Griffin v. Williams et al

Filing 52

MEMORANDUM Opinion and Order. Signed by the Honorable Andrea R. Wood on 1/23/2023. Mailed notice (lma, )

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 1 of 40 PageID #:2131

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAMONT GRIFFIN (#B-15748),
Petitioner,
v.
CHARLES TRUITT, Warden, Stateville
Correctional Center,
Respondent.

)
)
)
)
)
)
)
)
)
)

No. 15-cv-02313
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
Petitioner Lamont Griffin, a prisoner at Stateville Correctional Center, has filed a pro se
petition in this Court seeking a writ of habeas corpus under 28 U.S.C. § 2254. With his petition,
he challenges his 2007 convictions in the Circuit Court of Cook County for first-degree murder
and unlawful use of a weapon by a felon, raising various claims of trial-court error, insufficiency
of the evidence, prosecutorial misconduct, and ineffective assistance of counsel. For the reasons
stated below, the Court denies the § 2254 petition and declines to issue a certificate of
appealability.
BACKGROUND1
Following a bench trial, Griffin was convicted of first-degree murder and unlawful use of
a weapon by a felon, based on the 2004 shooting of Cedrick Nailing. People v. Griffin, 2011 IL
App (1st) 080654 ¶¶ 4, 9. Griffin was sentenced to life imprisonment. Id. ¶ 4.

1

The following facts and procedural background are drawn from the state appellate court decisions in
Griffin’s case, supplemented by the state court record. See Hartsfield v. Dorethy, 949 F.3d 307, 309 n.1
(7th Cir. 2020) (citing 28 U.S.C. § 2254(e)(1)) (facts taken from state appellate court decisions are
presumptively correct).

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 2 of 40 PageID #:2132

I.

Trial
A.

State’s Case

On April 5, 2004, Tiffany Ryan was talking on a payphone across the street from her
apartment building on South State Street in Chicago, Illinois when her boyfriend, Griffin, passed
by. Id. ¶¶ 9, 10. Griffin asked to whom she was talking, but she refused to tell him; she was talking
to another man, the father of her two children. Id. ¶ 10. Griffin and Ryan argued as they walked to
their apartment. Id. They lived with Ryan’s father, Cedric Nailing, and Nailing’s girlfriend, Phyllis
Alcorn, as well as Ryan’s children. Id. ¶ 9.
Ryan testified at trial that when she and Griffin reached the apartment, Griffin lifted his
shirt, exposing what appeared to be a gun, and said, “This is going to your head.” Id. ¶ 10. Ryan
thought he was going to shoot her. (Dkt. No. 19-6 at 114–15.) As they continued arguing in the
kitchen, Nailing came from his bedroom, stood between the two, and tried to calm them down.
Griffin, 2011 IL App (1st) 080654 ¶ 11. Griffin reached around Nailing and hit Ryan in the head.
Id. Nailing then grabbed Griffin’s collar and the two began “tussling.” Id. ¶ 12. As the tussling
continued, Ryan went to her bedroom.2 Id. Meanwhile, Alcorn went back and forth from her own
bedroom to the kitchen to check on Nailing. Id. Alcorn testified that, after about 10 minutes of
Nailing’s struggling with Griffin, as she was walking away from the kitchen, she heard Nailing
say, “It doesn’t have to go this far,” followed by a muffled gunshot.3 Id. Ryan testified that, just

2

On cross-examination and through a stipulation to testimony that certain defense witnesses would
provide, defense counsel attacked Ryan’s credibility by exposing inconsistencies in her testimony
concerning whether Griffin punched or slapped her and whether, when she went to her bedroom, she
closed the door or left it open. (Dkt. No. 19-6 at 141–45, 149–50, 152–55; Dkt. No. 19-7 at 122–23.)

On cross-examination, Alcorn admitted she smoked crack cocaine on a regular basis from 2000 to 2005,
(Dkt. No. 19-6 at 31–34, 57, 61–62), but denied using drugs on the day of the shooting or during the days
immediately before and after the shooting. (Dkt. No. 19-6 at 62–64.) During this line of crossexamination, defense counsel objected, at sidebar, that the prosecutor had withheld information about
Alcorn’s drug use, in violation of Brady v. Maryland, 373 U.S. 83 (1963), because the prosecutor had
3

2

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 3 of 40 PageID #:2133

before the gunshot, she heard Nailing say, “Come on man. Don’t do it. Ain’t worth it.” Id. After
the gunshot, Griffin ran into Ryan’s bedroom and said, “Bitch, I was in love with you.” Id. ¶ 13.
He then walked down the hall with a gun in his hand and left the apartment. Id.
Alcorn found Nailing on the kitchen floor shot in the neck and struggling to breathe, and
she called the police. Id. ¶¶ 13, 14. Police Officer Robert Stegmiller responded to the call and
spoke with Ryan, though he did not testify regarding the content of their conversation. (Dkt. No.
19-6 at 172–73.) Two days later, on April 7, 2004, Ryan called the police and alerted them to
Griffin’s whereabouts, and he was arrested that day. (Dkt. No. 19-6 at 174–77.)
The shooting rendered Nailing a quadriplegic and he was hospitalized for more than three
months before he died of sepsis on July 22, 2004. Griffin, 2011 IL App (1st) 080654 ¶ 14. The
parties stipulated that from June 1 to July 22, 2004, Nailing was in a coma. (Dkt. No. 19-4 at 45–
46; Dkt. No. 19-7 at 6–7.) The parties also stipulated to the medical examiner’s autopsy report,
which included the opinion that the manner of death was homicide. (Dkt. No. 19-7 at 7–15.) The
medical examiner testified that the bullet traveled from the front of Nailing’s neck to the back, and
from left to right and slightly downward. Griffin, 2011 IL App (1st) 080654 ¶ 14.
After the state’s last witness testified, the prosecutor sought to introduce a certified copy
of a prior murder conviction of Griffin (Dkt. No. 19-1 at 65), to prove the prior-felony element of

mentioned having interviewed Alcorn about her drug use but did not disclose the content of the interview
to defense counsel. (Dkt. No. 19-6 at 50–52.) Defense counsel requested the disclosure of any additional
information about Alcorn’s drug use before continuing cross-examination. (Dkt. No. 19-6 at 54.) The
prosecutor explained that the interview in question was a brief conversation he had with Alcorn
immediately before she testified, in which she denied using drugs on the day of the shooting but admitted
using drugs in the past; and the prosecutor told her that if she was asked about her prior drug use to tell
the truth about it. (Dkt. No. 19-6 at 54–55.) The trial judge pointed out that, even before defense counsel
raised the Brady objection, counsel had already begun questioning Alcorn about her drug use, showing
that counsel already knew about it, which counsel conceded. (Dkt. No. 19-6 at 52.) After the sidebar
discussion, defense counsel continued to cross-examine Alcorn about her drug use, including whether she
used drugs on the day of the shooting, which she denied. (Dkt. No. 19-6 at 57–65.)

3

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 4 of 40 PageID #:2134

unlawful use of a weapon by a felon (“UUW”). (Dkt. No. 19-6 at 182.) Defense counsel argued
that using the prior murder conviction would be unduly prejudicial, suggesting that the state could
use Griffin’s prior conviction of UUW instead. (Dkt. No. 19-6 at 182–83.) The judge severed the
UUW count from the murder count and, noting that the state chose, in its discretion, to predicate
the UUW charge on Griffin’s prior murder conviction, admitted the prior murder conviction for
purposes of the UUW count only. (Dkt. No. 19-6 at 183–87.)
B.

Motion for directed verdict

After the state rested, Griffin moved for a directed finding of not guilty, arguing that the
state failed to prove that he intended to shoot or kill Nailing, or that he pointed a gun at anyone;
instead, he claimed that the evidence proved the fatal shot occurred accidentally during the tussle
or, at most, proved involuntary manslaughter or second-degree murder. (Dkt. No. 16-7 at 18–21.)
In response, the prosecutor argued, among other things: “The testimony is clear [Griffin] armed
himself, they were tugging on each other’s shirts, and he decides to shoot [Nailing] through the
throat. We have met our burden and ask [the court] to deny the motion.” (Dkt. No. 19-7 at 22.)
Defense counsel responded: “I don’t know where the state comes up with the idea that [Griffin]
took a gun out and shot [Nailing]. There is not one bit of evidence that he did that.” (Dkt. No. 197 at 22.) The trial judge denied the motion for a directed verdict. (Dkt. No. 19-7 at 23.)
C.

Defendant’s case

Before Griffin testified, defense counsel asked the trial judge to address a motion in limine
to bar evidence of Griffin’s prior convictions for impeachment purposes. (Dkt. No. 19-7 at 37.)
The judge deferred ruling, saying he needed to hear Griffin testify before balancing the probative
and prejudicial effects of the prior convictions. (Dkt. No. 19-7 at 37.)

4

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 5 of 40 PageID #:2135

Griffin’s version of the shooting differed from that presented in the state’s case in the
following ways. According to Griffin, although he showed Ryan a gun during their argument, he
did so not to threaten Ryan but to indicate he needed to take the gun out of the apartment because
Nailing was on electronic home monitoring and the police often visited the apartment to check on
Nailing. Griffin, 2011 IL App (1st) 080654 ¶ 17. As for the altercation with Nailing, Griffin
testified that, after he struck Ryan, Nailing “attacked” Griffin from behind, put his arms around
Griffin’s neck, and threw Griffin on the couch. Id. ¶¶ 18, 19. Nailing was eight inches taller than
Griffin and outweighed him by 20 pounds (Nailing was 6’1” and weighed 160 pounds while
Griffin was 5’5” and weighed 140 pounds). Id. ¶ 18. According to Griffin, as the two struggled,
Nailing gained control of the gun and, while holding Griffin around the neck with his left arm, hit
Griffin in the head and face. Id. As Griffin tried to free himself, Nailing swung his right arm, with
the gun in his right hand, and the gun discharged. Id. Griffin said that he swung his arm at Nailing’s
right hand to try to knock the gun away (Dkt. No. 19-7 at 113–14), but he did not say whether his
arm made contact with Nailing’s hand. Griffin repeatedly stated that the gun was in Nailing’s hand
when it discharged. (Dkt. No. 19-7 at 53, 56, 106, 112.)
According to Griffin, after the gun discharged, he did not know what had happened but
saw Nailing lying on the floor and picked up the gun to get it away from Nailing. Griffin, 2011 IL
App (1st) 080654 ¶ 19. Griffin told Ryan that he loved her and then, as he passed through the
apartment, saw that Nailing was not responsive and called 911. Id. Later he gave the gun to a
friend. Id. A family member of Griffin’s testified that, shortly after the shooting, Griffin had a
“busted” lip, his nose was bleeding, his eye was swollen, and he had marks on his neck that looked
like handprints. Id. ¶ 20.

