Burke v. Hardy et al

Filing 46

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the habeas petition is denied, as is the motion for attorney representation 43 . Additionally, as explained in the Opinion, the Court will not issue a certificate of appealability. Status hearing of 03/21/2014 is vacated. Civil case terminated. Mailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN BURKE,
Petitioner,
v.
MARCUS HARDY,
Respondent.

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No. 11 C 06220

Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Petitioner John Burke has filed a petition for a writ of habeas corpus under
28 U.S.C. § 2254,1 challenging his 2003 conviction for armed robbery. R. 1, Habeas
Pet. For the reasons that follow, his petition and a certificate of appealability are
denied.2

1The

Court has subject matter jurisdiction under 28 U.S.C. § 2241.
Court also denies Burke’s motion for counsel. R. 43. Counsel must be appointed
in habeas proceedings only if an evidentiary hearing is needed or if the interests of justice
so require. See Rule 8(c), Rules Governing Section 2254 Cases in the United States District
Courts, available at http://www.uscourts.gov/uscourts/rules/2254-2255.pdf; 18 U.S.C.
§ 3006A(a)(2)(B). Neither circumstance applies here. As discussed below, the Court denies
Burke’s requests for an evidentiary hearing. And in light of the legal limitation on the
record, Burke’s competent ability to present the issues, and the clarity of the answers to his
arguments, the interests of justice do not require appointment of counsel.
In a letter submitted with his current motion for counsel, Burke also asks the Court
to explain its ruling on his earlier motions for counsel. See R. 44 ¶¶ 2-3, 5-7 (inquiring
about the motions for counsel [R. 4; R. 5] that he filed in September 2011). The Court
denied those motions on February 9, 2012, because the State had not answered and thus
the motions were premature. See R. 8 at 2.
2The

I. Background
A federal habeas court presumes that the factual findings made by the last
state court to decide the case on the merits are correct, unless those findings are
rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Coleman v.
Hardy, 690 F.3d 811, 815 (7th Cir. 2012). Burke has not rebutted this presumption,
so the following sets forth the facts underlying Burke’s state criminal conviction.
On September 29, 2001, at about 8:30 a.m., Petitioner John Burke robbed
Kathleen Jordan at gunpoint. People v. Burke, No. 2-08-0135, slip op. at 2-3 (Ill.
App. Ct. May 25, 2010), available at R. 18-2, State’s Exh. B.3 Jordan had just
unlocked the front door of the Wheaton, Illinois Currency Exchange where she
worked when Burke approached her from behind, put a gun to her head, and
ordered her to “get in and open the fucking door.” Id. at 2. Once inside the Currency
Exchange, Burke pushed Jordan to the floor. Id. He then ordered her to get up and
open the security door that separated the public lobby from the secured work area
that only employees could access. Id. at 2-3. To access the secured work area,
Jordan had to step into a small space behind the security door that was only large
enough for one person. Id. at 3. Only after the security door closed behind her could
she then access the secured work area. Id. On this particular morning, once Jordan
opened the security door and stepped into the small space, Burke put his arm
through the security doorway. Id. Jordan realized, however, that Burke could not
get through the doorway, so she hit the alarm. Id. Through the bulletproof glass in

3This

is the last state court opinion to fully lay out the facts of Burke’s conviction.

2

the secured work area, Jordan saw Burke run into the lobby. Id. at 2-3. She then
dropped to the floor and heard glass breaking. Id. at 3. When she next looked into
the lobby, Burke was gone. Id. The police arrived at the scene about five minutes
later. Id. By that point, Jordan had noticed that her purse was missing. Id.
Jordan described her assailant to the police as a fifty-year-old black man,
wearing a maroon jacket, a white T-shirt, tan pants, and a floppy hat. Id. A short
time later, the police told Jordan that they had a suspect in custody. Id. Jordan
viewed the man, but she told the police that they had the wrong guy. Id. Before too
long, the police asked Jordan to view yet another suspect. Id. Again, Jordan viewed
the suspect, and again she told them that they still had not found her assailant. Id.
In the meanwhile, police recovered four fingerprints from the crime scene
that were suitable for comparison. Id. One fingerprint, which was collected from the
inside of the security door, belonged to Jordan. Id. The other three did not. Id. at 34. Leroy Keith, a DuPage County Crime Lab fingerprint expert, entered two of the
three unidentified fingerprints into the FBI’s Automated Fingerprint Identification
System database. Id. The database identified Burke as a “‘very good candidate as a
suspect in th[e] investigation.’” Id. at 4 (alteration in original). Keith then
independently confirmed that Burke’s fingerprints matched the three unknown
fingerprints from the crime scene. Id. Two of the fingerprints had been recovered
from inside the security door. Id.
Based on the fingerprint analysis, the police asked Jordan to view a
photographic lineup featuring Burke and five other men who had similar

