Rials v. Atchison et al

Filing 25

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the habeas petition is denied. Status hearing of 12/17/2013 is vacated. Civil case terminated. Mailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DARNELL RIALS,

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Petitioner,
v.
RICK HARRINGTON,
Respondent.

No. 12 C 05342
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Petitioner Darnell Rials has filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254,1 challenging his 2006 convictions for first-degree murder and personal
discharge of a weapon. R. 1, Habeas Pet. For the reasons that follow, his petition and
a certificate of appealability are denied.
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). Rials has not rebutted this presumption, so the following
sets forth the facts underlying Rials’s state criminal conviction.
On November 26, 2000, at about 2:30 a.m., Lennie Ramsey and her boyfriend,
Earl Cribbs, heard a loud crash outside their home. People v. Rials, No. 1-06-2873, slip

1

The Court has subject matter jurisdiction under 28 U.S.C. § 2241.

op. at 2 (Ill. App. Ct. Oct. 9, 2008), available at R. 14-1, State’s Exh. A.2 A blue van had
crashed into several of the Ramseys’ cars. Id. Cribbs went to the front door and Ramsey
heard him yell to someone, “Hey, come back here!” Id. Lennie then heard a pop that
sounded like a gunshot. Id. When she went to the front porch, she found Cribbs lying
on the ground and bleeding from his neck or mouth. Id. She screamed and yelled for
her daughter to call 911. Id.
Petitioner Darnell Rials was arrested and charged with first-degree murder for
the shooting of Earl Cribbs. Id. at 1. His first trial (a jury trial) resulted in a mistrial
when the jury could not reach a unanimous verdict. Id. Rials was then re-tried in a
bench trial in 2006. Id.
At the bench trial, the State presented three eyewitnesses to the shooting. The
first, Brent Burchett (Cribbs’s neighbor), testified that he was in his house when he
heard a loud bang from the street. Id. at 2. He looked out his hallway window and saw
that a blue van had crashed into two cars on the street. Id. Burchett went to the living
room in the front and looked out of his bay window, where he saw a man dressed in
dark-colored pants, a light shirt, and a long, tan-brown trench coat walk from the van
toward the sidewalk. Id. He then heard Cribbs shout, “You hit my car,” to which the
man in the trench coat yelled back, “Fuck you.” Id. Burchett recognized the voice as
belonging to a man nicknamed “Caveman Mike,” whom Burchett identified in court as
Rials. Id. According to Burchett, after shouting at Cribbs, Rials whirled, pulled a

2

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

2

chrome shotgun from his coat and fired toward Cribbs’s house. Id. Rials then ran
south, hiding his gun in his coat. Id. After reviewing a photo array, Burchett identified
Rials as the shooter. Id. at 3.
Another man who lived with Burchett, Michael Gayden, testified that he also
heard a crash outside his bedroom window that night. Id. at 2, 3. When he opened the
window, he saw that Cribbs’s car had been hit by a blue van. Id. at 3. Gayden saw a
man, wearing a long, light-brown trench coat, come out of the blue van. Id. Cribbs
shouted at him, “Where you going?” Id. The man in the trench coat answered back,
“Oh, fuck you,” as he turned and fired a shotgun at Cribbs. Id. The shooter then walked
toward Gayden’s building, where he saw Gayden looking through the window and
raised his shotgun toward Gayden. Id. Gayden ducked down and left his bedroom to
look out the dining room window. Id. From the window, he saw the shooter walk across
a vacant lot. Id. After viewing a photo array, Gayden identified Rials, who was known
to him as “Caveman Mike,” as the shooter. Id. Gayden also identified Rials in a lineup
and in court. Id.
The last eyewitness, Willard Thomas, testified that he was watching television
in his house when he heard a loud crash at about 2:30 a.m. Id. at 4. He went to the
front door and saw that a blue-and-white van had crashed into two other cars
belonging to his neighbor. Id. After telling his mother to call the police, Thomas heard
another boom that sounded like a gun. Id. He looked out the front door and saw
“Caveman Mike” standing in front of Cribbs’s home holding a long, silver shotgun. Id.
“Caveman Mike” then turned and started running south. Id. He was wearing a long,
3

