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Blackmon v. Pfister

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

February 7, 2018

ERIC BLACKMON, Petitioner,
RANDY PFISTER, Respondent.


          Ronald A. Guzmán, United States District Judge.

         For the reasons set forth below, the Court grants Eric Blackmon’s petition for relief under 28 U.S.C. § 2254.


         Eric Blackmon seeks a writ of habeas corpus with respect to his September 2004 conviction in the Circuit Court of Cook County for first-degree murder and his sentence of sixty years’ imprisonment. The case is before this Court on remand from the Court of Appeals, which vacated the Court’s denial of Blackmon’s petition and directed the Court to assess whether Blackmon is “actually in custody in violation of the United States Constitution.” Blackmon v. Williams, 823 F.3d 1088, 1107 (7th Cir. 2016). Blackmon’s remaining post-conviction claim is that his trial counsel was constitutionally ineffective because he failed to investigate and present several additional alibi witnesses to testify that Blackmon was at a barbecue at the time the victim, Tony Cox, was fatally shot on July 4, 2002. The Court of Appeals concluded that the state court’s finding as to trial counsel’s performance was unreasonable, and directed this Court to hold an evidentiary hearing to determine “(1) the extent of counsel’s actual pretrial investigation and (2) what [the alibi] witnesses would have said if called to testify at trial.” Id.

         Pursuant to the Court of Appeals’ ruling, this Court held an evidentiary hearing on May 16 and 17, 2017, at which it heard Blackmon’s testimony as well as that of alibi witnesses Judy Brengettcy, Teresa Martin, Antoinette Leavy, Laushun Melton, Orlando Terrel Wash, Tiarra Topps, Nicole Green, Selena Leavy, Tomeka Wash, Monique Carr, and Sheryce Crowder.[1] The Court also heard the testimony of Bruce Cowan, who was Blackmon’s state-court trial counsel, and Robert Murbach, an investigator Cowan hired for the case.


         To prevail on an ineffective-assistance claim, a prisoner must show that his counsel’s performance “fell below an objective standard of reasonableness” and that counsel’s errors prejudiced him in that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Blackmon, 823 F.3d at 1102-03 (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). As for the prejudice prong of the analysis, “Blackmon does not have to prove actual innocence; he does not even have to show that counsel’s errors more likely than not altered the outcome in his case. He must show only a reasonable likelihood that the outcome would have been different-that is, a likelihood that is substantial, not just conceivable.” Id. at 1107 (citations and internal quotation marks omitted).[2]

         “The Constitution does not oblige counsel to present each and every witness that is suggested to him. Instead, it simply obliges counsel to investigate the various lines of defense available in a given case.” United States v. Berg, 714 F.3d 490, 499 (7th Cir. 2013) (internal quotation marks and citation omitted). If counsel has made a thorough investigation of law and facts and consciously decided not to call certain witnesses, the decision is probably strategic and thus insulated from attack on ineffective-assistance grounds. Blackmon, 823 F.3d at 1103-04. “An outright failure to investigate witnesses, however, is more likely to be a sign of deficient performance.” Carter v. Duncan, 819 F.3d 931, 942 (7th Cir. 2016) (quoting United States v. Best, 426 F.3d 937, 945 (7th Cir. 2005)); see also Strickland, 466 U.S. at 690-91 (“[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”).


         A. Trial Counsel’s Investigation

         Eric Blackmon

         Blackmon testified in pertinent part as follows. When Blackmon was arrested in September 2002, he was taken to the Chicago police station at Harrison Street and Kedzie Avenue, where he was told that he was being arrested for Cox’s July 4 shooting death. At the police station, Blackmon eventually met with Cowan for about twenty minutes, and told Cowan that he did not shoot Cox and that he was at a barbecue on Homan Avenue on the day of the shooting. Blackmon “didn’t go into names specifically” at that time, but he told Cowan that “there were a lot of people present” at the barbecue. (ECF No. 117-1, 5/16/2017 PM Hr’g Tr. at 41.) After this conversation and during the pretrial period, Blackmon and Cowan discussed the alibi defense. Cowan told Blackmon that in order for him to be able to call alibi witnesses at trial, he would need “the name, address, telephone number, date of birth of the witnesses,” and if Blackmon “could not come up with that, just come up with some identifying [sic] or a way that they could be found, something like that.” (Id. at 43.)

         Following his arrest, Blackmon was detained at the Cook County Jail until February 2004, when he was transferred to Stateville Correctional Center. Blackmon said that while he was there, he used Stateville’s law library to create two typewritten lists of people who he believed could vouch for his presence at the barbecue. The first, titled “Witness List,” contains the names of Sheryce Crowder, Sean Dallas, “Antionette” [sic] Leavy, Selena Leavy, and Tomeka Wash, as well as their birthdates, addresses, and telephone numbers. (Pet’r’s Hr’g Ex. 2.) Blackmon said that this was a list of the people for whom he was able to provide all of the information Cowan requested. The second, titled “Potential Witness List,” lists Teresa Martin, “Lashun,” “Judy,” “Monique Washington,” “Nichole” [sic] Green, Phillip Robinson, Kyeuna Vance,[3] and unnamed “Residents” of four addresses on South Homan Avenue (one of which, he noted on the list, was Tomeka Wash’s residence). (Pet’r’s Hr’g Ex. 3.) For those on the second list, Blackmon listed only partial information; he listed most of their addresses, one person’s phone number, and for “Lashun” and “Judy,” he stated on the list that they were friends of Teresa Martin and that Martin could provide more information. Blackmon testified that he gave two copies of each list to Cowan when he met with him “in the back, in the jury room of the court” in conjunction with one of Blackmon’s pretrial hearings, in February, March, or April 2004. (5/16/2017 PM Hr’g Tr. at 50-51.) According to Blackmon, Cowan responded by saying, “Oh, great, I’m gonna get in touch with all of them, I’ll get in touch with all of them and have them here.” (Id. at 59.)

