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Bowen v. Hammers

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

January 3, 2017

MAURICE BOWEN (B32050), Petitioner,
v.
JUSTIN HAMMERS, Warden, Illinois River Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         This matter is before the Court on Petitioner Maurice Bowen's petition [1] for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims that his trial counsel provided ineffective assistance by failing to investigate and present the testimony of four alleged alibi witnesses. For the reasons set forth below, the Court denies Petitioner's habeas corpus petition and declines to issue a certificate of appealability.

         I. Background

         A. State Court Proceedings

         1. Criminal Trial

         On April 24, 1996, following a bench trial in the Circuit Court of Cook County, Petitioner was found guilty of first degree murder and unlawful use of a weapon by a felon in connection with the February 28, 1993 shooting and death of thirteen-year-old James Nance. The trial court sentenced Petitioner to sixty years of imprisonment.

         At trial, the State presented the testimony of Lamont Brown and Detective Cliff Gehrke. Brown, an admitted gang member, testified that he was outside of his apartment on the afternoon of February 28, 1993 when he saw a Blue Malibu drive by twice. [11-24 Exhibit Y, at D-10]; see also People v. Bowen, 699 N.E.2d 1117, 1118 (Ill.App.Ct. 1998). Brown identified the men in the car as Bam, Ricardo, and Maurice, who were members of a rival gang called the Black Disciples. Brown had known these men for “a couple of years.” [11-24 Exhibit Y, at D-7-8.] He testified that they looked at him while the car was stopped at a stop sign and then drove away. According to Brown, he went inside his apartment to play with his niece, and from the window of his room, he could see Nance standing outside. He testified that he then saw Maurice get out of the Malibu and shoot Nance. [Id. at D-13-14.] However, Brown denied that the Petitioner, who was present in the courtroom during the trial, was the same Maurice as the shooter. [Id. at D-8, D-13, D-36.] Rather, Brown explained that he knew Petitioner Maurice Bowen as “Reese” and said that he did not see Maurice the shooter in the courtroom. [Id. at D-8, D-19, D-36.] Brown claimed that he knew two people named Maurice who were both in the Black Disciples gang but that he did not know either of their last names. [Id. at D-37, D-38, D-42.]

         Brown testified that he spoke with Detective Gehrke but denied being shown any photographs. [Id. at D-18.] Brown admitted attending a lineup and identifying Petitioner. However, he testified that he did not identify Petitioner as the shooter, but rather identified him as being a member of the Black Disciples. [Id. at D-20.] Brown further admitted to signing a handwritten statement prepared by an Assistant State's Attorney summarizing what Brown witnessed and identifying “Maurice” as the shooter. [Id. at D-22-23.] According to Brown, when he told a detective that Petitioner was not the shooter, the detective warned him that if he “didn't say it was him they was [sic] going to-I would never see-only way I see my family is behind the glass and they'd drop some of my cases and they'll drop some of my juvenile cases[.]” [Id. at D-41-42.] Brown admitted to being in jail in the days preceding his testimony at trial but denied that Petitioner made faces at him and stared at him while he was in a holding cell and denied telling the prosecutor and her law clerk that Petitioner “had all of his buddies look at [his] face so they could remember [him] if [he] identified him.” [Id. at D-43.]

         The defense impeached Brown by presenting his criminal record and history of delinquency. Brown had an adult conviction for aggravated discharge of a firearm and two adjudications of delinquency for possession of a controlled substance and criminal sexual assault.

         The State then presented the testimony of Detective Gehrke. Detective Gehrke testified that he interviewed Brown and that Brown said he witnessed the shooting and gave the names of the offenders. Detective Gehrke stated that he then showed Brown five or six photos, and Brown identified Petitioner as the shooter and they both signed the back of the photo. [Id. at D-51.] Detective Gehrke further testified that Brown signed a handwritten statement identifying “Maurice” as the shooter and identified Petitioner as the shooter in a lineup. [Id. at D-54, D-56- 57.]

         The parties stipulated that a few days before trial, Brown was in a holding cell at Cook County Jail, across from the elevator used to transfer prisoners. Petitioner and other inmates walked by and stood in front of Brown's holding cell for approximately one minute while waiting for the elevator. [Id. at D-88-89.] The parties further stipulated that a law clerk from the State's Attorney's Office would state, if she were called to testify, that she was present for a conversation between two Assistant State's Attorneys and Brown in which Brown refused to talk to the Assistant State's Attorneys and explained that Petitioner and “all of his buddies” looked at him in the holding cell so that they could remember his face. [Id. at D-89]; see also Bowen, 699 N.E.2d at 1119-20.

