Leslie v. Roberson et al

Filing 26

MEMORANDUM Opinion and Order. Signed by the Honorable Marvin E. Aspen on 5/22/2017. Mailed notice (lf, )

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

KENNY LESLIE,
Petitioner,
v.
KESS ROBERSON,
Respondent.

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No. 15 C 02395
Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Presently before us Petitioner Kenny Leslie’s pro se application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 to vacate, set aside, or correct his conviction. For the
reasons set forth below, we deny Petitioner’s request for habeas relief.
BACKGROUND
I.

Petitioner’s Trial and Conviction
On November 3, 2009, Chicago police officers Susan Lascola and Sofia Gonzalez

stopped a vehicle they believed was involved in two “hit and run” incidents.1 People v. Leslie,
2013 IL App (1st) 111798–U, ¶ 6 (Dec. 13, 2013). Petitioner was in the front passenger seat of

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We presume the State courts’ factual determinations to be correct, and Petitioner bears “the
burden of rebutting the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e).

the car. Id. The driver was arrested for fleeing the scene of an accident and for driving under the
influence of alcohol. Id. ¶ 8. Officer Lascola informed Petitioner that he was not under arrest,
but that the car would have to be towed and impounded. Id. Petitioner told officers that he was
quadriplegic. Id. Officers Fernando Rodriguez and Marco Proano then tried to assist Officer
Lascola in removing Petitioner from the car. Id. ¶ 9. Petitioner indicated that his back hurt and
that he could not exit the car. Id. In response, the officers called the fire department to assess
Petitioner for injuries and help him exit the car. Id. When Officer Rodriguez asked Petitioner to
exit the car, Petitioner responded “‘[Expletive omitted] you both, Mexicans. I’m going to get my
gun and kill you when I get out.” Id.
Shortly after fire department personnel arrived, Petitioner exited the car without
assistance. Id. ¶ 10. At that point, Officer Rodriguez handcuffed and arrested Petitioner for
aggravated assault to a police officer, based on his threat to get a gun and kill Officers Rodriguez
and Proano. Id. Officer Rodriguez then led Petitioner to his squad car, where Petitioner
proceeded to sit in the back seat with his legs deliberately positioned outside the squad car in a
way that prevented Officer Rodriguez from shutting the door. Id. ¶ 11. After Petitioner
continued to defy Officer Rodriguez’s orders to place his legs in the car, Officer Rodriguez
picked up Petitioner’s legs and repositioned them inside the squad car. Id. When Officer
Rodriguez attempted to close the door, Petitioner kicked him in the jaw. Id. Officer Rodriquez
was eventually able to close the door, and the officers transported Petitioner to the police station.
Id. ¶¶ 11–12. Petitioner was taken to a holding cell where, for safety reasons, he was required to
remove his shoelaces. Id. Petitioner refused to remove his shoelaces, and when Officer
Rodriguez attempted to remove Petitioner’s shoelaces, Petitioner bit him on the wrist.
Id. ¶¶ 12–13.

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At trial, Petitioner denied kicking Officer Rodriquez or threatening to kill any officers.
Id. ¶ 18. Instead, Petitioner testified that he requested help exiting the car prior to his arrest, but
the officers responded by using excessive physical force to remove him from the vehicle. Id.
Petitioner further testified that he repeatedly requested to go to the hospital and, after arguing
with the officers, Officer Rodriguez put him in a choke hold for 30 to 40 seconds. Id. Petitioner
testified that, because he could not breathe, he bit Officer Rodriguez. Id. An intake paramedic
from Cook County jail testified that he examined Petitioner on the evening of the arrest and
Petitioner “denied any recent trauma and did not say that he had been assaulted by a police
officer.” Id. ¶ 16. Petitioner was charged with two counts of aggravated battery to a peace
officer. Id. ¶ 6. After he was charged, Petitioner filed a civil lawsuit based on the circumstances
of his arrest. Id. ¶ 15. On March 14, 2011, a jury found Petitioner guilty of one count of
aggravated battery of a peace officer. Id. ¶ 20. Petitioner was acquitted of the charge “premised
on insulting or provoking contact.” Id. The trial court sentenced Petitioner to twenty years in
prison. Id.
II.

Direct Appeal
On June 1, 2011, Petitioner filed a direct appeal to the Illinois Appellate Court. (Direct

Appeal Br., St. Ct. R., Ex. B (Dkt. No. 19–1) at Pg. ID#: 218.) In that appeal, Petitioner raised
four claims: (1) his trial counsel was ineffective for failing to request jury instructions on two
available lesser-included offenses; (2) the trial court violated his confrontation right by limiting
defense counsel’s cross-examination of arresting officers Rodriguez and Proano regarding
Petitioner’s civil lawsuit against the officers; (3) the admission of other crimes evidence without
a limiting instruction was reversible error; and (4) the prosecutor’s closing argument contending
that an acquittal would empower Petitioner to commit future offenses was improper and violated

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Petitioner’s due process right to a fair trial. (Id. at Pg. ID#: 173.) On December 13, 2013, the
Illinois Appellate Court affirmed Petitioner’s conviction, holding he failed to establish any errors
in his trial court proceedings. Leslie, 2013 IL App (1st) 111798–U. Petitioner renewed these
claims in his Petition for Leave to Appeal (“PLA”), which the Illinois Supreme Court summarily
denied on March 26, 2014. (Direct Appeal PLA, St. Ct. R., Ex. E, (Dkt. No. 19–2)
at Pg. ID#: 79.)
III.

