Birdo v. Hardy et al

Filing 33

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 12/12/2013:Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
United States of America ex rel.
KEVIN BIRDO
Petitioner,
v.
RANDY PFISTER, Warden,
Pontiac Correctional Center,1

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No. 12 C 05748

Judge John J. Tharp, Jr.

Respondent.

MEMORANDUM OPINION AND ORDER
Petitioner Kevin Birdo is currently incarcerated at the Pontiac Correctional Center in
Pontiac, Illinois, where he is serving a sentence of seven and a half years for aggravated battery
of a peace officer. Birdo now brings a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, in which he raises four grounds for relief: (A) improper denial of his motion for
substitution of the trial judge; (B) violation of Illinois Supreme Court Rule 13 when his public
defenders did not individually withdraw from his case and notify Birdo of their withdrawals; (C)
violation of Birdo’s right to confrontation when the trial judge sustained the prosecutor’s
objection to a particular question; and (D) ineffective assistance of counsel as to Birdo’s trial
attorney for failing to investigate a potentially exculpatory witness. For the reasons explained
here, the Court denies the petition with respect to Claims A, B, and C, but concludes that Birdo
may be entitled to an evidentiary hearing of limited scope on his claim for ineffective assistance
of counsel (Claim D).
1

The current warden of the Pontiac Correctional Center has been substituted for the
original respondent, Marcus Hardy. See Fed. R. Civ. P. 25(d); Rule 2(a) of the Rules Governing
Section 2254 Cases in the United States District Courts.

I.

Background

A. Facts2
On March 27, 2000, a grand jury indicted Birdo for aggravated battery pursuant to 720
ILCS 5/12-4(b)(6). The charge derived from an incident during the transfer of inmates at the
Logan Correctional Center in Lincoln, Illinois on January 12, 2000. Birdo was charged with
punching a correctional officer several times and spitting in his face next to the Menard
Correctional Center transfer bus while it was stopped at Logan. Birdo was tried and convicted of
aggravated battery twice by a jury. Logan County assistant public defender Jeff Page was
appointed to represent him at both trials.
The First Trial. Prior to Birdo’s first trial, Page submitted a disclosure to the court
listing five witnesses, attaching written statements from four inmates (Maurice Hardaway,3
Mauricio Rivas,4 Jason Bartman,5 and Lonnie Henry6), and providing the name of Correctional

2

The facts in this opinion are principally derived from the state appellate court’s opinion
affirming the trial court’s denial of Birdo’s petition for post-conviction relief. People v. Birdo,
No. 4-10-0198 (Ill. App. Ct. 4th Dist. Oct. 14, 2011). The state court’s factual findings are
presumed to be true, and Birdo has the burden of rebutting that presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir.
2012). Certain procedural facts are also derived from Birdo’s pleadings in state and federal court,
as well as transcripts from hearings in state court.
3

Hardaway recalled an incident during which an “officer shoved [an inmate] and he also
punched the inmate.” Hardaway was not, however, certain that his memory of the incident
related to Birdo’s case. Dkt. 15-6 at 40-41.
4

Rivas wrote in his statement that it was a “very cold day” and that Birdo did not have a
state-issued coat. Birdo “asked the officer on the bus several times for permission to board the
bus and wait in there … because he was cold and wasn’t issued a coat to wear … I don’t
remember exactly what that officer said in response, but I remember it being some type of rude
and callous comment because it even made me mad. In response, Mr. Birdo attempted to board
the bus anyway, but was immediately thrown or kicked off … I remember it being extremely
aggressive in nature. Yet Mr. Birdo, tired of the cold, again tried to board the bus … [he was] in
full restraints … That however didn’t stop that officer from throwing punches at Mr. Birdo when
he began to board the bus … [E]ven with him pinned down like that a couple of officers still
continued to beat him. I distinctly remember seeing one in particular who punched Mr. Birdo
2

Officer Michael Littleton. Trial commenced on August 12, 2002. During the course of the trial,
Birdo was physically restrained with leg shackles and handcuffs, and was required to take the
stand wearing the same restraints. Dkt. 15-6 at 101.
The State presented the testimony of Correctional Officers Bryan Wagner and Craig
Cowan. Wagner testified that during the transfer of inmates on January 12, 2000, Birdo stepped
onto a bus on which Wagner, Cowan, and Littleton were waiting and stated, “If you want me off
this fucking bus you’re going to have to take me off.” Dkt. 15-15 at 115. Wagner told Birdo to
get off the bus and Birdo provided essentially the same response, after which Wagner stepped
into the stairwell of the bus and “grabbed a hold of his arm to escort him off the bus….” Id. at
116. Birdo then “jerked away from me and hopped down onto the ground, jumped off the last
step onto the ground … [A]s I was stepping outside on the ground … Birdo came from the side
and with his fist doubled up hit me up side the head, kind of knocked me up against the door,
caught me off guard, and then came back and hit me a second time somewhere in the jaw area.
And then the third time he swung at me I blocked it with my hand.” Id. Wagner added that he
had “a small cut to the side of my head, and I had a little cut on the back of my hand … [and] I

several times while he lay over him….” Rivas further wrote that he filed a grievance with the
Administrative Review Board soon after the incident, and that this document contained “the best
and most detailed accounts of what transpired on that day.” Dkt. 15-6 at 43-45.
5

Bartman wrote in his statement that Birdo did not have a coat on and that Birdo “said he
was going to go stand on the bus for a couple minutes to get warm. When he stepped on the bus
the officer from Menard said, quote ‘What the fuck are you doing? Get the hell off the bus.’ …
[A]ll of a sudden the officer jumps out of his chair and goes straight after Mr. Birdo. He started
pushing Mr. Birdo by his chest and by his face trying to get him off the bus. So to prevent
fall[ing] he was holding on to the officer. After a couple more pushes by the officer they both fell
to the ground. They were rolling on the ground for about a minute ….” Dk. 15-6 at 47-48.
6

Henry wrote in his statement that “we were not provided with winter coats … I know
that Mr. Birdo was thrown from the bus and possibly struck by a c/o … I also heard the c/o that
drove the bus tell the c/o involved in the incident not to worry, ‘that they’ll take care of it and
nobody will believe a[n] inmate just be cool and don’t do nothing else.’” Dkt. 15-6 at 50-51.
3

was having pain from my neck over to my shoulder ….” Id. at 117. Cowan testified that “Birdo
stepped onto the bus saying he wanted to get on because he was cold. Lieutenant Littleton asked
him to step off … Inmate Birdo refused to get off … Then Officer Wagner stood up and told him
he needed to get off the bus … [Birdo] said, ‘Fuck you. I’m not getting off … Why don’t you
fucking make me, bitch.’ So Officer Wagner proceeded down the steps. I stood up and he went
to grab Mr. Birdo’s arm, and he kind of jumped off the bus and kind of in the same motion he
c[a]me across … c[a]me up and hit Wagner in the side of the head and neck area … and he got
hit twice more that I could see, same head and neck area. And then Wagner blocked the last ...
[A]nother officer from another bus had come over to help us out, got some leg irons. While
Officer Wagner was applying [leg irons] Mr. Birdo spit in his face.” Id. at 141-42. Cowan also
testified that the driver of the bus was Officer David Young, that Young “wasn’t on the bus at
the time of the incident,” and that he “d[id]n’t know truthfully” where Young was at the time—
“I imagine he went inside to do some sort of paperwork.” Id. at 140, 147.
The defense called Mauricio Rivas, an inmate, who testified that Birdo asked to get on
the bus because he was cold. “[W]hen Mr. Birdo asked if he could board the bus the officer
inside made some sort of a humorous comment about it … I remember him laughing about it …
He was basically mocking him.” Id. at 166-67. Birdo returned to the line of inmates waiting
outside of the bus, and then tried to get on the bus a second time but “was pushed off by one of
the officers inside.” Id. at 168. Rivas did not see Birdo strike an officer during the incident. Id. at
169. Birdo’s trial attorney did not call any of the other witnesses he listed in his disclosure.
Birdo testified on his own behalf that he attempted to board the bus twice because he was
cold and that during the second attempt, “I believe the bus driver said – he made some type of
derogatory statement … I’m not for sure exactly what he said, but he made a statement that was
4

– I guess you could say it was racial. I mean, he said something about I guess we’re going to
have some fudge sickles, or something like that, for dessert.” Id. at 190. Birdo further testified
that when he tried to board the bus a third time, Wagner “grabbed me by my label of the
jumpsuit, pushed me, and pushed me off the bus. I landed on my head … I believe it was Officer
Wagner … jumped on top of me, had his elbow in my head, had me down, face stuck to the
pavement. Another officer, I don’t know who it was. I don’t believe it was … Officer Cowan …
but another officer jumped on my legs …” Id. at 193.
During the State’s closing rebuttal argument, the prosecutor made several improper
comments. For example, the prosecutor accused Page of “mak[ing] up things” and “sucking up”
to the jury. Dkt. 15-6 at 101. The prosecutor also raised Birdo’s prior convictions as evidence of
Birdo’s propensity to commit crimes—“what happened was an angry, hostile, profane convicted
felon, violently convicted felon who was trying to be controlled by two guards.” Id. at 102.
Incredibly, the prosecutor even denigrated the presumption of innocence, stating “that’s a legal
fiction because … at this point, you’ve already, in your minds, have heard the evidence and
began to form judgments … that presumption of innocence that we are all entitled to, but we
should not have the benefit of once we have committed a crime, crimes such as these.” Id. at
102-03. The jury found Birdo guilty of aggravated battery.
Birdo’s Motion for a New Trial. Page moved for a new trial on Birdo’s behalf,
asserting, among other arguments, that Birdo was prejudiced by the fact that he was physically
restrained with leg shackles and handcuffs in view of the jury and that he was denied a fair trial
due to the prosecutor’s comments during his rebuttal closing argument. Dkt. 15-6 at 100-03. On
October 8, 2002, the trial court granted the motion. The court stated in an oral ruling that a new

