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United States ex rel. Blackmon v. Hardy

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

July 16, 2014

UNITED STATES OF AMERICA ex rel. ERIC BLACKMON, Petitioner,
v.
MARCUS HARDY, Respondent.

MEMORANDUM OPINION AND ORDER

RONALD A. GUZMAN, District Judge.

In 2004, Eric Blackmon was convicted in state court of first degree murder and sentenced to sixty years in prison. He has filed a petition pursuant to 28 U.S.C. ยง 2254 to vacate his conviction and sentence. For the reasons set forth below, the Court denies the petition.

Facts

On July 4, 2002 at 4:30 p.m., a Chicago police officer found Tony Cox on the sidewalk near the intersection of Roosevelt and Pulaski, dying from four bullets wounds to the head. (Gov't Ex. A, People v. Blackmon, No. 1-05-1377, at 1 (Ill.App.Ct. Sept. 28, 2007).) Frencshun Reece, Lisa McDowell, and Richard Arrigo witnessed the shooting. ( Id. at 1-2.)

Reece said that she was stopped at the light at Roosevelt and Pulaski and saw four men, three black and one white, talking in front of a restaurant. (Gov't Ex. CC, Tr. at FF-72-73.) She then saw one of the black men shoot Cox (who was also black) and run off with the other black man. ( Id. at FF-74-75.) After the men took a few steps, however, the second man went back to Cox and shot him. ( Id. at FF-75-76.) The white man, Reece said, just stood by and watched the incident. ( Id. at FF-76-78.)

Later that day, Reece was shown an array that did not contain Blackmon's picture and chose three photos that she said resembled the shooters. (Gov't Ex. A, People v. Blackmon, No. 1-05-1377, at 2 (Ill.App.Ct. Sept. 28, 2007).) Two months later, the police showed Reece a second array that contained Blackmon's picture, and she identified him as the second shooter. ( Id. )

McDowell said she was stopped at the light at the intersection of Roosevelt and Pulaski and saw two black men shoot Cox. (Govt' Ex. CC, Tr. at FF-4-9.) She said the second shooter was about six feet tall, wore braids and was holding a dark-colored gun. ( Id. at FF-9.) At the end of August, the police showed McDowell a photo array that contained Blackmon's picture, and she identified him as the shooter with dark gun. ( Id. at FF-12-18.)

On September 5, 2002, both Reece and McDowell identified Blackmon as the second shooter from a lineup. ( Id. at FF-19-23, 84-86.)

When the police first spoke to Arrigo, who is white, he said that at 4:30 p.m. on July 4, 2002 he was starting to close his restaurant at 1143 S. Pulaski, when he saw Cox out front. (Gov't Ex. X, Common Law Record, Supplemental Answer to Discovery, Ex. G, 9/8/02 General Progress Report at C66.) Arrigo turned his back to lock the restaurant doors and heard two gun shots. ( Id. ) He turned around, saw a black man shoot Cox twice and then run away with another black man. ( Id. ) Arrigo said he did not recognize the shooters, did not hang around with Cox and had not called Cox that day. ( Id. ) Arrigo viewed a line up that included Blackmon but did not identify him or anyone else as a shooter. ( Id. )

The police discovered, however, that Arrigo had called Cox before the shooting, and right after it, called a notorious gang leader named Boonie Black (a/k/a George Davis). (Gov't Ex. X, Common Law Record, Investigation Time Line at C67-68; Gov't Ex. Y, Pet. Post-Conviction Relief, App. 7, 11/13/02 Progress Supplemental Narrative at 1.) When the police confronted Arrigo with this information, Arrigo said he had forgotten he had called Cox and had not set Cox up to be killed. (Gov't Ex. Y, Pet. Post-Conviction Relief, App. 7, 11/13/02 Progress Supplemental Narrative at 1.) Moreover, Arrigo said he had heard that Keno (a/k/a Michael Davis), who was Boonie's nephew, had been involved in the murder. ( Id. ) Arrigo also said he had been in prison at the same time as Boonie and that he and Boonie remained good friends. ( Id .; id., App. 1, Mem. Tony Cox Homicide.)

At trial, Reece admitted that none of the photos she chose from the array on the day of the murder resembled Blackmon. (Gov't Ex. A, People v. Blackmon, No. 1-05-1377, at 3 (Ill.App.Ct. Sept. 28, 2007.) She also she said she immediately identified Blackmon from the second array "because she noticed the same bone protrusion through the shirt, " and later because "he looked like Michael Jackson." ( Id. ) (quotation omitted). However, she admitted that she had not mentioned the bone protrusion or Michael Jackson to the police when she first described the shooters to them. ( Id. at 3-4.)

Selena Leavy, Blackmon's cousin, testified that she was with him on July 4, 2002 at a cookout not far from the murder scene, and that he did not leave the cookout at any time between 3:00 p.m. and 8:00 p.m. (Gov't Ex. EE, Tr. at HH-15-23, 26.) She admitted, however, that when she heard that Blackmon had been arrested for murder, she did not contact the police to tell them about the cookout and refused to speak to a police investigator when he called her. ( Id. at HH-27-28.)

Tomeka Wash, a friend of Blackmon's, also testified that he was at the cookout, and did not leave it at any time between 2:00 p.m. and 9:00 p.m. (Gov't Ex. DD, Tr. at A-60-65.)

Terrance Boyd testified that on the afternoon of July 4, 2002, he met Cox, who was with Eric Bridges and Boonie, near the corner of Roosevelt and Pulaski. ( Id. at A-3-6, A-21-22.) Cox told Boyd he needed to talk business with Bridges, so Boyd walked to a nearby alley. ( Id. at A-7-8.) Shortly after, Boyd heard gunshots, looked around the corner and saw Bridges shoot Cox. ( Id. at A-8-10.) Boyd did not see Arrigo or another shooter at the scene, and he did not tell anyone what he saw until July 16, 2004, when he was seeking leniency for a federal crime. ( Id. at A-17-18, 32-35.) The medical examiner testified that Tony Cox had four bullet wounds to his head, two on the right side and two on the left, each of which alone would have been fatal. (Gov't Ex. BB, Tr. at GG-8-22.) He also said that he recovered two bullets from Cox's head, "a small sized copper jacketed bullet" ...


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