Post-Conviction Proceedings
On August 19, 2011, while his direct appeal was still pending, Petitioner filed a pro se

post-conviction petition. (Post-conviction Pet., St. Ct. R., Ex. P (Dkt. No. 19–10).) In this
petition, Petitioner raised three distinct claims: (1) that the trial court erred when it denied his
motion to suppress evidence in which he argued he was unlawfully arrested and could not have
committed assault because he did not have a weapon or firearm and the officers were never
hospitalized; (2) the State knowingly relied on the perjured testimony of Officers Lascola,
Rodriguez, Proano, and Willis to secure Petitioner’s conviction, violating his constitutional right
to due process; and (3) the State violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963)
because it withheld allegedly exculpatory footage from police surveillance cameras.
(Id. at Pg. ID#: 1431–35.)
On November 16, 2011, the trial court dismissed the petition, finding that Petitioner’s
claims lacked merit. (Id. at Pg. ID#: 1435.) Specifically, the trial court found
that (1) Petitioner’s claim that no assault occurred because he never possessed a weapon and the
police officers were not hospitalized was without merit, as “the State was never required to prove
that a weapon or firearm was involved or that the officers were hospitalized”; (2) Petitioner
failed to produce any evidence which might substantiate his allegation that Officers Lascola,

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Rodriguez, Proano, and Willis gave perjured testimony; and (3) Petitioner failed to present any
facts supporting his Brady claim. (Id. at Pg. ID#: 1432–35.) Petitioner appealed the trial court’s
dismissal of his petition for post-conviction relief, and the Illinois Appellate Court summarily
affirmed. (Post-conviction Appeal Order, St. Ct. R., Ex. F (Dkt. No.19–3) at Pg. ID#: 359–60.)
Petitioner sought rehearing on his petition for post-conviction relief, which the Illinois Appellate
Court summarily denied on April 30, 2013. (Rehearing Order, St. Ct. R., Ex. I (Dkt. No. 19–4)
at Pg. ID#: 435.) Petitioner filed a petition for leave to appeal the appellate court’s dismissal to
the Supreme Court of Illinois, reiterating his claims of unlawful arrest, prosecutorial misconduct,
and perjury. (Post-conviction PLA, St. Ct. R., Ex. J (Dkt. No. 19–4) at Pg. ID#: 447–51.) The
Illinois Supreme Court denied his PLA on September 9, 2013. (Id. at Pg. ID#: 452.)
On February 10, 2014, Petitioner sought leave with the trial court to file a successive
petition for post-conviction relief. (Successive Post-conviction Pet., St. Ct. R., Ex. Q
(Dkt. No. 19–11) at Pg. ID#: 1470.) Petitioner argued that his appellate counsel was ineffective
for failing to raise the following issues on appeal:
(1) prosecutorial misconduct for presenting false evidence and argument concerning
Officer Rodriguez’s bite wound and eliciting false testimony from Officers Lascola,
Rodriguez and Willis concerning details of petitioner’s arrest, and (2) ineffective
assistance of trial counsel for failing to challenge the introduction of false evidence
concerning Officer Rodriguez’s bite wound and failing to object to misstatements of
evidence by the prosecutor in opening and closing statements.
(Id. at Pg. ID#: 1521.) Petitioner attached to his petition additional documents he claimed
proved the witnesses perjured themselves during his trial. (Id. at Pg. ID#: 1526.) On
April 14, 2014 the trial court denied Petitioner leave to file a successive post-conviction petition,
finding that Petitioner failed to show cause for his failure to produce the additional documents or
raise his additional claims in his initial petition for post-conviction relief. (Id.) The trial court
further found that, even if Petitioner had shown cause, Petitioner could no show prejudice as

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there was no reasonable likelihood that the outcome of his trial would have been different if the
witnesses had been impeached with the new documents which allegedly contradicted their
testimony. (Id. at Pg. ID#: 1526–27.) Petitioner appealed, and on December 23, 2015 the
Illinois Appellate Court summarily affirmed the trial court’s denial of leave to file a successive
petition for post-conviction relief. (St. Ct. R., Ex. K (Dkt. No. 19–4) at Pg. ID#: 453–56.)
Petitioner filed a pro se PLA, which the Illinois Supreme Court denied on May 25, 2016. (St. Ct.
R., Ex. N (Dkt. No. 19–4) at Pg. ID#: 556.)
IV.

Federal Habeas Petition
On March 23, 2015, Petitioner filed a pro se federal habeas petition, asserting the

following six claims: (1) Petitioner’s conviction, obtained using knowingly false testimony from
Officers Lascola, Rodriguez, Proano, and Willis, violated Petitioner’s Fourteenth Amendment
right to due process; (2) Petitioner was denied his Sixth Amendment confrontation rights when
the trial court limited his cross-examination of Officers Proano and Rodriguez; (3) the State
relied on false evidence; (4) the State withheld exculpatory evidence; (5) the State’s rebuttal
closing argument was improper; and (6) Petitioner’s trial counsel was ineffective for failing to
object to the State’s presentation of false testimony and for failing to impeach Officers Lascola,
Rodriguez, and Willis. (Dkt. No. 5 at Pg. ID#: 13–18.) On June 29, 2015, we granted
Petitioner’s motion to stay his case while he exhausted his state remedies on several claims.
(Dkt. No. 11.) Petitioner now states that he has fully exhausted all state court remedies available
by presenting each of his habeas claims through one complete round of state appellate review.
(Dkt. No. 13.)

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ANALYSIS
I.

PROCEDURAL DEFAULT
For us to review a claim for a writ of habeas corpus on the merits, the petitioner must
exhaust state court remedies and avoid procedural default. 28 U.S.C. § 2254(b)(1); see also
Perruquet v. Briley, 390 F.3d 505, 513–15 (7th Cir. 2004)). “Where state remedies remain
available to a habeas petitioner who has not fairly presented his constitutional claim to the state
courts, the exhaustion doctrine precludes a federal court from granting him relief on that claim.”
Perruquet, 390 F.3d at 514. “If the claim comes from the Illinois state courts, the petitioner must
have presented each claim in the habeas petition to the Illinois Appellate Court and to the Illinois
Supreme Court in a petition for discretionary review.”2 Mulero v. Thompson, 668 F.3d 529, 536
(7th Cir. 2012) (internal citation and quotation marks omitted). Procedural default is a “separate
but related doctrine” that precludes federal courts from ruling on the merits of a habeas claim
when “(1) that claim was presented to the state courts and the state-court ruling against the
petitioner rests on adequate and independent state-law grounds, or (2) the claim was not
presented to the state courts and it is clear that those courts would now hold the claim
procedurally barred.” Perruquet, 390 F.3d at 514; see also Lee v. Foster, 750 F.3d 687, 693
(7th Cir. 2014) (holding that a claim is procedurally defaulted “if the last state court that
rendered judgment ‘clearly and expressly states that its judgment rests on a state procedural bar’”
(quoting Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043 (1989)).
A claim is fairly presented when “the state court was sufficiently alerted to the federal
constitutional nature of the issue to permit it to resolve that issue on a federal basis.”