5

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 6 of 40 PageID #:2136

At the beginning of Griffin’s cross-examination, defense counsel renewed her concern
about the use of Griffin’s prior convictions for impeachment purposes, but the judge again deferred
ruling, saying he had not yet heard Griffin’s entire testimony and that, in any event, the prosecutor
was not permitted to use the prior convictions on cross-examination. (Dkt. No. 19-7 at 58.)
During Griffin’s cross-examination, as the prosecutor was preparing to introduce four color
booking photographs of Griffin to show that he had no visible injuries a couple of days after the
incident (Dkt. No. 19-4 at 32–35), defense counsel objected, claiming the prosecutor had failed to
disclose the photos, in violation of Brady v. Maryland, 373 U.S. 83 (1963). (Dkt. No. 19-7 at 92–
94.) The judge barred the prosecutor from using the photos on cross-examination and gave defense
counsel until the state’s rebuttal case to investigate the photos. (Dkt. No. 19-7 at 95, 124.)
Before Griffin’s redirect examination, defense counsel again renewed her concern about
the use of Griffin’s prior convictions for impeachment purposes. (Dkt. No. 19-7 at 95–96.) The
judge ruled that the state could introduce the prior murder conviction in rebuttal, as relevant to
Griffin’s credibility, concluding that the conviction was more probative than prejudicial; the judge
further confirmed he would not consider the prior conviction as propensity evidence. (Dkt. No.
19-7 at 97 –98.)
Following Griffin’s redirect examination, defense counsel sought leave from the court to
probe whether Nailing had an aggressive character and whether Griffin was fearful of Nailing, to
support the theory that Griffin acted in self-defense. (Dkt. No. 19-7 at 107–08). Although Griffin
testified that he “was defending himself during the course of the struggle,” the judge concluded
that “[t]he actions that caused the death of Mr. Nailing according to [Griffin] was that Mr. Nailing
shot himself. That is not self-defense.” (Dkt. No. 19-7 at 109.) The judge went on to elaborate:
The court’s ruling is that what caused Mr. Nailing’s death, according to
[Griffin], was that Mr. Nailing shot himself during the course of this struggle.
6

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 7 of 40 PageID #:2137

[Griffin] was not acting in self-defense. I mean, he didn’t use the gun in self-defense
. . . So either, A, during the course of the struggle, Mr. Nailing shot himself, or [B],
he was accidentally shot. Obviously he didn’t intentionally shoot himself, but he
accidentally shot himself during the course of these events.
[Griffin] did not use this gun, according to his own testimony, in selfdefense. He did not use deadly force in self-defense. That is clear from his
testimony. He did not use deadly force in his own defense. So any evidence of
[Nailing’s] character would not be relevant because there is no issue of self-defense.
According to [Griffin] it was an accident during the course of the struggle. So the
court will not allow that evidence [of Nailing’s character and of Griffin’s fear of
Nailing] in.
(Dkt. No. 19-7 at 110–11.)
The judge nonetheless allowed defense counsel to make an offer of proof that Nailing’s
sister would testify that Nailing struck her in 1985; that Nailing was convicted of aggravated
battery in 1992; that a protective order issued against him in January of 1992 but later dismissed;
and that Griffin would have testified that Nailing threatened Griffin on a prior occasion with a
butcher knife and that Griffin thus feared him. (Dkt. No. 19-7 at 111, 115–18, 120–21). The judge
then reiterated his ruling that evidence of Nailing’s character was inadmissible because, based on
Griffin’s testimony, “this is obviously not a self-defense case.” (Dkt. No. 19-7 at 119–21.)
D.

State’s rebuttal and closing arguments

During the state’s rebuttal case, the parties stipulated to the admission of Griffin’s booking
photos and his prior murder conviction (as relevant to Griffin’s credibility). (Dkt. No. 19-7 at 128–
29.)
During closing arguments, defense counsel claimed, among other things, that Alcorn was
not credible because of her drug use. (Dkt. No. 19-7 at 139.) Defense counsel also argued that
Griffin acted in self-defense by trying to knock the gun out of Nailing’s hand, and that he should
be found not guilty or, at most, guilty of involuntary manslaughter or second-degree murder. (Dkt.
No. 19-7 at 146–47, 150–51.)
7

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 8 of 40 PageID #:2138

E.

Findings of fact and verdict

At the outset of his findings, the trial judge acknowledged that evidence that had been
admitted for a limited purpose (such as Griffin’s prior murder conviction) would be considered for
that limited purpose only. (Dkt. No. 19-7 at 163.) He then emphasized that Griffin had testified
that the gun was not in his hand when it discharged. (Dkt. No. 19-7 at 168–69.) Concerning
Alcorn’s testimony, the judge noted that defense counsel had “delved into [Alcorn’s drug use] at
great length” and used that information to attack her credibility and her ability to recall events, but
the judge ultimately found that Alcorn’s drug use did not undermine her credibility because her
testimony was largely corroborated by Ryan and by Griffin himself. (Dkt. No. 19-7 at 169–70.)
The judge found Ryan credible too (Dkt. No. 19-7 at 169–71), and found Griffin’s account “in
direct conflict with the physical evidence and the circumstantial evidence in this case.” (Dkt. No.
19-7 at 169–71.) The judge found Griffin guilty of first-degree murder and UUW (two counts,
based on possession of the gun and its ammunition). (Dkt. No. 19-7 at 173–74.)
F.

Motion for new trial and sentencing

Griffin moved for a new trial arguing, among other things: (a) that the trial judge erred in
(i) denying his motion for a directed verdict; (ii) delaying his ruling on Griffin’s motion in limine
to bar evidence of Griffin’s prior convictions; and (iii) rejecting Griffin’s self-defense theory; and
(b) that the prosecutor, in violation of Brady, failed to disclose evidence of Alcorn’s drug use and
Griffin’s booking photos. (Dkt. No. 19-1 at 136–40.) The judge denied the motion summarily,
standing by his previous rulings. (Dkt. No. 19-7 at 186.) Thereafter, the judge sentenced Griffin to
a term of life imprisonment for first-degree murder and seven years’ imprisonment (to be served
concurrently) for each count of UUW. (Dkt. No. 19-7 at 196.)

8

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 9 of 40 PageID #:2139

II.

Direct appeal

On direct appeal, Griffin argued: (1) the trial judge abused his discretion in delaying ruling
on Griffin’s motion in limine to bar use of Griffin’s prior murder conviction for impeachment
purposes; (2) the trial judge erred in precluding evidence of Nailing’s violent character and in
refusing to consider alternative findings of self-defense or second-degree murder; and (3) one of
the UUW convictions should be vacated because both UUW convictions were predicated on a
single act of possessing a gun and its ammunition. (Dkt. No. 19-8.) The Illinois Appellate Court
affirmed the first-degree murder conviction but vacated one of the UUW convictions. Griffin, 2011
IL App (1st) 080654 ¶ 5. That decision was vacated, pursuant to a supervisory order of the Illinois
Supreme Court directing the appellate court to reconsider the judgment in light of Illinois v.
Mullins, 949 N.E.2d 611 (2011). After reconsideration, the Illinois appellate court again affirmed
the first-degree murder conviction and vacated one of the UUW convictions. Id. ¶ 49.
The Illinois Supreme Court denied Griffin’s petition for leave to appeal (“PLA”), Illinois
v. Griffin, 968 N.E.2d 85 (2012) (table), and Griffin unsuccessfully sought certiorari in the United
States Supreme Court. Griffin v. Illinois, 133 S. Ct. 345 (2012).
III.

First petition for postconviction relief

In 2012, Griffin filed a pro se petition for postconviction relief under the Illinois Post
Conviction Hearing Act, 725 ILCS 5/122-1. (Dkt. No. 19-21 at 43–88.) He raised ten issues,
claiming trial-court errors, insufficiency of the evidence, prosecutorial misconduct, and ineffective
assistance of trial and appellate counsel. The trial court dismissed the petition, finding the issues
“frivolous” and “patently without merit.” People v. Griffin, No. 04-CR-20163 (December 7, 2012).
(Dkt. No. 19-21 at 109–23.)

9

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 10 of 40 PageID #:2140

On appeal, appointed counsel moved to withdraw under Pennsylvania v. Finley, 481 U.S.
551 (1987), arguing that an appeal would lack arguable merit. (Dkt. No. 19-23.) Griffin filed a
response. (Dkt. No. 19-24.) The Illinois Appellate Court agreed with counsel’s conclusion, granted
the motion to withdraw, and affirmed the judgment dismissing Griffin’s postconviction petition.
People v. Griffin, 2014 Il App (1st) 130362-U. (Dkt. No. 19-25.) The Illinois Supreme Court
denied Griffin’s PLA. Illinois v. Griffin, 21 N.E.3d 716 (2014) (table).
IV.

