Merritt v. McCann et al

Filing 62

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 10/9/2014:Mailed notice(rth, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JARMAIN MERRITT,

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Petitioner,

v.
MARVIN REED, Warden,
Jacksonville Correctional Center,1

Respondent.

No. 06-cv-6296
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
In 1997, petitioner Jarmain Merritt was convicted of aggravated kidnaping and vehicular
hijacking and other counts and sentenced to an extended term of 35 years. Petitioner filed a pro
se petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, asserting as his primary claim
that his trial counsel was ineffective. This Court appointed counsel who filed an amended
petition along with a supporting brief. The State filed an Answer arguing that the petition should
be dismissed because of procedural default and other defects. Appointed counsel then filed a
response to the Answer. For the reasons stated herein, the petition is denied.

1

Marvin Reed, the current warden of the Jacksonville Correctional Center, is substituted
as the respondent. See Rule 2(a) of the Rules Governing Section 2254 Cases; Fed. R. Civ. P.
25(d); Rumsfeld v. Padilla, 542 U.S. 426, 436 (2004).
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BACKGROUND
The following facts are taken from Illinois Appellate Court’s opinion in petitioner’s direct
appeal, People v. Merritt, No. 1-99-4236 (Ill. App. Ct. May 23, 2002) (Dkt. # 52-1), and are
“presume[d] to be true.” Whitman v. Bartow, 434 F.3d 968, 969 (7th Cir. 2006).
On October 8, 1997, [petitioner] was arrested and charged with the
aggravated kidnaping, vehicular hijacking, aggravated battery and unlawful
restraint of Ida Dorantes. A bench trial commenced on September 7, 1997, at
which the following evidence was presented.
Ida Dorantes (Ms. Dorantes) testified on behalf of the State that on August
30, 1997, at approximately 1:00 p.m., she drove to St. Paul Bank on Roosevelt
Road in Oak Park, Illinois, to make a deposit. She left her vehicle unlocked in the
bank’s parking lot. Ms. Dorantes then drove to Austin Boulevard, and stopped. At
that point, a man sat up in the back seat of her vehicle, grabbed her by the neck,
and told her to keep driving or he would kill her. Ms. Dorantes told the man that
he could take her vehicle, if he would let her go, but the man refused. Ms.
Dorantes looked at the man in the rearview mirror while he spoke to her. In court,
Ms. Dorantes identified [petitioner] as the man inside the vehicle. Ms. Dorantes
continued driving straight for three or four blocks, then stopped the vehicle and
pressed on the horn. [Petitioner] told her to stop, and hit her repeatedly on the left
side of the head. Ms. Dorantes opened the door and [petitioner] tried to get into
the front seat. As Ms. Dorantes was exiting the vehicle, [petitioner] climbed into
the front seat, at which point, Ms. Dorantes was face to face with [petitioner].
Ms. Dorantes’ neighbor, Raul, then ran over to the vehicle and began to struggle
with [petitioner]. Ms. Dorantes ran to her mother’s beauty shop nearby and called
the police. When the police arrived, Ms. Dorantes described the person who
attacked her as a [] black male, between the ages of 25 and 27, 5' 10", 150 pounds,
with short curly hair and a thin moustache. On September 2, 1997, Ms. Dorantes
went to the police station and described her attacked to an officer who made a
composite sketch, which sketch was admitted into evidence. On September 8,
1997, Ms. Dorantes identified [petitioner] from a photographic lineup as her
attacker, and on October 8, 1997, she identified [petitioner] in a live lineup.
Raul Martinez (Mr. Martinez) testified on behalf of the State that at about
1:00 p.m. on August 30, 1997, he was standing on Roosevelt Road when he saw a
vehicle stop and a man in the back seat began hitting a woman in the head in the
front seat. He identified the woman as his neighbor, Ida Dorantes. Mr. Martinez
went over to the vehicle and told the man to leave Ms. Dorantes alone. Ms.
Dorantes ran away, and Mr. Martinez struggled to pull the man out of the vehicle,
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but the man started the vehicle and drove away. Mr. Martinez had an opportunity
to view the man’s face during the struggle, and he identified [petitioner] in court
as the man inside the vehicle. On September 3, 1997, Mr. Martinez identified
[petitioner] from the composite sketch at the police station and from a photograph
lineup. On October 8, 1997, he identified [petitioner] from a live lineup.
Detective Arthur Borchers (Detective Borchers), a Chicago police officer,
testified on behalf of the State that he was assigned to investigate the attack upon
Ms. Dorantes, and on September 2, 1997, he spoke with Ms. Dorantes and helped
create a composite sketch of her attacker, based on her description. Detective
Borchers stated that Ms. Dorantes’ vehicle was recovered a few blocks from
where she left it on the day of the attack. On September 8, 1997, Detective
Borchers learned that [petitioner] had been arrested in connection with a similar
incident in Forest Park, Illinois, and he obtained a photograph of [petitioner] for
use in a photographic lineup. Detective Borchers’ partner, Detective Weber,
conducted photographic and live lineups with Ms. Dorantes and Mr. Martinez,
and both identified [petitioner] as Ms. Dorantes’ attacker. [Petitioner] was
arrested and processed, at which time, Detective Borchers learned that [petitioner]
was 24 years old, 145 pounds, and 5'11".
Paul Rossi (Mr. Rossi) testified on behalf of the Defense that he was an
investigator with the Public Defender’s Office, and that he was present when
Assistant Public Defender, Julie Harmon (Ms. Harmon), interviewed Ms.
Dorantes. During the interview, Ms. Dorantes indicated that she was not able to
see her attacker in the rearview mirror, and that she was unable to give a
description of her attacker. Mr. Rossi also indicated that he himself interviewed
Mr. Martinez, during which interview, Mr. Martinez indicated that he was very
uncertain about his identification of [petitioner] in the lineup, and that the
mustache as drawn in the composite sketch was too thin.
[Petitioner] testified on his own behalf at trial that on August 30, 1997,
between 1:00 p.m. and 5:00 p.m., he was at his family’s apartment at East 67th
Place, taking care of his children. [Petitioner] stated that his mother and his
brother were also present at the same time. [Petitioner] indicated that the first time
he ever saw Ms. Dorantes was in court.
Dorothy Burnett (Ms. Burnett), [petitioner’s] mother also testified on
behalf of the Defense. Ms. Burnett stated that on August 30, 1997, she was at her
apartment with [petitioner], planning a birthday party, and [petitioner] did not
leave the apartment until 4:00 p.m. Ms. Burnett admitted that she did not tell
anyone that [petitioner] had been with her at the time of the attack until two years
after [petitioner’s] arrest.

