Snow v. Lemke

Filing 60

MEMORANDUM Opinion and Order signed by the Honorable Elaine E. Bucklo on 12/20/2016. Mailed notice. (mgh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JAMES SNOW, Reg. No. N50072,
PETITIONER,

v.
RANDY PFISTER,1 Warden,
Superintendent, or
authorized person having
custody of petitioner,
RESPONDENT.

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No. 13 C 3947

MEMORANDUM OPINION AND ORDER
James Snow (“Snow”) has filed a petition for writ of habeas
corpus challenging his conviction for first degree murder. Snow
asserts that his attorneys rendered ineffective assistance of
counsel by failing to conduct an adequate investigation into his
case and by failing to impeach various witnesses. He also
contends that the state committed multiple violations of Brady
v. Maryland, 373 U.S. 83 (1963), by failing to disclose
information helpful to his defense. For the reasons below,
Snow’s petition is denied.
I.

1

I substitute Michael Lemke with Randy Pfister, the current
warden of Stateville Correctional Center, as the respondent in
this action. See Rule 2(a) of the Rules Governing Section 2254
Cases in the United States District Courts.

At approximately 8:15 p.m. on Easter Sunday, March 31,
1991, William Little (“Little”), who was working as an attendant
at a Clark Oil gas station (“the Clark station”) in Bloomington,
Illinois, was shot and killed during an apparent robbery. The
gas station’s silent alarm had been triggered and Officer
Jeffrey Pelo (“Pelo”) of the Bloomington Police Department
(“BPD”) responded. Pelo parked his vehicle behind a building
across the street and approached the station on foot. He saw
Danny Martinez (“Martinez”) in the gas station’s parking lot
filling his car’s tires with air. Pelo saw Martinez walk toward
the station, then turn back around, return to his car, and drive
off. Pelo had a brief conversation with the police dispatcher
about the vehicle’s license plate number. A pickup truck then
pulled into the station’s parking lot. Pelo instructed the
driver to park across the street and wait for him. Pelo then
entered the station and found Little lying behind the counter.
He had been shot twice and died at the scene.
Martinez, who lived next door to the Clark station, was
later interviewed. He told investigators that he heard two
“bangs” while filling his tires, and that he initially believed
these to have been the sound of his car backfiring. After
filling his tires, Martinez started walking toward the station.
He claimed that he noticed a man walking backwards out of the
door. Martinez said that he momentarily turned back toward his

2

car because he heard its engine begin to stall, and that when he
turned back toward the station, he was within a few feet of the
man. Martinez would later testify that he had been struck by the
man’s eyes, stating “His eyes was wide open like if he was out
the whole night, and I’ll never forget those eyes.” Ex. B at
160.2
A second witness, fourteen year-old Carlos Luna (“Luna”),
who lived across the street from the Clark station, told
investigators that he was looking out of his window at the time
of the incident and saw a white male walking out of the gas
station. He stated that the man appeared to be carrying
something under a long trench coat. Gerardo Gutierrez
(“Gutierrez”) told investigators that he had purchased fuel at
the Clark station around the time in question and that when he
entered the station to pay, he saw another man with the
attendant. The individual turned away, appearing as though he
did not want to be seen. The police made composite sketches
based on Martinez’s, Luna’s, and Gutierrez’s descriptions, but
no suspect was apprehended.
On April 23, 1991, a police officer for Webster Groves,
Missouri went to the home of Snow’s sister to arrest him on a
warrant for the robbery of a Freedom Oil gas station in

2

The state’s exhibits are identified alphabetically. Snow’s
exhibits are identified numerically.
3

Bloomington in February 1991. Snow’s sister and wife initially
told the officer that Snow was not there, but Snow was found
several hours later hiding in the attic.
The following day, BPD Detectives Russell Thomas (“Thomas”)
and Charles Crowe (“Crowe”) transported Snow back to
Bloomington. Thomas testified that during the trip, Snow
appeared anxious and agitated and asked whether he was a suspect
in Little’s murder. After arriving back at Bloomington, Snow was
questioned by Thomas and Michael Bernardini (“Bernardini”), an
Agent of the Illinois State Police. Thomas and Bernardini asked
Snow about a number of crimes, including the robbery of the
Freedom Oil station and the murder/robbery at the Clark station.
According to Thomas’s and Bernardini’s testimony, Snow indicated
during the interview that he had information about Little’s
murder but that he wanted a deal before saying anything.
In June 1991, the BPD arranged for a lineup that was to
include Snow and five other individuals. By all accounts,
including Snow’s, he initially refused to participate. See,
e.g., Ex. I at 179-81; Ex. J at 19. Richard Koritz (“Koritz”), a
public defender representing Snow in another matter at the time,
had previously spoken to BPD detectives about the lineup and was
present when it took place. Koritz testified that Snow was
“distraught and upset” about participating in the lineup. Ex. H
at 21. According to Snow, he initially refused to stand in the

4

lineup only until Koritz arrived. See Ex. I at 183-84. However,
several other witnesses testified that Snow remained upset after
speaking with Koritz and that Snow had stated that he was going
to fire Koritz. See, e.g., Ex. H at 19-20; Ex. J at 19-20; Ex. F
at 135. According to detectives Crowe and Thomas, Snow agreed to
participate in the lineup only after being told that he would be
forced to do so if he continued to refuse. Ex. J at 21; Ex. F at
135.
Luna viewed the lineup and stated that Snow looked like the
man he had seen leaving the gas station on Easter evening.
Martinez indicated that he thought two of the individuals looked
like the perpetrator; however, neither of the individuals was
Snow. At a later time, however, Martinez identified Snow from a
photograph in a local newspaper. Gutierrez also made no
identification.
After the lineup, Snow moved to St. Petersburg, Florida
with his wife, Tammy, and their children. Snow returned to
Bloomington in July 1993, and in October 1994, he pleaded guilty
to obstruction of justice for attempting to persuade a
girlfriend of his to lie about his involvement in another crime.
Snow was incarcerated until February 1996. During this period,
he was housed in several different prisons. Upon his release,
Snow moved back to St. Petersburg.

5

In September 1999, Snow was indicted for Little’s murder.3
Snow testified that when he learned of this, he moved to Ohio.
Ex. I at 114, 202. Later that month, he was apprehended in
Akron, Ohio, after a violent fugitive task force received a tip
regarding where Snow was living. Detective Robert Ondecker
(“Ondecker”) approached the location and saw an individual
matching Snow’s description. Ondecker testified that Snow
identified himself as “David Arison” and produced a birth
certificate and social security card with Arison’s name. When
Ondecker asked Snow to pull down his sock so he could check for
a tattoo on his calf, Snow fled. He was found a short time later
hiding under the porch of a nearby home.
Snow’s Trial
In March 2000, G. Patrick Riley (“Riley”) was appointed to
represent Snow. Riley requested additional counsel, and in April
2000, Frank Picl (“Picl”) was appointed to assist in Snow’s
representation. Riley and Picl were two of a handful of
attorneys in Bloomington whose experience qualified them for the
state’s capital litigation trial bar. The state was represented
by Charles Reynard (“Reynard”), who at that time was McLean

3

Susan Claycomb, Snow’s girlfriend at the time of the murder,
was also indicted in connection with the Clark station crime.
She went to trial shortly before Snow and was acquitted.

6

County’s State’s Attorney, and Assistant State’s Attorney (ASA)
Teena Griffin (“Griffin”).
On December 20, 2000, Snow sent the trial judge a letter
stating that he believed Picl and Riley were unprepared for
trial. At a subsequent hearing, Snow asked that his trial be
continued. The judge questioned Picl and Riley, who stated that
they were prepared to go forward. The judge denied Snow’s
request for a continuance.
Snow’s trial began in January 2001 and lasted for nine
days. In all, the state called forty-three witnesses, and Snow
called fifteen. In addition to the eyewitness testimony of
Martinez and Luna, the state presented several witnesses who
testified that Snow had confessed to killing Little, bragged or
joked about having done so, or had otherwise implicated himself
in the crime. Because the state’s case depended on the
collective strength of these witnesses’ testimony, I summarize
the main points here.
Ed Palumbo (“Palumbo”), a friend of Snow’s, claimed that a
few days after the Clark station murder, he was driving in his
car with Shannon Schmidt Wallace (“Wallace”), his girlfriend at
the time, when he saw Snow driving in his car. The two pulled
alongside one another and Snow asked Palumbo if he had read
about him in the paper. When Palumbo answered that he had not,
Snow told him he should be sure to read about it. Palumbo asked

7

what the paper said and Snow responded, “Boom, boom. Gun goes
off. Kid dies.” Ex. C at 123. Palumbo said that he spoke about
the conversation with Wallace when they got home. Wallace later
corroborated that Palumbo had spoken with her about the
conversation and had told her “Jamie said that the gun went off
and the kid died.” Ex. E at 76.
Palumbo testified to a later conversation in which he told
Snow that it “wasn’t too smart” of Snow to have talked about the
murder in front of other people. Snow replied that he was not
worried because he trusted the others who had been present
during the conversation. According to Palumbo, Snow “basically
said that the kid was a smart ass so he shot him,” Ex. C at 126,
and that killing Little was not as hard as he had imagined.
Palumbo also testified that Snow provided additional details
about the crime, including that Snow had gotten very little
money from the robbery; that he did not think the composite
sketch resembled him; and that he had disposed of the gun used
in the murder.
William Gaddis (“Gaddis”) testified that he had known Snow
for most of his life. According to Gaddis, on the night of the
murder, or the day after, he went to his brother’s apartment and
observed Snow and a number of other individuals in a bedroom.
Gaddis testified that everyone looked depressed and that he
asked, “who died?” Gaddis testified that one of the individuals

8

in the room replied that “Jamie shot that boy or shot a boy at
the gas station.” Ex. D at 20. Gaddis said that he then looked
at Snow, who had his head down, and that Snow did not deny what
had been said.
Dan Tanasz (“Tanasz”) testified that he lived and worked
with Snow in Florida between 1995 and 1997. He stated that he
had conversations with Snow in which Snow said that he was
unable to return to Illinois because he had been involved in a
robbery there. Tanasz also said that Snow told him that he had
shot someone.
Bill Moffitt (“Moffitt”) testified that he shared a cell
with Snow at Joliet Correctional Center in October 1994.
According to Moffitt, he had met Snow previously because the two
had attended some of the same parties. During their first night
as cellmates, Moffitt testified, Snow talked about the Clark
station murder, referring to the victim as “BL.” Moffitt stated
that Snow told him he was “concerned because he had committed a
crime that had went wrong, and he was concerned that some people
knew about it; but at the same time he felt safer where he was.”
Ex. D at 102. According to Moffitt, Snow stated that he had been
out getting high with friends on the night of the murder, and
that, having run out of money, they decided to rob the gas
station. Moffitt testified that Snow told him the decision to
rob the station was “kind of based on the fact that he knew the

9

individual; and he didn’t believe that that individual would do
anything to stop him.” Id. at 103.
Edward Hammond (“Hammond”) testified that he had known Snow
for twenty-five years, and that the two had seen one another in
July 1995 at Centralia Correctional Center. Hammond stated that
over the course of several conversations, Snow told him that he
“shot the kid or he killed the kid. It was something along that
line.” Ex. D at 136. According to Hammond, Snow also stated
“that he knew he wasn’t ever going to get caught because if they
had recognized him, he would have been busted a long time ago.”
Id.
Randall Howard (“Howard”) testified that Snow picked him up
from a bus station a day or two after the murder and that Snow
asked him if he had heard what had happened. When Howard said
no, Snow told him, “Man, bro, I fucked up. I shot this kid.” Ex.
E at 49. Howard testified that he told Snow he did not believe
him, and that after a minute or two, Snow claimed to have been
joking.
Jody Winkler (“Winkler”) testified that he and Snow worked
together in Florida and that during the summer months of 1999,
he lived in an apartment behind Snow’s home. Winkler stated that
during a conversation in 1999, Snow mentioned his concern about
being indicted for the Clark station murder and indicated that
he had committed the crime. During another conversation, Winkler

10

testified, Snow said that the police were in Florida trying to
locate witnesses against him. Snow asked Winkler if he (Snow)
had previously said anything incriminating to Winkler about the
crime, and Winkler replied that he had not.
Steven Scheel (“Scheel”) testified that he had known Snow
since childhood.

He stated that he saw Snow at a party in April

1991 after not having seen him for several years. According to
Scheel, Snow told him that he had robbed the Clark station and
had shot the attendant.
Kevin Schaal (“Schaal”) testified that he was Snow’s
cellmate in Centralia Correctional Center in 1996, and that he
later lived with Snow in Florida. Schaal stated that he had
several conversations with Snow in 1999 about the Clark station
murder. Schaal initially testified at trial that Snow had not
implicated himself in the crime but instead had told him only
that he had helped the perpetrator hide in an attic. However,
Schaal was presented with a prior statement he made to Reynard,
Detective Dan Katz (“Katz”), and an ATF agent several months
previously. In the earlier statement, Schaal stated that Snow
had confessed to being present at the shooting. Schaal also
stated that the ATF agent told him he would try to help Schaal
if he provided them with information about Snow.
Ronnie Wright (“Wright”) testified that in 1997, he had a
conversation with Snow while the two were living in Florida.

