Case Information
*1 Before K ANNE , R OVNER , W ILLIAMS , Circuit Judges . W ILLIAMS Circuit Judge
. Maurice collateral challenge armed robbery convictions before us second time. first appeal, reversed 2000 the district court’s denial Coleman’s habeas petition. Hardy ( “Coleman I” ), 2010). We concluded the facts underlying petition could potentially demonstrate his actual innocence the state charges ordered the district court conduct ev identiary the issue. Id. (citing U.S.C. § 2254(e)(2)(B)). On remand, parties completed discovery district court held two evidentiary hearing. After court examined entirety record concluded Coleman not satisfied actual innocence standard. Because needed make this showing order court excuse his failure exhaust state remedies consider his sub stantive ineffective habeas claim, denied his peti tion.
After reviewing extensive record pre investigation, trial, collateral review, federal habeas proceedings, we agree has demonstrated actual innocence. Much evidence presented establish inno cence unreliable. Even though introduce two eyewitnesses unable place scene crime, enough overcome eyewitnesses crime who identified perpetrator another witness impli cated Absent showing actual innocence, must refrain reviewing substance procedurally defaulted habeas claims. affirm denial habeas petition.
I. BACKGROUND A. Offense, Investigation, Trial On evening August 1981, drug dealer named Terrell Jackson (“TJ”) was shot to death his home Chi cago’s South Side. brother, Arlander Adamson, his stepdaughter, Gwen Thomas, were both house According to Adamson, men en tered house, pointed their guns Adamson, tied hands behind back, gagged him. The gunmen forced Adamson up stairs to bedroom. Adamson was thrown to floor, face down. The gunmen repeatedly asked TJ where kept money. When TJ refused coop erate, assailants fired multiple bullets into him.
One gunmen proceeded into next room where Thomas watching television her week old baby. Thomas forced into bedroom where she tied up placed floor next Adamson dy ing TJ. gunmen eventually left soon succumbed wounds.
Adamson Thomas did know gunmen only able provide general descriptions their initial statements police. On crime, they viewed mug shot photos possible suspects but identify murderer. When police searched scene, they found ‐ unloaded .22 caliber revolver under TJ’s mattress. Ballis tics tests later revealed that none of the bullets recovered the scene came the gun. According the initial police report of the incident, the gunmen stole a necklace and ring the initials “TJ” written diamonds.
Two weeks after the murder, police interviewed TJ’s neighbors, two brothers named David and Tracey Wilkins. David told officers that he saw two men on TJ’s back porch on the night of the murder. He stated the two men re peatedly entered and exited house the hour and half period before shooting. David saw one the men run across street laundromat then return few minutes later. David’s brother Tracey laundromat time told police he saw man (matching Adamson’s Thomas’s description killers) walk use phone forty five minutes before Tracey saw same man another running down street after shooting occurred. Both brothers provided descriptions two males similar those given Adamson Thomas.
Chicago Police officers also spoke Roy Wright on two occasions over course their investigation. first terview Wright occurred day murder on August 3, At meeting, Wright told officers murder trying coordinate drug deal but deal never went through. He stated picked up men (one whom whom know) night dropped them off front house. Police inter viewed second August 1981, time stated that Coleman had tried sell TJ’s medallion his initials written diamonds.
On August (more than two weeks mur der), Adamson, Thomas, and David Wilkins each separately viewed police lineup that included Coleman and six other suspects. Adamson Thomas both identified Coleman as one of men who murdered TJ. David Wilkins did not se lect Coleman or any other suspect as one men he saw hanging around TJ’s just before murder. Police terviewed Coleman same day. He denied any involve ment stated he could remember exactly where he or what he doing at crime. He believed either at home his then girlfriend or own home, alone. Adamson Thomas later viewed another lineup suspects identi fied Joseph as other perpetrator.
Coleman were tried together Circuit Court Cook County. Each had own separate counsel. Adamson Thomas key witnesses tying murder. Both identified as one perpetrators open court. Adamson testified good look day murder—they stood six inches away each one point. cross examination Adamson stated looked down closed eyes when put gun head. Thomas also identified person came into her room brought her into bedroom. called police officers impeach Thomas’s trial testimony. Al though Thomas testified assailants pulled her necklace off, officers she report theft elic ‐ ited from one officers David Wilkins had seen men near house around murder but had identified as them.
Both Barnes convicted murder armed robbery. After considering whether to impose death penalty, trial judge elected to sentence Barnes natural life prison their respective mur der convictions.