Second petition for postconviction relief

In 2016, Griffin filed a pro se motion for leave to file a successive petition for
postconviction relief in the state trial court. (Dkt. No. 45-2 at 29–134.) He argued: (1) prosecutorial
misconduct, in violation of Brady, based on the state’s failure to turn over a police report showing
that, in April of 2004, neither Ryan nor Alcorn told the police that Nailing pleaded for his life
immediately before he was shot; (2) prosecutorial misconduct based on the state allegedly
presenting testimony from Officers Stegmiller and Seinitz that Ryan and Alcorn told the officers
that Nailing pleaded for his life before he was shot; (3) prosecutorial misconduct, in violation of
Brady, based on the state’s failure to disclose that Nailing was not in a coma before he died; and
(4) ineffective assistance of trial counsel for failing to discover the police report and Nailing’s
medical records, and in stipulating that Nailing was in a coma and stipulating to Nailing’s autopsy
report. (Dkt. No. 45-2 at 29–42.) The trial court denied the motion, finding that Griffin failed to
meet the cause and prejudice test for filing a successive petition under 725 ILCS 5/122-1(f). (Dkt.
No. 45-2 at 136; Dkt. No. 45-3 at 9.)
On appeal, appointed counsel moved to withdraw under Finley, arguing that an appeal
would lack arguable merit. (Dkt. No. 45-4.) Griffin filed a response. (Dkt. No. 45-5.) The Illinois
Appellate Court agreed with counsel’s conclusion, granted the motion to withdraw, and affirmed

10

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 11 of 40 PageID #:2141

the judgment dismissing Griffin’s motion seeking leave to file a successive postconviction petition.
People v. Griffin, No. 1-16-2347 (Ill. App. Ct. Feb. 22, 2019). (Dkt. No. 45-1.) The Illinois
Supreme Court denied Griffin’s PLA. Illinois v. Griffin, 124 N.E.3d 508 (2019) (table).
DISCUSSION
In his habeas corpus petition before this Court, Griffin raises a total of eighteen claims.4
(Dkt. No. 43.) Specifically, Griffin asserts the following claims:
1. The trial judge abused his discretion in delaying ruling on Griffin’s motion in limine to
exclude Griffin’s prior murder conviction, violating Griffin’s rights to a fair trial. (Dkt.
No. 43 at 2.)
2. The trial judge violated Griffin’s rights to fair trial by barring evidence of Nailing’s
violent character and refusing to consider a finding of accident, self-defense,
involuntary manslaughter, or second-degree murder. (Dkt. No. 43 at 2–3.)
3. The evidence was insufficient to prove first-degree murder and the trial judge erred in
ignoring evidence that showed the shooting was accidental. (Dkt. No. 43 at 3–4.)
4. Appellate counsel provided ineffective assistance by failing to argue insufficiency of
the evidence and failure to argue ineffectiveness of trial counsel. (Dkt. No. 43 at 4–5.)
5. The trial judge deprived Griffin of his rights to a fair trial by excluding evidence
supporting Griffin’s self-defense theory. (Dkt. No. 43 at 5.)

Griffin originally filed his habeas corpus petition in March of 2015, raising twelve claims. (Dkt. Nos. 1,
6.) In June 2016, he successfully moved this Court to stay the petition while he sought leave to file a
successive postconviction petition in state court. (Dkt. Nos. 25, 26.) Approximately three years later, in
July 2019, at Griffin’s request, this Court lifted the stay and granted Griffin leave to file an amended
habeas petition. (Dkt. No. 33.) On July 21, 2020, Griffin submitted an amended petition, setting forth
eighteen claims for relief (the original claims plus additional ones concerning the denial of his motion for
leave to file a successive postconviction petition). (Dkt. No. 43.) This Court treats the amended petition
“as the operative habeas petition in this matter.” (Dkt. No. 44.) Respondent filed a response to Griffin’s
amended petition (Dkt. No. 46), and Griffin filed a reply. (Dkt. No. 49.)
4

11

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 12 of 40 PageID #:2142

6. The trial judge showed bias against Griffin and pronounced him guilty before the
evidence was complete, where the judge ruled at sidebar that because of an absence of
evidence of self-defense, Griffin could not introduce evidence of Nailing’s violent
character. (Dkt. No. 43 at 5–6.)
7. The trial judge violated Griffin’s rights to a fair trial by admitting Ryan’s testimony
that Griffin threatened her, where the threat was not linked to Nailing. (Dkt. No. 43 at
6.)
8. The trial judge wrongly admitted, under the dying-declaration exception to the hearsay
rule, Ryan’s and Alcorn’s testimony that Nailing pleaded for his life immediately
before he was shot. (Dkt. No. 43 at 6–7.)
9. That his trial counsel provided ineffective assistance by failing to challenge, through a
contemporaneous objection or in Griffin’s motion for a new trial, the admission of
Ryan’s testimony that Griffin threatened her and the admission of Ryan’s and Alcorn’s
testimony that Nailing pleaded for his life before he was shot; and that his appellate
counsel provided ineffective assistance by failing to argue the ineffectiveness of trial
counsel. (Dkt. No. 43 at 7.)
10. Prosecutorial misconduct, in violation of Brady, based on the state’s failure to disclose
information about Alcorn’s drug use and Griffin’s booking photos. (Dkt. No. 43 at 8.)
11. Prosecutorial misconduct based on the state arguing, without evidentiary support, that
Griffin took out a gun and shot Nailing, violating Griffin’s rights to a fair trial. (Dkt.
No. 43 at 8–9.)
12. The judge erred in denying Griffin’s motion for a directed verdict; trial counsel was
ineffective for filing to preserve Griffin’s rights concerning denial of his directed-

12

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 13 of 40 PageID #:2143

verdict motion by failing to renew the motion at the close of the evidence; and appellate
counsel was ineffective for failing to argue ineffectiveness of trial counsel and for
failing to argue the judge erred in denying the directed-verdict motion. (Dkt. No. 43 at
9.)
13. The judge erred in denying Griffin’s motion for leave to file a successive
postconviction petition orally rather than in writing and erred in failing to accept
Griffin’s supporting affidavit as true. (Dkt. No. 43 at 9–10.)
14. Appellate counsel was ineffective based on the filing of a Finley motion concerning
Griffin’s appeal from his request for leave to file a successive postconviction petition,
where counsel acknowledged the existence of newly-discovered evidence that Nailing
was not in a coma but declined to raise it on appeal, and where counsel had a conflict
of interest because the same counsel filed a Finley motion concerning Griffin’s appeal
from the denial of his first postconviction petition. (Dkt. No. 43 at 10–11.)
15. Prosecutorial misconduct, in violation of Brady, based on the failure to disclose a
police report that showed neither Ryan nor Alcorn said that Nailing had pleaded for his
life before he was shot. (Dkt. No. 43 at 13–15.)
16. Prosecutorial misconduct based on allegedly presenting testimony of Officers
Stegmiller and Seinitz that Ryan and Alcorn told the officers that Nailing had pleaded
for his life before he was shot, when the prosecutor knew or should have known the
officers’ purported testimony was false. (Dkt. No. 43 at 16, 19–20 (the pages
corresponding to this claim are out of order).)

13

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 14 of 40 PageID #:2144

17. Prosecutorial misconduct, in violation of Brady, based on the failure to disclose that
Nailing was not in a coma before he died. (Dkt. No. 43 at 17–18, 16 (the pages
corresponding to this claim are out of order).)
18. Trial counsel provided ineffective assistance in failing to discover the police report
showing that, in April of 2004, neither Ryan nor Alcorn told the police that Nailing had
pleaded for his life before he was shot and for failing to discover the medical records
showing that Nailing was not in a coma before he died. (Dkt. No. 43 at 21–23.)
As explained below, however, all the claims are unavailing because they either fail to satisfy 28
U.S.C. § 2254(d)’s high standard for relief or are procedurally defaulted from federal habeas
review.
I.

Standards for § 2254(d) relief and for procedural default

A federal court may grant habeas relief following an adjudication on the merits in state
court only if the decision (1) “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,” or (2) “was
based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d); Armfield v. Niklaus, 985 F.3d 536, 540–41 (7th Cir.
2021).
A state prisoner procedurally defaults a federal claim if he fails to “fairly present” it
“throughout at least one complete round of state-court review, whether on direct appeal of his
conviction or in post-conviction proceedings.” Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir.
2014). Procedural default can also occur if the state court rejects a federal claim based on a state
procedural rule “that is both independent of the federal question and adequate to support the
judgment.” Id. (quotation marks omitted); see also Clemons v. Pfister, 845 F.3d 816, 819 (7th Cir.

14

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 15 of 40 PageID #:2145

2017); Thomas v. Williams, 822 F.3d 378, 384 (7th Cir. 2016). “Procedural default may be excused
. . . where the petitioner demonstrates either: (1) ‘cause for the default and actual prejudice’ or (2)
‘that failure to consider the claims will result in a fundamental miscarriage of justice.’” Thomas,
822 F.3d at 386 (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
II.

Trial court rulings (Claims 1, 2, 3, 4, 5, 6, 7, 8, 12(a), and 13)

Griffin claims that the trial court erred in various evidentiary and other rulings. The Court
addresses each in turn below.
A.

Claim 1—Delayed ruling on motion in limine

Griffin argues that the judge abused his discretion in delaying ruling on Griffin’s motion
in limine until Griffin’s redirect examination, compromising Griffin’s ability to make an informed
decision about whether to testify. (Dkt. No. 43 at 2; Dkt. No. 49 at 10.) On direct appeal, the Illinois
Appellate Court concluded that the trial judge abused his discretion but that the error was harmless.
Griffin, 2011 IL App (1st) 080654 ¶¶ 31–34.
Griffin’s claim on federal habeas review is meritless because he cannot show that the
delayed ruling “was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1);
see also Wright v. Van Patten, 552 U.S. 120, 126 (2008) (internal citations omitted) (“Because our
cases give no clear answer to the question presented, let alone one in [petitioner’s] favor, ‘it cannot
be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”); Fayemi v.
Ruskin, 966 F.3d 591, 594 (7th Cir. 2020) (“only decisions of the Supreme Court matter on
collateral review of state-court judgments”). “[T]here is no clearly established federal law that
requires a trial judge to decide whether a defendant’s prior convictions are admissible before he
testifies.” See Rials v. Harrington, No. 12-C-05342, 2013 WL 6633191, at *7 (N.D. Ill. Dec. 16,

15

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 16 of 40 PageID #:2146

2013), citing Ohler v. United States, 529 U.S. 753 (2000); Luce v. United States, 469 U.S. 38
(1984); accord Towers v. Lawrence, No. 17-cv-7481, 2019 WL 4166869, at *7 (N.D. Ill. Sept. 3,
2019) (same); Taylor v. Nicholson, No. 17-C-1552, 2018 WL 4052172, at *5 (N.D. Ill. Aug. 24,
2018) (same); Weatherspoon v. Harrington, No. 13-C-8621, 2014 WL 4771853, at *10 (N.D. Ill.
Sept. 24, 2014) (same). Griffin’s claim thus fails.
B.