11

Wright stated that he asked Snow why he was living in Florida
and that Snow replied that he had shot someone during an armed
robbery in Bloomington. Wright also testified that he had a
conversation with Snow in 2000 while both were incarcerated in
the McLean County Jail. According to Wright, Snow told him to
forget what he had previously said to him about his involvement
in the crime.
Dawn Roberts (“Roberts”) testified that in 1993 or 1994,
she was in Snow’s trailer with several other people. She stated
that she saw composite sketches on Snow’s table of the Clark
station murder suspect. According to Roberts, Snow asked her and
the others to take down the sketches that had been posted around
town and to bring them to him. On another occasion, Roberts
testified, she witnessed a conversation between Snow and Snow’s
friend, Mark McCown (“McCown”), who had expressed concern about
the composite sketches. Roberts stated that Snow told McCown not
to worry because the sketches were of him (Snow), not of McCown.
Finally, Roberts testified that on another occasion, Snow had
made a toast by pouring a beer onto the ground and stating,
“This is for Billy Little.” Ex. F at 36.
Bruce Roland (“Roland”) testified that he was incarcerated
with Snow at Logan Correctional Center in 1994. According to
Roland, Snow told him he was “on the circuit” (i.e., being
transferred from prison to prison) because of his reputation for

12

committing the Little murder. Roland testified that Snow had
told him that on the night of the murder, Snow had been partying
at a home near the Clark station; that Snow went to the station
to get a free pack of cigarettes; that Snow left angrily when
the attendant refused; that Snow later returned and shot Little
because he was afraid he could identify him; and that Snow took
the pack of cigarettes and what money he could find before
leaving. According to Roland, Snow also told him that McCown was
with him during the commission of the murder.
Karen Strong (“Strong”) testified that she was living with
McCown on Easter of 1991. She stated that on the night of the
murder, McCown arrived at their home late at night with Snow and
asked her if Snow could stay with them for a few days. Strong
said that she refused. Strong was later recalled as a rebuttal
witness after McCown testified for Snow. She testified that
McCown had told her that Snow “was in a lot of trouble because
he had shot the Little kid in the robbery.” Ex. J. at 9.
Finally, Mary Jane Burns (“Burns”), who was a correctional
officer at McLean County jail during Snow’s time there,
testified that Snow had told her on one occasion that he was
“real sure or he knew” who had committed the Clark station
murder. Ex. G at 23. According to Burns, Snow said that he and
his girlfriend at the time, Susan Claycomb (“Claycomb”), had
been drinking heavily with another couple on the day in

13

question, and that they all decided to go out for a “joy ride.”
Burns testified that Snow told her that the car pulled into an
alley and that he got out because he was going to vomit. The
other male in the car began walking down the alley and said he
would return shortly. The male returned after a few minutes, got
into the car, and they took off.
In all, two eyewitnesses identified Snow, and twelve others
testified that Snow made statements (or in the case of Gaddis,
did not dispute others’ statements) indicating his involvement
or implication in the murder. In addition, Shannon Wallace and
Karen Strong testified that Palumbo and McCown, respectively,
had told them Snow had admitted responsibility for the crime.
Snow testified at length in his own defense. He claimed to
have been at home with his wife on the night in question, and he
denied telling any of the witnesses that he had killed Little.
Snow’s alibi was corroborated by his wife, who testified that
she was with him during the time in question. In addition to
Snow and his wife, the defense presented other witnesses to
rebut the testimony of several of the state’s witnesses.
In its closing, the state focused on eyewitnesses Martinez
and Luna, as well as the many other witnesses who testified that
Snow had implicated himself in the crime. The state also argued
that Snow’s guilt was further supported by his refusal to
participate in the lineup, his flight to Ohio following his

14

indictment, and his attempt to use a false identity before he
was apprehended in Ohio. In addition, the state attacked Snow’s
alibi, noting that although Snow had long known that he was a
suspect in connection with the Clark station crime, he never
claimed to have had an alibi until his trial.
The defense’s closing argument attacked the testimony of
the state’s witnesses. Picl pointed out inconsistencies between
the testimony of various witnesses (e.g., Martinez and Officer
Pelo). He also reminded the jury that the events in question had
taken place ten years earlier, that none of the witnesses had
contacted authorities after Snow allegedly confessed the crime,
and that many of the state’s witnesses had lengthy criminal
histories. Picl also argued that the number of witnesses against
Snow was a “red flag,” suggesting that it was implausible that
Snow would have confessed his involvement in murder to so many
people. See Ex. K at 126-27.
After deliberating for two days, the jury found Snow
guilty.
State Court Post-Trial Proceedings
In January 2001, Snow sent two letters to the trial court
asserting that his attorneys had provided ineffective assistance
of counsel. Snow claimed that Picl and Riley were generally
unprepared for trial and that they had failed to call a number
of important witnesses. Snow also claimed that Picl had been

15

intoxicated on a number of occasions. Snow filed a motion
seeking to discharge Picl and Riley (the “discharge motion”).
For their part, Picl and Riley filed a motion seeking to
withdraw as Snow’s counsel, stating that it had become
impossible to work with him.
In April 2001, the trial judge held a hearing on Snow’s
motion. The judge reviewed item-by-item each of Snow’s
complaints about his attorneys. Snow was given a chance to
explain each grievance, and Picl and Riley were allowed to
respond. The prosecution was also allowed to comment. In a
written opinion (the “April 2001 opinion”), the court denied
Snow’s motion to discharge and the attorneys’ motion to
withdraw. The court found that Picl and Riley had spent hundreds
of hours preparing for trial and that they had sufficiently
explained their strategic reasons for not calling the various
witnesses identified by Snow. Id. at 3. As to the allegations of
Picl’s intoxication, the court stated that there had been no
sign of impairment, neglect, or incompetence on Picl’s part. Id.
at 8. The court found “that the Defendant’s attorneys
competently cross-examined and impeached every one of the
State’s proffered witnesses” and that “[t]he performance of
trial counsel in this case was not just competent, but excellent
in the opinion of the Court.” Id. at 14. Picl and Riley

16

continued to represent Snow at his sentencing. In May 2001, the
court sentenced Snow to natural life in prison.
After the trial court denied Snow’s motion to reconsider,
he appealed, alleging, inter alia, ineffective assistance of
counsel. In an August 2004 opinion, the appellate court denied
Snow’s direct appeal. People v. Snow, No. 4-01-0435 (Ill. App.
Ct. Aug. 20, 2004) (“Snow I”).4 In November 2004, the Illinois
Supreme Court denied Snow’s petition for leave to appeal (PLA).
In May 2004, while his direct appeal was still pending,
Snow filed a pro se petition for postconviction relief. In 2008,
the Exoneration Project began representing Snow and subsequently
filed an amended petition citing new evidence in support of
Snow’s ineffective-assistance claim. The petition noted that in
2006, Picl had pleaded guilty to Financial Exploitation of an
Elderly Person, 720 ILCS 5/17-1.3, and had subsequently been
disbarred, Ex. 21. Snow cited evidence from Picl’s sentencing
indicating that he suffered from mental illness, a gambling
addiction, and alcoholism, and that these conditions had
resulted in personal and professional problems as far back as
1999. Snow also cited two court cases, People v. Beaman, 890
4

Snow was charged with three different murder counts:
intentional, knowing, and felony murder. See 720 ICLS 5/91(a)(1), (a)(2), & (a)(3). He was convicted on all three counts.
In Snow I, the appellate court vacated Snow’s convictions for
knowing murder and felony murder, holding that where only one
person is murdered, a defendant can be convicted on only one
count. Snow I, at 31.
17

N.E.2d 500 (Ill. 2008), and People v. Drew, No. 4-08-0011 (Ill.
App. Ct. Dec. 4, 2008), which he claimed showed a pattern of
misconduct on the part of the BPD and the McLean County State’s
Attorney’s Office (and in particular on the part of Reynard and
Detective Katz). In addition, Snow presented a number of
affidavits in which witnesses recanted, or partially recanted,
their trial testimony, or otherwise made allegations helpful to
Snow’s case. Some witnesses stated that BPD detectives had
pressured or threatened them into testifying against Snow;
others alleged that certain of the state’s witnesses had
received rewards for testifying against Snow.
In April 2011, the circuit court denied Snow’s
postconviction petition, see People v. Snow, No. 99 CF 1016,
slip op. (Ill. Cir. Ct. Apr. 21, 2011) (“Snow II”), and in
January 2012, the appellate court affirmed the circuit court,
see People v. Snow, 2012 IL App (4th) 110415, 964 N.E.2d 1139,
as supplemented on denial of rehearing (Mar. 5, 2012) (“Snow
III”). On May 30, 2012, the Illinois Supreme Court denied Snow’s
petition for leave to appeal (“PLA”).
Snow’s § 2254 Petition
Snow filed the instant petition in May 2013. Shortly
thereafter, however, Snow informed the court that he had
obtained evidence through a FOIA request indicating, he claimed,
that Martinez had told the police that Snow was not the person

18

he had seen at the Clark station on the night in question. Snow
also obtained additional evidence indicating, he claimed, that
certain of the state’s witnesses had received benefits and/or
had been pressured into testifying against him. In addition,
Snow cited evidence indicating that the state had failed to
disclose that two of its witnesses -- Steve Scheel and Bruce
Roland -- had failed polygraph examinations.
I granted Snow’s motion to stay his § 2254 petition while
he sought leave in the state court to file a successive
postconviction petition. In January 2014, the circuit court
denied Snow’s request. In May 2015, the appellate court affirmed
the decision. People v. Snow, 2015 IL App (4th) 140721 (2015)
(“Snow IV”). After the Illinois Supreme Court denied Snow’s PLA
in September 2015, I lifted the stay.
Snow asserts five grounds in support of his petition: (1)
ineffective assistance of counsel; (II) cumulative
ineffectiveness; (III) ineffective assistance of appellate
counsel; (IV) multiple Brady violations; and (V) cumulative
error. I discuss each of these grounds below.
II.
Because Snow’s petition was filed after 1996, it is
governed by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Under AEDPA, “a federal habeas petition may be
granted only if a state court’s ruling on a federal

19

constitutional question ‘was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court,’ or ‘was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’” Makiel v. Butler, 782
F.3d 882, 896 (7th Cir. 2015) (quoting 28 U.S.C. § 2254(d)(1) &
(2)). “AEDPA’s deferential standard of review applies only to
claims that were actually adjudicated on the merits in State
court proceedings.” Id. at 896. If, after reviewing the statecourt decision under AEDPA’s deferential standard, the decision
is contrary to or an unreasonable application of clearly
established federal law, I review the issue de novo. See, e.g.,
Thomas v. Clements, 789 F.3d 760, 768 (7th Cir. 2015).
Similarly, if “a claim was not adjudicated on the merits by a
state court, [a federal court] must dispose of the matter as law
and justice require, which is essentially de novo review.”
Eichwedel v. Chandler, 696 F.3d 660, 671 (7th Cir. 2012). “The
operative decision under review is that of the last state court
to address a given claim on the merits.” Makiel, 782 F.3d at
896.
III. Ineffective Assistance of Trial Counsel
Snow first argues that he is entitled to relief because
Picl and Riley provided him with ineffective assistance of
counsel. To establish an ineffective-assistance claim, Snow must

20

show “(1) that his trial counsel’s performance fell below
objective standards for reasonably effective representation, and
(2) that counsel’s deficiency prejudiced the defense.” Mendoza
v. United States, 755 F.3d 821, 830 (7th Cir. 2014) (quotation
marks omitted).
“With respect to the performance prong, he must overcome
the strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id.
(quotation marks omitted). “And with regard to the prejudice
prong, he must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceedings would have been different.” Id. (quotation marks
omitted). “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. (quotation marks
omitted).
“Surmounting Strickland’s high bar is never an easy task.”
Harrington v. Richter, 562 U.S. 86, 105 (2011) (quotation marks
omitted). “Establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more
difficult.” Id. “The standards created by Strickland and §
2254(d) are both highly deferential, and when the two apply in
tandem, review is doubly so.” Id. (quotation marks and citations
omitted).
A.

Preliminary Issues

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1.

Procedural Default
Snow asserts eight separate grounds in support of his

ineffective-assistance claim. Specifically, he asserts that his
counsel were ineffective for failing to: (1) use available
information to further impeach Danny Martinez; (2) call Thomas
Sanders, a police sketch artist, to further impeach Carlos Luna;
(3) interview Steve Scheel; (4) interview Dawn Roberts; (5) call
Mark Huffington (“Huffington”) to further impeach Karen Strong;
(6) investigate and present evidence that witnesses Kevin
Schaal, Bruce Roland, and Jody Winkler received consideration
for their testimony; (7) call Darren Smart to further impeach
Mary Jane Burns; and (8) to further impeach Detective Thomas and
Agent Bernardini with Thomas’s grand jury testimony.5
The state initially contends that grounds (2), (3), (4),
(6), and (7) are procedurally defaulted. I agree. “To avoid
procedural default, a habeas petitioner must fairly present a
claim to each level of the state courts.” McDowell v. Lemke, 737
F.3d 476, 482 (7th Cir. 2013) (quotation marks omitted).
“Adequate presentation of a claim to the state courts requires
the petitioner to present both the operative facts and the legal
principles that control each claim.” Pole v. Randolph, 570 F.3d
922, 934-35 (7th Cir. 2009). “Thus, if a petitioner fails to
5

As a ninth, catchall ground, Snow asserts that his counsel were
ineffective for failing to present any claims raised in the
habeas petition and not raised at trial.
22

assert in the state courts a particular factual basis for the
claim of ineffective assistance, that particular factual basis
may be considered defaulted.” Id. (citation omitted). While Snow
consistently presented his general ineffective-assistance claim
to the state court, he did not specifically assert grounds (2),
(3), (4), (6), and (7) to the Illinois Supreme Court in his
PLAs. Snow makes no attempt to show that the claims were fairly
presented.
Procedural default may be excused “if a petitioner can show
either cause for the default and actual prejudice as a result of
the alleged violation of federal law, or can demonstrate that
failure to consider the claim will result in a fundamental
miscarriage of justice.” Smith v. McKee, 598 F.3d 374, 382 (7th
Cir. 2010). “Under this cause-and-prejudice test, a cause is
defined as ... an objective factor, external to the defense,
that impeded the defendant’s efforts to raise the claim in an
earlier proceeding.” Id. (quotation marks omitted). “Prejudice
means, an error which so infected the entire trial that the
resulting conviction violates due process.” Id. (quotation marks
omitted).
Snow does not address the question of procedural default as
to any of the above-mentioned grounds individually. His response
to the state’s argument is relegated to a footnote in his reply
brief. See Pet’r’s Reply Br. at 5 n.3. Snow argues that the

23

cause requirement is satisfied by Illinois Supreme Court Rule
315(d), which limits PLAs to twenty pages. Given this
restriction, Snow claims, he was unable to discuss each of the
grounds on which his ineffective-assistance claim is based. Like
other courts that have been presented with this argument, I find
it unpersuasive. See, e.g., Cutts v. Smith, No. 5:11-CV-991,
2014 WL 1775515, at *11 n.72 (N.D. Ohio Apr. 23, 2014) (fifteenpage limit on briefs did not satisfy cause requirement for
purposes of procedural default); Dema v. Arizona, No. CV-070726-PHX-DGC, 2008 WL 2941167, at *19 (D. Ariz. July 25, 2008)
(same).
Snow also fails to show that he meets the prejudice
requirement. He merely asserts that “the merits of his claims
demonstrates the prejudice.” Pet’r’s Reply Br. at 5 n.3.
Similarly, in support of his argument that he meets the
miscarriage-of-justice exception, Snow claims that he has shown
his actual innocence and that “the State’s entire case against
him is a fabrication.” Id. Procedural default cannot be excused
on the basis of such conclusory assertions. Accordingly, grounds
(2), (3), (4), (6), and (7) of Snow’s ineffective-assistance
claim are procedurally defaulted.
2.