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In Illinois, a petitioner may present a claim “either on direct appeal or in post-conviction
proceedings.” McDowell v. Lemke, 737 F.3d 476, 482 (7th Cir. 2013) (citing Lewis v. Sternes,
390 F.3d 1019, 1025 (7th Cir. 2004)).
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Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001). Typically, this requires that the
petitioner present “[b]oth the operative facts and controlling law” to the state court. Id.
However, in reviewing whether a petitioner’s claims are procedurally defaulted, federal courts
should “avoid hypertechnicality.” Verdin v. O’Leary, 972 F.2d 1467, 1474 (7th Cir. 1992). A
petitioner’s may claim may have some “variations in the legal theory or factual allegations urged
in its support,” so long as the substance of his argument remains the same. Picard v. Connor,
404 U.S. 270, 277–78, 92 S. Ct. 509, 513 (1971).
A. Perjured Testimony (Claim 1)
Respondent argues Petitioner’s claim that the State knowingly used the perjured trial
testimony of Officers Lascola, Rodriguez, Willis, and Proano to secure his conviction, thus
violating his Fourteenth Amendment Due Process rights, is procedurally defaulted. (Resp.
(Dkt. No. 18.) at 8–12.) Specifically, Respondent argues Petitioner’s habeas claim that Officers
Proano and Willis committed perjury is procedurally defaulted, as his petition for
post-conviction relief contained only a “bare allegation that Officers Proano and Willis
committed perjury” and thus “did not fairly present” his claim to the state court. (Id. at 11.)
In his first petition for post-conviction relief, Petitioner argued that the State knowingly
relied on Officers Lascola, Rodriguez, Willis, and Proano’s false testimony to secure his
conviction. (Post-conviction Pet. at Pg. ID#: 1403–1406.) The trial court dismissed his claim as
“nothing more than a bald conclusion,” finding that he “provided no supporting documentation at
all” such that he “failed to substantiate his allegation that Officers Lascola, Rodriguez, Willis,
and Proano gave perjured testimony.” (Id. at Pg. ID#: 1434.) The Illinois Appellate Court
summarily affirmed the trial court’s dismissal, finding that “an appeal in this cause would be
without arguable merit.” (Post-conviction Appeal Order at Pg. ID#: 360.) Finally, Petitioner

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filed a PLA with the Illinois Supreme Court, raising the same claims again, but the court
summarily denied his request for discretionary review. (Post-conviction PLA at Pg. ID#: 452.)
Petitioner’s first petition for post-conviction relief fairly presented his constitutional
claim to the trial court, which explicitly recognized the constitutional nature of Petitioner’s
claim. (Post-conviction Pet. at Pg. ID#: 1433–34 (“It is axiomatic that a conviction based upon
false testimony offends notions of fundamental fairness.” (citation omitted)).) The trial court
dismissed his claim on the merits, finding it was “nothing more than a bald conclusion.”
(Id. at Pg. ID#: 1434.) Rice v. Bowen, 264 F.3d 698, 702 (7th Cir. 2001) (recognizing that
“Illinois has directed its courts summarily to dismiss frivolous or patently meritless
post-conviction petitions,” and that dismissing a post-conviction petition as frivolous “is a merits
determination”). The reviewing appellate courts did not rely on a state procedural ground when
affirming the trial court’s dismissal or for denying Petitioner’s PLA. (Direct Appeal Order
at Pg. ID#: 360; PLA at Pg. ID#: 452.) To be sure, Petitioner’s present habeas claim presents
somewhat different facts than he presented to the state trial court in his petitioner for postconviction relief, including more detailed factual allegations. (see Post-conviction Pet. at
Pg. ID#: 1404–1406; Dkt. No. 5 at Pg. ID#: 13–15.) Despite variations in the facts Petitioner
alleges in support of his claim, “the “ultimate question for disposition . . . [is] the same”—that is,
whether the State knowingly relied on perjured testimony of the officers in order to secure
Petitioner’s conviction. Picard v. Connor, 404 U.S. 270, 277, 92 S. Ct. 509, 513 (1971).
Petitioner has therefore not procedurally defaulted on his first claim.
B. False Evidence (Claim 3)
In his third claim, Petitioner argues the State knowingly introduced, or failed to correct,
false evidence that he broke Officer Rodriguez’s skin when biting him, which violated his right

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to due process under the Fourteenth Amendment.3 (Dkt. No. 5 at Pg. ID#: 5.) Respondent
argues that this claim is procedurally defaulted because Petitioner did not raise his third claim
until his request for leave to file a successive post-conviction petition, which was denied on
procedural grounds. (Resp. at 18.)
As Respondent observes, Petitioner did not raise his claim that the State introduced false
evidence until his successive post-conviction petition, in which he argued his appellate counsel
was ineffective for failing to raise the issue on appeal. (Successive Post-conviction Pet.
at Pg. ID#: 1470–72.) In Illinois, a petitioner may file only one petition for post-conviction relief
without the court’s leave. 725 ILCS 5/122–1(f). A court may grant a petitioner leave to file a
successive post-conviction petition including claims not presented in the initial petition only if
the petitioner “demonstrates cause for his or her failure to bring the claim[s] in his or her initial
post-conviction proceedings and prejudice results from that failure.” 725 ILCS 5/122–1(f). In
considering Petitioner’s successive post-conviction petition, the trial court observed that
Petitioner did not “so much as mention the cause and prejudice test anywhere in his petition.”
(Successive Post-conviction Pet. at Pg. ID#: 1525.) The trial court found that “the only evidence
petitioner submits other than trial transcripts . . . are (1) excerpts from the transcripts of civil
depositions in petitioner’s civil suit arising out of this matter, . . . and (2) statements of some of
the officers to the Independent Police Review Authority (‘IPRA’).” (Id. at Pg. ID#:1525–26.)
The court further observed that there was nothing to suggest that Petitioner “could not have
obtained these documents and included them with his prior petition.” (Successive Postconviction Pet. at Pg. ID#: 1526.) The court therefore denied the petition because Petitioner did
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Petitioner states the false evidence was “People’s No. 6,” but does not say what the form or
content of that exhibit was. (Dkt. No. 5 at 5.) However, the trial transcript indicates “People’s
No. 6” is a photograph of blood on Officer Rodriguez’s shirt cuff. (Trial Tr., St. Ct. R., Ex. O
(Dkt. No. 19–6) at Pg. ID#: 718.)
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“not meet the cause prong of the cause and prejudice test with respect to the claims he raises in
the instant petition.” (Id.) The appellate court summarily affirmed, and the Illinois Supreme
Court summarily denied Petitioner’s PLA. (St. Ct. R., Ex. K at Pg. ID#: 453–56; St. Ct. R.,
Ex. N at Pg. ID#: 556.) Accordingly, the state court’s ruling rests on an adequate and
independent state law ground such that Petitioner’s claim is procedurally defaulted. 4
Thomas v. Pfister, 7 C 6643, 2014 WL 2777262, at *7 (N.D. Ill. June 17, 2014) (finding denial
of a successive post-conviction petition for failure to show cause pursuant to 725 ILCS 5/122–(f)
is “an independent and adequate state law” ground such that the “claim is likewise procedurally
defaulted on federal habeas review”); see also Watson v. Pfister, No. 13 C 2276,
2015 WL 1186795, at *5 (N.D. Ill. March 11, 2015) (collecting cases) (“Several courts in this
District have denied habeas petitions as procedurally barred when the state courts relied on
§ 5–122–1(f) to deny the successive post-conviction petition.”).
C. Withholding Exculpatory Evidence (Claim 4)
Petitioner contends that the State violated his Fourteenth Amendment due process rights,
as set forth in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), by knowingly withholding
exculpatory evidence. (Dkt. No. 5 at Pg. ID# 16–17.) Petitioner argues that the prosecution
withheld evidence that blood found on Officer Rodriguez’s shirt cuff was in fact Petitioner’s and
helped refute evidence that bit Officer Rodriguez. (Id.) Petitioner further argues that the

