United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge.
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.
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.
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
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.
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. 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, 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).
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. 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.
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.
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 ...