3

appearances. Id. Jordan identified Burke as her assailant, stating, “That’s him.” Id.
When the police officer asked Jordan if she was sure, she explained that she would
“never forget his face.” Id.
The State charged Burke with two counts of armed robbery: Count I under
720 ILCS 5/18-2(a)(1) and Count II under 720 ILCS 5/18-2(a)(2). Id. at 2.
Subsections (a)(1) and (a)(2) are identical except that (a)(1) applies to robberies
committed with “a dangerous weapon other than a firearm” and (a)(2) applies to
robberies committed “with a firearm.” 720 ILCS 5/18-2(a)(1), (a)(2) (emphasis
added). Despite subsection (a)(1)’s application to robberies committed with a
weapon other than a firearm, Count I of the indictment alleged that Burke violated
(a)(1) by committing robbery “while armed with a dangerous weapon, a gun.” People
v. Burke, 840 N.E.2d 281, 283 (Ill. App. Ct. 2005) (emphasis added), available at R.
18-1, State’s Exh. A. Count II, which cited subsection (a)(2), simply alleged that
Burke committed robbery “while armed with a firearm.” Id.
The evidence that Burke brandished a firearm while robbing Jordan was
“overwhelming and uncontested.” Id. at 284. Nevertheless, shortly before concluding
its case in chief and after introducing evidence about the nature of the gun, the
State moved to dismiss Count II and proceeded solely on Count I. Id. at 283
(emphasis added). The State explained that it made this choice because “all the
instructions [the State] drafted relate[d] to the dangerous weapon.” Id.; see also R.
18-3, State’s Exh. C, Jury Instructions at 13. Of course, the problem with this
maneuver was that Count I (which explicitly alleged that Burke was armed with “a

4

dangerous weapon, a gun”) cited subsection (a)(1), which only applies to armed
robbery with a weapon other than a firearm. Burke, 840 N.E.2d at 383. Burke did
not challenge the indictment at trial. Id at 384.
The jury found Burke guilty of armed robbery, and the trial court sentenced
him to life imprisonment under Illinois’s Habitual Criminal Act, 720 ILCS 5/33B1(e) (West 2000), because Burke had two prior armed-robbery convictions. Burke,
840 N.E.2d at 282, 284-85. Burke’s conviction and sentence were affirmed on direct
appeal. See id. at 282, 284, 286.
Next, during post-conviction review, Burke alleged that his trial counsel was
ineffective for (1) failing to investigate, prepare, and present an alibi defense;
(2) failing to present evidence to rebut the State’s fingerprint evidence that placed
him at the crime scene; (3) failing to hire a fingerprint expert; and (4) failing to
object when a police officer interrupted the trial and, in the jury’s presence, removed
a pistol from an evidence bag that was never admitted into evidence. See
Appellant’s Br. at 17, People v. Burke, No. 2-08-0135 (Ill. App. Ct. Aug. 5, 2009),
available at R. 18-8, State’s Exh. H. In support of his claims, Burke submitted three
affidavits: one from himself and two from his wife, Avon Nesbitt. Burke, No. 2-080135, slip op. at 5. In his affidavit, Burke claimed that he gave $5,000 to his trial
counsel to hire a fingerprint expert. Id. He also claimed that he told his trial counsel
that Nesbitt’s testimony was “imperative” and that she was “willing and ready” to
testify about what they did together in their household on the morning of the
robbery. Id. Finally, Burke also claimed that

5

During trial, [he, that is, Burke] observed the arresting officer from the
unrelated Cook County case enter the courtroom with a large envelope. Upon
being noticed by the Asst. State’s Attorney (who was in the process of
examining a witness) he requested a brief break from questioning the witness
from the Court and walked directly over to the Chicago police officer, who
then pulled a weapon from the envelope in plain view of the jurors sitting
directly before them. [He] immediately brought this mishap to [trial
counsel’s] attention. [Trial counsel] replied ‘[D]on’t worry, he can’t get on the
stand to testify.’ [His] wife was sitting in the courtroom and observed this
irregularity which is contained in her affidavit.
Id. at 5-6 (alterations in original).
In Burke’s wife’s first affidavit, Nesbitt confirmed that she was “able and
willing to testify regarding [her] knowledge of [Burke’s] whereabouts on the
morning of September 29, 2001.” Id. at 6. But she insisted that “[t]he specific
particulars of that morning are not important” because she and her husband spent
“every weekend” together, from the time they woke up until the time they went to
bed. Id. She continued that “to the best of [her] knowledge,” she and Burke spent
the morning of the robbery “like every weekend [they] shared together,” explaining
that they “probably had breakfast [and] did things around the house (i.e. cleaning,
yard work, grocery shopping etc).” Id. She emphasized that she was “confident and
sure beyond doubt that he was home because that was the weekend of [her]
birthday.” Id. She concluded, “[T]o the best of my knowledge my husband and I
awoke together and spent the entire day together, again to the best of my
knowledge and recollection he did not arise early, nor did he leave the house, return
and got back in the bed we shared.” Id.
In her second affidavit, Nesbitt described the police officer who interrupted
the trial and removed a pistol. She explained that she saw an officer enter the
6

