Whitehead v. Harrington
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 10/19/2017. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
CARL WHITEHEAD (M00110),
Case No. 14-cv-4118
Judge John Robert Blakey
RICK HARRINGTON, Warden
Menard Correctional Center,
MEMORANDUM OPINION AND ORDER
Petitioner Carl Whitehead brings a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254, challenging his convictions entered in the Circuit
Court of Cook County. After a 2008 jury trial, Petitioner was convicted of the firstdegree murder of Ramiro Aguirre, home invasion, residential burglary, and
attempted armed robbery. He was sentenced to a term of natural life. For the
following reasons, the Court denies the Petition, and declines to issue a certificate of
A. The Underlying Offense
Norma Calderon was asleep in her home in Chicago, Illinois in the early
morning of November 22, 2005. [21-17] at 24, 28. Calderon, who was pregnant,
shared the home with her husband, Ramiro Aguirre. Id. at 24, 26. That morning,
Aguirre was in the couple’s bedroom while Calderon slept in the nursery the couple
built in anticipation of their child. Id. at 28–29.
Calderon awoke when she heard glass breaking and the home’s security
alarm beeping. Id. When she got up to investigate the sounds, she encountered a
man who put a gun to her head and his hand over her mouth. Id. at 30. Shortly
after, Aguirre emerged from the bedroom and, upon seeing his wife in danger, began
to struggle with the intruder. Id. at 31. During the struggle, the gun fired into
Aguirre’s chest and he fell to the ground. Id. at 31–32. The intruder turned to
Calderon and demanded that she tell him where she kept money in the house. Id.
Calderon responded that she did not have any money in the house, and the man
left. Id. at 32. Calderon called 911 and tended to her husband. Id. at 33. Aguirre
died by the time emergency personnel arrived. Id.
B. Petitioner’s Trial
1. Voir Dire
During jury selection for the petitioner’s criminal case, the Cook County
Circuit Court conducted voir dire. [21-16] at 22. The court asked the jurors in
groups of three if they understood that the defendant was presumed innocent, that
the State must prove guilt beyond a reasonable doubt, and that the defendant had a
right to remain silent and, should he not testify, his silence could not be held
against him. Id. at 38. All jurors answered, “Yes.” Id.
2. Marcus Griffin
At trial, the State called Marcus Griffin, who was also charged with firstdegree murder in Aguirre’s death. [21-20] at 200–01. Griffin took a plea deal in
exchange for identifying Petitioner as the murderer.
Id. at 203–04.
testifying, however, Griffin denied taking part in the crime at Aguirre’s home,
meeting Petitioner there, and seeing Petitioner there with a gun. Id. at 207–09.
Griffin also denied hearing gun shots at the home and seeing Petitioner leaving the
residence. Id. at 213–14. Finally, Griffin denied that Petitioner threatened him
and that he acted as a lookout while Petitioner robbed Aguirre’s home. Id. at 214.
After Griffin testified, the State played a videotaped interview that Chicago
Police conducted with Griffin in May 2006. [21-21] at 11. During the interview,
Griffin told detectives that, shortly before the murder, there was a fire in the garage
behind Aguirre’s home. [21-15] at 107, 110. Griffin said he was watching the fire
department extinguish the fire when an acquaintance, Sedale Miller, told Griffin
that Calderon told firefighters that she kept a large sum of money in the garage.
Id. at 110–12. Griffin told detectives that Miller and Petitioner planned to rob the
home. Id. at 112–13.
During the interview, Griffin also reported that Miller later talked about
Petitioner describing the murder. Id. at 127–28. Griffin further stated that he had
sold drugs for Petitioner and had seen Petitioner beat up other people. Id. at 113–
14, 121. Griffin told detectives that an acquaintance told him that Petitioner was
responsible for an earlier shooting on Parkside Avenue. Id. at 121–22.
3. Tenisha Gibbs
In addition to Griffin, the State called Tenisha Gibbs. [21-18] at 5. Gibbs
lived across the street from Aguirre and had been in a relationship with Petitioner
before the murder. Id. at 12–13. The State asked whether she became pregnant
with Petitioner’s child; Gibbs denied being pregnant. Id. The trial court sustained
objections to the State’s subsequent questions about whether Gibbs aborted the
pregnancy and whether Petitioner paid for the abortion. Id. at 13–14. The State
later revisited this issue and asked whether Gibbs remembered making statements
regarding her pregnancy and abortion to the police. Id. at 19–21. Gibbs testified
that her previous statements to police were untrue and coerced. Id. Petitioner’s
attorney did not object. Id.
The prosecution elicited testimony about the abortion twice more without
Petitioner’s attorney objecting. First, the State called Detective James Gigler, who
testified that Gibbs told him during a police interview that she became pregnant
with Petitioner’s child and that Petitioner paid for an abortion. [21-20] at 97–98.
Second, the State called Assistant State’s Attorney (ASA) Donna Norton, who read a
statement she took from Gibbs in 2006. Id. at 36–37. In the statement, Gibbs said
she held a gun for Petitioner in the summer of 2005, and that Petitioner
impregnated her and then paid for her to have an abortion. Id. at 40–42.
4. Parkside Shooting
Detective Gigler testified that police recovered a shell casing from the scene
of Aguirre’s murder that was tested by forensic science personnel. Id. at 65–66.
The casing matched one taken from the scene of a 2004 shooting on Parkside
Avenue in Chicago, Illinois (the Parkside shooting). Id. at 66–68. The State called
various witnesses to testify about the Parkside shooting; the first was Erwin
Marrero. [21-17] at 94. Marrero identified Petitioner as the man whom Marrero
got into a car accident with shortly before the Parkside shooting. Id. at 96. Marrero
said that Petitioner sped away from the accident in a rage, but returned shortly
after and shot at Marrero and Marrero’s friend Eric Bowman, missing both men.
Id. at 97–98.
Marrero testified that Petitioner eventually shot Bowman in the
hand. Id. at 100–02. On cross-examination, Marrero said he did not report his
account of the shooting until police questioned him in 2006. Id. at 103–06.
The State then called Bowman, who echoed much of Marrero’s testimony, but
denied knowing who shot him.
Id. at 110–24.
Bowman testified during cross-
examination that he originally did not want to report the shooting and only
cooperated with police after they questioned him in 2006 about the incident. Id. at
The State also called ASA Peter Garbis, who in 2006 took Bowman’s
statement about the Parkside shooting. [21-20] at 8. Garbis read the statement
aloud. Id. at 14. In the statement, Bowman said that he knew the man who shot
him by the man’s face and learned days later that it was Petitioner. Id. at 14–19.