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At trial, defense counsel attempted to admit the testimony of Ms. Harmon
regarding her interviews with Ms. Dorantes. The prosecutor objected to this
evidence on the basis that a proper foundation had not been laid and the testimony
was cumulative of the testimony offered by Mr. Rossi. The parties stipulated that
the testimony of Ms. Harmon would corroborate Mr. Rossi’s testimony. The
parties also stipulated to the testimony of Howard Burnett,2 which testimony
would corroborate Ms. Burnett’s testimony that [petitioner] was convicted of
armed violence in 1993 and sentenced to six years imprisonment, convicted of
possession of a stolen motor vehicle in 1997 and sentenced to four years
imprisonment, and convicted of possession of a controlled substance in 1998 and
sentenced to three years imprisonment, which sentence he was serving at the time
of trial.
Following the submission of this and other evidence, the trial court found
[petitioner] guilty of aggravated kidnaping and vehicular hijacking. At the
sentencing hearing, the State presented evidence in aggravation that [petitioner]
was previously convicted: (1) of aggravated vehicular hijacking in 1994 and
sentenced to four years imprisonment, (2) of armed violence in 1993 and
sentenced to six years imprisonment, (3) of possession of a controlled substance
in 1998 and sentenced to three years imprisonment. The State sought the
imposition of an extended term sentence based on the fact that [petitioner] had
been convicted of the Class X felony, armed violence, within the last ten years.
The trial court sentenced [petitioner] to an extended term 35 year sentence, which
sentence was imposed consecutive to the three year sentence for possession of a
controlled substance.
(Dkt. # 52-1 at pp. 2-6.)
Petitioner raised five claims in his direct appeal to the Illinois Appellate Court:
(a)

trial counsel was ineffective for: (1) failing to lay the foundation for and
provide the impeachment testimony of petitioner’s former attorney, Julie
Harmon, who interviewed the eyewitnesses; (2) stipulating that the
testimony of Harmon would simply corroborate the testimony of the
defense investigator who also attended the interviews; (3) stipulating to the
testimony of an alibi witness, petitioner’s brother, and specifying only that
the witness would corroborate the testimony of petitioner’s mother that

2

The remaining part of this paragraph is incorrect to the extent that it suggests that the
parties stipulated that petitioner’s brother, Howard Burnett, would testify as to petitioner’s
criminal record. Although the parties did later stipulate to petitioner’s prior criminal history as
summarized in this paragraph, the stipulation regarding Mr. Burnett did not concern this history
but instead concerned petitioner’s alibi.
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petitioner was home the day of the kidnaping; and (4) failing to object to
the detective’s testimony that the eyewitnesses had no doubt when they
identified petitioner in the lineup;
(b)

the State did not prove petitioner guilty beyond a reasonable doubt;

(c)

the Act that increased aggravated kidnaping from a Class 1 to a Class X
felony violated Illinois’s single-subject rule;

(d)

petitioner’s extended-term sentence and the fact that the sentence was
imposed consecutively to the sentence for possession of a controlled
substance were unconstitutional under Apprendi v. New Jersey, 530 U.S.
466 (2000), because the fact of his prior conviction was not proven to a
jury beyond a reasonable doubt; and

(e)

petitioner was penalized for maintaining his innocence and going to trial, as
evidenced by the disparity between his thirty-five year sentence and the sevenyear sentence he was offered during plea proceedings.

