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Anderson v. Lashbrook

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

July 26, 2019

BILLY ANDERSON, B54312 Petitioner,
v.
JACQUELINE LASHBROOK, Respondent.

          MEMORANDUM OPINION AND ORDER

          Honorable Thomas M. Durkin United States District Judge.

         Petitioner Billy Anderson, a state prisoner serving two consecutive 30-year sentences for two counts of attempted first-degree murder, seeks a pro se writ of habeas corpus pursuant to 28 U.S.C. § 2254. R. 1. Respondent argues that Anderson's claims are procedurally defaulted and/or fail on the merits. R. 7. For the following reasons, Anderson's petition is denied in its entirety, and the Court declines to issue a certificate of appealability.

         Background

         Trial.

         Alphonso Hall testified that on September 21, 2009, he was with his brother Barron Hall at Barron's apartment building and had been smoking marijuana. The brothers were outside Barron's building when a group of men approached around 9 p.m. regarding their problem with Barron's drug sales in the area. People v. Anderson, 2014 WL 2795920, at *1 (Ill.App.Ct. June 17, 2014) (“Anderson I”). Barron walked away to talk with one of the men, and Alphonso- although he could not hear the conversation-discerned that they “didn't see eye-to-eye.” Id.

         Barron and Alphonso then went to a nearby liquor store. Id. They returned to Barron's apartment building, and were sitting outside when a group of 9 or 10 men congregated across the street. Id. Alphonso went inside to call 911 because he feared some men were armed. Barron remained outside, and the men dispersed before the police arrived. Id. Once the police left, Alphonso went back outside and began arguing with a man looking out the window of an upstairs apartment. Id. Alphonso taunted the man, telling him to shoot because the man “referred to himself as ‘the shooter.'” Id. The man then used a phone to “call[ ] some guys back, ” and shortly thereafter, Anderson and his codefendant Reginald Owens approached the Halls and began shooting at them. Id. at *2. Alphonso witnessed Barron being shot and suffered multiple gunshot wounds himself, one of which rendered Barron paraplegic. Id. at *1-2. Although Alphonso could not identify who shot him during an interview with police that night, he identified Owens as one of the shooters in two photographic arrays the next day. Id. at *2. Alphonso also identified Anderson and Owens as the shooters in photo lineups the next month, and again during Anderson's trial. Id.; R. 8, Ex. M at CC-59-60.

         Vivian Pettigrew testified that she lived across the street from Barron's apartment building at the time of the shooting, and awoke at 10 p.m. that night to a man repeatedly yelling “shoot.” Anderson I, 2014 WL 2795920, at *2. Pettigrew looked out her window and saw Barron and Alphonso Hall in front of Barron's apartment building; Alphonso repeated “shoot” as he looked up at an apartment on the third floor. Id. Pettigrew then saw Anderson and Owens crouched in an alley holding guns. She recognized them from the neighborhood. Id. Pettigrew watched Anderson and Owens approach the Halls and begin shooting at them. Id. Although Pettigrew did not contact the police that evening, she went to the police station the next day and identified Owens as one of the shooters in a photographic array. Id. at *3. Pettigrew returned home from the police station, and subsequently contacted the police after seeing Anderson and Owens on her street with their friends. Id. She also identified Anderson and Owens as the shooters in photo lineups the next month, and again at Anderson's trial. Id.; R. 8, Ex. M at CC-161.

         At the conclusion of his December 2011 bench trial, Anderson was convicted of two counts of attempted first-degree murder, and was sentenced to serve two consecutive 30-year prison terms.[1] Anderson I, 2014 WL 2795920, at *1. Anderson filed a pro se motion for a new trial arguing in part that trial counsel was ineffective for failing to present an alibi defense, which the trial court denied. People v. Anderson, 2018 WL 1476030, at *3 (Ill.App.Ct. Mar. 23, 2018) (“Anderson II”).

         Direct Appeal.

         On direct appeal, the Illinois appellate court rejected Anderson's sufficiency of the evidence claim. R. 8, Ex. B; Anderson I, 2014 WL 2795920. The Illinois Supreme Court denied Anderson's petition for leave to appeal (PLA) on September 24, 2014. People v. Anderson, 20 N.E.3d 1256 (Table) (Ill. 2014). On February 23, 2015, the United States Supreme Court denied Anderson's petition for writ of certiorari. Anderson v. Illinois, 135 S.Ct. 1428 (Mem.) (2015).

         State Post-Conviction Proceedings.

         On August 24, 2015, after his unsuccessful direct appeal, Anderson filed a pro se post-conviction petition under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq., claiming in relevant part that he was denied his right to effective assistance of counsel because trial counsel failed to call Anderson's girlfriend, Brandi Wheeler, and her mother, Patricia Wheeler, as alibi witnesses.[2] R. 8, Ex. F. The Illinois circuit court dismissed the petition on September 29, 2015, concluding that Anderson's claim was procedurally barred because it could have been but wasn't raised on direct appeal. Id., Ex. G at 3. The court turned to the merits in any case, ultimately concluding that the issues Anderson raised were “frivolous and patently without merit.” Id. at 10. On March 23, 2018, the Illinois appellate court affirmed the judgment of the circuit court. See generally Anderson II, 2018 WL 1476030. The Illinois Supreme Court subsequently denied Anderson's PLA. People v. Anderson, 108 N.E.3d 834 (Table) (Ill. 2018). That denial was the final procedural step before Anderson filed this habeas petition.

         Federal Post-Conviction Proceedings.

         On October 29, 2018, Anderson filed his Section 2254 petition, raising three principal claims: (1) trial counsel provided ineffective assistance by failing to impeach eyewitnesses Alphonso Hall and Vivian Pettigrew; (2) trial counsel provided ineffective assistance by failing to call Brandi and Patricia Wheeler as alibi witnesses; and (3) appellate counsel provided ineffective assistance by failing to raise claim (2) in the direct appeal of Anderson's conviction. R. 1 at 5-10. Anderson's petition also states in conclusory fashion in claim (1) that there was insufficient evidence to convict him. Id. at 7. Respondent argues that Anderson's petition should be denied in its entirety because Anderson's claims are either defaulted and/or lack merit. See generally R. 7. Anderson did not file a brief in reply. Although the Court may properly consider Anderson to have waived the arguments to which he has not responded, see Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an argument . . . results in waiver”), because Anderson is proceeding pro se, the Court nevertheless addresses each claim below.

         Standard

         “Federal habeas relief from a state-court criminal judgment is not easy to come by.” Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir. 2012). When a state court has adjudicated a federal claim on the merits, a federal habeas court may not grant relief unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or was based on “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). To prevail under this standard, the “prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Ward v. Neal, 835 F.3d 698, 703 (7th Cir. 2016). However, “[e]ven in the ...


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