5. Sleeping Juror
At trial, a juror was heard snoring during a witness’s testimony. [21-19] at
24. Petitioner’s attorney then told the court that he intended to move for a mistrial.
Id. at 51.
The court responded that it would not grant the motion because it
believed the juror was awake for the rest of the proceedings. Id. After the jury
instruction conference, the prosecution wanted to move to remove the juror because
they had seen him sleeping at other points in the trial. [21-21] at 82. Petitioner’s
attorney argued that the juror should remain because he was the only African-
American juror and merely rested his eyes while listening. Id. at 83. The court
then brought out the juror and asked him whether he was awake throughout the
trial; the juror said he was. Id. at 84. The court let the juror remain. Id.
6. Closing Arguments
During closing arguments, the State described Calderon and Aguirre’s life
before the shooting, including how they prepared a nursery for their unborn child.
Id. at 108. The State also argued that any claim that Petitioner was the victim of a
police conspiracy was unreasonable, as it would have required an elaborate plot by
many unrelated actors. Id. at 133–34. The court overruled Petitioner’s objection to
this argument. Id. at 134. The prosecution later argued that if the police were
going to conspire against Petitioner, they would have done a better job by forcing
more specific testimony from more reliable witnesses. Id. at 146.
During the defense’s closing statement, Petitioner’s counsel argued that the
police’s interrogation techniques were coercive. Id. at 118–19. Petitioner’s counsel
said that police “knock you down until they get where they need you to go.” Id.
C. Post-Trial and Post-Conviction Proceedings
1. Verdict, Sentencing, and Post-Trial Motion
The jury found Petitioner guilty of first-degree murder, home invasion,
residential burglary, and attempted armed robbery.
Id. at 180–81.
subsequently filed a motion for a new trial. [21-22] at 4. Petitioner alleged various
instances of prosecutorial and court error, including: improperly using evidence
relating to gang activity; admitting inadmissible hearsay about the garage fire and
improper prior consistent statements; improperly admitting evidence of the
Parkside shooting; ineffective assistance of counsel for failing to excuse the sleeping
juror; and improperly admitting testimony about Gibb’s abortion. Id. at 17, 29, 43–
The trial court denied the motion and sentenced Petitioner to life
imprisonment for the murder. Id. at 92, 118. The court also sentenced Petitioner to
30 years for home invasion, 15 years for burglary, 15 years for attempted armed
robbery, and 25 years for discharging the firearm. Id. at 118.
2. Direct Appeal
On direct appeal, Petitioner argued about the admission of inappropriate
evidence, specifically: (1) gang activity discussed in Griffin’s videotaped interview;
(2) Gibb’s abortion; and (3) the Parkside shooting.
[21-1] at 1.
argued that: (4) the court did not follow proper voir dire procedures pursuant to
Illinois Supreme Court Rule 431(b); (5) the State’s closing argument was improper
because it discussed the loved ones Aguirre left behind and falsely accused the
defense of arguing that the State and police engaged in a conspiracy; (6) his trial
counsel was ineffective for failing to object to prejudicial evidence or testimony; and
(7) the trial court deprived Petitioner of his right to a fair trial by allowing the
sleeping juror to remain and refusing to hold a post-trial hearing on Petitioner’s
affidavit asserting that he wanted the juror excused for error. [21-2] at 50–65.
The appellate court found that admitting the videotape was an “invited error”
because the trial court admitted the tape based upon agreements between the
parties, and defense counsel helped redact the tape. [21-1] at 12. The appellate
court held that, because defense counsel did not object to admitting the videotape,
the issue was procedurally defaulted and could not be raised on appeal, though the
court also noted that there was no obvious error in admitting the tape. Id.
The appellate court also held that testimony and evidence about Gibbs’
abortion was relevant at trial because her previous statements about the abortion
contradicted her trial testimony and thus related to her credibility. Id. at 14. The
court found that the probative value of the abortion evidence outweighed any
prejudice to Petitioner. Id. at 16.
As for the Parkside shooting, the appellate court held that the evidence about
the shooting was not offered to show propensity, but only to link Petitioner to the
previous shooting, and thus Aguirre’s murder. Id. at 18–19. The court held that
the probative value of the evidence outweighed any prejudicial effect. Id.
The appellate court also held that Petitioner’s argument about voir dire
lacked specificity and merit; regardless, the appellate court reviewed the record and
found no error by the trial judge. Id. at 21. As for the sleeping juror, the appellate
court held that, because Petitioner ultimately argued for the juror to remain, he
could not later object to the “invited error.” Id. The appellate court also held that
there was no legal basis for Petitioner’s argument that the trial court was required
to consult with him directly on this issue. Id. at 25.
Addressing Petitioner’s contentions that the State’s closing arguments were
improper, the appellate court held that the trial court did not err by allowing the
State’s emotional appeals about Calderon and Aguirre, because those appeals
reasonably interpreted what the murder victim’s family might feel. Id. at 27. The
appellate court also held that Petitioner invited the conspiracy argument by
discussing police motives and alluding to a conspiracy. Id. at 27–28.
Finally, the appellate court applied the Strickland v. Washington, 466 U.S.
668 (1984), test to resolve Petitioner’s numerous allegations that this trial counsel
was ineffective. Id. at 28–29. The court held that the claims were either waived for
lack of specificity or prejudice, or were a matter of trial strategy and thus lacked
merit. Id. at 29–32.
Following the appellate court’s ruling, Petitioner filed a Petition for Leave to
Appeal (PLA) with the Illinois Supreme Court. [21-5] at 1. Petitioner argued that:
(1) the abortion evidence was improperly admitted; (2) the trial court did not
properly conduct voir dire; (3) trial counsel was ineffective for not objecting to
Griffin’s videotaped interview; (4) the sleeping juror denied Petitioner a fair trial
and the court erred by not holding a post-trial hearing on Petitioner’s affidavit that
he wanted the juror excused for error; and (5) the State’s arguments during closing
statements were prejudicial and trial counsel was ineffective for failing to object.
Id. at 3. The Illinois Supreme Court denied leave to appeal. [21-6].