courtroom carrying a brown paper “evidence bag.” Id. at 7. According to Nesbitt, the
officer sat behind the Assistant State’s Attorneys’ desk and spoke with at least one
of the attorneys. Id. Nesbitt insisted that she had no doubt that the jurors saw this
interaction because the officer “was closer to them than he was to [Nesbitt].” Id.
After considering the evidence, the post-conviction trial court granted the State’s
motion to deny Burke’s petition, id. at 1, and the state appellate court affirmed,
rejecting Burke’s ineffective-assistance claims, id. at 8-16.
Burke has now filed a federal habeas petition in this Court. In his petition, he
raises two claims. First, Burke argues that the State introduced insufficient
evidence to convict him of subsection-(a)(1) armed robbery because it did not prove
that Burke used a weapon other than a firearm. Habeas Pet. at 21. Second, Burke
reasserts his claims for ineffective assistance of trial counsel. Id. at 26-27. The State
has asked this Court to deny Burke’s petition. R. 17, State’s Answer at 25.
II. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Pub. L. No. 104-132, 110 Stat. 1214, a state petitioner seeking a writ of habeas
corpus in federal court must first exhaust the remedies available to him in state
court, 28 U.S.C. § 2254(b)(1)(A), “thereby giving the State the opportunity to pass
upon and correct alleged violations of its prisoners’ federal rights,” Cheeks v. Gaetz,
571 F.3d 680, 685 (7th Cir. 2009) (internal quotation marks and citation omitted). A
habeas petitioner must fully and fairly present his federal claims through one
complete round of the state appellate review process before filing a federal habeas

7

petition. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). If a petitioner has failed
to properly assert his federal claims at each level of state review, his claims are
procedurally defaulted. See McDowell v. Lemke, 737 F.3d 476, 482 (7th Cir. 2013). A
claim is also procedurally defaulted when a petitioner fails to raise his federal
claims in compliance with relevant state procedural rules, making the state court’s
refusal to adjudicate the claim an independent and adequate state ground for
denying federal review. Cone v. Bell, 556 U.S. 449, 465 (2009). Either way,
procedural default precludes federal-court review of a petitioner’s habeas claims.
See Mulero v. Thompson, 668 F.3d 529, 536 (7th Cir. 2012). A habeas petitioner may
overcome procedural default, however, either by demonstrating cause for the
default and actual prejudice from the default, or by showing that the court’s failure
to consider the claim would result in a fundamental miscarriage of justice. See
House v. Bell, 547 U.S. 518, 536 (2006); Coleman v. Thompson, 501 U.S. 722, 750
(1991). Thus, procedural default, although otherwise a bar to federal habeas review,
may be excused in certain circumstances.
If the petitioner successfully runs the procedural-default gauntlet for a
particular claim, then a federal court can at least consider the merits of that federal
habeas claim. But under AEDPA, a federal court may not grant habeas 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

8

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” prong 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. But
even if a federal court independently concludes that the relevant state-court
decision applied clearly established federal law erroneously, still the writ does not
necessarily issue; rather, the state court’s application must be objectively
unreasonable. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). “This is a difficult
standard to meet; ‘unreasonable’ means ‘something like lying well outside the
boundaries of permissible differences of opinion.’” Jackson v. Frank, 348 F.3d 658,
662 (7th Cir. 2003) (quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).
III. Analysis
In responding to Burke’s habeas petition, the State concedes that Burke has
exhausted his state-court remedies and that Burke’s claims are timely and not
barred by retroactivity principles. See State’s Answer at 14. It is therefore time to
review the merits of each habeas claim.
A. Sufficiency of the Indictment
Burke first asserts that the State introduced insufficient evidence to convict
him of subsection-(a)(1) armed robbery because it did not establish that he used a
weapon other than a firearm. Habeas Pet. at 21. According to Burke, the State did