dark-colored trench coat. Id. Thomas testified that he had known “Caveman Mike” for
around fifteen years, and he identified Rials in court as “Caveman Mike.” Id.
The State also called several witnesses who did not see the shooting but
provided other evidence connecting Rials to the shooting. Vivian Siddiqui testified that
she was a longtime friend of Rials’s and picked him up at about 11 p.m. on the night
of the shooting. Id. at 4. Rials was wearing a tan-and-white outfit and a long, tan coat.
Id. Siddiqui dropped Rials off about two hours later and did not see him until around
3 p.m. at his niece’s house, where he seemed upset and afraid. Id. at 4-5. Willie Mae
Shorter testified that Rials had been an occasional customer at her bar. Id. at 5.
Shorter testified that on the night of the shooting, Rials came into the bar and argued
with the bartender. Id. He stayed in the bar for awhile, but left at about 12 a.m. or 1
a.m. Id. He drove away in a blue Chevrolet van. Id. Finally, the responding police
officers testified that the crashed blue van had a “peeled” steering wheel, which
allowed someone to start the vehicle by bypassing the ignition. Id. There were no keys
in the van. Id. After the van was impounded and processed, 31 latent prints were
recovered in the van, but none of them matched Rials’s prints. Id.
In his defense, Rials impeached the eyewitnesses. In exchange for testimony in
Rials’s case, Burchett pled guilty to a federal gun charge and was sentenced to the
minimum term of 15 years’ imprisonment. Id. at 3. Burchett understood that in
exchange for his truthful testimony in this case, the U.S. Attorney’s Office had the
discretion to recommend a further reduced sentence on the gun charge. Id. As for
Gayden, he had two prior felony convictions for possession of a controlled substance.
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Id. And Gayden also had a pending criminal case in which a bond forfeiture and a nobail warrant were issued. Id. But the day after the shooting, a motion to vacate the
bond forfeiture was filed, which the court granted. Id. The parties also stipulated that
a detective would have testified that when she interviewed Gayden about the shooting
three weeks afterward, Gayden never told her that the shooter raised the shotgun in
his direction, pointed the shotgun up toward Gayden while fleeing, or even that
Gayden opened his window and stuck his head outside to take a look. Id. at 3-4.
Finally, the defense called a detective who testified that he spoke with Thomas on the
day of the shooting; Thomas told the detective that he saw the shooter and gave a
general description, but did not name the shooter. Id. at 5. It was not until April
2004—three-and-a-half years after the shooting—that Thomas named “Caveman Mike”
as the shooter after Thomas was approached by police officers at his workplace. Id. at
4.
At the conclusion of Rials’s bench trial, the trial judge found Rials guilty of firstdegree murder and personal discharge of a weapon, and sentenced him to consecutive
sentences of 35 years and 25 years, respectively. Id. at 6; Habeas Pet. at 1.
After state direct and post-conviction appeals, Rials filed a federal habeas
petition in this Court. In his petition, he brings four claims. First, the trial court
allegedly convicted him on “materially untrue assumptions or misinformation when it
failed to correctly recall the evidence during its determination of guilt.” Habeas Pet.
at 5. Second, Rials claims that the trial court erroneously decided that it needed to
hear his testimony at trial before it could admit or bar evidence of his prior convictions
5

for impeachment purposes, which denied him his constitutional right to testify in his
defense. Id. Third, Rials argues that the trial court erroneously permitted the State to
present prejudicial “other crimes” evidence. Id. at 6. Finally, Rials asserts that his trial
counsel was constitutionally ineffective for failing to forensically test a reddish-brown
stain and a footwear impression that were found in the blue van at the crime scene. Id.
The State has asked this Court to deny Rials’s petition. R. 13, State’s Resp.
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 omitted). If a petitioner has failed to properly
assert his federal claims at each level of state review, his claims are procedurally
defaulted. Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir. 2009). 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). But a habeas petitioner may overcome procedural default either by
demonstrating cause for the default and actual prejudice from the default, or by
6