         At subsequent pretrial hearings, Cowan told Blackmon that he “had got the witnesses,” they would be at trial, and “everything was going great.” (Id. at 60.) Cowan never told him that the information he had provided was inadequate, that any of them were unnecessary or would not make good witnesses, or that he had decided not to call those alibi witnesses. After the trial began, however, Blackmon began to doubt that Cowan would present the alibi witnesses, after “some of the other things” Cowan had said would occur at trial did not. (Id. at 61.) While Blackmon was seated at the defense table with Cowan, Blackmon asked him where the alibi witnesses were, and Cowan “blew [him] off.” (Id. at 62.) So Blackmon tried to phone witnesses himself and also asked his mother to phone them. Two alibi witnesses-Selena Leavy and Tomeka Wash-testified at trial.[4]

         Bruce Cowan

         Attorney Cowan testified that he first met with Blackmon at the jail in a meeting that lasted for “hours.” (ECF No. 118, 5/17/2017 AM Hr’g Tr. at 52.) Although Cowan took notes of the meeting, he does not know where those notes are today, and he does not know where his file for Blackmon’s case is, even though it eventually “blossomed into three or four folders.” (Id. at 53, 58.) Because Cowan purges his files “every nine, ten years,” he believes that it is most likely that the file was destroyed in the normal course of business. (Id. at 53-54.)

         Cowan corroborated Blackmon’s testimony that he proclaimed his innocence from the outset and told Cowan that he had been at a barbecue on the day of, and at the time of, Cox’s murder. Blackmon told Cowan at their first meeting that “there were a lot of people” at the barbecue; “it was an open barbecue, and a lot of people that attended . . . were not people he knew but they were welcome”; and “the lady that threw the barbecue” was “Ms. Wash.” (Id. at 57.) During that meeting, Blackmon provided Cowan with Tomeka Wash and Selena Leavy’s names. Cowan said that he told Blackmon that he “certainly would follow up as to the barbecue.” (Id. at 58.)

         Cowan met with Blackmon on several occasions during the two years between this first meeting and the trial. During that time, the only names Blackmon mentioned to Cowan were those of Tomeka Wash and Selena Leavy, and possibly Antoinette Leavy. Cowan said that he “went out to see” Tomeka Wash. (Id. at 74-75.) When asked to describe Wash’s physical appearance, Cowan demurred, cited the length of time that had passed since the trial, and said, “I know she was a black lady, kind of short--no, I can’t [recall].” (Id. at 80-81.) When asked how old she was, and whether he would describe her as an older lady or middle-aged (she was 22 when she testified at trial), Cowan replied: “I really--I can’t remember what she looked like. I know that I met her, I spoke with her a number of times. I can’t remember what she looked like. I was more interested in what she told me, how she was helping our case.” (Id. at 81.) Blackmon “might have” also given Sean Dallas’s name to Cowan; Cowan was not sure how he had learned about him. (Id. at 61.) Cowan also stated that he “may have spoken with” Dallas: “I was waiting for him. We didn’t subpoena him, but he was supposed to come to the trial to testify because he might have been helpful.” (Id. at 62-63.)

         Cowan denied Blackmon’s claim that he had given Cowan two lists of possible alibi witnesses. (Id. at 62, 71, 73.) Cowan stated that he had hired Murbach as an investigator and paid Murbach “out of [his] own pocket $2,500 from the fee paid to [him],” and that if Cowan had been given anything like a witness list, first he “would have tried to follow up on it” and then he would have given it to Murbach “to investigate or catch up with these people and find out if they could help us.” (Id. at 62.) Regarding his work with respect to alibi witnesses, Cowan further testified:

A. Antoinette Leavy, I believe I spoke with her and her daughter, Selena Leavy.[5] . . . I can’t remember if I got the name Selena Leavy or Antoinette Leavy from Mr. Blackmon or not. But I did--I recognized the name Selena Leavy, and she did testify at the trial.
I didn’t call Antoinette Leavy because I spoke with her and I didn’t call her, so--she was not gonna be helpful, so she did not testify.
And I know that he gave me the name of Ms. Wash because she threw the barbecue. But he never gave me a written list ever.
. . .
Q. You indicated that you talked to Antoinette Leavy. Do I correctly understand your answer?
. . .
A. I believe I spoke with her– . . .
Q. What did she tell you in terms of the case and, in particular, with respect to the issue of the barbecue?
A. I can’t recall exactly. All I can tell you is, if she didn’t tell me that she saw-- or she could testify that she saw Mr. Blackmon at the barbecue the whole time, she couldn’t swear to it, I wouldn’t have called her as a witness.
Q. And that’s because why? If she couldn’t take the whole time, why did you reason that you wouldn’t call her as a witness?
A. If she couldn’t swear that he was there and that she had seen him and watched him, or she could testify that she saw him at the crucial time, then--if all she could say is that she saw him at the barbecue at one time or another, she ...

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