Claims 2, 5, and 6—Evidence of Nailing’s character

Griffin next argues that the trial judge: (1) erred in refusing to admit evidence of Nailing’s
violent character to show he was the aggressor, depriving Griffin of his right to present the defense
of self-defense; (2) denied Griffin a fair and impartial trial by rejecting his self-defense theory
before the evidence was closed; and (3) denied Griffin a fair and impartial trial in refusing to
consider alternative findings of accident, self-defense, involuntary manslaughter, or second-degree
murder.
On direct appeal, the Illinois Appellate Court concluded that: (1) the trial judge did not err
in precluding evidence of Nailing’s violent character where Griffin did not present evidence that
he acted in self-defense and where, on the contrary, Griffin testified that Nailing took control of
the gun and shot himself; (2) the judge did not prejudge Griffin’s theory of self-defense when,
during the discussion of whether to admit evidence of Nailing’s character, the judge concluded
that a necessary prerequisite—evidence of self-defense—was lacking; and (3) nothing in the
record suggested the judge refused to consider alternatives to finding Griffin guilty of first-degree
murder. Griffin, 2011 IL App (1st) 080654 ¶¶ 39–45. On review of the same claims in connection
with Griffin’s first postconviction petition, the trial judge rejected those claims for the same
reasons as did the appellate court (see Dkt. No. 19-21 at 114, 117), and the Illinois Appellate Court
affirmed the denial of Griffin’s first postconviction petition summarily. Griffin, 2014 Il App (1st)

16

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 17 of 40 PageID #:2147

130362-U. (Dkt. No. 19-25.) Those courts neither unreasonably applied federal law nor
unreasonably determined the facts in light of the evidence at trial.
First, the trial judge properly barred evidence of Nailing’s violent character given that there
was no evidence that Griffin shot Nailing in self-defense. The Sixth Amendment right to present
a defense “is not unlimited and may ‘bow to accommodate other legitimate interests in the criminal
trial process.’” Horton v. Litscher, 427 F.3d 498, 504 (7th Cir. 2005) (quoting Chambers v.
Mississippi, 410 U.S. 284, 295 (1973)). “[R]ules ‘designed to assure both fairness and reliability
in the ascertainment of guilt and innocence’ . . . do not abridge an accused’s right to present a
defense so long as they are not ‘arbitrary or disproportionate to the purposes they are designed to
serve.’” Horton, 427 F.3d at 503 (quoting Chambers, 410 U.S. at 302, and Rock v. Arkansas, 483
U.S. 44, 56 (1987)). One such rule in Illinois is that “a defendant may not introduce evidence of
the victim’s character until some evidence has been presented that the victim was, or appeared to
be, the assailant, and that the defendant therefore acted in self-defense.” People v. Lynch, 470
N.E.2d 1018, 1022 (1984); see also Illinois v. Figueroa, 886 N.E.2d 455, 469 (Ill. App. 2008)
(“[I]n any Lynch situation, we must first decide whether the defendant was entitled to
introduce Lynch evidence [of the victim’s prior violence] at all, that is, whether [the evidence]
properly raised a theory of self-defense”). The Illinois Appellate Court relied on this rule and the
lack of evidence that Griffin shot Nailing in self-defense in upholding the trial judge’s decision
barring evidence of Nailing’s violent character. Griffin, 2011 IL App (1st) 080654 ¶¶ 39-40.
Griffin makes no argument that the Lynch rule is arbitrary or disproportionate to the
purpose it is designed to serve, nor can he show that he satisfied the rule because he denied that he
was in control of the gun when it discharged. See DeJonge v. Burton, No. 18-2339, 2020 WL
2533574, at *5–6 (6th Cir. Apr. 20, 2020) (where petitioner did not claim self-defense, trial court

17

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 18 of 40 PageID #:2148

properly barred admission of victim’s violent character under state evidentiary rule requiring
evidence of self-defense as prerequisite for admission of such character evidence; no violation of
petitioner’s constitutional right to present a defense); cf. Owens v. Bartow, No. 08-C-0049, 2008
WL 4693539, at *6 (E.D. Wisc. Oct. 23, 2008) (exclusion of testimony concerning victim’s violent
character, under state statute allowing exclusion of cumulative evidence, did not infringe on
petitioner’s right to present a self-defense theory). Accordingly, Griffin cannot show that barring
evidence of Nailing’s violent character violated clearly established federal law or reflected an
unreasonable determination of the facts.
Second, the trial judge did not deprive Griffin of a fair trial by purportedly prejudging
Griffin’s self-defense theory. “[T]he Due Process Clause clearly requires a ‘fair trial in a fair
tribuna[l]’ before a judge with no actual bias against the defendant.” Bracy v. Gramley, 520 U.S.
899, 904–05 (1997) (citation omitted). But here, the record does not support Griffin’s claim of bias
because, as the Illinois Appellate Court acknowledged, Griffin, 2011 IL App (1st) 080654 ¶ 43,
the trial judge was required under Lynch to determine—before the evidence was closed—whether
the theory of self-defense had been properly raised to justify admitting evidence of Nailing’s
violent character. Lynch, 470 N.E.2d at 1022; see also Figueroa, 886 N.E.2d at 469. Fulfilling his
duty under Lynch, the judge considered whether there was evidence of self-defense and concluded
that Griffin denied controlling the gun at the time of the fatal act—when the gun was discharged—
and that Griffin instead maintained that Nailing was holding the gun when it discharged. (Dkt. No.
19-7 at 109–11, 121.) The judge thus did not improperly prejudge Griffin’s self-defense theory but
rather properly contemporaneously considered, as he was required to do under Lynch, whether the
factual predicate had been satisfied for admitting evidence of Nailing’s violent character and
properly concluded that it had not.

18

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 19 of 40 PageID #:2149

Third, the Illinois Appellate Court correctly concluded that the record did not support
Griffin’s claim that the judge refused to consider Griffin’s various theories of defense. Griffin,
2011 IL App (1st) 080654 ¶ 42. After both sides rested, and as the judge began laying out his
findings of fact, he stated that he had observed the witnesses and assessed their credibility, “read
and reread the transcript of the testimony of the witnesses,” listened to and considered the
arguments of counsel, and assessed the properly admitted evidence. (Dkt. No. 19-7 at 163.) By
acknowledging the evidence and the arguments of counsel—where defense counsel had argued
accident, self-defense, involuntary manslaughter, and second-degree murder (Dkt. No. 19-6 at 16;
Dkt. No. 16-7 at 18–21, 146–47, 150–51)—the judge indicated that he had considered all of
Griffin’s theories.5 Griffin thus cannot show that the appellate court, in rejecting his judicial-bias
claim, unreasonably applied federal law or unreasonably determined the facts in light of the
evidence at trial.
Accordingly, these claims fail as well.
C.

Claims 3 and 12(a)—Sufficiency of the evidence of first-degree murder

Griffin also argues that the evidence was insufficient to prove first-degree murder, that the
trial judge ignored evidence showing that the shooting was accidental, and that the judge erred in
denying his motion for a directed verdict. On review of Griffin’s first postconviction petition, the
judge explained that Griffin had failed to present credible evidence that the shooting was an
accident. (Dkt. No. 19-21 at 112). The Illinois Appellate Court affirmed the denial of Griffin’s first

5

Concerning accident and involuntary manslaughter, Griffin failed to argue them on direct appeal or in
his first postconviction petition, and so Griffin procedurally defaulted those claims. Richardson v. Lemke,
745 F.3d 258, 268 (7th Cir. 2014). Griffin makes no argument that his procedural default is excused by
cause and actual prejudice, or on the ground that failure to address the claims would result in a
fundamental miscarriage of justice. Thomas v. Williams, 822 F.3d 378, 386 (7th Cir. 2016). In any event,
as explained above, the record shows that the trial judge in fact considered these theories along with the
other defense theories.

19

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 20 of 40 PageID #:2150

postconviction petition summarily. Griffin, 2014 IL App (1st) 130362-U. (Dkt. No. 19-25.)
Because the appellate court did not provide a rationale concerning Griffin’s sufficiency claims,
this Court looks to the trial court’s rationale. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018)
(“[T]he federal court should ‘look through’ the unexplained decision to the last related state-court
decision that does provide a relevant rationale. It should then presume that the unexplained
decision adopted the same reasoning.”).6
“The applicable Supreme Court precedent regarding the sufficiency of the evidence is well
established: ‘whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” Saxon v. Lashbrook, 873 F.3d 982, 987–88 (7th Cir. 2017) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)) (emphasis in Jackson). Habeas corpus review of a Jackson claim
involves two levels of judicial deference: the state appellate court determines whether any rational
trier of fact could have found the evidence sufficient, and the federal court may overturn the
appellate court’s conclusion only if it was objectively unreasonable. Id. (citing Coleman v.
Johnson, 566 U.S. 650, 651 (2012)). Circumstantial evidence alone can support a conviction.
United States v. Reyes, 270 F.3d 1158, 1169 (7th Cir. 2001) (internal citations omitted)
(circumstantial evidence is of equal probative value to direct evidence and may be the sole support

6

Respondent asserts that Griffin’s sufficiency claims “are arguably defaulted” (Dkt. No. 46 at 20),
because, in Griffin’s response to appellate counsel’s Finley motion (Dkt. No. 19-24), Griffin did not
address all the claims he had raised in his postconviction petition (including his sufficiency claims) in
detail. In fact, Griffin’s response to counsel’s Finley motion, Griffin focused on certain arguments that
counsel had made but, concerning the other claims that Griffin had raised in his postconviction petition,
he said, “[Griffin] does not waive the arguments raised in [his] pro se [postconviction] petition and would
respectfully request this court to rule on those claims as well.” (Dkt. No. 19-24 at 11.) The appellate
court, in granting the Finley motion and affirming the judgment of the trial court, said it had “carefully
review[ed]” the record in light of counsel’s brief and [Griffin’s] response. (Dkt. No. 19-25 at 2.) Where
Respondent has identified no authority holding that a petitioner defaults claims under circumstances such
as these, this Court declines to conclude the claims are defaulted. In any event, for reasons explained
below the claims lack merit.