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). Relevant here, a fundamental miscarriage of
justice occurs when a habeas petitioner establishes that “a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier,
477 U.S. 478, 496 (1986). Thus, procedural default, although otherwise an absolute
prerequisite to federal habeas review, may be excused in certain circumstances.
If the petitioner successfully runs the procedural-default gauntlet, then a federal
court can consider the merits of his federal habeas claims. 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 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 just because a federal court independently concludes that the relevant state-court
decision applied clearly established federal law erroneously does not mean that the
court may grant the writ; rather, the state court’s application must be objectively
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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 Rials’s habeas petition, the State argues that each claim is
procedurally defaulted or alternatively meritless. See State’s Resp. at 16-35. It is now
time to review each habeas claim.
A. Insufficiency of the Evidence
Rials first asserts that the trial court erred by convicting him despite incorrectly
summarizing the evidence against him. Habeas Pet. at 5. Specifically, according to
Rials, the trial judge believed that Willard Thomas had identified Rials to the police
soon after the shooting, even though Thomas actually identified Rials three-and-a-half
years later. See id. at 8. After Rials raised this argument on his direct appeal, the state
appellate court rejected the argument, viewing it as a challenge to the sufficiency of the
evidence against him at trial and rejecting it. See Rials, No. 1-06-2873, slip op. at 6-7.
Rials argues that this too was error. Habeas Pet. at 5.
At the outset, the state appellate court was not wrong in viewing Rials’s
challenge as an insufficient-evidence argument. Although the transcript of the trial
judge’s ruling shows that he did mix up the timing of Thomas’s identification of Rials
specifically as “Caveman Mike” to the police, he did not convict Rials solely on the basis
of Thomas’s identification:
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The State argues flight delay. I don’t know when Mr. Rials went to Los Angeles.
This case is one that you look at the totality of the circumstances. Each one of
them has identified the person as the shooter or at least seeing him with the
shotgun just outside of Mr. Cribs’ home wearing the outfit of the long trench
coat and light colored pants that two have identified him as Caveman Mike.
R. 14-28, State’s Exh. BB at NN 54 (emphasis added). To the contrary, the trial judge
expressly looked to the entirety of the evidence, including how all of the eyewitnesses
identified Rials as the shooter. And in fact, the judge even recognized that Thomas may
have been reluctant to participate in the investigation, and discounted Thomas’s
testimony by at least a little bit. See id. (“Mr. Thomas did not want to get involved. I
would take that, as I stated, if he was alone, it would be a very difficult identification.
He did come and he does make that identification.”). For good measure, the judge
finally explained that he was finding Rials guilty because “the State has, in the totality
of the circumstances . . . met their burden.” Id. So the appellate court correctly rejected
Rials’s argument that the trial judge failed to accurately recall the timing of Thomas’s
identification, and correctly viewed the argument as a challenge to the sufficiency of
all of the evidence against him.
The sufficiency argument fails to justify habeas relief. Under Jackson v.
Virginia, evidence, viewed in the light most favorable to the State, is sufficient to
support a conviction so long as any rational trier of fact could find that the evidence
proves the essential elements of the offense beyond a reasonable doubt. 443 U.S. 307,
319 (1979). This is the exact rule that the state appellate court applied, even if it did
not cite Jackson directly. See Rials, No. 1-06-2873, slip op. at 7 (citing People v.
Pearson, 756 N.E.2d 438, 442 (Ill. App. Ct. 2001), for the principle that “a reviewing
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court will uphold a conviction if, after viewing the evidence in the light most favorable
to the State, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt”). The state appellate court applied the correct legal
rule to Rials’s challenge, so its decision was not contrary to clearly established
Supreme Court law. Rials has not met the first prong of AEDPA.
The question then becomes whether the state appellate court unreasonably
applied Jackson. More precisely, whether it was objectively unreasonable for the state
appellate court to conclude that any rational trier of fact, after viewing the evidence
in the light most favorable to the State, could have found the essential elements of
first-degree murder beyond a reasonable doubt. McFowler v. Jaimet, 349 F.3d 436, 447
(7th Cir. 2003). At Rials’s bench trial, the evidence consisted of three eyewitnesses—all
neighbors of Cribbs—who testified that they each saw and/or heard a man crash a blue
van into Cribbs’s car, curse at Cribbs, and fatally shoot Cribbs with a shotgun. Rials,
No. 1-06-2873, slip op. at 2-4. They each saw that he wore a long trench coat (two
people described it as tan or light-brown, while Thomas described it as dark-colored).
Id. at 2-4. And they each recognized the shooter as “Caveman Mike,” whom they
