Santos v. Williams

Filing 195

MEMORANDUM OPINION and ORDER: Presently before us are Santos' objections to Magistrate Judge Finnegan's Report and Recommendation. (Objections (Dkt. No. 186 ).) Magistrate Judge Finnegan recommends that Santos' request for a writ of habeas corpus be denied. (Report and Recommendation ("R&R") (Dkt. No. 184 ).) For the reasons set forth below, we overrule Santos' objections, adopt the R&R, and deny Santos' habeas petition. Signed by the Honorable Marvin E. Aspen on 1/5/2021. Mailed notice (ags)

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UNITED STATES DISTRCT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CARLOS SANTOS,
Petitioner,
v.
CHRISTINE BRANNON, 1

Respondent.

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Case No. 15 C 5325
Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Presently before us are Santos’ objections to Magistrate Judge Finnegan’s Report and
Recommendation. (Objections (Dkt. No. 186).) Magistrate Judge Finnegan recommends that
Santos’ request for a writ of habeas corpus be denied. (Report and Recommendation (“R&R”)
(Dkt. No. 184).) For the reasons set forth below, we overrule Santos’ objections, adopt the R&R,
and deny Santos’ habeas petition.
BACKGROUND
Santos’ conviction stems from a May 2002 attempt to collect a drug debt valued at
around $75,000 that resulted in a shootout and death of Jeffrey Smith. We assume familiarity
with the relevant facts as detailed in our December 2, 2016 Order and our May 5, 2017 Order,
and do not fully recount them here. Santos v. Williams, No. 15 C 5325, 2017 WL 2189102, at *1

1

Under Fed. R. Civ. P. 25(d), a public officer’s successor is automatically substituted as a party.
We hereby substitute the named respondent in this case from Randy Pfister to Cristine Brannon,
the current warden of Hill Correctional Center. See id.

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(N.D. Ill. May 18, 2017); Santos v. Williams, No. 15 C 5325, 2016 WL 7077104, at *1 (N.D. Ill.
Dec. 2, 2016).
Santos filed his § 2254 petition on June 16, 2015, challenging his felony first degree
murder and discharge of a firearm convictions in Illinois state court. He asserted two claims.
First, that the State violated his Fifth, Sixth, and Fourteenth Amendment rights when the trial
judge communicated ex parte with the deliberating jury, provided them a dictionary, and failed
to ascertain what the jury used it for after it was removed. Second, that the State violated his
right to due process by failing to disclose material evidence in violation of Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194 (1963). We denied Santos’ second claim, but determined that he
was entitled to an evidentiary hearing on his first claim to determine whether and to what extent
the ex parte communication and jury use of the dictionary prejudiced him. See Santos I, 2016
WL 7077104, at *10; see also Santos II, 2017 WL 2189102, at *1, *8. We appointed counsel to
represent Santos at the hearing and referred the matter to Magistrate Judge Finnegan to conduct
the evidentiary hearing and file a report and recommendation.
A.

Evidentiary Hearings

At the evidentiary hearings, eleven former jurors testified (the twelfth had since died) and
thereafter both parties filed briefs in support of their respective positions. (See Dkt. Nos. 145,
154, 162.) Juror David Majer testified that two or three jurors looked up a single word using the
dictionary, for no more than two or three minutes. (R&R at 16-22, 38.) He testified that the word
they looked up was “collaboration,” “conspiracy,” or “collusion.” (Id.) A second juror, Erica
Cuneen, testified that the jury requested a dictionary, but that she had only a “slight memory” of
the event and that she did not recall how, if at all, the dictionary was used. (Id. at 16.) The other
jurors had no memory of the dictionary usage. (Id.)

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B.