20

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 21 of 40 PageID #:2151

for a conviction); United States ex rel. Green v. Greer, 667 F.2d 585, 587 n.3 (7th Cir. 1981)
(citing Jackson, 443 U.S. at 324–25) (“The Jackson Court recognized that circumstantial evidence
could support a guilty verdict.”)
“[U]nder Jackson, the assessment of the credibility of witnesses is generally beyond the
scope of review.” Schlup v. Delo, 513 U.S. 298, 330 (1995). On habeas corpus review, the federal
court “cannot choose the evidence it prefers to emphasize or make its own credibility
determinations.” Ford v. Ahitow, 104 F.3d 926, 939 (7th Cir. 1997). A state court’s factual
determinations are “presumed to be correct,” and the petitioner bears the burden of rebutting the
presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Under 28 U.S.C.
§ 2254(d)(2), a state court’s decision involves an “unreasonable determination of the facts if it
rests upon fact-finding that ignores the clear and convincing weight of the evidence.” Morgan v.
Hardy, 662 F.3d 790, 801 (7th Cir. 2011). And here, Griffin cannot show that the Illinois courts
misapplied Jackson or unreasonably determined the facts.
The trial judge concluded that Griffin committed first-degree murder based on the
following findings: Griffin brought a gun to the apartment and threatened Ryan with it; Nailing
tried to make peace between Griffin and Ryan; Griffin’s account of the altercation was not credible
and his story about how the gun discharged was inconsistent with the trajectory of the bullet;
Nailing pleaded for his life immediately before he was shot; Griffin was seen holding the gun
shortly after the shooting; and Griffin disposed of the gun after the incident. (Dkt. No. 19-7 at 166–
69, 171–73.) That evidence was sufficient to support the conviction.7 See United States ex rel.
Illgen v. Washington, No. 93-C-1648, 1994 WL 124887, at *4–5 (N.D. Ill. Apr. 8, 1994) (evidence

7

The evidence was also sufficient to support the trial judge’s denial of Griffin’s motion for a directed
verdict because the evidentiary basis for the judge’s ultimate findings had been presented by the close of
the state’s case.

21

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 22 of 40 PageID #:2152

was sufficient to prove husband murdered wife where, despite husband’s testimony (as sole
eyewitness) that the shooting was an accident, and despite testimony from a pathologist that it was
possible the victim was accidentally shot when she leaned over to take the gun from petitioner, the
couple’s two daughters testified that they heard the victim say, “Don’t point that gun at me,”
immediately before the shooting; petitioner was standing in front of the victim holding the gun
shortly after the shooting; and ballistics evidence suggested the shooting was not accidental); see
also Jackson v. Washington, No. 98-C-7927, 1999 WL 674750, at *2–3 (N.D. Ill. Aug. 23, 1999)
(despite testimony from two defense witnesses that gun discharged accidentally during “tussle”
between petitioner and his son, evidence from other witnesses that petitioner said he would shoot
victim and that petitioner fired single shot at victim was sufficient to prove attempted first-degree
murder); United States ex rel. Brooks v. Washington, 824 F. Supp. 143, 144–46 (N.D. Ill. 1993)
(evidence that petitioner was angry and carried a gun to girlfriend’s apartment, that petitioner was
in control of the gun when it discharged, and that petitioner fled the scene and disposed of the gun
was sufficient to support murder conviction despite petitioner’s testimony that he was not in
control of the gun and that the shooting occurred accidentally; court declined to second-guess trial
judge’s rejection of petitioner’s account as inaccurate).
In short, “[Griffin’s] ability to fashion an innocent explanation of what happened [when
Nailing was shot] does not alter the fact that a rational factfinder, viewing the evidence in the light
most favorable to the state, could have found him guilty beyond a reasonable doubt.” Garlington
v. O’Leary, 879 F.2d 277, 285 (7th Cir. 1989). Accordingly, the trial court neither unreasonably
applied federal law nor unreasonably determined the facts in light of the evidence at trial. Griffin’s
sufficiency claims therefore fail.

22

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 23 of 40 PageID #:2153

D.

Claim 7—Ryan’s testimony that Griffin threatened her

Ryan testified that when she and Griffin arrived at the apartment, Griffin showed her a gun
and said, “This is going to your head.” Griffin, 2011 IL App (1st) 080654 ¶ 10. Griffin claims, as
he did in his first postconviction petition, that the trial judge erred in admitting Ryan’s testimony,
depriving him of his due process rights to a fair trial. In denying Griffin’s first postconviction
petition, the judge concluded that Ryan’s testimony established that Griffin was in possession of a
weapon and that the state did not attempt to use the testimony improperly to show criminal intent
toward Nailing. (Dkt. No. 19-21 at 114–15.) The Illinois Appellate Court affirmed the denial of
Griffin’s first postconviction petition summarily. Griffin, 2014 Il App (1st) 130362-U (Dkt. No.
19-25.) This Court thus looks to the trial court’s rationale. Wilson, 138 S. Ct. at 1192.
State-court evidentiary rulings “are normally not subject to habeas review.” Dressler v.
McCaughtry, 238 F.3d 908, 914 (7th Cir. 2001). “Absent a showing that the admission of
the evidence violated a specific constitutional guarantee, a federal court can issue a writ of habeas
corpus on the basis of a state court evidentiary ruling only when that ruling violated the defendant's
rights to due process by denying him a fundamentally fair trial.” Brown v. Watters, 599 F.3d 602,
616 (7th Cir. 2010). To warrant relief, the error would have to produce a “significant likelihood
that an innocent person has been convicted.” Howard v. O'Sullivan, 185 F.3d 721, 723–24 (7th
Cir. 1999). “If the evidence is probative, it will be very difficult to find a ground for requiring as
a matter of constitutional law that it be excluded; and if it is not probative, it will be hard to show
how the defendant was hurt by its admission.” Watkins v. Meloy, 95 F.3d 4, 7 (7th Cir. 1996).
Here, Ryan’s testimony that Griffin threatened her with a gun was probative of his
possession of the murder weapon and his angry and violent state of mind. See Ill. R. Evid. 404(b)
(evidence of “other crimes, wrongs, or acts” admissible for purposes other than to prove propensity

23

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 24 of 40 PageID #:2154

to commit a crime, such as “motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident”); Illinois v. Kimbrough, 485 N.E.2d 1292, 1296 (Ill. App. Ct.
1985) (evidence of other crimes or unlawful conduct is admissible if relevant to prove, e.g.,
defendant’s state of mind, absence of an innocent frame of mind, identification of weapon used in
crime, and opportunity); accord Illinois v. Tolbert, 753 N.E.2d 1193, 1197–98 (Ill. App. Ct. 2001);
see also Illinois v. Williams, 653 N.E.2d 899, 906 (Ill. App. Ct. 1995) (evidence of threat relevant
to show defendant’s state of mind). Because Ryan’s testimony about Griffin possessing a gun and
threatening her with it was probative of Griffin’s state of mind and that he had the means to commit
the murder, Griffin cannot show admission of her testimony violated his due process rights to a
fair trial. The trial court neither unreasonably applied federal law nor unreasonably determined the
facts in light of the evidence at trial.
E.

Claim 8—Nailing’s pleas for his life

Ryan testified that immediately before Nailing was shot, she heard him say, apparently to
Griffin, “Come on man. Don’t do it. Ain’t worth it,” and Alcorn testified she heard Nailing say,
“It doesn’t have to go this far.” Griffin claims, as he did in his first postconviction petition, that
Nailing’s statements were wrongly admitted as dying declarations, see Illinois v. Georgakapoulos,
708 N.E.2d 1196, 1203–04 (Ill. App. Ct. 1999), violating his due process rights to a fair trial and
his confrontation rights under the Sixth Amendment to the United States Constitution. (Dkt. No.
19-21 at 63–65.)
The trial court, in denying Griffin’s postconviction petition, concluded that the record did
not show the statements were admitted under the dying-declaration exception and that, in any
event, the statements were admissible under the excited-utterance exception. See Illinois v. Gacho,
522 N.E.2d 1146, 1155 (Ill. App. Ct. 1988); (Dkt. No. 19-21 at 115–17.) The Illinois Appellate

24

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 25 of 40 PageID #:2155

Court affirmed the denial of Griffin’s first postconviction petition summarily. Griffin, 2014 Il App
(1st) 130362-U. (Dkt. 19-25.) Thus, this Court again looks to the trial court’s rationale. Wilson,
138 S. Ct. at 1192.
Griffin cannot show that the state court unreasonably applied federal law or unreasonably
determined the facts in light of the evidence at trial. First, Griffin does not challenge the trial
court’s conclusion that the record fails to show the statements were admitted as dying declarations.
Because Griffin did not object at trial to the admission of Nailing’s statements, the basis for their
admission was not discussed, and so Griffin’s argument that they were admitted under the dyingdeclaration exception is purely speculative. Second, Griffin does not challenge the trial court’s
conclusion that the statements were admissible as excited utterances. Even if Griffin had
challenged that conclusion, a challenge to a state court’s interpretation of state law is not
cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); see
also Earls v. McCaughtry, 379 F.3d 489, 495 (7th Cir. 2004) (a federal habeas court has no
authority to “second-guess state courts in interpreting state law”). In any event, the trial court
properly concluded that Nailing’s statements qualified as excited utterances where the evidence
supported findings that: (1) the circumstances were sufficiently startling to produce a spontaneous,
unreflective statement (Griffin produced a gun during his struggle with Nailing); (2) the statements
related to the circumstances (Nailing pleaded for Griffin not to shoot him); and (3) there was an
absence of time to fabricate (Nailing uttered the statements immediately before he was shot). See
Gacho, 522 N.E.2d at 1155; Illinois v. Simon, 953 N.E.2d 1, 24 (Ill. App. Ct. 2011) (“Being
threatened with a gun could be a sufficiently startling event to produce a spontaneous statement.”).
The trial court did not address the constitutional aspects of Griffin’s claim, ruling only on
the evidentiary aspects. When a state court did not reach a federal constitutional issue, “the claim