Operative Decision
As noted above, for purposes of AEDPA, I review the last

reasoned state-court decision to address the merits of the claim

24

in question. See, e.g., Makiel, 782 F.3d at 896. The last
reasoned state-court decision on the merits of Snow’s
ineffective-assistance claim was the circuit court’s order
denying Snow’s initial postconviction petition (“Snow II”). In
its entirety, Snow II’s discussion of Snow’s ineffectiveassistance claim is as follows:
This issue was fully litigated both prior to
sentencing and on appeal, and principles of waiver and
res judicata apply. Even if this were not so, the
claims of ineffective assistance do not meet the
Strickland standard of showing counsel’s performance
fell below an objective standard of reasonableness and
that there is a reasonable probability that the result
would have been different absent counsel’s errors.
Most of what is complained of is trial strategy.
Strickland v. Washington, 466 US 688 (1984). Also,
counsel’s behavior in other cases is not evidence of
his ineffective assistance in this case. The State’s
Motion to Dismiss on this basis is Granted.
Snow II, at 3.
B.

Non-Defaulted Ineffective-Assistance Grounds

Turning to the non-defaulted grounds of the ineffectiveassistance claim, Snow cites his counsel’s failure to: (1) use
available evidence to further impeach Danny Martinez; (2)
impeach Karen Strong’s testimony with the testimony of Mark
Huffington; and (3) to use available discovery to impeach the
testimony of Detective Thomas and Agent Bernardini. In further
support of his claim, Snow contends (4) that Picl’s personal and
professional problems contributed to his inability to render
effective assistance of counsel. Each of these grounds fails.

25

1.

Ground (1): Failure to Further Impeach Danny Martinez
To recap, Danny Martinez testified that he was in the

parking lot of the Clark station around the time of the murder.
He stated that he heard two “bangs” while filling his car tires
with air, and that as he later started walking toward the
station, he noticed a man walking backwards out of the door.
Martinez testified that he turned back toward his car because he
thought the engine was about to quit, and that when he turned
back toward the station, he was within a few feet of the
individual.
Martinez’s testimony was undercut in several ways. On
direct examination, Martinez admitted that he had been unable to
pick Snow out of the lineup in April 2001. He also admitted that
he was unable to identify Snow in photograph arrays that
included Snow’s picture. See, e.g., Ex. B at 172. Martinez
testified that it was only after seeing Snow’s photograph in the
local paper in 1999 that he recognized him as the man he had
seen outside the Clark station.
On cross-examination, Martinez was unable to identify the
color of Snow’s eyes -- despite his claim that he would never
forget the eyes of the man he encountered that night. Ex. B at
194. In addition, Snow’s counsel highlighted the inconsistency
between Martinez’s account of the events in question and Officer
Pelo’s. Pelo testified that as he approached the gas station, he

26

saw Martinez in the parking lot, but did not see anyone else. In
his closing argument, Picl stated:
Pelo, if you’ll recall, trained observer and while he
said he had his mind on many things, you can bet first
and foremost when he’s approaching a business that
he’s just received a report on of a robbery in
progress, what’s one of the things he’s certainly
looking at, the door of the business to see if anybody
comes in or goes out; of course, that’s what he’s
looking at. He’s not rotating, spinning like a top or
a dervish to take into view and assimilate every
single fact that surrounds him when he shows up. One
of the things you’re always going to look at is the
door of the business. Nobody comes out.
There is Martinez putting air in his tires. Watches
that. Martinez gets up, goes towards the business,
turns around and heads back to his car. There is no
one else in the parking lot. Nobody came out of the
business. So what’s the bottom line with these
eyewitnesses? They’re wrong. They’re wrong and their
identifications and the State’s belief that their
identifications are of Jamie Snow is simply not
tenable.
Ex. K at 118.
Snow contends that Martinez could have been impeached more
effectively if Picl and Riley had conducted a more thorough
investigation. He argues that they should have interviewed Pelo
and several other witnesses. He also claims that they should
have used existing evidence -- in particular, a statement that
Martinez made to the police in March 1999 -- to further impeach
Martinez.
Below, I consider each of these potential sources of
impeachment in greater detail. First, however, I address Snow’s

27

threshold argument that Ground (1) of his ineffective-assistance
claim should be reviewed de novo. Since the state court
addressed Snow’s ineffective-assistance claim on the merits, it
would ordinarily be reviewed under AEDPA’s doubly deferential
standard. However, Snow argues that Ground (1) should be
reviewed de novo because the court unreasonably applied
Strickland in concluding that his counsel were not
constitutionally ineffective for failing to investigate these
additional avenues for impeaching Martinez. Although the statecourt record is unclear regarding the precise extent of defense
counsel’s investigation, it is undisputed that they did not
interview Pelo. Snow contends that his counsel could not have
had a strategic reason for not interviewing Pelo because they
had no idea what information he might have been able to provide
them. See, e.g., Strickland, 466 U.S. at 690-91 (“[S]trategic
choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other
words, counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular
investigations unnecessary.”).
This argument is mistaken in several respects. First, Snow
II did not specifically hold that the failure of Snow’s counsel
to investigate could be explained strategically. The court held

28

that “most” of counsel’s alleged errors could be regarded as
matters of strategy. Snow alleges that his counsel were
ineffective not only in failing to investigate, but also in
failing to call various witnesses and to impeach them on various
grounds. Snow II can be understood as holding that the latter
issues, rather than the failure to investigate, can be explained
in terms of strategy.
Second, Snow assumes that a strategic decision not to
investigate Pelo was impossible because his counsel had no idea
what information Pelo might have given them. But Snow’s counsel
could have learned about Pelo’s account of events by other
means. For example, in March 1999, Pelo gave a statement to
detectives that largely tracks his trial testimony. Although it
is not clear from the record whether Snow’s counsel took account
of the statement, it was available to them. It is thus entirely
possible that they were aware of the document and that this
informed their decision not to interview Pelo. And finally, even
if Snow were correct that his counsel could have had no
strategic reason for failing to investigate Pelo, it would
follow only that his counsel’s performance was deficient.
Without a further showing of prejudice, Snow II’s conclusion
would not be unreasonable, and AEDPA deference would still be
required.

29

I turn now to Snow’s arguments regarding the particular
ways in which his counsel failed to conduct a proper
investigation and to pursue additional ways of impeaching
Martinez.
(a)

Officer Pelo

Snow argues that his counsel’s performance was deficient
because they failed to interview Officer Pelo and elicit
information from him that would have contradicted Martinez’s
account of the events in question. In support of this argument,
Snow cites a 2009 affidavit in which Pelo avers that it was
essentially impossible for Martinez to have seen Snow, or anyone
else, exiting the gas station. He states: “[a]s [Martinez] was
walking in the parking lot, I was constantly looking between
him, the surroundings, and the front of the station. From the
time I arrived across the street to the time I entered the gas
station, my gaze was never off the front of the station for more
than a few seconds.” Ex. 1 ¶ 12. As a result, Pelo concludes, “I
am absolutely positive that from the time I arrived at the ...
intersection in response to the 1090 call to the time that I
eventually entered the gas station, no one other than Bill
Little was either in the gas station or entered or exited the
gas station.” Id. ¶ 17.
As noted above, Picl’s closing argument pointed out the
inconsistency between Pelo’s account of events and Martinez’s.

30

But Snow claims that his counsel’s cross-examination of Pelo
left open the possibility that Pelo might have been looking away
at the moment Martinez encountered the man leaving the station.
On direct examination, Pelo testified that as he was approaching
the Clark station, he was “looking at thousands of different
things trying to, cars, people, what’s going on.” Ex. B at 101.
On cross-examination, Pelo was asked, “From the time you arrived
at the credit union and got out of your car, would it be fair to
say that you kept your eyes on the station pretty much, gas
station?” Ex. B at 126. He replied, “Not -- my eyes glued to the
front of the station, no. I’m scanning the area looking for
several of the things we just talked about a minute ago.” Ex. B
at 126. In its closing argument, the state seized on this point
to argue that Martinez’s and Pelo’s accounts were compatible:
Why did Officer Pelo not see the defendant? He saw
Martinez. He focused on Danny Martinez and called in
his license plate and did all the other, as he said,
hundreds of things you have to do when you’re
responding to a silent alarm call, including watching
traffic when you cross the street and looking all
around you for anything. And he also got into that
argument, that distracting argument, with the
dispatcher over whether or not to hold the license
plate number. And in the same several seconds that
Luna didn’t see Martinez, Officer Pelo didn’t see the
defendant.
But we know, based on all the evidence, that the
defendant was there, that Martinez was there, that
Luna was there and that Officer Pelo was there. So if
the defendant is suggesting through his crossexamination even for a second that these witnesses did
not see what they say they saw because they didn’t see

31

something else, then you should recognize that
argument as tortured.
Ex. K at 39-40.
Even assuming that Snow’s counsel rendered deficient
performance in failing to interview Pelo, it was not
unreasonable for the court to conclude that Snow suffered no
prejudice as a result. Pelo’s trial testimony, while not as
definitive as the account in his affidavit, nonetheless strongly
contradicted Martinez’s testimony. The additional value of
further impeachment on this point could reasonably have been
deemed marginal.
(b)

Martinez’s Interview Transcript

Snow argues that his counsel were ineffective for failing
to use the transcript from Martinez’s March 1999 interview with
BPD Detectives Dan Katz and Rick Barkes, which indicates that
Martinez had been contacted by William Little’s mother. Near the
end of the interview, Martinez says, “I don’t know who called
Mrs. Little to have her call me I mean that was I mean, I mean I
know that her son was involved and uh I know Easter’s comin
around the corner and she’s goin through a hard time right now I
mean coulda returned your phone call towards me and you know
mentioned something to me ....” Ex. 7 at 13-14. In response,
Barkes says, “And I, and I, and I did and I tried doin that and
I’ll have to take responsibility for that and I’ll explain to

32

you a little bit later about what transpired there.” Id. at 14.
(The transcript does not include Barkes’s explanation).
According to Snow, the transcript “shows that the police had
been pressuring Martinez through Mrs. Little, or that, at the
very least, she was doing so with the officers’ knowledge or
acquiescence.” Pet’r’s Mem. at 43.
The record shows that Snow’s counsel were aware of the
contact between Martinez and Little’s mother. Picl attempted to
cross-examine Martinez on this point. See Ex. B at 212-13 (“Have
you complained to anybody in this case, any of the investigating
officers that Mrs. Little, the victim’s mother, has been calling
you or had been calling you at some point?”). However, in
response to the prosecution’s objection, the trial judge held
that Picl’s questioning exceeded the scope of direct
examination. Id. at 213.
It is difficult to explain counsel’s actions on this point
as a matter of strategy. Picl seems clearly to have wanted to
use the information and was prevented from doing so by his
failure to lay the proper foundation. But even assuming that
this indicates a mistake on Picl’s part, it does not follow that
his performance was constitutionally ineffective. Rather, only
“those ‘who can prove under Strickland that they have been
denied a fair trial by the gross incompetence of their attorneys
will be granted the writ.’” Eddmonds v. Peters, 93 F.3d 1307,

33

1313 (7th Cir. 1996) (quoting Kimmelman v. Morrison, 477 U.S.
365, 382 (1986)). “‘This requires showing that counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.’” Id.
(quoting Strickland, 466 U.S. at 687). The state court could
reasonably have concluded that this error (if such it was) fell
well short of the standard necessary to show deficient
performance.
In addition, the court could reasonably have concluded that
Snow had failed to establish prejudice as a result of his
counsel’s failure to question Martinez about his communications
with Mrs. Little. While the nature of the contact between the
two remains something of a mystery, the state court could
reasonably have concluded in light of all of the other evidence
against Snow that evidence of Martinez’s communication with
Little’s mother was insufficient to undermine confidence in the
jury’s verdict. Snow insists that Martinez was the state’s
“star” witness and that his impeachment would have been
especially significant. However, the appellate court
specifically rejected the contention that Martinez was the
state’s star witness. See Snow IV at ¶ 24. And even assuming
that Martinez was a key witness, the state court still was not
unreasonable in concluding that Snow had failed to show
prejudice under Strickland.

