Aguallo v. Atchison et al
Filing
34
MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 11/12/2013. For the reasons stated in this memorandum opinion and order, the Court denies Aguallo's petition for a writ of habeas corpus [docket no. 1] and directs the Clerk to enter judgment in favor of the respondent. The Court also declines to issue a certificate of appealability.(pjg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROLANDO AGUALLO,
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Petitioner,
vs.
MICHAEL P. ATCHISON,
Respondent.
No. 12 C 48
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
In July 2002, an Illinois jury convicted Rolando Aguallo of three counts of
aggravated battery with a firearm in connection with the shooting of a man and two
women on a Chicago street in July 1998. His sentence is three consecutive thirty-year
prison terms. The Illinois Appellate Court affirmed Aguallo's conviction on direct appeal,
and, after the Illinois Supreme Court denied his petition for leave to appeal, he filed a
petition for post-conviction relief. The Circuit Court of Cook County denied his petition,
and the Appellate Court affirmed the decision.
Aguallo has now petitioned this Court for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Respondent Michael Atchison, the warden of the prison where
Aguallo is incarcerated, argues that two of the claims, and part of a third, are
procedurally defaulted, and that the remaining claims are without merit, because state
courts decided them reasonably under section 2254. In his reply, Aguallo contends that
none of his claims is defaulted and that the state courts wrongly decided the claims he
1
asserted on direct appeal and on post-conviction review. For the following reasons, the
Court denies Aguallo's petition.
Background
A.
Trial court proceedings
On the night of July 21, 1998, three people were shot in the area of 32nd Street
and Morgan Street in Chicago. Sergio Pineda was shot in his leg; Ignatia Ochoa was
shot in her upper right arm and on her right side; and Donna Dixon was shot in the
buttocks. None died as a result of the shooting.
Police arrested Rolando Aguallo on the same night as the shootings. In June
2000, Aguallo filed a motion to suppress the statement he gave to police while in
custody after the shootings. In the motion, he argued that he was "coerced into giving a
statement implicating himself" and that his statements were "involuntarily induced,"
based on the length of his detention and unspecified promises he claimed were made to
him. Ex. Q at 59. After a hearing, the circuit court denied Aguallo's motion in March
2001. In an oral ruling, the court stated that "[t]here is not a scintilla of evidence that
any coercion was made by the police, neither is there any scintilla of evidence that he
was deceived by the police in any way whatsoever." Ex. M at 120. The court
considered the duration of the interrogation (as opposed to the time Aguallo spent in the
interrogation room), the fact that Aguallo was fed, and could rest on a bench in the
room. It concluded that "the defendant's statement was freely and voluntarily made and
his will was not overborne." Id. at 121.
Aguallo's trial began on July 29, 2002. The prosecution first called Chicago
police detective John Murray, who responded to the scene of the shooting in July 1998.
2
Murray reported that ambulances were tending to the three victims when he arrived and
that he noted a car struck by a bullet on Morgan Street and a "large pool of blood" on a
nearby doorstep. Ex. O at 19. Murray testified that he then learned about a witness,
Dominga Martinez, who had been taken to a nearby police station to give a statement.
Following the interview with Martinez, Murray said, the police began to search for
Aguallo.
Murray also discussed his questioning of Aguallo in an interview room at another
police station, where he said he advised Aguallo of his Miranda rights. Murray testified
that Aguallo told him he was a member of a gang called the Satan Disciples, which was
at war with another gang, the Latin Kings. Id. at 24. Aguallo told Murray that on the
night of the shootings, he was first drinking with a friend and then went to his girlfriend's
home, and he had no knowledge of the shootings. Murray and other police then sought
unsuccessfully to find and interview the individuals Aguallo had mentioned. When
Murray returned to work the next day at 4 p.m., he brought Aguallo food from
McDonald's. Later that day, Murray interviewed Aguallo's girlfriend's mother, who
reported that Aguallo was not with the girlfriend the previous evening. Murray told
Aguallo about that interview, after which Aguallo told him a different story about the
shooting. Aguallo said that he was in his neighborhood when he saw men in a car who
"flashed him the crown"—the gang sign of the Latin Kings. Id. at 34. Following that,
Aguallo said, he retrieved his gun from a nearby awning, ran to Morgan Street, and
began firing the gun at the car and a group of people he thought were Latin Kings
standing on the street.
3
On cross-examination, Murray testified that Aguallo stayed in the interview room
for sixteen or seventeen hours before he first ate something (the McDonald's meal).
Aguallo ate again about seven hours later, when Murray brought him at least one
hamburger, fries, and a Coke from Checker's. Altogether, Murray testified, Aguallo was
in the interview room for twenty-four to twenty-five hours. During his time in that room,
Murray said, Aguallo did not ask for an attorney or to make a phone call.
Later, after the prosecution called the victims in the case to testify about their
injuries, it questioned Assistant State's Attorney Paul Quinn, who wrote out the
statement that Aguallo signed in the interview room. Quinn testified that he also gave
Aguallo Miranda warnings, after which Aguallo said he was willing to talk about the
shootings. Aguallo proceeded to implicate himself, Quinn said, and Quinn wrote out
Aguallo's statement to that effect, with Aguallo "free to make any corrections or
deletions." Id. at 191. "Once in a while I'd ask him what happened next to clear up a
point, but it was basically me sitting next to him writing word for word as I talked with
him," Quinn testified. Id. at 193. Quinn said that Aguallo initialed any corrections that
Quinn made, and that Aguallo signed each page of the completed statement to note his
approval. It included a statement that Aguallo "is giving this statement freely and
voluntarily and that no threats or promises have been made in exchange for this
statement" and that he speaks English and understood the statement. Id. at 199–201.
The prosecution also called Chicago police officer George Heidmann to testify.
Heidmann testified that he received a call on the night of July 21, 1998 and went to 33rd
and Morgan, where he encountered the shooting victims. He further testified that he
recovered spent nine-millimeter shell casings from the area and interviewed Martinez on
4
the scene. Heidmann testified that Martinez gave him Aguallo's name and description,
which he sent out to other police cars in the area. "I believe she identified him by his
first name," Heidmann testified. Ex. O at 146. The following witness, a forensic
scientist from the Illinois State Police, testified that no acceptable latent fingerprints
were found on the discharged bullet casings in the case. Another forensic worker
testified that all bullets recovered from the shooting came from the same gun.
The prosecution also called Dominga Martinez, who testified she was in front of
her house near Morgan Street at the time of the shooting in July 1998. Martinez
testified that before the shooting, she was "going to the store with my girlfriends first,"
two individuals named "Judy and Rosella." Id. at 87. At around 9:30 or 9:40 p.m. that
night, Martinez was outside her house on 32nd Street near Morgan Street when she
saw "two guys running from around the corner" who "stood right on the corner by my
house," one of whom started firing a gun. Id. at 72. Martinez testified that one of the
men said the words "disciple love," and the other said "king killer, king killer." Id. at 73.
She told the jury that she could see "the face of the man with the gun" in the lights of a
nearby bank, and she identified the shooter as Aguallo. Id. at 74–75. Martinez said she
knew Aguallo for ten years from her time as a volunteer at a local youth center and that
she told the first police officers to arrive on the scene what she had seen. She then
testified that she had again identified Aguallo when the police "put a spotlight on him
and asked me if it was him and I told them yes it was." Id. at 78. Aguallo was the only
person whom police showed to Martinez. Later, defense counsel asked Martinez if she
had told two people named Monica Marshall and Sharon Edwards that Aguallo did not
commit the shooting, and Martinez said no.