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The court also found, in the alternative, that Petitioner’s successive post-conviction petition
lacked merit and did not establish prejudice. (Post-conviction Pet. at Pg. ID#: 1526–28.)
However, “if the state’s decision rests on both a procedural default and a lack of merit, then
federal review is closed.” Rivas v. Sternes, No. 3 C 2164, 2004 WL 407003, at *3
(N.D. Ill. Feb. 24, 2004) (citing Brooks v. Walls, 279 F.3d 518, 521 (7th Cir. 2002)); see also
Harris, 489 U.S. at 265 n.10, 109 S. Ct. at 1044 (“Moreover, a state court need not fear reaching
the merits of a federal claim in an alternative holding. By its very definition, the adequate and
independent state ground doctrine requires the federal court to honor a state holding that is a
sufficient basis for the state court’s judgment.” (emphasis in original)).
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prosecution withheld evidence from police cameras placed at the intersection where he was
arrested and at the police station. (Dkt. No. 13 at Pg. ID#: 60–61.)
Respondent argues this Brady claim is procedurally defaulted insofar as it concerns the
blood found on Officer Rodriguez’s shirt cuff, as Plaintiff did not raise that claim in the state
courts. (Resp. at 19–20.) Petitioner’s initial post-conviction petition stated a Brady claim, but
that claim concerned only the allegedly suppressed video camera evidence. (Post-conviction Pet.
at Pg. ID#: 1406.) Neither Petitioner’s direct appeal nor his successive post-conviction petition
stated a Brady claim.5 (Pet’r Direct Appeal Br. at Pg. ID#: 173; Successive Post-conviction
Pet. at Pg. ID#: 1470–1479.) “Under Illinois law, ‘[a]ny claim of substantial denial of
constitutional rights not raised in the original or amended [post-conviction] petition is waived.’”
Woods v. Schwartz, 589 F.3d 368, 376 (7th Cir. 2009) (first alteration in original)
(quoting 725 ILCS 5/122–3). Petitioner’s Brady claim concerning the blood on Officer
Rodriguez’s shirt cuff is therefore procedurally defaulted, as it is clear the Illinois courts “would
now hold the claim procedurally barred.” Perruquet, 390 F.3d at 514.
D. Improper Closing Argument (Claim 5)
Petitioner also argues his “due process right to a fair trial” under the Fourteenth
Amendment was violated “when the prosecutor contended that an acquittal would empower
petitioner to commit future offenses, and relied on a medical inference unsupported by any trial
evidence.” (Dkt. No. 5 at Pg. ID#: 17.) Respondent argues this claim is procedurally defaulted,

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Petitioner’s PLA concerning the denial of his successive post-conviction motion argued the
State violated Brady by failing to conduct any tests on the blood on Officer Rodriguez’s sleeve,
and “[s]ince it was not Rodriguez’s blood, it should have been disclosed to the defense.” (Ex. N
at Pg. ID#: 545.) However, “raising a claim for the first time in a PLA does not constitute proper
exhaustion.” Payton v. Pfister, No. 11 C 6610, 2015 WL 5829749, at *15 n.6
(N.D. Ill. Oct. 1, 2015) (citing Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056, 1060
(1989)).
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because it “was deemed forfeited on direct appeal, where the state appellate court held that
petitioner forfeited the claim by failing to adequately preserve it for review in his post-trial
motion.” (Resp. at 21.)
On direct appeal, the Illinois Appellate Court observed that Petitioner objected at trial to
the prosecutor’s closing statements implying that Petitioner might commit future crimes if
acquitted, and again objected to the closing statements in a post-trial motion. Leslie,
2013 IL App (1st) 111798–U, ¶ 69. The court found, however, that Petitioner’s objections were
too broad, using only “boilerplate language” that was “too general and not sufficiently specific to
preserve an alleged error for review.” Id. The court therefore held that Petitioner had waived his
argument that the prosecutor’s closing statements were improper and violated his due process
rights.6 Id. Petitioner’s claim is therefore procedurally defaulted insofar as it concerns the
prosecution’s statements implying Petitioner might commit future crimes if acquitted, as the state
court’s ruling rests on adequate and independent state grounds. Perruquet, 390 F.3d at 514.
Petitioner’s claim that the prosecution’s closing argument was improper because it
“relied on a medical inference unsupported by any trial evidence” is also procedurally defaulted.
(Dkt. No. 5 at Pg. ID#: 17.) At trial, Petitioner testified that Officer Rodriguez had choked him
at the police state for 30 to 40 seconds, and Petitioner bit him because he could not breathe.
Leslie, 2013 IL App (1st) 111798–U, ¶ 18. In closing, the prosecutor challenged Petitioner’s
testimony, stating that “defendant would have passed out in 10 seconds if Officer Rodriguez had
actually choked him.” Id. ¶ 71. Petitioner waived his claim by failing to object to the
prosecutor’s statement at trial, and so the appellate court reviewed the issue under the plain error