identified as Rials in court and in lineups and photo arrays. Id. at 2-4. The State also
presented two other witnesses—including one of Rials’s friends—who testified that
Rials was wearing a long tan trench coat and drove a blue van that night. Id. at 4-5.
From this evidence (viewed in the light most favorable to the State), the state appellate
court could very reasonably have concluded that a rational factfinder could find that
Rials killed Cribbs with the intent to kill or do great bodily harm to Cribbs without
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lawful justification, even after hearing the impeachment of the three eyewitnesses at
trial. See 720 ILCS 5/9-1(a) (laying out the elements of first-degree murder); cf.
Cabrera v. Hinsley, 324 F.3d 527, 534 (7th Cir. 2003) (explaining that intent in Illinois
“may be proved circumstantially by inferences reasonably drawn from the
circumstances of the defendant’s conduct”). Because the state appellate court did not
unreasonably apply Jackson to the evidence at Rials’s trial, Rials’s first habeas claim
fails.
B. Denial of Right to Testify
Rials did not testify at trial. In his second habeas claim, Rials argues that the
trial court denied him his constitutional right to testify in his defense by reserving
ruling on his motion in limine (which sought exclusion of his prior convictions for
possession of a stolen vehicle and for burglary) until after Rials took the stand. See
Habeas Pet. at 5, 14. This claim can be construed in two different ways. First, Rials
might be arguing that the trial judge should have granted his motion in limine.
Alternatively, Rials could be arguing that the trial judge should have decided his
motion in limine before he decided not to testify, and this failure to decide the motion
ahead of time violated due process by denying Rials the opportunity to make an
informed decision whether to testify. The Court discusses each construction of Rials’s
habeas claim below.
1. Procedural Default
To the extent that Rials is asserting that the trial judge should have granted his
motion in limine to exclude his prior convictions, that claim is procedurally defaulted.
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Generally, a federal court may not review a habeas claim if the state court’s prior
rejection of that claim was based on an adequate and independent state law ground.
Promotor v. Pollard, 628 F.3d 878, 885 (7th Cir. 2010). A state law procedural ground
is considered “independent” when the state court actually relied on the procedural bar
(and not the claim’s merits) as an independent basis for rejecting the habeas claim.
Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010). But if the state court’s rejection
appears to rest primarily on the resolution of the merits of the habeas claim, or is
interwoven with the merits and does not clearly and expressly rely on the procedural
default, then the state law ground is not independent. Moore v. Bryant, 295 F.3d 771,
774 (7th Cir. 2002). Here, the state appellate court on direct appeal rejected this
construction of Rials’s habeas claim by straightforwardly applying an Illinois
procedural rule: a defendant’s failure to testify eliminates a trial court’s refusal to rule
as a reviewable issue. See Rials, No. 1-06-2873, slip op. at 7 (quoting People v. Averett,
886 N.E.2d 1123, 1139 (Ill. App. Ct. 2008)). This procedural rule was the principal
ground given for rejecting the claim; the appellate court never reached the claim’s
merits. See id. Although the appellate court did go on to review Rials’s claim for plain
error, “an Illinois court does not reach the merits of a claim simply by reviewing it for
plain error.” Miranda v. Leibach, 394 F.3d 984, 992 (7th Cir. 2005); see also Rodriguez
v. McAdory, 318 F.3d 733, 735 (7th Cir. 2003). So the state appellate court never
reached the merits of this claim at all, much less intertwined the merits with a state
procedural rule. The state procedural rule was therefore an independent bar for
procedural-default purposes.
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The Illinois rule was also an adequate basis to reject the claim because it was
a firmly established and regularly followed state practice at the time it was applied.
See Smith, 598 F.3d at 382. Averett—the case that the appellate court applied on direct
review—itself cited a long string of cases going back to 1974 in support for the principle
that a defendant’s failure to testify eliminates a circuit court’s refusal to rule on the
admissibility of prior convictions as a reviewable issue. See 886 N.E.2d at 1140. And
one of those cases cited, People v. Phillips, explained in turn that Illinois appellate
courts have uniformly applied that rule at each opportunity. 864 N.E.2d 823, 828 (Ill.
App. Ct. 2007) (“Our supreme court has never addressed the question of how to proceed
on review when the trial court refuses to rule on admissibility of prior convictions and
the defendant then declines to testify. But our appellate courts have. Six times. On
each of those six occasions the court has held the defendant’s failure to testify
eliminates the trial court’s refusal to rule as a reviewable issue.”). The procedural rule
that the appellate court applied in direct review was therefore a firmly established and
regularly followed state practice at the time of the appellate court opinion, which
issued in 2008. So if Rials is claiming that the trial judge should have granted his
motion in limine, that claim is procedurally defaulted because it was denied by the
state appellate court on an adequate and independent state-law ground.
