused by a showing of cause and prejudice. For the reasons set forth below, the Court denies the petition in full and declines to issue a certificate of appealability.


On June 24, 2001, 23-year-old Abdo Serna-Ibarra was gunned down on his way to play soccer at Kosciuszko Park ("Koz" Park) in Chicago. Sixteen-year-old Benard McKinley, the petitioner, and a co-defendant were charged with the murder. McKinley was convicted after a jury trial and sentenced to consecutive 50-year terms-one for the murder and one for the deadly use of a firearm. McKinley appealed unsuccessfully and received no relief from the Illinois courts on his original and successive post-conviction petitions. He now petitions this Court for a writ of habeas corpus, arguing that his conviction and sentence violate the federal Constitution.

A. Trial[1]

The victim, Serna-Ibarra, was shot shortly after he and three friends-Hugo Moreno, Ociel Espinosa, and Adrian Roman-purchased a soccer ball and were walking to Koz Park to play. On the way to the store, they had a brief confrontation with a young black man; when they left the store, they were confronted by the same young black man they had seen earlier, this time accompanied by a group of young men, all of whom were Hispanic. One of them, Edward Chavera-ultimately McKinley's codefendant-and Serna-Ibarra argued and got into a fistfight. After Chavera fell off of his bike, he pulled a gun from his waistband, handed it to the young black male who had previously confronted Serna-Ibarra and his friends and yelled "Shoot him, Shoot him, " as Serna-Ibarra turned and fled. The friend shot Serna-Ibarra once in the back, and when the victim turned around and raised his hands, the shooter fired several more shots before running away. Benard McKinley was later identified as the shooter.

There was no physical evidence, such as the murder weapon, presented against McKinley at trial. The bulk of the evidence consisted of the testimony of the investigating police officers, forensic witnesses, and the four witnesses who identified McKinley as the shooter-the three friends of the victim present during the shooting and the confrontation that preceded it, and one resident of the neighborhood, Michael Thomas, who was familiar with McKinley and testified that he saw McKinley flee the scene with a revolver in his hand. The three friends testified that that they had picked McKinley out of a photo array; they and Thomas all picked McKinley from a live lineup the day after the shooting, and each of them also identified McKinley in court as the shooter. In his trial testimony, when asked if he had ever given the detective "a description of the shooter's hairstyle, " Adrian Roman stated, through a Spanish language interpreter, that the shooter's hair "was longer than [McKinley's at] the time when we viewed the lineup." Ex. DD at W-89.

One of the witnesses called by McKinley was his aunt, Alisa[2]Martin, who testified that overnight on June 24, 2001, Chicago police officers barged into her home, where McKinley occasionally stayed, and "ransacked" it. She further testified that she was shown a photograph of someone who was not McKinley and whom she did not know, and that officers removed a photograph of McKinley from her apartment.

During deliberations, the jury sent a note to the judge that asked: "Honorable Judge Wadas: The jury would like to know the evidence leading to the arrest of Benard McKinley? If possible may we have a copy of the transcript?". The judge discussed this note with the prosecutor and McKinley's defense lawyer, Gregg Smith, in chambers. Both sides agreed that the answer to the "first question" should be "you have the evidence." Mr. Smith suggested that the same answer be given "as to both questions, " after which the parties discussed the judge's discretion to allow the jury to view the trial transcript. The judge suggested asking: "What portion or portions of the transcript do you want?" After some further discussion about what testimony the jury might be referring to, the judge had McKinley brought into the courtroom and read the note again. He stated that his response to "question one" would be that the jury had all of the evidence on that issue and should continue to deliberate. Each side answer "No, Judge" when asked if there was an objection. The judge then said that he interpreted the second question "as a request for an entire transcript of the trial, " which the judge said was "not feasible although available." The judge stated that he would ask the jury if they wanted specific portions of the transcript. He did not have further colloquy on the subject.