         After the prosecution rested, the defense moved for a directed verdict, arguing that Brown's testimony was unreliable. [Id. at D-90-93.] The court denied this motion. [Id. at D-94.] The defense then called three witnesses to impeach Brown: Brown's sister, Vanessa Brown; his mother, Ruth Brown; and his ex-girlfriend, April Johnson. Petitioner's defense at trial consisted predominantly of testimony impeaching Brown. Brown had testified that Vanessa was across the street at the time of the shooting and that he had looked out the window because she called to him. [11-24 Exhibit Y, at D-33-34.] However, Vanessa testified that she did not call out to anyone prior to the shooting. [Id. at D-99.] Additionally, Brown had testified that his window was covered by black plastic and a wooden board but that the board covered only the top of the window. [Id. at D-31-32.] Vanessa testified that the window was covered by plastic and that the entire window was covered by a board. She explained that the board was nailed to the window area at the top and bottom, but the sides were not attached, so you could not stick your head out the window, but you could pull the board back a little bit to look out. [Id. at D-99- 101.]

         Brown's mother, Ruth, testified that Brown was at home the day of the shooting but that he left the apartment prior to the shooting. [Id. at D-115-16.] However, she also stated that she never went to the police to tell them that Brown was not home at the time of the shooting. [Id. at D-123.] She admitted that she had been drinking beer with her daughter, husband, and two friends the evening of the shooting and had not been keeping track of Brown's comings and goings into the apartment. [Id. at D-120-121.] Ruth also testified that the plastic covered the bottom part of the window but that “[t]he board covers the whole top. The board is all over that window.” [Id. at D-124.]

         The defense also presented the testimony of April Johnson, who was Brown's girlfriend at the time of the shooting. Johnson testified that she was coming home from a party with Vanessa and two other friends at the time of the shooting and that she did not hear anyone call out to Brown prior to the shooting. [Id. at D-134-35.] When asked if she spoke with Detective Gehrke and another detective about the incident, Johnson stated that she recalled speaking with someone but did not know the names of the people she spoke with. She testified that she did not remember telling them that she saw a dark car come down the street or that the offender exited the car and shot the victim. [Id. at D-139.]

         At the conclusion of the bench trial, the state trial court judge found Petitioner guilty of first degree murder and unlawful use of a weapon by a felon.

         2. Direct Appeal

         On direct appeal, Petitioner argued that (1) the admission of prior inconsistent and unsworn statements as substantive evidence of identification was a denial of his right to due process, (2) the evidence failed to prove the shooter's identity, (3) the court's consideration of his demeanor was reversible error because Petitioner had not testified at trial, and (4) his sixty-year sentence was an abuse of discretion. The Illinois Appellate Court affirmed the trial court on August 14, 1998. On December 2, 1998, the Illinois Supreme Court denied leave to appeal. [1, Appendix B]; People v. Bowen, 706 N.E.2d 1106 (Ill.Dec. 2, 1998) (Table).

         3. Initial Collateral Proceedings

         On April 5, 1999, Petitioner filed in the state trial court a pro se post-conviction petition alleging that he received ineffective assistance of counsel when his trial counsel, Mike King, failed to call four alibi witnesses.[1] [1, at 3.] Court-appointed counsel filed a supplemental post-conviction petition on October 5, 2007, arguing that: (1) Petitioner was denied effective assistance of trial counsel when counsel failed to call four alibi witnesses at trial, denied Petitioner his right to testify, failed to present mitigating evidence at sentencing, and failed to file a post-sentencing motion to preserve Petitioner's right to appeal his sentence; (2) Petitioner was actually innocent; and (3) Petitioner was denied effective assistance of direct appeal counsel when counsel failed to challenge the trial judge's reliance on mistakes of fact in convicting and failed to challenge improper admonishments post-sentencing.[2] The petition was supported by affidavits from Petitioner and each of the four alleged alibi witnesses-Ricardo Townsend, his mother Betty Townsend, his brother Willie Townsend, and his aunt Corliss Thomas (“Cora”)- all of whom attested that Petitioner was in the Townsend apartment at the time of the shooting and that they were willing to testify to that fact at trial. In addition, two of the alibi witnesses, Ricardo and Betty, attested that they had provided this information to Petitioner's attorney when they were interviewed prior to trial. On November 13, 2008, the state trial court granted the State's motion to dismiss Petitioner's post-conviction petition, concluding that Petitioner's affidavits suggested that he discussed defense strategy with his trial counsel and that it would be “inappropriate for the trial court to interject itself in the trial strategy of counsel” “absent some glaring” reason to do so. [Id. at QQ27.]