B. State Postconviction Proceedings After an unsuccessful direct appeal, pursued relief help co defendant Barnes. Barnes submitted affidavit stating had nothing do murder. Barnes stated co defendant should have been Wright. According Barnes, he, Wright, another man, Barnett Hall, pur chased drugs TJ turned out low quality. averred that, evening murder, Wright went get their money back. A con frontation ensued during TJ pulled out gun. responded pulling out their guns shoot ing multiple times self defense. submitted signed affidavit
trial attorney, James L. Rhodes. According Rhodes’s statement, informed trial nothing do Moreover, Rhodes stated that expressed dismay about Coleman’s con ‐ viction. Coleman also relied upon affidavit a de fense investigator interviewed Adamson 1994. Ac cording investigator, Adamson told Wright had been a couple times on day Adamson reportedly told investigator Thomas dated some point.
In 2000, while postconviction petition was still pending, Loretta Cade, girlfriend time mother child, submitted a signed statement. Loretta stated Coleman her shooting. In 1999, Loretta’s mother, Evelynn Cade, signed statement she called Loretta shooting approximately 5:00 or 5:15 p.m. spoke for fifteen minutes. Illinois postconviction trial court held petition testified. Ultimately, court rejected petition for relief unable overturn decision appeal.
C. Federal Habeas Hearing filed federal habeas petition pe tition, asserts three ineffective assistance counsel claims. concedes procedurally de faulted these claims neglecting present them complete round state review. Bolton Akpore 2013) (“Procedural default general ly precludes federal reaching merits habeas claim when claim presented state courts it clear courts now find claim procedurally barred.”). argued dis ‐ 2000 trict court could still consider his procedurally defaulted claims because he actually innocent the crimes which he convicted. generally Schlup Delo , U.S. ‐ (1995). After our decision in I remanded case in order court conduct an hearing question inno ‐ cence. So held two hearing in which it received and evidence.
Barnes testified at hearing. For most part, his tes timony consistent with story he told his affi davit. He testified that Wright, Coleman, had been volved murder. Barnes’s story changed im portant way. He stated three people—Barnes, Wright, and Barnett Hall—entered house night This inconsistent with his affidavit he swore people, he Wright, entered shot TJ. story presented Barnes, Wright, Hall entered house, went upstairs room, argued with TJ. Barnes further testified he co assailants exchanged gunfire killed him. also corroborated affidavit given trial attorney, Rhodes, regarding statements Rhodes trial. According Barnes, told Rhodes trial had nothing do also expressed disappointment had been wrongfully convicted. also testified knew neighborhood but they friends.
Rhodes also repeated ac count what told trial. Rhodes testi fied about pre investigation conducted attorney, Geary Kull. Rhodes stated that Kull interviewed David Tracey Wilkins, two broth ers were TJ’s neighbors. According to Rhodes, both men were able to identify as one two men they saw on day but neither able identify Coleman as one those men. Kull also testified at hear ing about interview Wilkins brothers. Like Rhodes, Kull stated neither David nor Tracey Wilkins identified Coleman one individuals they saw day TJ’s
Coleman also presented testimony from Loretta Cade. She testified Coleman staying her her par ents’ home her parents left for vacation July 1981. According Loretta, she Coleman never left house, even moment, for two weeks her parents vacation. addition, Loretta’s mother, Evelynn, submitted affidavit she stat ed her daughter when she called home 5:15 p.m. August heard Wright. Wright known since elemen tary school. A year before murder, Wright introduced house soon began brokering drug deals between men. eventually began buy ing drugs directly TJ. On murder, Wright stated stopped house around noon try set up drug deal but left shortly after. Around o’clock same day, approached Wright gas station asked Wright drive loca tion near house. During drive, testified, exchanged handguns talked about “tak[ing] care some business” later day. After drop ping Barnes and off, Wright went TJ’s house ask about potential drug deal. When TJ demurred, Wright left house and did not come back rest day.
Wright learned TJ’s next day. He testified he told police about visits TJ’s house but did not mention interaction with and because he did believe it was relevant investigation. Two days he spoke with investigators, Wright encountered at a local playground. approached Wright and asked him whether he wanted buy medallion with initials “TJ” inscribed diamonds. Wright stated he recognized medallion realized involved murder. When police interviewed Wright second time, he told them about attempt sell medallion about interaction with day murder.
Wright also testified he knew Adamson Thomas admitted present denied shooting having roman tic relationship Thomas. For her part, Thomas hearing denied having romantic relation ship Wright.