5

trial was warranted because of the “argument issue,” referring to the prosecutor’s comments, and
the “shackles issue.” Dkt. 15-17 at 2.
Birdo’s Pre-Trial Motions. On the morning of the second trial (November 17, 2003),
Birdo (although still represented by Page) submitted three written pro se motions: (1) to dismiss
the indictment; (2) to substitute the judge; and (3) for a continuance. As part of his motion to
dismiss the indictment, Birdo argued that Page was ineffective for, among other reasons,
not promptly comply[ing] with the defendant’s reasonable request
for information regarding the bus driver whose name the defendant
does not know, but is absolutely sure was physically involved and
present during the entire alleged incident. During the trial the
defendant informed his attorney that Mr. Cowan was not involved
but instead a bus driver was. After the trial the defendant requested
information regarding the bus driver and after the new trial was
ordered the defendant still sought information regarding this
material witness and this request was never responded to or
fulfilled by Mr. Jeff Page.
Dkt. 15-13 at 34. Page stated on the record that “what directly concerns me is his
statements that I have failed to secure a witness on his behalf that he thinks is critical and
saying that failure is a violation of professional conduct, and now in no uncertain terms is
saying I’m ineffective on his case.” Id. at 39. Page later made an oral motion to withdraw
as Birdo’s counsel, which was denied. Id. at 39-40, 46. The court stated, inexplicably in
light of Birdo’s complaint about Page’s failure to obtain information about the bus driver,
that “I don’t believe any of his criticisms are basically as to what Mr. Page has done.” Id.
at 46. As to the motion to substitute the judge, Birdo argued that the same trial judge “sat
on my first trial and heard me testify” and that the judge forced him to wear “full upper
body and leg restraints in full view of the jury.” Id. at 42. As to the motion for a
continuance, Birdo argued in his written submission that Page had failed to act on
information from Birdo regarding the bus driver’s presence during the incident and that
6

Birdo needed a substantial continuance to find the bus driver. Dkt. 15-6 at 229. In
denying all three motions, the court stated that it was “an old case” and “ready for trial.”
Dkt. 15-13 at 40.
The Second Trial. At the second trial, the State again presented the testimony of Officers
Wagner and Cowan. Wagner testified that Birdo attempted to board the bus and “I took him by
the arm, and when I grabbed a hold of his arm, he pulled away from me and he jumped down
onto the ground … Officer Cowan said something to me and I turned around to look at him, and
as I stepped onto the ground inmate Birdo hit me … He had his hands doubled up in a fist and
struck me on the left side … he came back and hit me again … he was swinging at me a third
time and I blocked it and he hit me in the back of my hand … as I put the leg irons on he turned
around and spit in my face.” Id. at 89-92. Cowan testified that Birdo attempted to board the bus
and Wagner “began to escort him off by grabbing his arm. Mr. Birdo jumped off the bus and at
the same time c[a]me up and hit him with two clenched fists.” Id. at 136. Cowan further testified
that he “believe[d] [Officer Young, the bus driver] was out checking other buses to see who had
arrived” and that he was not on the bus at the time. Id. at 134.
Birdo testified as the only defense witness. He testified that he asked to get on the bus
because he was cold. “The bus driver interjected and said some type of derogatory comment and
they laughed about it. He said something to the effect that I felt racially insensitive. I don’t know
if he meant it to be, but he said something to the effect I guess we are going to have fudge sickles
for dessert. He and the other officers laughed about it … I just asked the inmate that was
standing there, I said did you hear what he just said.” Id. at 166-68. Wagner and Birdo
exchanged words, and then Birdo “just stood there. I said I’m cold.” Id. at 169-70. Wagner then

7

“came running down the steps with as much speed as he can get, grabbed the front of my …
jumpsuit and hurled me off the bus, and I went flying off the bus.” Id. at 170.
The jury found Birdo guilty of aggravated battery. On December 9, 2003, the trial court
sentenced Birdo to seven and a half years in prison, to run consecutively to his unrelated and (at
the time) unexpired sentences. Dkt. 15-6 at 6.
B. Procedural History.
Direct Appeal. Birdo appealed his conviction, raising (1) a claim for ineffective
assistance of trial counsel for failing to call certain witnesses, including the bus driver, and (2) a
claim that the trial court improperly allowed the state to impeach Birdo with prior convictions.
Dkt. 15-2 at 4. The Illinois Appellate Court found that the trial court did not abuse its discretion
by admitting Birdo’s prior convictions for impeachment purposes and declined to adjudicate the
ineffective assistance of counsel claim, stating that “the record contains no indication why
defense counsel did not call these witnesses … the issues are more appropriately addressed in
proceedings on a petition for postconviction relief.” Dkt. 15-1 at 8, 11-12 (Order, No. 4-03-1076
(Ill. App. Ct. Dec. 7, 2005)). On March 29, 2006, the Illinois Supreme Court denied Birdo’s
petition for leave to appeal. 218 Ill. 2d 544 (2006).
Post-Conviction. Birdo next filed a pro se post-conviction petition in the Circuit Court in
Logan County, Illinois, claiming that (1) Illinois Supreme Court Rule 13 was violated when the
public defenders assigned to represent him at trial did not individually withdraw each time his
case was reassigned to a new attorney; (2) Page was ineffective for failing to call certain
witnesses, particularly the bus driver, David Young; and (3) Birdo’s appellate defender Keleigh
Biggins was ineffective for failing to raise several issues in Birdo’s direct appeal. Dkt. 15-6 at

8

219-25. Birdo’s post-conviction counsel, Richard Wray, filed an amendment to the pro se postconviction petition on December 30, 2008. Id. at 267-71. Wray argued that:
[D]espite numerous requests by the defendant, Attorney Page
failed to conduct any investigation as to the presence and/or
participation of the bus driver. While the written statements of eyewitnesses, together with those of the defendant, placed the driver at
the scene at the time of the incident, the State’s witnesses testified
under oath that the driver was not present.
Id. at 269.
On July 2, 2009, the court granted the State’s motion to dismiss as to all claims except
the ineffectiveness claim. Dkt. 15-6 at 306-10. The court set an evidentiary hearing on the single
issue of “petitioner’s claim of ineffective assistance of trial counsel based on counsel’s failure to
call certain witnesses at trial ….” Id. at 310.7 The hearing was held on March 15, 2010. Birdo’s
attorney (Wray) called one witness, Jeff Page, to the stand. Page testified to the following:
Page called Mauricio Rivas to testify at Birdo’s first trial because he “thought
he had some information that would be potentially helpful” but he did not call
him to testify at Birdo’s second trial because he “made a strategic decision”
“based upon his testimony at the first trial.” Page added that Rivas’s version of
the incident differed from Birdo’s version in certain ways, and Birdo insisted
on testifying at both trials. Dkt. 15-21 at 6, 10-11.
Page interviewed three witnesses on the day of the first trial who were inmates
at the time and “decided that none of them were credible in my mind other than
Mr. Rivas.” Id. at 8-10, 13.
Page acknowledged that he did not subpoena the bus driver, David Young, at
either trial. “From what I remember I don’t even believe I had a report from
[the State’s Attorney’s office] on this bus driver, and quite frankly from my
recollection I don’t recall him [Young, the bus driver] ever giving a statement
7

The record submitted by the respondent in this matter is missing page 309 to Exhibit 156, which is the fourth page of the circuit court’s order dismissing certain of Birdo’s claims and
setting an evidentiary hearing as to the ineffectiveness claim. The missing page appears to relate
directly to the court’s assessment of Birdo’s ineffective assistance of counsel claim. The result of
the court’s analysis, however, is evident in the court’s decision to set an evidentiary hearing. Dkt.
15-6 at 310.
9

that would suggest that he knew anything about this altercation, that he saw it,
or was even present for this alleged altercation.” Page acknowledged, however,
that Birdo told him that Young was present (“Mr. Birdo did mention that,
yes.”) and that it would not have been hard to track him down (“I guess I could
have done that.”). Id. at 19-21, 23-24.
Upon the State’s motion for a directed finding, the circuit court described Birdo’s claim
as ineffective assistance “by failing to call certain witnesses, and those are witnesses whose
names have been mentioned here today, three individuals; Jason Bartman, Mauricio Rivas, and
Lonnie Henry ….” Id. at 30. The court found that Page’s explanation as to why he did not call
Rivas at the second trial was reasonable. Id. Further, the court found that there was “a complete
lack of evidence supporting the … reasonable probability that counsel’s performance was
prejudicial … There has not been a single witness presented here. No evidence to indicate what
any of these witnesses would have testified to ….” Id. at 31. The court did not mention Birdo’s
claim as to Page’s alleged ineffectiveness for not calling David Young.
Birdo appealed, arguing that Page was ineffective when he failed to investigate or present
Young at either trial. Birdo was prejudiced by this failure, he argued, because the testimony
might have bolstered an otherwise uncorroborated defense. Dkt. 15-7 at 11-14. Birdo also argued
that his appointed post-conviction counsel, Richard Wray, provided ineffective assistance of
counsel by not calling named eye-witnesses at the evidentiary hearing to show the prejudice
caused by Page’s ineffectiveness at trial. Id. at 15.
The Illinois Appellate Court affirmed the circuit court’s directed finding after applying
the manifest-weight-of-the-evidence standard. Dkt. 15-10 at 8, 12. The court noted that Birdo
only challenged the circuit court’s order as it related to Page’s failure to investigate Young, and
not as it related to Bartman, Rivas, and Henry. Id. at 9. As to Young, the appellate court
recognized that, “In its oral pronouncement, the court did not analyze or mention Page’s conduct
10

