Opinion
No. 97 C 2930
September 18, 2001
MEMORANDUM OPINION
On July 17, 1981, Willie Ray Harris was convicted in the Circuit Court of Cook County of murder and armed violence. He was sentenced to a term of 40 years' imprisonment to run consecutively with his sentences on other convictions. The Illinois Appellate Court affirmed Harris's conviction and sentence, and the Illinois Supreme Court denied leave to appeal. Harris's petition for post-conviction relief was dismissed, and the Illinois Supreme Court denied leave to appeal.
Harris then filed a pro se habeas corpus petition in this court, challenging the constitutionality of his conviction and sentence on a number of grounds. On July 24, 2000, we denied the petition as to all claims except Harris's claim that trial counsel's failure to investigate and present witnesses, and appellate counsel's failure to raise the issue on appeal, constituted ineffective assistance of counsel in violation of petitioner's Sixth Amendment rights. We noted that the claim is procedurally defaulted but that we would consider it if Harris could demonstrate that his inability to call witnesses resulted in a fundamental miscarriage of justice, that is, that he is actually innocent of the charges against him. Thus, we granted Harris leave to file an appropriate affidavit with respect to that claim swearing to his specific knowledge of the circumstances he described:
If counsel negligently failed to investigate and present witnesses who could have established Harris's innocence, this would satisfy Harris's burden of showing actual innocence. Accordingly, we grant petitioner leave to file his own affidavit that lays out specifically (1) what each of the witnesses would have testified to and how they acquired the necessary knowledge to testify; (2) how petitioner knows that each such witness would have so testified; (3) what requests he made to which attorneys regarding these witnesses, and what responses each attorney gave petitioner. We will then evaluate Harris's contentions to determine whether counsel should be appointed to investigate these claims more fully.United States ex rel. Harris v. Clark, No. 97 C 2930, Memorandum Opinion, at 13-14 (N.D. Ill. July 24, 2000) (citation omitted). We warned petitioner that "a conclusory affidavit, without facts" would do him no good. Id. at 30.
Harris has filed an affidavit, which we have reviewed. The affidavit satisfies our first requirement — that Harris describe what each of the witnesses would have testified to and how they acquired the necessary knowledge to testify. He states that several witnesses would have testified that he was not the individual who shot the deceased, William Snow, at the Jackson View Hotel, and he describes specifically what the witnesses' testimony would have been. In particular, he states that one of the witnesses, Hurley Millette, would have testified that Harris was not the old friend named "Will" who Millette picked up and drove to the Jackson View Hotel on the night of the shooting. However, Harris does not identify this other individual named "Will." Harris also persists with his unusual alibi-defense, which we addressed and rejected in our previous memorandum opinion of July 24, 2000, that he was committing other crimes in other locations at the time of the murder. Harris states that the victims of those other crimes would have testified that Harris was committing armed robbery, aggravated assault, and kidnapping against them at the time of Snow's murder.
Harris also complies with our third direction — that his affidavit describe what requests he made to which attorneys regarding these witnesses and what responses the attorneys gave him. However, Harris does not meet our second requirement because his affidavit does not explain how Harris knows what each of the witnesses would have testified to. He does quote from statements that Millette and Constance Williams (purported occurrence witnesses) and the four victims of his other alleged crimes gave to police, but none of these statements indicate that these individuals would have testified in the manner Harris describes — specifically, that Harris was not the shooter. There is no indication in the affidavit that any of the witnesses' proposed testimony is anything but pure conjecture on Harris's part. Accordingly, we will not appoint counsel to investigate Harris's claim that trial counsel's failure to investigate and present witnesses, and appellate counsel's failure to raise the issue on appeal, constituted ineffective assistance. The petition for habeas corpus as to that claim is denied, and this case is terminated.