Ortega v. Wills

1

MICHAEL ORTEGA (R-40675), Petitioner, v. ANTHONY WILLS, Respondent.

No. 18-cv-03631

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

September 27, 2022

MEMORANDUM OPINION AND ORDER

JOHN F. KNESS, United States District Judge.

Petitioner Michael Ortega, an Illinois prisoner at Menard Correctional Center, filed this habeas corpus action under 28 U.S.C § 2254 challenging his 2004 Cook County murder conviction. (Dkt. 1.) Before the Court is Petitioner's motion for an evidentiary hearing, by which he seeks to develop evidence concerning his claim of ineffective assistance of trial counsel based on counsel's purported failure to investigate alibi evidence from Petitioner's mother and sister. (Dkt. 28; Dkt. 34; Dkt. 40.) For the reasons that follow, the Court holds that the Illinois court reasonably concluded that Petitioner's trial counsel did not render ineffective assistance. Petitioner is therefore not entitled to habeas relief. And because federal courts are, except in limited circumstances not present here, bound on habeas review to the factual record developed in the state courts, the Court similarly denies Petitioner's motion for an evidentiary hearing.

I. BACKGROUND

A. Petitioner's Trial and Direct Appeal

This case relates to Petitioner's first degree murder conviction for the shooting death of Kenneth Lawson in July 2003. (Dkt. 10-1 at 1-4) (People v. Ortega, 932 N.E.2d 1221 (Table) (Ill.App.Ct. Feb. 7, 2007)).^[1] Petitioner was found guilty following a jury trial, and the state trial court sentenced Petitioner to 46 years of imprisonment.

As established at trial, between 10:30 and 11:00 p.m. on the evening of July 12, 2003, Lawson and his friend Jeremy Howard drove a van to a party on Chicago's south side. (Dkt. 10-1 at 1-2.) Once there, Lawson and Howard met another friend, Marlin Willis. (Id.) After driving to a liquor store and returning with a bottle of rum, Lawson parked his van. (Id. at 2.) Guests at the party mingled on the house's porch, in the area between the porch and the van, and in the van itself, the sliding door of which was open. (Dkt. 10-19 at 15-16, 104-05). A few hours later, a Hispanic man wearing a bandana walked by the party, threw up a gang sign, and said “Latin Kings” to Lawson. (Dkt. 10-1 at 2.) Lawson and the man argued. Although the argument did not involve physical violence, Howard stepped in to break it up. The man with the bandana then said he would return soon and told Lawson, Howard, and Willis they should not be there when he did. (Id.)

Five minutes later, the man with the bandana returned, accompanied by another man, later identified by Howard and Willis as Petitioner. (Dkt. 10-1 at 2.) At that time, Lawson, Howard, and Willis were preparing to leave in the van. Lawson was in the driver's seat and Howard and Willis were standing by the open sliding door. (Id.) Howard and Willis testified that Petitioner and Lawson argued before Lawson exited the van and walked toward Petitioner. (Id.) Howard then walked up to Lawson, took Lawson by the arm, and dragged him back into the van. (Id.) Howard walked around the van to the sliding door, and Lawson then exited the van again and stated he was walking home. (Id. at 2-3.) Petitioner stood in front of the van when Lawson exited it a second time, and the two of them argued as Lawson was walking away. Petitioner then pulled a gun from his gym shorts and fired once at Lawson; after shooting at Lawson, Petitioner ran from the scene. (Id.) Lawson collapsed and was later pronounced dead at a hospital. (Id. at 3.)

Several weeks later, Howard was shown a photo array and identified Petitioner as the shooter. (Id.) On August 5, 2003, Howard viewed a physical lineup of four men that included Petitioner. Howard again identified Petitioner. (Id.) Another officer showed Willis a different photo array of six pictures, and Willis too identified Petitioner as the shooter. (Id.)

Both officers testified at trial. The officer who showed a photo array to Howard stated that he used a three-year old picture of Petitioner when creating the array, and that information with the photograph specified that Petitioner weighed 145 pounds at the time the photograph was taken. (Id.; see also Dkt. 10-19 at 202.) In the photo array prepared for Willis by a different officer, the photograph of Petitioner stated that he weighed 200 pounds. (Dkt. 10-19 at 238, 242.)