5
After the lunch break on the first day of Aguallo's trial, one of the prosecutors
informed the court out of the presence of the jury that Martinez had just spoken to her
mother, who reported that Aguallo's brother had called to threaten Martinez's two sons if
she proceeded with her testimony. When Martinez returned to the witness stand, the
prosecutor, with the court's permission and in the presence of the jury, asked Martinez
was she was crying. Martinez testified that her mother had just paged her and that
Satan Disciples had tried to get her to change her story on the witness stand. After the
prosecutor inquired into how they had done so, defense counsel objected, and the court
sustained the objection and cut off further inquiry. Elsewhere during her testimony,
Martinez said that she was "not really good" with the directions north, south, east, and
west. Id. at 116. On re-cross examination, Martinez said she "wasn't far at all" from
Aguallo when he fired shots, perhaps the same distance as that from the witness stand
to the back of the courtroom. Id. at 119. The court at that point interjected and told
counsel that the distance noted was "[a]pproximately 80 feet." Id.
The defense's first witness was Martha Aguallo-Flores, Aguallo's sister. AgualloFlores testified that Aguallo could not read much or any English in 1998, though she
said he did understand her when she spoke English while teaching him how to read.
She further testified on cross-examination that she had not told police officers in the four
years after her brother was arrested that he had limited understanding of English.
Aguallo also called three witnesses who each testified that Dominga Martinez
had told them that she lied when naming Aguallo as the shooter to police. Sharon
Edwards testified that Martinez told her in July 1999 "that she knows that Rolando didn't
do it, that she was just going to point out anybody that the police brought down to her
6
because her kids were out there." Ex. P at 30. Edwards further testified that Martinez
told her that "Little Richard's cousin" was the shooter, not Aguallo. Id. On crossexamination, the prosecutor asked Edwards whether she had informed various
authorities or news media outlets about Martinez's admission to her; Edwards said no.
Defense counsel did not object to this line of questioning. A similar colloquy occurred
during the testimony of Edwards's fiancée, Michael Sparacino, who testified that he
heard the same statement by Martinez about Aguallo not being the shooter. When the
prosecutor asked Sparacino whether he had called the FBI after hearing Martinez's
statement to tell them, "You have got to investigate these guys," defense counsel
objected; the objection was overruled. Id. at 40. Defense counsel otherwise did not
object when the prosecutor asked Sparacino if he had called various authorities and
news outlets with the news of Martinez's statement. (Sparacino had not.) Next,
defense counsel called Monica Marshall, who testified that she was playing basketball
with Aguallo several blocks from the shooting when it occurred. As with prior witnesses,
the prosecutor asked Marshall whether she had reported this exculpatory information to
authorities or the news media; Marshall had not. Marshall also testified that she was
living with Martinez in July 2000 when Martinez told her that Aguallo "didn't do it, that
she was just blaming it on him because she didn't like none of the guys from the
projects." Id. at 49. The defense called no other witnesses.
In his closing argument, Aguallo's defense counsel argued that Aguallo's
confession had been coerced. Counsel noted the length and conditions of Aguallo's
stay in the interview room at the police station, including the bare bench provided for
rest, as well as the "16 or 17 hours" that elapsed before Aguallo was fed. Ex. P at 82–
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84. He further discussed Aguallo's "trouble reading" and seventh-grade education,
along with the fact that the statement Quinn produced had only one correction. Id. at
89–90. "After 25 hours, I suspect someone would sign almost anything," defense
counsel said. Id. at 90.
In his rebuttal, the prosecutor addressed the argument that Aguallo's confession
was involuntarily given. After criticizing the argument, he said, "Folks, you are here to
decide issues of fact, whether or not that statement was coerced as an issue of law, and
that has been decided, and you have heard about it." Ex. P at 113. Defense counsel
objected to the statement, but the court overruled the objection. The prosecutor
proceeded to tell the jury that "if that statement was coerced, if it was unconstitutionally
taken, you wouldn't have heard about it. We would have rested on the one big piece of
evidence we had, Dominga Martinez." Id. Later, in giving jury instructions, the court
told the jury that the court sometimes "rule[s] on the admissibility of evidence," and that
the jurors "should not concern yourselves with the reasons for these rulings." Id. at 115.
The jury found Aguallo guilty of each of the three charges of aggravated battery
with a firearm. Aguallo filed a timely motion for a new trial, in which he argued six
issues. These were: (1) his motion to suppress his confession should have been
granted given the length of his interrogation; (2) his motion in limine on references to the
term "gang" should have been granted; (3) his objection to unspecified jury instructions
should have been sustained; (4) the prosecution's failure to prove his guilt beyond a
reasonable doubt; (5) the evidence at trial did not exclude every reasonable hypothesis
consistent with his innocence; and (6) the prosecution did not prove that he committed
aggravated battery with a firearm. Ex. Q at 106–07. The circuit court denied the motion
8
at the start of Aguallo's sentencing hearing on August 30, 2002. It proceeded to
sentence him to three consecutive terms of thirty years.
B.
Appeal and post-conviction proceedings
On direct appeal, Aguallo argued four issues. First, he claimed he was denied a
fair trial because of the prosecutor's reference to the judge's decision not to suppress
the confession and because the prosecutor impeached three of the defense witnesses
with their prior silence. His other three claims concerned the length and consecutive
nature of his three thirty-year sentences. The Illinois Appellate Court overruled
Aguallo's fair trial claims. It first observed that Aguallo's motion for a new trial "did not
include the issue of improper impeachment of Edwards, Sparacino, and Marshall or the
issue of improper closing argument by the [prosecutor]." Ex. A at 13. The court then
pointed out that a failure to preserve an issue in a trial objection and in a post-trial
motion waives the issue on appeal. The court proceeded to evaluate both issues for
plain error. On the issue of improper impeachment, the court pointed to Illinois law
holding that evidence of prior silence is admissible to impeach witnesses, and that the
witnesses in question had "months or even years to" provide exculpatory evidence
about Aguallo to authorities. Id. at 15–17. The court held that the trial court's allowance
of this impeachment was not an abuse of discretion, as "there was no error, much less
plain error." Id. at 17.
On the prosecutorial comments issue, the court first cited Illinois law that reversal
of a verdict is proper only when a prosecutor's remarks are improper and prejudice the
defendant and that prosecutors have wide latitude in the content of their closing
arguments. In this case, the court said, "[t]he State did not rest its case, either
9
evidentiary or argumentative, regarding defendant's statements on a bare assertion that
the issue was already decided as a matter of law." Id. at 18–19. Furthermore, the
prosecutor's comment was true, the court reasoned, because if Aguallo's statement was
unconstitutionally acquired, it would have been suppressed. But "[m]ost importantly,"
the court said, the jury instructions warned jurors that the closing arguments were not
evidence. Id. at 19. "Any implication in the ASA's closing argument that the jury was
required to accept defendant's statement at face value was cured by a jury instruction
unequivocally informing the jury that the weight of defendant's statements was their
decision in light of all the circumstances surrounding the statement." Id. at 19. The
appellate court therefore held that the prosecutor's comments had not prejudiced
Aguallo. It affirmed his convictions but vacated his sentences and remanded his case
for further consideration of the nature of the victims' injuries under 730 ILCS 5/5-8-4(a),
an issue Aguallo does not raise here.
Less than one month after his direct appeal decision, Aguallo filed a petition for
leave to appeal (PLA) to the Illinois Supreme Court. He presented three issues. He
again claimed his trial was unfair because of the prosecutor's improper closing
argument and improper impeachment of the defense witnesses with their silence. He
also claimed his ninety-year sentence was excessive. The Illinois Supreme Court
denied Aguallo's PLA in October 2004. In July 2005, the trial court found that the harm
to the victims in the case constituted severe bodily injury and ruled that Aguallo's three
thirty-year sentences were to be served consecutively under 730 ILCS 5/5-8-4. The
Appellate Court affirmed this decision in August 2007.