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The court held, in the alternative, that Petitioner’s claim lacked merit. However, the state
court’s decision on procedural grounds precludes our review. See Harris, 489 U.S. at 265 n.10,
109 S. Ct. at 1044.
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doctrine. Id. “[A]n Illinois court does not reach the merits of a claim simply by reviewing it for
clear error.” Miranda v. Leibach, 394 F.3d 984, 992 (7th Cir. 2005). While the appellate court’s
determination of whether the prosecutor’s statement was plain error required some consideration
of the merits, “that limited review is at most entangled with the merits and not entirely dependent
on the merits.” Rodriguez v. McAdory, 318 F.3d 733, 736 (7th Cir. 2003) (internal quotation
marks and citation omitted). The state appellate court’s decision thus rested on an independent
and adequate state ground, and Petitioner’s claim is procedurally defaulted. See
Sturgeon v. Chandler, 552 F.3d 604, 611 (7th Cir. 2009) (“A finding of waiver by the state
post-conviction court is enough to establish an adequate and independent state ground.” (citation
omitted)).
E. Ineffective Assistance of Counsel (Claim 6)
Petitioner contends that trial counsel was ineffective for failing to object to the
introduction of false evidence and for failing in several instances to adequately impeach or
otherwise question witnesses at trial. (Dkt. No. 5 at Pg. ID#: 17–18.) Petitioner raised an
ineffective assistance of counsel claim on direct appeal, but that claim concerned only trial
counsel’s failure to request jury instructions on less-included offenses. (Direct Appeal Br.
at Pg. ID#: 173.) Petitioner also argued in his successive post-conviction petition that appellate
counsel was ineffective for failing on direct appeal to raise ineffective assistance of trial counsel
based on counsel’s failure to object to the introduction of false evidence and for failing to
adequately impeach or otherwise question witnesses at trial. (Successive Post-conviction Pet.
at Pg. ID#: 1470–1479.)
First, the ineffective assistance of counsel claim Petitioner raised on direct appeal is
sufficiently different than his current claim, such that his exhaustion of his claims on direct

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appeal does not mean that the state courts had a meaningful opportunity to review his current
ineffective assistance of counsel claim. “Fair presentment . . . does not require a hypertechnical
congruence between the claims made in the federal and state courts; it merely requires that the
factual and legal substance remain the same.” Anderson v. Benik, 471 F.3d 811, 814–15
(7th Cir. 2006) (citation omitted). However, “a petitioner’s reformulation of his claim should not
place the claim in a significantly different legal posture by making the claim stronger or more
substantial.” Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001). Petitioner’s current ineffective
assistance of counsel claim is based on wholly different facts and a different legal theory than the
claim he raised on direct appeal. Petitioner therefore did not give the state courts a meaningful
opportunity to review his present ineffective assistance of counsel claim on direct review.
Johnson v. Hulett, 574 F.3d 428, 432 (7th Cir.2009) (“[Petitioner] cannot argue one theory to the
state courts and another theory, based on different facts, to the federal court.” (citation omitted)).
Second, Petitioner failed to fairly present his current ineffective assistance of counsel
claim in his post-conviction proceedings. Petitioner’s successive post-conviction petition
included an argument appellate counsel was ineffective for failing on direct appeal to raise
ineffective assistance of trial counsel based on counsel’s failure to object to the introduction of
false evidence and for failing to adequately impeach or otherwise question witnesses at trial.
(Successive Post-conviction Pet. at Pg. ID#: 1470–1479.) As discussed above, the state court
denied Petitioner’s successive petition for post-conviction relief on procedural grounds, and so
the claims raised in the petition,, including his ineffective assistance of counsel claim, are
procedurally defaulted. Lee, 750 F.3d at 693.

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II.

MERITS
When reviewing a habeas petition, we are “limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire,
502 U.S. 62, 68, 112 S. Ct. 475, 480 (1991). Our review is “circumscribed by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”),” 28 U.S.C. § 2254. Atkins v. Zenk,
667 F.3d 939, 943 (7th Cir. 2012). Under AEDPA, we may grant an application for a writ of
habeas corpus only if the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 363, 404–405, 120 S. Ct. 1495, 1519
(2000); Morgan v. Hardy, 662 F.3d 790, 797 (7th Cir. 2011). We presume the State
courts’ factual determinations to be correct, and Petitioner bears “the burden of rebutting
the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e).
“A decision is contrary to clearly established federal law if it either applies a rule
that contradicts a prior Supreme Court case, or if it reaches a different result than the
Supreme Court has reached on a materially indistinguishable set of facts.” Hall v. Zenk,
692 F.3d 793, 798 (7th Cir. 2012). A state court’s decision is an “unreasonable
application” of clearly established federal law if it “identifies the governing legal rule but
applies it unreasonably to the facts of a particular prisoner’s case.” Williams,
529 U.S. at 408–09, 120 S. Ct. at 1520. A state court’s decision may also be an
“unreasonable application” of clearly established federal law if it “unreasonably extended
a rule to a context where it should not have applied or unreasonable refused to extend a

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rule to a context where it should have applied.” Morgan, 662 F.3d at 797. A decision is
not an “unreasonable application” of clearly established federal law merely because it is
“incorrect from the point of view of the federal court.” Hardaway v. Young,
302 F.3d 757, 762 (7th Cir. 2002) (citing Williams, 529 U.S. at 407–08,
120 S. Ct. at 1521). Rather, an unreasonable decision lies “well outside the boundaries of
permissible differences of opinion.” Id. (citing Williams, 529 U.S. at 411,
120 S. Ct. at 1522).
A. Perjured Testimony (Claim 1)
As discussed above, Petitioner argues the State knowingly relied on the perjured trial
testimony of Officers Lascola, Rodriguez, Willis, and Proano to secure his conviction, in
violation of his Fourteenth Amendment due process rights. (Dkt. No. 5 at 2.) “[A] conviction
obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside
if there is any reasonable likelihood that the false testimony could have affected the judgment of
the jury.” United States v. Bagley, 473 U.S. 667, 678–79, 105 S. Ct. 3375, 3381–82 (1985)
(internal quotation marks and citation omitted); Napue v. Illinois, 360 U.S. 264, 269,
79 S. Ct. 1173, 1177 (1959) (“[I]t is established that a conviction obtained through use of false
evidence, known to be such by representatives of the State, must fall under the Fourteenth
Amendment.” (citation omitted)). A new trial is required if Petitioner established: “(1) the
prosecution presented false testimony or failed to disclose that false testimony was used to
convict, (2) the prosecution knew or should have known that the testimony was flase, and (3)
there is a reasonable likelihood that the testimony could have affected the judgment of the jury.”
Griffin v. Pierce, 622 F.3d 831, 842 (7th Cir. 2010) (citing United States v. Agurs,
427 U.S. 97, 103, 96 S. Ct. 2392, 2397 (1976)).