Alternatively, if Rials is claiming that his trial judge’s failure to decide his
motion in limine deprived him of an informed decision not to testify, that claim is also
procedurally defaulted, but for a different reason: it was never raised at trial, much
less in a full round of state review. In Rials’s first trial, his counsel had two chances to
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orally argue the merits of his motion, but never asserted that delaying a decision on
the motion would unfairly impact Rials’s ability to decide whether to testify. See R. 1420, State’s Exh. T at W-3-10. And after the trial judge decided to reserve ruling on
Rials’s motion in limine, neither Rials nor his counsel argued that delay would affect
Rials’s ability to decide whether to testify. See id. at W-10-11. Even when the trial
judge at his first trial went through an extensive colloquy with Rials—twice—about
whether he was voluntarily and intelligently waiving his right to testify, Rials never
said that the judge was impairing his right to intelligent waiver. See R. 14-24, State’s
Exh. X at FF-129-31; R. 14-26, State’s Exh. Z at GG-10-13. Indeed, the first trial judge
asked Rials if he had any questions about his right to testify or not testify, and Rials
said he had none. State’s Exh. Z at GG-13. In his retrial, moreover, Rials again told the
new trial judge that he was exercising his right not to testify; he never said that he
needed an answer to his motion in limine before deciding whether to testify. See State’s
Exh. BB at NN 3. Nor has Rials himself pointed to any occasion at either of his two
trials where he or his attorney argued that they needed an answer to his motion right
away. Accordingly, by never raising this claim at either trial, Rials defaulted it from
the get-go. See, e.g., Woods, 589 F.3d at 373 (“Before seeking habeas relief, a petitioner
must fairly present his federal claims at each level of the state’s courts for their
review.” (emphasis added)).
Although both constructions of Rials’s habeas claim are procedurally defaulted,
the default can be excused if Rials can establish cause and prejudice for the default, or
if he can establish that the failure to consider the defaulted claims will result in a
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fundamental miscarriage of justice. Promotor, 628 F.3d at 885. Rials does not go down
the cause-and-prejudice route, but his reply brief, when liberally construed, does assert
that he is entitled to the fundamental-miscarriage-of-justice exception. See R. 19 at 2
¶ 5.
Under this exception, habeas claims of actual innocence may serve as
“gateway[s] through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits,” Herrera v. Collins, 506 U.S. 390, 404
(1993), when petitioners accompany their claims of innocence with assertions of
constitutional errors at trial. Schlup v. Delo, 513 U.S. 298, 316 (1995). And construed
broadly, that is what Rials does here: as in Schlup, Rials contends that his trial was
rife with constitutional errors that are now procedurally barred. See id. at 306, 316; see
also R. 19 at 2 ¶ 5 (citing Schlup). Thus, in order for this Court to review these
procedurally barred claims, Rials must show that enforcing the procedural default
would lead to a “fundamental miscarriage of justice.” Gomez v. Jaimet, 350 F.3d 673,
679 (7th Cir. 2003). Put differently, Rials “must show that it is more likely than not
that no reasonable juror would have convicted him in the light of the new evidence.”
Schlup, 513 U.S. at 327. Although a claim of actual innocence is “rarely successful,” id.
at 324, absolute certainty about Rials’s guilt or innocence is not required to satisfy his
burden at the gateway stage, House, 547 U.S. at 538. And the proper inquiry is not
whether a particular juror would have the power to convict in light of the old and new
evidence, but rather “how reasonable jurors would react to the overall, newly
supplemented record.” Id.
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To succeed on an actual-innocence gateway argument, habeas petitioners must
have enough evidence to meet the demanding standard. By way of examples (and
examples only), such evidence could include “documentary, biological (DNA), or other
powerful evidence: perhaps some non-relative who placed him out of the city, with
credit card slips, photographs, and phone logs to back up the claim.” Hayes v.
Battaglia, 403 F.3d 935, 938 (7th Cir. 2005). But here, Rials has produced no new
evidence of his actual innocence, so the Court is left with the evidence the State
mustered against him at his retrial. And as discussed above, a reasonable juror could
have convicted Rials based on that evidence—which included three eyewitnesses who
each saw and/or heard Rials shoot Cribbs and who each identified Rials to the police,
and two other witnesses who corroborated the descriptions of Rials’s clothing and
vehicle—even after hearing the impeachment of the eyewitnesses. So Rials’s showing
of actual innocence falls short of the high bar that Schlup has set. See McQuiggin v.
Perkins, — U.S. —, 133 S. Ct. 1924, 1936 (2013) (“We stress once again that the Schlup
standard is demanding. The gateway should open only when a petition presents
evidence of innocence so strong that a court cannot have confidence in the outcome of
the trial unless the court is also satisfied that the trial was free of nonharmless
constitutional error.” (internal quotation marks omitted)). And because Rials’s evidence
does not meet the Schlup standard, his evidence by definition cannot meet the high
standard for a standalone claim of actual innocence, even assuming that Rials might