10
In January 2006, while his appeal following the remand of his sentencing issue
was pending, Aguallo filed a petition for post-conviction relief in the Circuit Court of
Cook County. He asserted claims of ineffective assistance of counsel at trial, violation
of his Fifth and Fourteenth Amendment rights by the trial court's admission of Martinez's
testimony about gang intimidation, and ineffective assistance of appellate counsel for
failing to raise this issue on direct appeal.
The circuit court ordered a hearing on the ineffective assistance of trial counsel
claim. At the hearing, Aguallo's post-conviction counsel presented evidence regarding
Aguallo's waiver of Miranda rights and trial counsel's failure to investigate and call
certain witnesses. Post-conviction counsel called several witnesses, among them three
members of the Zawadzki family, who lived near the scene of the shooting when it took
place, as well as Aguallo's trial counsel James Marcus, investigator Robert Swanson,
Dominga Martinez, and Aguallo himself.
Judy Zawadzki and her daughter Rosellen, who lived near the scene of the
shooting when it took place, testified that they were not with Martinez before the
shooting, as Martinez had claimed at trial. They said instead that they were inside their
respective homes. Judy Zawadzki testified that she came outside after hearing the
shots and heard Martinez shout, "Oh, I seen it. I seen it," and tell the police she could
identify the shooter. Ex. V at 23. She further testified that Martinez was yelling that
someone named "KK" did the shooting, and that "KK" referred to "King Killer." Id. at 24–
25. Rosellen Zawadzki testified that she did not hear the shots from inside her home
when they were fired but that she went outside afterward and saw Martinez speaking to
police officers. She said she had not been with Martinez prior to that time. Tanya
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Zawadzki testified that she was outside her house on Morgan Street when the shots
were fired in her direction. She saw "a man coming to shoot" outside a store at 33rd
and Morgan, one block south, stipulated to be eighty feet away from her. Id. at 27. She
further testified that she could not identify the shooter, because it was "too dark," and
that there was "[m]aybe a fence" obstructing her view. Id. at 26–29, 32.
The hearing also included testimony from James Marcus, Aguallo's trial attorney,
and Robert Swanson, an investigator hired by Aguallo's post-conviction counsel.
Marcus testified that he "did make some attempt" to locate Judy and Rosellen
Zawadzki, "although not much of an attempt," because he feared that additional
eyewitnesses could corroborate Martinez's account of the shooting. Id. at 75–76. In
addition, he stated that he could not locate Martinez before trial and that he had gone to
32nd and Morgan with a camera to "take some pictures" and "observe[ ] the scene
where the alleged incident occurred." Id. at 79. Marcus added that he did not use the
photographs at trial because "[t]hey weren't particularly helpful," and "[t]he State had
taken numerous pictures in a closer period of time to the incident." Id. at 80. Marcus
also testified that he believed Aguallo always communicated with him in English,
understood English at the time of the shooting, and understood the Miranda warnings
the police gave him. Finally, Marcus testified that Aguallo had told him that he did not
want to testify at trial.
Swanson told the court about his investigation of the case, including his visit to
Morgan Street, where he made various measurements and could not see 32nd Street
east of Morgan or Lituanica Avenue from Martinez's then-residence. Specifically, he
testified that he measured 210 feet from the residence he was told belonged to
12
Dominga Martinez at the time of the shooting to the east sidewalk of Morgan Street. He
also measured from a nearby alley to Morgan Street, for a total of about 183 feet. On
cross-examination, Swanson testified that he did not measure from the Martinez
residence to the northeast corner of 32nd and Morgan.
Aguallo also testified at the hearing. He told the court his English skills were
limited at the time of the shooting incident, and he discussed the show-up proceeding
and his questioning by Chicago police. Aguallo testified that he never orally admitted to
the shooting but signed a handwritten statement to that effect, which he was "rushed"
into doing. Id. at 125. He further told the court that he had informed Marcus that he
wanted to testify but that Marcus would not allow it, because the testimony could result
in the prosecution using his criminal record against him.
Dominga Martinez also testified. She told the court she did not recall much of
her testimony at Aguallo's trial, including what she testified to, the Zawadzkis' last name,
whether detectives interviewed her after the shooting, and what she saw on the night of
the shooting. She also testified that Swanson had interviewed her, but she could not
recall what she told him, including whether she had recanted her testimony to Swanson.
(She did recall that she did not read or sign a statement attributed to her that Swanson
had written up.)
Swanson was then recalled to the witness stand and testified that Martinez did
discuss the shooting with him. He said Martinez told him that she saw the shooting but
could not identify the shooter. She would not, however, sign a statement Swanson had
prepared indicating she did not know who the shooter was, though she verbally verified
the statement's contents. On cross-examination, Swanson testified that he had in fact
13
prepared two handwritten statements after speaking to Martinez. On one copy,
Swanson had added the line, "I could not identify him," on direction from Aguallo's
attorney, and showed that copy to Martinez. Id. at 195.
The circuit court denied Aguallo's post-conviction petition. It held that Marcus's
actions amounted to trial strategy, not ineffective assistance, as his strategy was to
present an alibi and present witnesses to testify that Martinez told them she lied on the
stand. In March 2011, the Illinois Appellate Court affirmed the circuit court's decision.
Following that decision, Aguallo filed a PLA with the Illinois Supreme Court, which that
court denied in May 2011.
C.
Aguallo's habeas corpus petition
Aguallo has filed a pro se habeas corpus petition in this Court, asserting four
claims. First, Aguallo argues that his right to a fair trial was denied when the prosecutor
at his trial "falsely suggest[ed] to the jurors that the trial judge had already ruled on the
voluntariness of petitioner's inculpatory statement." Pet. at 5. Second, he contends that
his rights to a fair trial and due process were denied when "the prosecutor improperly
impeached three (3) key witnesses with their prior silence without establishing that they
had an opportunity or a reason to contact authorities." Id. Third, Aguallo asserts a
claim of ineffective assistance of counsel at trial on multiple grounds, including that the
errors of his trial counsel cumulatively constituted ineffective assistance. Finally,
Aguallo contends that his counsel on direct appeal was ineffective, because the
attorney "failed to raise the meritorious claim that the state's sole witness was allowed
to testify that unidentified individuals threatened her." Pet. at 6.
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In its answer, respondent argues that Aguallo has procedurally defaulted his two
fair trial/due process claims and that he cannot show cause for and prejudice from the
defaults or that denying his claims would effect a miscarriage of justice. Respondent
also contends that two of Aguallo's ineffective assistance of trial counsel claims are
defaulted, or else barred under section 2254(d), as previous state court decisions on
those issues were reasonable applications of clearly established federal law.
Discussion
A petitioner is entitled to a writ of habeas corpus "only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a). A federal court may issue a writ of habeas corpus on a claim that
was adjudicated on the merits in state court proceedings only if the state court's
decision (1) "was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding." Id. § 2254(d);
Newman v. Harrington, 726 F.3d 921, 927 (7th Cir. 2013).
A.
Fair trial / due process claims
Aguallo's two fair trial / due process claims concern the prosecutor's actions at
trial: his comments during closing argument that the trial judge had already decided
that Aguallo's statement to police had not been coerced, and his impeachment of
Aguallo's defense witnesses with their prior silence. Both Aguallo and respondent
group these claims together, and the Court will discuss them together as well.
15
1.