34

(c) William and Dennis Hendricks
Finally, Snow argues that his counsel were ineffective for
failing to impeach Martinez through the testimony of brothers
William and Dennis Hendricks. In separate affidavits, William
and Dennis aver that they grew up with Martinez and Snow, that
they played sports together, that Martinez “saw Jamie many
times,” Ex. 4 ¶ 5, and that Martinez and Snow had mutual
friends, Ex. 5 ¶ 10. Dennis further states that on one occasion
prior to Snow’s trial, he saw Martinez in a bar and that
Martinez told him that “he hadn’t been able to pick Jamie out of
a lineup and that he didn’t think Jamie was involved.” Ex. 5 ¶
11. According to Dennis, he met with one of Snow’s attorneys
prior to Snow’s trial and told him about the conversation, but
the attorney was not interested and instead wanted him to focus
his testimony on undermining a different witness. Id. ¶ 12.
William avers that he and Martinez worked together and were
good friends. He states that he had several conversations with
Martinez about the fact that the composite sketch of the Clark
station murder suspect resembled Snow. Ex. 4 at ¶ 9. According
to William, Martinez “said words to the effect of, ‘No that
ain’t Jamie. Jamie doesn’t look like that. I know what Jamie
looks like.’” Ex. 4 at ¶ 9. In addition, William says that
Martinez never intimated that he was a witness in connection
with the case or that he believed Snow was involved. Id. ¶ 11.

35

When William later learned of Martinez’s involvement in the case
and asked why he had never mentioned it before, he claims that
Martinez had no answer. Id. ¶ 12. Finally, William avers that
the sister of Martinez’s union head was good friends with
Little’s mother, and that prior to Snow’s arrest, Martinez had
told William that Mrs. Little “had been over to his house a few
times.” Id. at ¶ 14.
Both William and Dennis testified for Snow at trial.
However, they were questioned chiefly about the truthfulness of
William Gaddis. Picl and Riley apparently considered using
William to impeach Martinez. In the hearing on Snow’s motion to
discharge, Picl and Riley acknowledged that they failed to lay
the necessary foundation on this point. See April 2001 Opinion
(Ex. GG) at 12; see also Ex. L at 52. However, it would not have
been unreasonable for the state court to conclude that the error
was not of constitutional proportions.
The state court could also have reasonably concluded that
Snow failed to show prejudice as a result of the purported
error. First, William had substantial liabilities as a witness.
In addition to having several prior felony convictions, he was
also vulnerable to impeachment based on his prior grand jury
testimony in Snow’s case. There, William was asked whether he
had any information that might help show that Snow was not
responsible for murdering Little. At the time, William said

36

nothing about Martinez having told him that Snow did not commit
the crime. See April 2001 Opinion at 5. Indeed, as the trial
court noted, William had been impeached on precisely this basis
at Susan Colcomb’s trial. Id. Thus, if Snow’s counsel had tried
to elicit testimony from William on this point, it is unlikely
that it would have helped Snow’ case. In fact, it may have been
harmful.
The record is unclear as to what reason, if any, Snow’s
counsel might have had for not pursuing the information Dennis
allegedly told them. But the fact that, according to Dennis’s
own account, counsel wanted to focus his testimony on another
issue suggests that the decision was strategic. See, e.g.,
Harrington, 562 U.S. at 109 (“There is a strong presumption that
counsel’s attention to certain issues to the exclusion of others
reflects trial tactics rather than sheer neglect.”) (quotation
marks omitted). Moreover, in the hearing on Snow’s motion to
discharge, Riley explained counsel’s strategy with respect to
Martinez’s impeachment, stating: “[I]t’s been my practice
developed over many years when you’ve done damage to a witness,
if you keep pounding away at it, sometimes you end up pounding
yourself in the thumb. I mean, how many different ways do you
need to damage a witness? I thought Martinez was very badly
damaged when he finally left off the stand.” Ex. L at 54.
Riley’s statement was about Martinez’s impeachment generally,

37

not the decision not to impeach Martinez with Dennis’s or any
other witness’s testimony in particular. But it is not necessary
for counsel to provide a specific strategic justification with
respect to every aspect of their defense. Cf. Harrington, 562
U.S. at 109 (“Although courts may not indulge ‘post hoc
rationalization’ for counsel’s decisionmaking that contradicts
the available evidence of counsel’s actions, neither may they
insist counsel confirm every aspect of the strategic basis for
his or her actions.”) (citation omitted).
Finally, it bears reiterating that Martinez was only one of
the prosecution’s witnesses. The state had an additional
eyewitness in Carlos Luna. In addition, the state presented
twelve other witnesses who testified that Snow had claimed
responsibility for murdering Little or had otherwise made
incriminating statements in connection with the crime. Even if
Martinez’s credibility had been completely undermined at trial,
the state court could reasonably have found this insufficient to
raise a reasonable probability of a different result at trial.
For these reasons, Ground (1) of Snow’s ineffectiveassistance claim fails.
2.

Ground (5): Failure to Use Mark Huffington to Impeach
Karen Strong’s Testimony
Karen Strong, McCown’s girlfriend during the time in

question, testified in the state’s case that on the night of the

38

murder, McCown arrived at their home late at night with Snow,
and that McCown had asked her if Snow could stay with them for a
few days. As noted earlier, she was later called as a rebuttal
witness to impeach McCown and testified that McCown told her
that Snow “was in a lot of trouble because he had shot the
Little kid in the robbery.” Ex. J. at 9.
Snow argues that his counsel were ineffective for failing
to investigate and interview Mark Huffington and to use his
testimony to impeach Strong. In an affidavit, Huffington
describes himself as a close friend of Strong’s. Ex. 14 ¶ 2. He
states that he and Strong spoke several times about Little’s
murder. Id. ¶ 4. According to Huffington, Strong never said
anything to him about McCown’s alleged statement regarding
Snow’s involvement in the incident. Id. ¶ 5. Rather, he avers,
Strong told him that all she knew about the incident was that
McCown had woken her up when he came home on the night of the
murder. Id.
It was not unreasonable for the state court to conclude
that Snow’s counsel’s failure to investigate Huffington did not
constitute deficient performance. Picl and Riley became aware of
Huffington only after Strong testified at trial. Snow does not
contend that his counsel were ineffective for failing to learn
of Huffington’s existence sooner. Rather, he argues that they
should have interviewed Huffington following the state’s case-

39

in-chief. By that point, however, counsel’s time was necessarily
limited. Moreover, Snow’s counsel had planned to impeach Strong
through McCown’s testimony. At trial, McCown denied that he
asked Strong whether Snow could stay at their home or that he
told Strong that Snow had killed Little. It would not have been
unreasonable for counsel to have believed that they had Strong’s
impeachment in hand. Huffington’s testimony, if allowed, would
have been cumulative, it was not unreasonable for the court to
have concluded that Snow was not prejudiced by his counsel’s
failure to call Huffington.
3.

Ground 8: Failure to Impeach Testimony by Thomas and
Bernardini
In April 1991, Thomas and Bernardini questioned Snow

following his arrest in connection with the Freedom Oil robbery.
Both Thomas and Bernardini testified that Snow indicated during
the interview that he was willing to talk about the Clark
station murder, but that he wanted a deal before divulging any
information. Snow claims that his counsel should have further
impeached Thomas and Bernardini based on Thomas’s grand jury
testimony in the Freedom Oil case. There, Snow points out,
Thomas testified that Snow sought to make a deal in exchange for
information regarding the Freedom Oil crime. He claims that this
shows Thomas was being untruthful in testifying at Snow’s trial
that Snow had offered information about the Clark station case.

40

This argument fails on both of Strickland’s prongs. First,
during the April 2001 hearing on Snow’s motion to discharge,
Picl stated that he and Riley interviewed Thomas and ultimately
decided not to use his grand jury testimony because they did not
want to highlight Snow’s involvement in another robbery around
the same time as the Clark station crime. Ex. L at 104-05. Picl
also mentioned that he “wasn’t going to get anywhere ... with
questioning these professional police officers about something
they weren’t going to admit to.” Id. at 105. Snow contends that
this rationale was illogical because the jury had already heard
testimony about Snow’s involvement in the Freedom Oil case. Even
so, counsel could reasonably have believed that dwelling on the
matter would have done more harm than good. The decision need
not have been correct; it need only have fallen “within the wide
range of reasonable professional assistance” countenanced by
Strickland. 466 U.S. at 689. The circuit court was not
unreasonable in concluding that Snow’s counsel’s decision not to
use Thomas’s grand jury testimony met this standard.
Second, it was not unreasonable for the court to conclude
that Snow failed to establish prejudice in connection with the
decision not to impeach Thomas. As an initial matter, it is
unclear whether Thomas could in fact have been impeached with
his grand jury testimony in the Freedom Oil case. Snow is
correct that Thomas told the grand jury that he (Snow) tried to

41

make a deal with him and Bernardini in connection with the
Freedom Oil case. But Thomas and Bernardini questioned Snow
about multiple crimes, and it is possible that Snow also sought
to make a deal in connection with the Clark station case.
Further, even if Thomas could have been impeached with his grand
jury testimony, it is not clear how this would have undermined
Bernardini’s testimony.
4.

Picl’s Personal and Professional Problems
Snow additionally cites Picl’s personal and professional

problems in support of his ineffective-assistance argument. In
2006, Picl pleaded guilty to Financial Exploitation of an
Elderly Person and was sentenced to ten years in prison. He also
was disbarred. Testimony from Picl’s sentencing hearing
indicates that he suffered from alcoholism, mental illness, and
a gambling addiction dating at least as far back as the time of
Snow’s trial. Snow attaches particular weight to Picl’s
statement during his sentencing that “as a defense attorney in a
courtroom, all I’m required to do in almost every case is
react.” Ex. 22-9 at C 3710. According to Snow, this corroborates
his claim that his counsel failed to conduct any investigation
into his case.
In Snow II, the circuit court addressed this contention by
remarking that “counsel’s behavior in other cases is not
evidence of his ineffective assistance in this case.” Snow II,

42

at 3. This is not contrary to, or an unreasonable application
of, clearly established federal law. It is well-settled that
alcoholism, mental illness, and other conditions are not enough
to show ineffective assistance of counsel in the absence of a
specific showing of deficient performance resulting from these
conditions. See, e.g., United States v. Peoples, 6 F. App’x 386,
389 (7th Cir. 2001) (alcohol use); Lopez v. Artus, No. 03 CIV.
7087 (RJH), 2005 WL 957341, at *5 (S.D.N.Y. Apr. 25, 2005)
(mental illness). United States v. Jackson, 930 F. Supp. 1228,
1234 (N.D. Ill. 1996) (“Alcoholism, or even alcohol or drug use
during trial, does not necessarily constitute a per se violation
of the Sixth Amendment absent some identifiable deficient
performance resulting from the intoxication.”).
Despite the evidence of Picl’s problems, Snow never draws a
specific connection between these and any alleged failings in
Picl’s performance. Snow has submitted an affidavit from a
social worker who worked with Picl on Snow’s case and who avers
that Picl appeared to be inebriated at certain times. See Ex. 23
¶¶ 7-9. However, the trial court addressed Picl’s alleged
alcohol use in the context of Snow’s motion to discharge and
specifically found no evidence that Picl’s performance was
impaired. See April 2001 Opinion at 8 (“This Court has ...
observed no impairment of Mr. Picl during the course of the
trial and accordingly the allegation [of alcohol use] does not

43

support the charge of neglect or incompetence.”). Regardless of
whether this finding is entitled to deference under AEDPA, it is
entitled to deference given that the trial judge observed Picl’s
performance first hand.
Finally, Snow ignores the fact that he was represented by
both Picl and Riley. Where a “defendant was represented by
multiple attorneys, an ineffective assistance challenge is
particularly difficult to mount.” United States v. Dunfee, 821
F.3d 120, 128 (1st Cir. 2016); United States v. Lloyd, 983 F.
Supp. 738, 743 (N.D. Ill. 1997) (even if one attorney’s “trial
prowess arguably fell below the level which Strickland
requires,” the other attorney’s “ability to monitor and correct
any of [co-counsel’s] mistakes” makes the ineffective-assistance
“case a tougher one to make”); United States v. Lomas-Flores,
No. 95 C 2702, 1996 WL 11105, at *3 (N.D. Ill. Jan. 8, 1996)
(even if one of defendant’s attorneys rendered ineffective
assistance at trial, defendant’s other attorney provided
adequate representation). Though he was appointed after Riley,
Picl eventually came to take the lead role in the case, at least
insofar as cross-examination was concerned. Nevertheless, Riley
continued to play a significant role in the case.
Snow notes that Riley had suffered a stroke a year before
his trial. However, the fact that an attorney has suffered a
stroke, without more, does not support a finding of

44

ineffectiveness. See, e.g., United States v. Hanks, No.
112CR000133LJOSKO, 2016 WL 524711, at *9 (E.D. Cal. Feb. 10,
2016) (counsel not ineffective even having suffered multiple
stroke attacks); Dows v. Wood, 211 F.3d 480, 485-86 (9th Cir.
2000) (counsel diagnosed with Alzheimer’s disease approximately
eighteen months after defendant’s trial). Prior to appointing
Riley, the trial judge consulted several other judges to ensure
that Riley’s abilities were not impaired. See April 2001 Opinion
at 9. Snow does not point to any specific respect in which the
stroke might have rendered Riley’s performance ineffective. In
the final analysis, evidence of Picl’s personal and professional
problems (and of Riley’s stroke) adds nothing to the other
allegations of ineffectiveness considered above.
C. Conclusion
In short, the state court was not unreasonable in
concluding that Snow failed to show that his counsel’s
performance fell below an objective standard of reasonableness
or that, even assuming Snow could have made such a showing,
there was a reasonable probability that the trial’s outcome
would have been different but for his counsel’s errors.
Accordingly, I deny Snow’s petition insofar as it is based on
ineffective assistance of counsel.
IV. Cumulative Ineffectiveness

45

As a separate basis for relief, Snow argues that “[e]ven if
the court were to find that the acts or omissions of Snow’s
trial counsel were not so grievous as to have prejudiced him
individually, their cumulative effect is substantial enough to
show prejudice under Strickland.” Pet’r’s Mem. at 54. Based on
the foregoing analysis, this claim fails. Cumulative
ineffectiveness presupposes multiple errors. As discussed above,
Snow has failed to show that any of his counsel’s purported
errors amounted to ineffective assistance, or that he might have
been prejudiced by any of the purported errors. Accordingly, I
deny Snow’s petition insofar as his cumulative ineffectiveness
argument is concerned. See, e.g., Wilson v. Cockrell, 70 F.
App’x 219, 229-30 (5th Cir. 2003) (“[A]bsent specific deficiency
and prejudicial performance, there can be no cumulative
ineffective assistance of counsel.”).
V.

