IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, ex

rel JOSAP CRAWFORD,

 Petitioner,

v.

MICHAEL P. ATCHISON, Warden,

Menard Correctional Center,

 Respondent.

Case No. 12 C 422

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Petitioner’s Habeas Corpus Petition. For

the reasons stated herein, the Petition is denied and no

certificate of appealability is granted.

I. BACKGROUND

The day after Christmas 2000, Altonio Stewart (“Altonio”) and

his son, Charles Stewart (“Charles”) were shot to death inside

Charles’ third-floor apartment at 7908 S. Laflin Street in Chicago. 

Carolyn Cole (“Cole”) (also known as Faye) also lived in the

building with Altonio, her fiancé. She testified at Petitioner

Josap “Blue” Crawford’s trial that she heard several gunshots

coming from Charles’ apartment and then saw Petitioner and Anthony

“Gunsmoke” Lake run from Charles’ apartment. On the way, Lake

dropped a handgun, stopped to retrieve it, and then continued out

of the building. This testimony differed from the police report of

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Cole’s initial eyewitness account in which she failed to mention

seeing Petitioner running from the apartment; she only mentioned

seeing Lake. Petitioner’s attorney did not confront Cole with her

police report account, but did confront Cole with her grand jury

testimony, during which she also never mentioned seeing Petitioner.

Q. And, but, you never told anyone else this

before, did you?

A. What do you mean – 

Q. That you saw him [Petitioner] running down the

steps?

. . . .

Q. You testified in the Grand Jury, right?

A. Uh-hum. Yes.

Q. Did you tell them you saw Josap Crawford on the

steps?

A. If I was asked the question. I mean, I’m not

sure. I know what I saw. But if I was asked

the question, I am sure I answered it. But I

can’t say right off hand if I was asked the

question or not.

Trial Tr., R. FF-56-57, ECF No. 15-8, PageID 922-923. In crossexamining Cole, Petitioner’s attorney also quoted at length from

Cole’s Grand Jury testimony. Id. at FF-58-59, ECF No. 15-8,

PageID 924-925.

At the time of the shooting, building resident Angela King

(“King”) was with Cole. The police report of her interview did not

match Cole’s account detail-for-detail, but several points were the

same. Cole related in her interview with police and at trial that

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King was in the hallway at the time the shots were fired; King’s

police report account seems to indicate that King and Cole were

both inside the apartment at the time of the shooting. King’s

police report account says she ran with Cole to Charles’ apartment

after the shooting, but it does not mention King seeing anyone flee

the scene.

Neither Cole’s nor King’s police report accounts mention the

presence of witness Willie “Little Bill” Cameron (“Cameron”) in

Cole’s apartment. Cameron testified at trial that he ran into

Cole’s apartment at the time of the shooting and hid in a closet.

Besides Cole, two trial witnesses placed Petitioner in the building

at the time of the shooting. Cameron testified that the

Petitioner, Lake, and the two victims were all standing in the

hallway outside of Charles’ apartment just before the shooting. 

Trial witness and building resident Renee Willis (“Willis”)

testified that shortly before the shooting, she was standing on the

second floor landing and witnessed petitioner and Lake headed up to

the third floor. She went to the store and when she returned, she

headed to the third floor, but another resident, Kim Clay, grabbed

her and warned her not to go to the third floor because Petitioner,

Lake and Al were having a meeting. Willis went into her apartment

and heard the shots almost immediately.

The building landlord, Wilbert Sievers (“Sievers”), testified

at trial that he had rented a second-floor apartment to Petitioner. 

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Sievers related that Petitioner claimed the apartment was for his

mother, but that Kim Clay (who was not Petitioner’s mother) had

moved in instead along with two younger men. Sievers testified he

confronted Petitioner sometime before the shooting about what he

suspected were drug sales going on in the apartment Petitioner

rented and Petitioner told him to mind his own business.

The police report interview with Sievers indicated Sievers had

suspicions that victim Altonio Stewart, who served as Sievers’

maintenance man, and his son Charles were involved in drug activity

in the building. The report also mentioned that Sievers sold the

building shortly before the murders and had rewarded Altonio with

$20,000 for his service of many years. Sievers’ suspicions

regarding Altonio’s drug sales and his large payment to Altonio

were not introduced into evidence at trial.

Another witness, Aaron Gray (“Gray”), denied being with

Petitioner and Lake shortly after the shooting; he also denied

hearing Petitioner and Lake discuss the murder during that

gathering and laughing about Lake giving the victims “two to the

head.” Trial Tr., R. GG-11, ECF No. 15-8, PageID 997. Gray was

then confronted with his previous grand jury testimony in which he

had said he heard Petitioner and Lake discussing the murders

shortly after they occurred and laughing about them. A

stenographer also testified as to the accuracy of that grand jury

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testimony and an assistant state’s attorney testified that Gray had

told her the same thing during an interview with her.

