Argued: March 3, 2015.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 7159 -- Thomas M. Durkin, Judge.
For Lawrence Owens, Petitioner - Appellant: Jessica R. Amunson, Attorney, Barry Levenstam, Attorney, Ishan Kharshedji Bhabha, Attorney, Jenner & Block Llp, Washington, DC.
For STEPHEN DUNCAN, Warden, Respondent - Appellee: Garson Fischer, Attorney, Office of The Attorney General, Chicago, IL.
Before POSNER, KANNE, and TINDER, Circuit Judges.
Posner, Circuit Judge.
Lawrence Owens was convicted of first-degree murder in November 2000 after a bench trial in the Circuit Court of Cook County. The judge sentenced him to 25 years in prison; he has almost 11 years of his sentence left to serve. His conviction and sentence were affirmed. He then filed state claims for post-conviction relief that came to naught eight years after having been filed, when the state supreme court declined to hear an appeal from the affirmance by the intermediate appellate court
of the trial court's denial of Owens' petition for such relief.
He had already filed a petition for federal habeas corpus relief, 28 U.S.C. § 2254, and, the state proceedings having finally wound up, the federal district court adjudicated the petition--and denied it, precipitating this appeal. In it he argues that the state trial judge who convicted him based his decision on evidence that did not exist, thus denying him due process of law in violation of the Fourteenth Amendment. Holbrook v. Flynn, 475 U.S. 560, 567, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) ( " one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial," quoting Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978)); Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (" The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice" ) (citation omitted); see also United States v. Moore, 572 F.3d 334, 341 (7th Cir. 2009) ( " Guilt beyond a reasonable doubt cannot be premised on pure conjecture" ); United States v. Garcia, 439 F.3d 363, 366--68 (7th Cir. 2006) (" The presumption [of innocence] is violated . . . when the jury is encouraged (or allowed) to consider facts which have not been received in evidence" ).
In 1999, in the City of Markham (current population 12,508), 20 miles south of Chicago, a young man named Ramon Nelson, while riding his bike away from a liquor store, received a fatal blow to the head by a person, presumably male, wielding a wooden stick that may have been a baseball bat. Two eyewitnesses to the murder testified at Owens' trial. Maurice Johnnie identified Owens as the murderer from a photo array of six persons and from a lineup--although Owens was the only person in the line-up who also was in the photo array, thereby diminishing the probative value of the second identification. The other eyewitness, William Evans, identified Owens as the murderer from the same photo array and a lineup. But at the trial, though Owens was present in the courtroom, Evans twice pointed to a photo of someone else in the photo array as being Owens. There were other discrepancies between the two witnesses' testimony. Evans testified that there had been two assailants, Johnnie that there had been only one. And Evans but not Johnnie testified that Nelson had spoken with the assailants before they assaulted him.
Nelson had crack cocaine on his person when he was killed that appeared to be packaged for individual sale, for the cocaine was in 40 small plastic bags in his coat. No evidence was presented that Owens had known Nelson, used or sold illegal drugs, or had any gang affiliation. If Owens had had any record of involvement in the illegal drug trade, or in gangs, the prosecution would, one imagines, have presented evidence of that involvement; it did not. Also absent was any physical evidence (such as fingerprints on the baseball bat) pointing to Owens as the murderer. Moreover, the murder had taken place at 8:30 p.m. on September 22. Sunset was at 6:47 p.m. that evening, and so it would have been dark (" nautical twilight" as it is called--the hour after sunset-- would have ended by 7:47 p.m., see WeatherSpark, " Average Weather On September 22 For Chicago, Illinois, USA: Sun," ...