Lee v. Hardy et al

Filing 114

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the amended habeas petition 96 is denied. A certificate of appealability shall issue on whether the Illinois Appellate Court reasonably hel d that Petitioner's trial counsel failed to provide ineffective assistance of counsel under the Sixth Amendment. A separate AO-450 judgment shall be entered. The status hearing of 03/07/2018 is vacated. Civil case terminated. Emailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY LEE,
Petitioner,
v.
NICHOLAS LAMB,
Warden, Lawrence Correctional Center,
Respondent.

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Case No. 11 C 00183
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Anthony Lee has filed a petition for a writ of habeas corpus, challenging his
1996 state-court convictions for rape and kidnapping. He argues that his lawyer did
not provide effective assistance, in violation of the Sixth Amendment right to
counsel.1 R. 96, Am. Pet.2 The state responds that Lee cannot obtain relief because
the Illinois Appellate Court rejected Lee’s claim on the merits, and did not
unreasonably apply federal law. R. 107, Answer at 15. The Court agrees: the Illinois
Appellate

Court’s

decision

on

Lee’s

ineffective-assistance

claim

was

not

unreasonable, so Lee’s habeas petition must be denied. But because it is a close
enough question, a certificate of appealability will issue.
1This

Court has subject matter jurisdiction over the case under 28 U.S.C. § 2241.
The previous caption referenced Tarry Williams as Respondent because he was the warden
of the facility where Lee was incarcerated when he originally filed his federal habeas
petition. Lee is now incarcerated at Lawrence Correctional Center. Under Federal Rule of
Civil Procedure 25(d), the Clerk’s Office shall substitute Nicholas Lamb, the current
warden of Lawrence Correctional Center, as Respondent. See Rule 2(a) of the Rules
Governing Section 2254 Cases in the United States District Courts.
2Citations to the record are noted as “R.” followed by the docket number and the
page or paragraph number.

I. Background
Anthony Lee was convicted in a bench trial of kidnapping and raping a
woman, whom the parties refer to as L.M. At trial, the only defense witness was Lee
himself. Defense counsel did not call five witnesses who Lee says would have
corroborated his version of the events (or at least parts of Lee’s version). Counsel’s
failure to call—and, Lee asserts, to even investigate—the five witnesses is the basis
of this habeas petition. To understand how those witnesses might have fit into the
case, it is necessary to learn about the prosecution’s evidence.
A. Trial Court Proceedings
1. The State’s Case
The state’s first witness, Teresa Baragas, testified that, at around 3 o’clock in
the morning on April 15, 1995, she awoke to hear a young woman banging on her
door. Am. Pet. Exh. 5, Trial Tr. Vol. B at 13:22-14:14:8. The young woman, whom
Baragas identified as L.M., was screaming and saying that she had been raped. Id.
at 14:21-24. Baragas testified that L.M. was completely naked and that she had
black eyes and her face was “marked up and scarred.” Id. at 14:10-20.
Next, the state called L.M. She testified that, in the early morning hours of
April 15, 1995, she argued with a friend at the Sweet Water Lounge in Calumet
City. Am. Pet. Exh. 5, Trial Tr. Vol. B at 18:5-19:2. L.M. left the lounge around 1:00
a.m. and began to walk down State Street toward her sister’s house. Id. at 18:13-18.
As she was walking, she was approached by two men in a Cadillac, who asked
whether she needed a ride. L.M. declined. Id. at 19:6-12. The car pulled away, but it