In reply to the judge's answer, the jury sent additional notes, asking to see the testimony of Ramon, Espinosa, and Moreno-the three friends of the victim present at the shooting. The prosecution did not object, but McKinley argued that the jury should be instructed simply to continue deliberating. The judge overruled the objection and sent the jury the requested transcripts; as to Espinosa and Moreno, who testified twice, he sent only their testimony during the state's case in chief, concluding that the testimony in the defense case was only about the identification of McKinley's co-defendant. In a later note, the jury asked for transcript of Michael Thomas's testimony; over the defendant's objection, the judge gave the jury that transcript, too.

The jury returned a guilty verdict on the first-degree murder charge and a specific factual finding that during the commission of the offense, McKinley personally discharged a firearm that proximately caused the victim's death. After denying McKinley's motion for a new trial, the judge imposed two consecutive 50-year prison sentences. See 730 ILCS 5/5-5-8(a)(1) (first degree murder penalties); id. § 5-8-1(a)(1)(d)(iii)(mandatory firearm enhancement).

B. Direct Appeal

With the assistance of counsel, McKinley appealed his conviction and sentence. He challenged the trial court's handling of the jury's request for trial transcripts, the sufficiency of the witnesses' identification evidence, and the length of his sentence, particularly the judge's failure to give more mitigating weight to McKinley's age (16) at time of the crime. In a 20-page written decision, the Appellate Court rejected McKinley's arguments and affirmed the conviction and sentence.

McKinley then filed a petition for leave to appeal (PLA) to the Illinois Supreme Court. He raised two issues: "Whether the trial judge abused his discretion by answering a proposed jury question and providing the jury with transcripts not relevant to the question posed by the jury" and "Whether the 100 year sentence imposed by the trial court is excessive and an abuse of discretion by the trial court." The Supreme Court denied the PLA in a summary order.

C. State Post-conviction Proceedings

McKinley next filed a pro se petition for post-conviction relief. He raised at least 16 issues (with multiple sub-parts), including the state's withholding of exculpatory evidence[3]and his trial counsel's ineffective assistance on multiple fronts. The petition was summarily denied as frivolous and patently without merit under the Post-Conviction Hearing Act, see 725 ILCS 5/122-1. With the assistance of appointed counsel, McKinley appealed the denial of his post-conviction petition. His appeal raised only the issue of trial counsel's failure to introduce into evidence photographs of McKinley at his mother's wedding the day before the shooting, to impeach witnesses' testimony or statements during the investigation that McKinley's hair appeared shorter at the lineup than at the shooting.

The Appellate Court analyzed McKinley's argument under the standard of Strickland v. Washington, 466 U.S. 668 (1984). The Court first noted the discrepancy between the record and McKinley's claim that all four eyewitnesses had stated at some time that he had cut his hair; as McKinley conceded in his reply brief, only two witnesses had made statements to that effect, and only one at trial (Romon). The court further noted that McKinley's photographs were "dark and grainy" and made it impossible to determine his hair length or style. The court also explained that any discrepancy in the witnesses' statements about McKinley's hair suggested by the photograph would not have created reasonable doubt regarding the identity of the shooter because four witnesses made "strong, positive identifications." The eyewitnesses "had ample opportunity to view defendant and focus their attention on him" during two confrontations, and therefore the use of the photograph would not have made his conviction less likely. The court therefore affirmed based on the absence of prejudice. Through counsel, McKinley filed a PLA that was summarily denied.

McKinley later went on to seek leave to file a successive petition for post-conviction relief, the litigation of which overlapped with these proceedings, precipitating a stay. The circuit court denied McKinley's request to file the successive petition, addressing his claims in a written opinion. McKinley appealed, and the appellate court affirmed, holding that McKinley had not demonstrated the requisite "cause and prejudice" to excuse the untimely assertion of his most recent claims. The subsequent PLA was summarily denied.

