Antonio McDowell v. Michael Lemke, Warden, Stateville Correctional Center

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2967
ANTONIO MCDOWELL,
Petitioner-Appellant,
v.
MICHAEL LEMKE, WARDEN,
STATEVILLE CORRECTIONAL CENTER,
Respondent-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:04-cv-04992 — Joan B. Gottschall, Judge.
ARGUED SEPTEMBER 26, 2013 — DECIDED DECEMBER 12, 2013
Before POSNER, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Over fifteen years ago, Antonio
McDowell was convicted in an Illinois trial court of committing
a murder and carjacking on a single December afternoon.
Today, he seeks a writ of habeas corpus, arguing that the
processes used to identify him as the perpetrator were fatally
flawed. Because we find that he procedurally defaulted these

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claims by failing to adequately present them before each level
of the Illinois courts, we decline to grant his petition.
I. BACKGROUND
A. The Murder and Carjacking
At approximately 3:00 PM on December 21, 1996, Martha
Castro looked out her window and saw her husband, Mario
Castro, lying on the ground. A man dressed in a black cap,
jacket, and pants was leaning over him and searching his
pockets. Mrs. Castro and her nephew, Alberto Varela, ran
outside. Varela struck the man dressed in black. In response,
the man in black picked up a gun and fired it once before
running into the alley. Varela followed him briefly, but
stopped once the man fired the gun a second time. Mr. Castro
later died from a gunshot wound to his shoulder.
The Castros’ neighbor, Juan Medina, looked out his
window when he heard the gunfire. He saw the man in black
searching Mr. Castro’s pocket. Medina then walked into the
other room to tell his wife Mr. Castro had been shot. When he
returned, he saw Varela hit the man in the shoulder and the
man fire a shot at Varela.
A few blocks away, Ruth Morales-Santana turned into the
alley. When she parked and got out of her car, the man in black
approached her, gun drawn, and demanded her car keys and
purse. Morales-Santana handed over her bag and keys and the
man climbed into her car.
B. The Police Investigation
At 3:30 PM the same day, Detective Renaldo Guevara
traveled to the scene of the shooting, where he interviewed

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No. 12-2967 3
Varela and Medina. He then began looking for a black male in
his early twenties who was about five foot seven or five foot
eight inches tall and was wearing a black jacket and cap.
Detective Guevara did not find anyone right away. Almost
seven months later, on July 12, 1997, Guevara went to Medina’s
home to show him some images from a book containing
Polaroid photos. Medina identified one of the pictures on the
third page of the book as someone who “looked like” the man
in black, but asked for a more recent photo to be sure.
Later that month, on July 21, Detective Guevara returned
with an array of five black-and-white photographs. Medina
picked the photo of petitioner, Antonio McDowell, as depicting
the man he saw standing over Mr. Castro’s body. That
afternoon, Guevara took the five-photo array to Morales-
Santana’s home, where she also selected the photo of
McDowell. The next day, Guevara took the set of photos to
Varela’s home, and he similarly identified McDowell as the
man in black. On July 23, 1997, Medina, Morales-Santana, and
Varela each viewed a lineup and identified McDowell as the
offender.
C. McDowell’s Trial, Conviction, and Direct Appeal
Before his trial, McDowell filed a motion to suppress the
identification testimony, alleging that the police had staged an
improper one-on-one photo show up and used overly
suggestive photo arrays that resulted in mistaken
identifications. Specifically, McDowell argued that the photo
array contained too few people and that “the disparity in age,
height, weight, dress, complexion, and other distinguishing
characteristics … was improperly conducive to the

