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Fisher v. Jackson

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

August 12, 2019

JACKIE R. FISHER, Petitioner,
v.
LEONTA JACKSON, Warden, Lincoln Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          ANDREA R. WOOD, UNITED STATES DISTRICT JUDGE

         Petitioner Jackie Fisher is serving a 25-year sentence in the custody of the Illinois Department of Corrections at Lincoln Correctional Center, after being convicted on charges of aggravated vehicular hijacking with a firearm and armed robbery with a firearm. Before the Court is Fisher's pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, in which he argues: (1) the Illinois Appellate Court[1] failed to follow precedent regarding scientific considerations about the reliability of eyewitness testimony when it determined that the eyewitness testimony against him was sufficiently reliable to support his conviction; (2) the State failed to prove the existence of a firearm, an essential element of the crimes, beyond a reasonable doubt; (3) the trial court erred by failing to suppress the testimony of the eyewitness who identified him; (4) his trial counsel provided ineffective assistance because he failed to retain an expert in eyewitness identification to refute the eyewitness's testimony; and (5) the prosecutor engaged in misconduct during closing arguments by intentionally misrepresenting known facts and mischaracterizing the evidence. For the reasons explained below, Fisher's petition is denied.

         BACKGROUND

         A federal habeas court presumes correct the factual findings made by the last state court to adjudicate the case on the merits, unless those findings are rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Rever v. Acevedo, 590 F.3d 533, 537 (7th Cir. 2010); Ward v. Sternes, 334 F.3d 696, 704 (7th Cir. 2003). The last state court to make factual findings in Fisher's case was the Illinois Appellate Court, as reflected in its opinion affirming the trial court's judgment. See People v. Fisher, 2017 IL App (1st) 143869-U, 2017 WL 2694398, at *1 (Ill.App.Ct. June 20, 2017); see also Mendiola v. Schomig, 224 F.3d 589, 592-93 (7th Cir. 2000) (holding that state appellate court's factual findings are entitled to same deference as state trial court's findings).

         I. Trial Proceedings[2]

         On October 3, 2012, Chicago police arrested Fisher after the victim of a carjacking, Freeman Bacon, identified Fisher as one of two individuals who robbed him. Following a jury trial, Fisher was convicted of aggravated vehicular hijacking with a firearm (720 ILCS 5/18- 4(A)(4)) and armed robbery with a firearm (720 ILCS 5/18-2(A)(2)).

         A. Testimony of Freeman Bacon

         At Fisher's trial, Bacon testified that at 9:50 p.m. on October 3, 2011, he was sitting alone smoking a cigarette in the driver's seat of his Dodge Charger near 604 South Kilpatrick. Two men approached the car. One of the men tapped a gun on the driver-side window and told Bacon to unlock the door. The other man, who Bacon later identified as Fisher, opened the door and asked Bacon what items he had on him and where his phone was. According to Bacon, the man identified as Fisher was mere inches away from Bacon. Street lights from across the street and the interior dome light of the car-which turned on when Fisher opened the car door- provided enough light for Bacon to see Fisher's face. While his companion pointed the gun at Bacon, Fisher climbed over Bacon and searched through his pants pockets and the car for money and valuables for about 30 seconds. Fisher took approximately $80 in cash from Bacon's pockets and other valuables.

         The two men then directed Bacon to run, telling him to decide between his car and his life. As Bacon ran south, he saw Fisher enter the passenger side of the car and the man with the gun enter the driver side. Fisher and his companion then drove away. Bacon entered a nearby building and called the police, who responded approximately 10 minutes later. Bacon gave the police a description of his car and the license plate number. He described the second of the two carjackers as a black male with short hair, 6 feet tall, wearing a grey hooded sweatshirt (or “hoodie”) and dark jeans.

         B. Testimony of Officer Salcedo

         Officer Salcedo of the Chicago Police Department testified that on the night of October 3, 2012, he was on patrol with his partner in a marked squad car when he received a flash message regarding a carjacking at 604 South Kilpatrick at approximately 9:50 p.m. The message indicated that the car was a black Dodge Charger with tinted windows, a light-blue spoiler, and custom rims. The two perpetrators were described as a slim black male with short hair, 6 feet tall, with a grey hoodie and dark jeans, and a black male with dreadlocks, 5 feet 10 inches tall, with a black hoodie and dark jeans, carrying a gun.

         Approximately 20 minutes later, Officer Salcedo noticed a Dodge Charger parked, but still running, on a residential street near 3838 West 18th Street. The Dodge Charger matched the description of the vehicle from the carjacking. Officer Salcedo verified the license plate number with dispatch and confirmed that it was indeed Bacon's car. There was no one in the car at the time.

         Five to ten minutes later, Fisher opened the gate of the apartment complex at 3838 West 18th Street and walked towards the passenger side of the car. Officer Salcedo testified that Fisher matched the description of one of the perpetrators given over the broadcast: he was wearing a gray hoodie and dark jeans and appeared to be 6 feet tall. When Fisher was two to three feet away from the car, he stopped and looked at the police officers, then began to walk away. Officer Salcedo pulled up next to Fisher and asked him to approach the squad car. Fisher complied. The officers placed him in handcuffs and put him into the police car. Officer Salcedo informed the other police units that he had a possible suspect in custody.

         About five minutes later, Bacon arrived in a squad car. From approximately 15 feet away, Bacon immediately identified Fisher as one of the perpetrators. The police then arrested Fisher. At this point, 53 minutes had elapsed since the carjacking.

         C. Testimony of Officer Gozdal

         Chicago Police Officer Gozdal testified that he was conducting a routine patrol with his partner Officer Chaiket on October 3, 2011, when they responded to a call about a vehicular hijacking. They arrived at 604 South Kilpatrick and spoke with Bacon. Officer Gozdal then sent a flash message over the radio describing the two offenders and providing the make, model, and license plate number of the stolen car. Within 20 to 25 minutes, he received a response that other officers had apprehended a possible suspect.

         Officer Gozdal then brought Bacon to 3838 West 18th Street, approximately five to ten minutes driving distance away, where Officer Salcedo had found Bacon's car and detained Fisher. After Officer Gozdal had a brief conversation with Officer Salcedo, the latter took Fisher out of the back of the squad car and shined a light on his face. According to Officer Gozdal, Bacon, who remained in the back of Officer Gozdal's squad car about 15 to 20 feet away, ...


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