Petitioner and his sister testified in his defense at trial,

contending he was at a shopping mall in Indiana around the time of

the murders. Petitioner presented dated and time-stamped receipts,

but they were for cash purchases and did not reflect who had made

them.

Cook County Judge Lon William Shultz convicted petitioner of

murder on March 23, 2005 after a bench trial. He found no evidence

that Petitioner himself had pulled the trigger and convicted him

instead on an accountability theory.

He found credible witness testimony that put Petitioner with

the victims outside Charles’ apartment at the time of the murders. 

He also found credible testimony from witnesses who had previously

heard Petitioner or Lake trying to muscle in on drug sales in the

building, threatening Charles and Altonio to stop their sales. He

put a good deal of reliance on Gray’s prior inconsistent statements

and said there had been no evidence that those inconsistent

statements had been coerced by police as Petitioner’s counsel

suggested in closing arguments. Petitioner received a sentence of

life in prison.

On appeal, Petitioner contended the trial court had erred by

admitting Gray’s prior inconsistent statements and thereby

violating his Sixth Amendment confrontation rights, by admitting

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prejudicial hearsay testimony from Cole and Willis, and by deciding

the state had proven its case beyond a reasonable doubt. The

appellate court affirmed conviction on September 28, 2007; the

Illinois Supreme Court denied his petition for leave to appeal on

January 30, 2008. The U.S. Supreme Court denied certiorari on

June 9, 2008. 

On November 10, 2008, Petitioner filed a post-conviction

petition in Cook County alleging deprivation of constitutional

rights by ineffective assistance of trial counsel. Specifically,

Petitioner alleged trial counsel failed to call witness Angela King

to the stand to contradict Cole and failed to cross-examine Sievers

about the $20,000 payment and Sievers’ suspicions of the victims’

involvement in drug sales. Petitioner also alleged ineffective

assistance of appellate counsel. In the post-conviction

proceedings, Judge Thomas V. Gainer found the contentions frivolous

and without merit. On March 14, 2011, the Illinois Appellate Court

affirmed Judge Gainer. It agreed with Gainer that Petitioner had

failed to attach any affidavit from King showing she would have

contradicted Cole or Cameron had she testified. It also found that

Petitioner had waived the issue of the sufficiency of Cole’s crossexamination by failing to bring the matter up with Judge Gainer. 

On the merits, the appellate court found the cross-examination of

Sievers a matter of professional judgment and not objectively

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unreasonable. On September 28, 2011, the Illinois Supreme Court

denied the petition for leave to appeal.

Petitioner filed his habeas petition in this Court on

January 19, 2012 on three grounds: (1) trial counsel was

ineffective for failing to call Angela King as a witness, (2) trial

counsel was ineffective for failing to impeach Cole with a report

of Cole’s statement to police, and (3) trial counsel was

ineffective for failing to impeach Sievers with information in the

police report of his interview.

II. LEGAL STANDARD

Review of state court decisions are limited by the

Antiterrorism and Effective Death Penalty Act (the “AEDPA”). A

petition for habeas corpus may only be granted if the state court’s

decision was contrary to or involved an unreasonable application of

clearly established federal law or was based on an unreasonable

determination of the facts in light of the evidence presented in

the state court proceeding. Coleman v. Hardy, 2012 U.S. App. LEXIS

16105, at *5 (7th Cir. Aug. 3, 2012).

III. ANALYSIS

A. Ineffective Assistance of Counsel

To demonstrate ineffective assistance of counsel, a prisoner

must show that counsel’s performance was deficient and that the

prisoner was prejudiced as a result. Mosley v. Atchison, 2012 U.S.

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App. LEXIS 16259, at *20 (7th Cir. Aug. 6, 2012) (citing Strickland

v. Washington, 466 U.S. 668, 687 (1984)).

Under the performance prong, a prisoner “must overcome the

presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.” Strickland, 466 U.S. at

689. The query is “whether, in light of all the circumstances, the

identified acts or omissions were outside the wide range of

professionally competent assistance.” Id. at 690.

Under the prejudice prong, the petitioner must show “there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” 

Id. at 694.

The State argues Petitioner procedurally defaulted the

ineffective assistance of counsel claims regarding the failure to

call Angela King because he failed to attach an affidavit from her

in his post-conviction collateral appeal. It also argues

Petitioner defaulted the argument of ineffective assistance of

counsel for failure to confront Cole with her police report

interview. It was defaulted, the state argues, because

Petitioner’s post-conviction collateral appeal only raised the

contention that Angela King’s police report interview showed Cole

did not witness the petitioner fleeing. Petitioner argues he has

causes that excuse these defaults.

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The Court assumes, without deciding, that Petitioner does have

such causes. It does not help him, however. A petitioner must

show prejudice before defaulted grounds will be examined, “not

merely that the errors at his trial created a possibility of

prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of

constitutional dimensions.” United States v. Frady, 456 U.S. 152,

170 (1982).

