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Tabb v. Christianson

United States Court of Appeals, Seventh Circuit

April 28, 2017

Triandus Tabb, Petitioner-Appellant,
v.
Tim Christianson, Respondent-Appellee.

          Argued January 18, 2017

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:14-cv-02023 - John W. Darrah, Judge.

          Before Wood, Chief Judge, and Posner and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         On September 6, 2003, at 1:20 p.m., Salvador Gomez stopped his car at a red light at a Chicago intersection. Through the driver-side window, a man approached and tried to steal his car. When Mr. Gomez would not yield, the attacker shot him three times. Mr. Gomez survived. He later identified petitioner Triandus Tabb as the shooter. Tabb was convicted in Illinois state court of attempted first-degree murder, aggravated battery with a firearm, and attempted aggravated vehicular hijacking. At trial, the crux of the State's evidence was the victim's identification of Tabb. Over the long course of state and federal court proceedings in his case, Tabb finished his prison sentence but is still under mandatory supervised release. He now appeals the denial of his habeas corpus petition challenging his conviction.

         The focus of Tabb's federal habeas claims is the reliability of Mr. Gomez's identification of Tabb as the shooter. We have warned that "it is vital that evidence about how photo spreads, showups, and lineups are conducted be provided to defense counsel and the court." Newsome v. McCabe, 319 F.3d 301, 305 (7th Cir. 2003). That is because "recollection is suggestible." Id. "Once the witness decides that 'X is it' the view may be unshakable." Id. Recent psychological research challenges "the lay intuition that confident memories of salient experiences ... are accurate." Id., quoting Krist v. Eli Lilly & Co., 897 F.2d 293, 296 (7th Cir. 1990) (alteration in original). At the same time, jurors "tend to think that witnesses' memories are reliable, " and "this gap between the actual error rate and the jurors' heavy reliance on eyewitness testimony sets the stage for erroneous convictions." Id.

         Tabb has presented evidence calling into question the objectivity of the lineup procedures in which he was identified and the ensuing validity of the witness identifications of him at trial. He has argued that evidence about how the lineup was conducted was kept from the defense and then destroyed. See Brady v. Maryland, 373 U.S. 83 (1963) (suppression of material evidence favorable to the accused, when requested by defense, violates due process); Arizona v. Youngblood, 488 U.S. 51 (1988) (holding that the prosecution's destruction of material exculpatory evidence is a due process violation). Tabb has not shown, however, that he is entitled to relief from his conviction. We affirm the district court's denial of his motion for summary judgment and its subsequent dismissal of Tabb's habeas petition. To explain, we first review the factual and procedural history, and we then examine Tabb's claims under Brady and then Youngblood.

         I. Factual and Procedural History

         In federal habeas corpus proceedings, we accept as true the factual findings of state courts unless they are rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Hall v. Zenk, 692 F.3d 793, 805 (7th Cir. 2012). We offer a review of the fourteen-year history of Tabb's case.

         A. Tabb's Trial and Direct Appeal

         On the day of the shooting, September 6, 2003, petitioner Tabb, Norman Brown, and Isaac Pittard all resided at the Department of Children and Family Services Daniel J. Nellum Group Home in Chicago and were ostensibly members of the Blackstone street gang. People v. Tabb (Tabb IT), 2013 IL App (1st) 121748-U, 2013 WL 3379128 at *2 (111. App. 2013). From the time he was just four years old, Tabb had been a ward of the Department of Children and Family Services. He had lived in the Nellum Group Home for less than a year. The group home log that tracked when residents came and went on the day of the shooting recorded Brown and Pittard leaving the home at 12:30 p.m. and 12:45 p.m., respectively. Significantly, the log book notes that Tabb was not granted permission to leave the home until 1:45 p.m. - after the shooting. At trial the State challenged the reliability of the log book. See id. at ""3. (We do not attempt to resolve that factual issue.)