of not contacting Young.” Id. It went on, however, to nevertheless “find the court’s analysis
would apply equally to Young.” Id. The court added that the failure to investigate a witness “that
purportedly had no knowledge cannot constitute substandard performance.” Id. Further, Birdo
failed to present evidence of prejudice by not producing testimony or affidavits “that would have
revealed the extent of Young’s knowledge or the nature of his proposed testimony had he been
called as a witness.” Id. at 9-10. As to Wray, the court found that post-conviction counsel cannot
be deemed ineffective “for failing to perform a futile act.” Id. at 10. Since Page exercised
“reasonable professional judgment not to investigate Young’s involvement,” the court could not
say that Wray was ineffective for failing to present the testimony of any witnesses. Id.
Birdo filed a petition for rehearing, arguing that his post-conviction appellate counsel
(Elaine Belcher) was ineffective, in part because she was “obligated to point out that this
defendant-appellant testified at both trials” that Young was present, Young made a racially
insensitive remark to Birdo, Young assaulted Birdo, and Young helped to restrain Birdo with leg
shackles. Dkt. 23-1 at 2. Birdo further argued that the appellate court was in error for applying
the same analysis to Young as the court applied to Bartman, Rivas, and Henry. Id. at 3. Birdo
added that “It can not be assumed that David Young would not have corroborated [Birdo’s]
version.” Id. at 4. Birdo also complained that Belcher was ineffective for failing to brief and
preserve several issues, including: (1) violations of Illinois Supreme Court Rule 13; (2) the
motion to substitute the judge that Birdo made before his second trial; (3) a violation of Birdo’s
right to confrontation when at the second trial, his attorney was prevented from asking a
particular question due to the prosecutor’s sustained objection; and (4) ineffective assistance of
his direct appellate counsel. Id. at 4. The Illinois Appellate Court summarily denied Birdo’s
petition for rehearing. Dkt. 23-2 at 1. Birdo petitioned for leave to appeal to the Illinois Supreme
11

Court, raising several of the same arguments (Dkt. 15-11); that petition was also summarily
denied. 968 N.E.2d 83 (Ill. 2012).
Federal Habeas. On July 23, 2012, Birdo filed a habeas corpus petition in federal court.8
Birdo raised four claims:
Claim A: Improper denial of Birdo’s motion to substitute the trial judge.
Claim B: Illinois Supreme Court Rule 13 violation; failure of two public defenders to
formally withdraw from Birdo’s case and notify Birdo of their withdrawals; loss of
witness list due to that failure.
Claim C: Violation of right to confrontation when the trial judge sustained the
prosecutor’s objection to a particular question.
Claim D: Ineffective assistance by trial attorney Page for failing to investigate Young.
The Court will address each of Birdo’s claims in turn.
II.

Analysis

To be eligible for a writ of habeas corpus, Birdo must demonstrate that he “is in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see
Cheeks v. Gaetz, 571 F.3d 680, 684 (7th Cir. 2009). Challenges to the duration of a custodial
sentence “are the province of habeas corpus.” Muhammad v. Close, 540 U.S. 749, 750 (2004).
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which applies to Birdo’s
petition because it was filed after AEDPA’s effective date, a federal court may grant relief on the
basis of a claim that has been adjudicated on the merits by a state court only if the state court
proceeding: “(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
8

The petition appears to be timely. The one-year statute of limitations for filing the
petition, 28 U.S.C. § 2244(d)(1)(A), began to run (after post-conviction tolling) upon the denial
of Birdo’s petition for leave to appeal to the Illinois Supreme Court on March 28, 2012. At most,
about 117 days had run off of the 365 day clock when the petition was filed on July 23, 2012.
12

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.” 28 U.S.C. § 2254(d).9
A judgment is “contrary to” established federal law when the court applies a rule that contradicts
Supreme Court precedent. See Williams v. Taylor, 529 U.S. 362, 405 (2000). “An unreasonable
application occurs when a state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that principle to the facts of [a]
petitioner’s case.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotation omitted).
“[I]f it is a close question whether the state decision is in error, then the state decision cannot be
an unreasonable application.” McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002). This
deferential standard of review comes with the burden “on the petitioner to show that the state
court’s determination of fact or its application of federal law was unreasonable.” Sturgeon v.
Chandler, 552 F.3d 604, 609 (7th Cir. 2009).
A. Claims A, B, and C Are Not Procedurally Defaulted.
The respondent maintains that consideration of Claims A, B, and C is barred by the
procedural default rule. It is true, as the respondent argues, that Birdo did not raise Claims A, B,
and C before the Illinois Appellate Court or the Illinois Supreme Court in his direct appeal. But
Birdo has raised these claims several times before appearing in federal court, and the state courts
have never relied on a procedural default to deny his claims. Accordingly, consideration of the
claims here is not barred by any procedural default. See Coleman v. Thompson, 501 U.S. 722,
730 (1991); see also Braun v. Powell, 227 F.3d 908, 912 (7th Cir. 2000) (the state court must

9

Claims that were not adjudicated on the merits in state court proceedings, by contrast,
are subject to evaluation under the general standard set forth in 28 U.S.C. § 2243, which requires
federal courts to “dispose of the matter as law and justice require.” See Cheeks, 571 F.3d at 68485.
13

have actually and “clearly and expressly” relied on the procedural default as the basis of its
ruling, otherwise the procedural default will not bar federal habeas review).
As to Claim A, Birdo first raised the issue in his pro se motion before his second trial.
Dkt. 15-6 at 142, 231 (“Motion to Substitute Judge,” filed Nov. 17, 2003). On the morning of his
second trial, Birdo explained to the court that he was bringing the motion because:
[Y]ou sat on my first trial and heard me testify. Should I choose
not to testify at the new trial, you can still be affected by what you
heard in the defendant testifying in the first trial. This could
prejudice the judge against the defendant … Judge Coogan forced
the defendant to go through the entire trial in full upper body and
leg restraints in full view of the jury which prejudiced the jury
against the defendant. The defendant fears such actions will be
taken against him again … [Y]ou are the one who decides whether
or not you are going to accept the jury verdict.
Dkt. 15-13 at 41-43. Birdo also raised Claim A as part of an ineffective assistance of counsel
claim in his pro se post-conviction petition, which he filed on July 24, 2005 with the circuit court
in Logan County. Dkt. 15-6 at 222-23. Birdo wrote that his trial attorney, Page, refused to file the
motion, forcing Birdo to file it pro se, and that it was improperly denied. Id. at 222. Birdo went
on to describe the underlying substance of Claim A, arguing that he was denied a fair trial
because Judge Coogan showed prejudice against him in various ways during the second trial. Id.
at 223. Birdo’s appointed post-conviction counsel, Belcher, did not raise Claim A in her briefs
before the Illinois Appellate Court (Dkt. 15-7 and 15-9), but Birdo again raised the issue in his
post-conviction petition for rehearing after the Illinois Appellate Court’s affirmance. Dkt. 23-1 at
4. Birdo argued that Belcher was ineffective for “fail[ing] to brief and preserve that defendantappellant made an allegation in his post-conviction petition that he had a right to a substitution of
judge before his 2nd trial.” Id. Finally, Birdo raised Claim A in his petition for leave to appeal to
the Illinois Supreme Court, in which he again framed the issue as part of an ineffective assistance
14

of appellate counsel claim. Dkt. 15-11 at 6. In his federal habeas petition and reply brief, Birdo
frames Claim A as an improper denial of his motion and his due process rights, but not as a claim
for ineffective assistance of appellate counsel. Dkt. 1 at 5; Dkt 16 at 3, 4-7. At no time, however,
has any Illinois court denied this claim based on procedural default by Birdo in failing to present
the claim on direct appeal.
As to Claim B, Birdo described his claim in his post-conviction petition for rehearing
before the Illinois Appellate Court, in which he framed it as a claim for ineffective assistance of
appellate counsel. Dkt. 23-1 at 4. In the petition, Birdo argued that Belcher was ineffective for
“fail[ing] to brief and preserve defendant-appellant’s allegation made in his post-conviction
petition that Supreme Court Rule 13 was violated multiple times.” Id. Birdo also raised the issue
in his petition for leave to appeal to the Illinois Supreme Court, in which he again framed the
issue as a claim for ineffective assistance of appellate counsel. Dkt. 15-11 at 2, 6. In his federal
habeas petition and reply brief, Birdo frames Claim B as a violation of Supreme Court Rule 13
itself and of his due process rights, but not as a claim for ineffective assistance of appellate
counsel. Dkt. 1 at 5; Dkt. 16 at 3, 7-8.
As to Claim C, Birdo also described this claim in his post-conviction petition for
rehearing before the Illinois Appellate Court, again framing the claim as one for ineffective
assistance of appellate counsel. Dkt. 23-1 at 4. In the petition, Birdo argued that Belcher was
ineffective for “fail[ing] to brief and preserve defendant-appellant’s allegation made in his postconviction petition that he had a Sixth Amendment right to ask at trial ‘What would happen if an
officer struck an inmate without provocation?,’ that was objected to and sustained and hindered
his defense.” Id. Birdo also raised the issue in his petition for leave to appeal to the Illinois
Supreme Court, in which he again framed the issue as part of a claim for ineffective assistance of
15