25

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 26 of 40 PageID #:2156

is reviewed de novo.” Cone v. Bell, 556 U.S. 449, 472 (2009). And when no state court has squarely
addressed the merits of a habeas claim, “we review the claim under the pre-AEDPA [Antiterrorism
and Effective Death Penalty Act of 1996] standard of 28 U.S.C. § 2243, under which we ‘dispose
of the matter as law and justice require.’” Toliver v. Pollard, 688 F.3d 853, 859 (7th Cir. 2012),
quoting Morales v. Johnson, 659 F.3d 588, 599 (7th Cir. 2011); see also Aleman v. Sternes, 320
F.3d 687, 690 (2003) (“[I]f the state judiciary did not address the constitutional claim, despite an
opportunity

to

do

so[,]

then

[28

U.S.C.]

§ 2254(d) no longer applies. A prisoner still must establish an entitlement to the relief he seeks,
and it is § 2254(a), not § 2254(d), that sets the standard.”). Griffin cannot satisfy his burden
because he cannot show that the admission of Nailing’s statements, whether as excited utterances
or dying declarations, violated federal law.
First, admission of the testimony did not violate Griffin’s due process rights to a fair trial.
See Willingham v. Bauman, No. 20-1017, 2020 WL 3791943, at *3 (6th Cir. Apr. 22, 2020) (citing
Desai v. Booker, 732 F.3d 628, 630–31 (6th Cir. 2013)) (rejecting claim that admission of hearsay
statements violated Griffin’s due process rights to a fair trial “[b]ecause the Supreme Court has
never held that the introduction of hearsay testimony violates the Due Process Clause”); accord
Bartholomew v. Van Boening, 420 Fed. Appx. 782, 784 (9th Cir. 2011). Second, admission of the
testimony did not violate Griffin’s confrontation rights under Crawford v. Washington, 541 U.S.
36, 54–57 (2004), because “there is no clearly established Supreme Court precedent on whether
and when statements made to someone other than law enforcement personnel are testimonial,” and
thus there is no clearly established Supreme Court precedent holding that an excited utterance
made to a civilian, such as Nailing’s statements to Griffin, violates the confrontation clause.
Bartholomew, 420 Fed. Appx. at 784; see also Woods v. Cook, 960 F.3d 295, 300 (6th Cir. 2020)

26

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 27 of 40 PageID #:2157

(acknowledging lack of Supreme Court precedent holding that admission of a dying declaration
violates confrontation rights). And moreover, the most analogous Supreme Court precedent
suggests that Nailing’s statements were not testimonial because his primary purpose in making
them was to stop Griffin from shooting him, not to create an out-of-court substitute for trial
testimony. See Williams v. Illinois, 567 U.S. 50, 83 (2012) (citing Michigan v. Bryant, 562 U.S.
344, 358 (2011)) (“[A] person who makes a statement to resolve an ongoing emergency is not
acting like a trial witness because the declarant's purpose is not to provide a solemn declaration
for use at trial, but to bring an end to an ongoing threat”).
Furthermore, any alleged error in the admission of the testimony was harmless, considering
the overwhelming additional evidence of Griffin’s guilt: that he brought a gun to the apartment;
that he and Nailing were tussling; that Nailing was shot in the neck from the front and at a
downward angle; that Griffin’s explanation of the shooting was not credible; that Griffin was
holding the gun immediately after the shooting; and that Griffin left the apartment and disposed of
the gun. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Hayes v. Carter, No. 98-C-6813,
2003 WL 21212598, at *14 (N.D. Ill. May 23, 2003).
For all these reasons, Griffin cannot satisfy the standards of § 2243 or § 2254(a). See
Toliver, 688 F.3d at 859; Aleman, 320 F.3d at 690. Griffin’s claim thus lacks merit.
F.

Claim 13—Denial of Griffin’s successive postconviction petition

The trial court denied Griffin’s motion for leave to file a successive postconviction petition,
finding that the motion failed to meet the cause and prejudice test for a successive petition
under 725 ILCS 5/122-1(f). (Dkt. No. 45-2 at 136; Dkt. No. 45-3 at 9.) The Illinois Appellate Court
affirmed the decision. Griffin, No. 1-16-2347. (Dkt. No. 45-1.)

27

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 28 of 40 PageID #:2158

Griffin argues that the trial judge erred by denying his motion orally instead of in writing,
finding that Griffin failed to show cause and prejudice under 5/122-1(f), and failing to accept the
assertions in his accompanying affidavit as true. But “[n]o constitutional provision or federal law
entitles [a petitioner] to any state collateral review.” Montgomery v. Meloy, 90 F.3d 1200, 1206
(7th Cir. 1996) (citing Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)). “Unless state collateral
review violates some independent constitutional right, such as the Equal Protection Clause . . .
errors in state collateral review cannot form the basis for federal habeas corpus relief.” Id. (delay
in state court’s resolution of postconviction petition did not violate Due Process Clause); accord
Jackson v. Duckworth, 112 F.3d 878, 880 (7th Cir. 1997).
Griffin’s passing reference to his due process rights having been violated (see Dkt. No. 43
at 10) does not make his claim cognizable on federal habeas review. “[Griffin] cannot ‘transform
a state-law issue’ regarding alleged errors in his post-conviction proceedings ‘into a federal one
merely by asserting a violation of due process.’” Shief v. Lashbrook, No. 17-cv-4570, 2019 WL
1773357, at *3 (N.D. Ill. Apr. 23, 2019) (quoting Mishler v. Superintendent, No. 3:14-CV-1953JVB, 2016 WL 1658672, at *5 (N.D. Ind. Apr. 26, 2016) (denying as not cognizable petitioner’s
claim that state “post-conviction court . . . failed to enter written findings of facts and conclusions
of law,” even though petitioner “included the words ‘due process’” in his petition)); see also United
States ex rel. Topps v. Chandler, No. 12-CV-3028, 2013 WL 1283812, at *7 (N.D. Ill. Mar. 26,
2013) (claimed error by state court in finding petitioner failed to meet Illinois’s cause and prejudice
standard for filing a successive post-conviction petition was not cognizable); United States ex rel.
Greer v. Winters, No. 04-C-1793, 2004 WL 2064400, at *3 (N.D. Ill. Sept. 13, 2004) (denying
claim that post-conviction court “failed to accept the facts contained in the petition and the
accompanying affidavits and medical records as true” because “[t]his claim is not cognizable”).

28

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 29 of 40 PageID #:2159

Griffin’s challenge to the trial court’s denial of his motion for leave to file a successive
postconviction petition therefore fails.
III.

Prosecutorial misconduct (Claims 10, 11, 15, 16, and 17)

Griffin raises several claims of prosecutorial misconduct, all of which lack merit.
A.

Claim 10—Alcorn’s drug use and Griffin’s booking photos

At trial, Griffin claimed that the state failed to disclose certain evidence in violation of
Brady, 373 U.S. at 87–88 (suppression by the prosecution of evidence favorable to an accused
violates due process)—specifically, the state failed to disclose the content of a conversation that
the prosecutor had with Alcorn in which she admitted having used drugs in the past and four color
booking photos of Griffin that showed he had no injuries.
In denying Griffin’s first postconviction petition, the trial court rejected the claim
concerning Alcorn’s drug use on the merits but did not address the claim concerning the booking
photos. (Dkt. No. 19-21 at 119–21.) Accordingly, this Court addresses the former claim under the
AEDPA standard of 28 U.S.C. § 2254(d), and the latter claim under the pre-AEDPA law-andjustice standard of § 2243. See Toliver, 688 F.3d at 859; see also Aleman, 320 F.3d at 690.
To warrant a finding of a Brady violation, a defendant must point to specific
evidence that was (1) favorable to the defense; (2) suppressed by the government;
and (3) “material to an issue at trial.” United States v. Shields, 789 F.3d 733, 746
(7th Cir. 2015) (quotation marks omitted).
Evidence is favorable to the defense when it is either exculpatory or could
be used for purposes of impeachment. Kyles v. Whitley, 514 U.S. 419, 433 (1995).
....
“Evidence is suppressed when ‘the prosecution fail[s] to disclose the
evidence in time for the defendant to make use of it’ and ‘the evidence was not
otherwise available to the defendant through the exercise of reasonable diligence.’”
Shields, 789 F.3d at 746–47 (quoting Ienco v. Angarone, 429 F.3d 680, 683 (7th
Cir. 2005)).

29

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 30 of 40 PageID #:2160

A mid-trial disclosure “suffices if time remains for the defendant to make
effective use of the exculpatory material.” United States v. Higgins, 75 F.3d 332,
335 (7th Cir. 1996); see also Bielanski v. County of Kane, 550 F.3d 632, 645 (7th
Cir. 2008) (“Even late disclosure does not constitute a Brady violation unless the
defendant is unable to make effective use of the evidence.”).
United States v. Lawson, 810 F.3d 1032, 1042–43 (7th Cir. 2016). Griffin cannot show that the
state court misapplied Brady when considering either Alcorn’s drug use, § 2254(d), or Griffin’s
booking photos. § 2243; § 2254(a).
1.

