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Carter v. Nicholson

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

August 27, 2019

HOWARD CARTER B36672, Petitioner,
WALTER NICHOLSON, Warden, Stateville Correctional Center, Respondent.


          Hon. Jorge Alonso United States District Judge.

         Howard Carter has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state criminal convictions for first degree murder. Stateville Correctional Center Warden Walter Nicholson, respondent, has filed a motion to dismiss the petition as untimely. For the reasons set forth below, the Court grants the motion, dismisses the petition, and terminates this case.


         On October 30, 1998, petitioner was convicted of two counts of first degree murder, one count of attempted first degree murder, and one count of unlawful discharge of a firearm. (Pet. at 1, ECF No. 8.) See People v. Carter, 100 N.E.3d 460, 469 (Ill.App.Ct. 2017). He was subsequently sentenced to natural life imprisonment on the two murder counts, plus fifteen years' imprisonment on the attempted murder count. Id.

         The Court will only briefly summarize the most relevant evidence here; the Illinois Appellate Court has described petitioner's trial and post-conviction proceedings in greater detail elsewhere, see Id. at 462-477. Petitioner was a high-ranking member, a “chief, ” of the Undertaker Vice Lords street gang, which had split into warring factions. On October 22, 1995, a pedestrian fired numerous gunshots into a vehicle on Ferdinand Street, near Lockwood Avenue in Chicago, which was carrying three passengers: Devol Scott and Allen Williams, both members of the Undertaker Vice Lords, and Patrick Davis, a member of a different street gang. Scott and Davis were killed, but Williams survived. Williams testified at trial that he recognized petitioner as the shooter. He admitted that he had initially refused to cooperate with the police, explaining that he had been angry and upset at the time and intended to seek revenge, but a couple of days after the shooting, he decided to cooperate with police and changed his story. According to Williams, the day before the shooting, petitioner had asked Williams, Scott, and Kenneth Beecham, another member of the gang, to help him get revenge on an Undertaker Vice Lord, “Mike-Mike, ” with whom he was feuding. Scott told petitioner that they were not involved in his feud and would not help him. Beecham corroborated Williams's account of this exchange.

         Tyrone Randolph, a member of a rival gang, testified before a grand jury that he had been at the scene of the shooting, and he identified petitioner as the person who had fired the shots into the car. At trial, he recanted, claiming that a police officer had promised to drop drug charges against him if he implicated petitioner, but to charge him with another drug crime if he did not implicate him. The transcript of Randolph's grand jury testimony was admitted as substantive evidence against petitioner. Other evidence showed that Randolph had previously given statements about the shooting to law enforcement in October 1995, a few days after the shooting occurred, and then again about a year later; these statements were consistent with his grand jury testimony.

         Following trial and sentencing, petitioner appealed, claiming that the State failed to prove him guilty beyond a reasonable doubt, his sentence was excessive, and it had been improperly enhanced in violation of his due process rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). Carter, 100 N.E.3d at 469. In 2002, the appellate court modified his sentences to run concurrently, not consecutively, and affirmed his convictions, explaining that “‘[t]he trial court considered Randolph's credibility as well as the circumstances surrounding his testifying and determined that the grand jury testimony was believable while the in-court testimony was not. The trial court also determined that Williams'[s] explanation for changing his story was reasonable.'” See Carter, 100 N.E.3d at 469 (quoting People v. Carter, No. 1-99-2230, slip order at 6-7 (Ill.App.Ct. Mar. 11, 2002)).

         Subsequently, petitioner filed a petition for leave to appeal to the Illinois Supreme Court, which was denied on October 2, 2002. See Id. Petitioner did not seek a writ of certiorari from the United States Supreme Court. (See Pet. at 2.)

         On July 28, 2005, petitioner filed a petition for post-conviction relief, which proceeded to a second-stage review. Carter, 100 N.E.3d at 469. On March 18, 2010, court-appointed counsel filed an amended petition, claiming ineffective assistance of trial counsel for not allowing petitioner to testify at trial and actual innocence based on affidavits of two newly discovered eyewitnesses, Antonio McDowell and Vaughan Peters. Id. McDowell and Peters were fellow Undertaker Vice Lords who swore that another Undertaker Vice Lord known as “Volli” committed the shooting for which petitioner was convicted, and petitioner was not even at the scene at the time of the shooting. Id. at 469-70, 472.

         The state post-conviction court initially dismissed petitioner's amended petition, and the Illinois Appellate Court affirmed with respect to the ineffective assistance claim. However, the appellate court reversed the decision on petitioner's actual innocence claim and remanded for an evidentiary hearing. People v. Carter, 2013 IL App (1st) 110046-U, ¶¶ 76-96. On remand, the post-conviction court dismissed the petition after a hearing, finding that McDowell and Peters had not testified credibly, and their testimony probably would not change the result on retrial. Carter, 100 N.E.3d at 477. In particular, the post-conviction court found it incredible that McDowell and Peters observed the shooting but did not learn that petitioner was prosecuted and convicted in the matter until years later:

The [post-conviction] court found that it defied logic to think that McDowell and Peters were completely oblivious to the fact that [petitioner] had been convicted of first degree murder. Based on their status as fellow gang members and eyewitnesses, McDowell and Peters both had an interest in learning who had been implicated, and their testimony that they never sought out this information was highly incredible. The trial court also observed that McDowell personally knew [Allen] Williams, who testified as a State's witness against [petitioner].

Carter, 100 N.E.3d at 477.

         Petitioner appealed the dismissal, and on December 28, 2017, the Illinois Appellate Court affirmed. Carter, 100 N.E.3d at 482. The appellate court explained that McDowell and Peters had admitted at the post-conviction hearing that they knew petitioner had been arrested for the crime, and it could find no error in the post-conviction court's ruling that it was simply not believable that two gang members in their position would not have come forward earlier, if their accounts were truthful:

McDowell and Peters were both friends of defendant; they all belonged to the same gang and had hung out together prior to the night of the shooting. Therefore, the [post-conviction] court reasoned, McDowell and Peters had a significant interest in learning who had been implicated in the shooting, and their testimony that they never knew of defendant's conviction until years later was incredible. Furthermore, McDowell and Peters both personally knew Allen Williams, the attempted murder victim, who was a member of their gang and a State's witness against defendant. The [post-conviction] court found it ...

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