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AL-Bitar v. Dennison

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

June 21, 2019

KAMAL AL-BITAR, Petitioner,
v.
JEFFERY DENNISON, Warden, Shawnee Correctional Center, Defendant.

          MEMORANDUM OPINION AND ORDER

          GARY FEINERMAN JUDGE

         Kamal Al-Bitar, an Illinois prisoner, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 19. The petition is denied, and a certificate of appealability will not issue.

         Background

         A federal habeas court presumes that state court factual findings are correct unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Jean-Paul v. Douma, 809 F.3d 354, 360 (7th Cir. 2015) (“A state court's factual finding is unreasonable only if it ignores the clear and convincing weight of the evidence.”) (internal quotation marks omitted). The Appellate Court of Illinois is the last state court to have adjudicated Al-Bitar's case on the merits. People v. Al-Bitar, 2015 IL App (1st) 142347-U ( Ill. App. June 30, 2015) (unpublished order) (reproduced at Doc. 21-1). The following sets forth the facts as that court described them, as well as the procedural background of the state criminal and post-conviction proceedings.

         A. Factual Background

         This case involves the non-fatal shooting of Mores Barcham (“Mores”) at the King Tut Restaurant in Chicago during the early morning hours of January 25, 2009.

         Rimon Barcham (“Rimon”), Mores's brother and the restaurant's owner, testified as follows. Rimon and Ehab Farag (the restaurant's manager) asked Mahmoud Saleh (Al-Bitar's brother) and a man named Assad to leave the restaurant because they were arguing with other patrons. Assad and Saleh came back two hours later with Al-Bitar and a man named John. Rimon urged them to leave, but Saleh punched him in the face and fighting broke out. Assad left the restaurant at some point, followed by Al-Bitar. Rimon, Mores, and a man named Mikel Meshko were fighting with Saleh when John came to help Saleh. Rimon saw Al-Bitar re-enter the restaurant. Rimon then heard a gunshot from the front door but did not see the shooter. When the shot was fired, John was carrying Saleh and the pair were almost out the restaurant door. Rimon did not see Assad in the restaurant.

         Ehab Nour, who was playing keyboards at the restaurant, testified as follows. When the fighting started, Nour left and stood in the vestibule. Nour saw Al-Bitar, who was wearing a red and white scarf, leave the restaurant and return about a minute later with something pointy in his pocket that Nour believed was a gun. Nour tried unsuccessfully to block Al-Bitar from re-entering. Through a window in the door, Nour saw Al-Bitar, who was standing approximately ten feet inside, shoot Mores. Nour was certain that the shooter was wearing a scarf. Saleh, John, and Assad, who at the time were fighting inside the restaurant, left after the shooting. Although Nour did not talk to the police that evening, he went to a police station a few days later and picked Al-Bitar out of a lineup as the shooter. Nour talked to Rimon once or twice before calling the police.

         Wissam Zaia, whom Nour testified was a participant in the fighting, testified as follows. After the fighting began, Assad left the restaurant while Rimon, Mores, and Meshko were kicking Saleh in the face. Zaia saw someone with a big scarf around his face open the interior double doors to the restaurant, shoot Mores, and leave. According to Zaia, the shooter was not Al-Bitar, though he did not know where Al-Bitar was at the time of the shooting. Zaia further testified that Rimon pressured him to tell the police that Al-Bitar, not Saleh, was the shooter. Zaia did not recall telling the police that Al-Bitar shot Mores or identifying Al-Bitar in a lineup.

         Hind Limane, who was dating Rimon at the time of the shooting, testified as follows. After the fighting started, Limane's friend Tahrir pulled Al-Bitar off Mores, and Al-Bitar ran outside. Al-Bitar returned with a gun a few minutes later, held it straight up in the air, pointed it towards Mores, and shot him. When Al-Bitar entered the restaurant, someone was helping Saleh leave the building, and Saleh was not inside when the shooting occurred. Limane admitted that she did not tell the police on the day of the shooting that Al-Bitar shot Mores; instead, she lied, telling the police that she heard a shot while she was in the washroom with her mother. Limane explained that she was scared and in shock from what had happened and that Rimon told her not to get involved. A prosecutor later overheard Limane telling a friend what had happened and asked her if she had lied to the police. Limane testified that she then told the prosecutor the truth about what really happened.

         Farag testified as follows. Al-Bitar fought with Mores at the outset of the altercation. Farag kicked Assad out of the restaurant, and then Farag, Rimon, Mores, and Meshko removed Al-Bitar, Saleh, and John, who was helping Saleh to leave. Farag, Rimon, Mores, and Meshko were reentering the restaurant, with their backs to the door, when they heard gunfire and saw that Mores had been shot. Farag told police on the night of the shooting that Al-Bitar was the shooter, and he later told two detectives that he saw Al-Bitar open the door to the restaurant with his left hand and raise his right hand and fire one shot from a black semiautomatic. At trial, however, Farag testified that he did not see who fired the gun, explaining that he told police that Al-Bitar was the shooter because that was what everyone at the restaurant was saying.

         Meshko testified as follows. When the fighting began, Meshko hit Saleh, Saleh fell down, and Rimon and Mores came to help Meshko. After someone said something to the effect of “that's enough, ” Rimon, Farag, and John started to help Saleh out the door. Then, the doors opened and Al-Bitar fired a shot. Meshko was five to ten feet from Al-Bitar and nothing was covering Al-Bitar's face. Al-Bitar ran out of the restaurant after the shooting. Meshko tried to follow him, but someone was blocking the door from the outside. Neither Meshko nor Mores had a weapon that evening. Although a police officer testified that Meshko told him that he (Meshko) did not see who fired the shot, Meshko denied that he told the officer this. Meshko picked Al-Bitar out of a lineup as the shooter.

         Mores testified as follows. Mores was fighting Al-Bitar when Mores slipped and fell. Al-Bitar jumped on him. Tahrir helped to pull Al-Bitar off of Mores. When Mores got to his feet, he saw that Al-Bitar had a knife. Mores was able to get the knife from Al-Bitar and throw it under a table. Al-Bitar then left the restaurant, and Mores joined the fight against Saleh. Mores did not see Assad. John, Farag, Rimon, and Meshko were in a group walking with Saleh to the door when Mores heard the gunshot. Mores did not see who shot him.

         Saleh (as noted, Al-Bitar's brother) testified as follows. When Saleh returned to the restaurant with John, Assad, and Al-Bitar, there were some forty people there. A punch was thrown and a brawl erupted. At some point, Saleh was kicked, fell to his knees, and grabbed the person in front of him. As he was doing so, his right hand felt a weapon on that person's left waist. Saleh grabbed the gun and it discharged as he and the other man fell backwards. Saleh did not know in which direction the gun was pointed when it fired. He then was kicked in the head and the gun flew from his hand. John picked him up and they headed toward the door ...


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