Long v. Pfister

          MEMORANDUM OPINION AND ORDER

          John J. Tharp, Jr. United States District Judge

         Before the Court is petitioner Andrew Long's petition for a writ of habeas corpus under 22 U.S.C. § 2254. Long is in the midst of serving a 45-year sentence at Stateville Correctional Center for attempted first-degree murder of Michael Mays. His initial petition states three grounds for relief: ineffective assistance of trial counsel, insufficiency of State's evidence, and trial judge abuse of discretion. Upon filing his reply (“Traverse Motion”), the petitioner conceded that the second and third grounds are procedurally defaulted. Consequently, the only issue remaining before the Court is Long's claim of ineffective assistance of trial counsel. For the reasons detailed below, Long's petition is denied because he has not established that the Illinois Court of Appeals was unreasonable in affirming the dismissal of the defendant's postconviction petition.

         BACKGROUND

         Following conviction by a jury, the Will County Circuit Court sentenced Long to 55 years in prison for attempted first-degree murder and aggravated battery with a firearm. Upon Long's direct appeal, the Third District Appellate Court vacated the conviction for aggravated battery per the one-act, one-crime doctrine and reduced the total sentence to 45 years. Long then sought postconviction relief for ineffective trial counsel, based in part on claims that his attorney did not interview two supporting witnesses: Long's mother and a friend. The trial court dismissed Long's petition as frivolous or patently without merit and the appellate court affirmed. 2016 IL App (3d) 140221-U. The Supreme Court of Illinois denied Long's petition for leave to appeal. Long then timely filed his habeas petition in this Court.

         At trial, Long did not dispute several of the key facts surrounding the night of the shooting. The chain of events began when three men met up: Long, Mays, and Lawless Hawk, who is Long's cousin and Mays's former coworker. The three men then drove to purchase drugs and liquor before heading back to Long's apartment, where they watched basketball, drank alcohol, and smoked marijuana. Hawk's fiancée also joined the men at the apartment at some point during the evening. It also is undisputed that while at the apartment, Hawk pulled out a .380-caliber handgun and showed it to Mays. There is disagreement, however, as to where the gun came from and to whom it belonged. Hawk claimed that he found the gun in Long's kitchen cabinet and that it belonged to the petitioner. He also reported that after showing the weapon to Mays, he put the gun on the couch in Long's apartment and left it there. In contrast, Long testified that he had never seen the gun before Hawk pulled it out of his pocket in the apartment.

         At some point after Hawk displayed the gun, he left to drive his fiancée back to her home before returning to Long's apartment to give Mays a ride to (Mays') sister's home, which was only a short two-minute drive away. Hawk and Mays both testified that after Hawk's return shortly before 11:00 PM, the two of them left the apartment and got in Hawk's car. According to the two men, Long then came down shortly thereafter and got into the backseat of the car. Long, on the other hand, claimed that Mays and Hawk left without him between 10:30 and 10:40, and that his girlfriend picked him up five-to-ten minutes later and drove him to his parents' house. Long's girlfriend corroborated his account in her testimony.

         Upon arriving at his sister's home, Mays was in the process of saying goodbye to Hawk and exiting the car when he was shot seven times, including three shots to the head and face. Mays fell back into the car, at which point Hawk rushed him to the hospital. Mays, who miraculously survived the shooting, managed to place a 911 call at 11:03 PM while en route to the hospital.

         In their investigation of the shooting, investigators found two casings inside the car, a bullet lodged in the passenger door, and a bullet hole in the windshield with a trajectory consistent with a shot fired from the backseat. Investigators also found two more casings on the street outside of Mays's sister's home. All of the casings and the bullet recovered from the car proved to be .380-caliber, as were the bullets removed from Mays's body during surgery. Police searched Long's apartment and found two issues of Guns and Ammo magazine, but no guns or ammo.

         At trial, Hawk and Mays both testified that Long was the shooter and got out of the car before Hawk sped away. The State argued that Long shot Mays in order to steal the drugs that the group had purchased earlier that evening. Long also testified and denied shooting Mays. Long also presented testimony of an analyst from Verizon Wireless who provided information about two calls that had been placed between Hawk's and Long's phones during the critical time period of the night in question. The first, initiated on Hawk's phone, took place at 10:55 p.m. with a duration of 28 seconds. The second, initiated on Long's phone, occurred at 11:01 and lasted for 20 seconds. Due to limitations in the type of data collected by Verizon, the expert could not determine whether the calls connected or were missed.

         In his habeas petition, Long asserts that his trial counsel provided ineffective assistance because his attorney did not call Jason Collins or Katherine Harper, whom Long refers to as “alibi witnesses, ” to testify. Pet'r's Traverse Mot., p. 1, ECF 29.^[1] Collins, a friend of Long's who was employed at the time of the shooting as a security guard, submitted an affidavit stating that had he been called as a witness, he would have testified that the Guns and Ammo magazines found in Long's apartment belonged to him (Collins). Long argues that the prosecution used the presence of the magazines to paint him as a gun fanatic. Harper, the petitioner's mother, also submitted an affidavit indicating that she told Long's attorney that the periodicals belonged to Collins. In addition, Harper's affidavit also states that she informed the petitioner's attorney that she was in possession of her son's cell phone, which contained a call log that memorialized the 10:55 and 11:01 calls on the night of the shooting between that phone and the phone registered to Hawk. According to Harper, the phone's call log also indicated that the first call, the incoming call from Hawk's phone, connected and was not a missed call.

         DISCUSSION

         I. Standard of Review

         Under 28 U.S.C. § 2254(d)(1)-(2), a federal court may grant a writ of habeas corpus to a petitioner incarcerated due to a state court judgment only if the applicable state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law” or was “based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(1)-(2). In the context of claims of ineffective assistance of trial counsel, a petitioner must show first that counsel was deficient to the point of making mistakes significant enough to violate the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). The petitioner must also then demonstrate that the deficiency “prejudiced the defense” to such an extent as to violate the petitioner's right to a fair trial. Id. As such, the key issue at hand is whether the Illinois Appellate Court's determination that Long's trial counsel provided constitutionally adequate representation was unreasonable. Harrington v. Richter, 562 U.S. 86, 101 (2011). This reasonableness standard requires this Court to grant a significant amount of “deference and latitude” to the state court decision. Id. Moreover, because the petitioner here must overcome the “highly deferential” unreasonableness standards established under both § 2254(d) and Strickland, he faces an especially difficult burden requiring him to prove that there is not a single “reasonable argument” that his trial counsel satisfied the Strickland standard. Id. at 105. For the reasons detailed below, the petitioner has failed to meet that burden.

         II. Jason Collins's ...