appellate counsel. Dkt. 15-11 at 5. Similar to Claims A and B, in his federal habeas petition and
reply brief, Birdo frames Claim C as a violation of his Sixth Amendment right to ask the
question, but not as a claim for ineffective assistance of appellate counsel. Dkt. 1 at 6; Dkt. 16 at
3, 9.
Whether Birdo’s claims are construed as claims that his post-conviction appellate counsel
was ineffective or as claims of direct error, there is no basis to find them procedurally barred. If
the former, there was no procedural default because Birdo raised his claim about the
ineffectiveness of post-conviction counsel at his first opportunity, namely in his petition for
rehearing after the Appellate Court issued its ruling; he then reasserted that claim in his petition
for leave to appeal to the Illinois Supreme Court. And if the latter, there is no basis to invoke
procedural default because no Illinois court denied the claim on that basis. Under Illinois law,
Birdo’s failure to raise Claims A, B, and C could have resulted in dismissal of the claims by the
Illinois Appellate Court. See, e.g., People v. Jolly, 374 Ill. App. 3d 499, 505 (2007) (holding that
defendant forfeited claim not raised below). Nevertheless, the Illinois Appellate Court and the
Illinois Supreme Court did not address this procedural default in the summary denials of Birdo’s
petitions. A claim is only procedurally defaulted if the state court clearly and plainly relies on the
default as an independent and adequate state law ground for its ruling. See Coleman, 501 U.S. at
730; see also Braun, 227 F.3d at 912 (the state court must have actually and “clearly and
expressly” relied on the procedural default as the basis of its ruling, otherwise the procedural
default will not bar federal habeas review).
The procedural default rule is grounded in principles of comity; where the state court has
not seen fit to invoke the petitioner's procedural default under state law, comity compels respect
for that approach rather than an effort to enforce a procedural rule the state court opted not to
16

apply. See Coleman, 501 U.S. at 730–31. Accordingly, the Court concludes that Claims A, B,
and C are not procedurally defaulted.
B. Claim A – Substitution of Judge at Trial – Is Cognizable But Fails on the Merits.
In his habeas petition, Birdo claims that the motion he brought to substitute the trial judge
was improperly denied. Birdo argues that he had an absolute right to substitute the judge under
725 ILCS 5/114-5(a), which states, in relevant part,
Within 10 days after a cause involving only one defendant has
been placed on the trial call of a judge the defendant may move the
court in writing for a substitution of that judge on the ground that
such judge is so prejudiced against him that he cannot receive a
fair trial. Upon the filing of such a motion the court shall proceed
no further in the cause but shall transfer it to another judge not
named in the motion.
Birdo states in his reply brief that the denial of his motion caused his due process rights under the
Fourteenth Amendment to be violated. Dkt. 16 at 4, 6-7. He adds that Judge Coogan, the Logan
County Circuit Court judge who presided over the first and second trials, was prejudiced against
him at his second trial because he heard Birdo testify and required him to wear full upper-body
restraints at the first trial. Id. at 5. At the second trial, Birdo argues, Judge Coogan again required
Birdo to wear leg shackles in full view of the jury. Id. Finally, Birdo argues that “[h]ad Judge
Coogan not sat on the new trial the outcome would have been different.” Id. at 7.
The respondent argues that Claim A is not cognizable on federal habeas review because
Birdo presents solely a question of state law, namely, a state procedural rule. Dkt. 14 at 12. The
respondent adds that Birdo expressly acknowledged in his federal habeas petition that any right
conferred by § 5/114-5(a) “was a state-created right.” Id. at 13.
1. Claim A is Cognizable.

17

In a federal habeas proceeding, a federal court may only consider a petitioner’s claims
that he is in custody in violation of the Constitution, laws, or treaties of the United States. 28
U.S.C.A. § 2254(a). In other words, “errors of state law in and of themselves are not cognizable
on habeas review.” Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004) (citing Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991)). Construed as a claim based solely on the denial of a
procedural right provided by state law, Birdo’s claim would fail because it is not cognizable on
federal habeas review.
A defendant has a Fourteenth Amendment due process right to a fundamentally fair trial,
however, but only if the state court committed an error “so serious as to render it likely that an
innocent person was convicted can the error be described as a deprivation of due process.” Id. at
510-511 (citations omitted). Birdo’s claim concerning the improper denial of his motion to
substitute the trial judge implicates due process, since a fair trial requires an impartial judge free
from personal conviction as to the guilt or innocence of the accused. See People v. Robinson, 18
Ill. Ap. 3d 804, 808 (1974). Although Birdo did not specify a connection between his claim and
due process in his habeas petition, and in fact referenced a “state-created right,” he also
referenced due process multiple times in his reply brief. Dkt. 16 at 4, 6-7. Construing Birdo’s
claim liberally, as required—see, e.g., Ward v. Jenkins, 613 F.3d 692, 697 (7th Cir. 2010)—the
Court concludes that Birdo adequately alleges a due process violation arising from the trial
judge’s denial of the substitution motion. Further, Birdo’s pro se filings do not eliminate the
constitutional dimension to a defendant’s motion to substitute the judge, as confirmed by the
Illinois Supreme Court. See People v. Evans, 209 Ill. 2d 194, 215 (2004) (“[S]ection 114-5(a)
involves defendant’s right to a fair trial, a right of a constitutional dimension ….”). In sum,

18

Birdo’s claim is cognizable on federal habeas review, as it is inherently a due process claim and
he stated as much in his reply and throughout his references to this issue since his second trial.
2. Claim A Fails on the Merits.
The Illinois Appellate Court summarily denied Birdo’s petition for rehearing, including
his substitution of judge claim. No. 4-10-0198 (Ill. App. Ct. 4th Dist. Nov. 9, 2011). If a state
court summarily disposes of a claim without setting forth the legal or factual basis for its denial,
the federal habeas court should follow the pre-AEDPA standard of review as stated in 28 U.S.C.
§ 2243, which requires the Court to “dispose of the matter as law and justice require.” Myartt v.
Frank, 395 F.3d 782, 783-84 (7th Cir. 2005) (where the state court of appeals did not address the
petitioner’s claim, the federal court should apply the pre-AEDPA standard of review) (citing
Braun v. Powell, 227 F.3d 908, 917 (7th Cir. 2000)).
Whether construed as a due process claim or not, Birdo’s argument that he was
improperly denied a substitution of the trial judge fails. As a due process claim, the claim fails
because his assertions that the trial judge was biased against him are insufficient for this Court to
consider relief. In support of his claim, Birdo asserts only that the judge was biased because (i)
he had heard Birdo’s testimony; and (ii) the judge forced Birdo to sit shackled and in full upperbody restraints at his first trial. Dkt. 16 at 4-5. The Due Process Clause guarantees litigants an
impartial judge. See Montgomery v. Uchtman, 426 F.3d 905, 910 (7th Cir. 2005) (citations
omitted). Further, a judge must recuse himself when he has a “bent of mind that may prevent or
impede impartiality of judgment.” United States v. Barnes, 909 F.2d 1059, 1071-72 (7th Cir.
1990) (citation omitted). An allegation of partiality, however, “must not … be mere conclusions,
opinions, or rumors … [T]he bias [must be] personal rather than judicial.” Id. at 1072.

19

Here, the fact that Judge Coogan presided over Birdo’s first trial is of no consequence to
Birdo’s due process rights. See, e.g., Lasley v. Hanks, 78 F.3d 586, 586 (7th Cir. 1996) (habeas
petitioner was not denied due process where state judge refused to recuse himself because “there
is nothing constitutionally untoward about the same judge presiding over successive trials with
the same defendant”); see also, e.g., People v. Melka, 319 Ill. App. 3d 431, 442-43 (2000) (trial
court did not deny defendant due process by denying motion to substitute judge that was based
on judge’s previous participation in earlier trial for same defendant on same charge).
Further, Birdo’s assertion that the judge showed bias by forcing him to sit in restraints
does not rise to the level of a due process violation. A criminal defendant has the right to appear
before a jury free from shackles or other physical restraints. U.S. v. Van Sach, 458 F.3d 694, 699
(citing Illinois v. Allen, 397 U.S. 337, 344 (1970)). This right, however, is not absolute. See id.
(citing Holbrook v. Flynn, 475 U.S. 560, 567-68 (1986)). “The right to be free from shackles at
trial ‘may be overcome in a particular instance by essential state interests such as physical
security, escape prevention, or courtroom decorum.’” Id. (quoting Deck v. Missouri, 544 U.S.
622, 629 (2005)). Judge Coogan required Birdo to wear leg shackles and handcuffs at the first
trial because of the “nature of the charge” and not “unfair prejudice.” Dkt. 15-15 at 3-4.
Responding to Page’s request, Judge Coogan told the jury panel, before selection, that Birdo was
wearing handcuffs and leg shackles because of “routine policy when someone is being held in
custody … and when they come to trial.” Id. at 7. He added that it was “not any evidence of
guilt.” Id. After trial, Judge Coogan granted Birdo’s motion for a new trial due, in part, to the
restraints that Birdo was required to wear at the first trial. Dkt. 15-17 at 2. For the second trial,
Judge Coogan ordered that Birdo wear leg shackles but not handcuffs or a waist chain. Dkt. 1513 at 24. He noted that the leg shackles would be obscured by a curtain and that he would allow
20

Birdo to relocate to the witness stand outside the presence of the jury. Id. at 24-25. He based his
decision on the fact that there were “allegations of crimes of violence, prior crimes of violence,
and allegations here of violence against correctional officers.” Dkt. 15-13 at 26-27. He
concluded, “I find that my responsibility for the safety of the people in the courtroom overrides
the freedom here for the leg irons.” Id. at 27. Judge Coogan’s rulings as to the restraints issue
were sufficiently thorough and reasoned, and he cited physical security as one of his reasons. See
Van Sach, 458 F.3d at 699. Further, he was flexible in responding to requests from Page to adjust
his rulings in an effort to reduce prejudice to Birdo. Birdo has therefore not shown sufficient bias
on the restraints issue to frame a due process violation.10
And even if Birdo could proceed on this claim based on the requirements of the statute
itself (and he cannot, as that is an issue of state, not federal, law), the claim would fail because
Birdo did not seek the substitution within the time period authorized by the Illinois statute. Birdo
raised the issue with the trial judge orally and pro se (without Page’s adoption) on the morning
of his second trial (November 17, 2003), based on a motion that he apparently had signed,
notarized, and filed on November 12, 2003. Dkt. 15-6 at 149.11 Birdo asserts that he was entitled
to an automatic, non-discretionary order of substitution pursuant to 725 ILCS 5/114-5(a), but he