(Answer at 2-3.)
In a 12-page order, the Illinois Appellate Court affirmed the conviction. (Dkt. # 52-1.)
The Court rejected the ineffective assistance of trial counsel claim holding, among other things,
that the decision to stipulate to Harmon’s and Burnett’s testimony was appropriate and that any
failure to object to Detective Borchers’ statement about the two eyewitnesses at the lineup was an
“isolated omission” that did not affect the outcome of the trial. (Id. at 7-8.) As for the
insufficiency of the evidence claim, the appellate court found the testimony of the two
eyewitnesses was sufficient to support the conviction:
The record indicates that both Ms. Dorantes and Mr. Martinez had adequate
opportunity to view the offender, accurately described the [petitioner’s] physical
characteristics, and positively identified [petitioner] in lineups shortly after the
attack. Although Mr. Rossi testified that Mr. Martinez and Ms. Dorantes
expressed doubts about the accuracy of their identifications, it was for the trier of
fact to assess witness credibility and resolve any conflicts in testimony.
(Id. at 8-9.)
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Petitioner filed a petition for leave to appeal (“PLA”) in the Illinois Supreme Court. He
raised two claims:
(a)

the appellate court erred in finding that petitioner waived his argument that
the trial court relied on two improper factors in sentencing; and

(b)

under Apprendi v. New Jersey, 530 U.S. 466 (2000), it was
unconstitutional for the trial judge to impose an extended-term sentence
based on petitioner’s past felony convictions.

(Answer at 3; Ex. F.) The Illinois Supreme Court denied the PLA. (Id.; Ex. E.)
Petitioner filed a petition for writ of certiorari which the United States Supreme Court
denied on February 24, 2003. (Id.)
On October 10, 2002, petitioner filed a pro se petition for relief pursuant to the Illinois
Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq. (Dkt # 52-21.) Petitioner raised a
number of claims, including a claim that he was charged in this case because police in Forest
Park obtained a statement from George Bolden implicating petitioner in a separate carjacking
case, 12 days before the one in this case, but that Mr. Bolden since recanted that statement. (Id. at
15.) Petitioner included an affidavit from Mr. Bolden, then in prison, who testified that he lied
when he implicated petitioner in the first carjacking. Petitioner also asserted that his trial counsel
was not effective because he failed to call Sheriff Horace Hardy and La Shauna Pinkston to give
testimony as to petitioner’s alibi that he was at home all day. (Id. at 17.) Petitioner included an
affidavit, dated September 19, 2002, from Mr. Hardy in which he stated that at 1:00 p.m. on
August 30, 1997, he was on the phone with petitioner and that he also talked to petitioner’s son.
(Id. at 26.) Mr. Hardy stated that he informed petitioner’s trial counsel that he was willing to

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testify to these facts. The trial court dismissed the postconviction petitioner as frivolous and
patently without merit. (Answer at 4.)
Petitioner appealed to the Illinois Appellate Court, raising four claims:
(a)

trial counsel was ineffective for failing to call Harmon as an impeachment
witness and Horace Hardy as an alibi witness;

(b)

the trial court erred by dismissing the petition based on res judicata and
waiver;

(c)

the trial court failed to comply with the Illinois statute requiring service on
petitioner of the order denying a postconviction petition within ten days;
and

(d)

the trial court improperly relied on the State’s input in summarily
dismissing the postconviction petition.

(Id.; Ex. H.)
On August 27, 2004, the Illinois Appellate Court affirmed in a 9-page order, finding that
counsel could have reasonably presented Ms. Harmon’s testimony by stipulation because it
merely corroborated Mr. Rossi’s testimony. (Dkt. # 52-7 at 5.) As for the failure to call Sheriff
Horace Hardy as an alibi witness, the Court found that this testimony “would have been
cumulative at best, and because it would be offered by a friend, it would also be scrutinized for
his bias or interest.” (Id. at 6.)
Petitioner then filed a PLA with the Illinois Supreme Court, raising two issues:
(a)

the trial court failed to comply with the Illinois statute requiring service of
the order denying a postconviction petition within ten days;

(b)

the trial court erred by dismissing the petition based on res judicata and
waiver.

(Answer at 4.) On December 1, 2005, the Illinois Supreme Court denied the PLA. (Id.; Ex. K.)