16

have been able to bring such a claim.3 See Herrera, 506 U.S. at 417; see also Schlup,
513 U.S. at 316 (“Consequently, Schlup’s evidence of innocence need carry less of a
burden [than the evidence of actual innocence in Herrera].”). Rials’s showing of actual
innocence is therefore meritless and does not excuse his various procedural defaults;
the miscarriage-of-justice exception does not apply.
2. Merits of the Reserved-Ruling Claim
Even if Rials had not defaulted his claim that the trial judge should not have
reserved ruling on his motion in limine, he would still not be entitled to habeas relief,
because the trial judge’s decision did not violate clearly established federal law. See,
e.g., Muth v. Frank, 412 F.3d 808, 818 (7th Cir. 2005) (“Allen Muth is not entitled to
a writ of habeas corpus. There was no clearly established federal law in 2001 that
would have made his conviction . . . unconstitutional.”). Rials has cited to no Supreme
3

A habeas claim of actual innocence is not necessarily noncognizable on habeas review.
In Herrera, a majority of the Supreme Court reasoned that its “federal habeas cases have
treated claims of ‘actual innocence,’ not as an independent constitutional claim, but as a basis
upon which a habeas petitioner may have an independent constitutional claim considered on
the merits even though his habeas petition would otherwise be regarded as successive or
abusive.” 506 U.S. at 416-17. But the Supreme Court did not hold that no claim of actual
innocence can ever be cognizable on habeas review. Rather, the Supreme Court “assume[d], for
the sake of argument in deciding this case, that in a capital case a truly persuasive
demonstration of ‘actual innocence’ made after trial would render the execution of a defendant
unconstitutional.” Id. at 417 (internal quotation marks omitted). Having made that
assumption, the Supreme Court set the threshold showing for that hypothetical “truly
persuasive demonstration” at an “extraordinarily high” level, and held that “[t]he showing
made by petitioner in this case falls far short of any such threshold.” Id. (internal quotation
marks omitted); see also Milone v. Camp, 22 F.3d 693, 699-700 (7th Cir. 1994) (“The Supreme
Court appears to be willing to hold that it is unconstitutional to execute a ‘legally and factually
innocent person,’ while at the same time suggesting that the petitioner’s evidentiary burden
in such a case ‘would necessarily be extraordinarily high.’”). Thus, it is not necessarily the case
that actual innocence claims, in noncapital cases, are not cognizable at all. Rather, the
Supreme Court has not yet definitively answered the question. But in any event, Rials has not
asserted a claim of actual innocence as a standalone basis for habeas relief.

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Court case holding that a defendant’s waiver of his right to testify in his defense is not
informed and voluntary if a trial court reserves ruling on prior-convictions
impeachment until after he testifies. Nor has this Court been able to locate one with
that precise holding.
In fact, the closest cases are Luce v. United States, 469 U.S. 38 (1984), and Ohler
v. United States, 529 U.S. 753 (2000), which, if anything, go the other way. Luce
actually held that a defendant must testify in order to raise and preserve for review a
claim of improper impeachment with a prior conviction. 469 U.S. at 43. In so holding,
the Supreme Court reasoned that requiring a defendant to testify allows the trial judge
to balance the prejudicial impact of the prior conviction against its probative value in
real-time by eliminating speculation about the defendant’s testimony, see id. at 41-42,
and the same goal is accomplished by an Illinois state-court practice of reserving an in
limine ruling until the defendant testifies. Similarly, in Ohler, the Supreme Court held
that a defendant who testifies but decides to draw out the sting of a prior conviction
by introducing it on direct examination may not on appeal claim that the admission of
the prior conviction was error. 529 U.S. at 760. In fact, Ohler even argued that
applying this rule unconstitutionally burdened her right to testify, but the Supreme
Court reasoned that this rule did not prevent her from taking the stand and presenting
any admissible testimony that she wanted to. Id. at 759. Although the Supreme Court
recognized that prior-convictions impeachment may deter a defendant from taking the
stand, it was unmoved: “Again, it is not thought inconsistent with the enlightened
administration of criminal justice to require the defendant to weigh such pros and cons
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[like the possibility of impeachment with prior convictions] in deciding whether to
testify.” Id. at 759-60 (internal quotation mark omitted). So if the Supreme Court did
not buy the argument that certain prior-convictions impeachment may impermissibly
deter a defendant from taking the stand, it is unlikely to buy the argument that merely
possible impeachment unconstitutionally burdens a defendant’s choice to testify (or
not). Luce and Ohler therefore demonstrate that there is no clearly established federal
law that requires a trial judge to decide whether a defendant’s prior convictions are
admissible before he testifies. Accordingly, Rials’s habeas claim therefore fails on the
merits, even if it was not procedurally defaulted without excuse.
C. Erroneous Admission of “Peeled” Steering Column
Third, Rials asserts that the trial court violated his due process rights by
erroneously admitting “other crimes” evidence at his trial. Habeas Pet. at 6.
Specifically, the trial judge allowed the State to introduce evidence that the crashed
blue van had a “peeled” steering column. Id. at 17. Rials believes this evidence was
overly prejudicial because it implied that Rials stole the van by bypassing the van’s
ignition. See id. But that amounts to an argument that the state court misapplied a
state rule of evidence similar to Federal Rule of Evidence 403, and a federal habeas
court may not review errors of exclusively state law, including state evidentiary law.
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Instead, “[s]omething worse than a
garden-variety violation of [evidentiary rules] must be shown to cross the
constitutional threshold.” Watkins v. Meloy, 95 F.3d 4, 7 (7th Cir. 1996); see also
Anderson v. Sternes, 243 F.3d 1049, 1055 (7th Cir. 2001) (“Rather, we must consider
19