3. Collateral Petition and Appeal
After his direct appeal, Petitioner filed a petition for post-conviction relief
with the Cook County Circuit Court. [21-7] at 21. Petitioner alleged ineffective
assistance of trial and appellate counsel for: (1) failing to object to improper
hearsay, opinion, and character evidence; (2) participating in admitting and editing
Griffin’s videotaped interview; (3) failing to object to improper impeachment
evidence or request a limiting instruction regarding the evidence; and (4) failing to
object to Bowman’s testimony about gang activity. Id. Petitioner also alleged that
his appellate counsel failed to raise the above issues and failed to raise a claim that
the evidence against him was insufficient. Id. The Circuit Court dismissed the
petition in the first stage. Id.
On appeal to the Illinois appellate court, Petitioner raised all the above
issues again, and specified that the limiting instruction that defense counsel failed
to give for the improper impeachment evidence should have been given when the
State introduced impeachment evidence. Id. at 22–42. The appellate court held
that: (1) Petitioner’s claim about Griffin’s videotape was barred by res judicata
because he raised the claim on direct appeal, [21-10] at 16; (2) admitting grand jury
testimony containing hearsay statements about Calderon’s garage was justified and
thus counsel was not ineffective for failing to object to that testimony, id. at 17–18;
(3) Petitioner’s claims regarding lack of character evidence were not supported by
any authority and thus were forfeited, id. at 18; (4) the impeachment evidence was
proper because the witnesses against whom it was used affirmatively harmed the
State’s case by contradicting their own previous statements, id. at 20–21; (5) the
new qualification about the timing of the limiting instruction was barred because
Petitioner did not raise that argument in his original collateral petition, id. at 21;
(6) trial counsel did in fact object to gang evidence, during a sidebar when the State
wanted to ask Bowman why he would not identify Petitioner as the Parkside
shooter, to which Bowman replied that he did not wish to become involved in gangrelated issues, id. at 22; (7) Petitioner’s other references to witnesses testifying to
gang activity were not raised in his original collateral petition and thus were barred
on appeal, id. at 22–23; and (8) appellate counsel was not ineffective for failing to
raise every possible issue on appeal, and several issues that Petitioner alleged that
appellate counsel failed to raise were meritless, as noted above, id. at 23.
Petitioner filed a PLA with the Illinois Supreme Court and raised the
following issues: (1) the appellate court erred by holding that hearsay accounts of
Calderon’s statements were admissible, [21-11] at 10–11; (2) the appellate court did
not properly apply the law of forfeiture, id. at 12–13; and (3) the appellate court did
not correctly apply res judicata, id. at 13–14. The Illinois Supreme Court denied
leave to appeal. [21-12].
D. Petitioner’s Federal Habeas Corpus Claims
In June 2014, Petitioner filed a federal habeas corpus petition with this
Court, pursuant to 28 U.S.C. § 2254. Petitioner raised the following claims:
Claim A: The trial court violated his due process rights by admitting the
Griffin video because the video contained hearsay, evidence of gang
affiliations, and evidence of other crimes. This evidence was prejudicial to
Petitioner, and the court exacerbated the prejudicial effect by allowing the
video to go to the jury room for deliberations.
o (1): The State did not lay the proper foundation for admitting the video
because Griffin was not asked whether the statements were true.
Claim B: The trial court erred by allowing questions and testimony about
Gibbs’ abortion because abortion is a controversial subject. The information
was not relevant and was highly prejudicial to Petitioner.
Claim C: The trial court violated Petitioner’s due process rights by admitting
evidence on the Parkside shooting. The trial court told the jury that
testimony about the unrelated shooting was only for identifying Petitioner as
the Parkside shooter.
Petitioner claims, however, that the Parkside
testimony became a “trial within a trial” that went beyond mere
identification and included evidence of criminal propensity.
Claim D: The trial court failed to follow Illinois rules for voir dire because
the court did not question jurors about the presumption of innocence or the
state’s burden of proof.
Claim E: Allowing the sleeping juror to remain violated Petitioner’s due
process rights and his Sixth Amendment right to a jury trial. Petitioner
claims that the trial court did not consult him directly about his wishes and
that he told his attorney to ask the court to remove the juror.
Claim F: In closing arguments, the prosecutor improperly referred to the
family that the victim left behind and referenced Petitioner’s “conspiracy”
theory. The prosecution’s statements about Aguirre’s family were not
relevant to Petitioner’s guilt or innocence and were prejudicial to Petitioner,
denying Petitioner a fair trial. Further, the prosecutor’s claim during closing
that the defense argued that witnesses engaged in a conspiracy against
Petitioner was false; the defense never made that argument during the trial.
Claim G: Trial counsel was ineffective for:
o (1) Failing to object to the Griffin video;
o (2) Failing to object to evidence about Gibbs’ abortion;
o (3) Failing to object to evidence of the Parkside shooting;
o (4) Requesting that the sleeping juror remain in service;
o (5) Failing to object to the State’s inflammatory statements in closing
o (6) Failing to object to testimony about Calderon’s hearsay statement
that there was money in her garage, which the State claimed provided
Petitioner’s motive for the robbery-turned-murder;
o (7) Failing to object to grand jury testimony that Petitioner committed
o (8) Failing to object to Miller’s grand jury testimony that Petitioner
was a “bad guy” whom he feared;
o (9) Failing to object to impeachment with prior inconsistent
statements and failing to request limiting instructions;
o (10) Failing to object to the admission of gang evidence;
o (11) Failing to object to the court’s voir dire of potential jurors; and
o (12) Failing to request a limiting instruction about the use of prior
inconsistent statements as substantive evidence.
Claim H: Appellate counsel was ineffective for:
o (1) Failing to challenge the sufficiency of the evidence;
o (2) Failing to more fully address the Griffin video; and
o (3) Failing to argue that trial counsel was ineffective for failing to
object to admitting gang evidence through Bowman’s testimony.
Federal review of state court decisions under 28 U.S.C. § 2254 is limited. A
federal court can grant habeas relief only if the challenged state court decision is
“contrary to” or “an unreasonable application of” clearly established federal law, as
established by the United States Supreme Court, or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
§ 2254(d)(1)-(2); see also Harrington v. Richter, 562 U.S. 86, 100
(2011). This Court presumes that the state court's account of the facts is correct,
and Petitioner bears “the burden of rebutting the presumption of correctness by
clear and convincing evidence.” § 2254(e)(1); see also Coleman v. Hardy, 690 F.3d
811, 815 (7th Cir. 2012).
