RONALD A. GUZMAN, District Judge.
In 2004, Eric Blackmon was convicted in state court of first degree murder and sentenced to sixty years in prison. He has filed a petition pursuant to 28 U.S.C. § 2254 to vacate his conviction and sentence. For the reasons set forth below, the Court denies the petition.
On July 4, 2002 at 4:30 p.m., a Chicago police officer found Tony Cox on the sidewalk near the intersection of Roosevelt and Pulaski, dying from four bullets wounds to the head. (Gov't Ex. A, People v. Blackmon, No. 1-05-1377, at 1 (Ill. App. Ct. Sept. 28, 2007).) Frencshun Reece, Lisa McDowell, and Richard Arrigo witnessed the shooting. (Id. at 1-2.)
Reece said that she was stopped at the light at Roosevelt and Pulaski and saw four men, three black and one white, talking in front of a restaurant. (Gov't Ex. CC, Tr. at FF-72-73.) She then saw one of the black men shoot Cox (who was also black) and run off with the other black man. (Id. at FF-74-75.) After the men took a few steps, however, the second man went back to Cox and shot him. (Id. at FF-75-76.) The white man, Reece said, just stood by and watched the incident. (Id. at FF-76-78.)
Later that day, Reece was shown an array that did not contain Blackmon's picture and chose three photos that she said resembled the shooters. (Gov't Ex. A, People v. Blackmon, No. 1-05-1377, at 2 (Ill. App. Ct. Sept. 28, 2007).) Two months later, the police showed Reece a second array that contained Blackmon's picture, and she identified him as the second shooter. (Id.)
McDowell said she was stopped at the light at the intersection of Roosevelt and Pulaski and saw two black men shoot Cox. (Govt' Ex. CC, Tr. at FF-4-9.) She said the second shooter was about six feet tall, wore braids and was holding a dark-colored gun. (Id. at FF-9.) At the end of August, the police showed McDowell a photo array that contained Blackmon's picture, and she identified him as the shooter with dark gun. (Id. at FF-12-18.)
On September 5, 2002, both Reece and McDowell identified Blackmon as the second shooter from a lineup. (Id. at FF-19-23, 84-86.)
When the police first spoke to Arrigo, who is white, he said that at 4:30 p.m. on July 4, 2002 he was starting to close his restaurant at 1143 S. Pulaski, when he saw Cox out front. (Gov't Ex. X, Common Law Record, Supplemental Answer to Discovery, Ex. G, 9/8/02 General Progress Report at C66.) Arrigo turned his back to lock the restaurant doors and heard two gun shots. (Id.) He turned around, saw a black man shoot Cox twice and then run away with another black man. (Id.) Arrigo said he did not recognize the shooters, did not hang around with Cox and had not called Cox that day. (Id.) Arrigo viewed a line up that included Blackmon but did not identify him or anyone else as a shooter. (Id.)
The police discovered, however, that Arrigo had called Cox before the shooting, and right after it, called a notorious gang leader named Boonie Black (a/k/a George Davis). (Gov't Ex. X, Common Law Record, Investigation Time Line at C67-68; Gov't Ex. Y, Pet. Post-Conviction Relief, App. 7, 11/13/02 Progress Supplemental Narrative at 1.) When the police confronted Arrigo with this information, Arrigo said he had forgotten he had called Cox and had not set Cox up to be killed. (Gov't Ex. Y, Pet. Post-Conviction Relief, App. 7, 11/13/02 Progress Supplemental Narrative at 1.) Moreover, Arrigo said he had heard that Keno (a/k/a Michael Davis), who was Boonie's nephew, had been involved in the murder. (Id.) Arrigo also said he had been in prison at the same time as Boonie and that he and Boonie remained good friends. (Id.; id., App. 1, Mem. Tony Cox Homicide.)
At trial, Reece admitted that none of the photos she chose from the array on the day of the murder resembled Blackmon. (Gov't Ex. A, People v. Blackmon, No. 1-05-1377, at 3 (Ill. App. Ct. Sept. 28, 2007.) She also she said she immediately identified Blackmon from the second array "because she noticed the same bone protrusion through the shirt," and later because "he looked like Michael Jackson." (Id.) (quotation omitted). However, she admitted that she had not mentioned the bone protrusion or Michael Jackson to the police when she first described the shooters to them. (Id. at 3-4.)
Selena Leavy, Blackmon's cousin, testified that she was with him on July 4, 2002 at a cookout not far from the murder scene, and that he did not leave the cookout at any time between 3:00 p.m. and 8:00 p.m. (Gov't Ex. EE, Tr. at HH-15-23, 26.) She admitted, however, that when she heard that Blackmon had been arrested for murder, she did not contact the police to tell them about the cookout and refused to speak to a police investigator when he called her. (Id. at HH-27-28.)