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4 No. 12-2967
misidentification of the accused.” The record does not indicate
that the state court ever ruled on the motion. McDowell did not
continue to argue the point at trial.
At a bench trial, the State presented eyewitness
identification testimony from Mrs. Castro, Medina, Varela, and
Morales-Santana. Each testified as to their observations at the1
time of the offenses. Detective Guevara also testified about his
investigation and interviews with these witnesses. The State
presented no physical evidence linking McDowell to the
murder and carjacking. McDowell himself did not testify, but
presented an alibi through his good friend, Kenneth Beecham.
At the close of the evidence, the judge credited the State’s
witnesses, noting that their accounts had corroborated each
other and recounted the same sequence of events. He found
petitioner guilty of first degree murder, attempted murder, and
aggravated vehicular hijacking, and imposed a sentence of 103
years.
On direct appeal, McDowell argued that the trial court
abused its discretion in imposing a 103-year sentence based
upon his lack of remorse, and that the use of consecutive
sentences violated Apprendi v. New Jersey, 530 U.S. 466 (2000).
The state appellate court affirmed, and the state supreme court
denied McDowell’s petition for leave to appeal.
D. State Post-Conviction Proceedings
McDowell then filed a pro se state post-conviction petition
pursuant to 725 ILCS 5/122-1–5/122-7. In part, he argued that
McDowell waived his right to a jury trial.
1

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No. 12-2967 5
he was arrested without probable cause. To support this
argument, McDowell asserted that the identification
supporting his arrest was tainted because a computer-
generated photo was “presented to the victims in … a
suggestive manner.” In later pleadings, McDowell additionally
claimed that Medina’s identification was tainted because his
was the only image common to the two photo sets Guevara
showed Medina (the photo book, from which Medina
tentatively identified McDowell, and the five-photo array all
three witnesses were shown).
The trial court denied the petition, and McDowell appealed,
arguing only that his trial and appellate counsel were
ineffective. Specifically, McDowell argued that his counsel
should have challenged whether there was probable cause to
support his arrest. In so arguing, he quoted his arguments
from his original post-conviction petition.
The state appellate court affirmed McDowell’s conviction.
It rejected McDowell’s ineffective assistance claim, noting that
he was arrested based on three separate photo identifications,
his allegation that the arrays were suggestive was not
supported by the record, and that there was no evidence that
the eyewitnesses were told to identify McDowell. McDowell
then filed a petition for leave to appeal, which the Illinois
Supreme Court denied.
E. Habeas Proceedings
Pursuant to 28 U.S.C. § 2254, McDowell filed a pro se
petition in federal court for a writ of habeas corpus on July 25,
2004. The district court appointed counsel, and McDowell filed
an amended, counseled petition. In his amended petition,

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6 No. 12-2967
McDowell alleged that Detective Guevara had framed him for
murder after he refused to falsely identify a suspect as the
person who shot him in the hand earlier that year. Specifically,
he alleged that the eyewitness identifications arising from the
lineup were suggestive because Guevara showed a single
picture of him to the witnesses before they participated in the
lineup.
McDowell also argued that any procedural default should
be forgiven because he could establish he was actually
innocent of the crime, and thus a grave miscarriage of justice
would occur were he not allowed to challenge his conviction
in federal court. He based this claim on the assertion that
Detective Guevara framed him. McDowell submitted two
pieces of evidence supporting this claim: an affidavit he made
himself and a collection of affidavits and transcripts detailing
Detective Guevara’s misconduct in other, unrelated cases.
In his affidavit, McDowell averred that police detectives
visited his mother’s house on July 14, 1997, and told him he
should go to the station for an interview. When McDowell
went to the station on July 23, Detective Guevara allegedly
handcuffed him to a wall for several hours in an attempt to
coerce him into falsely identifying someone as the person who
shot him in the hand earlier that year. Guevara then
purportedly convinced him to participate in a lineup. While
McDowell was at the station, another detective showed
McDowell a picture of himself. The detective allegedly said
that Guevara had used the picture to implicate McDowell
before the witnesses.