2

soon turned around and pulled over. Id. at 19:19-24. The passenger, Burlmon
Manley, got out of the car and grabbed L.M. from behind. L.M. testified that she
kicked and screamed, but that Manley bound her hands and dragged her into the
back seat of the Cadillac. Id. at 20:6-24. L.M. identified Lee as the driver of the
Cadillac. Id. at 21:24.
L.M. testified that the two men took her to a liquor store or lounge in
Hammond, Indiana. Am. Pet. Exh. 5 Trial Tr. Vol. B at 22:6-7. She stated that Lee
went into the store to get drinks while Manley remained in the back seat with her
and kissed and fondled her without consent. Id. at 22:14-23:24. Lee then drove the
car back to Chicago. Id. at 25:1-18. During the drive, Manley and L.M. had a
conversation about Manley’s job and their birthdays. Id. at 26:7-12. Manley also
asked whether L.M. had ever been with a black man, and continued to stroke and
kiss her despite her protests. Id. at 26:7-27:5.
Lee eventually parked the car in an unfamiliar place. Lee got out of the
driver’s seat and into the back seat next to L.M. Am. Pet. Exh. 5 Trial Tr. Vol. B at
28:16-29:17. Lee began to pull off L.M.’s clothing, hitting her in the head with his
fists when she told him to stop. Id. at 29:19-30:22. Lee then forced L.M.’s head down
into Manley’s lap and forced her to perform oral sex on Manley. Id. at 31:18-32:11.
At some point, Lee left the car and went into a nearby “crack house.” Id. at 32:2223. After several minutes of oral sex, Manley pushed L.M. onto her back in the back
seat and vaginally raped her. Id. at 33:12-34:14. About five minutes later, Lee came
back to the car and beat L.M. again with his fist, swearing at her and striking her

3

in the head and face ten to fifteen times. Id. at 34:17-36:6. Lee threatened to take
L.M. into the crack house and sell her to the men inside, who, according to Lee,
would rape and kill her. Id. at 36:10-13.
L.M. further testified that Lee became more and more angry that L.M. was
“hysterical,” and told Manley “fuck this bitch, go in the trunk and get the nine.” Am.
Pet. Exh. 5 Trial Tr. Vol. B at 38:21-39:4. Manley got out of the car and got a
handgun from the trunk. Id. at 39:6-7. Manley gave the gun to Lee, who held it to
L.M.’s forehead as he raped her vaginally and anally. Id. at 39:6-42:4. L.M. testified
that she had bruises on her back and sides from Lee forcing her down in the back
seat. Id. at 42:22-24. At some point, Manley, who had been driving, stopped the car
and had an argument with Lee. Id. at 43:11-44:17. Lee got back in the driver’s seat
and Manley left the car and went into a building. Id. at 45:4-10. Lee drove another
few blocks, then stopped the car again. Id. at 45:24-46:2. Lee reclined the driver’s
seat, and, still holding the gun, told L.M. “okay, bitch, you are going to suck me off
now.” Id. at 46:4-23. Lee pushed L.M.’s head down and forced her to perform oral
sex until he ejaculated. Id. at 47:1-48:3. At this point, L.M. realized that Lee had
dropped the gun. Id. at 48:10-11. Seeing her chance, L.M. started striking Lee in the
face. Id. at 48:18-23. During the scuffle, L.M. was able to open the door and tumble
out of the car. Id. at 49:5-10. Lee “took off like a maniac,” and L.M. ran to a nearby
house and started beating on the door, naked and screaming for help. Id. at 49:1950:9. Teresa Baragas answered the door and called the police. Id. at 50:10-16.

4

The state introduced photographs of L.M. taken in the days after the attack.
The photographs showed evidence of a severe beating: L.M.’s eyes were blackened,
and her nose and mouth were swollen. Am. Pet. Exh. 5 Trial Tr. Vol. B at 51:19-22.
Another photograph showed bite marks on L.M.’s left hand, which resulted in a
permanent scar. Id. at 53:16-21. Other photographs showed bruising on L.M.’s back
and arms from being restrained and forced down. Id. at 55:8-17.
Next, the state called Detective Robert Morrison, who read a written
statement given by Lee during police interrogation. Am. Pet. Exh. 6, Trial Tr. Vol. C
at 8:18-20. In the statement, Lee related that Manley had consensual sex with L.M.
in Lee’s car, and that L.M. had performed oral sex on Lee in exchange for an offer of
drugs. Id. at 14:4-15:17. Finally, the state presented evidence of Lee’s prior felony
stalking conviction. Id. at 37:11-38:2
2. Lee’s Case
Lee’s trial counsel called only Lee himself as a witness. Lee testified that
L.M. got into the car voluntarily after she spoke with Manley for a few minutes.
Am. Pet. Exh. 7, Trial Tr. Vol. D at 59:19-24. L.M. directed them to Dad’s liquor
store in Hammond, Indiana. Id. at 60:13-61:9. At the liquor store, Manley and Lee
both got out of the car and went inside, leaving L.M. alone in the car for about 20
minutes. Id. at 61:18-62:17. Lee testified that he left his keys in the car with L.M.
Id. at 62:2-5. The group then drove to L.M.’s house in Hammond so that L.M. could
drop something off. Id. at 63:13-18.