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On November 9, 2006, petitioner filed a state habeas corpus complaint pursuant to 735
ILCS 5/10-101, et seq., which the trial court dismissed on March 23, 2007. (Id.; Ex. M.)
Petitioner appealed and raised on claim: he should have been allowed to recharacterize
his habeas complaint as a postconviction petition. (Id. at 5; Ex. N.) The state appellate court
affirmed. (Id.; Ex. M.)
Petitioner filed a PLA raising the same claim he raised to the appellate court – namely, he
should have been allowed to recharacterize his habeas complaint. On September 30, 2009, the
Illinois Supreme Court denied the PLA. (Id.; Ex. P.)
On November 17, 2006, petitioner filed his habeas petition with this Court. The case was
stayed in February 2007, on petitioner’s motion, so that he could exhaust two of the claims in his
initial Section 2254 habeas petition via the state habeas corpus proceeding.
On May 14, 2012, petitioner’s counsel filed an amended habeas petition in this Court
raising these claims:
(a)

trial counsel was ineffective for failing to: (1) move to suppress suggestive
identification evidence; (2) investigate and interview potential witnesses;
(3) lay a proper foundation for the admission of testimony; (4) object to
the admission of testimony vouching for the credibility of another witness;
(5) raise violations of due process involving the arrest of petitioner; and
(6) object to irregularities at trial and at sentencing in a post trial motion;

(b)

petitioner was denied his Fifth Amendment right to due process and
Eighth Amendment right to freedom from excessive sentence,
respectively, because he was punished: (1) for his failure to acknowledge
guilt; (2) for his decision to go to trial; (3) for his failure to conform to
specific religious dictates and “confess his sins” before being sentenced;
and (4) for enhancements that were not proven beyond a reasonable doubt;

(c)

appellate counsel was ineffective for failing to argue on direct appeal that:
(1) trial counsel failed to raise due process issues regarding petitioner’s
arrest and state retribution for complaints made against the police; (2) trial
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counsel failed to file pre-trial motions regarding the line-up identification;
(3) the statute of conviction was applied ex post facto; (4) trial counsel
failed to demonstrate that the State did not prove the aggravating factor
beyond a reasonable doubt; and (5) trial counsel failed to present expert
testimony regarding the limitations of identification testimony; and
(d)

petitioner was denied due process because the State prosecuted this case because
the State could not prove another incident, and in retaliation for complaints made
to the authorities regarding police action in the investigation of petitioner.

(Answer at 5-6; Dkt. # 44 at 5-6.)
DISCUSSION
The State argues that all the claims in the amended petition are procedurally defaulted
because they were not raised through one complete round in state court or because they were
rejected on independent and adequate state law grounds.
In order to receive federal habeas relief, a state prisoner must have properly presented his
claims in the state court. Johnson v. Pollard, 559 F.3d 746, 751-52 (7th Cir. 2009). A federal
court will not review a question of federal law decided by a state court if the state court decision
rested on a state procedural ground independent of the federal question and adequate to support
the judgment. Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012); Moore v. Bryant, 295 F.3d 771,
774 (7th Cir. 2002).
A claim may also be procedurally defaulted if petitioner fails to raise an issue for “one
complete round” of state court review. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In
Illinois, one complete round includes two tiers of appellate review; appeal to the Illinois
Appellate Court, and a petition for leave to appeal to the Illinois Supreme Court. Boerckel, 526
U.S. at 845. One complete round may be either a direct appeal or post-conviction proceedings.
White v. Godinez, 192 F.3d 607, 608 (7th Cir. 1999).
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In its Answer, the State has set forth in detail the procedural history and explained why
the current claims are procedurally defaulted. See Answer at pp. 19-23. The primary reason is
that petitioner failed to raise his claims in his three petitions for leave to appeal in the Illinois
Supreme Court. Id. at 21-22. In his response brief, petitioner does not dispute that his claims are
procedurally defaulted.3
In its Answer, the State acknowledges that petitioner can avoid procedural default under
one of two limited exceptions: (1) cause for the default and actual prejudice as a result of the
alleged violation of federal law; or (2) that the failure to consider the claim will result in a
fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Steward v.
Gilmore, 80 F.3d 1205, 1211-12 (7th Cir. 1996). In its Answer, the State explains why petitioner
cannot fall within either of these exceptions. As for the first exception, the State points out that,
although ineffective assistance of counsel can constitute “cause,” petitioner here did not properly
raise his ineffective assistance claims in state court. See Answer at 25. In his Response,
petitioner does not make any argument that he falls within the first exception. Instead, his relies
solely on the second exception. (Response at 2 (“His Petition before this Court is based upon his
actual innocence of the crime”).4

