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Ortega v. Lashbrook

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

August 9, 2019

MICHAEL ORTEGA, Petitioner,
v.
JACQUELINE LASHBROOK, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE

         Michael Ortega was convicted by an Illinois jury of first-degree murder. A Cook County judge sentenced him to forty-six years in prison. Having exhausted direct appeals and state collateral challenges, Ortega has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. He contends that (1) there was insufficient evidence to sustain his conviction; (2) his trial counsel was ineffective for failing to call an expert witness regarding eyewitness identification; (3) his trial counsel was also ineffective for failing to investigate alibi witnesses; and (4) the prosecution violated his constitutional rights by making certain closing arguments. For the reasons below, the Court overrules all of Ortega's claims but the third. The Court is not prepared to dismiss that claim and instead will appoint counsel to investigate its viability.

         Background

         Michael Ortega was convicted of murdering Kenneth Lawson. The indictment alleged that the killing took place on the evening of July 12, 2003 outside a house on South Houston Avenue in Chicago. Lawson was attending a party at the house, which belonged to Shirly McBride, with two of his friends, Jeremy Howard and Marlin Willis. Howard and Willis each testified to the events of that evening. According to Howard and Willis, the three men met up at a gas station nearby and drove Lawson's van to the party. When they arrived, the three men parked directly in front of the house. For a while, Howard, Willis, and Lawson socialized with several others in the house's front yard. Some of the partygoers sat on the front porch while others stood in the yard or sat in the van.

         A neighboring house was also hosting a party. At some point, Lawson, Howard, and McBride went to the party next door. They stayed for only a short while before returning to McBride's yard. Howard testified that they did not encounter any problems at the neighboring house. A few minutes later, Lawson and McBride went back over to the neighboring party. This time, McBride returned almost immediately but Lawson stayed for several minutes. He ultimately returned to McBride's house without incident.

         Within a few minutes of Lawson's return, a Hispanic or Latino man wearing a bandana approached from the direction of the neighboring house. The man immediately confronted Lawson, made a gesture with his hands that Howard and Willis interpreted to be a gang sign, and said either "Latin King" or "Almighty Latin King." Compare Trial Tr. pt. 2, dkt. no. 10-19, at 18, with Id. at 104. Lawson apparently told the man to get away from him. According to Howard and Willis, a heated argument ensued, though there was no physical altercation. After several minutes, the man in the bandana stormed away, warning the group that he would be back and, according to Howard, that they should not be there when he returned.

         The group began collecting their things and piling into Lawson's van to leave. But before they could, the man in the bandana returned, this time with another Hispanic or Latino man. The second man wore a red shirt and, according to Howard and Willis, asked the man in the bandana, "Which one?" See Id. at 26, 113. Another argument between Lawson and the two men ensued. According to Willis and Howard, Lawson eventually attempted to disengage by walking away from the altercation.

         When Lawson began to walk away, Howard and Willis testified, the man in the red shirt drew a revolver and fired one shot toward Lawson. Lawson continued walking for a moment before collapsing. The shooter fled. Willis and Howard stayed with Lawson until paramedics arrived, then followed the ambulance to Christ Hospital. Lawson was later pronounced dead as a result of injuries sustained from the gunshot.

         About two weeks later, on July 25, a police detective presented Howard with a photo array of six individuals. Howard identified Ortega as the shooter. On August 5, Howard was presented with an in-person lineup, this time including four men. Of the four, he again identified Ortega as the shooter. On August 7, Willis, who was in custody on an unrelated traffic violation, was also presented with an array of six photos. From the six photos on the page, he too identified Ortega as the shooter. Both men testified that they had spoken to no one about these identifications ahead of time.

         Ortega was arrested and charged with Lawson's murder. His trial occurred in November 2004. The prosecution called Howard and Willis, who testified that they saw Ortega fire the gunshot that killed Lawson. Ortega's attorney, Michael Johnson, argued mistaken identity. Although Ortega testified that he could not remember where he was on the night of Lawson's murder, Johnson argued that Howard and Willis had to be mistaken. On cross-examination, Johnson elicited testimony from Willis and Howard that they had each drank some alcohol the night of the shooting and confronted them with somewhat inconsistent descriptions about the shooter's clothes and physique that they had given during the initial investigation.