Petitioner’s first argument fails because there is absolutely

no affirmative proof that Angela King would have substantively

contradicted Cole’s testimony. While it is true that some of the

minor details police recorded from Cole and King are not in 100

percent agreement, there is nothing in King’s police report account

that contradicts Cole’s substantive account of seeing the

Petitioner flee, or Cameron’s account of seeing Petitioner with the

victims immediately before the shooting. That King may have

testified differently is not grounds for ineffective assistance of

counsel. Petitioner must show prejudice that King’s testimony

would have cured; he has not. Additionally, even if King had

contradicted Cole, such testimony would have done nothing to

undermine Willis’ testimony that put Petitioner at the crime scene,

and it would not have contradicted Gray’s prior inconsistent

statements, nor would it have contradicted testimony about

Petitioner attempting to take over the drug trade in the building. 

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The Court cannot say that there is a reasonable chance the outcome

would have been different. Counsel for Petitioner cross-examined

Cameron, implying that he had been taking drugs shortly before the

shooting and casting doubt on Cameron’s account of how long he

stayed in Cole’s closet. Petitioner’s counsel also cast doubt on

Cameron’s account by noting Cameron heard a different number of

shots than other witnesses. On the whole, the Court cannot say

Petitioner’s representation was ineffective because he did not call

King to the stand.

As to the argument that Petitioner’s counsel was ineffective

for failing to confront Cole about her account in the police

report, Petitioner fails even more miserably on the merits here. 

The police report account was substantially the same as Cole’s

grand jury testimony, and Petitioner’s attorney questioned Cole

about the key fact missing from that testimony, which was that she

did not report seeing Petitioner flee the scene. To question Cole

about the omission in the report may have reinforced the point, but

more likely it would have been merely a redundancy. Petitioner’s

trial attorney read from Cole’s grand jury testimony to emphasize

that she never told the grand jury about seeing the Petitioner

flee. To emphasize it one more time with the report may well have

been overkill. In any case, the decision of whether use of the

report would have been an effective additional emphasis of a key

point or the beating of a dead horse rested within trial counsel’s

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professional judgment. Petitioner has shown no prejudice as a

result of the failure to use the police report because the point at

issue in the report was made through citation to grand jury

testimony.

Lastly, Petitioner argues Sievers should have been crossexamined with information in the police report about Sievers’

suspicions about the victims’ drug dealing and Sievers’ gift of

$20,000 to Altonio. The Court cannot say that this was an error on

the part of Petitioner’s counsel. If Sievers had denied those

facts, Petitioner’s counsel may have been forced to introduce the

police report, which potentially could have led to information

damaging to Petitioner. Specifically, the police report recounted

that Sievers recalled that Altonio, upon being told Petitioner was

moving in, exclaimed “If he [Petitioner] moves in, there is going

to be a bloodbath.” ECF No. 15-3, PageID 330. Instead,

Petitioner’s counsel chose to refute Sievers’ account with other

cross-examination and Petitioner’s own testimony.

For instance, Petitioner’s counsel succeeded in getting

Sievers to admit that Petitioner’s installation of a burglar gate

over the doorway was not unusual in the building. This undercut

the implication that the gate was installed to protect Petitioner’s

drug trade.

Petitioner also testified that he had approached Sievers to

tell him of Altonio’s drug dealing, contradicting Sievers’

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testimony that Sievers had confronted Petitioner about drug trade

in the apartment Petitioner had rented.

Petitioner’s attorney introduced an alibi witness for

Petitioner and receipts that indicated Petitioner was in another

location at the time of the shooting. 

In light of all the circumstances and all the testimony, the

Court cannot say that Petitioner’s counsel engaged in unsound trial

strategy or that his identified acts or omissions were outside the

wide range of professionally competent assistance.

Nor can this Court say that, had Petitioner’s counsel done

everything Petitioner suggests he should have, there is a

reasonable probability the outcome would have been different. 

Most importantly, this Court cannot say that the state

appellate court erred in affirming the denial of the collateral

attack on Petitioner’s counsel. The Petition for Habeas is denied.

B. Certificate of Appealability

In order to obtain a certificate of appealability, Petitioner

must make a substantial showing of the denial of a constitutional

right. 28 U.S.C. § 2253(c). He has made such a showing if

reasonable jurists could debate whether the petition should have

been resolved in a different manner or that the issues presented

were adequate to deserve encouragement to proceed further. 

Resendez v. Knight, 653 F.3d 445, 446 (7th Cir. 2011). The Court

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concludes Petitioner has failed to make that substantial showing. 

Accordingly, it denies a certificate of appealability.

IV. CONCLUSION

For the reasons stated herein, the Petition for a Writ of

Habeas is denied. No certificate of appealability is granted.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

DATE:9/28/2012

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