The Underlying Trial

As the Magistrate Judge observed, the jury was instructed that, to find Santos guilty of
first degree murder, it had to find beyond a reasonable doubt that he (or one for whose conduct
he was legally responsible) not only caused the death of the decedent but did so when attempting
to commit the offense of residential burglary, aggravated kidnapping, or aggravated unlawful
restraint. The jury was instructed that a “person is legally responsible for the conduct of another
person when, either before or during the commission of an offense and with the intent to promote
or facilitate the commission of an offense, he knowingly solicits, aids, abets, agrees to aid or
attempts to aid the other person in the planning or commission of an offense.” (Id. at 172.) The
jury was further instructed that an “attempt” occurs when “with the intent to commit the offense
of residential burglary, aggravated kidnapping or aggravated unlawful restraint,” a person “does
any act which constitutes a substantial step toward the commission of” those offenses. (Id. at
174). The jury received separate instructions for each of those offenses.
The jury deliberated for over four hours over two days and then signed a unanimous
verdict finding Santos guilty of first-degree murder and having been armed with a firearm and
personally discharged it during the commission of that offense. (Trial Transcript (Dkt. No. 18-27
at 196).)
About an hour and a half into the jury’s deliberations, the trial judge summoned counsel
for both sides to the courthouse and informed them that the jury requested a dictionary and that
one had been given to the jury, and that the jury requested a new set of verdict forms. (Affidavit
of Defense Counsel (Dkt. No. 18-31) at 239-40.) The jury retained possession of the dictionary
for about one-and-a-half additional hours until it completed deliberation for the day. (Id. at 240.)
At Santos’ request, the dictionary was not returned to the jury room the next day. (Id.) The

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spoiled verdict forms were preserved and reflect that four jurors had not signed any form and
another juror had signed both guilty and not guilty forms on the first-degree murder charges. (See
Dkt. Nos. 18-31 at 184-85, 194.)
LEGAL STANDARD
We review Magistrate Judge Finnegan’s R&R de novo. Fed. R. Civ. P. 72(b)(3). In
doing so, we may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the Magistrate Judge with instructions. See id. Arguments not
made before a Magistrate Judge are waived, and “district courts should not consider arguments
not raised initially before the Magistrate Judge, even though their review in cases . . . is de
novo.” United States v. Melgar, 227 F.3d 1038, 1040 (7th Cir. 2000).
It “is well established that a habeas petitioner must prove prejudice in order to have his
petition granted.” Hall v. Zenk, 692 F.3d 793, 805-06 (7th Cir. 2012). “More specifically, he
must show that the constitutional error had a ‘substantial and injurious effect’ on the outcome of
his case.” Id. at 805; see also Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
ANALYSIS
Santos’ objects to the R&R on the bases that it wrongly found no prejudice stemming
from (1) burden shifting, (2) the jury’s use of a dictionary during deliberations, (3) the state trial
judge’s ex parte communications with the jury about the dictionary, among other errors. Our
holding mirrors the Magistrate Judge’s thorough reasoning as set forth in her R&R. The
Magistrate Judge’s R&R recounted the evidence produced at Santos’ trial, scrutinized the state
court record, analyzed testimony at the evidentiary hearing conducted before the Magistrate

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Judge. She then addressed each of petitioner’s arguments from his post-hearing brief. 2 (See
generally R&R.) In short, she concluded that Santos did not suffer any prejudice as a result of
the conduct underlying his objections.
I.

Burden Shifting

Santos first asks that we overrule the Magistrate Judge’s R&R’s holding that he has the
burden of establishing prejudice. As the Magistrate Judge correctly stated, a habeas petitioner
bears the bears the burden of proving prejudice. See, e.g., Brecht v. Abrahamson, 507 U.S. 619,
623 (1993); Hall v. Zenk, 692 F.3d 793, 798 (7th Cir. 2012); Santos I, 2017 WL 2189102, at *8.
Therefore, Santos’ objection that the R&R applied the wrong burden is overruled.
II.

Dictionary

Santos next advances multiple objections relating to the dictionary. We address them in
turn.
A.

State v. Aguilar, 22 Ariz. 299, 301-02 (Ariz. Ct. App. 2010)

Santos objects to the R&R in part because he claims that it misapplied a six-factor test
that an Arizona state appellate court used. State v. Aguilar, 22 Ariz. 299, 301-02 (Ariz. Ct. App.
2010). Arizona’s court provided a helpful recitation of commonsense considerations when
evaluating prejudice flowing from a jury’s use of a dictionary. These are: (1) the importance of
the word being defined to the resolution of the case; (2) the difference between the dictionary
and legal definitions; (3) how the material was received by the jury, (4) the length of time it was
available to the jury; (5) the extent to which the jury discussed and considered it; and (6) the
timing of its introduction. Id.

