Cal v. Garnett

991 F.3d 843

Cedric CAL, Petitioner-Appellant,

v.Jason GARNETT, Chief of Parole for the Illinois Department of Corrections, Respondent-Appellee.

No. 20-1047

United States Court of Appeals, Seventh Circuit.

Argued December 16, 2020

Decided March 23, 2021

Alison R. Flaum, Attorney, Shobha Lakshmi Mahadev, Attorney, Northwestern University School of Law, Bluhm Legal Clinic, Chicago, IL, for Petitioner-Appellant.

Erin O'Connell, Attorney, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before Wood, Scudder, and St. Eve, Circuit Judges.

Scudder, Circuit Judge.

In 1994 Cedric Cal and Albert Kirkman were convicted in Illinois state court of murder and attempted murder after a shooting left two people dead and a third victim, Willie Johnson, alive but with nine gunshot wounds. Johnson testified at trial and identified Cal and Kirkman as the shooters. Some 15 years later, Johnson recanted, stating under oath that neither Cal nor Kirkman were the shooters. Cal reacted to Johnson's recantation by seeking relief based on a claim of actual innocence. An Illinois court held an evidentiary hearing and—after finding Johnson's recantation implausible and not credible—denied Cal's request for relief. The Illinois Appellate Court affirmed.

Cal then turned to federal court and filed a petition for habeas corpus relief invoking 28 U.S.C. § 2254(d)(2) and contending that the state court's rejection of Johnson's recantation testimony and denial of his actual innocence claim were based on an unreasonable determination of fact. Our court, however, recently rejected a similar argument from Cal's codefendant, Albert Kirkman, who challenged the exact same state court ruling in his own habeas corpus petition. Although the Illinois Appellate Court's decision is far from flawless, we too deny Cal federal habeas relief.

I

A

Around 10:00 p.m. on April 21, 1992, Willie Johnson was hanging out in his front yard with his friends Cedric Herron and Sammy Walker. Two gunmen approached and fired multiple shots. Herron and Walker died at the scene. Johnson suffered nine gunshot wounds but survived. At the hospital, Johnson agreed to talk to the police. He identified one of the shooters by his street name "Duke," relayed where Duke lived, and described the car he drove. A few hours later, the police pulled over a vehicle matching Johnson's description and arrested the driver, Albert Kirkman, and the passenger, Cedric Cal, who matched the description of the second shooter. Kirkman initially denied going by the name Duke but eventually admitted it after the police saw the name Duke tattooed on his left arm. Upon reviewing a photo array at the hospital, Johnson identified Cal and Kirkman as the shooters.

At Cal and Kirkman's joint jury trial, the prosecution called Johnson as its key witness. Johnson again identified Cal and Kirkman as the shooters. His testimony was the only evidence linking Cal and Kirkman to the crime. Johnson testified that on the day of the shooting, his sister Latanya came home crying, so he went outside to confront his neighbor, Keith Ford. Johnson and Ford were members of rival gangs and the two had a history of feuding over the drug turf on their block. Johnson belonged to the Insane Vice Lords, whereas Ford was a high-ranking Regent for the Gangster Disciples. When Johnson approached, Ford was standing outside his own home with five other men, including Duke and another man Johnson would later identify as Cal. A fight broke out between Johnson and the men with Ford. Johnson testified that his two friends Herron and Walker eventually arrived at the scene and joined the fight.

On cross-examination, Johnson denied that the altercation before the shooting involved a drug dispute and instead maintained that the fight started when he confronted Ford about upsetting his sister.

Johnson's then-girlfriend, Latrese Buford, testified on the defendants’ behalf and gave a different account of what led to the shooting. She said that the events that transpired before the shooting revolved around disputed drug turf in the neighborhood. According to Buford, prior to the shooting she and Johnson observed one of Herron's "workers" selling drugs in an area claimed by Ford. (Like Johnson, Herron was an Insane Vice Lord.) Soon after, two vans—including one driven by Ford—approached the worker and several men got out of the vans and began beating up the worker. Ford did not participate in the fight but gave orders to beat up the man. The fight lasted until Herron arrived and told Ford to call it off. Buford testified that when the skirmish was over, Ford approached Johnson and Buford and warned Johnson "that it could be dangerous being around Cedric [Herron]" because Herron was selling drugs on Ford's turf.