Alcorn’s drug use

At trial, Griffin conceded that he knew about Alcorn’s drug use before he became aware
of the prosecutor’s conversation with Alcorn, showing that the information was not suppressed by
the state. See Shields, 789 F.3d at 746–47. Even if Griffin had become aware of the information
during trial, he was able to make use of it. See Higgins, 75 F.3d at 335; see also Bielanski, 550
F.3d at 645. Griffin cross-examined Alcorn extensively about her drug use (including on the day
of the shooting) and highlighted Alcorn’s drug use in closing argument. (Dkt. No. 19-6 at 31–34,
57–65, 139.) The trial judge, while ultimately finding Alcorn credible, noted that Griffin had crossexamined Alcorn about her drug use at great length. (Dkt. No. 19-7 at 169–71.) For these reasons,
the state court applied Brady correctly in finding that Griffin’s claim lacked merit.
2.

Griffin’s booking photos

Although Griffin objected when the prosecutor first sought to introduce the booking
photos, later, during the state’s rebuttal case, Griffin stipulated to the admission of the photos. The
state’s use of the photos did not violate Griffin’s rights under Brady because the photos were not
favorable to him; they showed a lack of injuries to Griffin and thus undermined his assertion that
Nailing had attacked him and beat him. See Whitley, 514 U.S. at 433; Shields, 789 F.3d at 746.
Thus, Griffin’s Brady claim concerning the booking photos also fails.

30

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 31 of 40 PageID #:2161

B.

Claim 11—Prosecutor’s argument that Griffin shot Nailing

In response to Griffin’s motion for a directed verdict, in which he argued the shooting was
an accident and that the state failed to prove Griffin pointed a gun at anyone or intended to shoot
Nailing, the prosecutor argued, among other things: “The testimony is clear [Griffin] armed
himself, they were tugging on each other’s shirts, and he decides to shoot [Nailing] through the
throat. We have met our burden and ask you to deny the motion.” (Dkt. No. 19-7 at 22.) The trial
court denied Griffin’s motion for a directed verdict and, in denying Griffin’s first postconviction
petition, rejected his claim that the prosecutor’s argument denied him a fair trial; the trial judge
concluded that the argument was a fair and reasonable inference from the evidence. (Dkt. No. 1921 at 121–22.) The Illinois Appellate Court affirmed the denial of Griffin’s first postconviction
petition summarily. Griffin, 2014 Il App (1st) 130362-U. (Dkt. 19-25.) This Court thus looks to
the trial court’s rationale. Wilson, 138 S. Ct. at 1192.
Although a prosecutor is prohibited from arguing facts not in evidence, a prosecutor may
argue reasonable inferences from the evidence. See Evans v. Jones, 996 F.3d 766, 775 (7th Cir.
2021) (citing United States v. Waldemer, 50 F.3d 1379, 1383 (7th Cir. 1995)). Here, the state
adduced evidence that Griffin brought a gun to the apartment; that he and Nailing were tussling;
that Nailing pleaded for his life immediately before he was shot; that Nailing was shot in the neck
from the front and at a downward angle; that Griffin was holding the gun immediately after the
shooting; and that Griffin left the apartment and disposed of the gun. Simply put, the evidence
supported the prosecutor’s suggestion that the shooting was intentional rather than accidental.
Accordingly, Griffin cannot show that the trial court unreasonably applied federal law or
unreasonably determined the facts in light of the evidence at trial. His claim thus fails.

31

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 32 of 40 PageID #:2162

C.

Claim 15—Police report concerning Ryan’s and Alcorn’s statements

Griffin argues, as he did in his motion for leave to file a successive postconviction petition,
that the state violated Brady by failing to turn over a police report showing that, in April of 2004,
neither Ryan nor Alcorn told the police that Nailing had pleaded for his life before he was shot—
information that Griffin believes he could have used for impeachment purposes. The trial court
denied Griffin leave to file a successive petition, concluding he had failed to show cause and
prejudice as required by 725 ILCS 5/122-1(f). Griffin procedurally defaulted this claim because
the state court, in denying him leave to file a successive petition, relied on an adequate and
independent state procedural ground to dispose of the case. Thomas, 822 F.3d at 385; Woods, 589
F.3d at 376-77; Chapman v. Jones, No. 17-C-9190, 2020 WL 3892986, at *7 (N.D. Ill. July 10,
2020). Griffin makes no argument that his default should be excused.8 See Thomas, 822 F.3d at
386. And in any event, his claim lacks merit.
In support of his motion for leave to file a successive postconviction petition, Griffin
submitted a one-page excerpt from a police report relating Ryan’s and Alcorn’s accounts of the
shooting (although the names of the witnesses are redacted in the excerpt, it is clear from a
comparison with the trial testimony that the witnesses were Ryan and Alcorn). (Dkt. No. 45-2 at
107). Griffin points to no evidence that defense counsel lacked access to the report but, for reasons
explained below, Griffin’s claim fails in any event. The report, which presented the witnesses’
accounts only “in essence and not verbatim,” did not relate whether Ryan or Alcorn said they heard
Nailing plead for his life, but Ryan was reported as having said that Griffin and Nailing “continued

8

To the extent Griffin argues that the trial court erred in finding that he failed to show cause and
prejudice as required to allow him to proceed with his successive postconviction petition (Dkt. No. 43 at
10), “[t]his is an argument that the state court’s decision was wrong, not an argument to excuse the
default. Such an argument cannot establish cause.” United States ex rel. Watson v. Pfister, No. 13-C2276, 2015 WL 1186795, at *6 (N.D. Ill. Mar. 11, 2015).

32

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 33 of 40 PageID #:2163

to argue” before Nailing was shot. (Dkt. No. 45-2 at 107.) Moreover, four months after the
shooting, in August of 2004, Ryan and Alcorn gave additional statements to the police, which
included assertions that Nailing had pleaded for his life before he was shot. (Dkt. No. 49 at 68,
73.)
Evidence is material under Brady if “there is a reasonable probability that, had the evidence
been disclosed, the result of the proceeding would have been different.” Sims v. Hyatte, 914 F.3d
1078, 1087 (7th Cir. 2019) (citing Kyles, 514 U.S. at 433). A “reasonable probability” exists if the
suppression of the favorable evidence “undermines confidence in the outcome of the trial.” Id. If
the withheld evidence is impeachment evidence of a state witness, “courts must consider the
overall strength of the prosecution case, the importance of the particular witness's credibility to the
prosecution case, the strength of the concealed impeachment material, and how the concealed
material compares to other attacks the defense was able to make on the witness's credibility.” Sims,
914 F.3d at 1089.
The state’s case was strong even apart from Nailing’s pleas for Griffin not to shoot him, as
the evidence showed that Griffin brought a gun to the apartment and threatened Ryan with it; that
Nailing tried to make peace between Griffin and Ryan; that Nailing was shot in the neck from the
front, in a downward direction; that Griffin was holding the gun shortly after the shooting; and that
Griffin disposed of the gun soon after the incident. To be sure, Ryan’s and Alcorn’s credibility
were important, but the police report carried minimal impeachment power—it contained no
statements contradicting Ryan’s or Alcorn’s trial testimony that Nailing pleaded for his life; it
contained a disclaimer that it did not represent the witnesses’ statements verbatim but reflected
them only “in essence;” Ryan was recorded as having said that Griffin and Nailing “continued
arguing” before Nailing was shot; and additional statements that Ryan and Alcorn made to the

33

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 34 of 40 PageID #:2164

police only four months after the shooting included assertions that Nailing pleaded for his life.
Compared to Alcorn’s admitted drug use, which defense counsel exploited at length in attacking
Alcorn’s credibility, and compared to defense counsel’s challenges to Ryan’s credibility
concerning her altercation with Griffin and whether she closed the door to her bedroom where she
had retreated, the police report could have had only slight effect, if any. In short, this Court cannot
say that “there is a reasonable probability that, had the [police report] been disclosed, the result of
the proceeding would have been different.” Sims, 914 F.3d at 1087. This claim therefore fails as
well.
D.

Claim 16—Police testimony concerning Ryan’s and Alcorn’s
statements

Griffin claims, as he did in his motion for leave to file a successive postconviction petition,
that the state, in violation of his due process rights, introduced false testimony from Officers
Stegmiller and Seinitz that Ryan and Alcorn told the officers that Nailing pleaded for his life.
Griffin procedurally defaulted this claim because the trial court denied him leave to file a
successive postconviction petition under 725 ILCS 5/122-1(f), which constitutes an adequate and
independent state procedural ground to dispose of the case. Thomas, 822 F.3d at 385; Woods, 589
F.3d at 376–77; Chapman, 2020 WL 3892986, at *7. Griffin asserts no reason to excuse his default,
Thomas, 822 F.3d at 386, and, regardless, the claim lacks merit.
Stegmiller did not testify at trial about the substance of his conversation with Ryan, nor did
he testify that he spoke with Alcorn, and Seinitz did not testify at trial. Accordingly, Griffin’s claim
is contradicted by the record. Because neither officer testified to anything that Ryan or Alcorn said,
Griffin’s assertion that the officers have “a background history of committing perjury” (Dkt. No.
43 at 20), is irrelevant to his claim.

34

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 35 of 40 PageID #:2165

Griffin’s passing reference to “possible grand jury testimonies” (Dkt. No. 43 at 16), is
equally unavailing because he points to no pertinent grand jury testimony in the record, and even
if Officers Stegmiller and Seinitz had testified before the grand jury about what Ryan and Alcorn
allegedly told them (as Griffin implies), such testimony would have been harmless because it was
not repeated at trial, where Griffin was convicted beyond a reasonable doubt. See United States ex
rel. Quesada v. Atchison, No. 12-C-8264, 2014 WL 4668644, at *5 (N.D. Ill. Sept. 18, 2014),
citing United States v. Mechanik, 475 U.S. 66, 70 (1986); United States ex rel. Coleman v. Shaw,
No. 06-C-184, 2009 WL 1904370, at *11 (N.D. Ill. July 1, 2009). Griffin’s arguments here lack
merit as well.
E.