Procedural default
Respondent argues that both of Aguallo's trial error claims are procedurally
defaulted because he did not raise them in his post-trial motion and the state appellate
court concluded they had been waived. Aguallo contends otherwise. He argues that
respondent's cited cases are inapposite—though he does not address all the cases
respondent cites—and further contends that his claims are not defaulted because the
Illinois Appellate Court in fact decided the claims on their merits. Repl. at 5.
A federal court considering a habeas corpus petition may "not take up a question
of federal law presented in [the] case if the decision of [the state] court rests on a state
law ground that is independent of the federal question and adequate to support the
judgment." Lee v. Kemna, 534 U.S. 362, 375 (2002) (internal quotation marks omitted).
Such a ground "may be a substantive rule dispositive of the case, or a procedural
barrier to adjudication of the claim on the merits." Walker v. Martin, 131 S. Ct. 1120,
1127 (2011). The Seventh Circuit has held that "there is no dispute as to the
independence of the ground" if the Illinois Appellate Court disposed of a claim because
a habeas corpus petitioner failed "to include any and all claims of error in a post-trial
motion for a new trial." Miranda v. Leibach, 394 F.3d 984, 992 (7th Cir. 2005) (citing
725 ILCS 5/116-1; People v. Enoch, 122 Ill. 2d 176, 522 N.E. 2d 1124, 1129–30
(1988)).
Aguallo does not deny that he failed to include either the prosecutor's improper
closing argument or impeachment of trial witnesses as issues in his motion for a new
trial. He contends, however, that there was not an independent and adequate state
ground for the decision in his case because the Illinois Appellate Court actually decided
16
these two issues on the merits, thus opening them for review by this Court. He argues
that "Illinois allows for an exception to get around waiver through plain error review."
Repl. at 4, citing Smith v. Stewart, 241 F.3d 1191, 1196 (9th Cir. 2001), rev'd, 536 U.S.
856 (2002).
Aguallo does not specify the statement upon which he relies from Smith, a
decision the Supreme Court reversed in 2002. The Court assumes he intended to refer
to the case's reference to the rule, also followed in the Seventh Circuit, that an
independent and adequate state ground for a decision does not exist if the state court's
procedural ruling is "intertwined with its analysis of the merits" of a constitutional claim.
Smith, 241 F.3d at 1196; see also, e.g., Moore v. Bryant, 295 F.3d 771, 774–5 (7th Cir.
2002) (no independent and adequate state ground in habeas case when Illinois court
analyzed both waiver and merits of a claim, "and does not clearly and expressly rely on
the procedural default").
Aguallo is correct to observe that Illinois appellate courts often undertake "plain
error" review of constitutional claims. "Illinois like many states provides a safety valve
for situations in which enforcing a procedural default would mask a plain error." Neal v.
Gramley, 99 F.3d 841, 844 (7th Cir. 1996) (citing People v. Herrett, 137 Ill. 2d 195,
561 N.E.2d 1, 7–8 (1990)). Yet plain error review of an issue does not, as a general
rule, constitute consideration of that issue on the merits for purposes of habeas corpus
review. The Seventh Circuit has "repeatedly explained that where a state court reviews
the claim for plain error as the result of a state procedural bar such as the Illinois
doctrine of waiver, that limited review does not constitute a decision on the merits."
Gray v. Hardy, 598 F.3d 324, 329 (7th Cir. 2010); see also Thomas v. Gilmore,
17
144 F.3d 513, 518 (7th Cir. 1998) ("[R]eview for plain error does not cure a procedural
default."). Cases like Moore are distinguishable, as they do not involve situations in
which the state court undertook plain error review.
The appellate court's language in Aguallo's case was not a model of clarity. But
upon examination, it is apparent that the court first determined that Aguallo waived
consideration of the issues and then proceeded to resolve whether the trial court's
rulings that he challenged on appeal amounted to plain error. After noting that Aguallo
did not include either of the issues under discussion in his motion for a new trial, the
court stated that such issues are waived on appeal "unless the issue was preserved in
an objection at trial and in a post-trial motion." Ex. A at 15. The court then discussed
the purpose and standard for the plain error doctrine, noting that it "allows courts to
review an otherwise-waived issue if the evidence was closely balanced or the error was
of such magnitude that it deprived defendant of a fair trial." Id. The court first
determined that the trial court did not abuse its discretion in allowing the prosecutor at
trial to impeach Edwards, Sparacino, and Marshall with their silence, holding that "there
was no error, much less plain error." Id. at 17. It then decided that there was no
reversible error in the trial court's allowing the prosecutor's allegedly improper closing
argument. Id. at 19. Given the court's initial conclusion that Aguallo had waived the
issues for purposes of appellate review, the court's consideration of these points did not
constitute merits review of Aguallo's trial error claims. "[W]here a state court reviews a
federal constitutional claim for plain error because of a state procedural bar (here, the
doctrine of waiver), that limited review does not constitute a decision on the merits."
18
Kaczmarek v. Rednour, 627 F.3d 586, 592 (7th Cir. 2010). The Court concludes that
Aguallo's two claims of trial error are procedurally defaulted.
2.
Cause and prejudice
Aguallo argues that any procedural default of his claims of trial error should be
excused. A court may consider a defaulted claim on its merits if the habeas corpus
petitioner can demonstrate cause for the default and prejudice resulting from the error.
House v. Bell, 547 U.S. 518, 536 (2006).
In this case, the default first occurred when defense counsel failed to include
both issues—the prosecutor's improper impeachment, and improper statements in his
rebuttal—in Aguallo's motion for a new trial. Aguallo's appellate counsel then failed to
argue trial counsel's ineffectiveness for not raising these issues. Then, on postconviction review, Aguallo's counsel raised the issue of his appellate counsel's
ineffectiveness—but not for his failure to raise either of these trial error issues. Aguallo
now argues that his post-conviction attorney should have asserted a claim of ineffective
assistance of appellate counsel for failure to argue trial counsel's ineffectiveness, and
that his failure should excuse his trial counsel's earlier default.
It is true that "in certain circumstances counsel's ineffectiveness in failing
properly to preserve the claim for review in state court will suffice" to demonstrate cause
for a default. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). However, "a claim of
ineffectiveness must itself have been fairly presented to the state courts before it can
establish cause for a procedural default of another claim." Lewis v. Sternes, 390 F.3d
1019, 1026 (7th Cir. 2004) (citing Edwards, 529 U.S. at 452–54). In other words, an
attorney's "alleged ineffectiveness cannot excuse the default" if the claim of
19
ineffectiveness is itself defaulted. Id. In addition, habeas corpus petitioners are
generally not permitted to argue ineffective assistance of counsel arising from an
attorney's action or inaction in post-conviction proceedings. See Coleman v.
Thompson, 501 U.S. 722, 752 (1991).
Aguallo contends that the attorney who handled his post-conviction petition in
state court was deficient for neglecting to include an ineffective assistance of counsel
claim, in which Aguallo could have alleged that appellate counsel was ineffective for
failing to raise trial counsel's ineffectiveness. He argues that "[p]ost-conviction
counsel's failure to present the claim of appellate counsel's ineffectiveness for not
raising the further issue of trial counsel's ineffectiveness for not preserving claims one
(1) and two (2) in the post-trial motion can constitute 'cause.'" Repl. at 7. He contends
that "[t]he ineffectiveness of post-conviction counsel can sometimes excuse the default
of a substantial claim that trial counsel was ineffective." Repl. at 6 (citing Martinez v.
Ryan, 132 S. Ct. 1309, 1320 (2012)).