10

Judge Coogan stated in denying Birdo’s motion to dismiss the indictment, “This case is
an old case. It is ready for trial … You were convicted by a jury here … I said you need to have
another trial. Now, if you think there was a mistake on that, I suppose we can go back and
reinstate the prior verdict. I don’t think that is what you want, but I’m not going to dismiss this
case.” Dkt. 15-13 at 40-41. Birdo did not point to this statement as the basis for his motion when
he first made the substitution motion (immediately after Judge Coogan’s statement) or at any
later point in his pleadings. And while a bit sarcastic, the statement does not provide sufficient
prejudice to sustain a claim. See, e.g., People v. Berry, 241 Ill. App. 3d 993, 996, 997-98 (1993)
(judge not prejudiced where he stated that he “had an idea how the jury might rule”); People v.
Damnitz, 269 Ill. App. 3d 51, 53, 58 (1994) (judge not prejudiced where he told jury after verdict
that he would have convicted defendant of charge on which jury had acquitted).
11

The motion is file-stamped with the date November 17, 2003. Dkt. 15-6 at 149.
21

simply filed his motion for substitution too late. The statute provides that motions for
substitution must be filed “within 10 days after a cause involving only one defendant has been
placed on the trial call of a judge.” 725 ILCS 5/114-5(a); Evans, 209 Ill. 2d at 216 (defendant’s
motion for automatic substitution of judge made on first day of trial was untimely). Further, the
Illinois Supreme Court has held that “a request for automatic substitution must be made before
the trial judge rules on a substantive matter.” People v. Jones, 197 Ill.2d 346, 353 (2001) (in
People v. Emerson, 122 Ill.2d 411, 424 (1987), “we held that remand is considered a
continuation … [S]ubstantive rulings made in Emerson’s first trial served as substantive rulings
in his second trial and made a subsequent motion on remand for automatic substitution
untimely.”) Here, Birdo did not make his motion until after his first trial and just before his
second trial. Judge Coogan had already made many substantive rulings, beginning with rulings
made before and during Birdo’s first trial. Birdo’s motion for substitution was therefore
untimely.
Claim A, in sum, fails on the merits.
C. Claim B – Supreme Court Rule 13 Violation – Is Not Cognizable.
Birdo next alleges that his first two public defenders violated Illinois Supreme Court Rule
13 by leaving his case without filing motions to withdraw. Illinois Supreme Court Rule 13 states,
in relevant part,
An attorney may not withdraw his appearance for a party without
leave of court and notice to all parties of record, and, unless
another attorney is substituted, he must give reasonable notice of
the time and place of the presentation of the motion for leave to
withdraw, by personal service, certified by mail, or a third-party
carrier, directed to the party represented by him at his last known
business or residence address.

22

ILCS S. Ct. Rule 13(c)(2). Birdo asserts that he was not notified of the departure of his two
attorneys and that he did not know who was representing him at certain times. Dkt. 1 at 5. He
further asserts that a list of witness names that he sent to one attorney was lost after that attorney
left his case, and that this loss prejudiced him because he was unable to call those witnesses at
trial. Id. In his reply brief, Birdo asserts that his due process rights were violated when each
attorney withdrew from his case without notifying him. Dkt. 16 at 8.
The respondent argues that Claim B is not cognizable on federal habeas review because
Birdo presents solely a question of state law, namely, a state procedural rule. Dkt. 14 at 12-13. In
a federal habeas proceeding, a federal court may only consider a petitioner's claims that he is in
custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C.A.
§ 2254(a). In other words, “errors of state law in and of themselves are not cognizable on habeas
review.” Perruquet, 390 F.3d at 511 (citing Estelle, 502 U.S. at 67–68).
The Court agrees with the respondent that Claim B is not cognizable. Birdo cites to
Illinois Supreme Court Rule 13 and makes references to due process in certain of his pleadings.
Yet a violation of Illinois Supreme Court Rule 13 does not implicate Birdo’s constitutional
rights, and in particular his right to counsel, because the rule itself does not confer on Birdo a
constitutional right to counsel. Without conferring such a right, Birdo cannot be deprived of a
right by a violation of Rule 13. See, e.g., People v. Howard, 376 Ill. App. 3d 322, 342-43 (2007)
(defendant’s constitutional right to counsel not violated when trial court permitted attorney to
withdraw because of counsel’s strong desire to be released). Further, Birdo was at all times
represented by the Logan County Public Defender. Since Birdo did not have the right to be
represented by a particular public defender within the Logan County Public Defender’s Office,
he could not be deprived of that right either. See People v. DeRossett, 262 Ill. App. 3d 541, 54323

44 (1994) (an indigent defendant does not have a right to court-appointed counsel of his choice,
nor does a defendant have the right to select a particular assistant public defender to represent
him) (citations omitted). Birdo had counsel at all times. That one attorney failed to formally
withdraw after another had assumed the representation did not violate Birdo’s right to counsel
under the Sixth Amendment and Claim B is therefore denied as not cognizable.
D. Claim C – Prosecutor’s Sustained Objection to Question Regarding Strike
Without Provocation – Is Not Cognizable.
In his third claim, Birdo asserts that the trial court prevented him from pursuing a
defense and violated his right to confrontation when it prevented Page from impeaching Officer
Cowan on cross-examination with evidence that he had a potential motive to testify falsely.
Specifically, the trial judge sustained the state’s objection to the following cross examination:
PAGE: Q [Posed to Craig Cowan]: What would happen to a
correctional officer if without provocation they put their hands on
an inmate or assaulted an inmate? What would happen?
WRIGHT: I am going to object, your Honor. I don’t think it is
relevant. There has been no evidence offered to show that is even a
relevant issue.
THE COURT: Objection sustained.
Dkt. 15-13 at 152. Birdo argues that if the objection was instead overruled, Birdo would have
been able to present a defense that the officers were lying to avoid being disciplined for the
incident. Dkt. 16 at 9.
The respondent argues that Claim C is not cognizable on federal habeas review because
Birdo presents solely a question of state law, namely, an evidentiary ruling by the state trial
court. Dkt. 14 at 13.
Evidentiary rulings of state trial courts are normally not subject to habeas review. See
Dressler v. McCaughtry, 238 F.3d 908, 914 (7th Cir. 2001). The Due Process Clause does not
24

permit a federal court to “engage in a finely tuned review of the wisdom of state evidentiary
rules.” Estelle, 502 U.S. at 72 (citation omitted). A defendant has a Fourteenth Amendment due
process right to a fundamentally fair trial but only if the state court committed an error “so
serious as to render it likely that an innocent person was convicted” and only then “can the error
be described as a deprivation of due process.” Perruquet, 390 F.3d at 510-511 (citations
omitted); see also Dressler, 238 F.3d at 914 (citing Thompkins v. Cohen, 965 F.2d 330, 333 (7th
Cir. 1992)).
Construing Birdo’s claim liberally, Birdo does not come close to showing that the state
trial court’s ruling is subject to habeas review. See, e.g., Ward v. Jenkins, 613 F.3d 692, 697 (7th
Cir. 2010). Although Birdo ties his claim to due process several times in his reply brief, at issue
is a single question, which was prevented from being answered by a run-of-the-mill evidentiary
ruling by the trial court. A single question not asked, whether prohibited in error or not, does not
render it likely that Birdo was wrongly convicted and therefore cannot be described as a
deprivation of due process. Perruquet, 390 F.3d at 510-11. And in any event, the question was
not necessary to the jury’s determination of Birdo’s guilt or innocence. Whether or not this
particular question was asked of Officer Cowan, the jury did not need this testimony to infer that
if a guard punched an inmate for no reason at all, the guard would be at risk of disciplinary
action. Rather, the question was squarely in the realm of the jury’s common sense. For these
reasons, Claim C is denied as not cognizable.
E. Claim D – Ineffective Assistance of Counsel.
The Court turns now to Birdo’s claim for ineffective assistance of counsel. Birdo asserts
that his trial attorney, Page, was ineffective for failing to investigate a potentially exculpatory
witness, bus driver and correctional officer David Young.
25

1.

The History of the Claim.

Birdo has been raising this claim and facts related to this claim since before his first trial.
The following is a brief history of the claim:
Pre-Trial Statements of Witnesses Corroborating Birdo’s Allegation that the
Bus Driver Was on the Bus and Involved in the Incident:
o Mauricio Rivas: “I don’t remember exactly what that officer said in
response, but I remember it being some type of rude and callous comment
because it even made me mad.” Dkt. 15-6 at 44.
o Lonnie Henry: “I also heard the c/o that drove the bus tell the c/o
involved in the incident not to worry, ‘that they’ll take care of it and
nobody will believe a[n] inmate just be cool and don’t do nothing else.’”
Dkt. 15-6 at 51.
August 2002 First Trial: Birdo testified, “I believe the bus driver said – he made
some type of derogatory statement … I’m not sure exactly what he said, but he
made a statement that was – I guess you could say it was racial. I mean, he said
something about I guess we’re going to have some fudge sickles, or something
like that, for dessert.” “Q: Okay, and you don’t know who said that? A: I believe
it was the bus driver.” Dkt. 15-5 at 190.
November 2003 Pre-Trial Motions: Birdo raised three pro se motions on the
morning of his second trial, including a motion to dismiss the indictment in part
because “Page did not promptly comply with the defendant’s reasonable request
for information regarding the bus driver whose name the defendant does not
know, but is absolutely sure was physically involved and present during the entire
alleged incident. During the trial the defendant informed his attorney that Mr.
Cowan was not involved but instead a bus driver was. After the trial the defendant
requested information regarding the bus driver and after the new trial was ordered
the defendant still sought information regarding this material witness and this
request was never responded to or fulfilled by Mr. Jeff Page.” Dkt. 15-13 at 34. In
Birdo’s motion for a continuance, he wrote that he needed a “substantial
continuance to ascertain the bus driver’s name and whereabouts ….” Dkt. 15-6 at
229.
November 2003 Second Trial:12 Birdo testified, “The bus driver interjected and
said some type of derogatory comment and they laughed about it. He said
12