Petitioner's defense at trial was that he was not at the scene of the shooting and that Howard and Willis mistakenly identified him. People v. Ortega, 2017 IL App (1st) 151326-U, ¶ 4 (Ill.App.Ct. 2017). Petitioner testified that, although he could not affirmatively remember where he was, he remembered where he was not: at or near the shooting. (Dkt. 10-20 at 19-20.) During closing arguments, Petitioner's trial counsel stated that Petitioner's testimony was sincere, that he “had ample opportunity to create an alibi if he wanted to,” but that most people cannot remember where they were on a particular evening “unless it is a special day . . . [;] a birthday or a holiday.” (Id. at 105); Ortega, 2017 IL App (1st) 151326-U, ¶ 4. A jury found Petitioner guilty, and he was sentenced to 46 years' imprisonment. (Id. ¶ 5.)

On direct appeal, Petitioner argued that the evidence against him was insufficient; his trial counsel was ineffective for failing to call an expert witness about the fallibility of identification testimony; and that the prosecutor engaged in prosecutorial misconduct by calling Petitioner a “liar” and a “thinking criminal” during closing arguments. (Dkt. 10-1 at 4-12.) Rejecting all three claims, the Appellate Court of Illinois (the “Appellate Court”) affirmed. (Id.) Petitioner filed a petition for leave to appeal in the Supreme Court of Illinois and asserted the same claims, but that court denied the petition. (Dkt. 10-7; Dkt. 10-8.)

B. Petitioner's Postconviction Proceedings

Petitioner filed a state postconviction action and asserted, among other things, that his trial counsel was ineffective for failing to investigate whether to call Petitioner's mother (Louise Ortega) and sister (Leticia Ortega) as alibi witnesses. (Dkt. 10-21 at 35-140.) Shortly after filing the petition, Petitioner submitted signed affidavits from his mother and sister in which both indirectly stated that Petitioner was at his mother's house on the night of the shooting. (Dkt. 10-22 at 7-11.) The state trial court dismissed that petition in its first stage of review.^[2] (Dkt. 10-21 at 141.) But the Appellate Court reversed and remanded for further proceedings. See Ortega, 2017 IL App (1st) 151326-U, ¶¶ 8-9. On remand, the trial court appointed counsel for Petitioner; counsel then filed a supplemental petition with new affidavits from Louise and Leticia. (Dkt. 10-23 at 64-67.)

Louise's supplemental affidavit stated that Petitioner was living with her at the time of the shooting. (Id. at 64.) Louise remembered that Petitioner was home on the night of the shooting because of an incident involving her daughter Leticia following Leticia's baby shower. When Louise and her then-boyfriend Benny Avila argued, and Benny tried to hit Louise, Leticia jumped in to protect her mother. Leticia then complained to Petitioner about failing to intervene. (Id.)

Louise also explained that she conveyed this information to Petitioner's counsel during a conversation in late 2003 or early 2004, while they were both at the criminal courthouse. (Id.) In response, according to Louise, counsel neither asked Louise any questions nor requested to speak with her daughter. Nor did counsel use an investigator or consult with Louise about using one. (Id. at 64-65.) Instead, Louise recalls, counsel “said the only thing that would help was if I had some receipt that would prove where my son . . . was.” (Id. at 64.)

Leticia's supplemental affidavit similarly recalls her baby shower on July 12, 2003. Leticia remembered that she and her young son spent the night at her mother's house, and that Avila was there until he and Louise argued and then he left. (Id. at 66-67.) According to Leticia, she and her mother stayed up talking until 2:00 a.m., when Leticia asked Petitioner to move from the couch to a loveseat so Leticia could sleep. Petitioner moved to the loveseat and was still there when she awoke later that morning. (Id.) Both Louise and Leticia stated they would have been willing to testify at Petitioner's trial. (Id. at 64-65, 67.)

The state trial court denied Petitioner's supplemental postconviction petition at the second stage of review-before the stage that would have included an evidentiary hearing (Dkt. 10-23 at 76-83)-and the Appellate Court affirmed. Ortega, 2017 IL App (1st) 151326-U. Both courts determined that Petitioner could not establish his ineffective assistance of counsel claim. Id. at ¶¶ 20-23; (Dkt. 10-23 at 80-83); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).

Of particular importance here, the Appellate Court^[3] determined that trial counsel was aware of the availability of Louise and Leticia's alibi testimony but chose not to call them. Ortega, 2017 IL App (1st) 151326-U, ¶ 21. Instead, counsel chose to have Petitioner testify that he could not remember his location on the night of the shooting and to then emphasize Petitioner's candor during closing argument by telling jurors that Petitioner could have created an alibi but chose not to. Id. That court held that the decision of trial counsel decision was strategic and noted that “Illinois courts have long recognized that it is a reasonable trial strategy for counsel to forego presenting the testimony of family members.” Id. (citing People v. Flores, 538 N.E.2d 481, 497-98 (Ill. 1989)).

As to Strickland's prejudice prong, the Appellate Court...