         Ultimately, after a three-day trial, the jury convicted Ortega of murder. Ortega appealed, arguing that there was insufficient evidence to convict him, that he had received ineffective assistance of counsel, and that his constitutional rights have been violated when prosecutors made certain prejudicial remarks about his character for dishonesty during closing arguments. The Illinois appellate court affirmed the conviction, rejecting Ortega's first two arguments and holding that the third had been forfeited when Ortega's attorney failed to object at trial. See Ex. A to State Court Record, People v. Ortega, 369 Ill.App.3d 1048, 932 N.E.2d 1038 (table), dkt. no. 10-1, at 11. The Illinois Supreme Court denied Ortega's petition for leave to appeal, which was based on the same three grounds. See Ex. H to State Court Record, People v. Ortega, 225 Ill.2d 662, 875 N.E.2d 1120 (table) (2007), dkt. no. 10-8.

         Ortega then filed a pro se postconviction petition in Illinois state court. He again alleged that his trial counsel, Johnson, had been ineffective for failing to investigate and present an alibi defense. Specifically, Ortega claimed that he had told Johnson that his mother and sister, Louise and Leticia Ortega, would have testified that he was at Louise's home at the time of the murder, but that Johnson dismissed their testimony as insufficiently credible without other corroborating evidence. Ortega presented affidavits from Louise and Leticia supporting his argument and asserting that Johnson had never interviewed them. These affidavits also mentioned at least one other potential witness: Louise's then-boyfriend Benny, who was present at Louise's home until about 12:30 a.m. on the night of Lawson's murder.

         The circuit court dismissed Ortega's petition at the first stage of postconviction proceedings because it found the petition to be patently without merit. See Ex. B to State Court Record, People v. Ortega, 399 Ill.App.. 3d 1222, 990 N.E.2d 931 (table) (2010), dkt. no. 10-2, at 1, 4; see also 725 ILCS 5/122-2.1 (describing first-stage review). Ortega appealed with the help of appointed counsel, and the Illinois appellate court reversed, concluding that Ortega's postconviction petition "did not lack an arguable basis in either law or fact." Id. at 7. It remanded to the circuit court to continue to the second stage of Illinois postconviction review. Id. at 8.

         Appointed counsel filed a supplemental postconviction petition on Ortega's behalf focused on the ineffective assistance of counsel claims. This supplemental petition included new affidavits from Louise and Leticia Ortega. Ortega's mother, Louise, stated this time that she had in fact spoken to Ortega's trial counsel, Johnson, on the first day of Ortega's trial about testifying about Ortega's alibi. But she said that Johnson advised her that her testimony would not be believable to a jury without some sort of corroborating evidence that Ortega had been at her home on the night of Lawson's murder.

         The state again moved to dismiss Ortega's petition. The circuit court granted the petition, finding that Ortega had failed to make a substantial showing that his constitutional rights were violated. Ortega appealed. This time the Illinois appellate court affirmed, finding that Johnson's actions had not amounted to ineffective assistance of counsel. See People v. Ortega, 2017 IL App (1st) 151326-U, at ¶¶ 1-2, 19-23. Specifically, it reasoned that the record "shows trial counsel was aware of the potential alibi testimony and decided not to call defendant's mother and sister as witnesses in light of defendant's testimony that he could not recall his whereabouts on the night the offense occurred." Id. ¶ 21. On this record, it concluded that Ortega had shown neither that Johnson was objectively deficient nor that any such deficiency had resulted in prejudice, as required by Strickland v. Washington, 466 U.S. 668 (1984). See Ortega, 2017 IL App (1st) 151326-U, at ¶ 19-26.

         On May 22, 2018, Ortega filed this timely petition for a writ of habeas corpus ...


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