3

The State acknowledges that there is an argument that petitioner may not have
procedurally defaulted one claim – that his consecutive sentences violated Apprendi. See Answer
at 27-29. The State argues this claim would fail on the merits in any event because Apprendi
does not apply to consecutive sentences. Id. at 29 (citing Oregon v. Ice, 555 U.S. 160, 164
(2009)). In his response brief, petitioner does not disagree with this argument.
4

In addition to arguing that all of petitioner’s claims are procedurally defaulted, the State
also argues that many of petitioner’s claims are also time-barred under AEDPA’s one-year statute
of limitations. See Answer at 11-19. Specifically, the State argues that although petitioner’s pro
se original petition was timely, his amended petition filed by appointed counsel was untimely and
those new claims do not relate back to the claims in the original petition. Because this Court has
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The law applicable to a claim of actual innocence was summarized by the Seventh Circuit
in Coleman v. Lemke, 739 F.3d 342 (7th Cir. 2014):
As a general matter, federal habeas courts are precluded from considering habeas
claims that were procedurally defaulted because they were not presented for one
complete round of state court review. See O’Sullivan v. Boerckel, 526 U.S. 838,
845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). But a petitioner can still obtain review
of his defaulted claims by establishing that a fundamental miscarriage of justice
would result from denial of his petition because he or she is actually innocent. See
House v. Bell, 547 U.S. 518, 536-37, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006).
“[T]enable actual-innocence gateway pleas are rare: ‘[A] petitioner does not meet
the threshold requirement unless he persuades the district court that, in light of the
new evidence, no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.’” McQuiggin v. Perkins, __ U.S. __, 133 S.Ct. 1924,
1928, 185 L.Ed.2d 1019 (2013) (quoting Schlup, 513 U.S. at 329, 115 S.Ct. 851).
The new evidence may include “exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence – that was not presented at
trial.’” House, 547 U.S. at 537, 126 S.Ct. 2064 (quoting Schlup, 513 U.S. at 324,
115 S.Ct. 851). The actual innocence standard is a demanding one that “permits
review only in the ‘extraordinary’ case.” House, 547 U.S. at 538, 126 S.Ct. 2064.
When deciding the ultimate question of innocence, “the habeas court must
consider all the evidence, old and new, incriminating and exculpatory” and then
“make a probabilistic determination about what reasonable, properly instructed
jurors would do.” Id.
Id. at 349. As the Supreme Court noted in Schlup, a claim of actual innocence is “rarely
successful.” More recently, the Supreme Court observed that the miscarriage of justice exception
applies to “a severely confined” category of cases. McQuiggin v. Perkins, 133 S.Ct. 1924, 1933
(2013).
The sole question here is whether this case is one of those rare, extraordinary cases. This
analysis requires that this Court examine all the evidence and ask how a reasonable trier of fact
would view it. This analysis thus does not require that this Court make any determinations about

already found that the claims are procedurally defaulted, this Court need not address this
additional argument.
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the effectiveness of petitioner’s trial counsel who petitioner believes was unprepared and made
numerous questionable choices both leading up to and during the trial. Nevertheless, it is worth
pointing out that trial counsel’s performance was indeed questionable in several respects,
including repeatedly missing court dates or showing up several hours late, to the frustration of the
trial judge. Obviously, this is not a good way to start a trial, especially a bench trial.
Following the “old and new” framework identified by the Supreme Court, this Court will
first examine the “old” evidence – that is, the evidence presented at the bench trial. To
summarize, this was basically a two-witness case. There was no physical evidence linking
petitioner to the crime scene. The two witnesses were Ms. Dorantes, the victim, and Mr.
Martinez, who helped rescue her and fought with the perpetrator. Both witnesses testified about
the encounter, which took place at around 1:00 p.m. on August 30, 1997.
Ms. Dorantes testified that police came out immediately after the incident and that she
told them the attacker was a black male, 5' 10", 150 pounds, between the age of 25 and 27, with
short curly hair and a thin mustache. On September 2, 1997, she helped the police create a
composite sketch. On September 8, 1997, she picked petitioner out of a six-person photo array.
On October 8, 1997, she picked him out of a line-up.
Mr. Martinez testified that the police came out to the crime scene right after the incident.
In his testimony, he did not say whether or not he gave a description at this time. However, on
September 3, 1997, he was shown the composite sketch and testified that it looked like
petitioner: “you never forget the small mustache.” On September 10, 1997, Mr. Martinez picked
out petitioner’s picture from a photo array but said that he would be 100% sure of the photograph