5

The three returned to Chicago, where they stopped to let L.M. buy marijuana
from a street dealer. Am. Pet. Exh. 7, Trial Tr. Vol. D at 64:4-6. They continued to
Merrill Park, where they sat around drinking and talking. Id. at 64:7-17. At the
park, L.M. and Lee got into a fight because L.M. put out a cigarette on the carpet of
Lee’s car. Id. at 64:19-6. Lee swore at L.M. and hit her on the head. Id at. 66:667:10. The two fought, and Lee punched L.M. and bit her. Id. at 67:17-22.
Lee got out of the car and sat on a nearby stump drinking beer for about 30
minutes. Am. Pet. Exh. 7, Trial Tr. Vol. D at 68:5-14. Manley got out of the car and
asked if Lee had condoms, and Lee gave Manley two condoms from the trunk. Id. at
69:20-70:1. Lee waited on the stump another 20 or 30 minutes. Id. at 70:13-14.
When he came back to the car, he saw Manley lying on top of L.M. Id. at 70:21-24.
Lee got into the car and drove to 84th and Buffalo, where Manley got out. Id. at
71:13-20.
After Manley left the car, L.M., who was naked, got into the front passenger
seat. Am. Pet. Exh. 7, Trial Tr. Vol. D at 72:2-9. According to Lee, L.M. abruptly hit
him in the eye, jumped out of the car, and said “you bastards are going to pay for
this.” Id. at 72:11-15. Lee testified that he never had intercourse or oral sex with
L.M. Id. at 72:19-23. On redirect, Lee’s counsel asked about Lee’s statement to
police (in which he stated that he asked L.M. to perform oral sex on him). Lee
explained that he was not in the room during the entire time the statement was
typed, and that he did not read all of the typed statement before signing it. Id. at
125:6-12.

6

3. Verdict and Sentencing
After closing arguments, the trial judge found Lee guilty of aggravated sexual
assault and aggravated kidnapping. Am. Pet. Exh. 7 at 172:8-17. The judge stated
that “[t]he case does come down to credibility. The Court finds [L.M.] very credible.”
Id. at 166:11-13. He also noted that the picture showing L.M. with black eyes and a
split lip “itself shows the sex was not consensual.” Id. at 166:13-23. Lee was
sentenced to 100 years’ imprisonment in the Illinois Department of Corrections.
Am. Pet. Exh. 8, Sentencing Tr. at 26:2-14. At the same hearing, the trial court
denied Lee’s motion for a new trial based on his counsel’s failure to interview
witnesses. Id. at 29:3-12.
B. Witnesses Not Called at Trial
Lee’s sole claim for habeas relief is based on his trial counsel’s failure to call
five particular witnesses. See Am. Pet. at 1-3. According to Lee, these witnesses
would have backed up his version of events or cast doubt on L.M.’s credibility. Lee
claims that his counsel failed to even investigate these witnesses, despite receiving
affidavits from the five witnesses describing their likely testimony.3 The affidavits
submitted by the witnesses are summarized below.

3Around

five months before the trial, Lee’s trial counsel stated, at a pretrial
conference, that he had been contacted by several witnesses, but that he had not yet had
time to meet with them. Am. Pet. Exh. 3 at 2:19-3:4. There is no evidence that Lee’s counsel
ever followed up with these witnesses: he did not respond when Lee accused him of failing
to investigate the witnesses, see Am. Pet. Exh. 8, Sentencing Tr. at 28:14-30:4, and one of
the witnesses, Phillip Elston, submitted an affidavit saying he was never contacted. Am.
Pet. Exh. 2, 2008 Elston Aff. But, because Lee’s petition fails on the prejudice element, it
ultimately does not matter what steps (if any) counsel took to investigate these witnesses.