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No. 12-2967 7
The evidence of Detective Guevara’s misdeeds consisted of
affidavits, depositions, and trial testimony from other criminal
defendants, mostly convicted felons, alleging that Detective
Guevara had coerced them to confess or to identify a specific
person as a perpetrator. None of the evidence related
specifically to McDowell’s case.
The district court accepted McDowell’s contentions in part
and rejected them in part. It found that McDowell had
procedurally defaulted his argument that the lineups were
unduly suggestive based on the allegation that Detective
Guevara showed a single picture of McDowell to the witnesses
before they performed any other identifications. The court also
ruled that McDowell had procedurally defaulted any
identification claims as to witnesses other than Medina.
Further, McDowell had not established actual innocence
sufficient to excuse these defaults, because his affidavit was
inconsistent with the chronology of the investigation and
testimony at trial, and because McDowell’s submissions
concerning Detective Guevara’s past misdeeds were not direct
evidence of wrongdoing in McDowell’s case.
The district court did find, however, that McDowell had not
procedurally defaulted a generic “Sixth Amendment/sugges-
tive identification claim” or his ineffective assistance claim
relating to counsel’s failure to challenge the identifications.
After substantive briefing, the district court rejected the
suggestive identification claim on the merits. It held that the
claim lacked any factual basis because McDowell did not
provide any evidence (1) that his photo was the only image
common to the two photo arrays Medina saw or (2) that the
second photo array included individuals who did not share

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8 No. 12-2967
McDowell’s salient characteristics. Because the suggestiveness
claim failed, and because of the significant evidence against
him, the court also found that McDowell could not establish
that counsel was ineffective for failing to pursue the
suggestiveness issue at trial. The trial court declined to grant
a certificate of appealability.
McDowell filed a notice of appeal from the district court’s
denial of his petition and an application for a certificate of
appealability with this court. This court granted the certificate
on two issues: (1) whether photo arrays in which McDowell
was the only individual in common and which contained
individuals of a different race were improperly suggestive and
(2) whether McDowell fairly presented his due process claim
in the state courts.
II. ANALYSIS
On appeal, McDowell argues that he fairly presented his
due process claim in state court, that the photo arrays were
unduly suggestive, violating his due process rights, and that he
has presented sufficient actual innocence evidence for us to
hear his other, procedurally defaulted claims. We find that
because McDowell did not present his due process claim to
each level of the Illinois state courts, the claim is procedurally
defaulted.2
We will not reach the claims the district court found to be procedurally2
defaulted. These claims are outside the certificate of appealability we
granted, and we decline to exercise our discretion to hear them now. See
Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001).

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No. 12-2967 9
McDowell puts forth two factually-distinct suggestive
identification claims: (1) showing a witness two separate photo
arrays in which McDowell was the only individual in common
was unduly suggestive and (2) showing a witness a single
photo array which contained individuals of different races was
unduly suggestive. The district court found that the first of
these claims—the “individual-in-common” claim—was not
procedurally defaulted. United States ex rel McDowell v. Hardy,
No. 04-cv-04992, 2012 WL 2921512 at *2 (N.D. Ill. July 17, 2012).
It did not specifically determine whether the second claim—the
“mixed-race photo array” claim—was defaulted, but discussed
the theory in its general discussion of the suggestive
identification claim. Id.
The government contends that both of these arguments
were forfeited in the district court because McDowell did not
include them in his habeas petition. It relies on Rule 2(c) of the
Rules Governing Section 2254 Cases in the United States
District Courts, which requires that a habeas petition “specify
all the grounds for relief available to the petitioner” and “state
the facts supporting each ground.” According to the
government, Rule 2(c) should be construed strictly, such that
any argument not included in the habeas petition, even if
raised and ruled on by the district court, is forfeited. But our
cases have not focused solely on whether an argument was
developed in the initial petition. Rather, they consider whether
the argument was adequately presented to the district court.
See Kunz v. DeFelice, 538 F.3d 667, 681 (7th Cir. 2008) (focusing
on whether presentation of issue in reply brief gave the district
court “the first opportunity to rule with full briefing and
consideration.”); Winsett v. Washington, 130 F.3d 269, 274 (7th