9

not satisfy the elements of subsection (a)(1) because the only weapon of which there
was evidence at trial was a firearm, id., a point which the appellate court
acknowledged, Burke, 840 N.E.2d at 283 (“Clearly, the State’s proof did not satisfy
the[] elements [of subsection (a)(1)].”). After Burke raised this issue on direct
appeal, the state appellate court rejected his argument, viewing it instead as a
challenge to whether the indictment gave Burke sufficient notice of the elements of
subsection (a)(2) (armed robbery with a firearm). Id. Burke argues that this finding
was also an error. See Habeas Pet. at 22 (citing 28 U.S.C. § 2254(d)(2)). He claims
that the state appellate court unreasonably determined that the State intended the
jury to decide whether Burke violated subsection (a)(2), not subsection (a)(1), and
that the citation to (a)(1) was simply a mistake.4 Id.
At the outset, the state appellate court was not wrong in viewing Burke’s
challenge as one of the sufficiency of the indictment, not sufficiency of the evidence.
Quite reasonably, the appellate court concluded that the State “mistakenly cited”
subsection (a)(1). Burke, 840 N.E.2d at 283; see also id. at 283-84 (“[I]t is apparent
4Burke

also argues that the jury instructions were incorrect because the instructions
did not include the (a)(1) requirement that the dangerous weapon be other than a firearm.
See Habeas Pet. at 24-25. Burke properly flagged this issue for the state appellate court on
direct appeal. See Appellant’s Br. at 36-39, Burke, 840 N.E.2d 281 (No. 2-03-1127),
available at R. 18-16, State’s Exh. S. The state appellate court reasonably rejected the
argument for the same grounds that refute Burke’s argument that the indictment was
insufficient, as discussed below. It is worth nothing here, too, that Burke did not raise the
non-objection to the jury instructions as a basis for an additional ineffective-assistance
argument in his federal habeas petition. See Habeas Pet. at 26-32. Nevertheless, even if
Burke had raised this issue, he would not be able to demonstrate prejudice as required
under Strickland v. Washington, 466 U.S. 668, 694 (1984) (explaining that to establish
prejudice, petitioners must demonstrate that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different”). In
this case, had Burke’s lawyer objected to the jury instruction, the case would not have
ended any differently. Instead, the State likely would have just fixed the typo in the
indictment.

10

that the State intended the jury to decide whether defendant violated subsection
(a)(2), not subsection (a)(1) . . . .”). As the appellate court recognized, the State
abandoned Count II of the indictment so that the indictment would track the
language used in the jury instructions, not because the State believed that it had
failed to prove that Burke had used a gun. See id. at 283 (noting that the State
opted to proceed under Count I alone simply because “all the instructions [the
State] drafted relate[d] to the dangerous weapon”). Indeed, both counts of the
indictment referenced a firearm, but only Count I used the phrase “dangerous
weapon,” like in the jury instructions. Compare id. (noting that Count I alleged that
Burke committed armed robbery “with a dangerous weapon, a gun,” while Count II
alleged that Burke committed armed robbery “with a firearm”), with Jury
Instructions at 13. Thus, it was reasonable for the state court to find that the State
charged Burke with armed robbery with a firearm—under either count—and that
its citation to subsection (a)(1) in Count I was simply a mistake.
Burke has not presented clear and convincing evidence to rebut this finding.5
See 28 U.S.C. § 2254(e)(1) (“[A] determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.”).
Instead, the only evidence that Burke points to is the indictment itself. See Habeas

5Burke

contends that an evidentiary hearing would enable him to prove that the
factual allegations in his petition are true and entitle him to federal habeas relief. Habeas
Pet. at 25. But Burke fails to articulate what other evidence he would seek to offer at such a
hearing. This Court is therefore confined to the record that the state court reviewed in
making its finding because Burke has not identified anything that would trigger an
evidentiary hearing under § 2254(e)(2).

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Pet. at 21-22. The charging language in the indictment, however, actually
contradicts Burke’s argument. Although the indictment cites subsection (a)(1), it
explicitly states that Burke was charged with committing armed robbery with “a
gun.” Burke, 840 N.E.2d at 283 (quoting the indictment). Setting aside the citation
error, the charging language was not (a)(1) language; it was very clearly (a)(2)
language.
There was also no doubt that the dangerous weapon in question was a gun.
As the state appellate court observed, the State did not offer evidence of any other
weapon. Id. The appellate court even noted that the evidence that Burke robbed
Jordan with a firearm was “overwhelming and uncontested.” Id. at 284. What’s
more, the State abandoned Count II only after all the evidence about the gun had
already been admitted into evidence. Id. at 283. And even after it dropped Count II,
the State continued to reinforce in closing arguments that it was prosecuting Burke
for armed robbery with a firearm by repeatedly referencing the gun that he used.
See, e.g., R. 18-14, State’s Exh. N at C679-85, C690, C697, C711-12, C716-19
(referencing the gun twenty times in the State’s closing argument). Neither side
argued to the jury that it had to find that Burke used a weapon other than a
firearm, and the jury instructions simply stated that the jury must find that Burke
used a dangerous weapon. See Burke, 840 N.E.2d at 283 n.1; see also Jury
Instructions at 13. In the end, what was in dispute was not whether the robber had
used a gun, but whether the robber—who definitely used a gun—was Burke.
Altogether, this demonstrates that the state appellate court reasonably analyzed