A petitioner’s claim is procedurally defaulted if the petitioner did not raise
the claim in the state courts, and thus failed to give the state courts “one full
opportunity” to resolve any constitutional issues. O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). If a claim is procedurally defaulted, a federal court may review it
and reach a decision on the merits only if “the petitioner demonstrates cause and
prejudice or a fundamental miscarriage of justice if the claims are ignored.” Byers
v. Basinger, 610 F.3d 980, 985 (7th Cir. 2010).
1. Claims A, A(1), C, G(2)–(4), G(6), G(9)–(12), and H(1)–(3)
Petitioner’s claims are procedurally defaulted if he did not give the state
courts “one full opportunity” to resolve any constitutional issues by “invoking one
complete round of the State’s established appellate review process.” Boerckel, 526
U.S. at 845. Petitioner, moreover, must present each factual basis for an ineffective
assistance of counsel claim to the state courts to avoid default. Stevens v. McBride,
489 F.3d 883, 893–94 (7th Cir. 2007).
a) Claims A and A(1)
Petitioner argues that admitting the Griffin video violated his due process
rights because the video contained hearsay, evidence of gang affiliations, and
evidence of other crimes.
Petitioner also argues that the State did not lay the
proper foundation for admitting the video.
Petitioner did not raise Claim A in his direct appeal PLA and did not raise
Claim A1 in his direct appeal or direct appeal PLA.
In his reply, Petitioner
contends that he sufficiently presented the claims by arguing in his direct appeal
PLA that his trial counsel was ineffective for failing to object to admitting the video.
 at 6–7.
For support, Petitioner cites his PLA brief, which argued that
admitting the video was prejudicial, based upon People v. Patterson, 154 Ill. 2d 414
(Ill. 1992). Id.
Arguments presented for the first time in a reply are waived.
Giesen, 956 F.2d 738, 741 (7th Cir. 1992). Were the Court to address these claims,
it would still find that the claims are procedurally defaulted.
Petitioner cites in his PLA relate to his contention that he received ineffective
assistance of counsel, not that admitting the video otherwise deprived him of a fair
trial. Petitioner has, as a practical matter, cited arguments supporting a claim in
his PLA and asserted that those arguments are themselves a claim that he
presented in the PLA.
But “an assertion that one’s counsel was ineffective for
failing to pursue particular constitutional issues is a claim separate and
independent of those issues.” Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004).
Even though Petitioner made allusions in the PLA that now form the basis of Claim
A, the state courts were still not “given the opportunity to address the underlying
Petitioner cites Dye v. Hofbauer, which holds that a court may look to the
parties’ state court briefs to determine which arguments were presented in postconviction appeals. 564 U.S. 1, 3–4 (2005). In Dye, the Supreme Court reversed the
district court’s holding that a claim of prosecutorial misconduct was procedurally
defaulted; the Court found that, in a state court brief, the petitioner cited the Fifth
and Fourteenth Amendments in the relevant heading and cited cases about the
deprivation of constitutional rights due to prosecutorial misconduct. Id. at 4. Thus,
the petitioner sufficiently presented the issue to avoid default. Id.
Dye does not help Petitioner; the relevant heading in his brief only addresses
ineffective assistance of counsel. [21-5] at 8. Also, People v. Patterson, which the
relevant part of the PLA brief cites, does not clearly support either the claim in the
PLA or the claim which Petitioner now brings. Id. at 9. The brief fails to articulate
how Patterson supports the claim of ineffective assistance of counsel.
Further, Dye is distinguishable from this case because the procedural default here
stems from Petitioner failing to present the claim itself, instead of failing to present
the proper basis for the claim. This Court cannot find that Petitioner’s brief gave
the state courts adequate opportunity to be aware of the claim and address it.
There is no authority supporting the idea that an underlying argument for a claim
in Petitioner’s PLA was itself a separate claim that he sufficiently presented to the
Petitioner further argues that, because he relied on state cases concerning
the constitutional rights underlying Claim A and asserted the claim to invoke those
rights, he did not default the claim.  at 7. But the case upon which he relies,
White v. Lamas, 905 F. Supp. 2d 624 (E.D. Pa. 2012), is inapposite.
addressed a different issue: namely, whether a petitioner sufficiently presented a
constitutional basis for a claim to the state courts. 905 F. Supp. 2d at 636–37. That
is a different question than whether the petitioner raised the claim at all.
Because neither Claim A nor Claim A1 was sufficiently raised at all three
levels of the Illinois court system, those claims are procedurally defaulted. This
Court therefore cannot review those claims unless Petitioner shows “cause and
prejudice” for the default or a “fundamental miscarriage of justice.” Byers, 610 F.3d
at 985. Petitioner does not attempt to show cause or prejudice, nor does he argue
that a default would result in a fundamental miscarriage of justice; and even if he
had attempted to do so, the record would not support such claims on the merits.
Thus, Claims A and A1 are procedurally defaulted.
b) Claim C
Petitioner argues that admitting testimony and evidence about the Parkside
shooting denied him due process.
Petitioner contends that, by admitting such
evidence, the trial court allowed a “trial within a trial” that exceeded the original
purpose of the testimony—linking Petitioner to the murder weapon.
Petitioner did not raise Claim C in his PLA. Petitioner notes in his reply,
however, that in his PLA brief, under a claim of ineffective assistance of counsel, he
quotes a line from the Griffin video, wherein Griffin says that Petitioner once shot
 at 7–8.
Petitioner argues that this quote from the video, in
conjunction with a reference later in the brief to an Illinois state case discussing
constitutional protections, constitutes a sufficient presentment of Claim C in the
PLA. Id. This Court disagrees. Arguments presented for the first time in a reply
are waived. Wilson, 956 F.2d at 741. Even if this Court were to address the claim’s
substance, it would still find that Claim C is both meritless and procedurally
Making a claim for ineffective assistance of counsel does not qualify as
sufficiently presenting the underlying issue that the attorney failed to raise. Lewis,
390 F.3d at 1026. Moreover, Petitioner’s argument is that admitting a variety of
prejudicial evidence about the Parkside shooting deprived him of a fair trial.
Petitioner points to allegedly improper evidence that went beyond the purpose of
identifying Petitioner as the Parkside shooter, and tries to rely on the totality of
this evidence to prove prejudice. Petitioner does not explain, however, how the
single Griffin quote, which only identified the shooter, gave the state court sufficient
notice of a claim that relies upon a series of statements throughout Petitioner’s trial
by different witnesses.
This Court cannot see how the state courts had an
opportunity to review Claim C.