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Santos does not advance an objection that the Magistrate Judge’s R&R failed to consider one of
his contentions.
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Neither we nor Illinois’ trial courts are bound to follow an Arizona state court’s holding.
Nonetheless, Aguilar is distinguishable from Santos’ situation. Circuits throughout the country
have found no prejudicial impact in cases like Santos’ that involve a jury that uses a dictionary to
define non-essential terms. See, e.g., United States v. Aguirre, 108 F.3d 1284, 1289 (10th Cir.
1997); United States v. Williams-Davis, 90 F.3d 490, 502-03 (D.C. Cir. 1996); United States v.
Steele, 785 F.2d 743, 745-47 (9th Cir. 1986). Santos’ situation aligns with these circuit holdings.
That leads us to the same holding as the Magistrate Judge made in her R&R.
B.

Spoiled Verdict Forms

Santos also argues that the use of the dictionary, considering the spoiled verdict forms,
results in prejudice. Alternatively stated, Santos objects on the basis that the R&R fails to
acknowledge the correlation between the receipt of the dictionary and request for new verdict
forms. He argues that before jurors received the dictionary and at around the time that they
requested new verdict forms, five jurors were voting guilty, one was voting not guilty, and six
were undecided (including the juror who signed both forms). According to Santos, the change in
votes from not guilty and undecided to guilty suggests the jury’s use of the dictionary swayed
their votes. As the R&R explains, Santos failed to raise this issue on direct appeal. (R&R at 57.)
As a result, such a claim is procedurally defaulted. See O’Sullivan v. Boerckel, 526 U.S. 838,
845, 848 (1999) (holding that federal habeas claims must first be presented in “one complete
round” of state appellate review).
C.

Juror Memories

Santos objects to R&R’s conclusions as to juror memory. In doing so, Santos argues that
the fact that some jurors remembered the dictionary and its consultation during deliberations,
even though almost twelve years had elapsed, is enough to demonstrate its impact on the jurors.

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We disagree. Rather to the contrary of Santos’ suggestion that “several jurors” remembered the
dictionary, only two or three of the testifying jurors recalled it. We agree with the R&R’s logic:
If the dictionary definition indeed was the key to resolving a struggle among the jurors and
contributed to jurors changing their minds, one would expect more jurors to remember the
dictionary and even the definition that brought them to unanimity. (R&R at 37.)
D.

Accountability

Santos objects to the R&R’s conclusion that “it is unlikely that the definition of the word
collaborate, conspire, or collude was . . . the key to the jury resolving an alleged struggle over his
accountability for others’ actions.” (R&R at 43.) Indeed, there was an “accountability” jury
instruction. (R&R at 45.) We agree with the R&R’s holding because the short and general
definitions of the words “collaborate,” “conspire,” or “collude,” are fundamentally different that
the jury’s accountability instruction that defined what it takes to be “legally responsible” for and
accountable for another’s conduct. There is no evidence whatsoever that the jury used the
dictionary to try to define a word like “accountability” or “legally responsible.” And even if they
did, that would not automatically foreclose the possibility that the jurors nevertheless followed
the jury instructions’ definitions.
E.

Comparing Definitions

Like the preceding objection, Santos objects to the R&R on the basis that the Magistrate
Judge compared the dictionary definitions of the words the jury defined to the jury instructions’
words and definitions. Santos cites no law whatsoever in support of this objection. Indeed, we
opine that no case law exists in support of Santos’ position. In fact, we would have been inclined
to reverse the R&R in this case had the Magistrate Judge not scrutinized the definitions of the
words the jury defined alongside the jury instructions.

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F.