Page mentioned the presence of Young in his closing argument: “… an interesting
point I suppose the theory is by the prosecution that Mr. Birdo struck Officer Wagner because he
was cold because he wanted on the bus. Yet it was interesting according to Kevin, and I don’t
26

something to the effect that I felt racially insensitive. I don’t know if he meant it
to be, but he said something to the effect I guess we are going to have fudge
sickles for dessert. He and the other officers laughed about it.” Dkt. 15-13 at 16667.
July 2005 Direct Appeal: Birdo raised a claim for ineffective assistance of
counsel as to Page for failing to call certain witnesses, including Young, in his
brief before the Illinois Appellate Court and in his Petition for Leave to Appeal to
the Illinois Supreme Court. Dkt. 15-2 at 15, 17; Dkt. 14-5 at 11, 14.
July 2006 Post-Conviction: In his pro se state court post-conviction petition,
Birdo raised a claim for ineffective assistance of counsel as to Page for failing to
interview several important witnesses, including Young. In his December 2008
amended petition (submitted by appointed counsel Wray), Birdo raised the claim
as to Page for failing to investigate whether Young was present or had knowledge
of the incident. Dkt. 15-6 at 221, 267-70.
March 2010 Evidentiary Hearing: Page, the only witness called by Birdo’s
post-conviction trial counsel (Wray), testified (as summarized above at 9-10) that
he did not believe he had a report from the state regarding the bus driver, and that
“quite frankly from my recollection I don’t recall him ever giving a statement that
would suggest that he knew anything about this altercation, that he saw it, or was
even present for this alleged altercation.” Page further testified that Birdo told him
that Young was present during the incident and that he “guess[ed]” he could have
tracked Young down. Dkt. 15-21 at 19-21, 23-24. The circuit court granted the
State’s motion for a directed finding but did not mention Young in its oral
pronouncement. Dkt. 15-21 at 29-32.
Post-Conviction Appeal: Birdo raised a claim for ineffective assistance of
counsel as to Page for failing to investigate Young in his brief before the Illinois
Appellate Court (Dkt. 15-7 at 11-14), in his pro se petition for rehearing before
the Illinois Appellate Court (Dkt. 23-1 at 2-3), and his pro se petition for leave to
appeal to the Illinois Supreme Court (Dkt. 15-11 at 4-5).
The Illinois Appellate Court reviewed Birdo’s ineffective assistance of counsel claim on
the merits after the trial court denied the claim following the evidentiary hearing. In its written
order of October 14, 2011, the appellate court described Page’s testimony at the evidentiary

know if that was adopted by the prosecutor, but apparently there was a comment made to Kevin
by the bus driver much more egregious I would think than that. Kevin Birdo never struck out at
the bus driver for making some type of derogatory remark. He didn’t do that.” Dkt. 15-14 at 238.
27

hearing held in the Logan County Circuit Court. The appellate court wrote that Page
“acknowledged that defendant had told him that Young was present during the incident and
admitted he could have ‘track[ed] him down.’” Dkt. 15-10 at 5. The appellate court added:
In its oral pronouncement, the [circuit] court did not analyze or
mention Page’s conduct of not contacting Young. However, we
find the court’s analysis would apply equally to Young. Page
indicated he did not contact Young, though he could have
“track[ed] him down,” because references in the discovery and
testimony at the first trial indicated that Young had no knowledge
of the incident. (We note that testimony at the second trial also
indicated Young was not on the bus at the time of the incident.)
Failing to investigate a witness that purportedly had no knowledge
cannot constitute substandard performance … Further, as the
circuit court noted, defendant failed to present evidence that would
demonstrate that he was prejudiced by counsel’s alleged
ineffectiveness. He did not produce any information to the court by
way of testimony or affidavits that would have revealed the extent
of Young’s knowledge or the nature of his proposed testimony had
he been called as a witness … Defendant failed to demonstrate that
the outcome of his trial would have been different had Page
contacted Young. Without more, defendant cannot establish a
successful claim that Page rendered ineffective assistance of
counsel by not investigating Young’s involvement in or knowledge
of the incident.
Dkt. 15-10 at 9-10. The appellate court further found that Birdo’s claim for ineffective assistance
of appellate counsel as to post-conviction counsel Wray—for not presenting testimony or
statements from Young and other witnesses at the evidentiary hearing—also failed. Id. at 10-11.
The appellate court stated that Wray could not be deemed ineffective for failing to perform a
futile act, made futile because Page testified at the evidentiary hearing that he made a reasonable
professional judgment not to investigate Young’s involvement. Id. at 10.
2.

The Illinois Appellate Court’s Application of Strickland Was
Unreasonable.

Where a federal habeas court reviews a state court’s adjudication of a petitioner’s
ineffective assistance claim on the merits, 28 U.S.C. § 2254(d) applies and the question is
28

“whether the state court’s application of the Strickland standard was unreasonable.”13 Harrington
v. Richter, 131 S. Ct. 770, 785 (2011); see also Malone v. Walls, 538 F.3d 744, 758-59 (7th Cir.
2008) (“[T]he petitioner must establish that ‘[t]he state court’s application of Strickland [was]
objectively unreasonable and not merely erroneous.’”) (citations omitted). Further, when
AEDPA’s “highly deferential” standard for review of a state court’s application of federal law
applies in tandem with Strickland’s “highly deferential” standard for an attorney’s performance,
“review is ‘doubly so.’” Harrington, 131 S. Ct. at 788 (citation omitted). Thus, “[w]hen
§ 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id.
This Court first finds that under § 2254, the Illinois Appellate Court correctly stated the
Strickland standard, and so the court’s decision is not contrary to clearly established federal
law.14 See Malone, 538 F.3d at 757-58.
This Court concludes, however, that the Illinois Appellate Court’s application of
Strickland to the facts before it was unreasonable. As an initial matter, the state court speculated,
with no basis whatsoever, that the circuit court’s “analysis would apply equally to Young.” Dkt.
15-10 at 9. The fact of the matter is that the circuit court did not apply its analysis to Page’s
alleged failure to investigate Young, and to guess that the circuit court intended to address the
13

This Court reviews the opinion of the Illinois Appellate Court, the last state court to
rule on the merits of the issue. See Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) (“a
federal court reviewing a habeas petition should examine the decision of the last state court to
rule on the merits of the issue.”).
14

Under Strickland, “the right to counsel is the right to the effective assistance of
counsel.” Missouri v. Frye, 132 S. Ct. 1399, 1404 (2012). To establish a claim under Strickland,
Birdo must show that he received deficient assistance, and that there was prejudice as a result.
Strickland v. Washington, 466 U.S. 668, 690 (1984).
29

Young issue in the same manner, in addition to the other witnesses the circuit court did address,
is flatly unreasonable given the state of the record. See Taylor v. Grounds, 721 F.3d 809, 822
(7th Cir. 2013) (holding that trial court’s sparse decision containing no mention of fact and no
application of law to issue at hand could not support the higher court’s determination).
a.

The state court unreasonably applied Strickland as to Page’s
performance.

Under Strickland, a petitioner must first show that his counsel’s performance “fell below
an objective standard of reasonableness.” 466 U.S. at 688. Review of an attorney’s performance
is “highly deferential and reflects a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance … So long as an attorney articulates a strategic
reason for a decision that was sound at the time it was made; the decision generally cannot
support a claim of ineffective assistance of counsel.” Yu Tian Li v. United States, 648 F.3d 524,
527-28 (7th Cir. 2011). “But the presumption applies only if the lawyer actually exercised
judgment.” Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012). If a trial attorney’s
investigation of a potential witness was unreasonably limited, trial counsel’s decision not to
investigate a particular witness is “too ill-informed to be considered reasonable.” Stitts v. Wilson,
713 F.3d 887, 891 (7th Cir. 2013) (citing Mosley, 689 F.3d at 848). Here, there is no evidence
that Page made a considered judgment not to interview Young to find out what he would say
(and, indeed, it is difficult to understand what the downside to conducting such an interview
might have been, particularly given Page’s acknowledgement that it would not have been hard to
do).
To begin, Page plainly had reason to believe that Young may have been present during
the alleged battery. There is ample evidence in the state record that Page ignored Birdo’s pleas to
investigate Young and that Page knew, from various sources, that Young was a potentially
30

exculpatory eyewitness. Before Birdo’s first trial, for example, Page was in receipt of, and filed
with the court on August 6, 2002 (Dkt. 15-6 at 37), two witness statements from inmates who
claimed to be eyewitnesses and pointed to the bus driver’s presence during the incident. See
Rivas Stmt. (Dkt. 15-6 at 44) (“I don’t remember exactly what that officer said in response, but I
remember it being some type of rude and callous comment because it even made me mad.”); see
also Henry Stmt. (Dkt. 15-6 at 51) (“I also heard the c/o that drove the bus tell the c/o involved
in the incident not to worry, ‘that they’ll take care of it and nobody will believe a[n] inmate just
be cool and don’t do nothing else.’”). At the first trial, Page continued to hear about Young when
Birdo testified that he believed it was the bus driver who made a racially derogatory comment
when Birdo attempted to get on the bus. Dkt. 15-5 at 190 (“I believe the bus driver said – he
made some type of derogatory statement … [H]e said something about I guess we’re going to
have some fudge sickles, or something like that, for dessert.”). On the morning of his second
trial, Birdo told the trial court that Page refused to investigate Young, and filed with the court a
motion for a continuance so that Young could be investigated. Dkt. 15-13 at 34 (“After the trial
the defendant requested information regarding the bus driver and after the new trial was ordered
the defendant still sought information regarding this material witness and this request was never
responded to or fulfilled by Mr. Jeff Page.”); Dkt. 15-6 at 229 (“[D]efendant disclosed
information to his attorney Jeff Page concerning a bus driver … [T]he defendant needs a
substantial continuance to ascertain the bus driver’s name and whereabouts ….”). Page
ultimately admitted at the post-conviction evidentiary hearing that Birdo had told him about
Young (Dkt. 15-21 at 23 (“Mr. Birdo did mention that, yes.”)) and that he could have tried to
locate Young in order to determine what he would say about the incident. Id. at 24.