Claim 17—Nailing’s medical records

Griffin argues, as he did in his motion for leave to file a successive postconviction petition,
that the state, in violation of Brady, failed to disclose that Nailing was not in a coma from June 1,
2004 until his death on July 22, 2004. He contends this information meant that Nailing was
available for an interview by the police and, had Griffin known it, would have caused Griffin not
to stipulate that Nailing was in a coma or stipulate to the pathology report. However, Griffin
procedurally defaulted this claim because the trial court denied him leave to file a successive
postconviction petition under 725 ILCS 5/122-1(f), Thomas, 822 F.3d at 385; Woods, 589 F.3d at
376-77; Chapman, 2020 WL 3892986, at *7, and Griffin asserts no reason to excuse his default.
Thomas, 822 F.3d at 386. In any event, the claim lacks merit.
Although Nailing’s medical records (which Griffin obtained through a request under the
Freedom of Information Act) indicate that Nailing was not in a coma during the period in question,
Griffin failed to show that the state knew that information and failed to disclose it, or that the
information was not otherwise independently available to Griffin before trial. Shields, 789 F.3d at

35

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 36 of 40 PageID #:2166

746-47. Nor can Griffin show that “there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different.” Sims, 914 F.3d at 1087. Even
if Nailing had been available for a police interview while hospitalized, Griffin provides no basis
for concluding that Nailing would have provided information beneficial to Griffin—i.e., there is
no reason to believe that, had he known of Nailing’s medical information, the result of the
proceeding would have been different. Nor does Griffin make any argument that Nailing’s medical
records contradict or otherwise undermine the pathologist’s conclusions that Nailing died from
sepsis and that the manner of death was homicide. For these reasons, Griffin’s claim fails.
IV.

Ineffective assistance of counsel (Claims 4, 9(a) and (b), 12(b) and (c), 14, and
18)

Griffin argues that trial and appellate counsel were constitutionally ineffective in various
ways. The clearly established federal law governing Griffin’s ineffective assistance claims is set
forth in Strickland v. Washington, 466 U.S. 668, 104 (1984). Under Strickland, Griffin must show
both (1) counsel’s performance “fell below an objective standard of reasonableness,” and (2)
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 688, 694. Failure to prove either prong is fatal to
Griffin’s claim. Winfield v. Dorethy, 956 F.3d 442, 452 (7th Cir. 2020). As Griffin cannot show
that the state courts misapplied the Strickland standard, none of his claims based on ineffective
assistance of counsel are availing.
A.

Claims 4, 12(b) and (c)—Sufficiency of the evidence

Griffin claims, as he did in his first postconviction petition, that appellate counsel was
ineffective for failing to argue on direct appeal that the state’s evidence was insufficient to prove

36

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 37 of 40 PageID #:2167

first-degree murder and for failing to argue ineffectiveness of trial counsel.9 As explained above,
however, the evidence was sufficient to prove Griffin’s guilt. Thus, neither appellate nor trial
counsel could have rendered constitutionally ineffective assistance concerning challenges to the
sufficiency to the state’s evidence. The Seventh Circuit has long held that “[c]ounsel is not
ineffective for failing to raise meritless claims.” Warren v. Baenen, 712 F.3d 1090, 1104 (7th Cir.
2013); Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996) (“Failure to raise a losing argument,
whether at trial or on appeal, does not constitute ineffective assistance of counsel.”). Accordingly,
Griffin cannot show that the trial court misapplied Strickland.
B.

Claims 9(a) and (b)—Out-of-court statements of Griffin and Nailing

Griffin argues, as he did in his first postconviction petition that: (a) trial counsel was
ineffective for failing to challenge, through a contemporaneous objection or in Griffin’s motion
for a new trial, the admission of Ryan’s testimony that Griffin threatened her, and the admission
of Ryan’s and Alcorn’s testimony that Nailing pleaded for his life before he was shot; and (b) that
appellate counsel was ineffective for failing to argue ineffectiveness of trial counsel in these
respects. But as explained above, the testimony was properly admitted. Thus, neither trial nor
appellate counsel could have rendered constitutionally ineffective assistance in declining to
challenge the admission of the testimony. Warren, 712 F.3d at 1104; Stone, 86 F.3d at 717. Griffin
thus cannot show that the trial court misapplied Strickland in this respect either.
C.

Claim 14—Finley motion concerning successive postconviction petition

Griffin argues appellate counsel was ineffective for filing a Finley motion concerning
Griffin’s appeal from the denial of his request for leave to file a successive postconviction petition

9

Griffin does not explain in what respect appellate counsel should have argued ineffectiveness of trial
counsel concerning the sufficiency of the state’s evidence. (Dkt. No. 43 at 5.) In any event, for the reasons
explained below, the evidence was sufficient to prove Griffin’s guilt, and so any ineffectiveness claims
concerning challenges to the sufficiency of the evidence lack merit.

37

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 38 of 40 PageID #:2168

because counsel acknowledged the existence of newly-discovered evidence that Nailing was not
in a coma but declined to raise it on appeal and because counsel had a conflict of interest because
the same counsel had earlier filed a Finley motion concerning Griffin’s appeal from the denial of
his first postconviction petition.
“The ineffectiveness or incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”
28 U.S.C. § 2254(i). There is no “constitutional right to counsel on appeal from the state habeas
trial court judgment.” Coleman v. Thompson, 501 U.S. 722, 755 (1991); see also Davila v. Davis,
137 S. Ct. 2058, 2065 (2017). Thus, Griffin's claims of ineffective assistance of post-conviction
appellate counsel are not cognizable. See United States ex rel. Payton v. Pfister, No. 11-C-6610,
2015 WL 5829749, at *15 (N.D. Ill. Oct. 1, 2015) (rejecting claim of ineffectiveness based on
appellate counsel’s filing a Finley brief); United States ex rel. Keller v. Gilmore, No. 96-C-5405,
1997 WL 112822, at *8 (N.D. Ill. Mar. 10, 1997) (“because [petitioner] had no right to counsel in
his post-conviction proceedings, there could not have been any ineffective assistance by the
counsel he was appointed, and his conflict of interest claim must fail”). Griffin’s claims are
therefore foreclosed from habeas review.
D.

Claim 18—Police report and medical records

In his motion for leave to file a successive postconviction petition, Griffin argued
ineffective assistance of trial counsel based on failure to discover the police report showing that,
in April of 2004, neither Ryan nor Alcorn told the police that Nailing pleaded for his life before
he was shot; failure to discover the medical records showing Nailing was not in a coma; and
stipulating to the pathology report. Griffin, however, procedurally defaulted these claims because
the trial court denied him leave to file a successive postconviction petition under 725 ILCS 5/122-

38

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 39 of 40 PageID #:2169

1(f), which, as noted above, constituted an adequate and independent state procedural ground to
dispose of the case. Thomas, 822 F.3d at 385; Woods, 589 F.3d at 376–77; Chapman, 2020 WL
3892986, at *7. Griffin asserts no reason to excuse his default, Thomas, 822 F.3d at 386, and,
regardless, the claim lacks merit for the reasons discussed above.
V.

Request for the appointment of counsel

In connection with Griffin’s request that this Court lift the stay of his habeas petition to
allow him to file an amended habeas petition, Griffin moved for the appointment of counsel. (Dkt.
31.) The Court denied the motion for the appointment of counsel without prejudice. (Dkt. No. 33.)
Griffin does not appear to have filed a renewed request for counsel but, along with his reply brief,
he filed a “notification” claiming that this Court has yet to rule on his earlier motion for
representation. (Dkt. No. 49 at 1.) But the Court has already ruled on that motion, denying it
without prejudice on March 10, 2020. (Dkt. No. 33.) To the extent Griffin’s “notification”
represents a renewal of his motion for the appointment of counsel, that renewed motion is denied
because, as discussed above, none of his claims has merit.
CONCLUSION
For the reasons discussed above, Griffin’s amended habeas corpus petition (Dkt. No. 43)
is denied. The Clerk will enter Judgment in favor of Respondent. The Court declines to issue a
certificate of appealability, as Griffin cannot make a substantial showing of the denial of a
constitutional right or that reasonable jurists would debate, much less disagree with, this Court’s
resolution of Griffin’s claims. Arredondo v. Huibregtse, 542 F.3d 1155, 1165 (7th Cir. 2008)
(citing 28 U.S.C. § 2253(c)(2)); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). Griffin is
advised that this is a final decision ending his case in this Court. If he wishes to appeal, he must
file a notice of appeal in this Court within 30 days of entry of the judgment. See Fed. R. App. P.

39

Case: 1:15-cv-02313 Document #: 52 Filed: 01/23/23 Page 40 of 40 PageID #:2170

4(a)(1). Griffin does not need to file a motion to reconsider this Court’s ruling to preserve his
appellate rights. But if he wants this Court to reconsider its judgment, he may file a motion under
Federal Rule of Civil Procedure 59(e) or 60(b). The deadline for filing a Rule 59(e) motion is 28
days after entry of this judgment. See Fed. R. Civ. P. 59(e). If Griffin timely files a Rule 59(e)
motion, the 30-day period for filing an appeal is suspended (does not begin to run) until entry of
the Court’s ruling on the motion. See Fed. R. App. P. 4(a)(4)(A)(iv). The rules are different for a
Rule 60(b) motion. The deadline for filing a Rule 60(b) motion is “within a reasonable time” and,
if Griffin files a motion under Rule 60(b)(1), (2), or (3), he must file it no more than one year after
entry of the judgment. See Fed. R. Civ. P. 60(c)(1). If Griffin files a Rule 60(b) motion within 28
days of entry of the judgment, the 30-day period for filing an appeal is suspended (does not begin
to run) until entry of the Court’s ruling on the motion. See Fed. R. App. P. 4(a)(4)(A)(vi). The
deadline for filing a motion under either Rule 59(e) or 60(b) cannot be extended. See Fed. R. Civ.
P. 6(b)(2).
ENTERED:

____________________________
Andrea R. Wood
United States District Judge
Date: January 23, 2023

40