Because Claim C was not sufficiently raised at all three levels of the Illinois
court system, this claim is procedurally defaulted. This Court, therefore, cannot
review Claim C unless Petitioner shows “cause and prejudice” for the default or a
“fundamental miscarriage of justice.” Byers, 610 F.3d at 985. Petitioner does not
attempt to show cause or prejudice, nor does he argue that a default would result in
a fundamental miscarriage of justice. Accordingly, Claim C is defaulted.
c) Claims G(2)–(4)
Petitioner argues that his trial counsel was ineffective for: (1) failing to object
to evidence regarding Gibbs’ abortion (G(2)); (2) failing to object to evidence of the
Parkside shooting (G(3)); and (3) requesting that a sleeping juror remain in service
Petitioner did not explicitly raise any of these claims in the PLA, but
Petitioner maintains that he fairly presented the claims to the Illinois courts
because, in the PLA, he argued that the abortion testimony and the sleeping juror
deprived him of his constitutional rights; Petitioner also notes that the Griffin video
contained a quote about the Parkside shooting.  at 8–10. Here again, however,
a claim for ineffective assistance of counsel (for failing to raise a constitutional
issue) is distinct from the underlying constitutional issue. Lewis, 390 F.3d at 1026.
Thus, the claims Petitioner cites from his PLA did not give the state court “the
opportunity to address” Petitioner’s claims that his trial counsel was ineffective. Id.
Petitioner argues that the state court’s page limit on PLA briefs is cause for
excusing the defaults on claims G(2)–(4).  at 9–10. Petitioner contends that his
counsel could not raise the claims in the PLA because of the page limit, which
“rendered futile any effort to obtain relief.” Id. (citing Duckworth v. Serrano, 454
U.S. 1, 10 (1981)). But the page limit is a “reasonable and consistently applied state
rule,” and it would be “nonsensical” to hold that the page limit “could constitute
cause for failure to adhere to another state procedural rule that deems issues not
briefed on direct appeal to be waived.” Weeks v. Angelone, 176 F.3d 249, 272 (4th
Cir. 1999). Thus, the page limit did not render “the corrective process so clearly
deficient,” Duckworth, 454 U.S. at 10, that Petitioner has shown cause to excuse the
Petitioner did not argue that the default of Claims G(2)–(4) should be
excused for “cause and prejudice,” or that there would be a “fundamental
miscarriage of justice.” Byers, 610 F.3d at 985. Claims G(2)–(4) are procedurally
d) Claim G(11)
Petitioner argues that his trial counsel was ineffective for failing to object to
the trial court’s voir dire of potential jurors. Petitioner did not raise this claim in
the direct appeal PLA. Petitioner’s claims are procedurally defaulted if he did not
give the state courts a full opportunity to resolve any constitutional issues through
the established review process. Boerckel, 526 U.S. at 845.
Petitioner contends that he avoids default on this claim because the state
court procedure was deficient due to the page limit on briefs.  at 11. Petitioner
argues that the page limit constitutes cause to excuse procedural default. Id. at 12.
But as noted above, the page limit is a “reasonable and consistently applied state
rule”, and it would be “nonsensical” to hold that the page limit “could constitute
cause for failure to adhere to another state procedural rule that deems issues not
briefed on direct appeal to be waived.” Weeks, 176 F.3d at 272. Thus, the page limit
did not render “the corrective process so clearly deficient,” Duckworth, 454 U.S. at
10, that Petitioner has shown cause to excuse the default.
Petitioner did not argue that the default of Claim G(11) should be excused for
“cause and prejudice,” or to avoid a “fundamental miscarriage of justice.” Byers, 610
F.3d at 985. Thus, the Court may not review this claim on its merits. Claim G(11)
is procedurally defaulted.
e) Claims G(6), G(9), G(10), G(12), and H(1)-(3)
Petitioner alleges that his trial counsel was ineffective for: (1) failing to object
to hearsay statements about Calderon keeping money in her garage (G(6)); (2)
failing to object to impeachment with prior inconsistent statements containing
hearsay and failing to request limiting instructions regarding the same (G(9)); (3)
failing to object to the admission of gang evidence (G(10)); and (4) failing to request
a limiting instruction about using prior inconsistent statements as substantive
evidence (G(12)). Petitioner also claims that appellate counsel was ineffective for:
(1) failing to challenge the sufficiency of the evidence against him (H(1)); (2) failing
to more fully address the Griffin video (H(2)); and (3) failing to argue that trial
counsel was ineffective for not objecting to admitting gang evidence through
Bowman’s testimony (H(3)).
Petitioner did not raise Claims G(6), (9), (10), or (12) in the direct appeal
PLA, and did not raise Claims H(1)–(3) in the collateral PLA. Petitioner argued in
his PLA that the state courts misapplied hearsay rules, but the claims that
Petitioner raises here are distinct from that hearsay claim. See Lewis, 390 F.3d at
Accordingly, Claims G(6), (9), (10), and (12), and Claims H(1)–(3) are
procedurally defaulted because they were not raised before all state courts.
Petitioner argues in his reply that those claims are not defaulted because his
appellate counsel made an unreasonable decision not to raise them.  at 12.
Arguments presented for the first time in a reply are waived. Wilson, 956 F.2d at
741. Even if this Court were to reach a resolution on the merits, it would find that
Petitioner’s claims are unavailing and procedurally defaulted.
Petitioner argues that this Court should excuse his defaults because his
appellate counsel was ineffective and did not correctly cite authority supporting the
claims, which led the Illinois appellate court to deny the claims. Petitioner cites the
exception that the Supreme Court articulated in Martinez v. Ryan, 566 U.S. 1, 12–
16 (2012).  at 12. In Martinez, the Court held that an attorney’s negligence in
collateral proceedings might constitute cause to excuse procedural default provided
the state collateral review proceeding was the first opportunity to raise an
ineffective assistance of counsel claim. Martinez, 566 U.S. at 15–16.
Notwithstanding Martinez, ineffective appellate counsel cannot typically
excuse procedural default. Coleman v. Thompson, 501 U.S. 722, 753–54 (1991).
Also, Martinez is distinguishable because the Court there found that post-conviction
counsel conceded that the petitioner “lacked any meritorious claim.” Martinez, 566
U.S. at 18. In contrast, counsel on both Petitioner’s direct and collateral appeals
here raised a variety of claims before each state court. See, e.g., [21-2]; [21-5]; .