Moore, Wiehart, and Hall

Santos next objects to the Magistrate Judge’s finding that three cases do not support
Santos’ petition with respect to the actual prejudice component. See Moore v. Knight, 368 F.3d
936 (7th Cir. 2004); see also Wisehart v. Davis, 408 F.3d 321 (7th Cir. 2005); Hall, 692 F.3d at
793. We agree with the Magistrate Judge’s determination that these three cases do not support
Santos’ position.
First, as correctly distinguished by the Magistrate Judge, the Seventh Circuit reversed
Moore for reasons that make it distinguishable from Santos’ case. See Moore, 368 F.3d at 936.
The main reason for Moore’s reversal was that the court failed to hear testimony from enough
jurors to form a consensus and applied the wrong standard of law. Id. at 937-38. Here, testimony
has been heard from all living jurors and the correct standard of law has been applied.
The R&R also rightly found Wisehart unhelpful to Santos. See Wisehart, 408 F.3d at
326-27. Wisehart instructs that a court should conduct a hearing whenever extraneous
information reaches the jury to inquire into whether the jury’s impartiality is impacted. Id. We
complied with Wisehart’s instructions because the Magistrate Judge conducted an evidentiary
hearing to examine whether extraneous communications and information impermissibly reached
and influenced the jury.
Last, Santos contends that the R&R misapplied Hall. See Hall, 692 F.3d at 795. In Hall,
the jury learned during deliberations that Hall’s prison inmates (one whom was the son of a
juror) believed he was guilty, even though that information was not adduced at trial. Id. The
Seventh Circuit held that the District Court should have held proceedings to allow the state to
show countervailing facts that could alleviate prejudicial impact to the jury. Id. at 807. We agree
with the factual distinctions drawn in the R&R the jury contacts at issue in Santos’ case are

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vastly different from those in Hall.
For these reasons, Santos’ objections to the R&R’s application of Moore, Wisehart, and
Hall are overruled.
G.

Evidentiary Strength

Santos objects with the R&R’s factual finding that the evidence on the record fails to
establish a likelihood of prejudice. We find, however, that the evidence on the record at trial
overwhelmingly supported a guilty verdict. This evidence included a videotaped confession by
Santos where he admitted to his participation in the very kidnapping and burglary plot that
ultimately led to a shootout and death. Plus, Santos testified at trial that he paid two officers to
accompany him to collect the drug debt. These pieces of evidence, among others, are likely
enough to support the guilty verdict despite the limited ex parte communications and the jury’s
use of a dictionary to define words not contained in the jury instructions. Objection overruled.
H.

Curative Instructions

Santos objects to the R&R’s determination that the trial court’s lack of a curative
instruction regarding the dictionary was not prejudicial. We agree with the R&R’s holding that
Santos and his counsel failed to request a curative instruction and preserve the record. Even if
they had done so, as the R&R explained, that failure to ask for a curative instruction at trial did
not alter the result. Like the R&R explained, the “ultimate question is whether Santos has shown
from the evidence that the jury’s use of the dictionary had ‘a substantial and injurious effect’ on
the outcome of the verdict . . . or that there is a ‘grave doubt as to the harmlessness of an error
that affect substantial rights.’” (R&R at 53-54 (internal citations omitted).) Even had Santos
requested a curative instruction, it would not have changed the trial’s outcome. Objection
overruled.

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III.

Ex Parte Communications About The Dictionary

Santos next objects to the R&R’s conclusion that no prejudice resulted from the judge’s
ex parte communication with the jury about the dictionary. “The Supreme Court has made it
clear that [t]he defense has no constitutional right to be present at every interaction between a
judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such
communication.” United States v. Smith, 31 F.3d 469, 472 (7th Cir. 1994) (internal citations and
quotations omitted). “The Court has made it equally clear, however, that a defendant has a right,
guaranteed by the Due Process Clause, to be present at a proceeding whenever his presence has a
relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.”
Id. In other words, the existence of ex parte communications does not automatically create a
reversible error. See United States v. Gagnon, 470 U.S. 522, 526 (1985).
In Smith, for example, the Seventh Circuit concluded that certain ex parte
communications between the judge and jury were prejudicial. Smith’s jury expressed concern
over the fact that their private addresses had been made available to the criminal defendant’s
counsel. Id. at 472. The Seventh Circuit determined that the expression of concern about the
disclosure of where they live may have indicated that the jurors already made up their minds,
before the trial concluded, that the criminal defendant was guilty and posed a potential danger to
them. Id. Accordingly, the Seventh Circuit held that the defendant had a right to be present
during that conversation to ensure that the court's actions would not be interpreted as a
confirmation of the jury's bias. Id.
Smith’s ex parte communication is distinguishable from the instant case’s
communication. Here, the only ex parte communication that occurred consisted of the jury
sending a note to the judge asking for a dictionary, and the judge responding by delivering one.

