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Riley v. Calloway

United States Court of Appeals, Seventh Circuit

February 20, 2018

Spencer Riley, Petitioner-Appellant,
v.
Victor Calloway, Respondent-Appellee.

          Argued November 15, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13-cv-02162 - Andrea R. Wood, Judge.

          Before Wood, Chief Judge, Manion, and Kanne, Circuit Judges.

          MANION, CIRCUIT JUDGE.

         Spencer Riley was acquitted of first-degree murder by an Illinois jury, but he later was convicted at a bench trial of being an "armed habitual criminal." The state had charged these crimes together but, with defense counsel's acquiescence, obtained a severance to proceed separately with the armed habitual criminal count. The state appellate court affirmed Riley's conviction on that count, and the Supreme Court of Illinois declined further review. Riley then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 claiming that, in light of his acquittal of murder, the state was collaterally estopped from prosecuting him as an armed habitual criminal because of Ashe v. Swenson, 397 U.S. 436 (1970). Riley had pursued, but lost, that same argument on direct appeal, and the district court denied relief on the ground that the appellate court did not unreasonably apply clearly established federal law in rejecting his Ashe claim. We agree with the district court's assessment and affirm its judgment.

         I. Background

         The facts of the crimes are recounted in People v. Riley, 2012ILApp (1st) 101607-U. On October 30, 2007, Cedric Hudson was shot and killed while he was drinking with friends. Six bullets struck Hudson that night; three of those caused extensive damage. The investigation eventually focused on Riley, and the state charged him with six counts of first-degree murder, 720 ILCS 5/9-l(a)(1)-(2), and one count of being an armed habitual criminal, 720 ILCS 5/24-1.7(a). The judge severed the armed habitual criminal count at the state's request-but with defense counsel's agreement-and proceeded with the murder trial. The state's case centered on four witnesses: Demetrice Allen, Frederick Brown, Kenneth Head, and Detective Dan Gorman.

         Demetrice Allen testified that on October 30, 2007, he was in a vacant lot with his friends, Brown and Hudson. Allen said Riley also was present, but he could not remember if Sheeba Mackmore was with the group. Allen testified that he did not see Riley leave the vacant lot and go to his house across the street, he did not see Riley carrying a handgun, he did not see Mackmore and Hudson arguing, and he did not witness the shooting of Hudson. Allen insisted he could not recall the substance of his pretrial conversation with an assistant State's Attorney and lead detective Dan Gorman. But the prosecutor introduced Gorman's recollection of Allen's statements from that pretrial meeting, contradicting his trial testimony. What Allen had said previously is that Riley arrived by car, left the group and walked to his house, and moments later returned wearing a white hoodie with his hands in the front pocket. Allen also had said during his meeting with Detective Gorman and the assistant State's Attorney that Riley told Hudson not to speak to the "boss"-Mackmore-"like that, " pulled a pistol from his hoodie, and shot Hudson. The state also introduced Allen's grand jury testimony, which tracks what he told Gorman and the assistant State's Attorney. However, the color of the hoodie was not mentioned in the grand jury testimony.

         Frederick Brown testified at the murder trial that he saw Hudson and Mackmore conversing and at the same time saw Riley arrive on foot from his house across the street. Riley wore a hoodie-Brown described it as black, not white-and walked with his hands in the hoodie's pockets. Once he arrived he walked up to Hudson and told him, "Don't talk to my boss like that, " pulled a gun from the hoodie, and shot Hudson once. Brown said he fled immediately but heard six more shots as he ran.

         Kenneth Head likewise testified that Riley had shot Hudson. Head said that Riley and Hudson had arrived in separate cars around the same time. Hudson walked toward Riley while holding up his hands. Riley then pulled a gun from the back of his pants and shot Hudson once. Head heard five more shots as he escaped from the lot. The police had interviewed Head in January and March 2008. In January he had denied seeing the shooting, which, at trial, he said was a lie prompted by fear. Then in March, Head had said that Riley approached the group on foot wearing a hoodie and shot Hudson after pulling a gun from the hoodie's front pocket while Hudson was speaking with Mackmore. The prosecutor impeached Head with his March statement, while defense counsel got him to concede that he had been fighting that night with Hudson, the victim.

         The coroner testified that Hudson had been shot multiple times in his life, including six times that night. He was able to recover three intact bullets, two bullet fragments (one with two pieces of a lead core and an aluminum jacket; the other with a copper jacket), and three of four bullets lodged in Hudson's body from a previous shooting. Riley stipulated to the admission of a ballistics report that is very confusing but fairly can be read as allowing for the possibility that more than one gun was used on October 30. In fact, on cross-examination Detective Gorman conceded the "possibility" that more than one gun was involved.

         Detective Gorman testified that while he was transporting Riley from the police station to a court hearing on March 11, 2008, Riley asked who would be testifying against him. When Gorman replied that he could not talk about the case, Riley speculated that Mackmore had identified him as the shooter and said "he wasn't worried about the case against him and that dead men can't come to court and testify." Riley also bragged to Gorman that the prosecution's witnesses would become his witnesses at trial and would say the police forced them to identify him as the shooter. Gorman conceded that no gun had been recovered from Riley, that he never went to Riley's house to look for one, and that Riley had never admitted committing the murder.

         In closing argument defense counsel asserted that "two separate calibers of ammunition" were found, thus suggesting the use of "more than one gun." According to the state appellate court, one defense theory argued by Riley's lawyer-Riley had not testified-is that someone other than Riley discharged the bullets that killed Hudson. In finding Riley not guilty of first-degree murder, the jury answered a special interrogatory finding that the prosecution had not proven "that during the commission of the offense of first degree murder the defendant personally discharged a firearm that proximately caused death to another person."

         Allen, Brown, and Detective Gorman again testified at the armed habitual criminal trial before the same judge, and their testimony was nearly identical to what each said at the murder trial. But this time, instead of saying he did not recall what happened, Allen said that he did not see whether Riley had shot Hudson. The state again introduced what had been Allen's contradictory grand jury testimony and the statements he made when interviewed by Gorman and the assistant ...


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