7

1 and 2. Brian and Gayland Massenburg
Brian and Gayland Massenburg submitted affidavits stating that “on or
about” April 16, 1995 at approximately 12:30-1:30 a.m., Gayland’s car broke down
in Calumet City. As they were pushing the car down State Street, two men
approached in a blue Cadillac and asked if they needed help. The Massenburgs
declined. The two men turned the car around and started talking to a white woman.
The woman “got into the rear of the car,” and they drove off going east on State
Street. Am. Pet. Exh. 2, Brian Massenburg Aff., Gayland Massenburg Aff.
3. Charlene Parker
Charlene Parker’s affidavit states that she was in Dad’s Lounge and Package
Goods in Hammond, Indiana on April 15, 1995. She reported that she took a photo
of Anthony Lee and Burlmon Manley together at Dad’s between approximately 1:00
and 1:30 a.m. She also mentions that the photo is attached to the affidavit, but no
photo was part of the record submitted to the Illinois Appellate Court. Am. Pet.
Exh. 2, Parker Aff.; Am. Pet. Exh. 16, Appellate Ct. Postconviction Op. at 29-30.
4. Phillip Elston
Phillip Elston’s 1995 affidavit attests that he was driving past Merrill Park
between 3:30 and 4:00 a.m. when he noticed Anthony Lee’s car. Lee was sitting on a
curb near his car drinking beer. Elston noticed a man and a woman entering Lee’s
car via the rear door. Lee walked up to Elston’s car. Elston asked what was going on
and Lee said “His friend Jr.4 pulled this female.” Lee got in Elston’s car and the two

4

Manley apparently went by “Junior.” See Am. Pet. Exh. 5, Trial Tr. Vol. B at 26:11.

8

went to get cigarettes. Elston drove Lee back to his car, and Lee got in and drove
north. Am. Pet. Exh. 2, 1995 Elston Aff.
Elston provided a second affidavit in 2008. In this affidavit, Elston states
that the incident described in his first affidavit took place on “April 15/16, 1995.” He
further averred that he sent copies of his affidavit to Lee’s trial counsel and sent
him a letter saying that he was willing to testify on Lee’s behalf, but that counsel
never contacted him. Am. Pet. Exh. 2, 2008 Elston Aff.
5. Gail Pinkston
Gail Pinkston’s affidavit states that on August 4, 1995, she received a call
from “Burrell Manny,” who was then in jail. “Burrell” told her about an incident in
April 1995 with a “white female.” Specifically, he told Pinkston that he had sex with
the white woman in the back seat of Lee’s car, and that Lee was “no where around
during that sexual encounter.” He further stated that “if he (Burrell) goes down on
this case that he would take Anthony down with him.” Am. Pet. Exh. 2, Pinkston
Aff.
C. Postconviction Review
Lee’s quest to overturn his conviction spanned decades and numerous claims
for relief in Illinois and federal court. See Am. Pet. Exh. 12, Am. Successive Pet. for
Postconviction Relief at 11-16 (describing the state court procedural history); Am.
Pet. ¶¶ 28-42 (describing the federal habeas petition). The details of Lee’s trek
through the labyrinth of state and federal postconviction review are mostly

9

irrelevant here.5 The only procedural steps that are important for purposes of the
current Amended Petition are as follows: After several denials of relief in the lower
Illinois courts, the Illinois Supreme Court exercised its supervisory authority to
instruct the Appellate Court to instruct the Circuit Court to permit Lee to file a
successive petition for postconviction relief on his ineffective assistance of counsel
theory. R. 108, State Court Record Exh. E, Denial of Pet. Leave App. On remand,
the Cook County Circuit Court denied Lee’s successive petition on the merits,
holding that he had not established the “prejudice” element of the Strickland test.
Am. Pet. Exh. 14, Circuit Ct. Hearing Tr. at 13:9-12. The Illinois Appellate Court
heard the appeal and affirmed the Circuit Court’s denial on the merits, likewise
holding that Lee could not establish that he was prejudiced by his counsel’s
allegedly defective performance. Am. Pet. Exh. 16, Appellate Ct. Postconviction Op.
at 32. Lee petitioned for leave to appeal the decision to the Illinois Supreme Court
and was denied in a summary order. Am. Pet. Exh. 18. Lee timely filed this
Amended Petition for federal habeas corpus under 28 U.S.C. § 2254. R. 95-96.
II. Legal Standard
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L.
No. 104-132, 110 Stat. 1214, sets up a “formidable barrier” for prisoners seeking
habeas relief. Burt v. Titlow, 134 S. Ct. 10, 16 (2013). If a state court has
adjudicated the prisoner’s claim on the merits, a federal court may not grant habeas

5The

state (rightly) does not argue that Lee’s petition is barred by the doctrines of
exhaustion or procedural default, so the details of when he presented his claim and why it
was rejected do not matter, except when it comes to the last state court adjudication on the
merits, which is the state-court decision relevant for § 2254(d) purposes.