Besides, Martinez’s narrow exception does not apply for federal habeas
petitions filed by Illinois prisoners, because in Illinois, collateral proceedings are not
a petitioner’s first opportunity to raise an ineffective assistance of counsel
claim. See Murphy v. Atchison, No. 12-3106, 2013 WL 4495652, at *22 (N.D. Ill.
Aug. 19, 2013) (collecting cases). Under Illinois law, when an ineffective assistance
of trial counsel claim is based on the trial record, the claim is waived unless brought
on direct appeal. People v. Smith, 745 N.E.2d 1194, 1201 (Ill. 2000).
Here, in claims G(6), (9), (10), and (12), Petitioner argues that his trial
counsel should have objected to various pieces of evidence that were admitted at
trial and should have requested limiting instructions on that evidence. As such,
Petitioner's ineffective assistance claim arises from the trial record itself, and thus,
it could have been brought on direct appeal. Smith, 745 N.E.2d at 1201. Further,
both direct and collateral appellate counsel raised numerous issues that the state
court evaluated on the merits, so this case does not fall within Martinez’s narrow
Thus, Claims G(6), (9), (10), and (12), and Claims H(1)–(3) are
2. Claim G(7)–(8)
A claim is procedurally defaulted when “a state court declined to address a
prisoner’s federal claims because the prisoner failed to meet a state procedural
requirement.” Coleman, 501 U.S. at 730. In these instances, “the state judgment
rests on independent and adequate state procedural grounds.”
forfeiture rule is an independent and adequate state law ground in the context of
federal habeas review. Kaczmarek v. Rednour, 627 F.3d 586, 592 (7th Cir. 2010).
Petitioner argues that trial counsel was ineffective for failing to object to
admitting grand jury testimony that an individual believed that Petitioner
committed the murder, and admitting Miller’s grand jury testimony that Petitioner
was a “bad guy” whom Miller feared. During his state appeal, Petitioner did not
cite authority to support those claims. The state courts rejected those claims under
Illinois’ forfeiture law, which requires that a petitioner cite authority to support a
claim. [21-10] at 18. Thus, because Illinois’ forfeiture rule is an independent and
adequate state ground that supports the state judgments, Claims G(7) and (8) are
procedurally defaulted. See Harris v. Reed, 489 U.S. 255, 260–62 (1989).
3. Claim B
Petitioner alleges that the trial court erred by allowing questions and
testimony about Gibbs’ abortion because abortion is highly controversial. Petitioner
may receive habeas relief if the state court’s decision is either “contrary to” or “an
unreasonable application of” clearly established federal law, as determined by the
United States Supreme Court. § 2254(d)(1); Avila v. Richardson, 751 F.3d 534, 536
(7th Cir. 2014) (citing Williams v. Taylor, 529 U.S. 362, 404–05 (2000).
Respondent argues that Claim B has no basis in federal law—and therefore is
not cognizable under federal habeas review—because Petitioner framed the issue as
a matter of state evidentiary law.
 at 16–17.
Petitioner’s framing is not
determinative, however, because a habeas petition filed by a pro se petitioner is
“entitled to a liberal construction.” Perruquet v. Briley, 390 F.3d 505, 512 (7th Cir.
2004). In his Petition, Petitioner alludes to his Sixth Amendment rights by arguing
that the evidence of Gibbs’ abortion deprived him of a fair trial.  at 18. Applying
Perruquet’s liberal standard, this Court finds that Claim B is a potentially
cognizable under federal habeas review because Petitioner argues that the evidence
of abortion denied him a constitutional right.
Turning to the substance of Claim B, a trial court’s decision to admit evidence
generally does “not implicate federal constitutional rights,” Perruquet, 390 F.3d at
510, and is therefore not reviewable by this Court under § 2254(d)(1). Petitioner
would have to show that the decision was “contrary to” or “an unreasonable
application of” clearly established federal law for this Court to review Claim B on
the merits. § 2254(d)(1); Avila, 751 F.3d at 536. Moreover, the state court must
have committed “an error so serious as to render it likely that an innocent person
was convicted” for this Court to find that Petitioner was deprived of due process.
Perruquet, 390 F.3d at 510. Petition fails to make such a showing here.
Petitioner cites no authority holding that admitting evidence on abortion (or
any controversial issue) automatically deprives a defendant of a fair trial under
federal law. As for admitting allegedly prejudicial evidence, a defendant’s right to a
evidence “is greatly outweighed by the prejudice to the accused from its admission.”
Woodruff v. Lane, 818 F.2d 1369, 1373 (7th Cir. 1987). And the mere fact that
admitted evidence “shocks the conscience” does not alone violate due process.
United States ex rel. Gonzalez v. Detella, 918 F. Supp. 1214, 1221 (N.D. Ill. 1996).
Even when evidence was used to “inflame the jury” against the defendant, courts
have denied habeas relief when the resulting prejudice did not create a significant
chance that the state court convicted an innocent person. Id. at 1221.
Even though abortion remains a controversial issue, Gibbs’ previous
statements served a probative purpose because they undermined her credibility and
the admission of the evidence was not error, much less constitutional error. Also,
the trial record contains significant evidence of Petitioner’s guilt, so this Court
cannot find that admitting the controversial evidence, even assuming that the
admission was an error, was “an error so serious as to render it likely that an
innocent person was convicted.” Perruquet, 390 F.3d at 510. Thus, admitting the
controversial evidence did not deprive Petitioner of due process, nor was the
admission “contrary to” or “an unreasonable application of” clearly established
federal law. Accordingly, Claim B is denied.
4. Claim D
Petitioner argues that he was denied the right to a fair trial because the trial
court did not comply with Illinois Supreme Court Rule 431(b).  at 6. Rule 431(b)
requires courts to ask potential jurors whether they accept the presumption of the
defendant’s innocence and the State’s burden of proof. People v. Zehr, 469 N.E.2d
1062 (Ill. 1984). Petitioner may only obtain federal habeas relief if the state court’s
error concerned issues of federal law.
§ 2254(d)(1); Avila, 751 F.3d at 536.
Petitioner does not connect Claim D to any issue of federal law or use language that
could broadly be construed to concern federal law. Thus, Claim D is not cognizable
in federal habeas review.
Petitioner argues in his reply that the claims are cognizable under federal
law because Rule 431(b) is identical to federal law.
 at 19.
presented for the first time in a reply are waived. Wilson, 956 F.2d at 741. Even if
this Court were to reach a resolution on the merits, it would hold that the state
court’s ruling was not “contrary to” or “an unreasonable application of” clearly
established federal law.