Tomeka Wash, a friend of Blackmon's, also testified that he was at the cookout, and did not leave it at any time between 2:00 p.m. and 9:00 p.m. (Gov't Ex. DD, Tr. at A-60-65.)
Terrance Boyd testified that on the afternoon of July 4, 2002, he met Cox, who was with Eric Bridges and Boonie, near the corner of Roosevelt and Pulaski. (Id. at A-3-6, A-21-22.) Cox told Boyd he needed to talk business with Bridges, so Boyd walked to a nearby alley. (Id. at A-7-8.) Shortly after, Boyd heard gunshots, looked around the corner and saw Bridges shoot Cox. (Id. at A-8-10.) Boyd did not see Arrigo or another shooter at the scene, and he did not tell anyone what he saw until July 16, 2004, when he was seeking leniency for a federal crime. (Id. at A-17-18, 32-35.) The medical examiner testified that Tony Cox had four bullet wounds to his head, two on the right side and two on the left, each of which alone would have been fatal. (Gov't Ex. BB, Tr. at GG-8-22.) He also said that he recovered two bullets from Cox's head, "a small sized copper jacketed bullet" and a "lead bullet . . . without a jacket." (Id. at GG-17-27.) A forensic scientist with the Illinois State Police testified that the two bullets recovered from Cox's body had been fired from different guns. (Id. at GG-31-43.)
After a bench trial, Blackmon was found guilty of first degree murder and sentenced to sixty years in prison. (Gov't Ex. A, People v. Blackmon, No. 1-05-1377, at 1, 5 (Ill. App. Ct. Sept. 28, 2007).)
Blackmon contends that his trial counsel was constitutionally ineffective because he did not call Richard Arrigo or additional alibi witnesses to testify at trial. Blackmon is entitled to § 2254 relief on these claims only if the state court "adjudication of [them] . . . was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1).
To prevail on an ineffective assistance claim, a prisoner must prove both that his counsel's performance "fell below an objective standard of reasonableness" and that "the deficient performance prejudiced [his] defense." Strickland v. Washington, 466 U.S. 668, 687-88 (1984) . Further, the Strickland Court said:
Id. at 689 (citations and quotation omitted).
The state court did not cite Strickland, but it applied the Strickland principles to Blackmon's case:
(Gov't Ex. H, People v. Blackmon, No. 1-08-2028, at 6-7 (Ill. App. Ct. July 28, 2010).) Because it correctly identified the controlling legal standard, the state court's decision was not "contrary to . . . clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1).
The record also shows that the state court reasonably applied that law to Blackmon's case. The court concluded that Blackmon had not overcome the presumption of reasonableness that applies to counsel's decisions because: (1) testimony from additional alibi witnesses would have been cumulative of Leavy and Wash's testimony; (2) counsel called eyewitness Boyd, whose testimony contradicted that of eyewitnesses McDowell and Reece; and (3) Blackmon had not provided an affidavit from Arrigo attesting that his testimony would have been favorable to Blackmon. (Gov't Ex. H, People v. Blackmon, No. 1-08-2028, at 5-8 (Ill. App. Ct. July 28, 2010).) Because this is an entirely reasonable application of Strickland to the facts of Blackmon's case, it does not provide a basis for § 2254 relief.
Finally, Blackmon argues that the state court erroneously determined that he had not satisfied the "actual innocence" standard for obtaining merits consideration of procedurally defaulted claims. See Herrera v. Collins, 506 U.S. 390, 404 (1993) ("[Our] body of our habeas jurisprudence makes clear that a claim of `actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits."). The standard is met if Blackmon offers "new reliable evidence" that was not presented at trial, and if it had been, a reasonable juror would more likely than not have had reasonable doubt about his guilt. House v. Bell, 547 U.S. 518, 537-38 (2006). Blackmon contends that the affidavits of Latonya Thomas and Lajuan Webb, attesting that they saw the shooting from a nearby hair salon and Blackmon was not one of the shooters, demonstrated actual innocence.
The state court, however, questioned both the reliability of the new evidence and its likely impact on the outcome of the case:
(Gov't Ex. P, People v. Blackmon, No. 1-11-1908 at 6 (Ill. App. Ct. May 24, 2013).) Given that the state court identified the correct legal standard and applied it reasonably to the facts of this case, the Court has no basis for overturning its "actual innocence" determination.
For the reasons set forth above, the Court denies Blackmon's 28 U.S.C. § 2254 petition [1]. Moreover, because he has not made a substantial showing of the denial of a constitutional right, the Court declines to issue a certificate of appealability. This case is terminated.