10

relief unless the state court’s decision was contrary to, or an unreasonable
application of, clearly established federal law as determined by the United States
Supreme Court. 28 U.S.C. § 2254(d)(1). A state court’s decision is “contrary to”
clearly established Supreme Court law “if the state court arrives at a conclusion
opposite to that reached by th[e] Court on a question of law or if the state court
decides a case differently than th[e] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
Alternatively, under the “unreasonable application” part of the AEDPA standard, a
habeas petitioner must demonstrate that although the state court identified the
correct legal rule, it unreasonably applied the controlling law to the facts of the
case. See id. at 413. A merely erroneous decision is not necessarily an “unreasonable
application” of federal law under the meaning of § 2254(d). Hardaway v. Young, 302
F.3d 757, 762 (7th Cir. 2002).
In this case, Lee argues that he was denied effective assistance of counsel in
violation of the Sixth Amendment. Under Strickland v. Washington, 466 U.S. 668
(1984), a trial lawyer is ineffective if the performance was deficient and if prejudice
resulted. Id. at 687. For the performance element, the question is whether
“counsel’s representation fell below an objective standard of reasonableness.” Id. at
688. On prejudice, the question is whether “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. In making the prejudice determination, a court must consider

11

“the totality of the evidence before the judge or jury.” Id. at 695. Lee must satisfy
both prongs to make out an ineffective assistance claim. Id. at 687.
III. Analysis
Under 28 U.S.C. § 2254(d), the relevant decision for review is the decision of
the last state court to decide the merits of the petitioner's claims. Morgan v. Hardy,
662 F.3d 790, 797 (7th Cir. 2011). In this case, the relevant decision is the Illinois
Appellate Court’s June 30, 2016 opinion upholding the circuit court’s dismissal of
Lee’s successive petition for postconviction relief. See Am. Pet. Exh. 16.
A. Reasonableness of the Illinois Appellate Court Decision
The Illinois Appellate Court correctly identified the governing legal standard
for the prejudice element of the Strickland analysis, noting that Lee must show a
reasonable probability that, but for counsel’s error, the result of the proceeding
would have been different. Am. Pet. Exh. 16, Appellate Ct. Postconviction Op. at 26.
The Illinois Appellate Court’s decision cannot be disturbed if its application of the
Strickland standard was “minimally consistent with the facts and circumstances of
the case.” Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002).
The Appellate Court’s decision—although perhaps not the result this Court
would reach on a blank slate—is not so deficient as to be unreasonable. The
Appellate Court considered each affidavit in some detail, and considered how those
affidavits fit into the evidentiary picture of the trial as a whole. As the Appellate
Court pointed out, each affidavit has problems that would tend to undermine the
evidentiary value of the proposed witness testimony. Considered against the
12

backdrop of the state’s relatively strong evidence at trial, it was not unreasonable
for the Appellate Court to conclude that Lee was not prejudiced by counsel’s failure
to call the affiants.
First, the Massenburg affidavits. The possible value of the Massenburgs’
testimony is obvious: the Massenburgs stated that they witnessed a white woman
get into a blue Cadillac. If the woman was indeed L.M., this testimony would have
contradicted L.M.’s assertion that she was dragged kicking and screaming into the
car, and would have supported Lee’s testimony that L.M. willingly joined him and
Manley.6 But, as the Appellate Court noted, there are some problems with the
proposed testimony. First, the Massenburgs identified the wrong date in their
affidavits, stating that the event they witnessed was on April 16, when the crime in
fact happened on April 15. Even without the date mix-up, the Illinois Appellate
Court reasoned that still the Massenburg’s testimony would not have affected the
outcome because their affidavits do not clearly identify L.M., Lee, or Manley. See
Am. Pet. Exh. 16, Appellate Ct. Postconviction Op. at 29. The affidavits state only
that the Massenburgs saw a white woman get into a blue Cadillac with two men,
but did not provide names or detailed descriptions. Of course, if defense counsel had
called these witnesses at trial, then he might have been able to elicit more detail to
establish the likelihood that the individuals the Massenburgs saw were the victim
and the defendants. But this testimony was not developed (and still has not been
6The