Coleman took the stand on his own behalf the hearing. He denied ever visiting home denied participating Although Coleman said he knew neighborhood, he denied being friends or ing involved drug trade him. he was Evelynn Cade’s Loretta Cade house sitting. On cross examination, was asked why was listed on Barnes’s list visitors latter’s incarceration explained his appearance on list coincidence—he had driven wife (who friend sister) prison visit day.
After evidentiary district court issued written opinion denying habeas petition on ground had not demonstrated his actual innocence. district court conducted exhaustive review ev idence pre investigation, trial, proceedings, habeas hearing. Based entire record, found had not established actual innocence so entitled consideration procedurally default ed habeas claims. now appeals.
II. ANALYSIS contends erred denying habeas petition based its conclusion demonstrated actual innocence. “When reviewing court’s decision habeas petition, review its factual findings clear error its legal conclusions de novo.” Newman Harrington 2013).
12 12 2000
As a general matter, federal habeas courts are precluded from considering habeas claims were procedurally de faulted because they not presented one complete round court review. See O’Sullivan v. Boerckel , 526 U.S. 838, 845 (1999). a petitioner can still obtain review defaulted claims establishing fundamental mis carriage justice would result denial petition because or she is actually innocent. House v. Bell , 547 U.S. 518, 536 37 (2006). “[T]enable actual innocence gateway pleas are rare: ‘[A] petitioner does not meet threshold requirement unless persuades that, light new evidence, no juror, acting reasonably, would have voted find guilty beyond reasonable doubt.’” McQuiggin v. Perkins , 133 S. Ct. 1924, 1928 (2013) (quoting Schlup , U.S. at 329). The new may include “ex culpatory scientific evidence, trustworthy eyewitness ac counts, or critical physical evidence—that presented trial.’” House , U.S. (quoting Schlup , U.S. 324). actual innocence standard demanding “permits review only ‘extraordinary’ case.” House , U.S. When deciding ultimate question inno cence, “the habeas must consider all evidence, old new, incriminating exculpatory” then “make probabilistic determination about what reasonable, properly instructed jurors would do.” Id. review de novo dis trict court’s conclusion whether reasonable juror convict light all evidence. Gomez Jaimet 2003). support actual innocence claim, mostly relies four categories new evidence: (1) Barnes’s testi mony involved murder; (2) attorney, Rhodes, professed innocence at the time of trial; (3) state ments then girlfriend, Loretta Cade, her mother Evelynn that was with Loretta at time of murder; (4) neighbors, Wil kins brothers, could not identify one of men they saw outside day murder. When viewed in conjunction with entirety record in this case, argues, no reasonable juror would vote find guilty beyond reasonable doubt.
To determine how reasonable juror assess man’s first category exculpatory evidence, testimony his co defendant, Barnes, we must account court’s serious concerns credibility. Following opportunity observe Barnes directly at evidentiary court found Barnes “was not cred ible witness his affidavits are relia ble.” almost never disturb type finding dis trict court. generally United States Stewart 714, 2008) (“[D]eterminations witness credibility can virtually never clear error.”). Nor do see reason do so here. For one thing, Barnes has history fabrication. For example, noted previously presented three conflicting accounts his involvement in murder: extradition hearing (Barnes arrested Balti more, Maryland), another trial, third hearing petition. At extradition 1982, Barnes testified Baltimore murder. At trial, instructed wife lie testify home her Chicago Then, kill but Wright, Coleman, did deed him only self defense after TJ began shooting. Barnes’s inability present consistent account of whereabouts the the provided sound ba ‐ sis for district discount newest version events that presented evidentiary hearing.
The court’s disbelief Barnes’s evidentiary hear ‐ ing testimony supported inconsistencies tween Barnes’s account other evidence case. At testified he, Wright, Hall went into TJ’s house then group shot TJ pulled gun them. all accounts incident (from Adamson, Thomas, Wilkins brothers) suggest men, three, went into TJ’s evening. Moreover, Barnes’s pulled gun has no ba sis physical evidence scene. Police found gun under mattress, unloaded, none bullets found scene matched gun.
