Ellison v. Acevedo

593 F.3d 625

Lorenzo ELLISON, Petitioner-Appellant, v. Gerardo ACEVEDO, Respondent-Appellee.

No. 08-2977.

United States Court of Appeals, Seventh Circuit.

Argued November 13, 2009.

Decided January 28, 2010.

Lindsay M. Beyer (argued), Winston & Strawn LLP, Chicago, IL, for Petitioner-Appellant.

Erica Seyburn, Assistant Attorney General (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before KANNE and TINDER, Circuit Judges, and GRIESBACH, District Judge.¹

GRIESBACH, District Judge.

On May 5, 1993, a Lake County, Illinois jury found Lorenzo Ellison guilty of first-degree murder in the death of Quincy King, a four-month-old infant. He was sentenced to 60 years in prison. After unsuccessfully appealing his conviction and the denial of a subsequent motion for post-conviction relief in the Illinois appellate courts, Ellison filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied Ellison's petition but issued a certificate of appealability on several issues, two of which have been briefed for appeal: (1) whether the failure of his trial attorney to consult with or call an expert witness on "shaken infant syndrome" constitutes ineffective assistance of counsel; and (2) whether the prosecutor's closing argument deprived Ellison of due process.² We find no deprivation of federal rights and affirm the district court's decision denying the petition.

I. BACKGROUND

On November 20, 1992, at approximately 12:00 p.m., paramedics from the Waukegan Fire Department were dispatched to Ellison's apartment in response to a call that a baby (later identified as Quincy King) was not breathing. Quincy's mother, Jacqueline King, was involved in a romantic relationship with Ellison and had moved into his apartment with Quincy and her other two children on October 30, 1992. A third adult, Roberto Smith, was also staying with Ellison at the time. Upon their arrival, paramedics found Quincy lying motionless on a bed in the apartment with his eyes closed. Ellison told paramedics that he had been playing with the baby by throwing him up in the air when he stopped breathing.

The paramedics transported Quincy to the hospital where he was examined by Dr. Thomas Glimp. Dr. Glimp noted that Quincy was not breathing, had no pulse, and had a bruise on his left cheek. The "soft spot" on Quincy's skull was firm and bulging, indicating pressure or fluid in the skull. Dr. Glimp asked Ellison what happened, and he again stated he had been tossing the baby in the air when the baby stopped breathing. Thinking that the explanation did not square with Quincy's injuries and that the child was the victim of shaken infant syndrome, Dr. Glimp notified hospital staff who contacted the Department of Children and Family Services. Quincy was then transported to another hospital where he was pronounced dead the next day. A subsequent autopsy confirmed that the cause of death was blunt force injury to the brain associated with shaken infant syndrome.

Ellison was interviewed by Sergeant Fernando Shipley and Detective Donald Meadie of the Waukegan Police Department the night after Quincy was taken to the hospital. Ellison gave two statements: one in his own handwriting, and a second that Detective Meadie typed and Ellison signed. In both statements, Ellison admitted that he was bouncing Quincy on the bed before he stopped breathing, but added that he had also shaken him when he started crying. In his handwritten statement, Ellison wrote:

I started to play with Quincy and throw him up in the air and bounced him on the bed and he started to cry and I shook his face to keep him from crying and don't know how hard I shook his face and bounced him on the bed and Bob [Roberto Smith] gave him CPR and I called 911 emergency and I don't see him breathing.

The typewritten statement Ellison signed likewise describes shaking the child, as well as bouncing him on the bed:

The last time I bounced Quincy on the bed, he fell away from me, and that was when I grabbed him with both hands around his head to prevent him from falling off the other side. I was trying to get Quincy to stop crying, so I started shaking him, but I guess I shook him too hard.

According to the detectives, Ellison also demonstrated for them how he had shaken Quincy by moving both hands back and forth in a "vigorous motion."

Ellison was thereafter charged with one count of first-degree murder and arraigned on December 15, 1992. At an early pretrial conference on January 27, 1993, Ellison's retained counsel, Attorney Seymour Vishny, indicated he was in the process of obtaining an expert but would need three to four weeks to do so. It appears, however, that Attorney Vishny was under the impression that either Ellison or his family would have to pay for an expert, and he reported at a pretrial conference on February 11 that he was having difficulty getting the family to cooperate. The trial court explained that there were other options that were not dependent on family resources and continued the case for the following week. By that time, Ellison's family had retained Attorney Robert Pantoga to replace Attorney Vishny, and the case was again continued for another week.