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10 No. 12-2967
Cir. 1997) (“we cannot consider [petitioner’s] voluntariness
challenge because he did not present it to the district court.”).
McDowell did present these arguments to the district court,
albeit in a reply brief, and the state responded in a surreply.
The district court recognized the legal basis for the claims and
ruled that they were insufficiently grounded in record
evidence for it to rule on them. The argument was thus before
the district court and not forfeited.
This leaves the question of procedural default. Although
the district court found that McDowell had not procedurally
defaulted the suggestive identification claims described above,
we are not bound by its ruling. We review the district court’s
procedural default ruling de novo. Mulero v. Thompson, 668 F.3d
529, 536 (7th Cir. 2012).
To avoid procedural default, a habeas petitioner must
“fairly present” a claim to each level of the state courts.
Anderson v. Benik, 471 F.3d 811, 814 (7th Cir. 2006); Lewis v.
Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004). Both the operative
facts and controlling law must be placed before the state
courts. Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001).
At bottom, we must consider whether “the state court was
sufficiently alerted to the federal constitutional nature of the
issue to permit it to resolve that issue on a federal basis.” Id.
This analysis typically focuses on four factors: (1) whether the
habeas petitioner relied on federal cases that engage in
constitutional analysis, (2) whether the petitioner relied on
state cases that apply constitutional analysis to similar facts, (3)
whether the petitioner framed the claims in terms so particular
as to call to mind a specific constitutional right, and (4)

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No. 12-2967 11
whether the petition alleges a pattern of facts within the
mainstream of constitutional litigation. Id.
In Illinois, which has a two-tiered appellate review system,
a petitioner must present a claim at each level of the state court
system, either on direct appeal or in post-conviction
proceedings. Lewis, 390 F.3d at 1025 (citing O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999)). Because McDowell raised
only sentencing issues on direct appeal, our analysis focuses on
the arguments he made on post-conviction review.
McDowell did not fairly present his suggestive
identification claim to the trial court that heard his post-
conviction petition. He stated only, amid an argument about
whether the police had probable cause to arrest him, that a
computer-generated photo was shown to the eyewitnesses “in
such a suggestive manner that there was little room to exclude
him.” We must construe this pro se petition liberally. Ward v.
Jenkins, 613 F.3d 692, 697 (7th Cir. 2010). But even giving
McDowell the benefit of the doubt, this single sentence does
not suffice to alert the court of the federal, constitutional nature
of McDowell’s claim. McDowell did not reference either the
Illinois or federal constitutions, cite any cases, or provide any
facts on which the Illinois court could have evaluated his
claim. Cf. Ward, 613 F.3d at 698 (finding that a pro se habeas
petitioner had fairly presented his ineffective assistance of
counsel claim to the state courts where he cited the Sixth and
Fourteenth Amendments, a leading Supreme Court case, a
number of state cases involving constitutional analysis, and
facts that placed his claim within the mainstream of
constitutional analysis).

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12 No. 12-2967
Further, this single sentence appears within the discussion
of McDowell’s probable cause claim. We have, at times, found
a claim to be fairly presented where the only discussion of it
appeared within the discussion of another claim. But in those
cases, we have required that the nested claim be either (1)
framed so it could stand on its own, were it presented in a
different section of the post-conviction petition or (2)
supported by “very substantial analysis” throughout the
petition. Lewis, 390 F.3d at 1027 (finding Brady claim not
defaulted where, although it appeared within an ineffective
assistance of counsel claim, the claim “did not advance a
theory as to why [petitioner’s] attorney was ineffective for
failing to raise this issue; it simply suggested that the evidence
was improperly destroyed); Rittenhouse v. Battles, 263 F.3d 689,
696 (7th Cir. 2001) (finding challenge to jury instructions not
defaulted where, although petitioner’s only discussion of the
jury instructions came within an ineffective assistance of
counsel argument, he presented the court with a “very
substantial analysis” of alleged problems with the jury
instructions).
Usually, a finding that a habeas petitioner did not fairly
present his claim to one level of the state courts would doom
his quest for the writ. But in McDowell’s case, the district court
found the suggestive identification claim was not procedurally
defaulted because the Illinois appellate court addressed it on
the merits. Where the last state court to consider the issue does
not rely on a procedural bar, but instead addresses it on the
merits, there is no procedural default. Pole v. Randolph, 750 F.3d
922, 937 (7th Cir. 2009). And the district court cited the Illinois
appellate court’s statement that “McDowell’s allegation that