D. Federal Habeas Proceedings

McKinley first filed a § 2254 petition on June 9, 2011, in which he raised five grounds for relief, the fifth of which he acknowledged had not yet been presented to the highest state court because it remained the subject of the successive post-conviction petition, the denial of which he had appealed to the state appellate court and was still pending. Briefly summarized, the five grounds for relief were: (1) insufficiency of evidence-specifically, the vague and unreliable eyewitness testimony at trial; (2) the trial court's "abuse of discretion" in responding to the jury's questions during deliberations; (3) excessive sentence; (4) ineffective assistance of trial counsel-specifically, the failure to present photographic evidence or cross-examination on the subject of petitioner's hair length at the time of the shooting; and (5) ineffective assistance of trial counsel-specifically, the failure to conduct adequate pre-trial investigation regarding the police search of the home of McKinley's aunt and move to suppress evidence illegally seized at that time.

The habeas proceedings were stayed pending the outcome of McKinley's successive petition for post-conviction relief. Order, Dkt. # 9 (Manning, J.). Despite the stay, McKinley filed a "First Amended Petition for Writ of Habeas Corpus" on November 17, 2011. It reprises the same five grounds for relief and adds a sixth: that the pre-trial photo array used to identify McKinley and the in-court testimony about it were impermissibly suggestive and indicative of "cross-racial misidentification." Finally, on April 18, 2013, McKinley filed a "Supplemental Petition for Writ of Habeas Corpus." This petition adds three new bases for the alleged ineffectiveness of trial counsel: (7) the failure to request a continuance of the trial to investigate exculpatory evidence improperly withheld by the prosecution; (8) the failure to call Officer Richard Hybl as a defense witness to contradict the testimony of others on the scene of the murder; and (9) the failure to allow petitioner to testify in his own defense despite petitioner's clearly expressed desire to testify.

Also on April 18, 2013, Petitioner moved to lift the stay, representing that he had exhausted all available appeals of the denial of his successive post-conviction petition in state court. This Court lifted the stay on May 3, 2013, and ordered the State to respond to the Amended and Supplemental petitions.

The State argues that all but one of McKinley's claims-that trial counsel was ineffective for failing to introduce into evidence the wedding photograph depicting McKinley's hair length-are procedurally defaulted or not cognizable as federal habeas claims. McKinley contends that his ineffective-assistance claims are all related and therefore none was defaulted, and further that the other defaults are excused. Finally, he contends that his trial counsel's failure to introduce the wedding photograph into evidence prejudiced his defense and was not a reasonable trial strategy.

In its briefing, the State refers to McKinley's claims by letter-A, B, C, D1, D2, D3, E, F1, F2, and F3, with the "D" and "F" claims all referring to various grounds for the ineffective-assistance claims that were raised in two waves. The State identifies one claim more than the Court, labeling as D1 and D3 two grounds for ineffective assistance that this Court previously described as one: McKinley's claim that counsel failed to introduce the wedding photograph showing McKinley's hair (D1) or cross-examine witness Michael Thomas about the length of McKinley's hair (D3). Because Mr. McKinley adopts the State's labels in his subsequent briefs, this Court will also use them in its opinion.


This Court can grant a state prisoner's petition for a writ of habeas corpus only on the ground that he is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In order for a writ to issue, the petitioner must show that the state adjudication resulted in a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A decision by a state court is "contrary to" clearly established federal law if it applies a rule different from that established by the Supreme Court, or reaches a different outcome than that of the Supreme Court on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002); McNary v. Lemke, 708 F.3d 905, 913 (7th Cir. 2013). A state court engages in an "unreasonable application of" federal law if it identifies the correct legal standard articulated by the Supreme Court, but applies it in an unreasonable manner. Williams v. Taylor, 529 U.S. 362, 407 (2000). The decision must be "objectively unreasonable, " and not simply incorrect or erroneous. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Under the statute, courts must give "full effect" to state judgments that are consistent ...

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