         Petitioner appealed, and on November 22, 2010, the Illinois Appellate Court reversed the dismissal of Petitioner's claim for post-conviction relief based on ineffective assistance of counsel for failure to call alibi witnesses and remanded for an evidentiary hearing. [1, Appendix D, 14-18.] The Illinois Appellate Court explained that “[a]ttorneys have an obligation to explore all readily available sources of evidence that might benefit their clients, and defense counsel has a professional obligation, both legal and ethical, to explore and investigate a client's alibi defense.” [Id. at 14.] Further, “strategic decisions may be made only after there has been a thorough investigation of law and facts relevant to plausible options.” [Id. at 15-16 (citing Strickland v. Washington, 466 U.S. 668, 690 S.Ct. (1984)).] The court concluded that although the record indicated that trial counsel interviewed Betty and Ricardo before trial, the same cannot be said of Willie and Corliss Thomas, and the record did not indicate any explanation for counsel's failure to interview these two alibi witnesses.

         4.Collateral Proceedings After Remand

         On remand, the state trial court held an evidentiary hearing in 2012. [11-12 Exhibit M.] Petitioner presented the testimony of Ricardo Townsend, Betty Townsend, Willie Townsend, and Petitioner himself.[3] The State presented the testimony of Philip Mullane, an attorney who worked with Petitioner's trial counsel on his case, and Detective Gehrke. Petitioner's trial counsel, Mike King, did not testify, as he had passed away in 2004, several years after the conclusion of Petitioner's trial.

         Ricardo testified that he and Petitioner were in his bedroom of the Townsend apartment when they heard the gunshots and that nobody else was in the bedroom with them. [Id. at V-13- 14.] According to Ricardo, after hearing the gunshots, he went outside with Petitioner and Willie to see what was going on. Ricardo further testified that Petitioner's counsel talked to him about the case while he was in custody at the Cook County Jail on an unrelated charge. [Id. at V-17, V-33.] He said that he would have been willing to testify at Petitioner's trial and that he would have testified consistently with his testimony at the hearing but that he was never asked to testify. [Id. at V-20-21.] Ricardo also testified that after learning that Petitioner had been arrested for murder and subsequently convicted, he did not reach out to the police or anyone in law enforcement to tell them that Petitioner could not have been the shooter. [Id. at V-45-46.]

         Contrary to Ricardo's account, Willie testified that he was also in Ricardo's room with Ricardo and Petitioner at the time of the shooting. [Id. at V-59, V-62.] Willie also testified that Ricardo and Petitioner remained in Ricardo's bedroom and only Willie went outside after they heard the gunshots. [Id. at V-63.] Although Willie's affidavit stated that he had not been interviewed by Petitioner's trial counsel, Willie testified at the hearing that he was not sure if an attorney for Petitioner spoke with him before Petitioner's trial. [Id. at V-61.]

         Next, Betty testified that when she heard the gunshots, she was in the living room with Willie and Cora and that Petitioner and Ricardo were in the bedroom. [Id. at V-83.] She testified that she told someone representing Petitioner that Petitioner was in her home at the time of the shooting. [Id. at V-87.] She explained that she would have been willing to testify at Petitioner's trial and would have testified consistently with her testimony at the hearing. [Id.] Betty stated that she thinks of Petitioner as one of her own children. [Id. at V-88.] She testified that an attorney told her “I couldn't testify for him because I was his auntie, but we wasn't any kin.” [Id. at V-92.]

         Finally, Petitioner testified that he told his trial counsel that Ricardo, Betty, Willie, and Cora knew that he was in the Townsend apartment during the shooting. He testified that his trial counsel said he thought the State's case was weak and that he would have Brown's family members testify to discredit Brown. Petitioner contended that he asked counsel about Betty and that counsel told him he would call Betty as a witness if Brown's family members did not discredit him. [Id. at V-113-114.] Petitioner denied telling Detective Gehrke that he was with Bam, Rick, or Black the day of the shooting. Petitioner testified that Detective Gehrke asked him when he was last with Terrance Pouncey, who he ...


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