To obtain habeas relief, Petitioner must prove that the state court’s decision
was “contrary to,” or “an unreasonable application of,” clearly established federal
law. § 2254(d)(1). The federal rule most closely related to Rule 431(b) is Federal
Rule of Criminal Procedure 24(a), which concerns a trial court examining jurors.
Rule 24(a) does not require the court to ask prospective jurors any questions about
the presumption of innocence or the prosecution’s burden of proof. Regardless, the
record reflects that the state trial court, in fact, asked the jurors in groups of three
whether they understood that the defendant is presumed innocent, that the state
must prove guilt beyond a reasonable doubt, and that the defendant has a right to
remain silent and, should he not testify, his silence cannot be held against him.  at 38. Quite simply, Petitioner misrepresents the record by alleging that the
trial court did not question the jury about the state’s burden of proof or the
presumption of his innocence.
Accordingly, the state court’s decision was not
“contrary to,” or “an unreasonable application of,” clearly established federal law;
the state court also clearly complied with Illinois state law as well. Claim D is
5. Claim E
Petitioner alleges that the trial court’s decision not to hold a hearing on
Petitioner’s post-trial objection to the court’s failure to remove a sleeping juror
violated his constitutional rights to a fair trial and due process. Once again, federal
habeas relief is available only when the state court’s decision is “contrary to,” or “an
unreasonable application of,” clearly established federal law, as determined by the
United States Supreme Court.
§ 2254(d)(1); Avila, 751 F.3d at 536.
established federal law” means “the governing legal principle or principles set forth
by the Supreme Court at the time the state court renders its decision.” Lockyer v.
Andrade, 583 U.S. 63, 71–72 (2003). If there exists no guidance from the Supreme
Court on a claim raised in federal habeas review, this Court cannot find that a state
court’s decision was “contrary to,” or “an unreasonable application of,” clearly
established federal law. Carey v. Musladin, 549 U.S. 70, 78 (2006).
In his Petition, Petitioner does not cite any Supreme Court decision that
addresses the issue of a state court failing to remove a sleeping juror. Because
there is no Supreme Court precedent for Claim E, this Court cannot find that the
state court’s decision was “contrary to,” or “an unreasonable application of,” clearly
established federal law.
In his reply, Petitioner addresses the lack of Supreme Court precedent by
citing Jordan v. Massachusetts, 225 U.S. 167, 176 (1912) (finding that a defendant
has a right to an impartial and mentally competent jury), and an Illinois case which
held that failing to remove a sleeping juror resulted in a deprivation of a
defendant’s Sixth and Fourteenth Amendment rights.  at 21–22. State cases
are not federal law, and Jordan concerns a juror’s mental capacity, not a sleeping
juror. 225 U.S. at 176. Besides, arguments presented for the first time in a reply
are waived. Wilson, 956 F.2d at 741. Thus, this Court cannot reach the merits of
the arguments first raised in Petitioner’s reply.
Even if this Court were to address Petitioner’s arguments on the merits,
however, it would find that the state court’s decision to allow the sleeping juror to
remain did not violate Petitioner’s constitutional rights. In the Seventh Circuit, a
sleeping juror deprives a defendant of his constitutional rights only when the
sleeping was so extensive that it rendered the juror incapable of performing his
duties. United States v. Freitag, 230 F.3d 1019, 1023 (7th Cir. 2000). Further, the
Illinois case that Petitioner cites arrived at a similar holding; that court held that a
defendant was deprived of his right to a fair trial only because a juror was asleep for
most of the trial. People v. Jones, 861 N.E.2d 276, 279–80 (Ill. App. Ct. 2006).
In contrast, Petitioner’s trial court determined that the juror otherwise
stayed awake after the snoring incident to which defense counsel objected. [21-19]
at 51. The trial judge specifically asked the juror in question if he was awake
through the trial, and the juror answered that he was. [21-21] at 84. There is no
evidence in the record that establishes that the juror was incapable of performing
his duties or that his presence on the jury otherwise deprived Petitioner of his right
to a fair trial and due process. In fact, Petitioner specifically requested that the
juror remain on the case after the trial court’s inquiry. Thus, Claim E would also
fail on the merits if properly presented here.
6. Claim F
Petitioner alleges multiple problems stemming from the State’s closing
argument at his trial. Petitioner argues that the prosecution’s statements about the
victim’s family deprived him of a fair trial because they were irrelevant and
prejudicial. Petitioner also argues that the prosecution’s statements alleging that
defense counsel argued that state witnesses had conspired against Petitioner were
prejudicial and not invited by arguments that defense counsel asserted.
Darden v. Wainwright sets forth the controlling federal analysis regarding a
prosecutor’s allegedly improper statements during closing argument. 477 U.S. 168
Under Darden, the court must first consider whether the prosecutor’s
comments were actually improper. Ellison v. Acevedo, 593 F.3d 625, 635–36 (7th
If the comments were improper, the court must then consider: “(1)
whether the prosecutor misstated the evidence, (2) whether the remarks implicate
specific rights of the accused, (3) whether the defense invited the response, (4) the
trial court's instructions, (5) the weight of the evidence against the defendant, and
(6) the defendant's opportunity to rebut.” Id. at 646 (quoting Howard v. Gramley,
225 F.3d 784, 793 (7th Cir. 2000)).
To determine whether the remarks were
prejudicial, “it is not enough that the prosecutors’ remarks were undesirable or
even universally condemned”; the question is “whether the prosecutors’ comments
so infected the trial with unfairness as to make the resulting conviction a denial of
Darden, 477 U.S. at 181 (citation and internal quotation marks
Petitioner concedes in his reply that the state court applied the correct legal
standard, but he contends that the state court’s decision was an unreasonable
application of the law to the facts.
 at 26–27.
Regarding statements the
prosecution made about the victim’s family, the state appellate court found that the
prosecution made only two comments in its closing arguments. [21-1] at 25–26.
First, the prosecution spoke of the optimistic life the victim and his wife had as they
planned for the arrival of their unborn child. Id. Later, the State told the jury that
Calderon went from being an “expectant mother with every reason in the world to
be optimistic about her baby’s future to a widow in the flash of a second by a gun
fired by the defendant.”
Id. at 26.
The state court determined that these
statements were fair reflections of the evidence, were not made to engender
sympathy beyond the facts of the case, and were not hyperbole. Id. at 26–27. The
state court did not cite Darden or other precedent for that determination, but “if
neither the reasoning nor the result of the state-court decision contradicts” federal
law, then the decision is not contrary to federal law. Early v. Packer, 537 U.S. 3, 8
(2002) (per curiam).