31

The only evidence in the state record that would support the Illinois Appellate Court’s
reasoning as to Page’s performance is Page’s testimony at the evidentiary hearing that
“references in the discovery and testimony at the first trial indicated that Young had no
knowledge of the incident.” Dkt. 15-10 at 9. The appellate court’s reliance on this fact over other
facts showing that Young was present during the incident was unreasonable for at least two
reasons. First, so far as the record indicates, there are no “references in the discovery” that
Young had no knowledge of the incident. The State’s discovery, on which Page purported to
rely, included no reference to Young one way or another (the State has identified none and the
Court has found none in the record), but the appellate court treated this absence of evidence as
affirmative evidence that Young had no knowledge of the incident (i.e., that he was not present).
But “absence of evidence is not evidence of absence.” In re Rail Freight Fuel Surcharge
Antitrust Litig., 725 F.3d 244, 254 (D.C. Cir. 2013); United States v. Harris, 2009 WL 3055331,
at *3 (N.D. Ill. Sept. 21, 2009) (Zagel, J.). Even standing alone, this was an unjustifiable
inference, but all the more so when there was in fact evidence—in the form of two witness
affidavits—asserting that Young was present. The appellate court noted several times that there
was testimony at both trials from correctional officers who stated that Young was not present at
the time of the incident, but Page never cited that testimony as a basis for his decision not to talk
to Young. In any event, the cold record provides no basis for the appellate court to have credited
the testimony of the officers over that of Birdo and Rivas. Further, contrary to the appellate
court’s statement that “two witnesses testified at defendant’s trials that Young was not present
during the incident,” only Officer Cowan affirmatively testified at both trials that Young was not
present. While Officer Wagner listed the officers involved in the incident, at neither trial did he
affirmatively testify that Young was not present. Dkt. 15-13 at 82; Dkt. 15-15 at 132-33. There
32

was, in short, no basis for the appellate court’s holding that a failure “to investigate a witness that
purportedly had no knowledge cannot constitute substandard performance.” That statement is
true enough, but beside the point. Birdo’s complaint (all along) has been that Young had
knowledge; the appellate court simply assumed that he did not and never considered the question
of whether Page was deficient in failing to confirm that fact.
Plainly, he was. Page did not offer a justification for failing to interview Young that was
based on trial strategy, or any other rationale, at the evidentiary hearing. Rather, his decision to
rely solely on the absence of information in the State’s discovery, and to ignore information from
his own client, corroborated by two witnesses, was enough to provide the appellate court with
evidence of Page’s substandard performance; “[f]ew decisions not to present testimony can be
considered ‘strategic’ before some investigation has taken place.” United States v. Best, 426 F.3d
937, 946 (7th Cir. 2005). See, e.g., Stitts, 713 F.3d at 892-94 (failure to investigate potential alibi
witnesses held to be objectively unreasonable); Mosley, 689 F.3d at 848-49 (same); Malone v.
Walls, 538 F.3d 744, 761-62 (7th Cir. 2008) (noting that “despite the importance of the evidence
… the record does not suggest a concrete reason why [defendant’s] counsel chose not to call [the
witness]”); Hampton v. Leibach, 290 F. Supp. 2d 905, 923 (N.D. Ill. 2001) (Kennelly, J.)
(unreasonable defense found where attorney “failed to follow up with the witnesses whose
names [the defendant] had given him.”); Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994)
(“[F]ailure to interview eyewitnesses to a crime may strongly support a claim of ineffective
assistance of counsel.”) (citations omitted); Sullivan v. Fairman, 819 F.2d 1382, 1391-92 (7th
Cir. 1987) (holding that defense counsel’s performance was insufficient where counsel made
only perfunctory attempts to locate exculpatory witnesses of which he was aware and because
“counsel had reason to know, from an objective standpoint, that a possible defense … [was]
33

available.”) (citation omitted). In sum, the state court’s finding that Page’s failure to determine
what, if anything, Young witnessed did not constitute substandard performance was an
unreasonable application of the first prong of Strickland.
b.

The state court unreasonably applied Strickland when it found
no prejudice.

As to prejudice, a petitioner must demonstrate “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. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. It is not enough to show that “the errors had some conceivable
effect on the outcome of the proceeding.” Id. at 693. Counsel’s errors must be “so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. In other words, the
likelihood of a different result must be substantial, not just conceivable. Id. at 693.
The problem Birdo faces here, as the respondent points out, is that he presented no
evidence to the state courts to establish that Page’s failure to investigate Young resulted in
prejudice to Birdo. The respondent maintains that Birdo’s failure to proffer an affidavit by
Young in state court establishing what his testimony would be is fatal to his claim of prejudice.
But that is only true if the state court’s application of the prejudice prong of Strickland
was within the bounds of reason. Here, it was not. The state appellate court assumed, based on
the evidence before it, that Young would have been an unhelpful witness (“a witness that
purportedly had no knowledge,” Dkt. 15-10 at 9), but, as already discussed, there was virtually
no basis to draw that conclusion. The court did not know what, if anything, Young had to say
about the incident. It follows that the appellate court could not know, without assuming, whether
Young’s testimony would create a reasonable probability that the outcome of Birdo’s trial would
have been different. No fair-minded jurists could disagree on this point. See Harrington, 131 S.
34

Ct. at 786 (“A state court’s determination that a claim lacks merit precludes federal habeas relief
so long as ‘fairminded jurists could disagree’ on the correctness” of the state court’s decision)
(citation omitted).
The appellate court could just as easily have assumed the presence of prejudice. The
state’s case at the second trial rested heavily on the testimony of two correctional officers,
Wagner and Cowan, and Birdo’s case rested heavily on his own testimony. In the state’s closing,
the prosecutor pointed to this fact: “You have heard the testimony of Officer Wagner and of
Officer Cowan, and if we can just boil this case down to its basic elements, this case really
comes down to who are you going to believe. You have their testimony contrasted against that of
the defendant.” Dkt. 15-14 at 219. If Page had at least interviewed Young, as Birdo repeatedly
requested, Birdo may have then called Young as a corroborating witness and a fairer contest at
trial may have ensued. Instead of a one-sided version of events, there may have been a contest
between competing eyewitness testimony, and a reasonable probability that a jury would have
reasonable doubt as to Birdo’s guilt. See Stitts, 713 F.3d at 894 (citing Washington v. Smith, 219
F.3d 620, 635 (7th Cir. 2000) (“All [the defendant] needed to do was establish a reasonable
doubt, and having additional, credible alibi witnesses would have covered a lot of ground toward
that goal”)).
In Stitts, the Seventh Circuit confronted a similar situation. The petitioner asserted that
his trial counsel was ineffective because, before deciding not to present an alibi defense, the
attorney interviewed only one witness and failed to investigate any other witnesses. 713 F.3d at
888. In an affidavit, submitted as evidence at a state post-conviction hearing, the trial attorney
stated that he recalled considering an alibi defense, “but ultimately ch[o]se not to pursue” it
because “I do not recall there being any quality witnesses to testify on his behalf ….” Id. at 890.
35

The affidavit did “not specifically mention the extent of his alibi investigation.” Id. After the
district court denied Stitts’s habeas petition, the Seventh Circuit held that the state court
unreasonably applied Strickland as to both prongs. Id. at 892-93. As to prejudice, the court noted
that the prosecution’s case “rested entirely” on two witnesses and that the defendant’s version of
events could have been corroborated by the testimony of additional witnesses. Id. at 894 (“[I]f
these witnesses testified, the trial would have been transformed from a one-sided presentation of
the prosecution’s case into a battle between competing eyewitness testimony, where there would
have been a ‘reasonable probability’ that a jury would have reasonable doubt as to [the
defendant’s] guilt and therefore acquit.”). Further, the court found that the trial attorney’s
affidavit was “entirely silent about the extent of his investigation.” Id. at 895. The state court
“essentially assumed for the sake of argument that trial counsel’s investigation was limited to
[one witness], but concluded (unreasonably) that such a limited investigation would have passed
constitutional muster anyway.” Id. at 895. The court added, “Nor is the record so clear that we
can simply answer this question as an appellate court.” Id. The Seventh Circuit remanded the
case to the district court to first determine the extent of trial counsel’s investigation and then to
determine de novo whether that investigation constituted ineffective assistance under Strickland.
Id.
As in Stitts, the state appellate court in Birdo’s case made an assumption on a record that
suffers from a lack of critical information about the testimony of a potentially key witness. We
know no more about what Young would have said about the incident had Page contacted him
than the Stitts court knew about the potential alibi witnesses who may never have been
interviewed in that case. Indeed, this case presents a stronger case for prejudice than did Stitts.
There, the record left it unclear whether defense counsel had interviewed potentially critical
36

witnesses; here, the record makes clear that defense counsel did not. The state court’s application
of Strickland’s prejudice prong, therefore, was unreasonable under § 2254(d)(1).
3.

An Evidentiary Hearing Under § 2254(e) May Be Necessary.