Ineffective Assistance of Appellate Counsel

Snow’s petition additionally asserts a claim for
ineffective assistance of appellate counsel. This claim is
procedurally defaulted. Although presented to the postconviction
appellate court, Snow failed to raise it in his postconviction
PLA.
Even without the procedural default, however, the claim
fails. Snow II was the last reasoned decision addressing the
merits of Snow’s claim for ineffective assistance of appellate

46

counsel. There, the court stated, “Defendant’s claims that
waiver does not apply to a claim of ineffective assistance of
appellate counsel is not substantiated and a claim under
Strickland has not been substantiated, and the State’s Motion to
Dismiss on this ground is Granted.” Snow II, at 4.
Snow argues that this conclusion is contrary to and an
unreasonable application of federal law. However, his argument
is confined to a footnote stating that his appellate counsel was
ineffective “[t]o the extent that this court finds that Snow
could have raised any of his ineffective assistance of trial
counsel claims in his direct appeal, and that Snow failed to
exhaust any of these claims.” Br. at 56 n.18. Snow cites to two
cases without discussion. He cites the first of these, Malone v.
Walls, 538 F.3d 744 (7th Cir. 2008), for the proposition “that
if there was an ineffective assistance of counsel issue that
could have been raised on direct appeal, the defendant’s failure
to raise it on direct appeal could result in waiver, except that
waiver is relaxed when the defendant alleges that failure to
raise an issue on appeal constituted the ineffective assistance
of counsel.” Pet’r’s Mem at 56 n.18 (citing Malone, 538 F.3d at
750). The language in question addresses only the question of
waiver and does not respond to Snow II’s separate holding that
Snow failed to make the necessary substantive showing under
Strickland.

47

Snow’s second case, Long v. Butler, 809 F.3d 299 (7th Cir.
2015), was subsequently vacated after the Seventh Circuit
granted the petitioner’s motion for an en banc rehearing. See
Long v. Butler, No. 13-3327, 2016 WL 1621711, at *1 (7th Cir.
Apr. 20, 2016). Long, too, addressed the question of whether
ineffective assistance of appellate counsel could be used a
means for reaching a claim that might otherwise have been
considered forfeited or defaulted. As with Malone, Snow does not
explain why Long shows that Snow II is mistaken on the merits of
his claim for ineffective assistance of appellate counsel.
Accordingly, the state court was not unreasonable in
denying Snow’s claim for ineffective assistance of appellate
counsel.
V.

Brady Violations

Snow next challenges his conviction by alleging that the
state failed to disclose evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). To establish a Brady violation,
Snow “must prove that (1) the evidence at issue was favorable to
the accused, either because it was exculpatory or impeaching;
(2) the evidence was suppressed by the [state], either willfully
or inadvertently; and (3) the denial was prejudicial.” United
States v. Thomas, 835 F.3d 730, 734 (7th Cir. 2016) (quotation
marks omitted). “To be prejudicial under Brady, the information
must be material -- that is, there must be a reasonable

48

probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” Id. (quotation marks omitted). Thus, Brady’s
materiality standard is identical to Strickland’s prejudice
standard. See, e.g., Harris v. Thompson, 698 F.3d 609, 646 (7th
Cir. 2012). Where multiple Brady violations are alleged, the
materiality of the evidence must be viewed cumulatively. See,
e.g., Kyles v. Whitley, 514 U.S. 419, 422 (1995).
Snow claims that the state committed multiple Brady
violations in his case. Specifically, he asserts that the state:
(1) failed to disclose that it threatened Steven Scheel into
testifying falsely against him and coached Scheel’s testimony;
(2) failed to disclose that it made deals with, or put pressure
on, several other witnesses in exchange for their testimony; (3)
failed to disclose evidence of a pattern of misconduct by the
BPD and the McLean County State’s Attorney’s Office; (4) failed
to disclose that State’s Attorney Reynard told Ed Palumbo that
he (Reynard) knew Snow was innocent but had prosecuted him in
lieu of the true culprit; (5) failed to disclose evidence
indicating that Martinez told a polygraph examiner sometime
around 1994 that Snow was not the person he had seen at the gas
station; (7) failed to disclose polygraph evidence relating to

49

Scheel; and (8) failed to disclose polygraph evidence relating
to Bruce Roland.6
A.
1.

Preliminary Matters

Operative Decision
At the outset, I must determine the state court’s last

reasoned decision addressing Snow’s Brady claims. Snow contends
that the relevant decision is the appellate court’s opinion
addressing his initial postconviction petition (Snow III). Snow
notes that the appellate court also discussed certain of his
Brady claims in its opinion denying his motion for leave to file
a successive postconviction petition (Snow IV). He argues that
Snow IV cannot be the operative decision, however, because the
court there was concerned only with whether Snow met the
Illinois Post-Conviction Hearing Act’s (“PCHA’s”) cause and
prejudice requirements for leave to file a successive
postconviction petition. Since the court ultimately denied him
leave to assert the claims in a successive petition, Snow argues
that Snow IV never decided his Brady claims on the merits. See
Pet’r’s Mem. at 72 n.21.
That is not entirely correct. Snow IV addressed the merits
of some of Snow’s Brady claims, and in some cases held -- apart

6

The numbering in Snow’s petition does not include a Ground (6)
in support of his Brady claims. I nonetheless retain his
numbering for consistency.

50

from the cause-and-prejudice standard -- that the claims failed
to meet Brady’s materiality requirement. See, e.g., Snow IV, ¶ 23
(holding that the notes from Martinez’s polygraph exam “do not
come close to the materiality standard for a Brady claim”); id.
¶ 36 (holding that Scheel’s polygraph evidence did not meet
Brady’s materiality standard); id. ¶ 31 (noting that Snow “hints
at a Brady violation” with respect to undisclosed information
about threats and assistance issued to Bruce Roland, but
concluding that the claim “does not meet the materiality
standard so it fails the prejudice test as a matter of law”).
The fact that these determinations were made within the context
of the PCHA’s doctrinal framework does not necessarily mean that
they should be ignored. See, e.g., Jermyn v. Horn, 266 F.3d 257,
281 n.8 (3d Cir. 2001) (in discussing whether petitioner met
state’s procedural “miscarriage of justice” standard for
purposes of filing a successive postconviction petition, the
state court addressed the merits of petitioner’s underlying
federal claim, thereby triggering AEDPA deference).
At the same time, relying on Snow IV appears problematic
because, as noted above, Brady ultimately requires a cumulative
analysis of the prejudice resulting from multiple disclosure
violations. See, e.g., Kyles, 514 U.S. at 422. Under the PCHA,
however, Illinois courts apply the cause-and-prejudice inquiry
to each claim individually, not to the petition as a whole. Snow

51

IV, ¶ 13 (“The cause-and-prejudice test is applied to individual
claims in the petition for leave to file successive
postconviction petition and is not applied to the petition as a
whole.”). Thus, given Snow IV’s procedural posture, the court’s
Brady analysis could not have fully comported with federal law,
and taking Snow IV as the relevant decision would require me to
conduct the cumulative analysis of the relevant Brady claims
without first giving the state courts an opportunity to do so.
This is especially problematic in Snow’s case, because he
insists on the importance of viewing all of the alleged Brady
violations collectively. In light of this difficulty, I take
Snow III as the operative decision for my review.
2.

Procedural Default
Each of Snow’s Brady claims raises the question of

procedural default. The state argues that Grounds (1), (3), and
(4) -- and possibly (2)7 -- are procedurally defaulted because
Snow failed to present them to the Illinois Supreme Court. Snow
disputes that these claims are defaulted, but by his own
reckoning, all of his other Brady claims are potentially
defaulted because they were raised only in his motion for leave

7

It is unclear whether the state maintains that Ground (2) is
defaulted. In one place in its Answer, Ground (2) is included in
the state’s list of defaulted grounds. However, Ground (2) is
not included in any of the state’s other listing of defaulted
grounds. See Answer at (i), 13.

52

to file a successive postconviction petition. As already noted,
Snow contends that Snow IV did not address his Brady claims on
the merits. As Snow characterizes the decision, the court
declined to adjudicate the claims on procedural grounds -namely, his failure to assert the claims in his initial
postconviction petition as required by the PCHA. In declining to
address the merits of his Brady claims due to his failure to
comply with state procedural rules, Snow asserts that the court
disposed of the claims on the basis of an independent and
adequate state ground. See, e.g., Kaczmarek v. Rednour, 627 F.3d
586, 591 (7th Cir. 2010) (“[W]hen a state court refuses to reach
the merits of a petitioner’s federal claims because they were
not raised in accord with the state’s procedural rules ... that
decision rests on independent and adequate state procedural
grounds.”). And where a state court disposes of federal claims
based on an independent and adequate state ground, federal
review of the claims is precluded unless the petitioner can show
that the default is excused. Id. Snow contends that I may reach
the merits of the Brady claims asserted in his motion for leave
to file a successive postconviction petition because he is able
to satisfy the requirements of the cause-and-prejudice or
miscarriage-of-justice exceptions.
Although I believe Snow is mistaken in maintaining that
Snow IV did not address any of his Brady claims on the merits, I

53

agree that Brady III is the relevant decision under review.
Accordingly, for purposes of this discussion, I also accept
Snow’s contention that the Brady claims at issue in Snow IV are
procedurally defaulted absent a showing that the default can be
excused. I address each of Snow’s Brady claims below, taking up
the issue of procedural default along the way.
B. Snow’s Brady Claims
1.

Information Indicating that the State Pressured Steve
Scheel into Giving False Testimony
As noted previously, Scheel testified at trial that Snow

told him at a party in April 1991 that he had robbed the Clark
station and had shot the attendant. An affidavit subsequently
submitted by Larry Biela (“Biela”), an investigator for Snow’s
defense, states that Scheel recanted his testimony during a 2009
interview with Biela and one of Snow’s current attorneys. See
Ex. 10. According to Biela’s affidavit, Scheel told him the
following: in 1995 or 1996, Detective Crowe and another BPD
detective came to see him while he was incarcerated at Vienna
Correctional Center in Illinois. The detectives stated that
someone had reported overhearing Snow at a party telling Scheel
that he had killed Little. When Scheel denied this, the
detectives, who were recording the interview, stopped the tape
and told Scheel they did not like his answer. They then rewound
the tape and began recording again. Scheel stated that the

54

detectives stopped recording and rewound several times during
the interview after Scheel said things they did not want to
hear. Scheel stated that “shortly after that first visit he
started being investigated for things in prison, and ... spent
time in segregation and believed that the Bloomington Police
Department was behind this.” Id. ¶ 12.
According to Biela, Scheel further told him the following:
after he was paroled and had moved to North Carolina, Detective
Katz and another detective came to see him. They told Scheel
that they knew he was lying and wanted him to say that Snow had
confessed to him. Again, the detectives recorded the interview,
rewinding and re-recording after Scheel denied that Snow had
confessed to him. Scheel stated that he “felt pressure from [the
detectives], because he was alone in the room with them. He said
he was on parole and knew they could revoke it.” Id. ¶ 14.
Scheel reportedly told Biela that he “felt like they had a hole
in the ground for [him],” id. ¶ 15 (quotation marks omitted),
and “said he knew he wouldn’t get out of the room with them
unless he cooperated,” id. ¶ 14.
After Scheel moved to Arkansas, Katz and Reynard contacted
him. Scheel agreed to meet with them. At the meeting, Katz was
apologetic and Scheel eventually agreed to testify against Snow
if the police would stop harassing him. Katz and Reynard
reviewed Scheel’s testimony with him prior to trial, telling him

55

what clothes to say Snow was wearing. Scheel stated that
detectives Katz and Crowe knew that Snow had not confessed the
murder to him but that Little’s mother had been calling the
police station every day and they wanted to “get her off their
backs.” Id. ¶ 16.
Biela avers that after speaking with Scheel, he and Snow’s
counsel prepared an affidavit summarizing what Scheel had said,
but that Scheel balked at the last minute and refused to sign
it. Id. ¶ 22. Scheel’s wife told them that he was afraid of
being charged with perjury. Id.
The state contends that the Scheel Brady claim is
procedurally defaulted because Snow failed to raise it to the
Illinois Supreme Court in his postconviction PLA. I disagree.
Although the PLA does not allege that Scheel was coached by the
BPD and the State’s Attorney’s Office, it does allege that
Scheel was pressured into testifying against Snow. See Ex. X at
13 (asserting in support of Brady claim that Scheel, among other
witnesses, “stated that they testified falsely because of
pressure from police and prosecutors”). Thus, insofar as the
latter allegation is concerned, the Scheel Brady claim was
fairly presented to the state court.
However, matters are somewhat complicated by the fact that
Snow III addressed only the allegation that Snow’s testimony had
been coached, not that he was threatened. Snow III held that