In Martinez, the Supreme Court modified the rule from Coleman by creating a
"narrow exception." Id. at 1315. The Court held that "[i]nadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a prisoner's
procedural default of a claim of ineffective assistance at trial." Id. The Court stated,
however, that the exception applies only in cases where the "collateral proceeding is the
first designated proceeding for a prisoner to raise a claim of ineffective assistance at
trial," as was the case with Arizona law in Martinez. Id. at 1317.
The Supreme Court elaborated on this exception in Trevino v. Thaler, 133 S. Ct.
1911 (2013). Texas law permits defendants to raise ineffective assistance of trial
20
counsel claims on direct appeal. In that state, however, state procedural rules made it
"virtually impossible for appellate counsel to adequately present an ineffective
assistance [of trial counsel] claim on direct review. Id. at 1918 (internal quotation marks
omitted). These rules deny defendants "meaningful review" of such ineffective
assistance claims, and in response, "Texas courts in effect have directed defendants to
raise claims of ineffective assistance of trial counsel on collateral, rather than on direct,
review." Id. at 1919. Therefore, in Texas, the Court held, a procedural default does not
bar a petitioner from bringing a claim of ineffective assistance of counsel at trial if postconviction counsel at the initial collateral proceeding was ineffective. Id. at 1921.
There are certainly some situations in Illinois in which a claim of ineffective
assistance of trial counsel cannot be made on direct appeal—for example, when the
evidence that forms the basis for the ineffective claim appears nowhere in the trial
record. But this is not such a case. The claims of ineffective assistance of trial counsel
that Aguallo's appellate counsel failed to make were claims that easily could have been
made on appeal, because the basis for the claimed ineffective assistance—trial
counsel's failure to assert the two trial error claims in a post-trial motion—was already a
matter of record. For this reason, the "narrow exception" that the Supreme Court
created in Martinez does not apply, and Aguallo cannot establish cause for his default of
the trial error claims. (For this reason, this Court has no occasion to address in this
case the extent to which Martinez might apply in Illinois.)
3.
Miscarriage of justice
Aguallo contends that, even if he cannot show cause and prejudice for his default
of these two claims, the Court should excuse the default because he can demonstrate
21
his actual innocence of the crimes for which he was convicted. "[A] convincing showing
of actual innocence enable[s] habeas petitioners to overcome a procedural bar to
consideration of the merits of their constitutional claims." McQuiggin v. Perkins, 133 S.
Ct. 1924, 1928 (2013). "[A]n absolute certainty about a petitioner's guilt or innocence is
not required to satisfy the petitioner's burden at the gateway stage." Coleman v. Hardy,
628 F.3d 314, 319 (7th Cir. 2010). Rather, the petitioner must show "that it is more
likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt." Schlup v. Delo, 513 U.S. 298, 327 (1995). This is known as the
"fundamental miscarriage of justice exception." Herrera v. Collins, 506 U.S. 390, 404
(1993).
Aguallo argues that the sworn statements of Judy and Rosellen Zawadzki
demonstrate that Dominga Martinez "lied concerning her testimony that she was with
[the Zawadzkis] direction prior to the shooting." Repl. at 9. Had these statements been
in evidence at his trial, Aguallo says, "a reasonable jury may very well [have found] they
discredit [Martinez] and return[ed] a different verdict." Id. He further argues that Tanya
Zawadzki's testimony would have a similar effect, as she "testified on the difficulty she
had in viewing the intersection at 32nd and Morgan," which would "cast doubt on
Martinez's identification of Petitioner since they both were at the same vantage point
and distance, and the poor lighting conditions." Id. Respondent contends that Judy and
Rosellen Zawadzki's testimony would not have reflected on Aguallo's guilt or innocence
but rather would have served only as additional impeachment evidence against
Martinez, to the effect that she was not actually with them before the shooting as she
claimed. Respondent also argues that Tanya Zawadzki's testimony would not have cast
22
doubt on Martinez's observations, as the two women viewed the shooting from different
vantage points.
The evidence Aguallo cites is insufficient to show a likelihood that "no reasonable
juror" would have found him guilty. The bulk of Judy and Rosellen's testimony involved
events that occurred before and after the shooting, not during it. They did not testify
that someone other than Aguallo did the shooting or even that Martinez herself did not
see the shooting. And as the state trial court pointed out in its decision on Aguallo's
post-conviction petition, the testimony was not entirely inconsistent with Martinez's
account; it "corroborates the fact that [Martinez] was there, she was outside, and that
she was yelling she knew who did it, and that she was talking to the police." Ex. W at
62. Consideration of this evidence would not make it more likely than not that no
reasonable juror would have found Aguallo guilty.
Aguallo incorrectly characterizes Tanya Zawadzki's testimony on her observation
of the shooting. Although Aguallo does not argue that Tanya was closer to the shooting
than Martinez, he does say that Tanya and Dominga Martinez "both were at the same
vantage point and distance" from the shooting. Repl. at 9. That is incorrect. The two
women described the location of the shooting differently, along with where they were
when they saw it. Tanya testified that she was outside her home at 3232 South
Morgan, which is near the corner of Morgan and 32nd Place, when she observed "a
man coming to shoot" outside a store at 33rd and Morgan, one block south. (Aguallo
contends that Tanya "testified on the difficulty she had in viewing the intersection at
32nd and Morgan," Repl. at 9, but her testimony was that the shooting occurred at
33rd.) Tanya further testified that she could not identify the shooter, as it was "too
23
dark." Ex. V at 26–29. Martinez, on the other hand, described the shooting as taking
place at 32nd Street and Morgan (not 33rd), which is one block north of 32nd Place and
Morgan; she said she saw "two guys running from around the corner [who] stood right
on the corner by my house." Ex. O at 72. Unlike Tanya, Martinez said she saw the
shooter with the aid of lighting from a nearby bank. Tanya, on the other hand, testified
that an obstruction could have blocked her view, "[m]aybe a fence," Ex. V at 32, but
Martinez cited no such obstruction from her vantage point, testifying instead that the
bank's lighting aided her vision.
For these reasons, it is difficult to imagine how Tanya's account would have
made it more likely than not that the jury would have rejected Martinez's testimony. At
most, these were differing accounts of a shooting on the same night around the same
time in question, but from different locations, and describing the location of the shooting
differently. Only one of the accounts—Martinez's—actually included a positive
identification of Aguallo as the shooter. The Court concludes that Aguallo has not
shown that no reasonable juror would have found him guilty based on the new evidence
discussed here. He therefore cannot overcome his procedural default with a
miscarriage of justice claim based upon his actual innocence.
B.
Ineffective assistance of counsel at trial
Aguallo next argues that his counsel at trial was ineffective on seven different
grounds. These include trial counsel's failure to (1) preserve his objections to the
prosecutor's impeachment of defense witnesses; (2) move to suppress as suggestive
Martinez's identification of Aguallo; (3) permit Aguallo to testify at the pre-trial
suppression hearing; (4) interview Martinez before trial and potentially secure a
24
recantation from her; (5) investigate the scene of the shooting and challenge Martinez's
ability to see the shooter; and (6) locate Judy, Rosellen, and Tanya Zawadzki and call
them as witnesses at trial to impeach Martinez. Finally, Aguallo argues that all of his
trial counsel's errors taken together constitute a separate basis for a claim of ineffective
assistance of counsel.