Appellate Court suggests that it is unclear from the affidavits whether the
woman was coerced into the vehicle. Am. Pet. Exh. 16, Appellate Ct. Postconviction Op. at
29. But the affidavits state that the woman “got into the car.” To read this phrase as being
inconsistent with the coercion L.M. described—she testified that she was dragged kicking
and screaming into the car—is not reasonable.

13

developed), and the Appellate Court was limited to the affidavits alone. It was not
unreasonable for the Appellate Court to conclude, on the limited record available,
that the Massenburg’s testimony had ambiguities that would diminish its
exculpatory value.
The Parker affidavit also had a weakness that would tend to lower its value.
Parker testified that she saw Manley and Lee together in Dad’s Lounge in
Hammond, Indiana around 1:00-1:30 a.m. on April 15. This testimony might have
undermined L.M.’s credibility and supported Lee’s story: L.M. testified that Manley
stayed in the back seat of the car with her while Lee went into a liquor store in
Hammond, whereas Lee testified that he and Manley went into the liquor store
together, leaving L.M. alone in the car. Parker’s testimony that she saw Lee and
Manley together in Dad’s would support Lee’s version. But the affidavit was not a
slam dunk for Lee, because Parker’s testimony was not necessarily inconsistent
with L.M.’s version of events. L.M. testified that she was abducted at
“approximately” 1:00 a.m., but the timeline was not firm. See Am. Pet. Exh. 5, Trial
Tr. Vol. B at 18:5-10. She also testified that Manley told her he had “just left a club
in Hammond” before he grabbed her. Id. at 26:9-10. The Appellate Court reasoned
that Parker might have seen Lee and Manley together in Dad’s before they abducted
L.M., and that would not undermine L.M.’s version that the three later returned to
Dad’s and only Lee went inside. See Am. Pet. Exh. 16, Appellate Ct. Postconviction
Op. at 29-30. This sequence of events is perfectly possible given the uncertain
timing of the events described by L.M. and Parker. The Appellate Court was not

14

unreasonable to decide that Parker’s testimony was consistent with L.M.’s
testimony.
Elston’s affidavits also suffer from unclarity about timing. Elston stated that
he saw Lee sitting near his car drinking beer around 3:30 or 4:00 a.m., and that he
saw a man and a woman enter Lee’s backseat while Lee was sitting outside. Elston
also said that he spoke to Lee, who said “His friend Jr. pulled this female,”7 and
that Elston and Lee went on a cigarette run together. There is a problem with the
timeline: Elston stated that he saw Lee around 3:30 or 4:00 a.m., but Teresa
Baragas testified at trial that L.M. knocked on her door around 3:00 a.m. Am. Pet.
Exh. 5, Trial Tr. Vol. B at 13:22-14:3. Of course, either Baragas or Elston might
have been mistaken about the time, but there was no evidence to tip the scale in
Elston’s favor before the Appellate Court. And as between the two, the state could
have argued that Baragas was the more reliable witness, both because she did not
know Lee (so had no bias one way or the other) and because she described a
harrowing experience that would be more likely impressed on her memory. Most
importantly, at a minimum, it was reasonable for the Illinois Appellate Court to
conclude that Elston’s uncertainty on timing might undercut the value of his
testimony.8

7The

Appellate Court thought that “pulled” might mean “coerced,” but gave Lee the
benefit of the doubt and assumed that it did not mean coerced. Am. Pet. Exh. 16, Appellate
Ct. Postconviction Op. at 30-31.
8The state points out in its brief that, even aside from the timing issue, Elston’s
account may actually have undermined Lee’s testimony, because Lee never mentioned the
cigarette run. See Answer at 23. But this reasoning does not appear to have played a role in
the Appellate Court’s decision, which focuses entirely on the timing issue. When a state