whether the alleged unfair prejudice stemming from this evidence firmly convinces us
‘that but for the errors, the outcome of the trial probably would have been different,’
thus denying the petitioner his due process right to a fundamentally fair trial.”). In
other words, the evidence must be so unreliable for its purpose that the admission of
the evidence rises to a due process violation. This is a hard showing to make, as the
Seventh Circuit has emphasized: “If the evidence is probative, it will be very difficult
to find a ground for requiring as a matter of constitutional law that it be excluded; and
if it is not probative, it will be hard to show how the defendant was hurt by its
admission.” Watkins, 95 F.3d at 7.
Rials has not cleared this high bar. The state appellate court, in rejecting this
claim, held that any error was harmless in light of the admissible evidence against
him. People v. Rials, No. 1-06-2873, slip op. at 8. This conclusion was not objectively
unreasonable, especially in light of the limited prejudicial impact and limited purpose
of the steering-column evidence. As to the prejudicial impact, given that Rials was on
trial for first-degree murder, any risk of improper character-smearing was minimal.
It was extremely unlikely that the trial judge convicted Rials for murdering Cribbs
merely because the “peeled” steering column evidence suggested that Rials was a car
thief. And more importantly, the State used that evidence not to smear Rials’s
credibility or character, but for a very specific purpose. In closing, the State argued
that the steering column indicated that the blue van was stolen, which explained why
there were 31 unmatched fingerprints recovered from the van but no fingerprints at
all recovered from the area around the driver’s seat: Rials stole the car and either
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wiped the area clean before getting out of the car or was wearing gloves. See State’s
Exh. BB at NN 44-45 (“Just because there’s no prints found in the driver’s area, doesn’t
mean somebody wasn’t driving the van and doesn’t mean it wasn’t him. It just means
that it was a van that was stripped and somebody wiped down the area or was wearing
gloves or was extra careful because it wasn’t their van.”). In other words, the State
used the steering-column evidence to rebut Rials’s defense—namely, that the 31
unmatched fingerprints showed that he was never in the van and at the scene of the
crime (more on this later). This limited purpose did not overly prejudice Rials at trial.
Cf. Anderson, 243 F.3d at 1055 (“If we were to do the balance, we would be hard
pressed to conclude that the probative value flowing from the admitted weapons and
ammunition was substantially outweighed by unfair prejudice, especially since in
discussing the weapons during trial and in closing argument, the government focused
only on its theory about the relevance of the weapons; the government did not argue
that Anderson was a bad person because he kept guns . . . .”). As a result, the appellate
court was not objectively unreasonable in holding that the admission of the steeringcolumn evidence was not overly prejudicial. The evidence’s admission did not violate
Rials’s due process rights.
D. Ineffective Assistance of Trial Counsel
Finally, Rials argues that his trial counsel was constitutionally ineffective for
failing to submit a reddish-brown stain and a footwear impression found in the crashed
blue van for forensic testing. Habeas Pet. at 6, 22. Had his attorney submitted the

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evidence for testing, Rials claims that it would have exculpated him by excluding him
from the inside of the van (and thus the crime scene). Id. at 22.
To receive habeas relief on the merits of his ineffective assistance of counsel
claim, Rials must meet the familiar two-prong, performance-and-prejudice standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, he must
show that his trial counsel’s performance fell below an objective standard of
reasonableness and that prejudice resulted. Id. at 687-88. 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; see also United States v. Lathrop, 634 F.3d 931, 937 (7th Cir.
2011) (“Trial tactics are a matter of professional judgment, and . . . we will not play
Monday or Tuesday morning quarterback when reviewing claims that an attorney
rendered constitutionally deficient representation in making decisions on how to best
handle a case.” (alteration in original) (internal quotation marks omitted)). On habeas
review, this inquiry is doubly deferential: not only must the Court presume that “the
challenged action might be considered sound trial strategy,” Strickland, 466 U.S. at
689 (internal quotation marks omitted), but under AEDPA this Court must also defer

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to the state court’s application of Strickland unless it is objectively unreasonable,4 see
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
On the first prong, reasonableness of performance, the state appellate court that
examined this claim on post-conviction review concluded that Rials’s counsel’s decision
not to request forensic testing on the stain or footprint was a matter of sound trial
strategy. Rials, No. 1-10-0123, slip op. ¶¶ 18-19. It noted that there was an equal
chance that the testing could have matched Rials rather than excluded him (thus
putting him at the scene of the crime). Id. ¶ 19. And it reasoned that counsel instead
chose a reasonable strategy of attacking the credibility of the State’s witnesses, some
of whom had criminal records, cut a deal in exchange for their testimony, or were
inconsistent in their eyewitness accounts to the police. See id. This conclusion was not
objectively unreasonable. Although the State did not procure an affidavit from Rials’s
attorney in either the state post-conviction or federal habeas proceedings, thus leaving
the state appellate court to infer that the decision not to test the stain and the footprint
was actually a strategic decision by Rials’s trial counsel, that inference was fair in light
of two parts of the record. First, Rials submitted an unsworn affidavit along with his
pro se post-conviction petition where he averred that he asked his counsel to test the
evidence, but his counsel refused. See R. 14-8, State’s Exh. H at C050. Even if this

4

The state appellate court reviewing this claim applied the Strickland test, so any
argument by Rials that the state court’s decision was contrary to clearly established Supreme
Court law fails. See People v. Rials, No. 1-10-0123, slip op. ¶ 17 (Ill. App. Ct. Nov. 3, 2011),
available at R. 14-13, State’s Exh. M (“Specifically, a defendant alleging ineffective assistance
of counsel must show that it is arguable that counsel's performance fell below an objective
standard of reasonableness, and arguable that defendant was prejudiced.”).