Barnes’s obvious motive for blaming Wright gave dis trict another appropriate ground upon base its credibility determination. At hearing 1995, felt embittered ward Wright for supplying law enforcement infor mation culminated arrest for He again expressed animosity toward Wright eviden tiary hearing before court, stating “angry” Wright for giving up. antagonism toward provides another justifi cation discounting reliability former’s testimony. generally United States Abel U.S. (1984) (“A successful showing bias part witness ‐ would have tendency make the facts to he testi fied less probable the eyes the jury.”). addition enmity toward Wright, Barnes’s friend
ship supports court’s second thoughts about Barnes’s testimony. At before court, Barnes around he were “okay. We all right, you know. It’s like you know next door neigh ‐ —a person live on block.” on cross examination, Barnes admit ted 1980, while he incarcerated on unrelated charge, identified as friends on visitor list. When asked about this Coleman’s postconviction Barnes stated placed on visitor list as matter conven ience. According Barnes, driven Barnes’s wife (a friend sister) prison so put name visitor list so have wait outside prison. After having opportunity hear this Barnes, post conviction trial found indeed friends concluded their friendship provided strong incentive testify favor. see no reason disagree Illinois court’s finding point. Woolley Rednour 2012) (“State findings … are presumed correct federal habeas review, unless peti tioner rebuts those findings ‘clear convincing evi dence.’” (quoting U.S.C. § 2254(e)(1))).
Given fluctuations account over years, discrepancies between most recent edition case, well as biases against in Coleman’s favor, did not clearly err in deciding not to believe Barnes’s testi ‐ mony. Barnes’s credibility deficiency renders his testimony unhelpful attempt show his innocence.
Barnes’s credibility issues affect our assessment of how jury would view testimony offered by ‐ torney, Rhodes. maintains reasonable juror find him innocent based Rhodes’s testimony (in hearings before state dis ‐ trict court) Barnes told privately “Coleman re ally didn’t have anything do it” Barnes dismayed conviction. We see no reason doubt Rhodes truthfully reporting Barnes’s statements him. ambiguity of these remarks gives them little exculpatory value isolation. Barnes’s statement could mean, argues, did not participate murder. Or perhaps Barnes merely stating did not have any involvement underlying dispute between Barnes culminated lat ter’s murder. Or maybe remarking lack of involvement planning of can sure because provide Rhodes an explanation meaning remarks made them. So assess effect Rhodes’s re quires consideration credibility source. Put way, value Barnes’s statement depends trustworthiness clarification supplied collateral proceedings federal court.
Unfortunately Coleman, attempts clarify meaning statement Rhodes suffered signif icant credibility problems. various accounts mur der presented internally inconsistent conflicted with physical testimony. Barnes’s biases favor against man got arrested, Wright, provided him powerful incentives fabricate account. Moreover, two courts observe testify, district court, both found statements involved decidedly lacking credibility. light unreliability surrounding Barnes’s subsequent attempts explain what meant when he told Rhodes “nothing do it,” Rhodes’s testimony about ambiguous pronouncements cannot support actual innocence claim. statements testimony given alibi witnesses, Loretta Evelynn Cade, suffer from simi lar credibility issues. Recall told police that, murder, either home alone or Loretta Cade, then girlfriend. introduced testi mony Loretta evidentiary order support alibi. observing Loretta’s testimony district found she lacked credibility based her demeanor stand. United States Noble 2001) (“[W]e defer court’s determination witness credibil ity, can virtually never clear error.”) (internal quo tation marks omitted). see no clear error finding. Apart her demeanor, substance Loretta’s testi mony supports court’s assessment. For example, Loretta maintained she never left her par ents’ home weeks early August Besides its inherent implausibility, Loretta’s testimony contradicts own left Cades’ day after murder to spend all day park. In addi ‐ tion, as mother Coleman’s child, Loretta had a proba ‐ ble bias favor. generally Hayes Battaglia 2005) (“To demonstrate innocence so convincingly no reasonable jury could convict, a prisoner must have … powerful evidence: perhaps some non relative who placed out city, credit card slips, photographs, phone logs back up claim.”). A reasonable juror likely would be persuaded by state ments provided by Loretta’s mother, Evelynn Cade, for same reason: Evelynn’s relationship suggests she a motive give evidence favor. Id. ad dition, find it hard believe Evelynn able recall, sworn statement made almost twenty years af ter murder, precise she spoke Coleman. Neither woman provides much help actu al innocence challenge. best hope provided
neighbors, David Tracey Wilkins, observed indi viduals outside day murder. Both Wilkins brothers viewed lineup individuals including just few weeks (Tracey looked photo array while David viewed photo array person lineup). Neither brother identified as individuals seen same Nor does record reveal any reason for Wilkins brothers lie Coleman—by all accounts, they know each other. Based Wilkins brothers’ disinterested *19 19 ‐ 2000 ments to police and Coleman’s attorney, Coleman argues, we must sustain actual innocence claim. we cannot assess Wilkins brothers’ statements vacuum. Rather, to evaluate their impact a hypothetical
jury, we must consider them tandem testimony other witnesses to and any other evidence link ing Coleman to crime. See House , U.S. (“[T]he habeas must consider all evidence, old new, incriminating exculpatory” “make probabilistic determination about what reasonable, properly instructed jurors would do.”). Using approach, must remember Wilkins brothers only witnesses murder: Adamson Thomas both identified Coleman as assailants. Adamson identified live police line ‐ up shortly murder, preliminary trial. Although Adamson averted glance from when gun put head, also testi fied stood face face Coleman, about six inch es away from him, when first entered home. total, Adamson spent few minutes over course encounter. Thomas an opportunity view up close incident (she testi fied less than two feet away at one point). Thomas contemporaneously identified Coleman as one of murderers a photo array containing over hundred mug shots as well as a live police lineup. These statements possess many of the indicia of reliable eyewitness identifica tions and constituted chief evidence of guilt at trial. generally Manson Brathwaite U.S. (1977) (listing “opportunity witness view crimi nal at time crime, witness’ degree attention, accuracy prior description criminal … and time between crime confrontation” factors weighed determining reliability).