12

Burke’s petition as challenging the sufficiency of the indictment, not the sufficiency
of the evidence.
Properly viewed in this way, Burke’s sufficiency-of-the-indictment argument
fails to justify habeas relief. Under the Sixth Amendment, defendants in criminal
prosecutions have the right “to be informed of the nature and cause of the
accusation” against them. U.S. Const. amend. VI. To satisfy this constitutional
notice requirement, a state-court indictment6 must “first, contain[] the elements of
the offense charged and fairly inform[] a defendant of the charge against which he
must defend, and, second, enable[] him to plead an acquittal or conviction in bar of
future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87,
118 (1974); see also United States v. Phillips, 645 F.3d 859, 861 (7th Cir. 2011)
(citing Hamling). In short, Hamling “looks at matters objectively: did the charge
enable an innocent accused to mount an adequate defense?” Fawcett v. Bablitch,
962 F.2d 617, 618 (7th Cir. 1992).
This is the exact rule that the state appellate court applied, even if it did not
cite Hamling directly. Cf. Early v. Packer, 537 U.S. 3, 8 (2002) (explaining that state
courts reviewing post-conviction petitions need not cite controlling Supreme Court
cases, or even be aware of them, “so long as neither the reasoning nor the result of
the state-court decision contradicts them”). Applying Illinois law, the state appellate
court observed that

6The

Fifth Amendment right to a grand-jury indictment on a federal felony is not
incorporated against the States, Albright v. Oliver, 510 U.S. 266, 272 (1994), but the Sixth
Amendment still requires notice of the charge against an accused, and the indictment is
supposed to fulfill the notice requirement in Illinois.

13

Where a defendant challenges the sufficiency of an indictment or information
for the first time on appeal, a reviewing court need only determine whether
the charging instrument apprised the defendant of the precise offense
charged with enough specificity to prepare his or her defense and allow
pleading a resulting conviction as a bar to future prosecution arising out of
the same conduct.
Burke, 840 N.E.2d at 284 (quoting People v. Maggette, 747 N.E.2d 339, 346 (Ill.
2001) (internal quotation marks omitted)); see also id. (quoting People v. Witt, 592
N.E.2d 402, 408 (Ill. App. Ct. 1992) (“Where the language of the indictment
sufficiently informs a defendant of the charges against him, and defendant cannot
demonstrate any prejudice resulting from an incorrect statutory citation, the defect
is formal and does not warrant reversal.”)). The state appellate court applied the
correct legal rule to Burke’s challenge, so its decision was not contrary to clearly
established Supreme Court law.7 Burke has not met the first prong of AEDPA.
The question then becomes whether the state appellate court reasonably
applied the rule from Hamling. The appellate court reasoned that at the time the
State dismissed Count II, it would have been unreasonable for Burke to believe that
the State intended to prove that he had committed the robbery with a dangerous

7Burke

argues that the state appellate court’s decision was also contrary to three
other Supreme Court cases. See Habeas Pet. at 21-23. But two of these cases dealt with
sufficiency of the evidence, not sufficiency of the indictment. See United States v. Gaudin,
515 U.S. 506, 522-23 (1995) (“The Constitution gives a criminal defendant the right to have
a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with
which he is charged.”); In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause
protects the accused against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is charged.”). And Cole v.
Arkansas, 33 U.S. 196, 201 (1948), simply incorporated the Sixth Amendment’s notice
requirement into the Fourteenth Amendment, making it applicable in state prosecutions.
Cole also implies that courts should analyze the charging language of an information or an
indictment, not a statutory citation, to determine whether it provides sufficient notice. See
id. at 200 (noting that the charging language in the information used the wording from
section 2 of an Arkansas law, not section 1).

14

weapon other than a firearm. Id. The charging language in the indictment
underscores that the state court’s conclusion was reasonable. Although it cited
subsection (a)(1), Count I contained all the elements of subsection (a)(2). Id. Most
importantly, Count I clearly alleged that Burke committed robbery “while armed
with a dangerous weapon, a gun.” Id. at 283 (emphasis added). Given the clear
charging language, it was not unreasonable for the state court to conclude that the
indictment gave Burke sufficient notice of the charges against him and enabled him
to mount an adequate defense.
Most telling, there is sufficient record evidence suggesting that Burke did, in
fact, interpret the indictment as charging him with armed robbery with a firearm
and that the State’s mistaken citation to subsection (a)(1) did not prejudice him. Cf.
United States v. Lowe, 860 F.2d 1370, 1381 (7th Cir. 1988) (“Under Rule 7(c) of the
Federal Rules of Criminal Procedure, a miscitation . . . is harmless error and cannot
be grounds for dismissing the indictment or reversing the conviction unless the
defendant is misled by the erroneous reference and prejudiced thereby.” (citing
United States v. Hutcheson, 312 U.S. 219, 229 (1941))). First, Burke’s lawyer
questioned the final witness about the gun that Burke used during the robbery,
even after the State had dropped Count II. See State’s Exh. N at C662-64. And then
in the defense’s closing arguments, Burke’s lawyer again referenced the gun. See id.
at C700-01. In short, it was reasonable for the appellate court to conclude that
Burke was not prejudiced by the State’s citation error in the indictment. Burke’s