56

although evidence that Scheel’s testimony had been coached could
have been helpful to Snow’s defense, the claim failed because
non-disclosure of the material was not sufficiently prejudicial.
Snow III, ¶ 43. The court observed that Scheel was only one of
many witnesses who testified against Snow, and that Scheel was
not an especially important witness at that. Id.
Because Snow III addressed the Scheel Brady claim on the
merits but did not specifically address the contention that
Scheel had been threatened, there is some question as to whether
the decision is entitled to AEDPA deference. However, the claim
fails irrespective of the appropriate standard of review.
Brady requires the state to disclose evidence favorable to
the defense. This includes evidence that police and prosecutors
have pressured or threatened witnesses. See, e.g., Simmons v.
Beard, 590 F.3d 223, 235 (3d Cir. 2009) (Brady required
disclosure of evidence that detective had pressured witness into
agreeing to electronic surveillance of communications with
petitioner because evidence might have suggested that witness
testified in order to avoid legal trouble herself); United
States v. Scheer, 168 F.3d 445, 452 (11th Cir. 1999)
(prosecutor’s threatening remark to witness constituted
impeachment evidence under Brady). However, taking Biela’s
affidavit at face value, the pressure to which Scheel was
subjected is highly speculative. Scheel surmises that he was

57

placed in segregation as a result of his refusal to cooperate,
but nothing in Biela’s affidavit suggests that this is anything
more than guesswork on Scheel’s part. Similarly, while Scheel
claims to have felt that the detectives “had a hole in the
ground” for him, he does not indicate that the detectives did or
said anything that would have warranted this belief. When viewed
against the rest of the state’s evidence against Snow, there is
no reasonable probability that Snow would have been acquitted if
the jury had been aware of the information alleged in Biela’s
affidavit. Whether the evidence might contribute to a Brady
violation when viewed cumulatively with other evidence is
another matter, which I consider after reviewing all of the
grounds on which Snow’s Brady claim is based.
2.

Deals and Threats Relating to Other Witnesses
Snow next argues that the state violated Brady by failing

to disclose that several other witnesses were pressured and/or
given deals in exchange for their testimony. These witnesses are
Ed Palumbo, William Moffitt, Kevin Schaal, Jody Winkler, and
Bruce Roland.
(a)

Ed Palumbo

Ed Palumbo testified to having two conversations with Snow
in which Snow stated that he had murdered Little. In the first,
Snow reportedly remarked, “Boom, boom. Gun goes off. Kid dies.”
Ex. C at 123. In the second, Snow told Palumbo that he shot

58

Little because he was being “a smart ass” and that committing
the crime was not as difficult as he had imagined. Ex. C at 126.
In an affidavit dated January 15, 2010, however, Palumbo
asserts that he does not believe Snow was responsible for the
crime. Palumbo does not recant his testimony. He says that he
believes Snow was only “bullshitting” when he made the
statements about killing Little. Ex. 24 ¶ 6. Palumbo states that
although he had signed a statement asserting that Snow had made
the statements, he did not want to testify at Snow’s trial.
Palumbo claims that he testified only because the State’s
Attorney informed him that if he refused, he would “be put in
segregation in prison, be charged with perjury or get five years
in prison for not cooperating.” Id. ¶ 5. Palumbo also states
that he was hoping for a deal and that Reynard told him if there
“was any prison [he] wanted to go to he would see what he could
do.” Id. ¶ 9.
Snow argues that the state violated Brady by failing to
disclose that Palumbo was threatened. Since no state court
decision addressed this contention on the merits, I address it
de novo. As noted, evidence that a witness was pressured or
threatened into testifying is potentially favorable to the
defense and is thus subject to disclosure under Brady. See,
e.g., Simmons, 590 F.3d at 235; Scheer, 168 F.3d at 452.
However, as with the Scheel Brady claim, evidence that Palumbo

59

was threatened fails to meet Brady’s materiality requirement.
Palumbo does not allege that he was threatened into testifying
falsely against Snow.8 He indicates that he was threatened
because (despite having already given a statement incriminating
Snow) he had refused to testify at all. Hence, evidence of the
threats would not have directly undermined the substance of
Palumbo’s testimony.
Similarly, the only benefit alluded to in Palumbo’s
affidavit is Reynard’s alleged statement that “he would see what
he could do” if Palumbo had a preference regarding his place of
incarceration. That Palumbo sought something in return for his
testimony could have been used to impeach him; but given the
modest nature of the benefit in question -- that Reynard would
“see what he could do” about having Palumbo transferred to a
prison of his choice -- its impeachment value would have been
limited. And even if Palumbo had been completely discredited,
given the state’s remaining evidence, there is no reasonable
probability that the verdict would have been different.
(b)

William Moffitt

8

To be sure, Palumbo claims that Reynard also told him that he
had prosecuted Snow despite knowledge that Snow was innocent.
That allegation is the subject of a separate Brady claim, which,
as I discuss below, has been procedurally defaulted. Here,
however, I note that the court in Snow II specifically found
that Palumbo’s allegation on this point was not credible. Snow
II, at 2-3.

60

At trial, Moffitt testified that Snow told him about the
Clark station murder while the two were cellmates at Joliet
Correctional Center. Snow cites Dennis Hendricks’s affidavit,
which avers that Moffitt told him that “he got a time cut” in
exchange for testifying against Snow. See Ex. 5 ¶ 7. Snow claims
that the state violated Brady by failing to disclose this
information.
This claim is procedurally defaulted. In its supplemental
opinion in Snow III, the appellate court refused to address the
merits of Snow’s Moffitt Brady claim because Snow had failed to
properly raise it. Snow III, at ¶ 78. Snow III therefore
disposed of the claim based on an independent and adequate state
ground, see, e.g., Sturgeon v. Chandler, 552 F.3d 604, 611 (7th
Cir. 2009) (“A finding of waiver by the state postconviction
court is enough to establish an adequate and independent state
ground.”), and I am precluded from addressing it absent a
showing of cause and prejudice or that failure to address the
claim would result in a miscarriage of justice, see, e.g.,
McKee, 598 F.3d at 382. Snow offers no argument on this point.
Accordingly, his Brady claim as to Moffitt fails.
(c)

Kevin Schaal and Jody Winkler

Schaal testified to having several conversations with Snow
in 1999 about Little’s murder. According to Schaal, Snow stated
in one conversation that he (Snow) had been present when Little

61

was killed. Winkler testified to a conversation in 1999 in which
Snow indicated that he had murdered Little and that he was
concerned about being indicted for the crime.
On cross-examination, both Schaal and Winkler acknowledged
that they had inquired with authorities about benefits they
might receive in exchange for their testimony. According to
Snow, however, both denied having actually received any benefit.9
Snow argues that records from both witnesses’ sentencings show
that they had, in fact, received deals. Records from Winkler’s
sentencing show that he pleaded guilty to forgery in January
2000. See Ex. 17 at 1. He was eligible for a maximum sentence of
ten years; he received four. Id. at 5. Schaal was sentenced in
July 2000. The government moved for a downward departure, which
the court granted, based on Schaal’s assistance in Snow’s case.
Ex. 15 at 1-2, 6. He was sentenced to 110 months in prison. Id.
at 6. According to Snow, the state violated Brady by not
disclosing this information.
In Snow III, the appellate court addressed the Schaal and
Winkler Brady claims on the merits and concluded that both
failed because the sentencing information in question was

9

While Winkler denied receiving a benefit in exchange for his
testimony, see Ex. E at 127, Schaal’s testimony was less
definitive. He testified that the sentencing judge was informed
of his cooperation in Snow’s case but claimed that he did not
know whether the judge had taken this into consideration in
determining his sentence. See Ex. F at 64.
62

publicly available and the state was under no obligation to
disclose it. Snow III, ¶¶ 39, 40. In addition, the court noted
that in the case of Winkler, Snow failed to show a connection
between his testimony and his sentence. Instead, Snow merely
pointed out that Winkler’s sentence was lower than the statutory
maximum. These conclusions were not contrary to, or an
unreasonable application of, federal law.
Snow’s challenge to the state court’s decision on this
point is half-hearted. His primary contention with regard to
Schaal’s and Winkler’s sentencing information is that his
counsel were ineffective for failing to obtain it. His Brady
argument is offered only in the alternative, “to the extent that
the Court finds that counsel could not have known to look for
this information.” Pet’r’s Mem. at 66.10 Snow cites Banks v.
Dretke, 540 U.S. 668 (2004), for the proposition that defendants
should not be forced to “scavenge for hints of undisclosed Brady
material when the prosecution represents that all such material
has been disclosed.” Id. at 695. Banks is inapposite. The Brady
material at issue there was evidence indicating that a
prosecution witness had served as a paid police informant.
Unlike Schaal’s and Winkler’s sentencing information, the

10

As noted above, Snow’s ineffective-assistance claim as to
Schaal and Winkler (Ground (6)) was procedurally defaulted. See
Part III.A.1, supra.
63

information in Banks was in the sole possession of the
government. Snow’s Brady claims fail as to Schaal and Winkler.
(d)

Bruce Roland

Roland testified to having a conversation with Snow in the
Logan Correctional Center in 1994. He stated that Snow talked
about his reputation for killing Little and told Roland details
about the crime (e.g., that Snow had been “partying” earlier on
the evening in question, that Little had refused to give Snow a
free pack of cigarettes, that McCown was present during the
shooting). Snow argues that the state suppressed evidence that
Roland received a deal in exchange for his testimony. He
asserted this claim in two iterations, each based on different
evidence. I examine these in turn.
(i)

Roland Brady Claim I

In his initial postconviction petition, Snow pointed to
sentencing records that, he argued, showed “that at the time of
trial Roland had several pending felony convictions on which he
seemingly received light sentences and special considerations.”
Ex. T at 21. Snow III addressed this version of the Roland Brady
claim on the merits and rejected it. I therefore review the
court’s decision deferentially under AEDPA.
The court held that the claim failed because Snow had
failed to sufficiently allege that the state made any promise to
Roland prior to his testimony. Snow III, ¶ 41. Rather, the court

64

opined that Snow merely highlighted favorable considerations
Roland had received. Id. The court explained that the
“government is free to reward witnesses for their cooperation
with favorable treatment in pending criminal cases without
disclosing to the defendant its intention to do so, provided
that it does not promise anything to the witness prior to the
testimony.” Id. (quotation marks omitted).
Snow argues that the court unreasonably applied Brady. He
contends that agreements between the state and witnesses can be
tacit rather than explicit, and he maintains that he submitted
evidence demonstrating such an agreement between the state and
Roland. But Snow III did not suggest that Brady applies only
where the state has made explicit promises to a witness. It held
only that Snow had failed to allege facts establishing a promise
or agreement of any sort between the state and Roland. That
conclusion was not unreasonable. The fact that Roland may have
received favorable treatment is insufficient to show that he had
agreement with the state. See, e.g., Bell v. Bell, 512 F.3d 223,
234 (6th Cir. 2008) (“[A]lthough we do not take issue with the
principle that the prosecution must disclose a tacit agreement
between the prosecution and a witness, it is not the case that,
if the government chooses to provide assistance to a witness
following a trial, a court must necessarily infer a preexisting
deal subject to disclosure under Brady.”).

65

Snow argues that the court mischaracterized the record in
holding that he failed to establish at least an implicit
agreement between the state and Roland. In particular, he cites
a police report stating that Reynard told an officer to inform
Roland’s attorney that “if his client was totally truthful and
his information was correct that his office had a history of
taking the persons [sic] cooperation into consideration at
sentencing time.” Ex. 16 at 3. But this statement is not
mentioned in Snow’s brief to the appellate court. The only
evidence he referred to were the “seemingly” light sentences and
other considerations Roland allegedly received. Ex. T at 21.
Shortly before filing the memorandum in support of his §
2254 petition, Snow filed a notice of supplemental authority
based on the Supreme Court’s recent decision in Wearry v. Cain,
136 S. Ct. 1002 (2016). In Wearry, the Court held that the state
violated Brady by, among other things, failing to disclose that
(contrary to the prosecution’s representations at trial) a key
witness had twice sought a deal to reduce his existing sentence
in exchange for testifying against the petitioner. Id. at 1004.
The Court held that “even though the State had made no binding
promises, a witness’ attempt to obtain a deal before testifying
was material because the jury ‘might well have concluded that
[the witness] had fabricated testimony in order to curry the

66

[prosecution’s] favor’” Id. at 1007 (quoting Napue v. People of
State of Ill., 360 U.S. 264, 270 (1959)).
According to Snow, Wearry shows that Snow III unreasonably
applied Brady in holding that Brady requires disclosure of
benefits conferred only where the state makes promises to a
witness prior to his testimony. But Snow did not argue in the
state court that he was not required to show a promise or
agreement between the state and Roland; he argued that he had
sufficiently established the existence of such an agreement or
promise. Having failed to make this argument in the state court,
Snow cannot assert it here.11
Finally, putting all of the foregoing aside and assuming
that the state violated Brady by failing to disclose evidence
that Roland received a deal in exchange for testifying, Roland
Brady Claim I claim fails to meet Brady’s materiality
requirement. In addition to the fact that Roland was only one of
many witnesses who testified that Snow had claimed
11

To the extent that Snow believes Wearry represents an
extension of Brady, he cannot use the decision to show that Snow
III unreasonably applied Brady. Under § 2254, the relevant
inquiry is whether the state court’s opinion was an unreasonable
application of clearly established federal law at the time the
state court rendered its decision. See, e.g., Caffey v. Butler,
802 F.3d 884, 894 (7th Cir. 2015) (“‘Clearly established Federal
law’ refers to the holdings of the Supreme Court that existed at
the time of the relevant state court adjudication on the
merits.”). Since Wearry was decided earlier this year, any
doctrinal innovation in the decision was not clearly established
at the time of the state courts’ decisions.