15

Finally, the Appellate Court dismissed the Pinkston affidavit as unhelpful.
Pinkston averred that she received a call from “Burrell Manny” (clearly referring to
Burlmon Manley), and that Manley stated that he “had sex with that white female
in the back seat of Anthony’s car, and that Anthony was no where around.” Am. Pet.
Exh. 2, Pinkston Aff. The Appellate Court reasoned that this proposed testimony
actually contradicted Lee’s trial testimony, because Lee testified that he was
driving his car while Manley and L.M. had sex in the back seat.9 See Am. Pet. Exh.
16, Appellate Ct. Postconviction Op. at 31-32. Again, this detail might not have been
fatal to Pinkston’s testimony—Manley, after all, might have been referring to the
time when Lee was sitting outside on the stump while Manley and L.M. were in the
back seat—but the uncertainty does detract from the probative value of the
proposed testimony.
The Appellate Court concluded that, even assuming that the affiants would
testify consistent with their affidavits and that they would be found completely
credible, there was no reasonable probability that their testimony would have
changed the outcome at trial. Am. Pet. Exh. 16 at 32. Although it is a close call, the
Appellate Court’s conclusion was not unreasonable in light of the strength of the
state’s case against Lee. This point is crucial: the trial did not just boil down to a
court’s last adjudication on the merits is a reasoned decision, the issue is the
reasonableness of the state court’s analysis, not the reasonableness of the overall result on
a blank slate untethered from the state court’s reasoning. See Williams, 529 U.S. at 413.
The same can be said of the state’s arguments about the other affidavits: the focus must be
on the state court’s reasoned decision.
9Lee actually testified that he started driving while Manley was lying on top of L.M.,
Am. Pet. Exh. 7, Trial Tr. Vol. D at 70:21-23, but did not state outright that they were
having sex. But it would not be unreasonable to infer from this comment that Manley and
L.M. were having sex.

16

“swearing contest” between Lee and L.M., despite Lee’s argument to the contrary.
See Am. Pet. at 1. L.M.’s story was backed up by strong circumstantial evidence, as
the Illinois Appellate Court explained in the opinion affirming the postconviction
petition’s denial. Am. Pet. Exh. 16, Appellate Ct. Postconviction Op. at 9. Teresa
Baragas, a disinterested witness with no motive to lie, testified that L.M. banged on
her door at three in the morning, naked, bloody, bruised, and screaming that she
had been raped. See Am. Pet. Exh. 5, Trial Tr. Vol. B at 14:2-24. This behavior is
utterly inconsistent with Lee’s tale of a consensual encounter. L.M.’s testimony was
also backed up by extensive evidence of her injuries, including photographs showing
bruises to her face, head, back, and arms. These injuries are not at all likely to have
been caused by consensual sex, and are too extensive to be explained by the scuffles
that Lee described. Considering the strength of the circumstantial evidence in
L.M.’s favor and the assorted inconsistencies and ambiguities in the testimony of
the five proposed witnesses, the Appellate Court’s conclusion that Lee was not
prejudiced was reasonable. This means that the Court cannot grant Lee relief. To be
entitled to relief, Lee must show that the Illinois Appellate Court unreasonably held
that he failed to meet the prejudice element of the Strickland test. This he has not
done.10
B. Certificate of Appealability
Under Rule 11(a) of the Rules Governing § 2254 Cases, the Court must issue
or deny a certificate of appealability when it enters a final order adverse to a

10In

light of the conclusion on the prejudice element, like the Illinois Appellate
Court, this Court need not reach the deficient-performance element.

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petitioner. To obtain a certificate of appealability, “the applicant [must] ma[ke] a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). A
“substantial showing” has been made when “reasonable jurists could debate
whether ... the petition should have been resolved in a different manner.” Slack v.
McDaniel, 529 U.S. 473, 475 (2000). As discussed, this case is a close call.
Ultimately, the § 2254(d) deference mandate tipped the balance, along with the
strength of the evidence supporting the state’s case. But reasonable minds could
disagree. Accordingly, a certificate of appealability shall issue on whether the
Illinois Appellate Court reasonably held that Lee’s trial counsel failed to provide
ineffective assistance of counsel under the Sixth Amendment.
IV. Conclusion
The Court is bound by § 2254(d) to defer to the Illinois Appellate Court’s
decision. The habeas petition is denied, but because reasonable minds could differ,
the Court issues a certificate of appealability.

ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: December 4, 2017

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