United States District Court, N.D. Illinois, Eastern Division
UNITED STATES OF AMERICA, ex rel. ANDREW WESLEY, Petitioner,
TARRY WILLIAMS, Warden, Stateville Correctional Center, Respondent.
OPINION AND ORDER
JOAN H. LEFKOW, District Judge.
Andrew Wesley, currently in the custody of Tarry Williams, warden of Stateville Correctional Center in Joliet, Illinois,  is serving a fifty-five-year prison sentence for first-degree murder based on a conviction in the Circuit Court of Cook County on August 7, 2006. (Dkt. 1.) Wesley has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he was denied the right to effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution. ( Id. ) For the reasons stated below, his petition is denied. The court certifies one issue for appeal.
I. Factual Background
The facts as summarized by the Illinois Appellate Court are as follows: On May 15, 2005, Leroy Graham and the victim, Malik Jones, began arguing over whether Jones could continue to sell marijuana at the parking lot of the Three Stooges liquor store. People v. Wesley, 888 N.E.2d 681, 682, 382 Ill.App.3d 588, 321 Ill.Dec. 162 (2008). While the two men argued, a group of people gathered around them. Id. Jones turned to walk away, and an African-American male wearing his hair in braids and a black "hoodie" sweatshirt stepped out of the crowd and shot Jones five to six times. Id. Jones died as a result of the gunshot wounds. Id.
Wesley was arrested for the murder of Jones on July 11, 2005, and Detective Patrick Golden interviewed him the following day. Id. Wesley initially told Golden that he was not friends with Graham and denied being at the Three Stooges liquor store when Jones was shot. Id. During a second interview with Golden, Wesley again denied having any knowledge about Jones's shooting. Id. Later, Deborah Johnson (Jones's significant other) and Gregory Jenkins identified Wesley as the shooter from a lineup. Id. During a third interview, Golden advised Wesley that "several individuals had identified him as the shooter." Id. (internal quotation marks omitted). At that point, Wesley admitted that his two prior statements had been false and that he had witnessed the argument between Graham and Jones on the day in question. Id.
Wesley stated that he was standing next to Graham before he, Wesley, went into the liquor store twice. Id. Wesley explained that after exiting the store the second time, he saw Johnson attempting to convince Jones to leave the crowd. Id. at 682-83. Then, an individual wearing a black sweatshirt emerged from the crowd, "raised his arm, produced a handgun, and shot [Jones] five to six times." Id. at 683 (internal quotation marks omitted). Wesley admitted telling individuals to leave the parking lot before the police arrived, denied that he shot Jones, and admitted that he wore his hair in braids at the time of the murder. Id.
Assistant State's Attorney Bryan Hofeld also interviewed Wesley. Id. Wesley told Hofeld that he had been at the Three Stooges liquor store when the shooting occurred but had been unable to ascertain the identity of the shooter. Id. When Hofeld asked Wesley why he would lie to the police about not being at the scene if he was not involved in the shooting, and why witnesses would identify Wesley as the shooter if he had not committed the crime, Wesley was unable to offer an explanation. Id.
II. Procedural History
A. Relevant Trial Proceedings
1. Voir Dire
During voir dire, a prospective juror, Keisha A., indicated that her relative had been murdered in a manner similar to Jones. People v. Wesley, No. 1-09-2322, 2011 WL 9740854, at *6 (Ill.App.Ct. Mar. 25, 2011); (dkt. 13-3 Exh. O at N-95.) The trial court then questioned her as to whether she could be fair and impartial in light of this experience, and Keisha A. responded that she could. Wesley, 2011 WL 9740854, at *6; (dkt. 13-3 Exh. O at N-96-97.) Later, Wesley's counsel questioned Keisha A. and asked her whether she could set her experience aside and judge the case on the facts and the law. Wesley, 2011 WL 9740854, at *6; (dkt. 13-4 Exh. P at N-114.) Keisha A. responded that she could not be sure. Wesley, 2011 WL 9740854, at *7; (dkt. 13-4 Exh. P at N-114.) Wesley's counsel then moved to strike Keisha A. for cause, but the trial court denied the request. Wesley, 2011 WL 9740854, at *7; (dkt. 13-4 Exh. P at N-115.) Wesley's counsel declined to use a peremptory challenge, and Keisha A. was seated on the jury. Wesley, 2011 WL 9740854, at *7. Defense counsel used only one peremptory challenge during jury selection. Id.
2. Trial Testimony
Johnson and Jenkins, both eyewitnesses who identified Wesley as the shooter from a lineup, testified at trial. Johnson testified that during Graham's argument with Jones, she heard Graham tell Wesley to "gun that [expletive] down." Wesley, 888 N.E.2d at 683 (alteration in original) (internal quotation marks omitted). Johnson then saw Wesley pull a gun from his waistband and shoot Jones six times. Id.
Jenkins acknowledged that after an arrest for possession of a controlled substance on May 28, 2005, he met with Detective Kevin Bor and Hofeld and signed a statement that he had witnessed Wesley shoot Jones six to seven times. Id. at 684. Jenkins testified, however, that his handwritten statement to police was not true and that he gave the police information regarding Jones's murder so that his charge for possession of a controlled substance would be dismissed. Id. The State was allowed to read Jenkins's prior statement to police into evidence. Id.
Demetrius Clair testified that he was present at the scene of Jones's murder and saw Wesley disappear into the crowd after Graham motioned towards Wesley with his hand. Id. at 683-84. Clair testified that he told Jones that Wesley was going to get a gun. Id. at 684. Clair then testified that he turned around, walked three steps, and heard four to five gunshots. Id.
Marcus Scott testified that after an arrest for drug conspiracy on September 14, 2005 he met with the police and Assistant State's Attorney Kim Ward and signed a statement that he saw Wesley come out of the liquor store and shoot Jones multiple times. Id. Scott's statement also asserted that Brandon Foster, who was Graham's "right hand man, " had approached Scott and said that three individuals had picked Wesley out of a lineup as the shooter and that "they better hope that [Graham] doe[sn't] find out" who identified Wesley. Id. at 685 (alterations in original) (internal quotation marks omitted); (dkt. 13-5 Exh. Q at P-186-87.) Scott admitted that he had testified to these same facts before the grand jury. Wesley, 888 N.E.2d at 684. At trial, however, Scott denied that he was present at the liquor store at the time of the shooting and testified that he gave his statement in order to have his drug conspiracy charges dismissed. Id. The State was allowed to read Scott's prior statement to police into evidence, with a limiting instruction directing the jury to consider the comments attributed to Foster only for the purpose of explaining Scott's interest or bias in recanting his prior identification of Wesley as the shooter. Id. at 684-86. Wesley's counsel neither objected to the testimony nor raised the issue in a post-trial motion. Id. at 685.
Both Golden and Hofeld recounted their interrogations of Wesley. Id. at 682-83. Golden testified that during his third interview with Wesley, he "advised [Wesley] that several individuals had identified him as the shooter." Id. at 682 (internal quotation marks omitted). Hofeld testified that he asked Wesley why people would identify him as the shooter if he had not committed the crime. Id. at 683. Wesley's trial counsel did not object to Golden's or Hofeld's testimony at trial or raise the issue in a post-trial motion. Id. at 685.
Following trial, Wesley was convicted of two counts of first-degree murder. Id. at 682. He was sentenced to a ...