The record supports the state court’s findings on this question. Only two
statements in the prosecution’s closing argument contained sympathetic appeals to
the victim’s family, and Petitioner cites no other relevant portions of the record.
Although the comments likely personalized the crime’s devastating effect on the
victim’s family, the State may speak harshly about the defendant’s conduct if the
evidence supports harsh statements. United States v. Durham, 211 F.3d 437, 440
(7th Cir. 2000). Here, the victim’s wife was pregnant and the couple had built a
nursery for their child. Describing the abrupt loss that Calderon experienced when
her husband—the father of her unborn child—was murdered is a reasonable
interpretation of the facts of the case.
The prosecution’s statements, through
dramatic and damaging to Petitioner, were supported by the evidence. Thus, the
statements were not improper and the state court did not unreasonably apply
federal law by allowing those statements.
Petitioner also notes repeated statements by the prosecution in rebuttal,
arguing that Petitioner contended that he was the victim of a state conspiracy. The
state appellate court agreed that the record contained repeated statements by the
prosecution on this subject. [21-1] at 26. The court determined that the statements
were not improper, because they were invited by defense counsel’s closing
argument. Id. Defense counsel repeatedly referred to witness testimony that police
tried to “get” Petitioner, and also said: “The point is, they’re all full of b.s. . . . The
police got them where they wanted them, and they got what they want.” Id. The
appellate court noted the final remarks of defense counsel’s closing statement:
“Keep the presumption of innocence. Get [defendant]. That’s what the police said.
You heard that. Don’t get him ladies and gentlemen.” Id. at 27.
The prosecution’s statements in closing argument cannot be improper if the
statements were in response to remarks made in the defense’s closing.
States v. Severson, 3 F.3d 1005, 1014 (7th Cir. 1993). Severson’s safe harbor applies
here. Defense counsel explicitly referred to an allegedly preconceived, concerted
effort by police and the State to arrest and convict Petitioner for the crime, with or
Thus, the State’s discussion of defense counsel’s conspiracy
theory was not improper. Id. at 1014. Therefore, Claim F fails on the merits.
7. Claim G1
Petitioner argues that his trial counsel was ineffective for failing to object to
the court admitting Griffin’s videotaped statements.
The video contained
statements by Griffin concerning other alleged criminal activities, gang affiliations,
accounts by Griffin’s acquaintances of crimes that Petitioner allegedly committed,
and Petitioner’s alleged plan to rob Calderon’s residence after hearing Calderon say
she kept money in her garage. [21-15] at 112–17.
Strickland governs claims for ineffective assistance of counsel. 466 U.S. 668
(1984). Under Strickland, a petitioner must show that trial counsel “fell below an
objective standard of reasonableness” and that counsel’s error prejudiced the
defendant such that there exists a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 688, 694.
This Court must find “clear error” to hold that the state court’s
application of Strickland was unreasonable. Allen v. Chandler, 555 F.3d 596, 600
(7th Cir. 2009). Finally, there is a “strong presumption” that “the challenged action
might be considered sound trial strategy.” Strickland, 466 U.S. at 689.
Here, the state appellate court correctly articulated the Strickland standard,
[21-1] at 28–29, so its decision was not “contrary to” clearly established federal law.
See Price v. Vincent, 583 U.S. 634, 640 (2003). This Court must next determine
whether the state court’s application of Strickland was unreasonable. It was not.
Here, the state appellate court determined that Petitioner’s claim failed
because defense counsel helped the state edit the tape for publishing. [21-1] at 29.
The court also found that a defense attorney’s decision not to file a motion in limine
objecting to the admission of the tape was a strategic decision.
Id. at 29–30.
Finally, the court found that an objection would not have changed the outcome. Id.
This Court agrees with the appellate court’s findings.
participated in editing the video, which contained statements that the defense
counsel wished to present along with the evidence Petitioner complains of. In light
of these facts, Petitioner cannot overcome the “strong presumption” that the
challenged conduct was sound trial strategy. Strickland, 466 U.S. at 689, see also
Walker v. Litscher, 421 F.3d 549, 558 (7th Cir. 2005) (trial counsel is presumed
effective and petitioners bear a “heavy burden” in proving ineffective counsel).
Further, even if counsel acted unreasonably, Petitioner has not shown that
the state court unreasonably applied Strickland when determining that there was
no prejudicial effect. The video likely would have been admitted over an objection,
as it contained relevant statements to police by an important witness who
contradicted those previous statements during testimony.
The appellate court’s
application of federal law was therefore reasonable; Claim G1 fails on the merits.
8. Claim G(5)
Petitioner argues that trial counsel was ineffective for failing to object to the
prosecution’s statements in closing arguments (statements detailed in Claim F). To
prove that his trial counsel was ineffective, Petitioner must show that his trial
counsel’s conduct was objectively unreasonable, and that there exists a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 688, 694.
This Court finds that the state appellate court appropriately applied
Strickland to the facts. The appellate court found that the prosecution’s statements
were reasonable and that the absence of an objection was sound trial strategy, as
the trial court likely would have overruled an objection. [21-1] at 31–32. As noted
in sub-section E, this Court also finds that the prosecution’s comments were proper,
because they were reasonable interpretations of the evidence and defense counsel’s
closing arguments invited the prosecution’s statements about Petitioner’s alleged
conspiracy theory. Thus, failing to object to these statements was an acceptable
trial strategy. The appellate court thereby reasonably applied Strickland, and in
any case, defense counsel’s relevant conduct would not have changed the outcome.
Claim G(5) therefore fails on the merits.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), a “certificate of appealability may issue . . . only
if the applicant has made a substantial showing of the denial of a constitutional
right.” An applicant has made a “substantial showing” when “reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Resendez v. Knight, 653 F.3d 445, 446–
47 (7th Cir. 2011) (citations and internal quotation marks omitted).
Court concludes that Petitioner has not made a substantial showing that he was
denied a constitutional right, nor has he shown that reasonable jurists would debate
the resolution of his claims. Accordingly, the Court declines to issue a certificate of
The Petition for a Writ of Habeas Corpus is denied, and the Court declines to
issues a certificate of appealability.
The Clerk is directed to enter a Rule 58
Judgment in favor of Respondent and against Petitioner. Civil case terminated.
Dated: October 19, 2017
John Robert Blakey
United States District Judge
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