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The state court found that Petitioner failed to produce any support for his claim that the
officers gave perjured testimony, which it dismissed as “nothing more than a bald conclusion.”
(Post-conviction Pet. at Pg. ID#: 1434.) While Petitioner’s present petition contains more factual
allegations than his initial post-conviction petition, he supports those additional allegations
primarily with references to arrest reports and IPRA reports that he failed to present to the state
court that dismissed his post-conviction petition. (Dkt. No. 5 at 2–4.) Our review is “limited to
the record that was before the state court that adjudicated the claim on the merits,” and we
decline to consider any documents that were not before the state court. Cullen v. Pinholster,
563 U.S. 170, 182, 131 S. Ct. 1388, 1398 (2011) (interpreting 28 U.S.C. § 2254(d)(1));
28 U.S.C. § 2254(d)(2) (restricting habeas review to “the evidence presented in the State court
proceeding”).
In light of the record, the state court’s decision was reasonable. Petitioner cites excerpts
of the trial transcript, none of which substantiate his claim that the State knowingly relied on
false testimony. For example, he compares the prosecutor’s opening statement that Petitioner
“kick[ed] Officer Fernando Rodriguez in the face repeatedly,” with Officer Rodriguez’s
testimony that Petitioner “kick[ed] at me when I was trying to close the door” to the squad car.
(Post-conviction Pet. at Pg. ID#: 1414, 1417–18.) Petitioner further compares an officers’
testimony at a motion to suppress evidence hearing that they needed to remove his shoelaces
“prior to taking [him] into lockup,” with another portion of the State’s opening statement, in
which the prosecutor states Petitioner bit Officer Rodriguez while in a holding cell. (Id. at
Pg. ID#: 1414, 1421.) “[O]pening statements themselves are not evidence,” and thus Petitioner’s
comparison of Officer Rodriguez’s testimony to the State’s opening statements—setting aside
whether the comparison even reveals inconsistencies in the first place—provides no support for

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his contention that the State knowingly relied on perjured testimony from Officer Rodriguez.
Testa v. Village of Mundelein, 89 F.3d 443, 446 (7th Cir. 1996). Petitioner also claims that
Officer Lascola originally testified at trial that Petitioner stated he was not in pain and then later
testified that Petitioner did in fact complain of back pain, but his citation to the trial transcript
does not support his assertion. (Id. at Pg. ID#: 1425–27.) We agree with the state courts that
Petitioner failed to provide any support for his claim that any of the officers’ trial testimony was
false. We therefore find that the state court’s decision was reasonable and not contrary to clearly
established Federal law, and deny Petitioner’s habeas petition on his knowing use of false
testimony claim.
B. Confrontation Right (Claim 2)
Petitioner contends his Sixth Amendment right to confront the witnesses against him was
violated when the trial court restricted his cross-examination of Officers Proano and Rodriguez
about the civil action Petitioner brought against them. (Dkt. No. 5 at 4–5.) At trial, Petitioner
sought to cross-examine both the officers regarding a civil lawsuit he had filed against them for
injuries he alleged he sustained during his arrest. Leslie, 2013 IL App
(1st) 111798–U, ¶¶ 44–45. The trial court prohibited Petitioner entirely from cross-examining
Officer Rodriguez about the lawsuit, but permitted limited cross-examination of Officer Proano
on the subject because he testified about the lawsuit on direct examination. Id. The
Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right “to be
confronted with the witnesses against him.” U.S. Const. amend. VI. This includes the right to
cross-examine witnesses for the purpose of demonstrating bias or motive to testify falsely.
Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974). A “criminal defendant states a
violation of the Confrontation Clause by showing that he was prohibited from engaging in

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otherwise appropriate cross-examination designed to show a prototypical form of bias on the part
of the witness.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 1436 (1986)
(citing Davis, 415 U.S. at 318, 94 S. Ct. at 1111). However, “the Confrontation Clause
guarantees an opportunity for effective cross-examination, not cross-examination that is effective
in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer,
474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985) (emphasis in original). Indeed, “trial judges retain
wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on
such cross-examination.” Van Arnsdall, 475 U.S. at 679, 106 S. Ct. at 1435. Judges may limit
cross-examination, for example, “for which there is no proper foundation . . . or into matters that
are unduly speculative.” Searcy v. Jaimet, 332 F.3d 1081, 1090 (7th Cir. 2003).
At trial, the court sustained the State’s objection when defense counsel questioned
Officer Rodriguez about whether he was currently being sued. Leslie, 2013 IL App
(1st) 111798–U, ¶ 44. The trial court found that “it would be unfair for defendant to sue [the
officers] in civil court and then suggest that the civil lawsuit gave them a motive to lie in the
criminal case.” Id. Officer Proano testified on direct examination that Petitioner, after being
arrested, said that he would sue the officers. Id. ¶ 45. Petitioner was then allowed on
cross-examination to “elicit Officer Proano’s testimony that [Petitioner] was suing him about
what happened on the evening of [Petitioner’s] arrest.” Id. Officer Proano further testified that
Petitioner was suing him and Officer Rodriguez for a “payday.” Id. On re-cross, Officer Proano
“testified that he received the lawsuit a couple weeks ago, he did not know any details because
he had not spoken to anyone about it, and the question of any injuries sustained by [Petitioner]
during the incident was pending further investigation.” Id. When the defense counsel asked
Proano on re-cross if Petitioner was seeking money damages as a result of an injury he suffered