         That same day, at about 1:20 p.m., Salvador Gomez stopped at a red light just a few blocks away from the group home. People v. Tabb (Tabb I), 870 N.E.2d 914, 917 (111. App. 2007); Tabb II, 2013 WL 3379128, at *1. His windows were already rolled down when a man approached and pointed a gun at him. Tabb II, 2013 WL 3379128, at *1. The assailant demanded that Mr. Gomez get out of his car, but he refused. Id. Instead, he struggled with the assailant over the gun before being shot twice in the stomach and once in the arm. Id.; Tabb I, 870 N.E.2d at 918. Gomez needed major surgery but survived the attack.

         Delayed by the surgery, seven weeks later on October 25, 2003, Gomez identified Tabb from a police lineup. Tabb II, at ""2. Gomez had been under duress, afraid for his life, at the time of the attack. His initial description of the attacker was vague: a tall skinny black man wearing white clothes and a bandana. At Tabb's trial a year later, Gomez was unable to recall confidently how long the entire encounter lasted, perhaps as short as five seconds or as long as five minutes, but he identified Tabb as the shooter. Also at trial, an off-duty police officer who was at the scene of the shooting described the shooter as wearing a black and white jersey and his hair in braids. Id. at ""3, 10. The Nellum Group Home care worker Brian Gary testified that he never knew Tabb to wear braids but that Pittard often did. The off-duty police officer identified Pittard as the shooter and Brown as the getaway driver. Brown testified, however, that he saw Tabb shoot Gomez, though Brown later recanted that testimony. Another witness testified that Tabb was not the shooter, while yet another testified that Tabb confessed to her that he shot a rival gang member. Beyond the conflicting eyewitness testimony no physical evidence tied Tabb to the shooting.

         In late 2004, the jury found Tabb guilty on three charges. The trial court sentenced him to consecutive sentences of twelve years for attempted first-degree murder (which was merged with the aggravated battery with a firearm) and four years for aggravated vehicular hijacking. Tabb I, 870 N.E.2d at 917. In his direct appeal, the state appellate court vacated his conviction for aggravated battery but affirmed in all other respects. Id. at 929-30. One judge dissented on grounds that are not part of this appeal. See id. at 930 (Neville, J., dissenting).

         B. State Post-Conviction Relief

         In 2009, petitioner Tabb filed his operative petition for post-conviction relief in the state trial court. He argued that new evidence established his actual innocence, and he said his trial counsel had been ineffective. Tabb II, 2013 WL 3379128, at *4. The trial court granted the State's motion to dismiss and denied Tabb's motion to reconsider. Id. at ""5. On appeal, the state appellate court remanded, finding that Tabb's allegations of actual innocence warranted an evidentiary hearing. Id., citing People v. Tabb, No. 1-09-2904 (111. App. 2011) (unpublished).[1]

          In May 2011, on remand to the state trial court, Tabb filed a motion for limited post-conviction discovery. He requested any "written notes relating to, or recordings of, interviews of witnesses named in Defendant's Amended Post-Conviction Petition." Id. at ""5. A defense investigator had spoken with Gomez's wife Nelly and reported that she would testify that her husband had seen a photograph of Tabb prior to the lineup and that a police officer confirmed Gomez's identification of Tabb after the lineup. The defense sought interview notes from state investigators who had also spoken to Mrs. Gomez after the defense investigator did so. In October 2011, before the evidentiary hearing, Tabb requested sanctions, asserting that the State had not complied with the request and that the interview notes upon which the state investigators based their final reports had been destroyed. Id. at ""5-6. The court did not impose sanctions but did instruct the State to instruct investigators to keep any future interview notes in the case.

         At the evidentiary hearing, Mrs. Gomez testified about the lineup identification. She accompanied her husband to the police station on the night of the lineup. Id. at *7. She waited at a desk while an officer escorted her husband to the lineup. She testified that a few desks over, she saw a stack of files. On the top of the stack was a photograph of a person's face. She reported feeling mad and having a sick feeling about the picture. Id. But it was not until Salvador and the police officer returned from the lineup that she learned the identity of the person in the photograph. Mr. Gomez told his wife that he had identified the shooter. The accompanying police ...


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