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