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while in the Officers’ custody, the trial court sustained the State’s objection, finding that the
question was repetitive and had already been answered. Id. ¶ 46.
Affirming the trial court’s limitation of Petitioner’s cross-examination, the appellate court
first held that “the trial court properly sustained the State’s objection to defense counsel’s
question of Officer Proano because it was repetitive and he had already answered that he did not
know any details concerning the damages or injuries alleged in defendant's lawsuit.” Leslie,
2013 IL App (1st) 111798-U, ¶ 46. The appellate court further affirmed the trial court’s refusal
to allow Petitioner to question Officer Rodriguez regarding the lawsuit on cross-examination,
holding that a reasonable person could “adopt the trial court’s view that the evidence of any bias
from defendant’s lawsuit was too remote or uncertain and did not give rise to an inference that
the officers had something to gain or lose by their testimony.” Id. ¶ 49. In support, the appellate
court observed that the “trial testimony of Officers Rodriguez and Proano concerning
defendant’s conduct was generally consistent with their documentation of his conduct in the
police reports or statements to a supervisor,” which were made prior to Petitioner being charged
or filing a civil lawsuit against the officers. Id. The court further observed that “there was no
evidence of any prior history between the arresting officers and [Petitioner], . . . Officer Proano
testified that he was served with [Petitioner’s] lawsuit only a couple weeks prior to his trial
testimony, . . . [and] the precluded cross-examination did not involve an IPRA investigation.”
Id. The appellate court therefore held that Petitioner’s Sixth Amendment right to confront the
witnesses against him was not violated by the trial court’s limitation of his cross-examination.
The appellate court’s decision that Petitioner’s confrontation clause rights were not
violated with respect to the limitation of his cross-examination of Officer Proano at trial was not
contrary to or an unreasonable application of federal law. The trial judge allowed Petitioner to

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cross-examine Officer Proano regarding the nature of the lawsuit, the fact that Petitioner sought
money damages in that lawsuit, and the fact that Petitioner’s lawsuit was based on his alleged
injuries from the police officers. (Trial Tr. (Dkt. No. 19–7) at Pg. ID#: 937–38.) Petitioner was
therefore afforded a reasonable opportunity to explore Officer Proano’s potential motivation or
bias for testifying, as required by the Sixth Amendment. Van Arsdall, 475 U.S. at 678–79,
106 S. Ct. at 1435.
We find, however, that the appellate court unreasonably applied Federal law in affirming
the trial court’s limitation of Petitioner’s cross-examination of Officer Rodriguez. Unlike the
cross-examination of Officer Proano, Petitioner was completely prohibited from questioning
Officer Rodriguez about the pending civil lawsuit. (Trial Tr. (Dkt. No. 16–6)
at Pg. ID#: 760, 772–73.) The trial court found it unfair for Petitioner to “sue somebody and
then say they have a motive because you sued them.” (Id. at Pg. ID#: 772.) While trial courts
are allowed wide latitude in limiting cross-examination “to take account of such factors as
‘harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that [would
be] repetitive or only marginally relevant,” none of those factors were relied upon in restricting
Petitioner’s cross-examination. Olden v. Kentucky, 488 U.S. 227, 232, 109 S. Ct. 480, 483
(1988) (quoting Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435). That Officer Rodriguez’s
testimony was generally consistent with what he had stated in reports prepared before Petitioner
filed his civil suit or that Petitioner’s cross-examination did not concern IPRA reports does not
justify the total restriction imposed by the trial court. Cross-examination regarding a witness’s
involvement in pending litigation with the party against whom she is testifying, however,
appears to be precisely the kind of examination “designed to show a prototypical form of bias on
the part of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could

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appropriately draw inferences relating to the reliability of the witness. Van Arsdall,
475 U.S. at 680, 106 S. Ct. at 1436 (quoting Davis. 415 U.S. at 318, 94 S. Ct. at 1111). We find
the Illinois Appellate Court unreasonably applied Federal law in affirming the trial court’s total
prohibition, in violation of Petitioner’s Sixth Amendment rights, of inquiry into the possibility
that Officer Rodriguez would be biased given the Petitioner’s pending civil lawsuit against him.
Id. at 680, 106 S. Ct. at 1435.
While Petitioner’s Sixth Amendment confrontation rights were violated by the total
restriction of his cross-examination of Officer Rodriguez concerning Petitioner’s pending
lawsuit, we find that constitutional error was harmless. Id. at 681, 106 S. Ct. at 1436. The state
appellate court held, in the alternative, that any error committed by the trial court’s limitation of
Petitioner’s cross-examination was harmless under Chapman v. California, 386 U.S. 18,
87 S. Ct. 824 (1967). Leslie, 2013 IL App (1st) 111798-U, ¶¶ 50–54. As the Illinois Appellate
Court observed, factors important to determining whether an error is harmless include: “(1) the
importance of the witness’s testimony in the prosecution's case, (2) whether the testimony was
cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony
of the witness on material points, (4) the extent of cross-examination otherwise permitted,
and (5) the overall strength of the prosecution’s case.” Id. ¶ 50 (citing Van Arsdall,
475 U.S. at 684, 106 S. Ct. at 1483). However, on habeas review, we must determine whether
the appellate court’s “harmlessness decision itself was unreasonable.” Ayala, 135 S. Ct. at 2199
(emphasis in original). Petitioner thus must establish that the constitutional error here resulted in
“actual prejudice.” Id. at 2197 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637,
113 S. Ct. 1710, 1722 (1993)). “Under this test, relief is proper only if the federal court has
‘grave doubt about whether a trial error of federal law had a substantial and injurious effect or

23

influence in determining the jury’s verdict.” Id. at 2197–98 (quoting O’Neal v. McAninch,
513 U.S. 432, 436, 115 S. Ct. 992, 994–95 (1995)).
As the appellate court observed, Petitioner was able to present the jury with evidence of
Officer Rodriguez’s potential bias stemming from Petitioner’s civil lawsuit during the
cross-examination of Officer Proano. Leslie, 2013 IL App (1st) 111798-U, ¶¶ 52. Officer
Proano testified that he and his “partner” were defendants in Petitioner’s lawsuit. (Trial Tr.
(Dkt. No. 19–7) at Pg. ID#: 936.) Proano’s testimony also made clear to the jury that Officer
Rodriguez was his partner. (Trial Tr. (Dkt. No. 19–7) at Pg. ID#: 849, 852, 910.) Thus, because
Petitioner was able to cross-examine Officer Proano regarding the lawsuit filed against Officer
Proano and his “partner,” fair-minded jurists could disagree as to whether “the jury was made
aware of [Petitioner’s] recent lawsuit against [Officer Rodriguez] . . . for monetary damages
arising from [Petitioner’s] arrest in the instant case.” Leslie, 2013 IL App (1st) 111798-U, ¶¶ 52;
Ayala, 135 S. Ct. at 2199 (“And a state-court decision is not unreasonable if fairminded jurists
could disagree on its correctness.” (internal quotation marks and citation omitted)). Accordingly,
we have no “grave doubt” that the trial court’s error had a substantial influence on the jury’s
verdict, and find the appellate court reasonably held the error was harmless. Ayala,
135 S. Ct. at 2197. We therefore deny Petitioner’s habeas petition on his confrontation clause
claim.
C. Withholding Exculpatory Evidence (Claim 4)
Petitioner argues that the State withheld evidence from a police camera placed at the
intersection where he was arrested and from the cameras at the police station, all in violation of
his Fourteenth Amendment due process rights, as set forth in Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194 (1963) (Dkt. No. 13 at Pg. ID#: 60–61.) “To establish a Brady violation, a