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if he saw the perpetrator in person. On October 8, 1997, Mr. Martinez picked petitioner out of a
line-up.
The prosecution also called Detective Borchers, a police officer working for the Oak Park
Police Department. He testified that, on September 8, 1997, he learned that petitioner had been
arrested and was in the custody of the Forest Park police. Detective Borchers went there and got
a picture of petitioner. The picture was used in the photo array shown to Ms. Dorantes on
September 8th.
In his case, petitioner put on an alibi defense. His mother testified that petitioner was at
home the entire day and never out of her sight for more than five minutes. Counsel then
stipulated that petitioner’s brother would testify to the same facts. Petitioner testified that he was
at home the whole day working on his son’s birthday party and only left at 5:00 p.m. when he
went to go buy some Pampers for his son.
To attack the credibility of the prosecution’s two eyewitnesses, counsel called Paul Rossi,
an investigator with the public defender’s office. Mr. Rossi had gone with Julie Harmon, the
public defender then representing petitioner, to interview Ms. Dorantes on June 3, 1998. Mr.
Rossi, by himself, twice interviewed Mr. Martinez. Mr. Rossi testified that Ms. Dorantes said
that she never got a clear look at the offender; that she was not able to see him in her rearview
mirror; that she was unable to give a description of him to the police; and that nothing about the
perpetrator’s physical appearance stood out. Mr. Rossi testified that Mr. Martinez said in the two
interviews that he “was very uncertain about the facial features and the appearance” of the
perpetrator; that “he believed the man was Puerto Rican or a light skinned black man”; and that
the composite sketch portrayed the mustache as “too thick” because the perpetrator’s mustache
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“was much thinner.” At the end of his case, trial counsel indicated that the defense wanted to
call Julie Harmon who was then on trial in another courtroom. After some back and forth, the
parties agreed to stipulate that Ms. Harmon’s testimony would corroborate Mr. Rossi’s
testimony.
A reasonable juror viewing this evidence could find petitioner guilty. In their testimony,
the two witnesses came off as credible with no glaring inconsistencies. No evidence was
introduced to show that they had any bias or some ulterior motive to frame petitioner. The
incident took place in the middle of the afternoon. Ms. Dorantes testified that she talked to the
police immediately after the encounter and described the perpetrator. This description was used a
few days later to create the composite sketch, one which the trial judge later described as “one of
the closest I have ever seen to a person charged in this court.” It is true that Ms. Dorantes
testified that during the two or three minute car ride she only got a couple of looks at the
perpetrator through the rearview mirror. Yet, a trier of fact could still conclude that she was
believable and that this look, however brief, was long enough to make a positive identification.
In any event, it is undisputed that Mr. Martinez got a much closer look. He first saw the
perpetrator from 10 feet away as the car drove up; then looked at him through the passenger side
window as he tried to grab the perpetrator; saw him again after he ran around to the driver’s side
window and struggled with the perpetrator trying to pull him out of the car. Mr. Martinez hit him
at least two times in the face which would by necessity require looking at the perpetrator’s face.
The main line of attack against these two witnesses was the impeachment testimony of
investigator Rossi. He testified that the two witnesses, in June 1998, made statements to him and
public defender Julie Harmon which allegedly showed they had doubt about their initial
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identification of petitioner. However, a trier of fact could reasonably decide to discount this
impeachment evidence, finding that the in-court testimony of these two witnesses was simply
more believable. The interviews were conducted by the attorney and investigator working for
petitioner and took place 10 months after the event.
Moreover, a trier of fact could find that the statements allegedly made by these two
witnesses are ambiguous and equivocal. For example, although Mr. Rossi reported that Ms.
Dorantes said in the interview that she never saw the perpetrator in the rearview mirror and was
unable to give a description to the police, Mr. Rossi also testified that Ms. Dorantes told him she
did not get a “clear” look at the perpetrator This statement suggests that she did see the
perpetrator to some degree, which is not inconsistent with her trial testimony that she only saw
him twice from the rearview mirror. The claim that she could not give any description