15

first habeas claim therefore fails because the state appellate court did not
unreasonably apply Hamling.
B. Ineffective Assistance of Trial Counsel
In his second habeas claim, Burke argues that his trial counsel was
constitutionally ineffective for (1) failing to present alibi evidence; (2) failing to
present evidence to rebut the State’s fingerprint evidence; (3) failing to hire a
fingerprint expert; and (4) failing to object when a weapon not admitted into
evidence was removed from an evidence bag in the jury’s presence. Habeas Pet. at
26-27. Had his attorney submitted the alibi and rebuttal fingerprint evidence in
particular, Burke claims that it would have exculpated him by excluding him from
the crime scene. Id. at 26-27, 31.
The Sixth Amendment guarantees criminal defendants the right to effective
assistance of counsel. To receive habeas relief on the merits of his ineffectiveassistance-of-counsel claim, Burke must meet the familiar two-prong, performanceand-prejudice standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, he must show that his trial counsel’s performance was deficient
and that prejudice resulted. Id. at 687. For the performance prong, 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. Burke must satisfy both prongs of
the standard to be entitled to habeas relief. Id. at 687.

16

Judicial review of trial counsel’s performance “must be highly deferential”
and “every effort [must] be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. at 689. On federal habeas
review, this inquiry is doubly deferential: not only must the Court presume that
“the challenged action might be considered sound trial strategy,” id. (internal
quotation marks and citation omitted), but under AEDPA, this Court must also
defer to the state court’s application of Strickland unless it is objectively
unreasonable,8 see Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
On the first prong, reasonableness of performance, the state appellate court
did not determine whether any of Burke’s trial counsel’s conduct fell below an
objective standard of reasonableness. See Burke, No. 2-08-0135, slip op. at 11-16
(evaluating only the prejudice prong of the standard). When analyzing Burke’s
argument about counsel’s failure to call Burke’s wife as an alibi, however, the
appellate court did briefly consider the performance prong. See id. at 11. But
because the record was not sufficient, the state court did not decide the issue one
way or the other. See id. (“Trial counsel’s decision not to present Nesbitt’s testimony
may have been strategic; however, it may have been incompetence as well. We
cannot make that determination on this record.”). Instead, it dismissed all of
8Burke

concedes that the state appellate court correctly identified the governing
Strickland standard in its post-conviction review. See Habeas Pet. at 27; see also Burke, No.
2-08-0135, slip op. at 9 (“To prevail on a claim of ineffective assistance of counsel, a
defendant must show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defendant.” (citing Strickland, 466 U.S. at 687)). Therefore, the
only question for this Court to consider is whether the appellate court’s application of
Strickland was reasonable.

17

Burke’s arguments on the prejudice prong alone. Cf. Strickland, 466 U.S. at 697
(“[T]here is no reason for a court deciding an ineffective assistance claim . . . to
address both components of the inquiry if the defendant makes an insufficient
showing on one.”).
Turning to the prejudice prong, the state appellate court concluded that
Burke suffered no prejudice resulting from his trial counsel’s conduct on any of the
four claims that Burke identified.9 First, the court held that there was no prejudice
stemming from counsel’s failure to call Nesbitt (Burke’s wife) as an alibi witness.
Burke, No. 2-08-0135, slip op. at 13. This was a reasonable conclusion. Although
Nesbitt’s testimony was relevant, it was far too generalized to reasonably tip the
balance back toward Burke, especially after the evidence that the State had offered
against him at trial. Most problematic, Nesbitt’s affidavit did not provide “specific
particulars” about the weekend of the robbery. Id. at 6. Instead, she only described
what they generally did every weekend and what they “probably” did that specific
weekend. Id. And Nesbitt failed to provide any corroborating evidence to back up
her testimony, such as grocery store receipts or the like. On top of the too-general
9On

federal habeas review, Burke argues that the state appellate court erred by
considering his ineffective-assistance claims one by one instead of cumulatively. See Habeas
Pet. at 32; R. 24, Pet’r’s Reply Br. at 26, 28-29. The Court will not address this argument for
two reasons. First, Burke does not adequately develop this argument on federal habeas
review, having cited no Supreme Court authority supporting his cumulative-error
argument. Second, because Burke did not raise this argument during state post-conviction
review, he has not raised it “at each and every level in the state court system” as is required
to exhaust that claim. Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004); see also
Boerckel, 526 U.S. at 845. The Seventh Circuit does not appear to have ruled on whether a
cumulative-error claim must be independently presented to state courts as a stand-alone
claim to be properly exhausted, or if it is enough to just exhaust each constituent claim. The
weight of the Circuit precedent, however, runs strongly in favor of requiring cumulative
error to be specifically raised in state court in order to be exhausted. See Dixon v. Hardy,
No. 10 C 06727, 2013 WL 5518902, at *4 n.3 (N.D. Ill. Oct. 4, 2013) (listing cases).