Another defense witness, a neighbor, testified that she and her grandchildren spoke to Cal only a few minutes after the shooting and that he stood with them observing the crime scene for 45 minutes—not the reaction expected from someone who participated in the shooting. And a third defense witness testified that a month after the shooting, Johnson told him that Cal and Kirkman were not the shooters.

The jury found Cal and Kirkman guilty of two counts of murder, one count of attempted murder, and one count of aggravated battery. The court sentenced each of them to mandatory life without parole. The court later reduced Cal's sentence to 60 years, however, because he was 17 at the time of the crimes, and the Supreme Court has held that mandatory life sentences for juvenile offenders violate the Eighth Amendment. See Miller v. Alabama , 567 U.S. 460, 465, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Cal has since been granted supervised release.

The Illinois Appellate Court affirmed Cal's convictions on direct appeal, and the Illinois Supreme Court denied review. Since his convictions, Cal has filed four post-conviction petitions in Illinois state court. Only the third petition is relevant to this appeal.

B

In 2009 Cal asked the Illinois Circuit Court for permission to file a successive post-conviction petition raising an actual innocence claim under the Illinois Constitution. See People v. Washington , 171 Ill.2d 475, 216 Ill.Dec. 773, 665 N.E.2d 1330, 1337 (Ill. 1996) (recognizing a freestanding actual innocence claim as cognizable as a matter of due process). In support of his motion, Cal attached an affidavit that Willie Johnson signed in 2009 recanting his identification of Cal and Kirkman as the shooters. Johnson swore under oath that Keith Ford and an unknown second shooter—but not Cal or Kirkman—were the assailants. Johnson further stated that he had falsely identified Cal and Kirkman before and during the trial because he did not like them, and above all, he was afraid of Ford. Like Cal, Kirkman pursued his own post-conviction actual innocence claim based on Johnson's recantation.

The circuit court granted Cal leave to file the third petition and held a joint evidentiary hearing for Cal and Kirkman in 2011. Johnson stood by his recantation when questioned by the circuit court judge. At the hearing, Johnson denied ever fighting with Cal or Kirkman, but he did admit that on one occasion in April 1992, he walked up to Kirkman, who was selling drugs outside of Johnson's house, and stole his drugs. Johnson knew Kirkman to be a Conservative Vice Lord but believed that Kirkman and Cal were aligned with Ford in the drug trade on the block. Johnson could not recall whether Cal was present at the time he stole Kirkman's drugs and denied having any other disputes with Cal and Kirkman, including any dispute involving his sister.

When asked why he did not initially name Ford as the shooter, Johnson explained that he had lied at trial out of fear for his own life and for his family's. According to Johnson, when he first identified Cal and Kirkman to the police, he "didn't know if [he] was going to die or not," and his mother and sister had already received threats, which he believed came from Ford. He testified that the threats from Ford started immediately after the shooting—while Johnson was still in the emergency room. Although Johnson believed that Cal and Kirkman were aligned with Ford, he stated that he only feared Ford.

Johnson testified that, although he had considered Cal and Kirkman to be enemies, he did not want them to be convicted. He said that he tried to avoid testifying at trial, hoping that Cal and Kirkman would beat the case if he did not show up. Indeed, the trial record reflects that Johnson failed to appear at trial despite having been subpoenaed. A warrant had to be issued for his arrest before he finally appeared and testified.

At the 2011 hearing, Johnson explained that he chose to come forward with the truth after so many years because he no longer feared Ford. Johnson believed himself safe now that he lived in Texas—far away from Ford and his associates. Johnson also testified that his decision to recant was reinforced by a call he received from Ray Longstreet—an old friend and leader of Johnson's former gang, the Insane Vice Lords—who urged Johnson to "tell the truth" and assured him that Ford would not retaliate. To Johnson's mind, he could trust Longstreet's word because he was a "well-known man in these streets" with "a lot of power."

Johnson's former girlfriend Latrese Buford also testified at the evidentiary hearing. According to Buford, Johnson told her immediately after the 1992 shooting that Duke and Cal were the shooters. Buford relayed that information to the police after the shooting even though Johnson implored her not to tell anyone. She also claimed that she did not see Johnson—contrary to his testimony at the hearing—make or receive any phone calls while in the emergency room, nor were there any phones present in the emergency room but only in the inpatient rooms. These latter points contradicted Johnson's testimony from the evidentiary hearing, during which he said he received a call while in the emergency room.

Th...