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(R&R at 55.) Since the R&R correctly concluded that Santos suffered no prejudice from the
jury’s use of the dictionary, it logically proceeds to rightfully find no prejudice resulting from
communications about that dictionary.
IV.

Other Alleged Errors

Santos advances a combined objection in a section to his brief entitled “Prejudice from
Other Errors.” (Objections at 49.) Those objections allege a pattern of ex parte communications
between the judge and jury, and focus in on the jury’s request for trial transcripts, the jury’s
request for new verdict forms, and the jury’s request for a clarification of the verdict forms. We
address these objections in turn.
We agree with the R&R’s determination that the record does not support Santos’
argument that the trial judge engaged in a pattern of improper prejudicial contacts with jurors.
Nevertheless, these are new claims that were not described in the initial habeas petition. And
these claims do not relate back to the original petition’s filing date because they do not share a
common core of operative fact. See Mayle v. Felix, 545 U.S. 644, 657-64 (2005). Thus, to the
extent that these new claims are based on a new set of facts, they are untimely under the one-year
statute of limitations for habeas petitions, and we reject them. 28 U.S.C. § 2244(d).
The ex parte communication for new verdict forms does not warrant habeas relief. As
discussed above, although the judge did not consult with the parties in advance, he informed
them as soon as they returned to court and made the spoiled forms part of the record. Santos
procedurally defaulted this claim by having failed to preserve an objection to this on the record
and failed to raise it on direct appeal. See O’Sullivan, 526 U.S. at 848.
The ex parte communication regarding trial transcripts does not warrant habeas relief
either. In Illinois, trial courts have discretion to give jurors such transcripts when they are

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available. People v. McLaurin, 922 N.E.2d 344, 353 (Ill. 2009). Therefore, the judge did not
make a prejudicial error by following Illinois’ own civil procedure. Moreover, Santos never
complained at trial or on appeal about the transcripts. (R&R at 48.) Indeed, the prosecutor’s trial
notes indicate that both sides agreed to give transcripts to the jury. (Dkt. No. 154-1 at 3.)
Nor does the jury’s communication with the judge for a “clarification” of the verdict
forms warrant habeas relief. The record shows that, before responding to the jury’s request for
clarification, the judge called the parties into court to discuss the matter. (R&R at 57-58.) Then
the parties agreed that the jury should be instructed to refer to the jury instructions’ description
on how to complete the verdict forms. (Id.)
For these reasons, we overrule Santos’ objections to other alleged errors.
V.

Santos’ Request for Leave to File an Amended Habeas Petition

Included within Santos’ brief is a perfunctory sentence that asks for leave to file an
amended habeas petition to include the constitutional claims related to additional contacts
between the judge and jury, and claims of ineffective assistance of counsel. (Objections at 54.)
We deny that request because new claims based on new facts would be untimely under the oneyear limitations period for habeas petitions. See 28 U.S.C. § 2244(d). That limitations period
began running, at the latest, after the May 2018 hearings concluded. More than a year has since
passed, and Santos has not provided any excuse for waiting so long until seeking such leave.

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CONCLUSION
For the foregoing reasons, we overrule Santos’ objections, adopt Magistrate Judge
Finnegan’s R&R, and deny Santos’ habeas petition. It is so ordered.

______________________________
Honorable Marvin E. Aspen
United States District Judge
Dated: January 5, 2021
Chicago, Illinois

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