United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jorge Alonso United States District Judge.
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.
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.
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.
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
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)).
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
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.
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
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
Carter, 100 N.E.3d at 477.
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 ...