24

criminal defendant must demonstrate that (1) the prosecution suppressed evidence, (2) the
evidence was favorable to the defense, and (3) the evidence was material to an issue at trial.”
Badelle v. Correll, 452 F.3d 648, 655 (7th Cir. 2006). Evidence is material if “there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have bene different.” Kyles v. Whitley, 514 U.S. 419, 433–34,
115 S. Ct. 1555, 1565 (1995). “A ‘reasonable probability’ of a different result is accordingly
shown when the government’s evidentiary suppression ‘undermines confidence in the outcome
of the trial.’” Id. at 435, 115 S. Ct. at 1566 (quoting United States v. Bagley, 473 U.S. 667, 678,
105 S. Ct. 3375, 3381 (1985)).
Petitioner raised his Brady in his initial petition for post-conviction relief. (Postconviction Pet. at Pg. ID#: 1406.) The trial court first found that Petitioner failed to provide any
evidence that “the State withheld the blue light camera footage,” citing the officers’
uncontroverted trial testimony that “the blue light camera did not capture petitioner’s altercation
with the officers and that the camera’s at the 6th District station were not working.”
(Id. at Pg. ID#: 1435.) On appeal, Petitioner argued that the State violated Brady by failing to
support the officers’ trial testimony regarding the unavailability of video evidence with any
affidavits. (Direct Appeal Order at Pg. ID#: 359–60.) The appellate court summarily affirmed
the trial court’s dismissal of Petitioner’s Brady claim. (Id. at Pg. ID#: 359–60.)
“Evidence is suppressed for Brady purposes only if (1) the prosecution failed to disclose
evidence that it or law enforcement was aware of before it was too late for the defendant to make
use of the evidence, and (2) the evidence was not otherwise available to the defendant through
the exercise of reasonable diligence.” Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001). A
prosecutor also has “a duty to learn of any favorable evidence known to others acting on the

25

government’s behalf in the case, including the police.” Kyles, 514 U.S. at 437,
115 S. Ct. at 1567. Petitioner has failed to provide any evidence that the State knew of video
evidence from any camera that it did not disclose. As he did on appeal, Petitioner points to the
officers’ trial testimony to show that the state suppressed exculpatory evidence. However,
Officer Rodriguez testified at trial that he did not investigate whether there was video evidence
of the events leading up to Petitioner’s arrest, as that is normally done by detectives, and that he
believed the video cameras in the police station were not working when Petitioner was arrested.
(Trial Tr. (Dkt. No. 19–6) at Pg. ID#: 759, 765–67.) Officer Proano testified that he did not
know if the camera’s in the police station were working when Plaintiff was arrested. (Id. at
Pg. ID#: 862.) Officer Willis testified that the cameras in the police station were not working
when Petitioner was arrested. (Id. at Pg. ID#: 794.) We agree with the state courts that this
evidence is insufficient to show the State suppressed any exculpatory evidence. We therefore
find that the state court’s decision was reasonable and not contrary to clearly established Federal
law, and deny Petitioner’s habeas petition on his Brady claim.
III.

Certificate of Appealability
In the event that Petitioner intends to appeal his decision, we decline to issue a certificate

of appealability (“COA”). Pursuant to 28 U.S.C. § 2253(c)(1), a certificate of appealability
(“COA”) is required for an appeal from a final order in a habeas corpus proceeding under
28 U.S.C. § 2254. We may grant a COA “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Walker v. O’Brien,
216 F.3d 626, 631–32 (7th Cir. 2000). To show that his constitutional rights have been denied,
“[t]he petitioner must demonstrate that reasonable jurists would find the district court’s
assessments of the constitutional claims debatable or wrong,” or that “the issue presented were

26

‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484,
120 S. Ct. 1595, 1603–04 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893,
103 S. Ct. 3383, 3395 (1983)). For claims dismissed on procedural grounds, a district court
should issue a COA only “when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Slack, 529 U.S. at 484, 120 S. Ct. at 1604.
Here, reasonable jurists could not debate our conclusion with respect to Petitioner’s
claims premised on the State’s alleged use of false evidence and improper closing argument,
ineffective assistance of counsel, and, in part, Brady, which we have dismissed due to procedural
default. Petitioner did not properly present these claims to the state court, and we have no basis
to excuse his default. To reach the merits of these defaulted claims would undermine the
procedural protection in place for ensuring a federal court’s deference to state court proceedings.
Murray v. Carrier, 477 U.S. 478, 489, 106 S. Ct. 2639, 2646 (1986).
Additionally, no reasonable jurist could disagree with our analysis on the merits of
Petitioner’s claims. As discussed above, Petitioner failed to provide any evidence in support of
his claims that the State relied on knowingly false testimony to secure his conviction, or that the
State suppressed any exculpatory evidence. Moreover, while the trial court unreasonably applied
Federal law when it restricted Petitioner’s cross-examination of Officer Rodriguez, the state
appellate court reasonable found that error to be harmless. Accordingly, Petitioner has not made
a substantial showing of the denial of a constitutional right, as necessary for us to issue a COA.
Slack, 529 U.S. at 484, 120 S. Ct. at 1604.

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CONCLUSION
For the reasons state above, we deny Petitioner’s habeas petition. We also decline to
issue a certificate of appealability. It is so ordered.

____________________________________
Marvin E. Aspen
United States District Judge
Dated: May 22, 2017
Chicago, Illinois

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