18

nature of the testimony, Nesbitt, as Burke’s wife, could easily have been impeached
for family bias. See id. at 12.
Weighing against Burke was all of the evidence that the State presented at
trial. First, the state appellate court concluded that Jordan, even after “rigorous
cross-examination,” “unequivocally identified [Burke] as the offender.” Id. at 11.
Although Burke argues that Jordan’s eyewitness identification was unreliable, see
Pet’r’s Reply Br. at 21-22, the record backs up the appellate court’s conclusion.
Jordan saw Burke’s face from about a foot away when he initially approached her
while she was unlocking the Currency Exchange door. See R. 18-13, State’s Exh. M
at C463-64, C479. She was also able to look at him the entire time they were in the
lobby area. Id. at C480. Jordan saw Burke again through the glass separating the
secured work area from the lobby. Id. at C482-83. At that point, Burke was facing
her, and Jordan was able to get a “good look” at his face. Id. at C483. What’s more,
after excluding two suspects that the police presented to her shortly after the
robbery, Jordan quickly and positively identified Burke in a photographic lineup,
explaining that she would “never forget his face.” Burke, No. 2-08-0135, slip op. at 34. Finally, the appellate court did not just rely on Jordan’s testimony or
identification when concluding that Burke suffered no prejudice. The court also
emphasized that the State had presented expert testimony establishing that
Burke’s fingerprints were found inside the security door, an area that was not
accessible to the general public. Id. at 11-12. In light of the strong evidence
outweighing Nesbitt’s generalized testimony and potential bias, the court concluded

19

that there was not a reasonable probability that Burke would have been acquitted if
Nesbitt had testified. Id. at 12-13. This conclusion was not objectively unreasonable.
Second, the appellate court also held that Burke “suffered no prejudice” as a
result of trial counsel’s failure to present evidence explaining why Burke’s
fingerprints were found at the Currency Exchange. Id. at 13-14. Burke argued that
his counsel should have presented evidence that he worked near the Currency
Exchange and visited it frequently before the robbery. Id. As the state court noted,
this evidence may have explained why Burke’s fingerprints were found in the
common area of the Currency Exchange, but it did not explain why his prints were
found inside the security door. Id. at 14. On top of this, Burke’s conviction was
supported not only by fingerprint evidence, but also by eyewitness identification. Id.
As a result, it was not unreasonable for the appellate court to conclude again that
trial counsel’s failure to present this evidence did not prejudice Burke.
Next, the appellate court also held that Burke suffered no prejudice arising
from his counsel’s failure to hire a fingerprint expert. Id. at 15. Burke claimed that
he gave trial counsel money to hire a fingerprint expert to dispute the evidence that
his prints were recovered from inside the security door (the part not accessible to
the public). Id. at 14. But the appellate court explained that these allegations were
insufficient to conclude that Burke suffered prejudice. First, the court emphasized
that Burke did not allege what evidence his own expert would have presented. Id. at
15. What’s more, the court also noted that Burke did not even allege that the State’s
fingerprint evidence was flawed. Id.

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On federal habeas review, there is nothing in the record showing that the
appellate court’s conclusion was unreasonable, and Burke’s citations to the record
do not undermine or impeach the State’s expert. Burke emphasizes that Keith, the
State’s expert, was unable to match Burke’s prints to a set of palm prints collected
from the Currency Exchange. See Pet’r’s Reply Br. at 23-24 (citing R. 31-1, State’s
Exh. W at C599, C609-15). But Burke does not even make a conclusory argument
that Keith’s analysis was sloppy or wrong as to Burke’s fingerprints found inside
the security door. Instead, the record readily explains why Keith was unable to
match Burke’s palm prints to the prints lifted from the scene: they simply were not
Burke’s. The only palm prints Keith had for comparison were from Burke, and they
did not match the palm prints lifted from the Exchange. See State’s Exh. W at C614.
Keith noted that he did not have the palm prints of the investigating officers who
were at the scene, and he elaborated that it was not his job to request additional
prints or to determine how to run the investigation in order to eliminate additional
prints. Id. at C614-15. The Court is confined to the record from the state court
proceedings, and Burke has not demonstrated good cause to further develop the
record. Thus, on this record, the appellate court’s conclusion was reasonable.
Finally, the appellate court rejected Burke’s claim that he was prejudiced by
his trial counsel’s failure to object when a police officer removed a pistol from an
evidence bag in the jury’s presence.10 Burke, No. 2-08-0135, slip op. at 15-16. Burke

