United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE
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. Â§ 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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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 ¶
22, 2018, Ortega filed this timely petition for a writ of
habeas corpus ...