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Court were to overlook the fact that Rials did not execute his affidavit under the
penalty of perjury, the affidavit itself avers that “Counsel . . . focused on the weakness
in the state[’]s case and did[ ]not effectively pursue the DNA evidence at my
inst[r]uctions.” Id. So Rials himself admits that his counsel strategically chose to focus
on the weaknesses of the State’s case-in-chief, which meant impeaching each of the
three eyewitnesses (as discussed above) and arguing that the 31 unmatched
fingerprints excluded Rials from the crime scene. And second, that the decision not to
forensically test the stain and impression was strategic is also borne out by trial
counsel’s closing argument, part of which actually attacked the State’s failure to test
the stain and the footprint to argue that there was insufficient physical evidence to
convict Rials and to argue that the investigation was shoddily done:
Let me just talk briefly about that van because when we talk about
corroboration, we talk about physical evidence that can corroborate things. Well,
the physical evidence in this case, there were latent prints that were recovered
that were suitable for comparison. They were compared to the inked print of Mr.
Michael Rials. There was no match whatsoever. These were construction
workers hats. There were coolers. There were cassette tape containers, various
items, screwdrivers, you name it inside the car on the console, all over. Did you
think that perhaps the detectives would have run it through? No, that’s not
their policy. They don’t do this. You know that’s not all, because there was a
reddish brown stain, that’s the term they usually use for blood. There was some
blood evidence in that van. It wasn’t tested. There was a foot print in that van
and as you heard through stipulation, [J]udge that foot print comparison could
have been compared to other foot prints, but that was never done. No weapon
was ever recovered in this case. No ballistics were recovered in this case. The
detective doesn’t know where the van is now. That was probably destroyed.
What does the State have?
State’s Exh. BB at NN 40-41. So the record backs up the state appellate court’s
conclusion that Rials’s attorney made a reasonable strategic decision to focus on the
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weaknesses in the State’s case-in-chief, especially in light of the chance that the
evidence could have matched Rials.
The state appellate court also concluded that even if Rials’s counsel’s strategy
was unreasonable, Rials suffered no prejudice because had the stain and footprint been
tested and came back negative for Rials, that evidence would at most have been
cumulative to the 31 unmatched fingerprints already taken from the van, especially
in light of the weight of the other evidence against him. See id. ¶¶ 19-22. This too was
not an unreasonable decision. Evidence is cumulative when it “goes to prove what has
already been established by other evidence,” Mosley v. Atchison, 689 F.3d 838, 848 (7th
Cir. 2012) (internal quotation marks omitted), and here the 31 negative fingerprints
had already placed Rials outside the van. A negative test on the other evidence would
have just meant the same thing as the fingerprints. It might have been a different
story had the stain and footprint been found in the driver’s area specifically—then, a
negative test result might have helped to exclude Rials (or point the finger at someone
else) from the driver’s seat where no fingerprint was ever lifted—but there is no
evidence of that. See State’s Exh. BB at MM 176-77 (stipulating only that the forensic
investigator found the stain and footprint “in the van”). Indeed, because the State had
the burden of proof and never ran its own tests on the stain and footprint (and thus
had no positive test results to use against Rials in its case-in-chief), Rials was already
in as good a position as he would have been had he tested the evidence himself with a
negative result. The only way he could have improved his position is if he had tested
the evidence and it matched someone else who actually had prior connections to Cribbs
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or a motive to kill Cribbs. But Rials has never made that argument, as speculative as
it is, at trial or otherwise. And that still leaves the strong evidence against him at trial,
which the appellate court recognized. Overall, the appellate court was not objectively
unreasonable in concluding that Rials suffered no prejudice, even had his counsel been
ineffective in performance, so his last habeas claim also fails.
IV. Conclusion
For the reasons discussed above, Rials’s habeas petition [R. 1] is denied.
If Rials 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
district 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 encouragement to proceed further.” MillerEl v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks omitted). For the
reasons discussed above, Rials has not made that 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 Rials deserves
encouragement to proceed further with his habeas claims. See Rutledge v. United
26

States, 230 F.3d 1041, 1047 (7th Cir. 2000). Not only were the procedural defaults
proven by the record, and no exceptions applicable, but the claims that were decided
on the merits were also 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: December 16, 2013

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