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responsibility for the murder, Roland had already been impeached
regarding his self-interested motive for testifying against
Snow. While Roland denied receiving any benefit in exchange for
testifying, he conceded that he had not contacted police with
information about Snow’s confession until after he was charged
with a DUI in 1999. See Ex. F at 90. Thus, evidence that Roland
had a deal with the state would have enabled Snow to impeach
Roland more effectively, but only marginally so. When viewed
against the rest of the state’s evidence, the evidence would not
have raised a reasonable probability of Snow’s acquittal. Thus,
the first variant of Snow’s Roland Brady claim fails.
(ii) Roland Brady Claim II
Snow asserted the second iteration of his Roland Brady
claim in his motion for leave to file a successive
postconviction petition. There, Snow cites an affidavit
submitted by Danielle Prosperini (“Prosperini”), Roland’s wife
during the relevant time period, averring that Roland made a
deal with police, agreeing to testify against Snow in exchange
for help with his DUI charge. Prosperini states that she and
Roland had “numerous conversations where [Roland] said he lied
[about Snow’s case] to save himself and that he felt guilty.”
Ex. 27 ¶ 4. Prosperini additionally asserts that Roland told her
that when he spoke to Snow in Logan Correctional Center, Snow
told him only that he was incarcerated because of “the thing in

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Bloomington.” Id. ¶ 6. According to Prosperini, Roland
understood this to be a reference to the Freedom Oil robbery,
not the Clark station crime. She states that at some point
during his time at Logan, Roland wrote letters to Detective
Crowe offering to provide information about the Freedom Oil case
in exchange for Crowe’s help. Crowe visited Roland at Logan but
nothing came of it.
Prosperini further avers that once Roland was released from
prison, Detectives Katz and Barkes contacted him repeatedly, but
Roland brushed them off because he did not need their help.
However, when Roland was later charged with the DUI, he
contacted Katz and offered information about the Clark station
crime in exchange for help. According to Prosperini, Katz told
her that he “could put Bruce away for 50 years.” Id. ¶ 10. In
addition, she states that Katz threatened to use his wife, who
was in charge of in-home daycare licensing for the Department of
Children and Family Services, to have Prosperini’s children
taken away and to end her in-home daycare service. Id. According
to Prosperini, the police helped Roland with the DUI in exchange
for his testimony, but refused to help him when he was later
charged with another DUI.
Snow acknowledges that this version of his Roland Brady
claim is procedurally defaulted because Snow IV rejected it for
failing to meet the PCHA’s requirements. Snow contends, however,

69

that the default should be excused because he meets the cause
and prejudice requirements. With respect to the cause
requirement, Snow asserts that he had no way of knowing about
Prosperini until she contacted his postconviction counsel.12 But
assuming arguendo that Snow can show cause, he cannot show
prejudice. Snow contends that the information alleged by
Prosperini could have been used to impeach Roland’s testimony
that he received no consideration in exchange for his testimony.
He also argues that information about Katz’s alleged threats
could have been used to undermine Katz’s credibility and the
state’s case more generally by suggesting that the state had
used similar tactics with other witnesses. Although the
information alleged by Prosperini would have been helpful to
Snow’s case, I cannot say that the state’s alleged failure to
disclose the information “worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions.” Perruquet v. Briley, 390 F.3d 505,
515 (7th Cir. 2004). While evidence that Roland had received a
deal would have helped impeach Roland’s testimony, the
significance of the evidence is diluted by the fact that, as
already noted, Roland’s incentive for testifying had been

12

In her affidavit, Prosperini states that she tried to contact
Snow’s trial counsel after Snow’s sentencing and that she
“talked to a lawyer they put on the phone, but nothing happened
after that.” Ex. 27 ¶ 16.
70

brought out on cross-examination. Moreover, evidence that Katz
had pressured or threatened Roland and Prosperini would not have
provided any direct evidence of the use of such tactics with
other witnesses. Snow argues that the information in
Prosperini’s affidavit may be prejudicial when viewed along with
other alleged Brady violations. As noted above, however, for
purposes of the cause-and-prejudice inquiry, each claim is
examined separately. McCleese, 75 F.3d at 1179.
Snow also argues that the procedural default of Roland
Brady Claim II is excused under the fundamental miscarriage of
justice exception. To demonstrate a fundamental miscarriage of
justice, a petitioner must show that “a constitutional violation
has probably resulted in the conviction of one who is actually
innocent such that it is more likely than not that no reasonable
juror would have convicted [the petitioner] in the light of the
new evidence.” Thomas v. Williams, 822 F.3d 378, 386 (7th Cir.
2016) (quotation marks omitted). Given the strength of the
state’s case against Snow, I cannot say that no reasonable juror
could have voted to convict Snow after learning of the
allegations in Prosperini’s affidavit. Accordingly, Roland Brady
Claim II is procedurally defaulted, and both versions of Snow’s
Roland Brady claim fail.
(e) Corroborating Affidavits

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Snow rounds out Ground (2) of his Brady claim by citing the
affidavits of Dan Tanasz, Mark McCown, David Arison, Randall
Howard, and Leigh Denison. Rather than asserting these as bases
for freestanding Brady claims, Snow cites these witnesses’
affidavits as corroborative of his other Brady claims.
To begin with, Snow cannot corroborate his Brady claims
based on the affidavits of Tanasz, McCown, or Arison because he
made no attempt to do so in his postconviction PLA. Any such
contention on this score is procedurally defaulted. In addition,
the affidavits of Tanasz, Howard, and Arison do not corroborate
Snow’s Brady claims. Tanasz and Howard express annoyance about
being repeatedly contacted by the police, but they do not allege
threats, intimidation, or improper conduct of any sort. For his
part, Arison alleges only that he was told he “could get in
trouble” for hiding Snow. Ex. 32 ¶ 7.
Denison’s is the only one of the “corroborating” affidavits
alleging actual threats by police. Denison avers that although
he told detectives that Snow never made any incriminating
statements to him about murdering Little, they threatened to
charge him as an accessory unless he testified that Snow had
admitted to the crime. See Ex. 33 ¶ 4-6. But Denison did not
testify at Snow’s trial. And in any event, because Snow refers
to Denison’s affidavit only by way of corroboration, Denison’s
allegations have no ultimate bearing on the Brady analysis.

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In sum, with respect to Ground (2) of Snow’s Brady
argument, his claim as to Moffit and his second Roland Brady
claim are procedurally defaulted. His claims as to Schaal and
Winkler fail because the information at issue was not
suppressed. Snow’s Roland Brady Claim I fails both because Snow
III reasonably concluded that Snow failed to establish an
agreement between the state and Roland and because the claim
fails to meet Brady’s materiality requirement. Similarly, Snow’s
claim as to Palumbo fails to support a finding of materiality.
3.

Evidence of a Pattern of Misconduct by the
Bloomington Police Department and the McLean County
State’s Attorney’s Office
Snow argues that following his conviction, evidence came to

light revealing a pattern of misconduct on the part of the
McLean County State’s Attorney’s Office and the Bloomington
Police Department. As noted previously, supra at 17-18, Snow
here points to the Beaman and Drew cases, in which courts
reversed defendants’ convictions based on Brady or other
violations committed by the McLean County State’s Attorney’s
Office and the BPD, respectively.
In Beaman, the Illinois Supreme Court found that the
prosecution had violated Brady by failing to disclose evidence
of an alternative suspect in the case, even after representing
to defense counsel and to the jury that there were no other

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suspects. Id. at 503, 508, 514. Snow notes that Reynard was one
of two prosecutors in the case.13
In Drew, the appellate court affirmed the trial court’s
grant of a new trial to the petitioner based on the
prosecution’s failure to disclose that a key witness had
received various forms of assistance (e.g., dismissal of pending
criminal charges) from Detective Katz and the ASA on the case.
Although Katz and the ASA testified that they had not provided
the witness with any assistance, the court found their testimony
not credible. Drew, slip op. at 17-18. The trial court also
concluded that Katz had urged the witness to lie. Id. at 23.
The state argues that this claim is procedurally defaulted
because it was not fairly presented in the state court. I agree.
Snow’s brief in support of his first postconviction PLA alludes
to the claim only in passing and does not mention the Beaman or
Drew cases. See Ex. X at 12. Snow does not contend that the
procedural default is excused under the cause-and-prejudice or

13

The Beaman opinion does not indicate the extent to which
either prosecutor might have been responsible for the alleged
disclosure violation. However, the defendant subsequently
brought a § 1983 suit naming both prosecutors, and others, as
defendants. See Beaman v. Souk, 863 F. Supp. 2d 752 (C.D. Ill.
2012). The complaint alleged that both prosecutors had conspired
with the other defendants to suppress information about the
alternative suspect. Reynard was later voluntarily dismissed as
a defendant on qualified immunity grounds, see Beaman v.
Freesmeyer, 776 F.3d 500, 506 (7th Cir. 2015), and the plaintiff
ultimately lost on summary judgment, id. at 513.

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miscarriage-of-justice exceptions. Accordingly, his Brady claim
on this ground fails.
4.

Failure to Disclose Reynard’s Alleged Statement to Ed
Palumbo That He Knew Snow Was Innocent but Prosecuted Him
Anyway
In addition to alleging that he was threatened into

testifying against Snow, Ed Palumbo’s affidavit avers that after
he testified in Snow’s trial, Reynard told him that “Jamie Snow
didn’t do this, someone else had, but since they couldn’t get
that other person Jamie would have to do.” Ex. 24 ¶ 8. Snow
contends that the state violated Brady by failing to disclose
this information.
As with the previous claim, this claim is procedurally
defaulted because Snow failed to present it in his
postconviction PLA. The PLA cites Palumbo’s allegation that
Reynard threatened to charge him with perjury if he refused to
testify against Snow; but it does not include any allegation
involving Reynard’s recognition of Snow’s innocence. Snow makes
no attempt to show that the procedural default ought to be
excused under the cause-and-prejudice or miscarriage-of-justice
exceptions. Accordingly, Snow’s Brady claim based on Reynard’s
alleged acknowledgment of Snow’s innocence fails.
5.

Martinez’s Prior Statement Regarding Snow
Snow next argues that the state violated Brady by failing

to turn over evidence that, he believes, shows Martinez told

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police that Snow was not the person leaving the gas station on
the night in question. The material, which he obtained through a
FOIA request in 2012, consists of notes from a polygraph exam
taken by Martinez in 1994. The following handwritten notation is
found on the form:
Easter Sunday – [illegible] 8 pm v shot during arm
robb [illegible] tray stolen – [illegible] $60-$70
neighbor @ station putting air in tires – hears 2 pops
– sees a man walk out looks at w [illegible] and
leaves on foot – w says this s not person he saw –
Ex. 37 at 1. Although the interviewee’s name is redacted, the
description makes clear that it was Martinez. (It notes that the
witness was putting air in his tires prior to seeing the
subject). Likewise, while the name of the subject has been
redacted, it also seems clear that it was Snow. (The subject is
described as being wanted in connection with the Freedom Oil
robbery). Snow argues that the notes show that Martinez’s
testimony was perjured and that the state nonetheless knowingly
presented his testimony at trial.
Snow acknowledges that since this argument was raised only
in his petition for leave to file a successive postconviction
petition, it is procedurally defaulted. However, he argues that
the default is excused because he satisfies the cause and
prejudice requirements. Snow is correct as to the cause
requirement -- despite multiple FOIA requests, the notes in

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question were produced to him only in 2012 -- but he fails to
meet the prejudice requirement.
In Snow IV, the court stated that the “context of the
remarks in this case do not compel the reading defendant
advocates when he argues ‘Danny Martinez specifically told
police’ defendant ‘was not the person.’” Snow IV, ¶ 24.
Regardless of whether Snow IV is entitled to AEDPA deference on
this point, the court’s observation is correct. The
polygrapher’s notes leave unclear whether Martinez was shown a
picture of Snow and asked whether he was the individual he had
seen; whether Martinez was asked whether he knew Jamie Snow and
whether Snow was the individual he had seen; or whether Martinez
had volunteered the statement that Snow was not the person he
had seen. The notes may reasonably be read as suggesting merely
that Martinez failed to recognize Snow. Evidence to this effect
would have been inconsequential given that Martinez’s inability
to identify Snow in a lineup or photos had been demonstrated at
trial. In short, the polygrapher’s notes do not show that
Martinez’s testimony was perjured, much less that the state was
aware of that fact. The state’s failure to disclose this
evidence does not undermine confidence in the jury’s verdict.
Snow’s Brady claim fails insofar as it is based on the
polygrapher’s notes.
7.