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No. 12-2967 13
the photographic identifications were suggestive was not
supported by the record” as proof that the court addressed
McDowell’s claim on the merits. McDowell, 2012 WL 2921512
at *2.
But this single statement by the Illinois court was
embedded in its discussion of whether McDowell’s counsel
was ineffective. The court did not address any of the federal
constitutional law on the issue, nor reference the Due Process
clause. It is not clear it addressed the merits of the suggestive
identification claim as a federal, constitutional issue, rather
than as a factual matter. All the Illinois court found was that
McDowell’s claim of suggestiveness was not supported by the
record. With no factual predicate, it could not have decided, on
the merits, whether the arrays McDowell challenged were so
suggestive that they denied him due process. Therefore, we
find that McDowell procedurally defaulted any claim that the
processes used to identify him as the perpetrator were unduly
suggestive.
It is true that a habeas petitioner can avoid procedural
default if he can establish either cause and prejudice or that the
court’s failure to consider the defaulted claim would result in
a “fundamental miscarriage of justice.” Promotor v. Pollard, 628
F.3d 878, 885 (7th Cir. 2010). McDowell does not argue that he
can establish cause and prejudice, so we will focus on the latter
exception.
The fundamental miscarriage of justice standard erects an
extremely high bar for the habeas petitioner to clear. It applies
only in the rare case where the petitioner can prove that he is
actually innocent of the crime of which he has been convicted.

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14 No. 12-2967
Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003) (quoting
Schlup v. Delo, 513 U.S. 298, 324 (1995)). Such proof must take
the form of “new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Schlup, 513
U.S. at 324. The petitioner must prove, based on this evidence,
that it was more likely than not that no jury would have
convicted him at trial were the new, exculpatory evidence
available. Id. at 327.
McDowell did present new evidence with his habeas
petition: an affidavit in which he stated that Detective Guevara
framed him and a plethora of affidavits and transcripts that
contain allegations of misconduct against Detective Guevara in
other cases. This evidence, however, is insufficient to meet the
actual innocence bar; adequate evidence is “documentary,
biological (DNA), or other powerful evidence: perhaps some
non-relative who placed him out of the city, with credit card
slips, photographs, and phone logs to back up the claim.”
Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005). Only such
“powerful” evidence can establish that it is more likely than
not that no jury would have convicted a habeas petitioner.
McDowell’s affidavit is obviously self-serving and contains
no indicia of reliability. Such “eleventh hour” affidavits,
containing facts not alleged at trial and accompanied by no
reasonable explanation for the delay are inherently suspect.
Morales v. Johnson, 659 F.3d 588, 606 (7th Cir. 2011) (citing
Herrera v. Collins, 506 U.S. 390, 423 (1993) (O’Connor, J.,
concurring)). Further, none of the witnesses mentioned any
irregularities in the identification procedures. McDowell’s
argument essentially counters the evidence the State presented

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No. 12-2967 15
at trial with his own version of the events; this relatively weak
evidence cannot excuse his procedural default. See Smith v.
McKee, 598 F.3d 374, 388 (7th Cir. 2010).
The voluminous evidence of Detective Guevara’s
misfeasance in other cases similarly fails to establish that
McDowell was actually innocent. Even if we believed all of the
allegations, they remain collateral to McDowell’s case. While
they may be able to establish that Detective Guevara
intentionally induced erroneous identifications in other cases,
they cannot definitively prove he did so in McDowell’s case.
Rather than establishing McDowell’s innocence, they tend to
impeach Guevara’s credibility. And latter-day impeachment
evidence “seldom, if ever, make[s] a clear and convincing
showing that no reasonable juror would have believed the
heart of [the witness’s] account … .” Sawyer v. Whitley, 505 U.S.
333, 334 (1992).
III. CONCLUSION
Because McDowell procedurally defaulted his suggestive
identification claims by failing to present them to each level of
the Illinois state courts and cannot establish that a fundamental
miscarriage of justice will occur if we do not review his claims,
we decline to grant his petition for a writ of habeas corpus and
AFFIRM the decision of the district court.

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