whatsoever to the police, who arrived immediately after the encounter, could be viewed by a
judge or jury as doubtful.
Similarly, when Mr. Martinez was asked by Mr. Rossi whether the composite sketch was
accurate, Mr. Martinez allegedly responded that the mustache in the picture was “too thick” and
the perpetrator’s mustache “was much thinner.” This statement could be interpreted to mean that,
other than the thickness of the mustache, the composite was accurate. A trier of fact could also
conclude that Mr. Martinez was carefully looking at the picture and was comparing it to a clear
and independent image in his own mind. At another point in the interview, Mr. Martinez
supposedly stated that the composite “kind of looks like the guy but I am not sure.” Again, this
statement, while expressing some uncertainty, is not a disavowal and it is also not inconsistent
with Mr. Martinez’s testimony at trial that he was not 100% certain when he picked out
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petitioner’s picture from the photo array. In sum, this Court finds that a trier of fact reasonably
could conclude based on the same evidence that petitioner was guilty.
Next this Court must consider the additional or “new” evidence described in the amended
petition. Most of this evidence is not really new, but more in the nature of corroborative or
cumulative evidence that petitioner believes trial counsel either failed to investigate or failed to
aggressively and effectively raise at trial.
Petitioner complains that trial counsel failed to interview four alibi witnesses. However,
counsel did put on an alibi defense, with petitioner and his mother testifying that petitioner never
left the home the entire day. Counsel also stipulated that petitioner’s brother would have
confirmed the same testimony. Petitioner does not say who the additional alibi witnesses would
be, but it is hard so see how additional alibi witnesses (likely other family members or friends
such as Horace Hardy) would add much as they would be viewed, as the Illinois Appellate Court
noted, as family members or friends who carry a natural bias.
Petitioner argues that trial counsel should not have stipulated that Ms. Harmon’s
testimony would corroborate Mr. Rossi’s and instead should have called her as a live witness.
Ms. Harmon’s testimony is set forth in an affidavit petitioner submitted with his post-conviction
petition. (Doc. # 52-21 at p. 30-31.) In this affidavit, Ms. Harmon states that in the June 3, 1998
interview, Ms. Dorantes stated that she had only gotten “a glance” at the offender, that she could
not see the offender in the rearview mirror, and that she could not describe the offender to police
after the incident. (Id. ¶ 3.) She further states that she asked Ms. Dorantes if she could be wrong
about her identification and that Ms. Dorantes “shrugged her shoulders and stated, ‘I didn’t really
get a look at him.’” (Id. ¶ 5.) After receiving this answer, Ms. Harmon “asked her again” the
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same question, whether Ms. Dorantes could be wrong, at which point Ms. Dorantes “then nodded
and said, ‘I didn’t want to look at him, I was trying to get away.’” (Id. ¶ 6.)
For the most part, this testimony simply corroborates what Mr. Rossi said. Ms. Harmon
does add a few additional details, such as her statement that she twice asked Ms. Dorantes if she
could be wrong. In her first answer, Ms. Dorantes never directly answers whether she could be
wrong, stating only that she did not “really” get a look at him. This answer could be interpreted
by a trier of fact as merely being a polite way to avoid saying no to Ms. Harmon. The mere fact
that Ms. Harmon then asked the same question again could be viewed as leading the witness. The
answer, again, is equivocal, as Ms. Dorantes is said to have “nodded” thereby supposedly
showing that she agreed that she “could be wrong,” itself a vague statement, which she follows
up with the equivocal statement that she didn’t “want to” look at the perpetrator. In sum, it is
unlikely that Ms. Harmon’s live testimony would significantly change the mind of a reasonable
trier of fact.
Petitioner also relies on possible physical evidence that he believes could have helped
him. Specifically, he complains that counsel failed to investigate whether the bank videotapes
and the fingerprint evidence taken from the rearview mirror might have been exculpatory.
Because trial counsel never testified in a postconviction hearing, it is not known whether he ever
examined this evidence or whether he instead looked at it and found nothing helpful. At trial,
counsel did refer to this evidence, arguing that petitioner’s fingerprints were not found on the
steering wheel and that no videotapes from the bank had been introduced linking petitioner to the
scene. In closing, counsel emphasized the lack of any physical evidence.