On February 24, the court set the matter for trial on April 26, 1993. On March 31, Attorney Pantoga asked the court to continue the trial date for another week so that he could review the resumes of the State's experts and obtain his own. The trial court granted the request, and at the final pretrial conference on April 14, Attorney Pantoga made no mention of an expert. No further requests for a continuance were made, and the trial commenced, as scheduled, on May 3, 1993.

At trial, Dr. Glimp testified to his observations when Quincy arrived at the emergency room, and Sergeant Shipley and Detective Meadie told of their interview with Ellison and recounted his statements to them. Dr. Jeffrey Jentzen, the forensic pathologist who performed the autopsy on Quincy, also described his findings.

Dr. Jentzen noted there were bruises on the right and left cheeks, and a scabbed-over quarter-inch laceration on the back of Quincy's head. Four of Quincy's right ribs showed healing fractures that were three to four weeks old. He also noted that there were recent rib fractures on both the left and right sides, with the left-side fractures on the back. He opined that the recent fractures occurred within a few days of Quincy's death. Quincy also had a depressed skull fracture and multiple blood clots in his skull. The corpus callosum, which is the band of tissue connecting the right and left halves of the brain, had been lacerated, and each of Quincy's eyes had multiple hemorrhages. Quincy had a large blood clot near his spinal cord, corresponding to the fractured ribs on his left side. With the exception of the old rib fractures and the scalp laceration, Dr. Jentzen opined that all of Quincy's injuries occurred at the same time.

Based on his examination, Dr. Jentzen concluded that Quincy died as a result of shaken infant syndrome. Dr. Jentzen explained that shaken infant syndrome refers to "a group of findings or injuries that occur when a child is violently shaken." According to Dr. Jentzen, the child is typically grasped in the chest area and the ribs next to the spine fracture from the pressure of squeezing the child. Because an infant's bones are more elastic than those of an adult, "a large amount of force" was needed to fracture them. The blood clots in the skull are the result of the child's brain violently striking the inside of his skull as he is shaken back and forth, a sort of "whiplash phenomenon" that occurs because the child's neck muscles are not sufficiently developed to support his head while he is being shaken. The corpus callosum, ruptures when the brain twists and turns, and the supporting structures can no longer support the brain. Dr. Jentzen testified that this type of rupture typically also occurs in motor vehicle accidents and falls from great heights. Hemorrhages in the eyes occur when the shaking causes the blood vessels in the eyes to separate. Death occurs when the injured brain tissue swells.

According to Dr. Jentzen, Quincy would have had to have been "violently shaken" to cause the injuries he observed. Based on his experience in such cases and discussions with colleagues, Dr. Jentzen stated that individuals who cause such injuries "typically shake a child until they describe their arms as being tired." Given the nature and extent of the more recent injuries he observed, Dr. Jentzen also thought that the person who caused them "would have had to have known that the child was severely injured. The child would most probably have been comatose or semi-comatose, there would have been irritability, there would have been evidence of injury."

In addition to these witnesses, each of the adults who were present in the apartment when Quincy stopped breathing testified to the events leading up to his death. Jacqueline King, Quincy's mother, testified that the night before her son died she was sleeping with Ellison in his bedroom, while Quincy slept on a pallet on the floor next to Ellison. Between three and four o'clock in the morning, Quincy began to "holler" and would not go back to sleep. Ellison offered him a bottle and pacifier, but the child wouldn't take them. In King's words, Ellison "turned over and he did a little shove like, `shut up, boy. I got to go to sleep.'" Quincy quieted down, but started up again "as soon as Lorenzo stopped shaking him...." At that point, King testified that she got out of bed and sat on the floor with Quincy until he went to sleep.

When Quincy woke up the following morning, King testified that he appeared normal to her. Sometime around 11:30 a.m. Ellison and Smith began tossing Quincy in the air and letting him fall onto the bed. Quincy looked "scared" and was "whining," and King asked them to stop, but they did...