Opinion
Civil No. 03-0354-JLF.
May 23, 2005
MEMORANDUM AND ORDER
Before the Court is the Report and Recommendation of Magistrate Judge Proud, (Doc. 25), recommending that petitioner's petition for relief under 28 U.S.C. § 2254, (Doc. 1), be denied in all respects. The Clerk of the Court has informed the parties of their right to file objections and of the consequences of not doing so in a timely fashion. Petitioner has filed objections, (Doc. 26), thus, this Court shall conduct a de novo review of the motion. 28 U.S.C. § 636(b). All rights to appeal have been waived with respect to portions of the report and recommendation to which no objections were filed. Lorenzten v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995), cert. denied, 517 U.S. 1136 (1996).
In 1995, petitioner Keith Williams was convicted by a jury of first-degree murder and was sentenced to fifty (50) years. Petitioner denied that he was present at the murder scene, and argues that his conviction was obtained by eyewitness identifications that were tainted by a prejudicial photo array. Specifically, the array included photographs of five men, four of whom were bald, and one who fit the description of petitioner that the eyewitnesses gave to the police, (i.e., "a man with braids."). At trial, several eyewitnesses, one of whom who had known the petitioner previously, identified petitioner as the murderer.
At trial, petitioner's counsel, Randall Kelley, did not move to suppress the photo array as unduly suggestive. At a hearing on petitioner's state post-conviction petition, Attorney Kelley explained his decision not to move to suppress the array as follows:
Well, in this particular instance there — I mean there were allegations in the discovery that numerous people — numerous people were going to identify or at least say that they could identify Keith as the perpetrator of this incident. At the same time the photographic lineup showed that while there were, I think, five photographs of African-American males, Keith was the only one who had braids. I mean I just didn't think Keith looked very much like the others. Now normally you would want to suppress an I.D. like that? Yeah. But in a situation where we hadn't-where we hadn't-where under this fact scenario where a number of people were in a position where they could have I — or could I.D. Keith at trial, I wanted to be able to show in our strategy that from the very start that the photographic lineup was tainted, that the — that for whatever reason the East St. Louis Police Department was deciding it was this guy. They were going to show a photo lineup that could assist people in deciding it was this one particular individual, and if we had suppressed that, I couldn't cross-examine any of the witnesses in the trial about that — that differential.(Doc. 1, Exh. C, pp. 2-3).
Upon cross-examination at this state post-conviction hearing, Attorney Kelley agreed that the photo array would have most likely been suppressed, but he believed that the in-court identifications would not have been suppressed because there were independent bases for the eyewitness identifications, (i.e., the witnesses saw petitioner at the murder scene).
Petitioner objects to the Magistrate Judge's Report and Recommendation on the ground that Attorney Kelley's decision not to seek suppression of the photo array should have been deemed unreasonable under Strickland v. Washington, 466 U.S. 668 (1984). Specifically, petitioner argues that Attorney Kelley failed to sufficiently investigate the evidentiary consequences of not suppressing the array, and that he provided a "weak" strategic reason for failing to do so.
To establish a successful ineffective assistance of counsel claim, petitioner must demonstrate both that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) the deficient performance so prejudiced his defense that it deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 688-94 (1984). With regard to the first prong, (the performance prong), this Court must determine whether, in light of all the circumstances, counsel's alleged acts or omissions were outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690. To establish the second prong, (the prejudice prong), petitioner must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 695.
To show deficient performance, petitioner bears a heavy burden. Judicial review of attorney performance is highly deferential, and there is a strong presumption that the attorney's performance was reasonable. Strickland, 466 U.S. at 689. The United States Court of Appeals for the Seventh Circuit has noted that in an ineffective assistance of counsel claim, "challenges to strategic or tactical decisions made by trial counsel are off-limits." United States v. Otero, 848 F.2d 835, 838 (7th Cir. 1988) ( citing United States v. Dyer, 784 F.2d 812, 817 (7th Cir. 1986); United States v. Giangrosso, 779 F.2d 376, 380 (7th Cir. 1985), cert. denied, 475 U.S. 1031 (1986)). Whether or not to move to suppress a photo identification is such a strategic or tactical decision. See Pittman v. Warden, Pontiac Correctional Center, 960 F.2d 688, 691 (7th Cir. 1992).
Here, Attorney Kelley stated that his reason for not moving to suppress the photo array was a strategic one, (i.e., it was to attack the credibility of witnesses and to attack the investigation by the East St. Louis Police Department). Had the photo array been suppressed, the extent to which Attorney Kelly could have pursued his line of attack may well have been diminished. Accordingly, the Court finds that Attorney Kelley's decision to forego suppression of the photo array was a strategic decision that is not subject to this Court's review. See Pittman, 960 F.2d at 691 ( citing United States v. Rush, 890 F.2d 45, 51 (7th Cir. 1989) (An attorney's decision not to pursue a motion to suppress identification testimony is a "tactical choice" that is "not subject to our second guessing.").
Even if the Court were in a position to review Attorney Kelley's decision to forego the motion to suppress, the Court finds that his decision was within the range of professionally competent assistance. Attorney Kelley testified that he was faced with a number of eyewitnesses who could identify petitioner as the murderer. In light of this, Attorney Kelly could have logically concluded that it would be meaningless to keep out the photo array if the witnesses' in-court identifications would be admissible anyway. Attorney Kelley could have rationally concluded that rather than suppress the photo array, he would use the photo array to cross-examine the witnesses and to discredit their testimony. Accordingly, Attorney Kelley's decision to forego the motion to suppress was well within the range of professionally competent assistance. See e.g., Pittman, 960 F.2d at 691 (Counsel's decision to withdraw motion to suppress identification testimony was a defensible strategic choice because even if the motion had succeeded, witnesses may still have been allowed to identify defendant during trial).
Petitioner also objects to the Magistrate Judge's finding that petitioner did not suffer prejudice. Having determined that Attorney Kelley's performance was within the range of professionally competent assistance, petitioner's claims of prejudice need not be addressed. MacDougal v. McCaughtry, 951 F.2d 822, 825 (7th Cir. 1992) (if a party fails on either prong of the Strickland test, the other prong need not be considered). Even if the Court were to consider the prejudice prong, as noted, the eyewitnesses against petitioner were at the scene and would have been allowed to testify against him. Petitioner does not argue otherwise. Under these circumstances, the Court cannot say that but for Attorney Kelley's conduct there is a reasonable probability that the result of the proceedings would have been different.
After conducting a de novo review, this Court agrees with the findings and conclusions of the Magistrate Judge. Accordingly, this Court ADOPTS the Report and Recommendation of the Magistrate Judge (Doc. 25). Petitioner's petition for relief under 28 U.S.C. § 2254, (Doc. 1), is DENIED in all respects.
IT IS SO ORDERED.