An ineffective assistance of counsel claim requires a showing that "counsel's
performance was deficient, meaning it fell below an 'objective standard of
reasonableness' informed by 'prevailing professional norms,'" and that "counsel's
deficient performance prejudiced [the defendant], meaning that there is a 'reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.'" McElvaney v. Pollard, No. 12-2357, 2013 WL 4423669, at
*3 (7th Cir. Aug. 20, 2013) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694
(1984)). When assessing an attorney's performance, "courts must defer to any strategic
decision the lawyer made that falls within the 'wide range of reasonable professional
assistance,' even if that strategy was ultimately unsuccessful." Shaw v. Wilson,
721 F.3d 908, 914 (7th Cir. 2013) (quoting Strickland, 466 U.S. at 689). A showing of
deficient performance must be accompanied by a showing of prejudice, where "a
defendant must do more than show that his attorney's conduct had 'some conceivable
effect on the outcome.'" Brady v. Pfister, 711 F.3d 818, 823 (7th Cir. 2013) (quoting
Strickland, 466 U.S. at 693). The Court will analyze each of Aguallo's claims of
ineffective assistance of trial counsel in turn.
25
1.
Failure to preserve objection to impeachment of defense
witnesses and argue suggestive show-up procedure
Aguallo contends that his trial counsel "should have objected to the prosecutor's
improper impeachment of the three (3) key defense witnesses with their prior silence
without establishing the proper grounds." Pet. at 6. He further argues that counsel
should have filed a motion to suppress Martinez's identification of Aguallo, because
"Martinez's identification was based on a suggestive show-up." Id. Respondent groups
these claims together and argues that both are procedurally defaulted, because Aguallo
did not assert the claims in his appeal from the denial of his post-conviction petition or in
his PLA to the Illinois Supreme Court. "[I]n the state appellate and supreme courts
petitioner challenged neither the failure to preserve a wrongful-impeachment claim nor
the failure to challenge Martinez's identification as a product of a suggestive show-up."
Ans. at 24 (citing Aguallo's post-conviction briefs). Aguallo responds that respondent's
argument is "totally incorrect . . . because he did raise [both issues] in his pro se petition
for leave to appeal ('PLA')." Repl. at 12.
Respondent is correct that Aguallo did not raise these ineffective assistance
claims in his post-conviction appeal briefs. Even if Aguallo raised the claim in a pro se
PLA on post-conviction review, that does not eliminate the default that occurred by his
failure to assert the claim before the Illinois Appellate Court. A habeas corpus petitioner
is required to "give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established appellate review
process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
As with his two defaulted unfair trial/due process claims, Aguallo again argues
that he can show cause for the default via post-conviction counsel's deficient
26
performance, citing Martinez, 132 S. Ct. at 1319–20. He says it is "obvious" that "postconviction counsel failed to present the claim of appellate counsel's failure to raise the
issue of trial counsel's ineffectiveness for not preserving the wrongful impeachment
theory by objecting to it." Repl. at 13. The Court has already addressed a similar
argument. In this case, ineffective assistance of post-conviction counsel is not a basis
to excuse the default of the claim of ineffective assistance of trial counsel, and Martinez
does not provide a way around this for Aguallo. The evidence supporting a claim of
ineffective assistance by trial counsel for failure to argue suggestiveness was in the trial
record, and thus the issue could have been raised on appeal. Specifically, Martinez
testified that police brought her to the station, where "[t]hey put a spotlight on [Aguallo]
and asked me if it was him and I told them yes it was." Ex. O at 78.
Respondent is also correct that Aguallo did not raise in his post-conviction
petition the claim of ineffective assistance of trial counsel for failure to preserve an
objection to the prosecutor's impeachment of defense witnesses. Aguallo did, however,
make this argument on both direct appeal and in his direct appeal PLA. In his direct
appeal brief, Aguallo argued ineffective assistance of trial counsel as an alternate
ground for review of his trial error claim on improper impeachment. He labeled the
argument ineffective assistance of counsel and contended that "no reasonable strategy
would have included a decision to permit the State to improperly impeach the defense's
key evidence in a closely-balanced case." Ex. B at 21. Counsel's conduct prejudiced
him, Aguallo argued, because the prosecutor "improperly impeached the otherwise
credible challenges the defense presented to the State's evidence." Id. The Illinois
Appellate Court did not address this argument, instead deciding that the underlying trial
27
error issue was waived and that the impeachment was not plain error. In Aguallo's pro
se PLA on direct appeal, he asserted three claims: that (1) he was denied a fair trial
based on the prosecutor's closing statements to the effect that the voluntariness of
Aguallo's confession had been decided as a matter of law; (2) he was denied a fair trial
because the prosecutor improperly impeached the defense witnesses with their silence;
and (3) his ninety-year sentence was excessive. See Ex. E at 3. At the end of
Aguallo's discussion of the second ground listed above, Aguallo wrote: "Alternatively,
this Court should review Mr. Aguallo's claim because trial counsel's failure to make the
requisite objections to the prosecutor's actions amounted to ineffective assistance of
counsel." Ex. E at 11 (punctuation errors omitted).
The Court therefore concludes that Aguallo's argument that his trial counsel was
ineffective for failing to object to the prosecutor's impeachment of three defense
witnesses with their silence is not defaulted. When a habeas corpus petitioner has not
defaulted a claim for purposes of a habeas corpus petition, the Court is permitted to
review the issue on the merits. McGee v. Bartow, 593 F.3d 556, 567 (7th Cir. 2010).
Because the state court did not review this issue on the merits, the review of this Court
is de novo. Harris v. Thompson, 698 F.3d 609, 639 (7th Cir. 2012).
The Court cannot conclude, however, that Aguallo has a viable ineffective
assistance claim based on trial counsel's alleged failure to object to the impeachment.
To begin with, trial counsel did object to the impeachment of one of the three witnesses.
When the prosecutor asked defense witness Michael Sparacino if he had called the FBI
to report exculpatory information about Aguallo, defense counsel objected, and the
objection was overruled. See Ex. P at 40.
28
But even if there had been no objection by trial counsel, Aguallo's ineffective
assistance claim would lack merit. As the Seventh Circuit has noted, an "ineffective
assistance claim based on a failure to object is tied to the admissibility of the underlying
evidence." Hough v. Anderson, 272 F.3d 878, 898 (7th Cir. 2001). "If evidence
admitted without objection was admissible, then the complained of action fails both
prongs of the Strickland test: failing to object to admissible evidence cannot be a
professionally 'unreasonable' action, nor can it prejudice the defendant against whom
the evidence was admitted." Id. In other words, counsel's failure to object to evidence
that was not admitted improperly cannot be proper grounds for an ineffective assistance
of counsel claim. United States v. Stark, 507 F.3d 512, 521 (7th Cir. 2007).
In this case, the Illinois Appellate Court held that "there was no error, much less
plain error" in the trial court's allowing the impeachment, Ex. A at 17, deciding that trial
counsel's decision not to object to all of the impeachment did not prejudice Aguallo.
This determination means, under Hough and Stark, that trial counsel's failure to object
cannot have constituted ineffective assistance of counsel. The Court therefore rejects
Aguallo's claim on the merits.
2.
Failure to permit Aguallo to testify at suppression hearing
Aguallo next argues that his trial counsel should have called him to testify at the
hearing on his motion to suppress his confession in order to show he did not voluntarily
waive his Miranda rights before confessing. Specifically, Aguallo contends that he "did
wish to testify" at the hearing, and that "the Appellate Court unreasonably concluded
that Petitioner's testimony would not have rendered the Motion to Suppress Statements
meritorious." Repl. at 15. Because Aguallo "did not fully understand English," he says,
29
his confession to police "was not voluntarily and intelligently given," and trial counsel's
failure to "call Petitioner to substantiate" that fact constituted ineffective assistance.1 Id.