Now that this Court has found that the state appellate court unreasonably applied
Strickland, what remains to be resolved is whether Birdo was in fact prejudiced; i.e., whether
there is a reasonable probability that Young’s testimony would have altered the outcome of
Birdo’s trial. This significant factual question remains unanswered by the state courts and in the
state court record before this Court. An evidentiary hearing under § 2254(e) therefore may be
necessary to give both Birdo and the respondent an opportunity to develop evidence. See Stitts,
713 F.3d at 895 (“Remand [to review facts outside the state record and for an evidentiary hearing
if necessary] is appropriate in situations like these because the state court did not make a critical
factual finding to which we may defer.”); see also Quintana v. Chandler, 723 F.3d 849, 852, 855
(7th Cir. 2013) (once a state court decision is found to be an unreasonable application of federal
law, a federal court can benefit from an evidentiary hearing under § 2254(e)).
To be clear, the opportunity to develop this evidence is limited. First, this Court has
enough information, based on the state record, to find that Page’s performance was deficient. An
evidentiary hearing would therefore be restricted to the unresolved question of whether Page’s
deficient performance with respect to investigating Young’s potential testimony in fact
prejudiced Birdo. The sole evidence that would be helpful to answer this question is what David
Young would have said had Page asked him about the incident and whether that information
would have corroborated Birdo’s version of events. This evidence may be collected by finding
and interviewing David Young and/or by identifying other evidence, if it exists, that shows what

37

Young would have said about the incident.15 If Birdo’s appointed counsel learns through
investigation that Young’s testimony would be unhelpful (for whatever reason) to answering the
unresolved question facing this Court, an evidentiary hearing will not be necessary. If, on the
other hand, Birdo’s appointed counsel learns that Young’s testimony (or any other evidence) will
be helpful, an evidentiary hearing will be necessary. In other words, what, if anything, Young
now has (or once had) to say about the incident is the critical question, and the only question that
is potentially ripe for a hearing.16
In reaching this conclusion, the Court recognizes the limitations imposed by AEDPA on a
federal habeas court’s authority. Review by a federal court under § 2254(d) is limited to
reviewing a state court’s “adjudication on the merits.” Recent Supreme Court precedent limits
that review to “the record that was before the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). The Seventh Circuit’s opinion in
Mosley v. Atchison provides clear guidance to district judges on how to proceed in a habeas case
in the post-Pinholster world. 689 F.3d 838 (7th Cir. 2012). “Where a district court properly finds
that a state court’s decision was contrary to or involved an unreasonable application of clearly
established federal law, it must still answer the question underlying § 2254(a): whether a
petitioner is actually ‘in custody in violation of the Constitution or laws or treaties of the United
States.’” 689 F.3d at 842. In other words, “Pinholster does not confine a district court’s decision
on that ultimate question under § 2254(a) to a limited state court record.” Id. See also Pinholster,
15

Rivas, Henry, and Hardaway were not raised as part of Birdo’s claim for ineffective
assistance of counsel in his federal habeas petition. Page’s performance as to those potential
witnesses, therefore, is not at issue, and in any event, Page testified about his considered reasons
for not calling those witnesses during the state court post-conviction evidentiary hearing.
16

The State, of course, will also have the opportunity at an evidentiary hearing to present
any evidence relevant to the question of what Young’s testimony about the incident would have
been.
38

131 S. Ct. at 1412 (Breyer, J., concurring in part and dissenting in part) (“If the federal habeas
court finds that the state-court decision fails (d)’s test (or if (d) does not apply), then an (e)
hearing may be needed.”).
Applying Mosley, this Court first assessed, above, whether Birdo properly established a
case under § 2254(d) by looking only at the record that was before the state court. The Court
found that Birdo was successful under § 2254(d)—the Illinois Appellate Court’s decision was an
unreasonable application of both prongs of Strickland. The next step is to determine whether
Birdo is, in fact, in custody in violation of the Constitution or laws or treaties of the United
States. To answer this question, the state record is insufficient. Despite holding its own
evidentiary hearing, the Logan County Circuit Court refrained from making any findings of fact
as to Young. As discussed above, that factual void then appeared in the Illinois Appellate Court
decision. Dkt. 15-10 at 9 (“[T]he court did not analyze or mention Page’s conduct of not
contacting Young [but] we find the court’s analysis would apply equally to Young.”). The state
record is ambiguous and does not provide this Court with certainty regarding whether or not
Birdo is “in custody in violation of the Constitution or laws or treaties of the United States.” See
Taylor, 721 F.3d at 824 (remanding for an evidentiary hearing because “the state court did not
make a critical factual finding to which we may defer.”); see also Stitts, 713 F.3d at 896
(remanding for an evidentiary hearing not to determine whether state court unreasonably applied
Strickland but to reach an issue the state court never addressed). This Court will consider
additional evidence, if helpful and as limited by the restrictions mentioned above, presented at a
federal evidentiary hearing to determine whether Birdo is entitled to relief. See Mosley, 689 F.3d
at 854.

39

The AEDPA also generally bars federal courts from holding evidentiary hearings to
supplement the record. 28 U.S.C. § 2254(e)(2). Where, however, “the ‘fail[ure] to develop the
factual basis of a claim in State court proceedings’ can not be attributed to something the
petitioner ‘did or omitted,’ Section 2254(e)(2) does not apply and it is then necessary to evaluate
the request for an evidentiary hearing under pre-AEDPA standards.” Matheney v. Anderson, 253
F.3d 1025, 1039 (7th Cir. 2001). “Under pre-AEDPA standards, a federal evidentiary hearing is
required if (1) a habeas petitioner alleges facts which, if proved, would entitle him to relief and
(2) the state courts – for reasons beyond the control of the petitioner – never considered the claim
in a full and fair hearing ….” Id. (citation omitted). See, e.g., United States of America, ex rel.
Owens v. Acevedo, 2012 WL 1416432, at *13 (N.D. Ill. Apr. 23, 2012) (Pallmeyer, J.) (setting
forth requirements under 2254(e)(2) after finding need for evidentiary hearing post-Pinholster).
Birdo meets these requirements. First, the failure to develop the factual basis of Birdo’s
ineffective assistance of counsel claim in state court cannot be attributed to something Birdo “did
or omitted.” Birdo has diligently tried to develop the facts of his claim in state court, raising the
claim at every opportunity, including before his second trial while Page was present. Yet Birdo
has been stymied by the choices of his trial counsel and post-conviction counsel. As an inmate
whose only access to assistance was counsel who have apparently disregarded Birdo’s claim as
to Young, it is obvious that Birdo’s efforts were limited by others and not by any action or
omission on his part. Further, Birdo did not miss the opportunity to claim that his post-conviction
counsel, Wray, was ineffective for failing to investigate Young, either. Birdo has tried, in the
best way he could, to raise the issue of Young’s presence; the failure to develop these facts in
state court cannot be attributed to him.

40

Second, Birdo has alleged facts which, if proved, would entitle him to habeas relief.
Birdo alleges that Page failed to investigate Young, a potentially exculpatory witness, despite
Birdo’s pleas. If Birdo is able to prove that Page’s deficient performance did, in fact, prejudice
him, Birdo would be entitled to relief. Birdo is being given an opportunity to cure a deficiency in
the state court record, a deficiency that is not due to his own lack of due diligence. This Court,
after finding that the state court’s decision was unreasonable, will make a de novo determination
regarding prejudice. The question that will face this Court is whether Birdo can show with the
record he presents going forward that he was prejudiced by Page’s failure to find out what
Young would have said about the incident. See Strickland, 466 U.S. at 694 (“The defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.”). If Birdo cannot make that showing, which is his
burden, his claim will fail on the merits. See id. (“a court making the prejudice inquiry must ask
if the defendant has met the burden of showing that the decision reached would reasonably likely
have been different absent the errors.”).
Third, because the facts regarding the potential prejudice caused by Page’s deficient
performance have always been undeveloped, the state courts never provided Birdo with a “full
and fair hearing” as to his ineffectiveness claim. Although the state circuit court held an
evidentiary hearing, Young was never presented to testify nor did he submit an affidavit
describing his potential testimony. His knowledge, potentially exculpatory to Birdo (or perhaps
not) was a mystery. The circuit court, then, was unable to evaluate the prejudice Birdo may have
suffered due to Page’s deficient performance, thus depriving Birdo of a “full and fair hearing” on
this claim. These failures led to an undeveloped record—one which remains undeveloped
today—regarding what Young would say had Page contacted him.
41

Finally, as to Birdo’s failure to attach an affidavit in state court averring the substance of
Young’s testimony, the Illinois Appellate Court did not default Birdo for this potential error.
Although the appellate court noted the absence of an affidavit from Birdo, Dkt. 15-10 at 9-10, it
addressed the merits of Birdo claim in its entirety, without relying on the potential procedural
error of the absent affidavit.17 Because the state court chose to ignore this default, it poses no
obstacle to this Court’s consideration of Birdo’s ineffectiveness claim. See Coleman, 501 U.S. at
730 (a claim is only procedurally defaulted if the state court clearly and plainly relies on the
default as an independent and adequate state law ground for its ruling); see also Braun, 227 F.3d
at 908 (the state court must have actually and “clearly and expressly” relied on the procedural
default as the basis of its ruling, otherwise the procedural default will not bar federal habeas
review).
*

*

*

For the reasons set forth above, the Court will convene an evidentiary hearing if, after
investigation, Birdo’s newly appointed counsel reports that an evidentiary hearing will be helpful
to determine whether Page’s failure to investigate Young in fact prejudiced Birdo. All other
claims set forth in the petition are denied. With resolution of a constitutional issue pending, the
court declines to issue a certificate of appealability at this time. A status conference is set for
December 17, 2013, at 9:00 a.m. to discuss a time table for counsel’s investigation and any
hearing that may be required.

17

Rather, the appellate court considered the absent affidavit as part of its merits
determination and, in particular, under the second prong of Strickland. Dkt. 15-10 at 9-10.
42

Entered: December 12, 2013

John J. Tharp, Jr.
United States District Judge

43