Scheel’s Polygraph

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Snow next argues that the state violated Brady by failing
to disclose evidence regarding what appear to be two polygraph
examinations administered to Scheel. During pretrial discovery,
the prosecution disclosed a report from a polygraph examination
administered to Scheel. The document is identified as an
“amended report” and is dated January 24, 2000. It describes an
examination administered on October 12, 1993, during which
Scheel was asked three questions: “Did Jamie Snow tell you that
he robbed the Clark Station on Empire St.?”; (2) “Did Jamie Snow
tell you that he shot the Clark Station attendant?”; and (3)
“Are you lying when you said that Jamie Snow told you he shot
the Clark Station attendant?” See Ex. 40. The report produced to
Snow indicated that Scheel had answered “yes” to the first two
questions and “no” to the third. The examiner’s conclusions as
to Scheel’s truthfulness were redacted.
In response to a FOIA request, Snow obtained two additional
documents relating to Scheel’s polygraph. The first is an
unredacted version of the above-mentioned January 24, 2000
report, which reveals that the examiner believed Scheel had been
deceptive in stating that Snow had told him he’d committed the
murder. See Ex. 41. The second document is a separate report,
dated October 27, 1993, indicating that Scheel had answered “no”
when asked whether Snow told him he’d committed the robbery and
the murder. See Ex. 39. In that report, too, the examiner opines

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that Scheel was not being truthful. Id. Snow argues that if
these documents had been disclosed, he could have called the
polygraph examiner to testify and impeach Scheel.
Snow argues that this claim is not procedurally defaulted
because he meets the cause-and-prejudice test. As with the
Martinez notes, Snow can show cause but not prejudice. Even
assuming that the evidence would have enabled Snow to impeach
Scheel more effectively, this would not have raised a reasonable
probability that, had the information been disclosed, the
outcome of the trial would have been different. Snow again
argues that the Scheel polygraph evidence should be viewed
together with all of the state’s other alleged non-disclosures.
As already noted, such a cumulative analysis is not permitted in
the context of the cause-and-prejudice inquiry. See, e.g.,
McCleese, 75 F.3d at 1179.
The Scheel Brady claim also fails because under Illinois
law, polygraph evidence is inadmissible, and under Seventh
Circuit law only admissible evidence is subject to Brady’s
disclosure requirements. See, e.g., Jardine v. Dittmann, 658
F.3d 772, 777 (7th Cir. 2011) (“Logically, inadmissible evidence
is immaterial under [Brady].”); United States v. Silva, 71 F.3d
667, 670 (7th Cir. 1995) (“While it is true that suppression of
evidence relevant only for impeachment purposes can still give
rise to a Brady violation, evidence that would not have been

79

admissible at trial is immaterial because it could not have
affected the trial’s outcome.”) (citation omitted).
Citing United States v. Wigoda, 521 F.2d 1221 (7th Cir.
1975), Snow argues that Brady evidence need not be admissible.
Wigoda remarked in passing that if the suppressed statements at
issue in the case would not lead to admissible evidence, they
“certainly could not have been material in the Brady sense.” Id.
at 1227. This statement says only that since Brady evidence must
be admissible, it follows a fortiori that information that could
not even lead to admissible evidence cannot constitute Brady
material. And the Wigoda language is contradicted by the far
clearer pronouncements in cases such as Jardine and Silva.
To be sure, the Seventh Circuit has acknowledged that most
other circuits have rejected the view that Brady is restricted
to admissible evidence. See United States v. Morales, 746 F.3d
310, 315 (7th Cir. 2014). Indeed, in Morales, the court
indicated its inclination to adopt the majority view. Id.
Nevertheless, the court expressly stopped short of abandoning
the existing doctrine because it was not necessary for purposes
of resolving the dispute before it. Id. Morales therefore
underscores that the existing rule requiring admissibility
remains in place.
In the present case, Snow has not shown how the polygraph
examiner’s notes raise a reasonable probability that the trial’s

80

outcome would have been different. Accordingly, his Brady claim
fails insofar as it is based on the state’s failure to disclose
the information.
8.

Roland’s Polygraph Examination
The same analysis applies to Snow’s contention that the

state violated Brady by failing to turn over evidence pertaining
to a polygraph exam administered to Roland in December 1999.
Roland was asked three questions: (1) “Did you tell the truth
when you said you had a conversation with Jamie Snow about the
Clark Gas Station shooting while at Logan”; (2) “Did Jamie Snow
tell you he was at [a neighbor’s] house just before the shooting
at the Clark station?”; and (3) “Did Jamie Snow tell you he was
at the Clark station two times the night of the shooting?” Ex.
42 at 1. The polygrapher’s report indicated that Roland answered
“yes” to all three questions. The copy of the report produced by
the prosecution redacted the examiner’s opinion as to Roland’s
truthfulness. Snow subsequently obtained an unredacted version
of the report in response to his 2012 FOIA request, in which the
examiner opines that Roland was not being truthful.
Snow contends that he can escape procedural default of this
claim by meeting the cause-and-prejudice test. As in the case of
the Scheel polygraph evidence, the Roland polygraph evidence is
not admissible and thus is not subject to Brady’s disclosure

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obligations. Hence, Snow’s Brady claim based on the Roland
polygraph evidence fails.
C.

Conclusion

As noted above, materiality under Brady must be assessed
cumulatively. However, the bulk of Snow’s Brady claims fail for
reasons unrelated to the materiality requirement and therefore
are not relevant to this ultimate assessment. Some of the claims
are procedurally defaulted (viz., evidence that Moffitt was
rewarded for his testimony; that (as alleged by Prosperini) the
police threatened Roland; that the BPD and State’s Attorney’s
Office have a pattern of engaging in misconduct; that Reynard
allegedly made remarks acknowledging Snow’s innocence; and that
Martinez allegedly told a polygraph examiner that Snow was not
the person he saw exiting the Clark station). Other claims fail
because the evidence in question was not “suppressed” within the
meaning of Brady (viz., information regarding Schaal’s and
Winkler’s sentencings). In addition, Snow’s first Roland Brady
claim fails in light of Snow III’s conclusion that Snow had
failed to allege an agreement or promise between the state and
Roland; and his Brady claims based suppression of the Scheel and
Roland polygraph information fail because the evidence in
question is inadmissible. Accordingly, none of these claims is
relevant for purposes of the cumulative materiality
determination.

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The only claims relevant to that issue are those based on
Scheel’s confession and Palubmo’s allegation that he was
threatened into testifying. The question is whether, if the
state had disclosed the information alleged in these affidavits,
there is a reasonable probability that Snow would have been
acquitted. Neither Snow III nor Snow IV addressed this question.
Snow III performed no cumulative analysis because it found that
the only evidence allegedly suppressed was that pertaining to
the pressure used to get Scheel to testify. And as noted above,
Snow IV indicated that it was precluded by the nature of the
PCHA’s cause-and-prejudice inquiry from viewing Snow’s Brady
allegations collectively. See Snow IV, ¶ 13. Hence, there is no
state-court decision to which to defer, and I must conduct the
cumulative Brady analysis de novo.
Even when viewed cumulatively, the evidence does not
undermine confidence in the jury’s verdict. When examined
closely, the significance of the information allegedly
suppressed is minimal. Although Scheel claims to have felt
pressured by detectives, Biela’s affidavit contains no
information that would substantiate Scheel’s feelings. Scheel
suspects that he was placed in segregation after telling
detectives that Snow never told him he had murdered Little; but
he offers no basis for the suspicion. He claims that he believed
detectives “had a hole in the ground” for him, but nothing in

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the affidavit suggests that this belief was reasonable. In
Palumbo’s case, the alleged threat was overt, but by Palumbo’s
own account, the threat was issued in an attempt to get him to
testify, not to get him to testify falsely. Reynard’s alleged
comment that he would “see what he could do” about having
Palumbo transferred to a prison of his choice would likewise
have done little to cast any further doubt on Palumbo’s
credibility.
And at all events, any benefit from disclosure of this
information is eclipsed by the evidence pointing to Snow’s
guilt. In addition to two eyewitnesses who identified Snow, ten
separate witnesses testified that Snow implicated himself in the
crime: Howard, Gaddis, Burns, Roberts, Schaal, Winkler, Hammond,
Moffitt, Thomas, and Bernardini. Snow argues that a number of
these witnesses -– in particular, Luna, Roberts, Wright, and
Tanasz -- have since recanted or retracted their testimony.14
With respect to Luna and Roberts, this contention is misleading.
While both submitted affidavits that modify their prior

14

Snow II briefly discussed affidavits submitted in support of
Snow’s initial postconviction petition. However, with the
exception of Palumbo’s affidavit, Snow II does not discuss the
affidavits with any specificity. Snow II, at 2. Moreover, the
court discussed the affidavits in the context of Snow’s actual
innocence claim. Thus, Snow II does not contain any specific
factual findings concerning the affidavits of the witnesses at
issue with respect to Snow’s Brady claims.

84

testimony at trial, the recantations leave important parts of
their testimony intact.
Luna’s affidavit states that “[a]t 14 years of age and at a
distance of about 200 feet I can not say that I am sure Jamie
Snow is the person who I observed.” Ex. 8 ¶ 9. This statement,
however, is perfectly consistent with Luna’s pretrial statements
and his trial testimony. Luna never stated that he was sure Snow
was the person he had seen. He testified that when he viewed the
lineup, he “just imagined everyone [sic] of them doing it and he
[Snow] came to mind and he fit the picture.” Ex. C at 88. On
cross-examination, Luna was asked whether he had indicated at
the lineup that he was sure the person he had chosen was the one
he had seen on the night in question. Luna answered that he had
told police at the time of the lineup that he was not sure. See
Ex. 108, 112. Luna’s testimony on this point was corroborated by
Detective Crowe and by Richard Koritz, Snow’s public defender at
the time. Ex. J at 23; Ex. H at 10.
Luna also avers that “[a]s a 14 year old I thought the
police had caught the right person, because of this I identified
Jamie Snow.” Id. ¶ 13. At the time of the lineup, however, Luna
did not know whom the police suspected as the perpetrator. There
is no evidence that Snow was singled out in any way during the
lineup. Moreover, Koritz testified that police told Luna during
the lineup that he did not have to pick any of the participants

85

simply because they were included in the lineup. Ex. H at 15.
The record indicates that Luna picked Snow without any
prompting.
Snow is correct that Dawn Roberts’s affidavit partially
recants her prior testimony. At trial, Roberts stated that Snow
toasted Billy Little while pouring beer on the ground. In her
affidavit, Roberts avers that Snow mentioned only “Billy” during
the toast, and that she now believes that Snow was referring to
Billy McWhorter, the brother of one of her friends who had
passed away around that time. Ex. 12 ¶ 4. In addition, while
Roberts testified at trial that Snow asked her to collect and
bring to him composite sketches of the murder suspect from
around town, she states in her affidavit that she collected the
sketches on her own because Snow was her friend. Id. ¶ 12.
Roberts’s statement that Snow’s toast did not relate to
Little is favorable to his case. More ambiguous, however, is the
import of her averment that it was her idea, not Snow’s, to
collect the composite sketches. That Roberts believed she would
be helping Snow by collecting the sketches suggests that she
believed that the sketches were indeed sketches of Snow or at
least that Snow bore a strong resemblance to the sketch. In any
case, Roberts has not departed from other key parts of her trial
testimony. For example, she has not recanted her testimony

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regarding Snow’s statement that the composite sketch was of him,
not McCown. Ex. F at 35.
Only Wright and Tanasz have fully recanted their trial
testimony. Wright avers that Snow never told him that he had
murdered Little. He explains that he testified against Snow
because he was angry with him. Tanasz avers that when Snow told
him he was unable to return to Illinois, it was because Snow was
wanted for traffic violations, not for the Clark station crime.
Ex. 30 ¶ 4. Tanasz also states that Snow told him that he was
wanted for a robbery but never indicated that he was guilty of
the crime. Tanasz does not explain why he has changed his story.
Taking these retractions into account does not change the
materiality determination. Neither Tanasz nor Wright was a
particularly critical witness for the state. Without them, eight
different witnesses testified that Snow made incriminating
statements about his involvement in the Clark station crime. In
addition, two eyewitnesses identified Snow. The state’s case is
further bolstered by, inter alia, Snow’s angst about
participating in the lineup, his move to Florida following the
lineup, his flight to Ohio following his indictment, and his use
of Arison’s identification information before he was
apprehended. Viewing all of this evidence cumulatively, Snow has
not raised a reasonable probability that evidence that Scheel

87

and Palumbo had been pressured to testify against Snow would
have resulted in a different verdict.
VI. Cumulative Error
As a final ground for relief, Snow advances a cumulative
error argument. He argues that even if his ineffectiveassistance and Brady claims are insufficient to warrant relief
when considered individually, they warrant relief when taken
together.
This argument is procedurally defaulted. Although Snow
raised this claim in his initial postconviction petition, it was
not based on the errors and Brady violations on which his
cumulative-error claim is based here. In his postconviction
appellate brief, the only errors Snow identified were the fact
that he had been shackled during trial and forced to wear a stun
belt. Snow III, ¶ 55. The court noted that Snow had raised the
latter issues only in his pro se pleadings and neglected to
include them in his final amended petition. Id. Thus, the court
held that Snow had failed to allege any specific errors on which
a cumulative-error claim could be based. Nor does Snow
sufficiently present the claim in his subsequent PLA. He merely
lists the appellate court’s denial of his cumulative error claim
as one of several points relied on for reversal. See Ex. X at 1.
Snow presents no argument that the procedural default of the
claim should be excused. The cumulative-error claim fails on the

88

merits because Snow has not shown any errors that might be
aggregated. Thus, I deny Snow’s petition insofar as it is based
on his cumulative error claim.
VII. Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases in the
United States provides: “The district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant.” Rule 11(a), 28 U.S.C. foll. § 2254.
“If the court issues a certificate, the court must state the
specific issue or issues that satisfy the showing required by 28
U.S.C. § 2253(c)(2).” Id. “To obtain a COA under § 2253(c), a
habeas prisoner must make a substantial showing of the denial of
a constitutional right,” which includes “showing 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.” Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000) (quotation marks omitted).
Because I do not believe that reasonable jurists could debate
whether Snow’s petition should have been resolved in a different
manner, I decline to issue a certificate of appealability.
VIII. Conclusion
For the reasons above, I deny Snow’s petition for habeas
relief and I decline to issue a certificate of appealability.

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ENTER ORDER:

Elaine E. Bucklo
United States District Judge
Dated: December 20, 2016

90