Respondent argues that Aguallo's testimony would not have changed the
outcome of the motion to suppress. Respondent points out that trial counsel testified at
Aguallo's post-conviction hearing that Aguallo had no difficulty with English in
preparations for trial, nor did Aguallo mention any such difficulty. Also, respondent
argues that the expert's report that the circuit court ordered on post-conviction
corroborated the view that Aguallo was able to understand the Miranda warnings at the
time they were given.
In its decision on Aguallo's appeal on post-conviction, the appellate court upheld
the circuit court's ruling that not calling Aguallo to testify at the suppression hearing did
not amount to ineffective assistance of counsel. The appellate court observed that
Marcus, Aguallo's trial counsel, "testified that he communicated with Aguallo solely in
English and Aguallo participated in his defense." Ex. G at 18. It also noted that Marcus
testified that Aguallo had said he did not want to testify at the hearing. Therefore, the
court could not "conclude that trial counsel was deficient for failing to have Aguallo
testify at the hearing." Id.
As an initial matter, it should be pointed out that Aguallo did present a witness at
trial to testify about his English language ability. His sister, Martha Aguallo-Flores,
testified that in 1998, Aguallo was able to read "[v]ery, very little" English. Ex. P at 15–
16. Aguallo-Flores also testified on cross-examination that at the time of Aguallo's
1
On post-conviction review, Aguallo also argued that his attorney was also deficient for
failing to call Aguallo to testify about the conditions of his confession. However, he
asserts only the English-language argument in his petition and reply here.
30
arrest, his English speaking skills were "not that good," although she also said she
taught him reading by speaking English. Id. at 21–22.
As for the appellate court's decision on post-conviction review of Aguallo's case,
its conclusion that Aguallo's trial counsel was not ineffective for not calling him to testify
at trial about his limited English skills was not unreasonable, considering the available
evidence. As attorney Marcus testified, he had no indication before Aguallo's trial that
Aguallo could not speak or understand English; they two "spent hours" going "over
virtually every word" of Aguallo's confession. Ex. V at 81. Client and counsel
communicated in English, and what is more, Marcus testified that Aguallo told him he
did not want to testify. Though Aguallo testified at post-conviction that he did in fact
want to testify at trial, the circuit court's decision to credit Marcus's testimony over
Aguallo's was not unreasonable. See 28 U.S.C. § 2254(d)(2) (allowing grant of habeas
petition only if state court decision "was based on an unreasonable determination of the
facts in light of the evidence presented"); Burt v. Titlow, No. 12–414, slip op. at 4–5
(U.S. Nov. 5, 2013) ("[A] state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the first
instance." (citation omitted)).
Aguallo also argues that the appellate court unreasonably applied Strickland,
because "[n]o where [sic] in the Illinois Appellate Court's decision does the Court use
the correct standard in Strickland by stating whether the Petitioner showed that there is
a 'Reasonable probability' that the proceedings on the suppression would have been
different." Repl. at 17. Therefore, he says, the appellate court's "decision was contrary
to clearly established federal law." Id.
31
Aguallo is incorrect. The appellate court used the "reasonable probability"
language from Strickland multiple times in its decision. See, e.g., Ex. G at 16 ("[I]n
ineffective assistance claims, a defendant need only show a reasonable probability that
the outcome would have been different."). The Court concludes that the appellate court
employed the correct standard from Strickland in evaluating this claim.
3.
Failure to investigate witness Martinez prior to trial
Next, Aguallo claims that his trial counsel's "[f]ailure to secure a pre-trial
recantation from Martinez" was constitutionally inadequate representation. Repl. at 17.
The basis for his claim is the post-conviction testimony of investigator Swanson; Aguallo
claims that Swanson "obtained the recantation from" Martinez post-trial, id. at 18, and
therefore Marcus would have done the same had he interviewed Martinez before trial.
"Such [a] recantation would obviously completely discredit Martinez's statement /
identification against Petitioner and there is a reasonable probability that the outcome at
trial would have been different." Id. at 19.
Respondent counters that there is "scant support in the record" for this claim.
Ans. at 28. First, respondent observes that Martinez was impeached with the testimony
of three defense witnesses at trial, each of whom claimed that Martinez recanted.
Second, respondent argues that "Martinez's (alleged) eventual recantation to
investigator Swanson—which she refused to support with an affidavit or testimony at the
postconviction hearing—provides only minimal support for the proposition that she
would have recanted years earlier." Id.
The appellate court concluded on post-conviction review that Aguallo's argument
about Martinez's potential recantation upon a pre-trial interview by attorney Marcus was
32
"mere speculation." Ex. G at 18. It pointed out that Swanson's affidavits were
"problematic," as Martinez did not sign either of them, and "because the key detail that
Martinez was not able to identify the shooter was only added to the statement after
Swanson spoke with Aguallo's attorney." Id. at 19. In addition, the appellate court
concluded that even a concrete recantation by Martinez to Swanson did not necessarily
mean she would have recanted prior to trial.
The appellate court's decision on this point was not an unreasonable application
of Strickland. Reasonable jurists could conclude that it was speculative that a pretrial
interview of Martinez by attorney Marcus would have yielded a recantation. It should be
noted that Martinez has never recanted her identification of Aguallo as the shooter on
any kind of record. Though Swanson testified that Martinez told him she could not
identify the shooter, she refused to sign any statement to that effect, and she would not
verify anything she told Swanson in their conversation when she testified at Aguallo's
post-conviction hearing. Considering all the evidence, the appellate court's decision on
this claim was a reasonable application of federal law for purposes of section 2254(d).
4.
Failure to investigate the scene of the crime and challenge Martinez
Aguallo also contends that his trial counsel "failed to investigate the scene of the
shooting." Pet. at 8. In his reply, he expands this argument to include his attorney's
failure to "challenge Martinez's ability to see the shooter." Repl. at 20. Such an
investigation, Aguallo argues, "would have produced evidence to challenge Martinez's
ability to see the shooter," and it "would have been fruitful as to the distance
(measurement) where she stood, lighting at that time of the day (photographs); and
vantage point." Id. at 20–21. Had trial counsel put the fruits of such an investigation
33
into evidence, Aguallo contends, it "would have shown the jury that Martinez's
identification was not wholly reliable." Id. at 21.
Respondent argues that the jury already learned during Martinez's crossexamination about her difficulty with the directions of streets and with street names in
her neighborhood, which she cleared up on redirect examination. Respondent also
argues that investigator Swanson's measurements from Martinez's house to the scene
of the shooting, which showed the distance to be about 100 to 130 more feet than
Martinez estimated, showed nothing more than that "Martinez, like most people, was
unskilled at eyeballing distances." Ans. at 30. As an alternative argument, respondent
contends that not challenging Martinez's identification abilities "was strategically sound."
Id. at 31. Because the defense theory was that Martinez saw someone else do the
shooting and told defense witnesses about it, the defense actually depended on
Martinez's ability to see the shooter.
To begin with, and as the appellate court pointed out on post-conviction review,
Aguallo's trial counsel did visit and investigate the crime scene. Marcus testified at
Aguallo's post-conviction hearing that he went to the scene and took photographs,
though he did not present them at trial because the pictures "weren't particularly helpful
to the defendant." Ex. V at 80. The Court will thus focus on the related argument that
Marcus failed to challenge Martinez with information that he gleaned from visiting the
scene or other investigations. As the appellate court noted, there was already evidence
on record at trial that Martinez had difficulty with directions and street names when she
testified. The jury had knowledge of her trouble with distances without additional
evidence that might have been derived from Marcus's observations of the crime scene.
34
On the other hand, the jury had also heard evidence that Martinez on multiple occasions
identified Aguallo, whom she had known for a decade, as the shooter she saw in the
lights of a nearby bank.