10The

appellate court also noted that Burke forfeited this claim by failing to cite any
authority in support of it. See Burke, No. 2-08-0135, slip op. at 15 (citing Illinois Supreme
Court Rule 341(h)(7)); see also Cone, 556 U.S. at 465 (explaining that a claim is
procedurally defaulted when a petitioner fails to raise his federal claims in compliance with

21

contends that the State intentionally had the police officer enter the courtroom and
that the gun was from a different pending criminal case against him in Chicago.
Habeas Pet. at 18, 27. The appellate court reasonably concluded that Burke was not
prejudiced by his counsel’s failure to object.11 It first noted that, even assuming the
jurors saw the gun, there was no evidence that the jurors were influenced by it
because both Burke and Nesbitt’s affidavits were based on speculation alone. Burke,
No. 2-08-0135, slip op. at 15-16. To support his claim on state post-conviction
review, Burke relied primarily on the armed-robbery conviction itself to argue that
the jurors were influenced by the gun. See id. at 16. Moreover, Burke presented no
arguments or other evidence to overcome the weight of the admissible evidence
against him.12 Id. And it is quite possible that objecting to the gun would have
drawn even more attention to the gun and alerted jurors that it was from another

relevant state procedural rules). Despite this procedural error, however, the appellate court
went on to address the merits of Burke’s claim, so this Court will, too.
11To be clear, Burke has raised an ineffective-assistance claim, not a due-process
claim. See Habeas Pet. at 26; see also Appellant’s Br. at 17, 22, 24-25, Burke, No. 2-08-0135.
Burke is arguing that the error here was his counsel’s failure to object, not the denial of his
right to a fair trial. Burke did raise a due-process challenge in his post-conviction petition.
See Am. Post-Conviction Pet. at 49, People v. Burke, No. 01 CF 2928 (Ill. Cir. Ct. Mar. 16,
2007), available at R. 18-16, State’s Exh. R. But Burke abandoned this argument on appeal.
See Appellant’s Br. at 17, Burke, No. 2-08-0135. The state post-conviction appellate court
therefore incorrectly characterized Burke’s appeal as raising a due process claim. See
Burke, No. 2-08-0135, slip op. at 1, 5. This mischaracterization is ultimately harmless,
however, because the appellate court’s due-process analysis readily translates to an
analysis of Strickland’s prejudice prong. See id. at 16.
12Burke again requests an evidentiary hearing to allow him to develop this
ineffective-assistance claim. See Habeas Pet. at 32. But the state appellate court already
reviewed and rejected Burke’s and Nesbitt’s affidavits and even overlooked any
inconsistencies in them when the court assumed that the jury saw the gun. Burke, No. 2-080135, slip op. at 15. Moreover, under the Illinois Rules of Evidence, Burke would not be able
to ask jurors what effect seeing the gun had on their deliberations and the verdict. See Ill.
R. Evid. 606(b). Therefore, the Court also denies Burke’s request for an evidentiary hearing
to develop this final ineffective-assistance claim.

22

case involving Burke. Finally, as the appellate court observed, “the jury was
properly instructed that the evidence it should consider ‘consists only of the
testimony of the witnesses and the exhibits which the Court has received.’” Id.
Given this jury instruction and the other evidence in the record, it was not
unreasonable for the appellate court to conclude that Burke was not prejudiced by
his counsel’s failure to object to the police officer’s removing the gun from the
evidence bag in the jury’s presence.
In sum, it was reasonable for the state appellate court to conclude that Burke
suffered no prejudice as a result of any of his trial counsel’s conduct. Burke’s second,
and last, habeas claim therefore fails as well.
IV. Conclusion
For the reasons discussed above, Burke’s habeas petition [R. 1] is denied.
If Burke seeks to appeal the denial of his habeas petition, he must first
obtain a certificate of appealability. Under 28 U.S.C. § 2253, “an appeal may not be
taken to the court of appeals from the final order in a habeas corpus proceeding in
which the detention complained of arises out of process issued by a State court”
unless the circuit justice or judge first issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(A). A certificate of appealability may issue only when “the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make a substantial showing, a petitioner must show that
“reasonable jurists could debate whether . . . the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve

23

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotation marks and citation omitted). For the reasons discussed above,
Burke has not made a substantial showing of the denial of a constitutional right;
reasonable jurists would not debate whether the challenges in his habeas petition
should been resolved differently or determine that Burke deserves encouragement
to proceed further with his habeas claims. See Rutledge v. United States, 230 F.3d
1041, 1047 (7th Cir. 2000). The state courts’ decisions on all of Burke’s claims were
well within the deference owed to state courts under AEDPA. The Court therefore
declines to issue a certificate of appealability.
ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: February 28, 2014

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