Coleman maintains adduced state federal collateral proceedings undermines credibility Adamson’s Thomas’s identifications. Mostly, relies a statement from investigator assisted during proceedings. Accord ing investigator, Adamson told Thomas “‘thing’ while.” This relationship, argues, supplied both Thomas Adamson motive implicate order protect Wright. But Thomas and Wright testified evidentiary hearing be ‐ fore they never had a relationship. addition, never established timing their pur ‐ ported relationship. Even if had shown Thom ‐ as Wright a relationship TJ’s mur ‐ der, it seems far fetched to argue Adamson had a mo ‐ tive protect murdered his brother just be ‐ cause happened be dating his brother’s step daughter. Given their reliability consistency, Adamson’s Thomas’s testimony remain convincing ‐ man’s guilt. must also consider Wright’s testimony evi ‐
dence order evaluate whether is actually ‐ nocent At tes ‐ tified that, murder, drove location near observed both men had guns them. He tried sell medallion couple days after mur der. Wright’s hearing testimony is consistent with state ment initial police report noting gunmen stolen “TJ” medallion scene crime. Moreo ver, Wright’s testimony is largely consistent with ment police (given weeks murder) with testimony preliminary hearing month lat er. To sure, Wright’s prior convictions past drug deal ing weigh against credibility. generally Fed. R. Evid. Still, Wright’s entitled some weight because its consistency statements made contemporaneously well as infor mation gleaned scene crime. 2000
After reviewing evidence, both old new, of Coleman’s guilt, we cannot conclude “no juror, acting reasonably, would have voted find him guilty beyond reasonable doubt.” Schlup , U.S. 329. Testimony statements from Barnes, Rhodes, Cades all suffer from profound credibility reliability problems most likely not persuade reasonable juror Coleman’s innocence. Evidence Wilkins brothers’ inability place home murder, while helpful cause, is not sufficient overcome Adamson, Thomas, implicating him crime. See, e.g., Smith McKee , 2010) (holding petitioner “put forth statements two witnesses not called trial” not “suf ficiently counter state’s eyewitness identifications” concluding actual innocence standard not satisfied). short, is “the extraordinary case” actual innocence warrants excusal procedural default rule. House U.S. Because claims are procedurally defaulted has provided us reason excuse application rule, affirm court’s denial habeas petition.
III. CONCLUSION judgment A FFIRMED .
[*] substitute Michael Lemke, current warden Stateville Correc tional Center, Respondent action. Fed. R. App. P. 43(c)(2).
[1] limit our synopsis those facts bearing actual inno cence claim. For more extensive factual summary includes infor mation related ineffective assistance counsel challenge, refer reader our previous opinion case. I
[2] Hall died shortly
[3] Both Rhodes attorney, Geary Kull, currently serve judges Circuit Court Cook County.
[4] For most part, Wright’s hearing consistent story told preliminary case September exception relates discussion between about “tak[ing] care some business” mention hearing.
[5] has never introduced affidavit or sworn statement either Wilkins brother support claim call them witnesses before court. Alt hough their statements police attorney are relevant issue guilt, their sworn statements or testimony more powerful favor. generally Mu rillo Frank 2005) (“Live prefera ble affidavits transcribed confessions, because cross examination can probe its weaknesses.”).
[6] argues reasonable juror find Adamson’s Thomas’s identifications particularly strong based certain aspects their testimony. support, cites: (1) Adamson’s admission looked down assailants one point during encounter, (2) discrepancy between Thomas’s her tackers took necklace her neck her failure report inci dent police crime. both these matters elicited cross examination trial. fact jury still convicted despite these complications suggests they are less significant than suggests.