The state appellate court decided that discrepancies in distances that Martinez
reported in her testimony could not show "a probability sufficient to undermine
confidence in the outcome of the trial," and thus that Aguallo was not prejudiced by trial
counsel's actions on this issue. Ex. G at 23. That conclusion was not contrary to or an
unreasonable application of federal law. The Court therefore need not address whether
Marcus's inaction amounted to unreasonably deficient performance.
5.
Failure to locate and interview Zawadzkis and impeach Martinez with
their testimony
Aguallo argues that Marcus should have found the three members of the
Zawadzki family (Judy, Rosellen, and Tanya) and called them as witnesses at trial to
impeach Martinez with their observations from the night of the shooting. Martinez's
testimony, he contends, "was contradicted by two witnesses who counsel never talked
to," Repl. at 22—namely, Judy and Rosellen, both of whom testified at Aguallo's postconviction hearing that they were not with Martinez before the shooting.
As above, the Court need not address respondent's contention that it was sound
trial strategy not to locate and interview members of the Zawadzki family. Rather, the
Court reiterates its conclusion, echoed above in discussing Aguallo's actual innocence
claim, that his attorney's failure to find the Zawadzkis and call them to the stand to
testify did not prejudice him. Though Aguallo contends that Judy and Rosellen
Zawadzki would have contradicted Martinez's testimony, they would have done so, if at
all, only on the issue of who Martinez was with immediately before the shooting.
35
Neither Judy nor Rosellen themselves actually saw the shooting. Aguallo also repeats
his argument here that Tanya Zawadzki's account of the shooting would have helped
challenge Martinez's testimony of her distance from and ability to view the shooter. As
discussed above, Tanya and Martinez viewed the incident from different vantage points,
and Tanya testified that her angle on the shooter was darkened, and possibly
obstructed by a fence. Though Aguallo contends "the result would have been different"
at trial if the Zawadzkis testified, he fails to explain persuasively how their testimony
would have bolstered his defense beyond the evidence already presented in the case.
The Court therefore concludes that the appellate court's decision on this claim was not
unreasonable.
6.
Cumulative ineffective assistance of trial counsel
In his final argument on the actions of his trial counsel, Aguallo contends that
"cumulatively the errors trial counsel committed were too damaging and clearly qualifies
[sic] as a denial of the 6th Amendment right to effective assistance of counsel." Pet. at
8. In making this argument, Aguallo largely reiterates the basics of each of the six trial
counsel claims outlined above and argues they should be received de novo, as they
"present mixed questions of law and fact and no deference can be necessarily made to
the State Appellate Court decision." Repl. at 25. In his answer, respondent points out
several instances of trial counsel's actions that respondent argues were "not deficient,"
including the fact that he "highlighted the circumstances of petitioner's confession,
demonstrated Martinez's difficulty with details, and presented three witnesses who
testified that Martinez admitted framing petitioner." Ans. at 34. Respondent also argues
36
that any cumulative trial counsel deficiency did not prejudice Aguallo, because the
errors Aguallo alleges, if corrected, would not have changed the outcome of the trial.
It is possible for several errors of trial counsel that are not individually prejudicial
to constitute a "pattern of ineffective assistance" under Strickland. Goodman v.
Bertrand, 467 F.3d 1022, 1030 (7th Cir. 2006). "Although a specific error, standing
alone, may be insufficient to undermine the court's confidence in the outcome, multiple
errors together may be sufficient." Hough, 272 F.3d at 891 n.3.
As discussed earlier, some of Aguallo's claims of ineffective assistance of
counsel were defaulted, and on some of his claims, the state courts reasonably found
that counsel's conduct was not deficient. As to the remaining claims, on which the state
courts' findings were premised on the absence of prejudice,2 the cumulative effect is
insufficient to show "a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Strickland, 466 U.S. at
694.
C.
Ineffective assistance of counsel on direct appeal
Finally, Aguallo argues that his counsel on direct appeal should have challenged
the admission of evidence that Martinez was threatened by a member of the same gang
to which Aguallo belonged.3 He argues that "[b]y allowing Dominga Martinez to testify
to inflammatory allegations without challenging the validity of her testimony was an
2
These claims are the failure to interview the Zawadzkis and call them as witnesses,
the failure to try to secure a pretrial recantation from Martinez, and the failure to
impeach Martinez regarding her observation of the crime scene.
3
In his reply, Aguallo also lists nine additional claims of ineffective assistance of
appellate counsel. See Repl. at 26–27. However, though it is unclear, he appears to
set aside discussion of any of those claims after enumerating them and returns solely to
discussing the threat testimony from Martinez. The Court will therefore not evaluate
these added claims. Furthermore, most of the claims are reiterations of points that the
Court has already discussed above.
37
issue [sic] Appellate Counsel should have raised in Petitioner's first appeal as of right."
Pet. at 6. Aguallo contends that an argument on Martinez's mention of gang threats in
her testimony "would have succeeded on appeal," and therefore appellate counsel's
exclusion of the issue was prejudicial to Aguallo. Repl. at 29. Respondent, on the other
hand, argues that the appellate court's decision on post-conviction review of this issue
was reasonable. Its conclusions, respondent says, rested on state evidentiary law and
"should not be second-guessed in federal court." Ans. at 36.
As noted earlier, an "ineffective assistance claim based on a failure to object is
tied to the admissibility of the underlying evidence." Hough, 272 F.3d at 898. The
failure to object to evidence that was not improperly admitted cannot be proper grounds
for an ineffective assistance of counsel claim. Stark, 507 F.3d at 521.
In this case, the state appellate court on post-conviction review analyzed the
issue of the threat testimony on evidentiary grounds. The court noted that the decisions
of trial courts admitting gang-related evidence "will not be reversed absent a clear
abuse of discretion." Ex. G at 24 (citing People v. Williams, 147 Ill. 2d 173, 224,
588 N.E.2d 983, 1002 (1991); People v. Gonzalez, 265 Ill. App. 3d 315, 326,
637 N.E.2d 1135, 1143–44 (1994)). Considering the trial court's allowance of a limited
inquiry into Martinez's demeanor, and that "[n]o testimony regarding the actual threat
was allowed," the appellate court concluded that admission of the evidence was not an
abuse of discretion. Id. at 24–25. Given the fact that the underlying evidence at issue
here was admissible as a matter of state evidence law, appellate counsel's failure to
include the issue on direct appeal was not ineffective assistance. The Court concludes
38
that the appellate court's decision—that "it was not objectively unreasonable for
appellate counsel not to raise this issue on direct appeal," id.—was reasonable.
D.
Certificate of appealability
When a district court enters a final judgment that dismisses a prisoner's habeas
corpus petition, it must issue or deny a certificate of appealability (COA). "[F]ederal
courts of appeals lack jurisdiction to rule on the merits of appeals from habeas
petitioners" in the absence of a COA. Miller–El v. Cockrell, 537 U.S. 322, 336 (2003).
To obtain a COA, the petitioner must make "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). A court should issue a COA if it
determines that "reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further." Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). When a district
court denies a claim on procedural grounds, the petitioner must show both that "jurists
of reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling." Id.
The Court's determinations that review of certain of Aguallo's claims is barred by
procedural default, that the state courts reasonably adjudicated other claims, and that
one of the claims is meritless are not fairly debatable. The Court therefore declines to
issue a certificate of appealability.
39
Conclusion
For the foregoing reasons, the Court denies Aguallo's petition for a writ of habeas
corpus [docket no. 1] and directs the Clerk to enter judgment in favor of the respondent.
The Court also declines to issue a certificate of appealability.
MATTHEW F. KENNELLY
United States District Judge
Date: November 12, 2013
40
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