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As noted above, in evaluating an actual innocence claim, the focus is on the evidence
available now, not on what counsel may have done. Although petitioner faults counsel for not
investigating this evidence, he has not pointed to any evidence suggesting that these two pieces
of evidence would have been helpful.5 Moreover, he has not argued that these two pieces of
evidence still exist such that they could be re-examined for possible clues nor has he argued that
these questions could somehow be fleshed out at an evidentiary hearing. Petitioner’s appointed
counsel has already hired a private investigator.
Finally, petitioner advances two theories as to why police might have framed him by
manipulating the two eyewitnesses into falsely identifying him. These are set forth in Count 5 of
his amended petition. His first theory is that “the State could not prove another incident,” which
refers to a carjacking that took place in the same area 12 days before this case. The second is that
police were retaliating against him because his family complained to the Internal Affairs Officers
about a search of their home.
These two theories are not enough to establish actual innocence. While not illogical, they
have little concrete evidence to support them and rest on speculations derived from the rough
chronological overlap of events.

5

The available evidence suggests that the videotapes would not have been helpful. The
prosecutor represented in closing argument that “[t]here is no videotape in the parking lot.”
Although not discussed at trial, the police report likewise states that detectives looked at the two
videotapes, but they “did not show either the victim or any possible suspects, as the angle of the
camera [] was not directed where the victim was parked.” Moreover, petitioner’s original
counsel, public defender Julie Harmon, worked on this case and interviewed the victim. She has
provided an affidavit about that interview, but she does not state in the same affidavit that the
videotape or fingerprint evidence was helpful. As for the fingerprint evidence, it was taken from
the rearview mirror. It is not clear that the perpetrator ever touched the rearview mirror during his
struggle with Mr. Martinez or during his drive a couple of blocks before he abandoned the car.
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The first theory arises out of the fact that there were two carjackings being investigated at
the same time. Sometime around September 3, 1997, police arrested George Bolden in
connection with the first carjacking. Bolden allegedly told police that he and a man named
“Jarmain” came to Oak Park to “get a car.” This statement led police to petitioner (Jarmain
Merritt) who was arrested on September 6th on a drug charge. On September 8, 1997, the victim
from the first carjacking (Ms. Coady) viewed a lineup but was unable to identify petitioner as a
culprit. That same day, Ms. Dorantes identified petitioner’s picture from a photo array. Petitioner
speculates that police, frustrated by the failure to charge him in the first carjacking, then decided
to frame him for the second carjacking.
Petitioner’s theory rests on weak inferences. It is true that the two investigations ran
parallel and, specifically, that on September 8th the victim in the first carjacking failed to identify
petitioner and then Ms. Dorantes in this case did identify petitioner. However, in court, Ms.
Dorantes testified that she twice gave a description of petitioner before September 8th, first
immediately after the kidnaping on August 30th and then on September 2nd when she helped
police create a composite sketch. Thus, for petitioner’s theory to work, the detectives would have
had to not only manipulate Ms. Dorantes into picking out petitioner on September 8th, but would
have also had to make up backdated police reports about these two earlier events. Petitioner has
pointed to Mr. Rossi’s testimony that Ms. Dorantes told him in June 1998 that she was unable to
give a description to police right after the event. At best, however, this would mean that the jury
could reasonably determine which of two witnesses to believe. This is not enough to establish
actual innocence. See, e.g., Smith v. McKee, 598 F.3d 374, 388 (7th Cir. 2010) (“Smith has put
forth the statements of two witnesses not called at trial, one of whom Smith apparently knew
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about since 1992. This does not sufficiently counter the state’s two eye witness identifications
and the evidence of Smith’s self-inculpating statement[.]”).
Although petitioner believes that detectives in this situation might have been desperate
enough to frame him, an equally reasonable assumption is that the detectives were honestly
following the evidence where it led them.6 They received a lead connecting petitioner to the first
carjacking. When that investigation did not pan out, they did not push things and did not charge
the suspect with that crime, arguably showing that they were reasonable and judicious in who
they charged. Detectives then investigated whether there was evidence connecting the same
suspect to a similar crime, in the same area, during the same general time. When the second
victim was able to identify petitioner, then detectives arrested petitioner for that crime. The mere
fact that police may have wondered whether the same person was involved in the two crimes is
not unreasonable on its face. Nor is there anything illogical in charging a suspect for only one of
the two crimes. In short, this theory lacks sufficient evidence to meet the actual innocence
standard.7
The other theory – that police charged petitioner to retaliate against petitioner’s family’s
for filing a compliant about an alleged illegal search – is even more speculative. The timing does
not appear to match up. The house search took place on September 5, 1997, then petitioner’s

6

The facts are not clear about who all the detectives were on these two cases and exactly
how they worked together.
7

Although petitioner raises this theory in Count 5 of his amended petitioner, in his
response brief, he also complains at the same time that trial counsel “allowed the introduction of
mention of other vehicle highjackings for which Mr. Merritt was not charged.” (Resp. at p.4.) It
is not clear how to reconcile these two criticisms because to advance the first theory would
necessarily require mentioning the first carjacking.
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family complained, and then an investigation allegedly took place. Petitioner has not supplied
the Court with dates of the latter two events. So it is not clear that the latter two events took place
before the key investigative steps in this case. As noted above, Ms. Dorantes testified that she
worked with police to create a composite sketch on September 2nd, which would have been
before the search of the home, much less the filing of the complaint and subsequent
investigation. Moreover, the same criticisms applied to the first theory are applicable to this one.
There is no specific evidence suggesting police were motivated by retaliation, and a reasonable
trier of fact could not rely solely on a general assumption that police would be so upset by the
filing of a complaint against them that they would frame a defendant.
In sum, the new evidence and theories raised by petitioner in his amended petition and
two briefs filed by appointed counsel do not constitute the type of “powerful evidence” courts
have required to establish actual innocence to avoid procedural default. See Hayes v. Battaglia,
403 F.3d 935, 938 (7th Cir. 2005) (“To demonstrate innocence so convincingly that no
reasonable jury could convict, a prisoner must have 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.”).

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For the reasons stated herein, this Court denies Jarmain Merritt’s habeas corpus petition.
This Court declines to issue a certificate of appealability. Petitioner has not made a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

IT IS SO ORDERED.

Date: October 9, 2014

Enter:
___________________________________
Sharon JohnsonColeman
United States District Court Judge

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